E.E.O.C. v. Green, 95-1571
| Citation | 76 F.3d 19 |
| Decision Date | 02 October 1995 |
| Docket Number | No. 95-1571,95-1571 |
| Parties | 70 Fair Empl.Prac.Cas. (BNA) 88, 67 Empl. Prac. Dec. P 43,900 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. Donald E. GREEN, Law Offices, Defendant-Appellee. . Heard |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
John F. Suhre, Attorney, with whom C. Gregory Stewart, General Counsel, Gwendolyn Young Reams, Associate General Counsel, and Vincent J. Blackwood, Assistant General Counsel, Washington, DC, were on brief for appellant.
Nancy S. Shilepsky, with whom David J. Burgess and Dwyer & Collora, Boston, MA, were on brief for appellee.
Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.
On December 29, 1993, Ollie Osinubi, a female paralegal at the Law Offices of Donald E. Green ("Green"), filed a Title VII charge against Green alleging sexual harassment and constructive discharge. Osinubi filed her charge with the Equal Employment Opportunity Commission ("EEOC") 191 days after the last alleged act of discrimination. After investigating Osinubi's charge, the EEOC brought this action against Green in the United States District Court for the District of Massachusetts alleging sexual and racial harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Green moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6), arguing that Osinubi's claim was untimely, having been filed outside the 180-day limitations period outlined in section 706(e)(1) of Title VII, 42 U.S.C. § 2000e-5(e)(1). The district court agreed, and because Green's Motion to Dismiss presented matters outside the pleadings, the court treated it as a motion for summary judgment and granted summary judgment for Green. The EEOC appeals. For the reasons discussed below, we reverse.
Under section 706(e)(1), a charge of employment discrimination generally must be filed with the EEOC within 180 days of the last alleged act of discrimination. 42 U.S.C. § 2000e-5(e)(1). 1 However, if a claimant initially institutes proceedings with a state or local agency, a charge can be filed with the EEOC up to 300 days after the discriminatory act. Id.
Section 706(c) provides that where an alleged discriminatory employment practice has occurred in a so-called "deferral state" (a state that has its own anti-discrimination Massachusetts is a deferral state and the Massachusetts Commission Against Discrimination ("MCAD") is the agency responsible for enforcing Massachusetts's anti-discrimination laws. The EEOC and the MCAD have entered into a Worksharing Agreement to avoid duplication of effort by apportioning the responsibilities for processing charges.
laws and enforcement agency), the deferral state has sixty days of exclusive jurisdiction over the claim, and only after the sixty days have expired or the proceedings have been "earlier terminated" can the charge be filed with the EEOC. 42 U.S.C. § 2000e-5(c). 2 The sixty-day period of exclusive jurisdiction is intended to "give States and localities an opportunity to combat discrimination free from premature federal intervention." EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 110, 108 S.Ct. 1666, 1669, 100 L.Ed.2d 96 (1988). Many state agencies, in order to facilitate the federal processing of charges, have entered into "worksharing agreements" with the EEOC in which the state agency agrees to waive its right to the sixty-day period of exclusive jurisdiction for certain categories of claims
In reviewing a motion for summary judgment, we recite the facts in the light most favorable to the non-moving party. See Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992).
Green hired Osinubi as a paralegal in October of 1992. Osinubi later left Green's employment allegedly because a work environment fraught with sexual harassment made work intolerable. On December 29, 1993, Osinubi filed a charge of sexual harassment and constructive discharge with the EEOC. Osinubi did not file a separate charge with the MCAD.
At the top of her EEOC charge form, in the space provided for naming the state or local agency, if any, Osinubi typed "Mass Comm Against Discrimination." Osinubi failed, however, to mark a box in the lower left-hand corner that stated, "I want this charge filed with both the EEOC and the State or local Agency, if any." Osinubi also indicated on the charge form that the latest date that discrimination took place was June 20, 1993, 191 days prior to her filing the charge. After investigating the charge, the EEOC commenced this sexual harassment and race discrimination action in federal district court on December 7, 1994.
On February 8, 1995, Green moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6), contending that the EEOC's claim was time-barred because of Osinubi's failure to file her charge within 180 days of the last alleged act of discrimination. Green further maintained that the EEOC could not avail itself of the extended 300-day limitations period because the extension only applies to claimants who have first filed with the state agency and Osinubi's charge was never filed with the MCAD. To support this factual proposition, Green attached to its motion the affidavit of Jane Brayton, executive assistant to the MCAD Commissioners, stating that her review of the MCAD computer files revealed no record of Osinubi's charge having been filed with the MCAD.
On March 6, 1995, the EEOC filed its Opposition to the Motion to Dismiss and attached the affidavit of Elizabeth Grossman, an EEOC trial attorney. 3 In her affidavit, Grossman stated, inter alia, that the EEOC had forwarded a copy of Osinubi's charge to On March 13, 1995, Green moved to strike the charge transmittal form and that portion of Grossman's Affidavit regarding the EEOC's forwarding of Osinubi's charge. Green contended that the charge transmittal form was unauthenticated, did not prove filing with and receipt by the MCAD, and that Grossman has no personal knowledge of the EEOC's forwarding of Osinubi's charge to the MCAD.
the MCAD on December 29, 1993. Grossman supported this statement with a copy of the EEOC's charge transmittal form for Osinubi's charge, dated 12/29/93 and addressed to the MCAD. The form, however, was not signed by an officer of the MCAD indicating the MCAD's receipt
On March 23, 1995, the EEOC filed its Opposition to the Motion to Strike. The EEOC responded that Grossman could attest to routine EEOC procedures and thereby authenticate the charge transmittal form and that Osinubi's charge was constructively filed with the MCAD when the EEOC forwarded it to the MCAD on December 29, 1993. In the alternative, the EEOC argued that even if the MCAD's receipt of Osinubi's charge was required to initiate MCAD proceedings, it could verify such receipt with the attached affidavit of Walter W. Horan, the EEOC Program Coordinator for the MCAD. In his attached affidavit, Horan stated that he was the MCAD's custodian of records of EEOC charges forwarded to the MCAD and that MCAD records indicated that the MCAD received a copy of Osinubi's charge on January 6, 1994. Horan attached to his affidavit a signed copy of the charge transmittal form acknowledging the MCAD's receipt of Osinubi's charge.
On March 29, 1995, the district court issued its opinion resolving the Motion to Dismiss and the Motion to Strike. The court began its opinion by noting that because matters outside the pleadings were presented, it was converting Green's motion to dismiss for failure to state a claim to a motion for summary judgment. The district court had not previously notified the parties of its intention to convert. The court then explained that to qualify for the extended limitations period, Osinubi or the EEOC on Osinubi's behalf must have initially filed charges with the MCAD. The court found, however, that neither Osinubi nor the EEOC had done so. With respect to Osinubi, the court viewed her failure to check the box on the EEOC charge form as evincing a preference not to have her charge filed with the MCAD.
The EEOC, the court found, had also failed to file Osinubi's charge with the MCAD. The court assumed arguendo that Grossman's contested attestation that the EEOC had forwarded Osinubi's charge to the MCAD was admissible. The court held, however, that merely forwarding the charge to the MCAD was not sufficient to initiate MCAD proceedings and thereby trigger the extended limitations period; proof that the MCAD actually received the forwarded charge also was necessary.
Despite Horan's verification of the MCAD's receipt of Osinubi's charge, the district court found that the EEOC had not contested Brayton's assertion that the MCAD had no record of receiving Osinubi's charge. Accepting this "uncontested" fact as true, the court reasoned as follows: because the MCAD never received a copy of Osinubi's charge, a precondition to invoking the 300-day extended limitations period had not been satisfied; thus, the general 180-day limitations period applied, and the EEOC's complaint was time-barred. The district court made no mention of the Horan Affidavit and did not explain the reason for its failure to consider it.
Finally, the district court dismissed the EEOC's argument that paragraph II.A. of the EEOC-MCAD Worksharing Agreement ("[the MCAD] designates [the EEOC] as its agent for the purpose of receiving charges") allows MCAD proceedings to be initiated upon the EEOC's receipt of a charge and without additional notice to the MCAD. Citing Hamel v. Prudential Ins. Co., 640 F.Supp. 103, 107 (D.Mass.1986), the court held that filing with the state agency is a precondition to invoking the extended limitations period and that to allow otherwise, e.g., by way of worksharing agreement, would be
inconsistent with the scheme...
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