United States Court of Appeals
For the First Circuit
No. 00-1329
LAUREN K. DAVIS,
Plaintiff, Appellant,
v.
LUCENT TECHNOLOGIES, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lipez, Circuit Judge,
Woodlock* and O'Toole,* District Judges.
Joshua L. Gordon for appellant.
Brian D. Carlson, with whom Thomas E. Shirley and Choate,
Hall & Stewart were on brief, for appellee.
May 30, 2001
* Of the District of Massachusetts, sitting by designation.
LIPEZ, Circuit Judge. Lauren Davis appeals from a
judgment of the district court dismissing her claims for sexual
harassment and wrongful termination from her position at Lucent
Technologies. The court determined that her discrimination
claim was barred by the three-year statute of limitations under
Massachusetts General Laws chapter 151B and that the termination
claim was not timely filed with the Massachusetts Commission
Against Discrimination ("MCAD").
This case is procedurally odd because of the
interaction between the exhaustion requirement for filing a
charge of discrimination with the MCAD and the statute of
limitations applicable to the filing of a charge of
discrimination in the Massachusetts state court. As noted,
Davis presented two claims, wrongful termination and sexual
harassment, to the district court. However, the sexual
harassment claim that was timely filed with the MCAD was not
timely filed in state court, and the wrongful termination claim
that was timely filed in state court was not timely filed with
the MCAD. For the reasons that follow, these mistakes were
fatal to Davis's claims. We affirm the decision of the district
court.
I.
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We recite the facts in the light most favorable to
Davis. See Griel v. Franklin Med. Ctr., 234 F.3d 731, 732 (1st
Cir. 2000). Davis was employed as a tester for Lucent
Technologies ("Lucent") from 1980 to 1996. This position
required her to evaluate the quality of newly manufactured
technological equipment. She worked closely with engineers in
her department and shared testing equipment with other workers.
The parties agree that few women were employed as testers at
Lucent.
Davis alleges that she was subject to a hostile work
environment because of her sex beginning in 1992. She
identifies a series of altercations with male co-workers to
support this claim. In August 1993, she attempted to ask an
engineer, Fred Abayazzi, a question about one of the products
she was testing. He refused to answer, telling her he did not
have time to discuss her question. When Davis persisted,
Abayazzi grabbed her arm and pushed it behind her, in an
apparent effort to read the name on the identification tag she
wore on the front of her shirt. At least one witness
interviewed during Lucent's investigation of this incident
corroborated Davis's charge that Abayazzi yelled at her and
pulled her arm. Although Abayazzi was reprimanded for this
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incident, Lucent also concluded in its written report that Davis
was partially at fault.
Davis also described a series of incidents involving
William Gaudet and Rafael Rodriguez. In her appeal from the
finding of a lack of probable cause by the MCAD, she stated that
the men engaged in "intimidating quacking noises and constant
laughing and snickering" directed at her. Additionally, Davis
claims they were responsible for leaving a joke book at her work
station opened to a page containing a "sexist reference" to a
quacking joke. Finally, Davis says the two men prevented her
from punching in at the time clock in July 1994, as was required
by company policy. Rodriguez, who was not a member of Davis's
work group, was eventually banned by Lucent from entering her
testing area.
Ken Dors transferred into Davis's department in
September 1995. Davis claims that Dors refused to share
equipment or parts with her and "would constantly respond in an
abusive and derogatory manner" when she requested that he
cooperate with her. Davis says that Dors also laughed at her
when she asked for his assistance. Finally, Davis and Dors
collided in one of the narrow aisles of the testing work area,
in what Davis characterizes as an intentional attempt to
intimidate her. In its position statement submitted to the
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Equal Employment Opportunity Commission ("EEOC"), Lucent
described this incident as a situation where the two employees
simply reached the same location at the same moment, and neither
of them yielded to the other.
Davis began a medical leave on April 19, 1996, citing
the continued harassment she experienced as the reason for her
"uncontrollable shaking and crying" at work. She began
treatment with a psychologist, Dr. Ellen Becker. Three months
later, Lucent ordered Davis to attend an independent medical
examination conducted by Dr. Charles R. Morin, a psychiatrist.
He concluded that Davis was not disabled due to mental illness,
but noted her perception that her coworkers had made her work
environment unsafe. On July 17, 1996, Davis filed a charge
of sexual discrimination with the EEOC and the MCAD,1 alleging
1 The EEOC regulations designate the MCAD as a fair
employment practice (FEP) agency. See 29 C.F.R. § 1601.74(a).
EEOC policy is to defer to FEP agencies for a limited period of
time to allow those agencies to resolve problems at a local
level. See, e.g., Isaac v. Harvard Univ., 769 F.2d 817, 822
(1st Cir. 1985). A charge filed with the MCAD automatically
becomes filed with the EEOC 60 days after its filing, or earlier
if the MCAD terminates its investigation. See 29 C.F.R. §
1601.13(a)(4). A charge filed with the EEOC in a jurisdiction
having a designated FEP agency, as Massachusetts does, is
automatically referred to that state agency. See id.
Therefore, claims filed with either the MCAD or the EEOC are
effectively filed with both agencies. We have characterized the
interaction between the EEOC and the MCAD as a "worksharing
agreement." Isaac, 769 F.2d at 824. "These agreements divide
up responsibilities for the processing of charges of
discrimination between the state agency and the EEOC to avoid
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that the actions of her coworkers created a hostile work
environment. After her medical leave expired and Davis refused
to return to work, Lucent terminated Davis from her position on
August 7, 1996. Over one year later, in November 1997, Davis
tried to amend her administrative charge to include a claim for
wrongful termination, but the EEOC rejected that amendment as
untimely. The EEOC issued a finding of no probable cause in
March, 1998, and the MCAD, relying partly on that determination,
issued a notice of final disposition denying Davis's charge in
February, 1999. Davis appealed the MCAD's determination to an
investigative commissioner at that agency, but her appeal was
rejected in May, 1999. On July 16, 1999, Davis filed a
complaint in Essex Superior Court, claiming both sexual
harassment and wrongful termination. Lucent removed the case to
federal district court and filed a motion to dismiss both claims
as being untimely. Although Davis had been represented by
counsel when she appealed the MCAD's finding of no probable
cause, she was acting pro se both when she filed her complaint
in state court and when she opposed Lucent's motion to dismiss
duplication of effort." Id. The EEOC affords the findings of
the MCAD "substantial weight," 29 C.F.R. § 1601.21(e), and the
MCAD "may accord [EEOC] findings substantial weight," 804 C.M.R.
§ 1.15.
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before the federal district court. She is again represented by
counsel in her appeal here.
In granting Lucent's motion, the district court ruled
that Davis's sexual harassment claim was barred by the three-
year statute of limitations for claims of employment
discrimination filed under Massachusetts General Laws chapter
151B. The district court also found that her claim for wrongful
termination was barred because she failed to file a charge of
discrimination with the MCAD within six months of her
termination, an exhaustion requirement imposed by chapter 151B.
II.
The ruling of the district court dismissing Davis's
claims was styled as a ruling on a motion to dismiss brought
pursuant to Federal Rule of Civil Procedure 12(b). However,
both parties agreed at oral argument before us that the district
court considered evidence outside the pleadings in making that
ruling, and that we could appropriately treat the court's
determination as a summary judgment ruling. We do so. See
Rubert-Torres v. Hospital San Pablo, Inc., 205 F.3d 472, 476
(1st Cir. 2000). Accordingly, our review is de novo, and we
view the facts in favor of Davis, the nonmovant below. See
Griel, 234 F.3d at 732.
A. Wrongful Termination
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We first address Lucent's contention that the wrongful
termination claim is time-barred because Davis failed to file a
complaint with the MCAD within six months of when she was fired.
Section five of the Massachusetts anti-discrimination statute,
chapter 151B, requires plaintiffs to file an administrative
complaint within six months of the incident giving rise to the
claim. See Mass. Gen. Laws ch. 151B, § 5; see also Andrews v.
Arkwright Mut. Ins. Co., 673 N.E.2d 40, 41 (Mass. 1996); Carter
v. Commissioner of Correction, 681 N.E.2d 1255, 1259 (Mass. App.
Ct. 1997). "The purpose of mandatory submission to the MCAD
process is to provide notice to the prospective defendant and to
encourage conciliation and settlement of disputes." Fant v. New
England Power Serv. Co., 239 F.3d 8, 11 (1st Cir. 2001). This
purpose would be thwarted if plaintiffs "were permitted to
allege one thing in the administrative charge and later allege
something entirely different in a subsequent civil action."
Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996).
Terminated on August 7, 1996, Davis should have filed
an administrative complaint within six months of that day for
her MCAD charge to be timely. However, she did not seek to add
the charge of wrongful termination to her administrative
complaint alleging sexual harassment until November 1997.
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Because more than six months had passed since her August 1996
termination, the EEOC denied her request to amend as untimely.
Lucent argues that Davis's claim for wrongful termination is
thus barred because it was not timely filed with the state
administrative agency.
Davis advances five arguments in support of her
position that we should consider the wrongful termination claim
as though it were timely filed with the MCAD: (1) the
termination is reasonably related to her claim of sexual
harassment; (2) an investigation of the harassment should have
led the MCAD to discover the termination; (3) her filing of a
grievance pursuant to her employment contract should toll the
six-month filing period; (4) the termination and the alleged
harassment are part of a continuing violation; and (5) the
filing period should be equitably tolled because the EEOC misled
her into not filing a timely complaint about the termination.
Of these five arguments, we agree with Lucent that Davis waived
the first three by not presenting them to the district court.2
The fourth argument, based on the continuing violation doctrine,
is a closer call on whether there was a waiver. Even if we
2 We note that Davis did not file a reply brief in an
attempt to counter Lucent's claim that she failed to present
these arguments to the district court. She did challenge
Lucent's position at oral argument.
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assume, however, that Davis presented that claim below, we
conclude that the continuing violation theory cannot salvage her
wrongful termination claim, for reasons we explain in Part IIB
where we also conclude that the continuing violation doctrine
does not save her sexual harassment claim. Lastly, we find no
merit in her argument for equitable tolling.
1. Waiver
"No precept is more firmly settled in this circuit than
that theories not squarely raised and seasonably propounded
before the trial court cannot rewardingly be advanced on
appeal." Lawton v. State Mut. Life Ins. Co., 101 F.3d 218, 222
(1st Cir. 1996). Thus, where a plaintiff fails to present
arguments to the district court in opposition to a defendant's
motion for summary judgment, we have refused to consider those
arguments for the first time on appeal. See, e.g., Landrau-
Romero v. Banco Popular de Puerto Rico, 212 F.3d 607, 612 (1st
Cir. 2000) (refusing to consider plaintiff's argument that
equitable tolling saved his employment discrimination claim when
that argument was not made to the district court).3
3Davis argues that Lucent waived any objection to the
timeliness of her wrongful termination claim by not objecting to
her references to the termination in her appeal from the MCAD
finding of no probable cause on her sexual harassment claim.
Davis unmistakably waived this dubious argument by not
presenting it to the district court. See Landrau-Romero, 212
F.3d at 612.
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a. Grievance Filed Pursuant to an Employment Contract
Davis contends that the six-month filing period should
be equitably tolled because she filed a grievance regarding her
termination from Lucent pursuant to her employment contract.
However, our close reading of Davis's opposition to Lucent's
motion to dismiss does not reveal any reference to this
argument. Thus, we agree with Lucent that Davis cannot present
this argument for the first time to this Court.
b. Reasonable Relation Doctrine/Scope of the
Investigation Rule
Davis also invokes two doctrines of Massachusetts law
that operate to convert otherwise untimely claims to claims
properly filed for purposes of MCAD exhaustion. The reasonable
relation doctrine considers whether the amendment may be said to
relate back to the original filing. The second theory, the
scope of the investigation rule, reflects the idea "that the
scope of a civil action is not determined by the specific
language of the charge filed with the agency, but rather, may
encompass acts of discrimination which the MCAD investigation
could reasonably be expected to uncover." Conroy v. Boston
Edison Co., 758 F. Supp. 54, 58 (D. Mass. 1991).
These two theories are distinct. See id. The
reasonable relation doctrine operates to prevent an amendment
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from being time-barred if it is sufficiently connected to the
original charge:
A complaint or any part thereof may be
amended . . . to clarify and amplify
allegations made therein. An amendment
alleging additional acts constituting
unlawful discriminatory practices related to
or arising out of the subject matter of the
original complaint may be permitted by leave
of the Commissioner. Amendments shall
relate back to the original filing date.
804 Code Mass. Regs. § 1.03(5)(a) (1986). An amendment arises
out of the same subject matter as a timely-filed charge "where
the protected categories are related" or "where the predicate
facts underlying each claim are the same." Conroy, 758 F. Supp.
at 58.
The scope of the investigation rule, on the other hand,
does not require the filing of an actual amendment to the
administrative charge. "According to the so-called scope of the
investigation rule, the exact wording of the charge of
discrimination need not presage with literary exactitude the
judicial pleadings which may follow." Conroy, 758 F. Supp. at
58 (quotations omitted). Plaintiffs have been allowed to allege
a claim in a complaint "where the factual statement in [the]
written charge should have alerted the agency to an alternative
basis of discrimination, and should have been investigated . .
. regardless of whether it was actually investigated." Id.
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We now consider whether Davis invoked either of these
theories in the papers she submitted to the district court. In
the section of her memorandum of law addressing the viability of
her claim of sexual harassment, Davis states: "The Defendant's
acts . . . were a continuing violation/pattern of abuse, related
in time and nature and sufficiently linked." This statement is
an unmistakable reference to the continuing violation doctrine
which Davis argues prevents her sexual harassment claim from
being time-barred. We decline to read Davis's allegation that
her claims are "related in time and nature" to be an invocation
of the reasonable relationship or scope of the investigation
doctrines as a bar to the dismissal of her separate wrongful
termination claim on exhaustion grounds. Our decision in
Landrau-Romero reflects a similar disinclination:
Although Landrau's opposition to the motion
for summary judgment made passing mention of
"continuous" harassment, he did not
explicitly assert a tolling argument in his
accompanying brief. To the extent that he
discussed a "pattern" of treatment, it was
in the context of harassment and
constructive discharge, not tolling of the
limitations period for his discrimination
charge.
Landrau-Romero, 212 F.3d at 612 n.5.
Davis also gains nothing from the reference in her
opposition to Lucent's motion to dismiss to Rock v. Mass.
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Commission Against Discrimination, 424 N.E.2d 244 (Mass. 1981),
which she claims "stands for the principle that a claim can in
fact be boot strapped to prior incidents of discrimination if
they are so related." However, Rock only analyzes the
continuing violation doctrine, not either of the two arguments
Davis now advances in support of her contention that the
wrongful termination claim is not barred for her failure to
present it to the MCAD. Thus, we find Davis's citation to Rock
insufficient to have invoked either the reasonable relation
doctrine or the scope of the investigation rule before the
district court.
Not surprisingly, the district court did not mention
the reasonable relation doctrine or the scope of the
investigation rule in its written memorandum and order granting
Lucent's motion to dismiss. Given Davis's failure to raise
these arguments below, we find this result unremarkable.
Indeed, the fact that an able district court judge did not
realize that she was making either of these claims only
reinforces our own view that she did not advance the two
arguments until her appeal to this Court.4
4
As we noted earlier, Davis appeared pro se before the
district court. However, that fact does not entitle her to less
stringent application of our waiver doctrine. See, e.g., Ahmed
v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997) ("[P]ro se
status does not insulate a party from complying with procedural
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2. Equitable Tolling
Davis did argue to the district court that the six-
month filing period should not bar her wrongful termination
claim because of the doctrine of equitable tolling.
Specifically, she claims that the EEOC misled her regarding her
ability to amend the complaint she filed with the MCAD alleging
that she had been sexually harassed. Davis is correct in
asserting that the six-month filing period in section five of
chapter 151B is subject to equitable tolling. See Christo v.
Edward G. Boyle Ins. Agency, Inc., 525 N.E.2d 643, 645 (Mass.
1988); cf. Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393 (1982) (holding that the time period for filing complaints
alleging Title VII violations with the EEOC is subject to
equitable tolling). As the Supreme Judicial Court of
Massachusetts has held, this doctrine "is available in
circumstances in which the plaintiff is excusably ignorant about
the six-month statutory filing period . . . or where the
defendant or the MCAD has affirmatively misled the plaintiff."
Andrews, 673 N.E.2d at 41 (citation omitted) (emphasis added).
However, we have said: "Federal courts should not apply
equitable tolling liberally to extend time limitations in
discrimination cases. . . . In a nutshell, equitable tolling is
and substantive law.").
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reserved for exceptional cases." Chico-Velez v. Roche Prods.,
Inc., 139 F.3d 56, 58-59 (1st Cir. 1998) (considering equitable
tolling in the context of a complaint brought pursuant to the
Americans with Disabilities Act). This is not such a case.
Davis stated below and argues on appeal that her
failure to file an amendment to her MCAD complaint until 15
months after the termination should be excused because the EEOC
assured her "that she would be able to amend her complaint to
include more recent incidents of discrimination." However, the
only material in the record regarding her contact with the EEOC
is a letter Davis attached to her opposition to Lucent's motion
to dismiss. That letter, written by Davis to a supervisor at
the EEOC, states: "I had contacted [an EEOC case worker] on two
previous occasions to amend my complaint while time was still on
my side and she had flat-out refused to let me introduce this
evidence." This vague allegation, never reiterated in an
affidavit 5 and unsubstantiated by any other evidence, is
insufficient to establish that equitable tolling would be
5 In support of her opposition to Lucent's motion to
dismiss, Davis did submit an affidavit relating to her
experiences at Lucent. The only part of the affidavit
addressing her dealings with the EEOC states: "The EEOC staff
proved to be very unsympathetic and even hostile to the claims
I attempted to raise." Davis did not support this vague
statement with any specific assertions supporting the claim in
her letter to the supervisor at the EEOC.
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appropriate here. There is no cognizable evidence that either
the EEOC or the MCAD made statements that could be characterized
as "affirmative[ly] misleading." Andrews, 673 N.E.2d at 42
(declining to apply equitable tolling where there was no
"affirmative misleading" by the MCAD and where "the MCAD never
gave erroneous information to Andrews or her attorney as to the
correct filing date, nor did they refuse to accept a properly
presented timely complaint").6
B. Sexual Harassment
Next we evaluate the district court's ruling that
Davis's sexual harassment claim did not comply with the statute
of limitations for filing discrimination claims in state court.
Massachusetts law requires that such a claim be filed in
Superior Court within three years of the allegedly
discriminatory incident. See Mass. Gen. Laws ch. 151B, § 9.
The district court found that Davis failed to comply with the
statute of limitations because she departed on disability leave
on April 19, 1996, but did not file a complaint in Massachusetts
Superior Court until July 16, 1999, an interval of more than
three years. Davis argues that the relevant date for purposes
6 In its order and memorandum granting Lucent's motion to
dismiss, the district court concludes that the wrongful
termination claim is barred for failure to meet the exhaustion
requirement without specifically addressing Davis's equitable
tolling argument.
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of determining the timeliness of her complaint is August 7,
1996, when she was terminated from her position at Lucent
because of her refusal to return to work after the expiration of
her disability leave. She insists that her claim for sexual
harassment - otherwise untimely under the three-year statute of
limitations - is timely because of its relationship to her
discharge in August.
Massachusetts courts have recognized that otherwise
untimely claims of discrimination under chapter 151B may be
considered timely filed under circumstances giving rise to a
"continuing violation." See, e.g., Carter, 681 N.E.2d at 1261.
We held recently that we will follow the federal approach in
interpreting this doctrine under Massachusetts law. See Keeler
v. Putnam Fiduciary Trust Co., 238 F.3d 5, 11-12 (1st Cir. 2001)
("Absent clearer guidance from Massachusetts courts, we will
follow the well-established Provencher and Sabree [federal]
approach in cases like this one governed by Massachusetts
law.").7
The continuing violation doctrine "is an equitable
exception that allows an employee to seek damages for otherwise
7 Keeler directs that we follow the federal approach;
consequently, we do not find that Lynn Teachers Union v. Mass.
Comm'n Against Discrimination, 549 N.E.2d 97 (Mass. 1990),
salvages her claim.
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time-barred allegations if they are deemed part of an ongoing
series of discriminatory acts and there is 'some violation
within the statute of limitations period that anchors the
earlier claims.'" O'Rourke v. City of Providence, 235 F.3d
713, 730 (1st Cir. 2001) (quoting Provencher v. CVS Pharmacy,
145 F.3d 5, 14 (1st Cir. 1998)). Davis argues that her wrongful
termination claim serves this anchoring function, thereby
allowing her to recover for the earlier acts of sexual
harassment that would otherwise be barred by the three-year
statute of limitations. For Davis, however, there is no anchor.
The continuing violation doctrine is designed to connect older,
otherwise time-barred claims to more recent incidents for which
the statute of limitations has not yet run. Davis does not cite
any case where a court has invoked this doctrine to connect a
more recent incident to an older event in order to consider the
later incident to have been timely filed for exhaustion
purposes. We also have found none. Thus we conclude that the
continuing violation doctrine - even assuming Davis properly
presented it to the district court - cannot be applied to save
her wrongful termination claim.
For reasons we have already discussed, the district
court properly dismissed the wrongful termination claim because
Davis did not meet the exhaustion requirement by timely filing
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this claim with the MCAD. Accordingly, the termination cannot
serve as the act within the limitations period that anchors her
untimely claim of sexual harassment.
III.
In sum, we conclude that the district court properly
dismissed both of Davis's claims. Her claim of unjust
termination was never filed with the MCAD as the state statute
requires, and we find Davis's arguments urging us to excuse this
failure either waived or unpersuasive. Because the wrongful
termination claim is not viable, it cannot serve as the
anchoring claim to save Davis's sexual harassment claim under
the continuing violation doctrine. Accordingly, her claim of
sexual harassment is time-barred because she filed her complaint
in state court after the three-year statute of limitations
expired.
Affirmed.
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