Kelley v. SAU #54 CV-98-439-M 07/22/99 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Kate A. Kelley and Richard J. Kelley, Plaintiffs
v. Civil No. 98-439-M
School Administrative Unit #54, Defendant
O R D E R
Kate Kelley brings this action against her former employer.
School Administrative Unit #54, alleging that she was subjected
to a hostile work environment which eventually forced her to
resign from her teaching position in Rochester, New Hampshire.
She seeks compensatory and punitive damages under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seg. Her
husband, Richard, also seeks damages under New Hampshire's common
law for loss of consortium.
Defendant asserts that Kelley failed to file a charge of
discrimination with the New Hampshire Commission for Human Rights
("NHCHR") within 180 days of the last alleged violation and also
failed to file a charge of discrimination with the Egual
Employment Opportunity Commission ("EEOC") within 300 days of the
alleged violation. Accordingly, defendant argues, because
Kelley's claims were not filed with the EEOC in a timely fashion,
she cannot pursue her Title VII claims in this court. As to the
state common law claim filed by Kelley's husband, defendant asserts that it is barred because the spouse of an alleged civil
rights victim has no right to pursue an ancillary cause of action
for loss of consortium.
Finally, defendant argues that even if Kelley may proceed
with her Title VII claim, she is barred from seeking additional
damages for injuries sustained as a result of a hostile work
environment because a state jury already awarded her full and
fair compensation for those injuries. On those grounds,
defendant moves for summary judgment as to both counts of
plaintiffs' complaint.
Standard of Review
Summary judgment is appropriate when the record reveals "no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). When ruling upon a party's motion for summary judgment,
the court must "view the entire record in the light most
hospitable to the party opposing summary judgment, indulging all
reasonable inferences in that party's favor." Griggs-Ryan v.
Smith, 904 F.2d 112, 115 (1st Cir. 1990).
The moving party "bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact."
2 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . If the
moving party carries its burden, the burden shifts to the
nonmoving party to demonstrate, with regard to each issue on
which it has the burden of proof, that a trier of fact could
reasonably find in its favor. See DeNovellis v. Shalala, 124
F .3d 298, 306 (1st Cir. 1997).
At this stage, the nonmoving party "may not rest upon mere
allegation or denials of [the movant's] pleading, but must set
forth specific facts showing that there is a genuine issue" of
material fact as to each issue upon which he or she would bear
the ultimate burden of proof at trial. I d . (guoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). In this context,
"a fact is 'material' if it potentially affects the outcome of
the suit and a dispute over it is 'genuine' if the parties'
positions on the issue are supported by conflicting evidence."
Intern'1 Ass'n of Machinists and Aerospace Workers v. Winship
Green Nursing Center, 103 F.3d 196, 199-200 (1st Cir. 1996)
(citations omitted).
Factual Background
For purposes of its motions for summary judgment, defendant
does not contest the factual allegations set forth in plaintiffs'
complaint. Accordingly, at this juncture, the court will assume
the truth of those allegations.
3 In September of 1993, Kelley began working for defendant as
a teacher in the Rochester Middle School. Shortly thereafter,
someone began defacing personal items in her office (such as
photographs) and subjecting her to vulgar and sexually-oriented
graffiti. Kelley says that she reported these incidents to the
school's principal, who said that it was probably just a middle
school student and that she should get used to such adolescent
conduct. Despite her repeated reports of vandalism and
harassment, the school conducted no investigation into Kelley's
allegations. The perpetrator continued his obscene and vulgar
conduct throughout the 1993-1994 and 1994-1995 school years, as a
result of which Kelley suffered mental anguish and emotional
distress.
In an effort to end the harassment Kelley switched jobs,
assuming the duties of the school's librarian. That position
included a private office, which could be locked when she was not
present. Nevertheless, the perpetrator gained access to Kelley's
office and the harassing, demeaning, and offensive conduct
persisted. At that point, because students did not have access
to her locked office, Kelley began to suspect that the harassment
was being conducted by a fellow faculty member or other school
employee. Kelley again reported the repeated acts of harassment
to school officials, but no administrative investigation was
undertaken, nor was any report filed with the local police.
4 At the beginning of the 1996-1997 academic year, the
harassment resumed. In response to the perpetrator's continued
defacing of her personal photographs, Kelley removed all such
items from her desk. Nevertheless, the harassment continued, and
the perpetrator began leaving clippings from newspapers and
magazines of women who resembled Kelley. On them he wrote
sexually charged and highly offensive comments.
Toward the end of the academic year, in March of 1997,
Kelley again reported the perpetrator's actions, this time to Dr.
Raymond Yeagley, Superintendent of the Rochester School District.
She told Yeagley that although she had initially attributed the
incidents to student "pranks," she was now concerned that the
harassment may be coming from another employee of the school
district. Yeagley told Kelley that her report would be fully
investigated and suggested that they involve the Rochester Police
Department. In his affidavit, Yeagley says that Kelley expressed
uncertainty as to whether she wished to involve the police.
A few days later, however, Kelley contacted the Rochester
Police Department on her own, and that department promptly began
an investigation. As part of its investigation, and with
Yeagley's cooperation, the police placed a video surveillance
camera in Kelley's office. On April 4, 1997, Kelley came to work
and noticed that a framed picture of her and her son had been
defaced. She contacted the police, who retrieved the
5 surveillance video. The video was clear — the school's
custodian, Alphonse Boucher, entered Kelley's office, removed the
picture from its frame, drew on Kelley's breasts with a pen, and
returned the picture to her desk.
On April 8, 1997, police interviewed Boucher, following
which they obtained a warrant for his arrest. The next day,
Yeagley suspended Boucher from his position as custodian, pending
a termination hearing by the Rochester School District. Under
defendant's supervision, Boucher removed his personal belongings
from the school and never returned.
In an affidavit submitted in connection with a related state
civil action, Kelley testified that the harassment stopped after
Boucher was removed from the school in April of 1997. See
Exhibit B to Defendant's motion for summary judgment (document
no. 6), at para. 7. Nevertheless, shortly after returning for
the start of the 1997-1998 academic year, Kelley claimed that she
could no longer work at the school because of all that she had
endured, see id., and because in September of 1997 (more than
five months after Boucher had been removed), she discovered "old
writings in her desk which she had not previously seen."
Complaint at para. 38. Those "old writings" consisted of obscene
drawings and lewd comments, which Kelley concedes were, in all
likelihood, authored by Boucher and left in her desk at some
point before he was discharged. In October of 1997, Kelley
6 submitted her resignation, saying that she could no longer
continue her employment at the school as a result of all that she
had gone through.
Plaintiffs later filed suit in Strafford County (New
Hampshire) Superior Court, alleging claims against both the
Rochester School District and Boucher. The trial court dismissed
the claims against the school district as barred by the state's
workers' compensation law, but her claims against Boucher
proceeded to trial. The jury returned verdicts against Boucher
in favor of Kate Kelley and Richard Kelley (on his loss of
consortium claim).
It does not appear that Kelley ever filed a charge of
discrimination with the New Hampshire Commission for Human
Rights, the state's fair employment agency. See 29 C.F.R.
§§ 1601.74 & 1601.80; N.H. Rev. Stat. Ann. 354-A:3. However, on
January 20, 1998, Kelley completed a "Charging Party Information"
guestionnaire, which she says was mailed to the EEOC on January
21, 1998 (the record suggests that the EEOC actually received
that form on February 9, 1998, more than 300 days after the date
on which Boucher was removed from the school and the harassment
apparently ceased). It was not until February 24, 1998, that
Kelley mailed a formal charge of discrimination to the EEOC. See
Exhibit 2 to document no. 10, Letter dated June 1, 1998 to Kelley
from Leonard Moore of the EEOC. That charge was apparently
7 received by the EEOC on February 2 1 , 1998. As required by law,
the EEOC notified defendant of Kelley's charge on March 3, 1998.
See 42 U.S.C. 2000e-5(e)(1); 29 C.F.R. § 1601.14(a) (requiring
the EEOC to notify the employer within ten days of the filing of
a charge of discrimination).
Discussion
Title VII obligates plaintiffs to exhaust administrative
remedies before filing suit in federal court. See Lawton v.
State Mutual Life Assurance Co. of America, 101 F.3d 218, 221
(1st Cir. 1996) . The general rule provides that charges of
discrimination must be filed with the EEOC within 180 days of the
discriminatory act, unless the charge is first filed with an
authorized state agency, in which case it must be filed with the
EEOC within 300 days of the discriminatory act. See 42 U.S.C.A.
§ 2000e-5(e); E.E.O.C. v. Commercial Office Products Co . , 486
U.S. 107, 110 (1988). Because Kelley did not file any charge of
discrimination with the NHCHR, defendant asserts that she was
required to file her charge with the EEOC within 180 days of the
last act of alleged discrimination.
Title VII's statutory time limits may, however, be affected
by the terms of work-sharing agreements between the EEOC and
authorized state agencies in deferral states. See, e.g..
Commercial Office Products, 486 U.S. at 122; E.E.O.C. v. Green,
76 F.3d 19, 23 (1st Cir. 1996); Russell v. Delco Remv Div. of General Motors Corp., 51 F.3d 746, 750-51 (7th Cir. 1995) . New
Hampshire is a deferral state, which means that it has its own
fair employment practices statute. New Hampshire Revised Statutes
Annotated chapter 354-A, and its own enforcement agency, the
NHCHR. See 42 U.S.C.A. § 2000e-5(c). And, in the past, the
NHCHR has entered into yearly work-sharing agreements with the
EEOC. See, e.g., Madison v. St. Joseph Hospital, 949 F.Supp.
953, 958 (D.N.H. 1996) .
Unfortunately, the parties have not submitted a copy of the
relevant EEOC-NHCHR work-sharing agreement for the pertinent
year(s). Under the customary terms of past work-sharing
agreements, the NHCHR and EEOC have agreed to serve as each
other's agent for purposes of filing complaints and the NHCHR has
waived its 60-day exclusive jurisdiction period under certain
circumstances. Typically, the effect of the dual-filing rule and
NHCHR's waiver of its exclusive jurisdictional period is to allow
claimants the benefit of the full 300-day filing period. See
generally Sweet v. Hadco Corp., No. 95-576-M, slip op. (D.N.H.
February 3, 1997) .
Nevertheless, defendant suggests that there is some guestion
as to whether Kelley is entitled to the benefit of the 300-day
limitations period or whether she should be held to a shorter
limitations period. But, because defendant has failed to fully
develop (or support) that argument, the court will assume that the 300-day limitations period applies. Even extending Kelley
the benefit of a 300-day limitations period, however, the record
reveals that she did not file a charge of discrimination with the
EEOC in a timely manner.
I. Calculating the Filing Deadline.
Defendant suspended Boucher, pending a termination hearing,
on April 9, 1997. Under defendant's supervision, he collected
his personal belongings from the school and never returned.
Thus, defendant contends that all of the discriminatory acts
directed at Kelley ended, at the very latest, on that date
(Kelley agrees that Boucher was the sole source of the sexual
harassment directed at her and concedes that the harassment ended
once he was caught and removed from the school). Accordingly,
defendant suggests that Kelley had until February 3, 1998 (i.e.,
300 days after April 9, 1997) to file her complaint with the
EEOC, which she failed to do.
Kelly, on the other hand, argues that her claim under Title
VII did not "accrue" until her "constructive discharge" in
October of 1997, when she resigned her teaching position due to
psychological and physical conditions relating to the harassment
she had suffered. Alternatively, she suggests that the
harassment to which she was subjected was "continuing" and did
not end with Boucher's termination in April, 1997. Rather, she
says that notwithstanding Boucher's absence from the school, she
10 continued to suffer the effects of his harassment into the Fall
of 1997, when she discovered Boucher's "old writings" in her
desk. Thus, she claims that the 300-day limitations period did
not begin to run until October of 1997 (when she resigned) or, at
the earliest, September of 1997 (when she discovered the last of
Boucher's harassing notes). The court disagrees.
First, it is important to note that Kelley's Title VII claim
is one by which she seeks compensation for a hostile work
environment. She has not advanced a claim for constructive
discharge. See generally Complaint, Count I. Thus, the date of
her alleged "constructive discharge" is not independently
relevant in calculating when the applicable limitations period
began to run. Instead, the court must focus on the last date on
which Kelley claims to have been the victim of sexual harassment.
And, as noted above, that date appears to have been, at the very
latest, April 9, 1997.
Even if Kelley's complaint could arguably be construed to
allege a claim for constructive discharge, she would not fair any
better. The court of appeals for this circuit has consistently
held that a claim for constructive discharge can only survive
upon proof that the conditions under which plaintiff worked were
"so arduous or unappealing, or [her] working conditions so
intolerable that a reasonable person would feel compelled to
forsake [her] job rather than to submit to looming indignities."
11 Vega v. Kodak Caribbean, Ltd., 3 F.3d 467, 480 (1st Cir. 1993).
See also Ramos v. Davis & Geek, Inc., 167 F.3d 727, 732 (1st Cir.
1999) ("We have long applied an 'objective standard' in
determining whether an employer's actions have forced an employee
to resign. The test is whether a reasonable person in the
employee's shoes would have felt compelled to resign.")
(citations and internal guotation marks omitted). Here, Kelley
has pointed to no evidence in the record from which a rational
trier of fact could reasonably conclude that, when she resigned
in October of 1997, defendant had made the conditions under which
she was working so intolerable that her decision to resign (to
the extent it was based upon the conditions of her employment)
was reasonable. See generally Tavares de Almeida v. Children's
Museum, 28 F.Supp.2d 682, 686-87 (D. M a . 1998). Nor has she
demonstrated that the defendant employer could have reasonably
foreseen that, despite its legitimate effort to stop the
harassment, she would discover, nearly six months after Boucher's
suspension, the offensive writings which had been in her desk
since at least the prior Spring. Stated somewhat differently,
Kelley does not allege that there were any additional steps that
defendant could have or reasonably should have undertaken to
prevent her from discovering Boucher's "earlier writings."
Finally, to avoid summary judgment with regard to a claim
for constructive discharge, Kelley would have to demonstrate that
her alleged constructive discharge occurred "within a reasonable
12 time after last being the subject of discrimination." Smith v.
Bath Iron Works Corp., 943 F.2d 164, 167 (1st Cir. 1991). In
Smith, the court of appeals concluded that a delay of roughly six
months between the date on which plaintiff was last subjected to
harassment and her subseguent resignation precluded any claim for
constructive discharge. Id. Accord Jett v. Dallas Indep. Sch.
Dist., 798 F.2d 748, 755-56 (5th Cir. 1986) (no constructive
discharge when plaintiff resigned five months after working in
allegedly intolerable conditions), modified on other grounds, 491
U.S. 701 (1989); Hirschfeld v. New Mexico Corrections Dept., 916
F.2d 572, 580 (10th Cir. 1990) (affirming district court's
rejection of constructive discharge claim where plaintiff did not
leave job until four months after alleged acts of
discrimination) .
Kelley has failed to demonstrate that a rational trier of
fact could reasonably conclude that: (a) the conditions of her
employment prior to her resignation in the Fall of 1997 were so
intolerable that her decision to resign was reasonable; (b)
defendant could or should have taken any further remedial steps
which might have prevented her from discovering Boucher's "old
writing;" or (c) her decision to resign as a teacher at Rochester
Middle School was made within a reasonable period of the date on
which she was last subjected to harassment. Thus, even if her
complaint alleged a claim for constructive discharge, defendant
would be entitled to judgment as a matter of law.
13 That Kelley discovered offensive and lewd writings authored
by Boucher prior to his departure (more than five months
earlier ) , does not amount to a new, discrete act of
discrimination or harassment. Instead, as Kelley seems to
recognize and concede in her complaint, the discovery of those
writings no doubt aggravated the injury and suffering she
experienced at Boucher's hands, but was not contemporaneous
harassment. See Complaint, para. 38 ("These symptoms were
further aggravated when the plaintiff Kate A. Kelley found old
writings inside her desk which she had not previously seen.") .
Conseguently, the date in October of 1997 when Kelley resigned is
not the point at which to start the running of the 300-day
limitations period; her earlier (and continuing) distress was no
doubt revisited when she discovered that artifact of Boucher's
earlier harassment, but one can hardly say that defendant was
aware of or permitted an act of harassment in October, having
resolved the problem back in April.
Boucher's sexual harassment of Kelley ended, at the very
latest, on April 9, 1997, when defendant properly and permanently
removed him from his position at the school. Notwithstanding her
subseguent discovery of Boucher's "old writings," the actionable
conduct for which defendant might be held liable ceased when it
took both reasonable and effective steps to stop the harassment
by investigating Kelley's complaints, cooperating with law
enforcement officers to discover the identity of the perpetrator,
14 and then terminating Boucher's employment. Thus, in order for
her to have filed a timely charge with the EEOC, Kelley must have
filed her charge of discrimination on or before February 3, 1998
(i.e., within 300 days of April 9, 1997).1
II. Charge of Discrimination v. Intake Questionnaire.
To support her claim that she filed her charge with the EEOC
on or before February 3, 1998, Kelley says that she filed a
"Charging Party Information" intake guestionnaire (which was
signed under oath) on January 21, 1998. While technically not a
"charge of discrimination" (as must be filed within the 300-day
limitations period), Kelley says that filing the intake
guestionnaire within the limitations period should be sufficient
and, in support of that thesis, she relies on Philbin v. General
Electric Capital Auto Lease, Inc., 929 F.2d 321 (7th Cir. 1991).
In Philbin, the Court of Appeals for the Seventh Circuit held
that a verified intake guestionnaire may, under certain
circumstances, constitute a "charge." And, while it does not
appear that the court of appeals for this circuit has yet
addressed the issue, a number of other courts have held that a
1 The EEOC also concluded that the limitations period began to run in April of 1997, when Boucher was suspended. See Exhibit 2 to defendant's response to plaintiffs' objection (document no. 10), Letter dated June 1, 1998 from EEOC to Kelley ("On April 8, 1997, the harasser was arrested and suspended. He never returned after April [9], 1997. The harassment did not continue after that date. You filed your charge . . . more than 300 days after April 1997. . . [Y]our charge is untimely."). Of course, experienced labor and employment attorneys, if not plaintiff herself, are well aware of the applicable limitations period.
15 verified intake questionnaire may constitute a valid "charge."
See generally Shempert v. Harwich Chemical Corp., 151 F.3d 793,
196 n.7 (8th Cir. 1998) (collecting cases), cert. denied, 119
S.Ct. 1028 (1999) .
So, again giving Kelley the benefit of the doubt, the court
will deem her intake questionnaire to have been a "charge" that
defendant engaged in discriminatory employment practices, as that
term of art is used in the applicable statute and regulations.
That, however, does not resolve the question concerning whether
Kelley complied with the pertinent regulations by filing the
intake questionnaire, or charge, in a timely fashion.
Title VII provides that charges "shall be in writing under
oath or affirmation and shall contain such information and be in
such form as the [EEOC] requires." 42 U.S.C. § 2000e-5 (b) . The
applicable regulations make clear that a charge of sexual
discrimination is timely if received by the EEOC within the
pertinent limitations period. See 29 C.F.R. § 1601.13. Thus, as
this court (Devine, J.) has previously held, a charge which is
mailed within the limitations period but not received by the EEOC
until after that period has lapsed is untimely. See Madison v.
St. Joseph Hospital, 949 F.Supp. at 960 ("Title VII provides that
charges 'shall be filed in writing under oath or affirmation and
shall contain such information and be in such form as the [EEOC]
requires.' The timeliness of the filing is determined by the
16 date on which the charge is received by that agency.") (emphasis
in original) (citations omitted). See also, Tavlor v. General
Telephone Co. of the Southwest, 759 F.2d 437, 440 (5th Cir. 1985)
("Our review of case construing Title VII filing provisions leads
inescapably to the conclusion that ''mailing, may not be construed
as ''filing' for the purposes of Title VII."); E.E.O.C. v. Dillard
Dept. Stores, 768 F.Supp. 1247, 1252 n.2 (W.D. Tenn. 1991) ("The
plaintiff's argument that [the] charge should be considered
received when mailed is without merit."); Johnson v. Host
Enterprise, Inc., 470 F.Supp. 381, 383 (E.D. Pa. 1979) ("Charges
of employment discrimination may, of course, be filed with the
EEOC by mail. The timeliness of filings, however, is determined
by the date on which the charge is received by the EEOC.")
(emphasis added) (citations omitted).
The rule advocated by Kelley, under which a complaint would
be deemed timely if mailed to the EEOC within the pertinent
limitations period lacks support in the unambiguous text of the
regulations, as well as the case law applying those regulations.
Thus, the court concludes that in order to be timely, a charge
must be received by the EEOC within the pertinent limitations
period.
The pertinent dates in this case are as follows: (1) on
January 20, 1998, Kelley completed the charging party information
guestionnaire; (2) on January 21, 1998, she says that it was
17 mailed to the EEOC; and (3) the EEOC received and date-stamped
that form on February 9 , 1998. Importantly, Kelley has pointed
to no evidence in the record which suggests that the EEOC might
have received her guestionnaire at any point prior to that date
(e.g., received the form prior to February 3, but failed to date
stamp it until nearly a week later). It is, therefore, plain
that Kelley's "charge" was not filed in a timely fashion (i.e.,
on or before February 3, 1998).
Conclusion
A federal court may not adjudicate a Title VII claim unless
a timely charge of discrimination has been filed with the EEOC.
See 42 U.S.C. § 2000e-5(e)(1). Even allowing Kelley the benefit
of treating her verified intake guestionnaire as a formal
"charge" and assuming that she is entitled to the benefit of the
300-day limitations period, the record demonstrates that she
still failed to file that document with the EEOC in a timely
fashion. And, she has not demonstrated that there is any
eguitable basis upon which to toll that limitations period.
In sum, the last date on which Kelley could have been
subjected to actionable workplace harassment, for which her
employer might be held liable, was April 9, 1997. The 300-day
limitations period lapsed on February 3, 1998. Kelley did not
file her "charge" (intake guestionnaire) with the EEOC until a
week later, on February 9, 1998. While the court is sympathetic
18 to plaintiff's situation and all she endured at Boucher's hands,
much of which could probably have been avoided if defendant had
undertaken investigative action earlier when she first
complained, Kelley simply did not file her charge with the EEOC
within the time allowed by law. Conseguently, defendant's motion
for summary judgment (document no. 6) as to count 1 of
plaintiffs' complaint (sexual harassment) must be and is granted.
As to count 2 of the complaint (state common law claim for loss
of consortium), the court declines to exercise its supplemental
jurisdiction. See generally Camelio v. American Federation, 137
F.3d 666 (1st Cir. 1998). Defendant's motion for summary
judgment on count 2 (document no. 13) is, therefore, denied as
moot.
The Clerk of the Court shall enter judgment in accordance
with the terms of this order and close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
July 22, 1999
cc: Robert A. Shaines, Esg. Donald E. Gardner, Esg.