United States Court of Appeals United States Court of Appeals For the First Circuit For the First Circuit
No. 95-1571
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff - Appellant,
v.
DONALD E. GREEN, LAW OFFICES,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
John F. Suhre, Attorney, with whom C. Gregory Stewart, General
Counsel, Gwendolyn Young Reams, Associate General Counsel, and Vincent
J. Blackwood, Assistant General Counsel, were on brief for appellant.
Nancy S. Shilepsky, with whom David J. Burgess and Dwyer &
Collora, were on brief for appellee.
February 9, 1996
STAHL, Circuit Judge. On December 29, 1993, Ollie STAHL, Circuit Judge.
Osinubi, a female paralegal at the Law Offices of Donald E.
Green ("Green"), filed a Title VII charge against Green
alleging sexual harassment and constructive discharge.
Osinubi filed her charge with the Equal Employment
Opportunity Commission ("EEOC") 191 days after the last
alleged act of discrimination. After investigating Osinubi's
charge, the EEOC brought this action against Green in the
United States District Court for the District of
Massachusetts alleging sexual and racial harassment in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e et seq. Green moved to dismiss the complaint
under Fed. R. Civ. P. 12(b)(6), arguing that Osinubi's claim
was untimely, having been filed outside the 180-day
limitations period outlined in section 706(e)(1) of Title
VII, 42 U.S.C. 2000e-5(e)(1). The district court agreed,
and because Green's Motion to Dismiss presented matters
outside the pleadings, the court treated it as a motion for
summary judgment and granted summary judgment for Green. The
EEOC appeals. For the reasons discussed below, we reverse.
I.
BACKGROUND
A. Title VII
Under section 706(e)(1), a charge of employment
discrimination generally must be filed with the EEOC within
180 days of the last alleged act of discrimination. 42
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U.S.C. 2000e-5(e)(1).1 However, if a claimant initially
institutes proceedings with a state or local agency, a charge
can be filed with the EEOC up to 300 days after the
discriminatory act. Id.
Section 706(c) provides that where an alleged
discriminatory employment practice has occurred in a so-
called "deferral state" (a state that has its own anti-
discrimination laws and enforcement agency), the deferral
state has sixty days of exclusive jurisdiction over the
claim, and only after the sixty days have expired or the
proceedings have been "earlier terminated" can the charge be
filed with the EEOC. 42 U.S.C. 2000e-5(c).2 The sixty-
1. In relevant part, section 706(e)(1) reads:
A charge under this section shall be filed [with the EEOC] within one hundred and eighty days after the alleged unlawful employment practice occurred . . . , except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged employment practice occurred . . . .
42 U.S.C. 2000e-5(e)(1).
2. In relevant part, section 706(c) reads:
In the case of an alleged unlawful employment practice occurring in a State,
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day period of exclusive jurisdiction is intended to "give
States and localities an opportunity to combat discrimination
free from premature federal intervention." EEOC v.
Commercial Office Prods. Co., 486 U.S. 107, 110 (1988). Many
state agencies, in order to facilitate the federal processing
of charges, have entered into "worksharing agreements" with
the EEOC in which the state agency agrees to waive its right
to the sixty-day period of exclusive jurisdiction for certain
categories of claims.
Massachusetts is a deferral state and the
Massachusetts Commission Against Discrimination ("MCAD") is
the agency responsible for enforcing Massachusetts's anti-
discrimination laws. The EEOC and the MCAD have entered into
a Worksharing Agreement to avoid duplication of effort by
apportioning the responsibilities for processing charges.
. . . which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice . . . no charge may be filed under [this section] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under State or local law, unless such proceedings have been earlier terminated . . . .
42 U.S.C. 2000e-5(c).
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B. Facts
In reviewing a motion for summary judgment, we
recite the facts in the light most favorable to the non-
moving party. See Mesnick v. General Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992).
Green hired Osinubi as a paralegal in October of
1992. Osinubi later left Green's employment allegedly
because a work environment fraught with sexual harassment
made work intolerable. On December 29, 1993, Osinubi filed a
charge of sexual harassment and constructive discharge with
the EEOC. Osinubi did not file a separate charge with the
MCAD.
At the top of her EEOC charge form, in the space
provided for naming the state or local agency, if any,
Osinubi typed "Mass Comm Against Discrimination." Osinubi
failed, however, to mark a box in the lower left-hand corner
that stated, "I want this charge filed with both the EEOC and
the State or local Agency, if any." Osinubi also indicated
on the charge form that the latest date that discrimination
took place was June 20, 1993, 191 days prior to her filing
the charge. After investigating the charge, the EEOC
commenced this sexual harassment and race discrimination
action in federal district court on December 7, 1994.
On February 8, 1995, Green moved to dismiss the
complaint under Fed. R. Civ. P. 12(b)(6), contending that the
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EEOC's claim was time-barred because of Osinubi's failure to
file her charge within 180 days of the last alleged act of
discrimination. Green further maintained that the EEOC could
not avail itself of the extended 300-day limitations period
because the extension only applies to claimants who have
first filed with the state agency and Osinubi's charge was
never filed with the MCAD. To support this factual
proposition, Green attached to its motion the affidavit of
Jane Brayton, executive assistant to the MCAD Commissioners,
stating that her review of the MCAD computer files revealed
no record of Osinubi's charge having been filed with the
On March 6, 1995, the EEOC filed its Opposition to
the Motion to Dismiss and attached the affidavit of Elizabeth
Grossman, an EEOC trial attorney.3 In her affidavit,
Grossman stated, inter alia, that the EEOC had forwarded a
copy of Osinubi's charge to the MCAD on December 29, 1993.
Grossman supported this statement with a copy of the EEOC's
charge transmittal form for Osinubi's charge, dated 12/29/93
and addressed to the MCAD. The form, however, was not signed
by an officer of the MCAD indicating the MCAD's receipt.
3. Grossman attached to her affidavit the following six exhibits: a copy of Osinubi's charge, her notes of a phone conversation with Green's attorney, the EEOC's charge transmittal form addressed to the MCAD for Osinubi's charge, the EEOC-MCAD Worksharing Agreement, letters from Green's attorney to the EEOC investigator, and the EEOC's letter of determination.
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On March 13, 1995, Green moved to strike the charge
transmittal form and that portion of Grossman's Affidavit
regarding the EEOC's forwarding of Osinubi's charge. Green
contended that the charge transmittal form was
unauthenticated, did not prove filing with and receipt by the
MCAD, and that Grossman has no personal knowledge of the
EEOC's forwarding of Osinubi's charge to the MCAD.
On March 23, 1995, the EEOC filed its Opposition to
the Motion to Strike. The EEOC responded that Grossman could
attest to routine EEOC procedures and thereby authenticate
the charge transmittal form and that Osinubi's charge was
constructively filed with the MCAD when the EEOC forwarded it
to the MCAD on December 29, 1993. In the alternative, the
EEOC argued that even if the MCAD's receipt of Osinubi's
charge was required to initiate MCAD proceedings, it could
verify such receipt with the attached affidavit of Walter W.
Horan, the EEOC Program Coordinator for the MCAD. In his
attached affidavit, Horan stated that he was the MCAD's
custodian of records of EEOC charges forwarded to the MCAD
and that MCAD records indicated that the MCAD received a copy
of Osinubi's charge on January 6, 1994. Horan attached to
his affidavit a signed copy of the charge transmittal form
acknowledging the MCAD's receipt of Osinubi's charge.
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C. District Court Opinion
On March 29, 1995, the district court issued its
opinion resolving the Motion to Dismiss and the Motion to
Strike. The court began its opinion by noting that because
matters outside the pleadings were presented, it was
converting Green's motion to dismiss for failure to state a
claim to a motion for summary judgment. The district court
had not previously notified the parties of its intention to
convert. The court then explained that to qualify for the
extended limitations period, Osinubi or the EEOC on Osinubi's
behalf must have initially filed charges with the MCAD. The
court found, however, that neither Osinubi nor the EEOC had
done so. With respect to Osinubi, the court viewed her
failure to check the box on the EEOC charge form as evincing
a preference not to have her charge filed with the MCAD.
The EEOC, the court found, had also failed to file
Osinubi's charge with the MCAD. The court assumed arguendo
that Grossman's contested attestation that the EEOC had
forwarded Osinubi's charge to the MCAD was admissible. The
court held, however, that merely forwarding the charge to the
MCAD was not sufficient to initiate MCAD proceedings and
thereby trigger the extended limitations period; proof that
the MCAD actually received the forwarded charge also was
necessary.
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Despite Horan's verification of the MCAD's receipt
of Osinubi's charge, the district court found that the EEOC
had not contested Brayton's assertion that the MCAD had no
record of receiving Osinubi's charge. Accepting this
"uncontested" fact as true, the court reasoned as follows:
because the MCAD never received a copy of Osinubi's charge, a
precondition to invoking the 300-day extended limitations
period had not been satisfied; thus, the general 180-day
limitations period applied, and the EEOC's complaint was
time-barred. The district court made no mention of the Horan
Affidavit and did not explain the reason for its failure to
consider it.
Finally, the district court dismissed the EEOC's
argument that paragraph II.A. of the EEOC-MCAD Worksharing
Agreement ("[the MCAD] designates [the EEOC] as its agent for
the purpose of receiving charges") allows MCAD proceedings to
be initiated upon the EEOC's receipt of a charge and without
additional notice to the MCAD. Citing Hamel v. Prudential
Ins. Co., 640 F. Supp. 103, 107 (D. Mass. 1986), the court
held that filing with the state agency is a precondition to
invoking the extended limitations period and that to allow
otherwise, e.g., by way of worksharing agreement, would be
inconsistent with the scheme Congress established.
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II.
DISCUSSION
On appeal, the EEOC argues that the district court
erred in granting summary judgment because: (1) in paragraph
II.A. of the EEOC-MCAD Worksharing Agreement, the MCAD
designated the EEOC as its agent for receiving charges and
therefore MCAD proceedings were initiated when the EEOC
received Osinubi's charge, thereby qualifying Osinubi for the
extended limitations period and (2) even if actual receipt by
the MCAD was required to commence MCAD proceedings, the Horan
Affidavit provided ample evidence that the MCAD received
Osinubi's charge to contradict the Brayton Affidavit and
create a genuine issue of material fact.
Because we find the EEOC's second argument
dispositive, we do not consider its first claim except to
offer the following observation from our examination of the
EEOC-MCAD Worksharing Agreement. While Title VII4 and the
4. Title VII encourages cooperation between the EEOC and state and local agencies and authorizes the formalization of such cooperative efforts in written agreements. Section 705(g)(1) empowers the EEOC "to cooperate with and, with their consent, utilize regional, State, local, and other agencies." 42 U.S.C. 2000e-4(g)(1). Section 709(b) provides that "[i]n furtherance of such cooperative efforts, the Commission may enter into written agreements with such State or local agencies." 42 U.S.C. 2000e-8(b). The Supreme Court has interpreted these sections to "envision the establishment of some sort of worksharing agreements between the EEOC and state and local agencies" and to permit provisions within these worksharing agreements "designed to avoid unnecessary duplication of effort or waste of time." EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 122
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case law of other circuits5 support the conclusion that
worksharing agreements can permit state proceedings to be
automatically initiated when the EEOC receives the charge, it
is unclear from the language of the EEOC-MCAD Worksharing
Agreement whether the EEOC and the MCAD intended MCAD
proceedings to be initiated upon the EEOC's receipt.6
(1988).
5. See Griffin v. City of Dallas, 26 F.3d 610, 612-13 (5th
Cir. 1994) (holding that, under the terms of a worksharing agreement between the EEOC and the Texas Commission on Human Rights ("TCHR"), the EEOC's acceptance of a charge as the TCHR's agent instituted state proceedings within the meaning of section 706(e)(1)); Hong v. Children's Memorial Hosp., 936
F.2d 967, 970-71 (7th Cir. 1991) (holding that "workshare agreement can alone effect both initiation and termination of state proceedings and that, as a result, plaintiffs may file with the EEOC without first filing with the [state agency]"); Sofferin v. American Airlines, Inc., 923 F.2d 552, 559 (7th
Cir. 1991) (holding that "a worksharing agreement could provide that a filing with the EEOC simultaneously initiates and terminates state proceedings"); Petrelle v. Weirton Steel
Corp., 953 F.2d 148, 152 (4th Cir. 1991) (conceding without
deciding that plaintiff "may be correct in arguing that a work sharing agreement can be crafted to authorize automatic implementation of the requirements of [the ADEA equivalent to section 706(e)(1)]").
6. The EEOC and the MCAD would be wise to revise the language of their Worksharing Agreement to clarify their intent. Rather than explicitly providing that the EEOC's receipt of charges on the MCAD's behalf initiates MCAD proceedings for purposes of section 706(e)(1), paragraph II.A. states that the EEOC will be the MCAD's "agent for purposes of receipt." That phrase, however, supports two readings: that the EEOC will act as the MCAD's mailbox, date stamping and accepting mail on the MCAD's behalf or that the EEOC's receipt of a charge also initiates MCAD proceedings. The EEOC and the MCAD should also address the apparent ambiguity arising from the Worksharing Agreement's failure to define terms such as "appropriate charges" in paragraph II.D. and to distinguish the "advance waivers" of paragraph III.E.11. from the other waivers of paragraph III.E.1-10.
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After reciting the standard of review, we turn our
attention to the EEOC's second argument. We review a grant
of summary judgment de novo and are guided by the same
criteria as the district court; a grant of summary judgment
cannot stand on appeal "unless the record discloses no
trialworthy issue of material fact and the moving party is
entitled to judgment as a matter of law." Alexis v.
McDonald's Restaurants of Mass., Inc., 67 F.3d 341, 346 (1st
Cir. 1995).
Whether Osinubi's charge enjoys the extended
limitations period and is thereby timely filed depends on
whether the MCAD received a copy of Osinubi's charge.7 The
parties have put this material fact in dispute by submitting
two competing affidavits: Brayton's assertion that the MCAD
has no record of receiving Osinubi's charge and Horan's
attestation to the MCAD's receipt of Osinubi's charge and
charge transmittal form denoting the same. Accordingly,
because the record before the district court posed a genuine
issue of material fact, summary judgment could have been
granted for Green only if the district court acted within the
sphere of its discretion in failing to consider the Horan
Affidavit.
7. Because the EEOC does not contest the district court's ruling that forwarding a charge to the MCAD is not sufficient to initiate MCAD proceedings, we need not decide whether anything less than the MCAD's receipt, such as the EEOC's mere forwarding, initiates MCAD proceedings.
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Ordinarily, the district court has broad authority
to prescribe the evidentiary materials it will consider in
deciding a motion for summary judgment. See United States v.
Parcels of Land, 903 F.2d 36, 45-46 (1st Cir. 1990). We are
reluctant to second-guess the district court in this area and
review such decisions only for a clear abuse of discretion.
See id. at 45. Nonetheless, we conclude that on the very
unusual circumstances of this case, the district court
overstepped its authority and abused its discretion in
failing to consider the Horan Affidavit.
The unusual circumstances that motivate this
decision include: (1) the district court's failure to notify
the parties of its intention to convert Green's Motion to
Dismiss into a motion for summary judgment, (2) the EEOC's
attachment of the Horan Affidavit to a filing that was
directly related to the Motion to Dismiss, and (3) the
prejudice to the EEOC from the court's failure to give notice
of its intention to convert. We discuss each in turn.
Fed. R. Civ. P. 12(b) has been interpreted to
require the district court to expressly notify the parties of
its intention to convert. See Chaparro-Febus v.
International Longshoremen Ass'n, Local 1575, 983 F.2d 325,
332 (1st Cir. 1992). In an effort to be pragmatic, this
court has excused such a failure when it is harmless. Id.
(holding the failure harmless "when the opponent has received
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the affidavit and materials, has had an opportunity to
respond to them, and has not controverted their accuracy").
We decline to excuse the district court in the instant case,
however, as we find that its failure to notify the EEOC and
Green of its decision to convert the Motion to Dismiss to one
for summary judgment prejudiced the EEOC because the district
court failed to consider the Horan Affidavit.
Although the district court never explained its
failure to consider the Horan Affidavit in its summary
judgment order or referred to the Horan Affidavit in any way,
we presume that once it denied the Motion to Strike, the
court saw no need to consider the EEOC's Opposition to the
Motion to Strike and accordingly overlooked the Horan
Affidavit referred to therein and attached thereto. The
Opposition to the Motion to Strike, however, was directly
related to the Motion to Dismiss; the district court had to
resolve the Motion to Strike in order to determine which
affidavits were properly before it on summary judgment. As
such, the Opposition to the Motion to Strike was a filing to
which a party reasonably might attach evidentiary materials
opposing the Motion to Dismiss.8 Having failed to notify
8. In its Opposition to the Motion to Strike, the EEOC argued that should the court grant the Motion to Strike the Grossman Affidavit, it should consider the attached Horan Affidavit in its place. While it would have been preferable for the EEOC to have attached the Horan Affidavit to a separate motion requesting the court to consider the affidavit as newly submitted evidence, the Horan Affidavit is
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the parties of its intention to convert, the district court
at a minimum should have considered a filing like the Horan
Affidavit that had reasonably been attached to an opposition
that was directly related to the Motion to Dismiss.9
Had the district court followed the prescribed
approach of Rule 12(b) and notified the parties of its intent
to convert, the EEOC would almost certainly have had the
opportunity to ensure that the district court consider the
Horan Affidavit. When a court informs the parties of its
intention to convert, ordinarily it provides the parties with
a minimum of ten days, pursuant to Fed. R. Civ. P. 56(c), in
which to augment previous filings. Had the district court so
notified the parties in the instant case, the EEOC could have
resubmitted the Horan Affidavit, attached to an opposition to
the converted motion for summary judgment, and thereby
guaranteed its consideration.10 Similarly, had the
district court specified which submissions it would consider
sufficiently related to the Motion to Strike, that its attachment to the Opposition to the Motion to Strike is reasonable.
9. In so holding, we do not require the district court to scour ancillary filings for hidden and potentially relevant affidavits. A court need only refer to those filings in which a party reasonably might include materials in support of or in opposition to the motion to dismiss.
10. Local Rule 56.1 of the District of Massachusetts requires a district court to consider evidentiary materials filed as exhibits to the opposition to the motion for summary judgment.
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in making its summary judgment decision, the EEOC could have
filed the Horan Affidavit in compliance therewith.
As it turned out, however, the district court's
failure to notify the parties of its intention to convert
left the parties in the dark. Under this unique set of
circumstances, where the district court's failure to notify
the parties of its intention to convert was prejudicial and
the Horan Affidavit was attached to a filing directly related
to the Motion to Dismiss, the district court's failure to
consider the Horan Affidavit was an abuse of discretion.
III.
CONCLUSION
Because we find that the Horan and Brayton
Affidavits presented the district court with a genuine issue
of material fact, we vacate the district court's order
granting summary judgment for Green and remand for further
proceedings consistent with this opinion.
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