Sabree v. United Broth. of Carpenters and Joiners Local No. 33

• Citation: 921 F.2d 396
• Decision Date: 08 November 1990
• Docket Number: No. 90-1521,90-1521
• Parties: 54 Fair Empl.Prac.Cas. 1070, 55 Empl. Prac. Dec. P 40,456 Mark H. SABREE, Plaintiff, Appellant, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS LOCAL NO. 33, Defendants, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 396

921 F.2d 396

54 Fair Empl.Prac.Cas. 1070,

55 Empl. Prac. Dec. P 40,456

Mark H. SABREE, Plaintiff, Appellant, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS LOCAL NO. 33 Defendants, Appellees.

No. 90-1521.

United States Court of Appeals First Circuit.

Heard Nov. 8, 1990.

Decided Dec. 27, 1990.

Paul A. Manoff, Boston, Mass., for plaintiff, appellant.

Aaron D. Krakow with whom Feinberg, Charnas & Schwartz, P.C., Boston, Mass. was on brief, for defendants, appellees.

Before BREYER, Chief Judge, SELYA, Circuit Judge, and PETTINE, ^* Senior District Judge.

PETTINE, Senior District Judge.

This is an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq., and Mass.G.L. c. 151B Sec. 5 wherein plaintiff-appellant, Mark H. Sabree, a black man, alleges that he was discriminated against on account of his race by defendant-appellee, the United Brotherhood of Carpenters and Joiners of America Local Number 33 ("Local 33"). The United States District Court for the District of Massachusetts granted Local 33's motion for summary judgment on the grounds that all of the claimed violations, save one, were time barred under the statutes, that there was no continuing violation that would operate to save the "stale" claims and that appellant had failed to present a prima facie case for disparate treatment as to the one violation that was not time barred. Sabree appeals from this ruling. For the foregoing reasons, we affirm the District Court's ruling that the earlier claims are time barred; however, we vacate the grant of summary judgment as to the timely claim and remand the case.

I. BACKGROUND

Sabree, a Boston resident, first applied for membership in Local 33 as an apprentice in the fall of 1970. Local 33 is one of four unions that comprise the Boston District Council. ¹ At that time, he was told to come back in a couple of weeks. Upon his return, he was told that the Local was out of applications and that he should come back in the spring. When Sabree reappeared in the spring of 1971, he was told that applications were only given out in the fall. When Sabree reappeared in the fall of 1971 he was told that he was too late and that all apprentice classes were full. In the spring of 1972, Sabree again attempted to apply and was again told that applications were only accepted in the fall. Despite Sabree's numerous contacts with Local 33 during this time period, it appears that he was never told that the defendant actually accepted applications every February.

In 1977, Sabree, having been unsuccessful in his attempts to become an apprentice with Local 33, joined and became an apprentice in Local 107 (a Worcester-based local that was not a member of the Boston District Council). Once more, in 1978, plaintiff contacted Local 33; this time he applied to transfer into Local 33 from Local 107. This attempt to transfer led to Sabree's second set of encounters with Local 33. At first, he was told that he could not transfer because he was an apprentice. In 1979 when plaintiff renewed his attempt to transfer, he was again thwarted. This time he was not told that his apprenticeship status barred his transfer but that the local was not taking transfers because too many members were out of work. In 1981, after becoming a journeyman with Local 107, Sabree again tried to transfer to Local 33. As before, he was denied the transfer. This time the explanation was that the Local did not take transfers unless the prospective transferee first found his own union work in Boston. It was at this time that defendant advised Sabree to instead join Local 67 or Local 40, other locals in the Boston District Council.

Frustrated and sensing the futility of his transfer attempts with Local 33, Sabree, in 1982, transferred to Local 40 in Cambridge. A year later, the business manager of Local 40, requested that Sabree leave the local and transfer back to Local 107. ² Sabree complied; he worked for Local 107 in Worcester but continued to live in Boston.

Two years passed. During this interim, Sabree learned that the Boston District Council had a by-law that restricted intra-council transfers. ³ In 1985, Sabree relaunched his efforts to transfer into Local 30. During this third and final set of attempts, Sabree did not inform Local 33 that he had, at one time, been a member of Local 40, nor did anyone from Local 33 inquire as to the history of his union membership. As in 1981, Sabree was told, over the telephone, that no transfers were accepted unless the transferee first found his own union job. He then wrote to the defendant requesting a transfer and made numerous attempts to obtain union work in Boston. These attempts to obtain union work on his own were as futile as his attempts to join or transfer to Local 33. At the job sites he was repeatedly informed that they only hired through the union hall. On July 17, 1985, in response to Sabree's earlier letter, Local 33 explained the transfer procedure, noting that he needed authorization from the Business Agent of the local to obtain the transfer. In addition to explicating the procedure, the defendant also told Sabree that his present job was non-union. ⁴ Sabree disagreed that with the characterization of his present job as non-union, but he did not pursue the issue any further. Instead, on July 31, 1986, plaintiff made his final attempt to transfer into Local 33. This time, he was told that the local was not taking any transfers from within the state. That same day, Sabree filed a complaint alleging racial discrimination against Local 33 with the Equal Employment Opportunity Commission ("EEOC") and the Massachusetts Commission Against Discrimination ("MCAD").

Early in 1988, Sabree filed suit in the United States District Court for the District of Massachusetts alleging a violation of Title VII and Massachusetts law. The District Court granted summary judgment for Local 33 on April 27, 1990. Sabree has appealed that order.

II. SUMMARY JUDGMENT

Before granting a motion for summary judgment under Fed.R.Civ.P. 56, a court must find that there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The facts must be viewed in the light most favorable to the non-moving party. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). We will reverse a grant of summary judgment if "there existed any factual issues that needed to be resolved before the legal issues could be decided." Rossy v. Roche Products Inc., 880 F.2d 621, 624 (1st Cir.1989). Moreover, "our review will be most searching in cases, such as this, that turn upon the issue of motive or intent." Id.; see Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 759 (9th Cir.1980) ("Courts are reluctant to dismiss by summary judgment Title VII discrimination suits where ... motive and intent are crucial elements and the proof is in the hands of the alleged wrongdoers.").

In the present case, the District Court ruled that all of the alleged discriminatory incidents complained of, other than the 1986 denial of transfer, were time-barred under federal and state law. The court further held that the earlier incidents did not amount to a continuing violation. As to the timely 1986 incident, the court found that plaintiff failed to make out a prima facie case of disparate treatment under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Specifically, the district court found that the by-laws cited by the defendant rendered plaintiff unqualified for membership. We agree with the district court that plaintiff's pre-1986 claims are untimely; however, because we find that the court's legal conclusions with regard to the 1986 claim are incorrect, we vacate in part the grant of summary judgment and remand the case for further proceedings in accordance with the standard set out below.

III. STATUTE OF LIMITATIONS

"Issues of timely filing may be decided under Rule 56 if the relevant facts are sufficiently clear." Jensen v. Frank, 912 F.2d 517, 520 (1st Cir.1990) (citing Doyle v. Shubs, 905 F.2d 1, 1 (1st Cir.1990) (per curiam); Kali Seafood, Inc. v. Howe Corp., 887 F.2d 7, 9 (1st Cir.1989); Mack v. Great Atlantic & Pacific Tea Co., 871 F.2d 179, 191 (1st Cir.1989)). The initial requirement for a Title VII "timely filing" is that the plaintiff must file a charge of discrimination with the EEOC. See id. In a deferral state, such as Massachusetts, a state with its own civil rights statute and agency, Title VII, 42 U.S.C. 2000e-5(e), requires that a plaintiff file the charge with the appropriate state agency within 240 days of the discriminatory act and with the EEOC within 300 days of the act. Mack, 871 F.2d at 181, Cajigas v. Banco de Ponce, 741 F.2d 464, 467 (1st Cir.1984). ⁵

Because the plaintiff did not file any charges until July 31, 1986, the only incident falling within the statutory time frame is the transfer denial of the same date. Plaintiff seeks to recover for the prior allegedly discriminatory acts by arguing that they constitute a continuing violation.

The law of continuing violations is both complicated and confusing, in part because there are a number of different theories under which the courts have found such violations to exist, in part because the discussion in many of the cases is less than clear, and in part because some of the fact situations involved in the cases, and also some of the concepts involved, pose very difficult line-drawing problems. B. Schlei and P. Grossman, Employment Discrimination Law 884 (1976). ⁶

The present case differs factually from our previous continuing violation cases. In this Circuit we have delineated two types of continuing violations: serial violations and systemic violations. ⁷ Jensen, 912 F.2d at 522 (citing Mack, 871 F.2d at 183). ⁸ Sabree has not alleged, nor is there any evidence of, a systemic violation. We, therefore, focus our attention...