Cajigas v. Banco de Ponce

• Decision Date: 10 October 1984
• Docket Number: No. 83-1605,83-1605
• Citation: 741 F.2d 464
• Parties: 35 Fair Empl.Prac.Cas. 758, 34 Empl. Prac. Dec. P 34,572 Beatriz CAJIGAS, Plaintiff, Appellant, v. BANCO de PONCE, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 464

741 F.2d 464

35 Fair Empl.Prac.Cas. 758,

34 Empl. Prac. Dec. P 34,572

Beatriz CAJIGAS, Plaintiff, Appellant, v. BANCO de PONCE, Defendant, Appellee.

No. 83-1605.

United States Court of Appeals, First Circuit.

Argued Feb. 8, 1984.

Decided Aug. 9, 1984.

Opinion on Denial of Rehearing and Rehearing En Banc Oct. 10, 1984.

Jose E. Fernandez-Sein, Santurce, P.R., with whom Law Offices of Harvey B. Nachman, Santurce, P.R., was on brief, for plaintiff, appellant.

Jay A. Garcia Gregory, San Juan, P.R., with whom Juan Carlos Perez Otero, and Fiddler, Gonzalez & Rodriguez, San Juan, P.R., were on brief, for defendant, appellee.

Before CAMPBELL, Chief Judge, WISDOM, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

PER CURIAM:

In this title VII ¹ action the Plaintiff, Beatriz Cajigas, alleges that the defendant, Banco de Ponce, discriminated against her on account of her sex. The district court dismissed the complaint on the ground that Mrs. Cajigas had not filed administrative charges of discrimination within the statutory limitation period. ² We reverse and remand.

I.

In reviewing the district court's grant of summary judgment for the defendant, we must view the record in the light most favorable to the plaintiff and draw all reasonable In November 1978, Cajigas occupied the position of accountant in the Investment Division of the Banco de Ponce. At that time, she had worked for the bank for over four years and had been promoted twice. Her most recent promotion had been in December 1977, and since that time she had informed her superiors of her desire to be promoted to the position of manager. On November 22, 1978, the bank promoted a male co-worker, Mr. Sepulveda, to a manager's position within the Investment Division; on the same day the bank named Cajigas assistant manager of the Division. ³

                inferences in favor of the plaintiff.   See, e.g., Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976);  Massaro v. Vernitron Corp., 559 F. Supp. 1068, 1073 (D.Mass.1983).  Examined from such a perspective, the facts of this case are as follows
                

Unhappy that Sepulveda had been made a manager and that she had not, Cajigas complained to the bank official in charge of the Investment Division. This official told her that the bank did not want any women, particularly married women, ⁴ in a manager's position because the bank's clients preferred to deal with men at the executive level and because married women could not attend lunch and dinner meetings with clients and bank officials. In February 1979, a woman other than plaintiff was appointed as a manager in the investment department. Meanwhile and thereafter Cajigas complained to her supervisor "almost everyday" ⁵ about not being promoted. On March 27, 1979, she brought her complaint before higher bank officials. When the officials would not promote her to manager, she resigned.

Cajigas met with one of the bank's vice-presidents, Alfredo Arroyo, on June 21, 1979. Arroyo offered her a manager's position, but he refused to guarantee that she would receive compensation and promotional opportunities equal to those afforded male employees. Arroyo also refused to give her back pay dating from the time of Sepulveda's promotion. Because of those refusals, Cajigas did not accept the bank's offer.

On July 6, 1979, her attorney mailed a letter to the Equal Employment Opportunity Commission (EEOC) asserting that the Banco de Ponce had discriminated against Cajigas on the basis of her sex. On August 9, 1979, she filed a formal charge of discrimination with the Anti-Discrimination Unit (ADU) of the Puerto Rico Department of Labor and Human Resources, and she filed a formal charge with the EEOC on August 14. The ADU dismissed the charge on October 31, 1979. The EEOC terminated its evaluation of the charge and issued Cajigas a right-to-sue letter on September 2, 1980. She filed her complaint in the district court later that month.

The bank filed a motion for summary judgment on April 23, 1981. The district court granted this motion in part, ⁶ but rejected the argument that the action was barred by the applicable statute of limitations. Order of Feb. 25, 1982, Record vol. 1, doc. no. 33 (D.P.R.). On reconsideration of its partial denial of the motion, the district judge decided that the promotion of Sepulveda was the sole reason underlying the plaintiff's decision to resign on March 27, 1979; that the resignation, therefore, was a consequence of "that single discriminatory act"; and that "[t]he same [could] be said of the later offers of reemployment made by the defendant". Opinion and Order of July 8, 1983, Record vol. 1, doc. no. 41, at 6 (D.P.R.). Because Sepulveda's promotion occurred on November 22, 1978, the court held that the plaintiff's filings with the ADU and the EEOC on August 9, 1979, and August 14, 1979, respectively, were untimely. The court accordingly granted the defendant's motion for summary judgment

and dismissed the complaint. This appeal followed.

II.

The sole issue on appeal is whether Cajigas made a timely filing of administrative charges of discrimination. She raises a number of arguments in attacking the district court's holding that she did not file her charges within the relevant statutory period. Some of these arguments are irrelevant or have been waived; these we need not resolve. We address these arguments first. Then we discuss the plaintiff's remaining arguments.

A.

The plaintiff presents three arguments whose merits we need not address.

First. The plaintiff's brief expends much effort arguing, and the defendant's brief disputing, the question whether Puerto Rico is a "deferral state"--that is, a state ⁷ having a state or local agency to which the EEOC must initially defer administrative action. In a deferral state, a plaintiff must file her charge of discrimination with the appropriate state agency within 240 days of the last act of unlawful discrimination. ⁸ In a nondeferral state, a plaintiff must file her charge with the EEOC within 180 days of the last act of unlawful discrimination. See 42 U.S.C. Sec. 2000e-5(e) (1979). Cajigas argues that Puerto Rico is a deferral state and that the 240-day limit applies. The bank asserts that the plaintiff never presented this argument below and therefore cannot raise it now. At this point, the issue need not be determined. ⁹ If, as the plaintiff argues, the defendant discriminated against her either up to her resignation on March 27, 1979, or in connection with the reemployment offer in June 1979, the plaintiff's filing with the EEOC meets the (shorter) 180-day limit for nondeferral states. If, as the district court held, the only act of illegal discrimination against the plaintiff was the defendant's promotion of Sepulveda on November 22, 1978, the plaintiff's filing with the ADU does not meet even the (longer) 240-day limit for deferral states. Thus, the deferral question is irrelevant at this point: The plaintiff's success on this appeal will be determined solely by her success in the arguments addressed in the next section of this opinion.

Second. Cajigas argues that the July 6, 1979, letter to the EEOC constitutes a "filing" for purposes of the statute of limitations. We decline to consider this argument. The plaintiff never filed this letter with the district court, and it is not part of the record. The plaintiff's pleadings and memoranda consistently refer to various dates between August 8 and August 14, 1979, as the EEOC filing date; they never mention the letter of July 6. ¹⁰ Because this argument was neither raised in nor considered by the district court, we shall not address it for the first time on Third. Cajigas argues that there is evidence that she did not learn of Sepulveda's promotion until sometime in December 1978, and that the applicable statute of limitations did not commence until the plaintiff received notice of the promotion. Again, this argument was not considered by the district court, and therefore cannot be raised for the first time on appeal. In fact, the bank asserted in its motion for summary judgment and in an affidavit that the plaintiff was notified of Sepulveda's promotion on November 24. The plaintiff's memorandum in opposition to the motion does not controvert this fact, and indeed seems to accept it. The fact must therefore be accepted as true for the purposes of ruling on the motion for summary judgment. See Melanson v. Caribou Reefers, Ltd., 667 F.2d 213, 214 (1st Cir.1981) (per curiam); Morton v. Browne, 438 F.2d 1205, 1206 (1st Cir.1971) (per curiam). ¹¹

                appeal.   See Greenwich Federal Savings & Loan Association v. Fidelity Bond & Mortgage Co., 714 F.2d 183, 184 (1st Cir.1983);  Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1017 & n.7 (1st Cir.1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980)
                

B.

In addition to the arguments discussed in Section A, the plaintiff asserts three reasons that the district court should not have granted the defendant's motion for summary judgment. First, Cajigas argues that the defendant committed an act of unlawful discrimination when, in June 1979, it refused to give her back pay and to guarantee equal treatment if she would return to work. Second, Cajigas argues that the applicable limitation period should be tolled because of her efforts to work out a voluntary conciliation with the defendant. Third, she argues that she was the victim of the defendant's discriminatory promotion policy, not only in November 1978 but also thereafter when defendant again refused to appoint her to available managerial positions for which she was qualified. ¹² We reject the first two arguments, but agree with the third.

The plaintiff's first two contentions can be quickly dismissed. First, Cajigas has not alleged any facts showing that the bank's refusal to offer equal pay and to guarantee equal promotional opportunities constituted different...