Windross v. Barton Protective Services, Inc.

United States Court of Appeals
For the First Circuit

No. 08-2254

MARKDALE WINDROSS,

Plaintiff - Appellant,

v.

BARTON PROTECTIVE SERVICES, INC.,

Defendant - Appellee,

JEREMY CAMPBELL; MARK ETHRIDGE,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U. S. District Judge]

Before

Boudin, John R. Gibson,* and Howard,
Circuit Judges.

Brailey E. Newton for appellant.
David C. Hamilton for appellee.

November 17, 2009

*
Of the Eighth Circuit, sitting by designation.
 JOHN R. GIBSON, Circuit Judge. This employment case, brought

under state law and removed to federal court, involves charges of

discrimination, retaliatory harassment, and hostile work

environment pursuant to Massachusetts General Laws chapter 151B.

The district court entered summary judgment for the defendant,

Barton Protective Services, Inc. (“Barton Services”), and the

claims against the individual defendants were terminated for

failure to serve them with process. We affirm.

I. Background

Markdale Windross was a security officer employed by defendant

Barton Services from September 2002 through July 9, 2003, when

Barton Services terminated his employment.

On July 7, 2003, Windross was to undergo oral surgery, and he

switched work shifts with another security officer to do so

without first obtaining permission. Barton Services’s handbook

requires that employees submit in writing a request to switch

shifts and obtain permission from a supervisor. Windross

acknowledges that the handbook governs the workplace. The next

day, Mark Ethridge, the Barton Services on-site account manager,

issued a written disciplinary action against Windross for switching

his shift because it was a violation of Barton Services’s written

policies. On that same day, Windross asked Jeremy Campbell, a

supervisor at Barton Services, for a copy of his personnel file.

-2-
Campbell informed Windross that he would need to obtain it from the

Barton Services Human Resources Department. Within the same

conversation, Campbell swore at Windross and approached him in a

physically threatening manner.

On July 9, 2003, Windross went to speak with the acting

operations manager, Christa Indorato, but was referred to Louise

Ordman, the Human Resources Manager. Windross alleges that Ordman

conducted a number of discourtesies during his visit, so he refused

to speak with her. Ordman then told Windross to leave her office.

Windross asked for the telephone number of the vice president,

Kevin Johnson, but Ordman told Windross that Johnson was away.

When Windross arrived at work later that same day, Ethridge told

him that he was required to meet with Ordman. Again, Windross

refused. After Windross’s second refusal to meet with Ordman, he

was immediately suspended. Ordman telephoned Windross the next day

and again demanded that he meet with her. When he refused because

of her hostile attitude, she told him she was terminating his

employment. On July 21, Ordman sent Windross a letter formalizing

his dismissal.

On April 29, 2004, Windross filed a Charge of Discrimination

with the Massachusetts Commission Against Discrimination. In his

Charge, Windross alleged that he had been discriminated against by

Barton Services. Windross also alleged that Ethridge and Campbell

had retaliated against him. On April 18, 2006, Windross filed a

-3-
motion to amend the Charge to add a claim for hostile work

environment. On June 1, 2006, Windross filed a request with the

Massachusetts Commission Against Discrimination to withdraw his

Charge in order to file a lawsuit in state court.

Windross filed his Complaint in the present lawsuit in Suffolk

County Superior Court on July 3, 2006. Barton Services removed the

case the following April, and Windross moved to have it remanded.

On July 10, 2007, the district court denied the motion to remand.

Ten days later, Windross moved to amend his complaint to add a

claim for hostile work environment, which the district court

denied. The district court also terminated Ethridge and Campbell

as defendants in this action after learning that Windross had

failed to serve either of them with process. On June 18, 2008,

approximately ten months after the district court denied his motion

to amend, Windross filed a motion for reconsideration of his

original motion to amend. On August 20, 2008, the district court

denied the motion for reconsideration. In spite of these rulings,

Windross filed his Amended Complaint on November 7, 2008. The

Amended Complaint added one count for hostile work environment,

which was the addition he sought in his motion to amend and motion

for reconsideration. Windross also inserted a handwritten sentence

that more directly stated a retaliation claim against Barton

Services. That sentence had not been included in his motion to

amend or for reconsideration.

-4-
 On appeal, Windross argues that the district court erred in

granting summary judgment to Barton Services. First, Windross

relies on the continuing violation doctrine in an attempt to revive

his time-barred claims. Second, he argues that Barton Services’s

reliance on shift-switching as the basis for discipline,

suspension, and termination was pretextual and thus summary

judgment should not have been granted. In addition, Windross

asserts that the district court erred in denying his motion to

amend and motion for reconsideration.1

II. Analysis

A. Timeliness

We first address Windross’s argument that the continuing

violation doctrine can overcome the bar of the statute of

limitations. Windross brought his claims under Massachusetts law,

which requires a claimant to file a Charge of Discrimination with

the Massachusetts Commission Against Discrimination within 300 days

of the alleged discriminatory act.2 Mass. Gen. Laws ch. 151B, § 5

1
Windross includes in his brief the district court’s decision
not to address his belated claim that Barton Services committed
unlawful retaliation pursuant to Massachusetts General Laws chapter
151B. Because the claim of retaliation by Barton Services was not
properly raised in district court, we need not address this claim.
2
In 2002, the Massachusetts Legislature amended Massachusetts
General Laws chapter 151B, section 5, extending the limitations
period from six months to 300 days. 2002 Mass. Legis. Serv. ch.
223, § 1 (S.B. 915) (West).

-5-
(2002). Also, any lawsuit must be commenced within three years

after such act. Mass. Gen. Laws ch. 151B, § 9 (2002). “By the

plain language of the statute, the limitations period begins to run

at the time of the ‘act of discrimination.’” Ocean Spray

Cranberries, Inc. v. Massachusetts Comm’n Against Discrimination,

808 N.E.2d 257, 265 (Mass. 2004).

In this case, neither party disputes that the applicable

limitations period pursuant to Massachusetts law is 300 days.

Windross filed his Charge of Discrimination with the Massachusetts

Commission Against Discrimination on April 29, 2004. Windross

filed his complaint in Suffolk County Superior Court on July 3,

2006. The statute of limitations bars Windross from filing a

Charge arising out of events that occurred before July 4, 2003, and

from bringing a civil action based on events that occurred before

July 3, 2003. Accordingly, the only timely claims are Windross’s

allegations that he was discriminated against on July 8, 2003, when

he was disciplined for switching shifts and that Barton Services

discriminated against him when he was suspended from employment on

July 9, 2003 and subsequently terminated.

As the district court noted, two instances of alleged

discrimination are barred by the statute of limitations. Both

occurred on June 20, 2003, when a white employee received an acting

supervisory position over Windross, who had more seniority,

experience, and training, and when Windross received a negative

-6-
employment evaluation that included a comment that he “seems to

want to ‘champion’ the cause of perceived inequalities . . . and

does not demonstrate trust in the supervisor . . . to handle issues

appropriately.”

Windross, however, invokes the continuing violation doctrine

in an effort to save from dismissal his claims of the earlier acts

of discrimination. For the continuing violation doctrine to apply,

a plaintiff must prove that (1) at least one discriminatory act

occurred within the limitations period, (2) the alleged timely

discriminatory act has a substantial relationship to the alleged

untimely discriminatory act, and (3) the otherwise time-barred

events did not trigger his “awareness and duty” to assert his

rights. Ocean Spray, 808 N.E.2d at 266-67. A plaintiff’s

awareness and duty is triggered when he “knew or could have formed

a reasonable belief that the earlier violations were

discriminatory.” Id. at 267, n.16.

Windross’s attempt to invoke the continuing violation doctrine

to rescue some of the claims from dismissal misses the mark because

Windross reasonably believed that earlier violations were

discriminatory. Here, Windross stated in his deposition testimony

that he understood that he was being discriminated and/or

retaliated against at the time each of the alleged time-barred acts

occurred. Accordingly, the district court did not err in holding

that the continuing violation doctrine is not available to Windross

-7-
to overcome his time-barred claims. See Williams v. Raytheon Co.,

220 F.3d 16, 21 (1st Cir. 2000) (holding that continuing violation

doctrine “does not apply because [plaintiff] considered the act of

which he complains discriminatory at the time”).

B. Discrimination Claim

We next address Windross’s claim that the district court

erred in granting summary judgment because he presented no evidence

of pretext. We review grants of summary judgment de novo. In

conducting that review, the court is bound to scrutinize the

evidence in a light most agreeable to the nonmoving party, giving

that party the benefit of any and all reasonable inferences. Cox

v. Hainey, 391 F.3d 25, 27 (1st Cir. 2004). Employment

discrimination claims brought under Massachusetts General Laws

chapter 151B are reviewed according to the burden-shifting

framework similar to that articulated by the United States Supreme

Court for Title VII cases in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973). Blare v. Huskey Injection Molding Sys.

Boston, Inc., 646 N.E.2d 111, 114 (Mass. 1995). The plaintiff

first has the burden of showing, by a preponderance of the

evidence, a prima facie case of discrimination. Id. at 115. The

plaintiff establishes a prima facie case of race discrimination in

connection with his suspension and termination by showing (1) he is

a member of a protected class; (2) he performed his job at an

-8-
acceptable level; (3) he was terminated; and (4) that the employer

filled his position with another individual with qualifications

similar to his own. Id. In response to the plaintiff’s prima

facie case for discrimination, the employer can rebut the

presumption by articulating a legitimate, nondiscriminatory reason

for its employment decision. Wheelock College v. Massachusetts

Comm’n Against Discrimination, 355 N.E.2d 309, 313 (Mass. 1976).

Once the defendant articulates a nondiscriminatory reason for

the employment decision, the plaintiff must show by a preponderance

of the evidence that the defendant’s reasons are pretextual or that

the defendant’s real motivation was discriminatory. Blare, 646

N.E.2d at 117. In order to show pretext, the plaintiff must be

able to demonstrate that similarly-situated employees outside of

his protected class were treated differently. Matthews v. Ocean

Spray Cranberries, Inc., 686 N.E.2d 1303, 1309 (Mass. 1997).

Summary judgment for the defendant is thus inappropriate if a

plaintiff has offered evidence sufficient to support a

determination that the employer’s reason was pretextual.

The central question in determining this discrimination claim

is whether Barton Services’s stated reason for Windross being

disciplined and later suspended and terminated following his

unilateral shift switch is pretextual. The company’s asserted

reason is that Windross refused to meet with Ordman. In other

words, we must determine if the employer’s statements concerning

-9-
Windross’s insubordination masked discrimination. The district

court found that Windross’s disciplining for switching shifts was

not pretextual. It is undisputed that switching shifts with

another security officer without first getting permission from a

supervisor is a violation of Barton Services’s policies. Although

there is evidence to show that shift switching had occurred within

the organization, there is no evidence that other security officers

who failed to obtain permission before switching shifts were not

disciplined. Accordingly, the disciplining of Windross was not a

pretext for discrimination. See Matthews, 686 N.E.2d at 1309.

Likewise, Windross’s suspension and termination for refusing

to meet with Ordman’s orders were not pretextual. Barton

Services’s written company policy states that “[w]illful

misconduct, including insubordination” provides grounds for

“immediate termination.” It was not up to Windross to decide if

and when to meet with Ordman, and Windross does not deny that he

twice refused Ordman’s orders to speak with her. When Windross

refused to meet with Ordman for a second time, the company was

justified in terminating Windross. See Tate v. Dep’t of Mental

Health, 645 N.E.2d 1159, 1164 (Mass. 1995) (summary judgment

justified when deaf social worker failed to establish pretext under

Title VII and Massachusetts General Laws chapter 151B when fired

for insubordination); see also Williams, 220 F.3d at 19 (summary

judgment justified when male employee failed to establish case

-10-
under Title VII when he was fired for insubordination); Holloway v.

Thompson Island Outward Bound Educ. Center Inc., 492 F. Supp. 2d

20, 24-25 (D. Mass. 2007) (insubordination is a legitimate ground

for termination of an employee under Title VII). Moreover, while

the record gives examples of Windross’s noting the misconduct of

other employees, there is no evidence that other security officers

who twice failed to follow the similar directives of their managers

would not be disciplined as a result. See Matthews, 686 N.E.2d at

1309. The district court did not err in its concluding that there

was no evidence of pretext in Windross’s disciplining, suspension,

or termination. Thus, summary judgment in favor of Barton Services

is appropriate.

C. Leave to Amend

Windross also contends that the district court erred when it

denied his motion to add a count for hostile work environment. We

review the district court’s decision to deny a motion to amend

under Federal Rule of Civil Procedure 15 for abuse of discretion,

and we will defer to the district court if any adequate reason for

the denial is apparent from the record. Grant v. News Group

Boston, Inc., 55 F.3d 1, 5 (1st Cir. 1995). As outlined above, a

complainant is required to file his lawsuit within three years of

the alleged discriminatory act or acts giving rise to the claim.

Mass. Gen. Laws ch. 151B, § 9.

-11-
 In this case, adequate reason for denial of Windross’s motion

to amend and motion for reconsideration is apparent. Windross did

not move to amend his complaint until July 20, 2007. While we

recognize that Windross’s case was removed to federal court in

April 2007, the hostile work environment claim was, nonetheless,

raised almost exactly four years after his employment with Barton

was terminated. As a result, Windross’s hostile work environment

claim was time-barred and the district court thus acted within its

discretion in denying his motion to amend and motion for

reconsideration. See Mass. Gen. Laws ch. 151B, § 9. The district

court did not err in denying Windross’s motion to amend and motion

for reconsideration.

III. Conclusion

For the foregoing reasons, we affirm the district court’s

grant of summary judgment.

-12-