Kassaye v. College

• Court: Court of Appeals for the First Circuit
• Decided: August 4, 1993
• Docket: 92-1943
• Status: Published

Opinion

USCA1 Opinion

August 4, 1993    UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

          No. 92-1943

                                 WANDWOSSEN KASSAYE,

                                Plaintiff, Appellant,

                                          v.

                               BRYANT COLLEGE, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                                     ERRATA SHEET

               The  opinion  of this  Court issued  on  August 3,  1993, is
          amended as follows:

               On  page  10,  line  2  of  first  full  paragraph,  replace
          "indictating" with "indicating". 

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 92-1943

                                 WANDWOSSEN KASSAYE,

                                Plaintiff, Appellant,

                                          v.

                               BRYANT COLLEGE, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                     [Hon. Francis J. Boyle, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Boudin, Circuit Judge,
                                        _____________

                           Campbell, Senior Circuit Judge,
                                     ____________________

                              and Stahl, Circuit Judge.
                                         _____________

                                 ____________________

            Peter Antell with whom J. Daniel  Lindley and Antell &  Associates
            ____________           __________________     ____________________
        were on brief for appellant.
            Patricia K. Rocha  with whom Adler Pollock & Sheehan  Incorporated
            _________________            _____________________________________
        was on brief for appellees.

____________________

                                    August 2, 1993
                                 ____________________

CAMPBELL,   Senior  Circuit  Judge.    This  appeal
                                  ______________________

            concerns   the  limitations  period   for  filing  employment

            discrimination charges under Title VII.  Appellant Wandwossen

            Kassaye was employed since 1986 as an associate professor  of

            marketing by  Bryant College, a private  institution in Rhode

            Island.  Kassaye is a black male and a United States national

            born  in  Ethiopia.   In 1988,  Kassaye  applied for  and was

            denied tenure by  Bryant.   Nevertheless, Bryant  reappointed

            Kassaye as an associate  professor for the 1989-1990 academic

            year.    He reapplied  for tenure  in  August 1989.   College

            officials informed  Kassaye in writing on  December 18, 1989,

            that he  would not be  granted tenure.  On  January 20, 1990,

            appellee William  E. Trueheart, president of  Bryant College,

            officially confirmed  the tenure denial and  notified Kassaye

            that his employment would end on July 31, 1990.

                      Kassaye  continued teaching  at Bryant  through the

            spring semester.  On June  8, 1990, the marketing  department

            chairman,  appellee Frank Bingham, sent Kassaye the following

            memorandum:

                      Please make arrangements  to vacate  your
                      office no  later than July 1,  1990.  The
                             ______________
                      office  has  been  assigned   to  another
                      faculty member who  will be moving  in on
                      July 1, thus the reason for this request.
                      If this presents a problem, please advise
                      as  I  am  willing   to  do  one  of  the
                      following:

                           *    Have   Maintenance  pack   your
                                books,  etc.   in  cartons  and
                                store in a secure space

-3-

*    Try to find  a temporary  space
                                for your belongings, which will
                                give you the option  of packing
                                the books, etc. yourself.  This
                                will   be    difficult   (maybe
                                impossible)  but  I will  do my
                                best if requested

                      These "options" should  not be  necessary
                      as the July 1 date is  a full three weeks
                      away giving you ample opportunity to pack
                      and   move.      Thank   you   for   your
                      cooperation.

            Kassaye protested the request to vacate his office before the

            expiration  of his contract.   In  a June  26, 1990,  memo to

            appellee  James  W.  Robinson,  vice  president  for academic

            affairs, Kassaye wrote:

                      I understand my  contract expires on July
                      31, 1900.  [sic]   Until then, I continue
                      to  honor  my contractual  obligations to
                      the  College  and  perform  my  committee
                      duties as  required.   In that  spirit, I
                      have attended the CCAS interview sessions
                      earlier this month.

                      Needless to say,  I strongly protest  the
                      request to vacate  the office before July
                      31.    I  find  the action  a  breach  of
                      contact [sic], and  further testimony  to
                      the   continued   harassment  I'm   being
                      subjected to.   I think what  was done is
                      unprofessional and detestable.

            On July 2, 1990, Bingham again wrote to Kassaye:

                      I regret  that you  will not  vacate your
                      office  as  I  requested.    Although the
                      office  is  needed  badly to  accommodate
                      several moves, I  will honor your request
                      to remain until July 31.

                      Although  I  recognize   that  you   have
                      negative  feelings   about  being  denied
                      tenure, your failure to  accommodate this
                      move inconveniences only persons who were

-4-

not   even   Bryant  employees   when  it
                      happened.

            Kassaye retained access to  his office until the last  day of

            his employment, July 31, 1990.

                      On  November 19,  1990, Kassaye  filed a  charge of

            discrimination with  the  Rhode Island  Commission for  Human

            Rights ("RICHR"), alleging that Bryant  College discriminated

            against  him on  the basis  of his  race, color  and national

            origin.  Kassaye  is automatically deemed  to have filed  the

            same charge with the  Equal Employment Opportunity Commission

            ("EEOC") on January 18,  1991, sixty days after he  filed the

            RICHR charge.  See 29 C.F.R.   1601.13(b).
                           ___

                      The RICHR and the EEOC issued  right-to-sue letters

            in  July and  October 1991,  respectively, and  Kassaye filed

            this civil action for  injunctive and monetary relief  in the

            United States District Court for the District of Rhode Island

            on  October 16,  1991.   The  complaint  alleged that  Bryant

            College  and college  administrators  William  E.  Trueheart,

            James W.  Robinson, Michael  B. Patterson, and  Frank Bingham

            violated  section 703(a)(1) of Title VII  of the Civil Rights

            Act of 1964, 42 U.S.C.   2000e-2(a)(1) "by denying his tenure

            and thereby terminating his  employment" because of his race,

            color and national origin.   The complaint also alleged  that

-5-

the  tenure  denial  constituted,  under  Rhode  Island  law,

            tortious conduct and breach of contract.1

                      The  district court  granted  summary judgment  for

            defendants on the Title VII claims on the ground that Kassaye

            did  not file  his  charge of  discrimination  with the  EEOC

            within  the 300-day limitations period set out in 42 U.S.C.  

            2000e-5(e).      Lacking   any  other   basis   for   federal

            jurisdiction, the district court dismissed  the pendant state

            law  claims.  See  Newman v. Burgin,  930 F.2d  955, 963 (1st
                          ___  ______    ______

            Cir. 1991). 

                      On  appeal, Kassaye  disputes the  district court's

            conclusion  that his  EEOC  charge was  untimely  filed.   42

            U.S.C.     2000e-5(e)  defines  the  limitations  period  for

            charges of unlawful employment practices:

                           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
                      . . . , such charge shall  be filed by or
                      on  behalf of the person aggrieved within

____________________

            1.   The complaint was amended once to add a copy of the EEOC
            right-to-sue letter.   The  amended complaint is  referred to
            herein as "the complaint."

                                         -6-

three  hundred  days  after  the  alleged
                      unlawfulemployment
                                       practiceoccurred. . . .2

            It is undisputed that  the 300-day limitations period applied

            here,3  and that the filing date of Kassaye's charge for EEOC

            purposes  was January 18, 1991.   It is  also undisputed that

            Kassaye received actual notice  of the tenure denial,  at the

            latest,  by January 20,  1990.4  Thus,  Kassaye's EEOC charge

            was timely only if "the alleged unlawful employment practice"

____________________

            2.   This portion of 42 U.S.C.   2000e-5(e) is now designated
            as paragraph (1).  See Civil  Rights Act of 1991, Pub. L. No.
                               ___
            102-166, Title I,   112, 105 Stat. 1071, 1078-79 (1991).  The
            redesignation of this text and the  addition of new paragraph
            (2), concerning seniority systems,  do not affect the outcome
            of appellant's case.

            3.   All parties assume    as the EEOC itself has declared   
            that Rhode Island is  a deferral state for purposes  of Title
            VII, and  thus that the 300-day period  applies here.  See 29
                                                                   ___
            C.F.R.     1601.70(a), 1601.74(a).   A deferral state  is one
            with an "agency with  authority to grant or seek  relief from
            such [unlawful employment] practice[s]."   42 U.S.C.   2000e-
            5(e).   In a deferral state, the EEOC defers consideration of
            a discrimination charge  until the  appropriate state  agency
            has  had up  to sixty  days to act  on the  charge.   Id.; 29
                                                                  ___
            C.F.R.    1601.13(a)(3)-(4),  (b).   If the  aggrieved person
            files  a  claim  first with  a  state  or local  agency  in a
            deferral state, he has 300 days, instead of 180 days, to file
            a charge with the EEOC.   42 U.S.C.   2000e-5(e); Cajigas  v.
                                                              _______
            Banco de Ponce, 741 F.2d 464, 467 n.8 (1st Cir. 1984).  Given
            ______________
            the parties' agreement that Rhode Island is a deferral state,
            we  need not resolve the issue  ourselves, but simply proceed
            on that assumption.  Compare, e.g., Cajigas, 741 F.2d at 467;
                                 _______  ____  _______
            Goldman v. Sears,  Roebuck &  Co., 607 F.2d  1014, 1017  (1st
            _______    ______________________
            Cir. 1979).  

            4.   It  is possible  that Kassaye  received final  notice on
            December  18,  1989,  when  the vice  president  of  academic
            affairs notified him of the tenure decision by memo.  We need
            not determine  whether adequate  notice was received  on that
            earlier date,  however, since even if  the limitations period
            did  not commence until January 20, 1990, the EEOC charge was
            still out of time.

                                         -7-

occurred within 300  days before January  18, 1991.   Kassaye

            concedes that if, as the district court held, the gravamen of

            his complaint was the tenure denial, his charge was filed too

            late  because it was not  filed until 363  days after January

            20, 1990.  See Delaware State College v. Ricks, 449 U.S. 250,
                       ___ ______________________    _____

            258  (1980)  (holding  that  the  limitations  period  for  a

            discrimination  charge based  on  tenure  denial begins  when

            aggrieved person receives notice of  denial, not on the  last

            day of employment).

                      Kassaye's   administratively-filed   discrimination

            charge,  and  his subsequent  civil  complaint  filed in  the

            district court,  centered upon  the denial  of tenure.   Only

            after  defendants  raised  the  limitations  problem  in  the

            district  court, in  their motion  for summary  judgment, did

            Kassaye  put forward  his  current theory:  that there  was a

            continuing violation of  Title VII that ended within the 300-

            day limitations period.5   If a Title  VII violation is of  a

____________________

            5.   Appellees do  not contest appellant's right to do so, so
            we  shall  assume without  deciding  that  appellant was  not
            precluded from raising the continuing violation theory in his
            opposition  to summary  judgment.   See  Cajigas v.  Banco de
                                                ___  _______     ________
            Ponce, 741  F.2d 464, 468 n.12 (1st Cir. 1984).  But see Mack
            _____                                            _______ ____
            v. Great Atl. & Pac. Tea Co., 871 F.2d 179,  183-84 (1st Cir.
               _________________________
            1989) (warning future litigants that the continuing violation
            theory should be spelled out clearly in their complaints).  
                 It is nonetheless noteworthy that the June 8th memo  was
            neither  emphasized  nor  discussed in  appellant's  original
            discrimination charge and complaint.   See Ricks, 449 U.S. at
                                                   ___ _____
            257  n.8.  Appellant  wrote on the form  filed with the RICHR
            that  the most  recent  act of  discrimination took  place on
            January 20, 1990     the date he received official  notice of
            the  tenure   denial.     His  description  of   the  alleged

                                         -8-

continuing nature, the  charge of  discrimination filed  with

            the appropriate agency may be timely as to all discriminatory

            acts  encompassed by the violation  so long as  the charge is

            filed  during  the  life  of  the  violation  or  within  the

            statutory period  (e.g., 300  days) which commences  upon the

            violation's  termination.  Mack v. Great Atl. & Pac. Tea Co.,
                                       ____    _________________________

            871 F.2d 179, 183 (1st Cir. 1989); Cajigas v. Banco de Ponce,
                                               _______    ______________

            741  F.2d 464, 469 (1st Cir. 1984); Goldman v. Sears, Roebuck
                                                _______    ______________

            & Co., 607 F.2d 1014, 1018 (1st Cir. 1979).  
            _____

                      There  are  two  kinds  of  continuing  violations:

            systemic and serial.  Jensen v. Frank, 912 F.2d 517, 522 (1st
                                  ______    _____

            Cir.  1990).  Kassaye does not assert that what happened here

            fits within  the former definition.  What  Kassaye now argues

            is that the record discloses a series of discriminatory acts,
                                           ______

            beginning at a time  unspecified and ending on June  8, 1990,

            when Bingham asked  him to  vacate his office.   These  acts,

            said  to constitute harassment of Kassaye on the basis of his

            race, color  and national  origin, included assigning  him to

            teach  a  class he  did not  wish  to teach,  relying  on the

            evaluations  of white  peers  and students  in making  tenure

____________________

            discrimination, in  both the  charge form and  his complaint,
            focused  almost  exclusively on  the  details  of the  tenure
            denial.   Only one sentence on his discrimination charge form
            mentioned  the request  that  he vacate  his  office a  month
            early.  The complaint did  not even allege that the June  8th
            incident occurred, but merely  referred to the discrimination
            charge  form    which itself only mentioned the memo    as an
            exhibit.

                                         -9-

decisions, denying him tenure,  and asking him to  vacate his

            office.   Because  the last  of  these purported  serial acts

            occurred  on June  8, 1990,  Kassaye contends  that the  EEOC

            charge was filed during the 300-day limitations period, viz.,

            224 days after June 8, 1990.

                      A  serial violation  is described  as "a  number of

            discriminatory  acts emanating  from the  same discriminatory

            animus,  each  act constituting  a separate  wrong actionable

            under  Title VII."  Sabree v. United Bhd. of Carpenters Local
                                ______    _______________________________

            33,  921 F.2d 396, 400  (1st Cir. 1990)  (quoting Jensen, 912
            __                                                ______

            F.2d  at  522).   The mere  effects  or consequences  of past

            discrimination,  as  opposed   to  independently   actionable

            violations  of Title  VII, are insufficient  to serve  as the

            trigger of the limitations  period.  Ricks, 449 U.S.  at 258;
                                                 _____

            United  Air Lines, Inc. v.  Evans, 431 U.S.  553, 558 (1977);
            _______________________     _____

            Goldman,  607  F.2d at  1018.   "[T]he  critical  question is
            _______

            whether  any present violation  exists."  Evans,  431 U.S. at
                                 _________            _____

            558 (emphasis in original).  

                      The only  one of  this series of  alleged harassing

            acts that occurred within the limitations period was the June

            8,  1990, request  for appellant  to move  out of  his office

            prior to the  termination of his  contract.  For  appellant's

            continuing  violation theory to  succeed, that  incident must

            have constituted an  independently actionable  discriminatory

-10-

act,  and not have been  merely a consequence  of the earlier

            tenure denial.  Mack, 871 F.2d at 183.
                            ____

                      We  do not think that Kassaye has raised a  genuine

            issue of material fact as to whether the June 8  incident was

            an actionable Title VII violation.   The ultimate question in

            any  Title  VII  claim  is whether  the  defendant's  alleged

            conduct was discriminatory.   St. Mary's Honor Ctr. v. Hicks,
                                          _____________________    _____

            No. 92-602,  61  U.S.L.W. 4782,  4786 (U.S.  June 25,  1993);

            Goldman, 607 F.2d at  1019.  However, nothing in  this record
            _______

            suggests, directly  or indirectly,  that the request  to move

            was  discriminatory.    The  request  was  not  on  its  face

            unreasonable, given  the unrebutted need to accommodate other

            faculty  members who were staying  on.  There  is no evidence

            that,  by  asking Kassaye  to vacate  his  office on  July 1,

            Bingham was treating Kassaye any differently from the  way he

            had, or would have, treated other non-black and non-Ethiopian

            professors  who had been denied tenure.  See, e.g., Mack, 871
                                                     ___  ____  ____

            F.2d  at  182   (affirming  summary  judgment   dismissal  of

            discrimination claim where plaintiff offered no evidence that

            similarly   situated,  male   employees  were   treated  more

            favorably  than she);  Cajigas, 741  F.2d at  468 (dismissing
                                   _______

            claim  because  plaintiff failed  to  allege  that employer's

            refusal to offer equal pay  and promotions to her constituted

            different  treatment  from  that  afforded  males  in similar

            situations); Underwood v. Digital  Equip. Corp., 576 F. Supp.
                         _________    _____________________

-11-

213, 216  (D. Mass.  1983) (dismissing claim  where plaintiff

            did  not   allege  that  his  former   employer  treated  him

            differently from  the way  in which  it treated  other former

            employees).

                      Kassaye's  assertions  to  the  contrary   are  not

            substitutes  for  concrete  evidentiary materials  indicating

            differential treatment.   August  v. Offices  Unlimited, Inc.
                                      ______     ________________________

            981 F.2d 576, 580  (1st Cir. 1992).  The only record evidence

            regarding the office incident  are the three memos reproduced

            in full supra, showing simply that Kassaye was asked to leave
                    _____

            his  office a month before  his contract expired  in order to

            permit  another faculty  member  to move  in.   When  Kassaye

            refused to move, he was told he could stay until his contract

            ran out.   The request to move had been  politely phrased and

            was accompanied by a stated willingness to take certain steps

            helpful to Kassaye if moving out presented a problem.  In his

            subsequent letter  honoring Kassaye's request  to stay  until

            July  31,  Bingham  spoke of  needing  the  office  "badly to

            accommodate several moves."  While Kassaye viewed the request

            as "unprofessional and detestable," we are unable to see that

            the  mere making of it  provided grounds for  an inference of

            discrimination.  Asking a teacher whose contract was about to

            expire to  vacate his office  a few weeks  early in  favor of

            someone who  would be teaching next fall was a mere effect of

            the past, allegedly discriminatory,  act of refusing to renew

-12-

appellant's employment at Bryant College.  It was the latter,

            if anything, which provided grounds for complaint.

                      Because  the  events  of   June  8,  1990  did  not

            constitute an actionable violation of Title VII, there was no

            continuing  violation extending into  the 300-day limitations

            period.   The district court correctly  held that appellant's

            EEOC  charge was  not timely  filed.   Because we  affirm the

            district  court's  dismissal of  Kassaye's  complaint  on the

            limitations ground,the other issuesraised by Kassayeare moot.

Affirmed.  Costs to appellees.
                      _________  ___________________

-13-