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-