Kleine v. Connell Communications

• Court: District Court, D. New Hampshire
• Decided: December 30, 1996
• Docket: CV-96-294-M
• Status: Published

Opinion

Kleine v. Connell Communications CV-96-294-M 12/30/96 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Tonva Kleine

v. Civil No 96-2 94-M

Connell Communications, Inc. _____ and International Data Group

O R D E R

Tonya Kleine, appearing pro se, brings suit under Title VII

of the Civil Rights Act against her former employer alleging

sexual harassment and retaliation (for filing a previous claim

with the New Hampshire Commission on Human Rights ("NHCHR")).

The defendants move for judgment on the pleadings asserting that

Kleine failed to timely file her complaint. Because the

applicable time limit cannot be resolved on the current record,

defendants' motion is necessarily denied.

In considering a motion for judgment on the pleadings, the

court must accept all of the plaintiff's material allegations in

her complaint and all reasonable inferences in the light most

favorable to her. United States v. Rhode Island Insurers'

Insolvency Fund, 80 F.3d 616, 619 (1st Cir. 1996). Then, the

motion will not be granted unless all material facts are undisputed, leaving only questions of law. Nelson v. University

of Maine, 914 F. Supp. 643, 647 (D. Me. 1996). Thus, to be

successful on their motion for judgment on the pleadings,

defendants must be able to show that they are entitled to

judgment as a matter of law.1

Kleine filed a complaint with the New Hampshire Commission

for Human Rights ("NHCHR") in early October 1994 alleging sexual

harassment and retaliation against her for filing a complaint

with company management. Subsequently, Kleine alleges, she was

harassed in retaliation for her NHCHR complaint as well, and,

when she refused to quit, she was fired on February 1, 1995. She

considered filing a second complaint with the NHCHR based on

retaliation for her original complaint. After missing the filing

deadline with the NHCHR, however, Kleine filed her retaliation

complaint with the Equal Employment Opportunity Commission

("EEOC") which complaint was received on November 27, 1995.

After Kleine received the EEOC's notice of dismissal and right to

1 When parties submit matters outside the pleadings as part of a motion for judgment on the pleadings, the motion is to be considered as one for summary judgment. Fed. R. Civ. P. 12(c). Although defendants have submitted a deposition excerpt in support of their motion, it is not necessary and will not be considered. Thus, defendants' motion is not converted to one for summary judgment.

2 sue letter, she filed suit in this court, on June 5, 1996. It

appears to be undisputed that the last act of retaliation Kleine

alleges was her firing.

Title VII reguires plaintiffs to exhaust administrative

remedies before filing a Title VII suit in federal court. Lawton

v. State Mutual Life Assurance Co. of America, No. 96-1609, 1996

WL 678623 at *1 (1st Cir., Dec. 2, 1996). The general rule

reguires complaints to be filed with the EEOC within 180 days of

the discriminatory act, unless the complaint is first filed with

an authorized state agency, in which case it must be filed within

30 0 days. 42 U.S.C.A. § 2000e-5(e); EEOC v. Commercial Office

Products C o ., 486 U.S. 107, 110 (1988). Because authorized state

agencies have 60 days of exclusive jurisdiction within which to

conduct their own proceedings, a complaint must be filed within

240 days to meet the 300 day limit unless the state agency

terminates its proceedings within the 300 day period. 42

U.S.C.A. § 20003-5(c) ; EEOC, 486 U.S. at 111.

In this case, Kleine filed her complaint with the EEOC on

November 27, 1995. Her firing on February 1, 1995, is the last

discriminatory or retaliatory event alleged in her complaint.

Thus, her EEOC complaint was filed on the 299th day after the

last event. Under applicable statutory rules, then, her

3 complaint does not appear to be timely, as it was not first filed

with the NHCHR and was not filed with the EEOC within the 180 day

limit.

However, application of Title VII's statutory time limits

may be affected by the terms of worksharing agreements between

the EEOC and authorized state agencies in so-called "deferral

states." See, e.g., EEOC, 486 U.S. at 112; EEOC 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). Under

the terms of worksharing agreements, state agencies may waive the

60-day exclusive period with the effect that the state

proceedings terminate at the time of filing and provide the

claimant with the full 300-day period to file. See, e.g., EEOC,

486 U.S. at 114-122; Ford v. Bernard Fineson Development Center,

81 F .3d 304, 309-10 (2d Cir. 1996); EEOC v. Green, 76 F.3d at 23

n.6. In addition, when the EEOC and the state agency agree to

serve as the other's agent for filing purposes, a complaint filed

with the EEOC may be deemed to have been filed with the state

agency for purposes of the 300-day period. See EEOC v. Green, 76

F .3d at 23 n .5.

The terms of worksharing agreements may vary and each

agreement must be individually construed. See Russe11, 51 F.3d

4 at 751. Unfortunately, neither party has addressed or submitted

a copy of the applicable worksharing agreement between the NHCHR2

and the EEOC. Other judges in this district have held that under

the terms of NHCHR worksharing agreements, NHCHR and the EEOC are

agents of each other for purposes of filing complaints and that

NHCHR has waived the 60-day exclusive jurisdiction period,

allowing claimants the full 300 days to file complaints. See

Madison v. St. Joseph Hospital, No. 95-239-SD at *9-11 (D.N.H.

Aug. 28, 1996) (1994 worksharing agreement); Bergstrom v.

University of New Hampshire, No. 95-267-JD (D.N.H. Jan. 9, 1996)

(1993 worksharing agreement).

Defendants, the parties moving for judgment on the pleadings

here, have not filed a copy of the applicable worksharing

agreement and have not demonstrated that under its terms Kleine

failed to timely file her complaint. It follows that defendants

have not shown that they are entitled to judgment as a matter of

law .

Defendants' motion for judgment on the pleadings (document

no. 11) is denied.

2 The NHCHR is certified by the EEOC as an agency that meets Title VII criteria. 29 C.F.R. § 1601.80.

5 SO ORDERED.

Steven J. McAuliffe United States District Judge December 30, 1996

cc: Tonya Kleine, pro se Michele A. Whitham, Esq. Steven E. Hengen, Esq.