Lebron-Rios v. U.S. Marshall

United States Court of Appeals
For the First Circuit

No. 02-2172

VICTOR LEBRÓN-RÍOS; BERNICE APONTE-RODRÍGUEZ,

Plaintiffs, Appellants,

v.

U.S. MARSHAL SERVICE; MVM, INC.; LUIS A. TORRES; MARIA CORTES;
CONJUGAL PARTNERSHIP TORRES-CORTES; LUIS A. COMAS; CRISTINA
PAGAN; CONJUGAL PARTNERSHIP COMAS-PAGAN,

Defendants, Appellees,

UNITED STATES DEPARTMENT OF JUSTICE, PUERTO RICO DISTRICT; UNITED
GOVERNMENT SECURITY OFFICERS OF AMERICA, LOCAL 72; CÉSAR TORRES;
BETSY ROSE; CONJUGAL PARTNERSHIP TORRES-ROSE; UNKNOWN INSURANCE
COMPANY X,

Defendants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. Garcia-Gregory, U.S. District Judge]

Before

Lynch, Lipez, and Howard, Circuit Judges.

Benito Gutierrez Diaz was on brief for plaintiffs-appellants.

Jason M. Branciforte and Margarita D. Santos were on brief for
defendants-appellees MVM, Inc. et al.

Miguel A. Fernandez, Assistant United States Attorney, H.S.
Garcia, United States Attorney, and Fidel A. Sevillano del Rio,
Assistant United States Attorney, were on brief for defendant-
appellee U.S. Marshal Service and defendants U.S. Department of
Justice and César Torres.

August 14, 2003
 LYNCH, Circuit Judge. Bernice Aponte-Rodríguez and her

husband, Victor Lebrón-Ríos, appeal the "with prejudice" aspect of

the district court's dismissal with prejudice of their employment

discrimination claims under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq. (2000). The district court ordered

dismissal because the plaintiffs failed to file charges of

discrimination with the Equal Employment Opportunity Commission

before bringing suit. We hold that the district court's dismissal

should have been without prejudice to any later Title VII action

brought by the plaintiffs on properly exhausted claims.

Accordingly, we vacate and remand to the district court to clarify

its order of dismissal.

I.

Because the district court dismissed plaintiffs' claims

under Fed. R. Civ. P. 12(b)(6), we accept as true all well-pleaded

facts alleged by the plaintiffs in their complaint, drawing in

their favor all reasonable inferences fitting their theory of

liability. Torres-Viera v. Laboy-Alvarado, 311 F.3d 105, 107-08

(1st Cir. 2002).

On September 23, 1999, plaintiff Lebrón-Ríos began

working for MVM, Inc. ("MVM"), a private company that provides

security personnel to the U.S. Marshal Service in Puerto Rico and

elsewhere in the United States. MVM employed Lebrón-Ríos as a

court security officer ("CSO") at the United States District Court

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for the District of Puerto Rico. On April 25, 2001, plaintiff

Aponte-Rodríguez was likewise hired by MVM and assigned to work as

a CSO at the same federal courthouse. Aponte-Rodríguez was one of

only six or seven female CSOs in Puerto Rico; most women previously

hired as CSOs in Puerto Rico lasted only a brief time in the

position. Although Aponte-Rodríguez and Lebrón-Ríos apparently did

not previously know each other, they met while on the job and the

two were eventually married.

After she was hired, Bernice Aponte-Rodríguez began to

receive unwanted sexual overtures from Luis Torres, the MVM site

supervisor for the Puerto Rico federal courthouse and, it appears,

the plaintiffs' ultimate supervisor.1 According to the complaint,

Luis Torres personally ensured that Aponte-Rodríguez was hired as

a CSO because, as he told others, "he was very [fond] of her and

wanted to go to bed with her, as he has done with some other women

assigned to the same job assignment in Puerto Rico with M.V.M.,

1
Luis Torres is identified in the plaintiffs' complaint and
in the parties' papers only as the "site supervisor" for MVM in
Puerto Rico. His formal title and responsibilities are not made
clear. It is apparent from the plaintiffs' allegations, however,
that Luis Torres acted as MVM's chief representative at the federal
courthouse in Puerto Rico, and that in this capacity he supervised
the plaintiffs, their immediate managing supervisors, and other MVM
employees at the courthouse.
Luis Torres is not to be confused with Deputy U.S. Marshal
César Torres, who acts as the liaison between MVM and the U.S.
Marshal Service at the federal district court in Puerto Rico. Both
men were named as defendants. According to the complaint, Luis
Torres committed most of the acts of harassment, while César Torres
allegedly ignored Aponte-Rodríguez's complaints and neglected to
report Luis Torres's misdeeds.

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Inc. for many years back." By sleeping with him, Aponte-Rodríguez

would, in his view, "compensate[]" him for his "generosity" in

arranging for her employment. Sometime after she was hired,

Aponte-Rodríguez was ordered to report to Luis Torres's office for

"training." There was no training -- Luis Torres just asked her to

sit near him and repeatedly invited her to share breakfast or

lunch. Whenever he saw Aponte-Rodríguez, Luis Torres tried to get

as physically close as possible. He praised the color of her

lipstick and frequently commented on her hair and makeup. Once,

Luis Torres ran his hands over Aponte-Rodríguez's hair and

expressed his delight at its softness. On another occasion, he

touched the back of her neck. Aponte-Rodríguez loudly protested

and moved to avoid further contact. Nevertheless, Luis Torres

persisted, often calling her and asking her to visit his office.

When Luis Torres discovered that Aponte-Rodríguez was

romantically involved with Lebrón-Ríos, he was furious. Himself a

married man, Luis Torres informed Lebrón-Ríos that he wanted

Aponte-Rodríguez to be his "mistress" and ordered Lebrón-Ríos to

stop interfering. When Lebrón-Ríos refused, Luis Torres began

openly telling other MVM employees that he was going "to make . .

. Lebrón-Ríos pay" for interfering with his efforts to make Aponte-

Rodríguez his mistress. Lebrón-Ríos found himself abruptly removed

from his usual work post; his work schedule was also altered. He

was reassigned to work with a female CSO with whom he had

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previously been in a relationship. Lebrón-Ríos applied to transfer

to the federal district court for the Virgin Islands, but his

application was mysteriously turned down when Aponte-Rodríguez

applied to transfer to the same district. Lebrón-Ríos was even

ordered to relay messages from Luis Torres to Aponte-Rodríguez.

Plaintiffs timely notified MVM of their mistreatment by

fax and by certified mail, in compliance with MVM's established

procedures for reporting harassment. The company requested time to

investigate, to which the plaintiffs agreed, but the investigation

yielded no results. In addition, Aponte-Rodríguez apparently

complained personally to Deputy U.S. Marshal César Torres, the

liaison between MVM and the U.S. Marshal Service, but he did not

intervene. The plaintiffs' union, United Government Security

Officers of America, likewise refused to get involved. Plaintiffs

even sent notice of their harassment by fax and certified mail to

the U.S. Marshal Service, which plaintiffs allege has supervisory

responsibility for CSOs employed at the federal courthouse in

Puerto Rico. But the Marshal Service did not act on the complaint.

Both plaintiffs were closely monitored by Luis Torres and

by other supervisors, and Luis Torres repeatedly told Lebrón-Ríos

that he wanted him out of the CSO service in Puerto Rico. Luis

Torres shuffled the couple's work schedules so that Lebrón-Ríos and

Aponte-Rodríguez would not see each other at the courthouse, and so

that Luis Torres could be alone with Aponte-Rodríguez. The stress

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eventually sent Lebrón-Ríos to the hospital with high blood

pressure. When Lebrón-Ríos was released, Aponte-Rodríguez stayed

home with him for a day. Although she had duly informed her

immediate supervisor of her intent to do so, she was punished for

her absence with one day off-duty. Meanwhile, MVM ordered Lebrón-

Ríos to undergo a complete medical exam. On December 19, 2001, the

day Aponte-Rodríguez served her off-duty penalty, she received a

call from MVM ordering her not to report back to work until further

notice.2 Around the same time, the company suspended Lebrón-Ríos

indefinitely, claiming he was medically unfit for duty. Plaintiffs

characterize these acts as constructive discharge in retaliation

for their complaints about Luis Torres's conduct.

On December 21, 2001, Aponte-Rodríguez and Lebrón-Ríos

brought suit in the U.S. District Court for the District of Puerto

Rico against MVM, Luis Torres, and other MVM supervisors ("the MVM

defendants"); the U.S. Marshal Service, the Department of Justice,

and Deputy U.S. Marshal César Torres ("the federal defendants");

and other parties.3 Alleging sexual harassment and retaliation in

2
Insofar as the record reveals, Aponte-Rodríguez was never
invited to return to work. Elsewhere in the complaint, however,
plaintiffs inconsistently assert that after Lebrón-Ríos was
suspended, Aponte-Rodríguez "was kept working in her regular
schedule and supervised by the same people she [had accused] of
sexual harassment."
3
Plaintiffs also named their union, Local 72 of United
Government Security Officers of America, as a defendant, alleging
that the union violated the Taft-Hartley Act, 29 U.S.C. § 151 et
seq. (2000), by failing to act on plaintiffs' complaints and by

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violation of Title VII by the MVM and federal defendants, as well

as violations of other federal and state laws by all defendants,4

they sought injunctive relief, reinstatement, damages for emotional

distress and other injuries, and back pay.

Plaintiffs neglected, however, to file a charge of

discrimination with the Equal Employment Opportunity Commission

("EEOC") and obtain a right-to-sue letter before bringing their

lawsuit. See 42 U.S.C. § 2000e-5(e)(1) (2000). On January 30,

2002, the MVM defendants filed a motion to dismiss, contending,

inter alia, that the plaintiffs had failed to exhaust

administrative remedies under Title VII. Plaintiffs did not file

a timely response. On April 19, 2002, the plaintiffs finally

submitted a belated motion requesting an extension of time to file

failing to represent plaintiffs in this action. The district court
initially dismissed this claim when plaintiffs failed to respond to
Local 72's motion to dismiss for improper service. The court later
reconsidered this order and gave the plaintiffs ten days to
identify the section of the Taft-Hartley Act that they believed
Local 72 violated. When the plaintiffs failed to respond within
the allotted ten days, however, the court entered judgment in favor
of Local 72. Plaintiffs do not appeal this aspect of the district
court's decision.
In addition to the MVM defendants, the federal defendants, and
Local 72, plaintiffs named as defendants the spouses and conjugal
partnerships of the individual defendants, as well as an
unspecified insurance company.
4
With respect to the MVM defendants and the federal
defendants, plaintiffs also alleged violations of 42 U.S.C. § 1981
(2000) and Puerto Rico Law No. 17, 29 P.R. Laws Ann. § 155 (2002).
As to Local 72, the plaintiffs asserted violations of the Taft-
Hartley Act, 29 U.S.C. § 151 et seq., as noted supra note 3.
Plaintiffs also asserted a right to relief for unspecified
"personal tort actions."

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an opposition. Without ruling on plaintiffs' motion to extend, the

district court granted the MVM defendants' underlying motion to

dismiss on April 26, 2002. Although the court did not specify in

its opinion whether the dismissal would be with or without

prejudice, its entry of partial judgment on April 26 for the MVM

defendants expressly termed the dismissal "with prejudice."

On May 7, the district court recognized that it had not

ruled on plaintiffs' motion to extend. The court vacated its

partial judgment for the MVM defendants and gave plaintiffs ten

days to show cause why the court should reconsider its ruling on

MVM's motion to dismiss. On June 11, plaintiffs responded,

admitting that they had failed to exhaust and asking that the court

convert its partial judgment for the MVM defendants to an order

dismissing plaintiffs' Title VII claims without prejudice.

Plaintiffs explained, albeit inartfully, that the applicable 300-

day limitations period for filing a charge with the EEOC had not

yet expired,5 and that the dismissal with prejudice would likely

5
Plaintiffs had 300 days to file with the EEOC, rather than
the usual 180, because Puerto Rico is a so-called "deferral"
jurisdiction. See 42 U.S.C. § 2000e-5(e); Bonilla v. Muebles J.J.
Alvarez, Inc., 194 F.3d 275, 278 n.4 (1st Cir. 1999). Taking the
allegations in plaintiffs' complaint as true, the limitations
period may have begun to run on December 19, 2001, the date of
plaintiffs' alleged constructive discharge from MVM. Their
deadline for filing with the EEOC was therefore October 15, 2002,
well after the district court granted dismissal.
It is difficult to understand why plaintiffs, once alerted to
their failure to exhaust by the MVM defendants' January 30, 2002
motion to dismiss, did not initiate administrative proceedings
without waiting for the district court to dismiss the case.

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bar them from bringing an otherwise proper Title VII action after

exhausting their administrative remedies. The MVM defendants have

not contended that the period for filing with the EEOC had

expired.6

Unmoved, the district court denied the motion for

reconsideration on July 30, 2002. Citing three cases, the court

asserted that "[d]ismissals for violations of statutory rules in

similar situations have been treated as being on the merits and

dismissed with prejudice."7 But the court went on to explain that

6
Whether the limitations period had expired, moreover, is not
for us to decide. Unless it is patently clear –- and here it is
not –- that an administrative charge would be time-barred, the
question whether the charge is timely (and if so, as to which
defendants) is a matter for the responsible agency in the first
instance, and for the district court in the next. Here, the
district court did not address this issue and neither do we.
7
For this proposition, the court cited In re Reed, 861 F.2d
1381 (5th Cir. 1988), Siaca v. Autoridad de Acueductos y
Alcantarillados, 160 F.Supp.2d 188 (D.P.R. 2001), and Maldonado-
Cordero v. AT&T, 73 F.Supp.2d 177 (D.P.R. 1999). None of these
cases is pertinent. Reed concerns neither Title VII nor
administrative exhaustion; it holds simply that dismissal for
failure to comply with discovery orders is a final judgment on the
merits for purposes of res judicata. Id. at 1382-83. Siaca does
concern the dismissal of a civil rights action for failure to
exhaust administrative remedies, but in circumstances quite unlike
the facts of the instant case -- the plaintiff in Siaca sought to
assert claims in federal court that he had not raised in his charge
filed with the EEOC, and there was no suggestion that the plaintiff
still had time to cure the omission. Id. at 194-95. Maldonado-
Cordero involves the dismissal with prejudice of Title VII claims
for various defects in the plaintiffs' efforts to exhaust
administrative remedies, most of which could not have been timely
cured. Id. at 186-90. With respect to the remaining claims, the
plaintiffs in Maldonado-Cordero were still in the process of
exhausting EEOC procedures. Significantly, as to those claims the
court ordered dismissal without prejudice to any litigation after

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its April 26 grant of partial judgment for the MVM defendants "was

based on [plaintiffs'] failure to comply with the EEOC

requirements. The Court decided that issue on its merits;

therefore the dismissal is with prejudice." On this basis, the

court denied plaintiffs' motion.8

On August 19, 2002, the district court entered final

judgment against Aponte-Rodríguez and Lebrón-Ríos on all of their

claims with prejudice. On appeal, they challenge only the district

court's dismissal of their Title VII claims.9 Moreover, plaintiffs

attach to their appellate brief copies of administrative charges of

discrimination that, they say, they filed with the EEOC on August

12, 2002.

II.

We review the district court's dismissal under Rule

12(b)(6) de novo. Torres-Viera, 311 F.3d at 107; Alternative

exhaustion. Id. at 187-88.
8
By the same July 30 opinion and order, the district court
also dismissed plaintiffs' Title VII claims against the federal
defendants "for the same reasons it granted the other co-
defendants' motion" -- failure to exhaust administrative remedies.
Again, the court expressly termed its dismissal "with prejudice."
9
Plaintiffs' August 12, 2002 notice of appeal indicates that
they initially intended to challenge the district court's dismissal
of all of their claims against all defendants, with the exception
of their claims under the Taft-Hartley Act against Local 72. On
January 29, 2003, however, plaintiffs moved to consolidate the
issues and present the prejudice question alone. In any event,
their brief addresses only the prejudice question, and that is the
only issue we address.

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Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33

(1st Cir. 2001).

At the outset, it is plain from our review of the

complaint that apart from the question of administrative

exhaustion, Aponte-Rodríguez and Lebrón-Ríos have stated viable

claims for relief under Title VII, at least against MVM and Luis

Torres. See generally O'Rourke v. City of Providence, 235 F.3d

713, 728-31 (1st Cir. 2001) (discussing liability for hostile work

environment sexual harassment); White v. N.H. Dep't of Corr., 221

F.3d 254, 262 (1st Cir. 2000) (discussing retaliation claims). At

the same time, the district court was correct in holding that

plaintiffs could not proceed under Title VII without first

exhausting administrative remedies. See Bonilla v. Muebles J.J.

Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999) (noting that the

exhaustion of EEOC procedures is a prerequisite to suit under Title

VII).

The exact import of the district court's July 30, 2002

opinion and order is unclear, and there appears to be some

confusion in the applicable law. If the district court meant only

that the dismissal was with prejudice as to the issue of

plaintiffs' failure to exhaust, the district court was correct.

If, however, the district court also meant that the dismissal with

prejudice would bar plaintiffs from bringing a Title VII claim

after the EEOC processed their timely filed charges, then it was

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incorrect. While district courts are normally under no compulsion

to specify the precise issues to which the "with prejudice" label

applies, we think that given the confusion here, it would have been

better had the district court made clear which issues the

plaintiffs would be precluded from relitigating: the dismissal was

with prejudice solely as to the question whether plaintiffs had

failed to exhaust administrative remedies before filing their civil

action under Title VII. Such a clarification would have obviated

the need for this appeal.

Several considerations motivate our conclusion that

dismissal of plaintiffs' Title VII claims should have been without

prejudice to any civil action filed after exhaustion of

administrative remedies. First, we think this result is suggested,

though admittedly not dictated, by the Supreme Court's opinion in

Costello v. United States, 365 U.S. 265 (1961). In Costello, the

Court held that the dismissal of a prior denaturalization

proceeding due to the government's failure to file an affidavit of

good cause constituted a dismissal "for lack of jurisdiction" under

Fed. R. Civ. P. 41(b), and thus did not operate as an adjudication

upon the merits.10 365 U.S. at 284-88. Strictly speaking, of

10
In pertinent part, Rule 41(b) provides:
Unless the court in its order for dismissal otherwise
specifies, a dismissal under this subdivision and any
dismissal not provided for in this rule, other than a
dismissal for lack of jurisdiction, . . . operates as an
adjudication upon the merits.
The district court here did cite Rule 41(b), but it may have been

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course, this provides little help to the plaintiffs here, whose

case arises in a different procedural posture. But in reaching its

decision, the Costello Court discussed with approval the long-

standing common-law principle governing the preclusive effect of

dismissals ordered prior to reaching the merits:

At common law[,] dismissal on a ground not going to the
merits was not ordinarily a bar to a subsequent action on
the same claim. . . . [This] view applied to many
dismissals on the motion of a defendant. In Hughes v.
United States, [71 U.S. (4 Wall) 232, 237 (1866)], it was
said: "In order that a judgment may constitute a bar to
another suit, it must be [. . .] determined on its
merits. If the first suit was dismissed for defect of
pleadings, or parties or a misconception of the form of
proceeding, or the want of jurisdiction, or was disposed
of on any ground which did not go to the merits of the
action, the judgment rendered will prove no bar to
another suit."
We do not discern in Rule 41(b) a purpose to change
this common-law principle with respect to dismissals in
which the merits could not be reached for failure of the
plaintiff to satisfy a [statutory] precondition.

Id. at 286 (internal citations omitted). Like the government in

Costello, Aponte-Rodríguez and Lebrón-Ríos have failed to satisfy

a statutory precondition to suit. See 42 U.S.C. § 2000e-5(e)(1).

Moreover, at the time of the district court's dismissal, no

tribunal, administrative or judicial, had yet considered the merits

of plaintiffs' Title VII claims. Given the preclusion principles

articulated by the Court in Costello, the district court's

dismissal of plaintiffs' claims on exhaustion grounds could not

mistaken in what it regarded as the "merits" of the issue before
it.

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prejudice a subsequent hearing on the merits of properly exhausted

claims.

Of course, as MVM argues, the Supreme Court later held in

Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), that the

administrative exhaustion requirement of Title VII is not strictly

jurisdictional, but rather is more in the nature of a statute of

limitations. Id. at 393; see also McKinnon v. Kwong Wah Rest., 83

F.3d 498, 505 (1st Cir. 1996). And dismissals for failure to

comply with a statute of limitations, MVM points out, are

ordinarily with prejudice. See Kale v. Combined Ins. Co., 924

F.2d 1161, 1164 (1st Cir. 1991) (describing this proposition as

"beyond peradventure"); Rose v. Town of Harwich, 778 F.2d 77, 80

(1st Cir. 1985) (Breyer, J.) (collecting cases). All of this is

true, but it is also beside the point. Plaintiffs in the instant

case have not failed to act within the prescribed period. On the

contrary, they appear to have filed charges with the EEOC that may

be timely. That is a question for the EEOC.

Second, this court has repeatedly preferred dismissal

without prejudice in analogous circumstances. In Weber v. Cranston

School Committee, 212 F.3d 41 (1st Cir. 2000), for example, the

district court dismissed a civil rights claim because the plaintiff

failed to exhaust administrative remedies under the Individuals

with Disabilities in Education Act ("IDEA"). Like Aponte-Rodríguez

and Lebrón-Ríos, the plaintiff in Weber was not yet barred from

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seeking administrative relief at the time her claim was dismissed.

This court upheld the dismissal of her claim, but added that "we

affirm without prejudice as to any future action Weber might bring

after satisfying the exhaustion requirement." Id. at 54; see also

Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth.,

207 F.3d 21, 31-35 (1st Cir. 2000) (vacating a dismissal with

prejudice and remanding for dismissal "without prejudice to

refiling after exhaustion" of tribal remedies); Attallah v. United

States, 955 F.2d 776, 778 & n.1 (1st Cir. 1992) (explaining that

plaintiffs were permitted to refile a Federal Tort Claims Act suit

after the district court dismissed without prejudice to allow

completion of administrative review); Ezratty v. Commonwealth of

P.R., 648 F.2d 770, 774-778 (1st Cir. 1981) (Breyer, J.) (affirming

the dismissal of a claim under the Education for All Handicapped

Children Act of 1975 for failure to exhaust administrative remedies

and reiterating that dismissal was without prejudice to refiling

after exhaustion).

MVM emphasizes our oft-quoted statement in Bonilla, 194

F.3d at 278, that failure to exhaust administrative remedies "bars

the courthouse door, as courts long have recognized that Title

VII's charge-filing requirement is a prerequisite to the

commencement of suit." But we explicitly noted in Bonilla that the

plaintiff had failed to file a charge with the EEOC "within the

prescribed time limits." Id. The period for filing a charge had

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lapsed. In this case, by contrast, plaintiffs assert that they

still had an opportunity to file timely administrative charges at

the time the district court dismissed their claims. Consistent

with our opinion in Bonilla, therefore, the courthouse door should

have been left unbarred to future, exhausted claims.11

Finally, dismissal without prejudice to a future action

on exhausted claims both makes practical sense and comports with

the remedial purposes of Title VII. If the EEOC, as the agency

charged with administering enforcement of Title VII, would permit

plaintiffs' claims to proceed, little purpose is served by denying

them the opportunity to have a federal court consider the merits of

their asserted right to relief after the EEOC has processed their

charges.12 This policy is particularly important in construing the

filing requirements under Title VII, "a statutory scheme in which

laymen, [often] unassisted by trained lawyers, initiate the

11
A case relied upon by the district court, Triple-S, Inc. v.
Pellot, 41 F.Supp.2d 122 (D.P.R. 1999), is similarly inapposite.
The question in Triple-S was not whether prejudice should attach to
a dismissal for failure to exhaust, but rather the propriety of a
relitigation injunction based on the dismissal of pendent state-law
claims in an earlier Title VII action. Id. at 124. In that
earlier litigation, this court did affirm the dismissal with
prejudice of a Title VII action for failure to exhaust, but only
because the plaintiff had not filed an administrative charge at any
time during the prescribed period and equitable tolling did not
apply. See id. at 124-25.
12
MVM objects that the defendants will suffer "substantial[]
prejudice" if plaintiffs are now permitted to pursue administrative
remedies. It is difficult to comprehend what, if any, unfair
prejudice defendants would suffer from the filing of a timely
administrative charge.

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process." Love v. Pullman Co., 404 U.S. 522, 527 (1972); see also

Isaac v. Harvard Univ., 769 F.2d 817, 822, 826 (1st Cir. 1985)

(endorsing this approach). Surely Congress, in requiring that

claims be filed first with the EEOC, did not intend to foreclose

all relief for those who mistakenly challenge illegal employment

discrimination too early rather than too late.13

In this case, the district court simply did not address

the merits of plaintiffs' substantive claims. It reached only the

question whether exhaustion is required. As to the exhaustion

question, the district court was quite correct to state that "[t]he

Court decided [the] issue on its merits; therefore the dismissal is

with prejudice." Indeed, this may have been all that the district

court intended. Because the district court's order can be

understood to dismiss plaintiffs' substantive Title VII claims with

prejudice as well, however, we vacate the order and remand for

clarification.

We also note that the federal defendants did not make the

same Title VII exhaustion argument as the MVM defendants, but

instead contended that they are protected by a forty-five-day

limitations period under 29 C.F.R. § 1614.105(a)(2) (2003) that the

13
Cf. Snider v. Melindez, 199 F.3d 108, 112 (2d Cir. 1999)("We
do not think that the [Prison Litigation Reform Act] was meant to
impose a strike upon a prisoner who suffers a dismissal because of
the prematurity of his suit but then exhausts his administrative
remedies and successfully reinstitutes it.").

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plaintiffs failed to satisfy.14 The district court did not address

this argument. On remand, the court should consider the federal

defendants' motion to dismiss anew, focusing on the arguments it

has not yet addressed.

III.

The district court's order dismissing plaintiffs' Title

VII claims with prejudice is vacated and the case is remanded for

entry of an order of dismissal consistent with this opinion as to

the MVM defendants, and for reconsideration of the federal

defendants' motion to dismiss.

14
The federal defendants also made independent arguments,
including that they are not plaintiffs' "employers" within the
meaning of Title VII, that the U.S. Marshal Service is not a proper
party, and that other asserted causes of action failed to state a
claim. The district court touched on a few of these arguments in
its July 30, 2002 opinion, failed to address others, and then
dismissed the entire action with prejudice. Notwithstanding the
problems with this approach, all claims except the Title VII claims
are now gone from the case because plaintiffs abandoned those
issues by declining to argue them on appeal.

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