Miller v. New Hampshire Department of Corrections

United States Court of Appeals
For the First Circuit

No. 01-2658

ROBERT MILLER,

Plaintiff, Appellant,

v.

NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Boudin, Chief Judge,
Lynch and Lipez, Circuit Judges.

Michael J. Sheehan for appellant.
Nancy J. Smith, Senior Assistant Attorney General, with whom
Philip T. McLaughlin, Attorney General, was on brief, for appellee.

July 16, 2002
 LIPEZ, Circuit Judge. Robert Miller filed suit against

the New Hampshire Department of Corrections ("DOC"), claiming that

his superiors at the New Hampshire State Prison retaliated against

him for engaging in protected conduct, in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

Specifically, Miller maintained that he was disciplined, denied

positions for which he was qualified, and constructively discharged

after he supported one of his subordinates in her sexual harassment

claim. The DOC moved for summary judgment on the grounds that many

of the events Miller complained of fell outside Title VII's 300-day
statute of limitations; that the events within the limitations

period were insufficient to support Miller's claim of constructive
discharge; and that Miller failed to show that the DOC was
motivated by discriminatory animus when it refused to promote him

or transfer him to a new position.
The district court granted the motion and entered
judgment for the DOC. The court reasoned, first, that Miller could

not recover for alleged retaliation that occurred outside the
statute of limitations. It then concluded that the more recent
events were either not discriminatory, or too trivial to amount to

a constructive discharge. See Miller v. N.H. Dep't of Corrections,

Civ. No. 99-522-M, slip op. at 34-63 (D.N.H. Nov. 13, 2001)
(unpublished).

We believe the district court analyzed the issues
correctly. As we have explained elsewhere, "when a trial court

accurately takes the measure of a case and articulates its

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rationale clearly and convincingly, an appellate court should

refrain from writing at length to no other end than to hear its own

words resonate." Cruz-Ramos v. P.R. Sun Oil Co., 202 F.3d 381, 383
(1st Cir. 2000) (internal quotation marks omitted). We apply that

tenet here, and affirm largely on the basis of the district court's

thorough and well-reasoned opinion. In light of the recent
decision of the Supreme Court in National Railroad Passenger Corp.

v. Morgan, 122 S. Ct. 2061 (2002), however, we add the following

comments on the statute of limitations issue.

I.

The district court described the underlying facts in

detail. See Miller, slip op. at 4-32. We offer an abbreviated
account here. In 1995, Miller served as the unit manager of the
Hancock Unit at the New Hampshire State Prison. Among his

subordinates were Officers Sherri White and Tab Colby. In the fall
of 1995, Miller heard from a third party that Colby had told other
officers that White had engaged in oral sex with one of the

inmates. Miller passed that information along to White, who (with
Miller's assistance) filed an internal complaint of sexual
harassment on November 3, 1995.

On November 15, 1995, the DOC's Administrator of Security
issued a report sharply criticizing Miller's management of the
Hancock Unit and urging that he be transferred elsewhere. A second

report -- which summarized the DOC investigation of White's
complaint -- also faulted Miller for his "lack of leadership in

directing his employees in maintaining professionalism in

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respecting their fellow co-workers." The latter report recommended

that Miller be disciplined.

As a result of the two reports, Miller was transferred to
the Reception and Diagnostic Unit in December of 1995. Moreover,

Miller's annual evaluation, issued in March of 1996, concluded that

his performance the previous year had fallen "below expectations."
Shortly thereafter, Miller received an official letter of warning.

The letter stated that "[y]our poor judgment in dealing with your

subordinate staff impacted the effective operations of the

[Hancock] Unit and created dissention [sic], shift bashing and

jealousy amongst staff; resulting in sexual rumors," and admonished

Miller to take "immediate corrective action."

Concerned by what he viewed as unfair criticism, Miller
appealed the 1996 letter of warning. In a March, 1996, memorandum

to the Commissioner of the DOC, Miller argued: "I am being used as

a scapegoat and retaliated against because I reported [Colby's]
misconduct, mishandling of the investigation [into White's charges]

and continued pollution of the environment." Miller reiterated

that sentiment in a second memorandum, stating: "I feel abused and

retaliated against. . . . I am again asking for a thorough

investigation of the environment and retaliation."

Unpersuaded, the commissioner denied the appeal in August

of 1996. Some time later, Miller learned that White had lied to

him about certain matters related to her complaint. Accordingly,

he chose not to pursue the next step in the appeals process --

taking the matter to the Personnel Appeals Board.

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 According to Miller's deposition testimony, he "was

treated very well" from August of 1996 until some time in late

1998. Miller claims that three things happened in 1998 and 1999
that triggered a new round of retaliation. First, he renewed his

efforts to get the 1996 letter of warning removed from his file.

Second, he learned for the first time that Colby had lied during
the DOC's investigation into White's harassment charges. Miller

was furious that he had not been informed of Colby's deceit, and

made his views known to his superiors at the prison. Finally,

Miller testified in White's Title VII trial in January of 1999.

Miller points to several instances of alleged retaliation

in 1998 and 1999. For our purposes, it is sufficient to focus on

one. In early 1999, Miller applied for a probation and parole
officer ("PPO") position. Of the 13 candidates interviewed, Miller

had the third-highest score on the oral interview and the highest

overall score (the combination of the oral score and a "factor"
score based on seniority and past performance). The position was

offered to the applicant with the highest score on the interview,

but the eleventh-highest overall score. Miller believes he was

denied the job because of his protected conduct in disclosing the

alleged sexual harassment of White.

II.

Miller filed a charge of discrimination with the Equal

Employment Opportunity Commission ("EEOC") in March of 1999,
claiming that he had been subjected to unlawful retaliation

beginning in December of 1995. In due course, he filed suit in

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district court, again complaining of retaliation beginning with the

1995 transfer to the Reception and Diagnostic Unit. The DOC moved

for summary judgment on the ground that, inter alia, Miller's

claims with respect to retaliation in 1995 and 1996 were time-

barred.

Under Title VII, 42 U.S.C. § 2000e-5(e), Miller was
obligated to file a charge with the EEOC within 300 days "after the

alleged unlawful employment practice occurred."1 Miller filed his

charge on March 22, 1999. Thus, he can recover for events

occurring during the previous 300 days; that is, on or after May

22, 1998.

Miller argues, however, that the "continuing violation

doctrine" allows him to reach back to events in 1995 and 1996 (the
transfer to the Reception and Diagnostic Unit, the negative

evaluation, and the letter of warning) because those events were

related to the allegedly retaliatory acts that occurred within the
limitations period. The district court rejected that claim on the

ground that Miller believed he was being discriminated against at

the time that the early (now time barred) events occurred. Thus,

applying our pre-Morgan precedents, the court concluded that Miller

1
Section 2000e-5 sets out a general limitations period of 180
days. That period is extended to 300 days in deferral
jurisdictions such as New Hampshire if the plaintiff "'has
initially instituted proceedings with [an authorized] State or
local agency.'" Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d
275, 278 (1st Cir. 1999) (quoting 42 U.S.C. § 2000e-5(e))
(alteration in original). Miller filed a charge with the New
Hampshire Human Rights Commission on March 19, 1999. The charge
was received by the EEOC for federal filing purposes on March 22,
1999.

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was not entitled to the benefits of the continuing violation

doctrine.

The Supreme Court's recent decision in Morgan clarified
when a Title VII plaintiff may present claims based on actions that

occurred outside the 300-day limitations period. Morgan held that

a plaintiff seeking to recover for a discrete act of discrimination
-- as opposed to a pattern of harassing conduct that, taken as a

whole, constitutes a hostile work environment -- must file a charge

with the EEOC within 300 days "of the date of the act or lose the

ability to recover for it." 122 S. Ct. at 2071-72. The Court

stated explicitly that "discrete discriminatory acts are not

actionable if time barred, even when they are related to acts

alleged in timely filed charges." Id. at 2072. It cited acts such
as termination, failure to promote, denial of transfer, or refusal

to hire as examples of discrete acts that are easy to identify and

thus should be acted on promptly. Id. at 2073. Under Morgan, it
is clear that the 1995 transfer is a discrete act and is time

barred.
The same is true for the 1996 letter of warning and

performance evaluation. Relying on our decision in Thomas v.

Eastman Kodak Co., 183 F.3d 38 (1st Cir. 1999), Miller argues that

the statute of limitations did not begin to run on those events

until 1999, when he was denied the PPO position. It was only then,

he insists, that the "tangible effects" of the earlier letter of

warning and evaluation became apparent to him. Id. at 50.

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 Thomas was concerned with identifying the date on which

a Title VII claim accrues -- an issue left open in Morgan, 122 S.

Ct. at 2073 n.7. However, focusing on the question of accrual does
not help Miller here. As the district court pointed out, Miller

himself described the 1996 letter of warning as "formal discipline"

that represented a tangible injury. Consistent with that
understanding, Miller promptly appealed the letter of warning

through the DOC's internal review procedures. In a memorandum to

the commissioner of the DOC, he wrote, "I feel abused and

retaliated against," and demanded that the letter of warning be

removed from his file and that a new evaluation be issued "that is

consistent with my performance." That recognition eliminates any

argument that the warning and evaluation did not "have any
crystallized implications or apparent tangible effects" at the time

they were issued. Thomas, 183 F.3d at 55. We conclude that

Miller's claims regarding the letter of warning and performance
evaluation accrued in 1996 and, as such, are now barred by the

statute of limitations.

Affirmed.

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