Rivera v. Tone Etcetera

• Court: District Court, D. New Hampshire
• Decided: December 31, 1996
• Docket: CV-96-217-M
• Status: Published

Opinion

Rivera v . Tone Etcetera CV-96-217-M 12/31/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sharon Rivera

v. Civil N o . 96-217-M Toner Etcetera, Inc. et a l .

O R D E R

Sharon Rivera brings suit against her former employer, Toner

Etcetera, Inc., and two individual supervisors alleging

discrimination in her workplace in violation of Title VII of the

Civil Rights Act. Rivera also asserts state law claims against

Toner and the individual defendants. Defendants move to dismiss

Rivera's Title VII claims on the grounds that her administrative

complaint was not timely filed and that Title VII does not permit

her claims against individual defendants. Defendants also move

to dismiss the state law claims as barred by New Hampshire's

workers' compensation statutes and for lack of jurisdiction. For

reasons that follow, defendants' motion is granted in part and

denied in part.

Rivera does not object to dismissal of her Title VII claims

against the individual defendants or her claims for negligent supervision and retention of employees. Accordingly, those

claims are dismissed.

The defendants challenge the timeliness of Rivera's

administrative filing and move to dismiss her Title VII claims on

that basis. Because River has submitted materials outside of the

pleadings in response, the motion to dismiss the Title VII claims

is considered as one for summary judgment. Fed. R. Civ. P.

12(b). See EEOC v . Green, 76 F.3d 1 9 , 20 (1st Cir. 1996).

Summary judgment is appropriate if the "pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(c). The court

interprets the record in the light most favorable to the

nonmoving party, the plaintiff in this case, and resolves all

inferences in her favor. McIntosh v . Antonio, 71 F.3d 2 9 , 33

(1st Cir. 1995); accord EEOC, 76 F.3d at 2 0 , 2 3 .

Defendants contend that Rivera's complaint against Toner

alleging sexual harassment was not timely filed with the New

Hampshire Commission on Human Rights ("NHCHR") and that the

principle of equitable tolling should not save the claim. Rivera

alleges that the discrimination she experienced occurred while

2 she was employed at toner from July 5 through October 1 5 , 1994.

Although Rivera's counsel filed her complaint with the NHCHR on

June 2 3 , 1995, and the complaint was received and docketed by the

NHCHR on that day, it was later misplaced. When Rivera's counsel

had not received confirmation from the NHCHR of the filing of the complaint, he contacted the NHCHR in August and was told to

refile. Accordingly, a new complaint, with a copy of the

original complaint, was filed on August 2 2 , 1995. John Corrigan,

Deputy Director of NHCHR, explained in a letter dated June 1 8 ,

1996, that "The original complaint, which was filed more than 180

days after the alleged date of discrimination, should have been

forwarded to the EEOC for investigation. Apparently the

complaint was mislaid."

Title VII requires plaintiffs to exhaust administrative

remedies before filing a Title VII suit in federal court. Lawton v . State Mutual Life Assurance C o . of America, N o . 96-1609, 1996

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

requires 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

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

Products Co., 486 U.S. 1 0 7 , 110 (1988). Because authorized state

3 agencies have 60 days of exclusive jurisdiction within which to

conduct their own proceedings, a complaint must be filed within

240 days of the last discriminatory event to meet the 300 day

limit unless the state agency terminates its proceedings within

the 300 day period. 42 U.S.C.A. § 2000e-5(c); EEOC, 486 U.S. at

111. Whether a complaint is timely filed under an applicable

state limitations period does not affect the timeliness of filing

for purposes of the EEOC. EEOC, 483 U.S. at 124.

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 1 9 , 23 (1st Cir. 1996);

Russell v . Delco Remy 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 filed. See, e.g., EEOC, 486 U.S. at 114-122; Ford v . Bernard

Fineson Development Center, 81 F.3d 3 0 4 , 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 state agency may be deemed

4 to have been filed simultaneously with the EEOC 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 Russell, 51 F.3d

at 751. Unfortunately, neither party has submitted a copy of the

applicable worksharing agreement between the NHCHR1 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 .

S t . Joseph Hospital, N o . 95-239-SD at *9-11 (D.N.H. Aug. 2 8 ,

1996) (1994 worksharing agreement); Bergstrom v . University of

New Hampshire, N o . 95-267-JD (D.N.H. Jan. 9, 1996) (1993

worksharing agreement).

As the moving party, Toner bears the burden of demonstrating

that it is entitled to judgment as a matter of law. It is likely

that the applicable New Hampshire worksharing agreement would

provide that Rivera's claim was deemed filed with the EEOC upon

the initial June filing with the NHCHR, in which case, the EEOC

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

5 filing would be within the 300-day limit. However, without the

parties' attention to the worksharing agreement, this legal

question cannot be resolved.

If the worksharing agreement were not construed to provide

for simultaneous filing in this case, however, it would be

appropriate to apply the principles of equitable tolling to allow

late filing. Under the circumstances presented here, it would

not serve the purposes of Title VII to bar Rivera's claim because

of an administrative error at NHCHR. See Brown v . Crowe, 963

F.2d 895, 899-900 (6th Cir. 1992); but see Breen v . Norwest Bank

Minnesota, N.A., 865 F. Supp. 5 7 4 , 578-79 (D. Minn. 1994).

CONCLUSION

Accordingly, Counts Five and Six in plaintiff's complaint

are dismissed, Counts One, Two, and Three are dismissed as to the

individual defendants only. The remaining claims are not

dismissed. Defendants' motion to dismiss (document n o . 3 ) is

granted in part and denied in part.

6 SO ORDERED.

Steven J. McAuliffe United States District Judge December 3 1 , 1996

cc: James H . Gambrill, Esq. Debra Weiss Ford, Esq.