Sweet v. Hadco and Breton CV-95-576-M 02/03/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Debora Sweet
v. Civil No. 95-576-M
Hadco Corporation and Robert Breton
O R D E R
Debora Sweet brings suit against her former employer, Hadco
Corporation, asserting gender discrimination in violation of
Title VII, 42 U.S.C.A. § 2000e, and a claim of constructive
discharge.1 Hadco moves for summary judgment on the grounds that
Sweet failed to exhaust her administrative remedies in a timely
manner as reguired by 42 U.S.C.A. § 2000e-5. Hadco also asserts
that Sweet cannot prove her constructive discharge claim. For
the reasons that follow, summary judgment is granted in part.
________________________ STANDARD OF REVIEW
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
1 Several of Sweet's claims were previously dismissed. She also sued her former fellow employee and supervisor, Robert Breton. 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 moving party first must show the absence of a genuine
issue of material fact for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986). If that burden is met, the
opposing party can avoid summary judgment on issues that it must
prove at trial only by providing properly supported evidence of
disputed material facts that would reguire trial. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). 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 29, 33 (1st Cir. 1995).
Accordingly, summary judgment will be granted only if the record
shows no trial worthy factual issue and that the moving party,
the defendant here, is entitled to judgment as a matter of law.
EEOC v. Green, 76 F.3d 19, 23 (1st Cir. 1996).
FACTUAL BACKGROUND
Sweet worked as a drill operator at Hadco Corporation from
October 1987 until January 1995. In 1990, she began to date her
supervisor, Robert Breton. The relationship developed and
included living together for a time. Sweet contends that she
attempted several times to end the relationship but was forced to
2 continue by Breton's abusive behavior at and outside of work. As
the relationship deteriorated and ended, Breton became more
abusive, even threatening to "blow her away" if she left him.
Although Sweet had sought help from Hadco1s Human Relations
office on occasion during tumultuous periods in the relationship,
after she ended the relationship in September 1993, her
complaints about Breton increased. Breton pressured her to
resume the relationship both at and outside of work.
At the end of November 1993, Sweet moved from the Tech
Center One building, where Breton was her supervisor, to a
temporary position on a Tech Center One job located across the
street at Salem Drill. Although Sweet worked in another
building, she remained an employee of Tech Center One and
returned to the Tech Center One building freguently. Breton
continued to harass Sweet with calls and letters and when he saw
her at work. He also checked on her through mutual friends.
Sweet contacted a lawyer about her work situation in December
1993, who recommended that she talk to Hadco management. Sweet
met with Cameron Ogden, Tech Center One plant manager, and Jim
Lewis, Human Relations manager, at the beginning of January 1994.
She explained her problems with Breton and Ogden told her that if
she would give him some time, he would remedy the situation and
she would have a lateral or better position.
3 Hadco issued a warning letter to Breton on January 5, 1994,
instructing him to stop all contact and communication with Sweet
or risk losing his job. Sweet reports that Breton stopped
contacting her directly after the January warning, but that
whenever she was in the Tech Center One building, he would follow
her and whistle in an "eerie" way. Sweet also says that Breton
denied her overtime pay in April 1994, but that Lewis rectified
the situation.
During this time. Sweet was friendly with Robert Grille,
another fellow employee at Tech Center One. Breton accused
Grille of having an affair with Sweet in November 1993, which
Grille denied, and threatened to inform Grille's wife. Grille's
wife filed for divorce in January 1994 naming Sweet as co
respondent on an adultery charge. Sweet and Grille began a
relationship at about the same time. Breton continued to show
hostility toward Grille at work including elbowing or pushing him
when they passed in hallways.
In June and July 1994, Sweet met with Jim Lewis and other
managers about her position at Hadco. Her temporary position was
scheduled to end that fall, and Hadco offered to return Sweet to
her former job at Tech Center One on the first shift, while
moving Breton to the third shift to minimize their contact.
Sweet was still concerned about contact with Breton and his anger
4 if he were transferred to the third shift. On the advice of her
therapist. Sweet decided not to return to her job at Tech Center
One. At that time. Sweet was represented by her present counsel,
who wrote to Hadco at the end of July about her employment. In
response, Lewis offered Sweet the same Tech Center One job and
another drill operator position in a different department at a
lower grade, but at her current pay. Sweet again declined the
jobs offered. Sweet applied for a purchasing clerk position at a
lower grade than her current position because the job was in
Derry rather than in Salem where Tech Center One was located.
She was not considered for that position, and stayed in her
temporary position at Salem Drill.
On August 19, 1994, Sweet obtained a restraining order
against Breton and provided a copy to the Hadco Human Resources
manager. Lewis responded that since Hadco had assigned Sweet to
work outside of Tech Center One and had offered her two jobs that
would minimize contact with Breton, which she refused, she was
responsible for avoiding contact while at work and that Hadco
would not take responsibility for enforcing the restraining
order. The letter stated that Breton was and would remain a
Hadco employee at Tech Center One. Thereafter, Sweet did not go
to the Tech Center One building, although she remained a Tech
Center One employee.
5 Beginning in the summer of 1994, Sweet was no longer
included in Tech Center One activities. In July and August, she
was taken off the Tech Center One safety committee, and she was
not invited to a Tech Center retirement party for an old friend.
During the fall, she was not included in an employee appreciation
day, a United Way meeting, or a plant sexual harassment meeting.
Finally, in November, she was excluded from a plant-wide
guarterly celebration.
In December 1994, a subpoena in the Grille divorce case was
served on Jim Lewis reguiring him to appear in court with Sweet's
personnel records. Sweet had moved her residence and changed her
telephone number to prevent Breton from contacting her and did
not want her present address and telephone number made public.
She explained her concern to Lewis and that she was contacting
her lawyer to have the subpoena guashed. Lewis told her that it
would take him two days to collect the information giving Sweet
time to obtain a court order. Sweet's lawyer called Lewis the
same day and asked him not to release the records. Despite his
assurances, Lewis delivered Sweet's records to Mrs. Grille's
lawyer before the subpoena reguired production and before Sweet
had a chance to obtain an order. Because Sweet's personnel file
had already been released, including her current address and
6 telephone number. Sweet's motion to quash the subpoena was denied
as moot.
Sweet ended her employment at Hadco on January 6, 1995. She
filed a complaint with the New Hampshire Commission on Human
Rights ("NHCHR") on February 8, 1995.
DISCUSSION
Hadco challenges Sweet's Title VII claim on the grounds that
her complaint was not timely filed with the NHCHR, a prerequisite
to maintaining her claim here. Hadco also asserts that Sweet
cannot show facts to support her constructive discharge claim.
The issues are addressed in order.
A. Title VII Claim
1. Filing period.
Title VII requires plaintiffs to exhaust administrative
remedies before filing a Title VII suit in federal court. Lawton
v. State Mutual Life Assurance Co. of America, 101 F.3d 218, 221
(1st Cir. 1996). The general rule requires complaints to be
filed with the Equal Employment Opportunity Commission ("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.
7 Commercial Office Products Co., 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.
Title VII's statutory time limits may be affected by the
terms of work sharing agreements between the EEOC and authorized
state agencies in 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). New Hampshire is a deferral state, meaning that it
has its own fair employment practices statute. New Hampshire
Revised Statutes chapter 354-A, and enforcement agency, the
NHCHR. See 42 U.S.C.A. § 2000e-5(c). The NHCHR has entered into
yearly work sharing agreements with the EEOC. See Madison v. St.
Joseph Hospital, No. 95-239-SD, 1996 WL 734873 at *3 (D.N.H.
August 28, 1996) .
Under the terms of the 1995 work sharing agreement relied on
by Hadco, 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 including when claims are filed with the NHCHR more than 240 days after the last violation. See 1995 EEOC-NHCHR Work
sharing Agreement at II, A and III, A, 1. Thus, any complaint
filed with the NHCHR is deemed as also filed with the EEOC. See
Madison, 1996 WL 734873 at *4. The effect of the dual-filing
rule and NHCHR's waiver of its exclusive jurisdictional period is
to allow claimants the full 300-day filing period. See id.
Accordingly, Sweet had 300 days from the last discriminatory
act to file her complaint. She filed on February 8, 1995. The
300-day period, therefore, began on April 14, 1994.
2. Timeliness of Sweet's administrative complaint.
While filing within the administrative filing period imposed
by Title VII is a statutory prereguisite to bringing a Title VII
suit in federal court, timely filing is not a jurisdictional
reguirement. Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
398 (1982). Like a statute of limitations, then, the eguitable
doctrines of waiver, tolling, and estoppel are applicable to the
filing period. Id. at 393. Thus, if a plaintiff can show that
she suffered discrimination that was part of a continuing
violation of Title VII she can "reach back" to conduct that
occurred outside of the filing period. Lawton, 101 F.3d at 221;
Sabree v. United Broth, of Carpenters and Joiners, 921 F.2d 396,
400 (1st Cir. 1990) .
9 Sweet contends that Breton's sexual harassment and other
discrimination against her began in 1992 and continued until she
left Hadco in January 1995. Even under a continuing violations
theory,2 " [p]laintiff bears the burden of demonstrating that at
least one discriminatory act occurred within the limitations
period." Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610 (1st Cir.
1994); accord Lawton, 101 F.3d at 221-22. Breton's "eerie"
whistling as he followed Sweet when she was in the Tech Center
One building between January and August 1994 appears to be the
only behavior violating Title VII and falling within the
limitations period that Sweet offers and that is supported in the
record.3
2 Two types of continuing violations are recognized: serial violations and systemic violations. Lawton v. State Mutual Life Assurance Co. of America, 101 F.3d 218, 221-222 (1st Cir. 1996).
3 Sweet states broadly that she experienced "a continuing hostile work environment that continued until the day she left Hadco" and that she "suffered guid pro guo sexual harassment by Mr. Breton every time that she attempted to leave him from 1992 through January 1995." She supports few specific incidents within the filing period (after April 14) with citations to facts in the record. Sweet asserts that Breton denied her overtime pay sometime in April, but she relies exclusively on her own deposition testimony which does not fix a date. Similarly, her assertion that Breton harassed her through mutual friends is not supported by citations to the record that establish that those incidents occurred after April 14. Sweet states that her exclusion from employee events was part of the hostile workplace she experienced, but she has not explained how those acts relate to gender discrimination. She also contends that Breton's mistreatment of Bob Grillo, and Grillo's divorce.
10 Although it is not entirely clear from Sweet's submissions
in opposition to summary judgment, she seems to contend that
Breton's whistling while following her constituted hostile
environment sexual harassment. Hostile environment sexual
harassment consists of "offensive, gender-based conduct that is
'severe or pervasive enough to create an objectively hostile or
abusive work environment--an environment that a reasonable person
would find hostile or abusive' and is subjectively perceived by
the victim to be abusive." Lattimore v. Polaroid Corp., 99 F.3d
456, 463 (1st Cir. 1996) (guoting Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993)). Incidents that are not explicitly
sexual may nevertheless constitute sexual harassment and create a
hostile environment if the abusive treatment is based on or aimed
at the gender of the victim and if the incidents otherwise meet
the standard of creating a hostile environment. See King v.
Hillen, 21 F.3d 1572, 1583 (Fed. Cir. 1994); Hall v. Gus Const.
C o ., 842 F.2d 1010, 1013 (8th Cir. 1988); Ruffino v. State Street
Bank and Trust Co., 908 F. Supp. 1019, 1036 n.28 (D. Mass. 1995).
Hostile environment discrimination claims typically reguire
were part of the defendants' harassment of her. As she has not explained how those occurrences discriminated against her because of her gender, those claims are also disregarded. See Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d at 179, 183 (1st Cir. 1989) (plaintiff bears the burden of presenting her theories clearly to have them considered).
11 a contextual examination because "whether an environment is
'hostile' or 'abusive' can be determined only by looking at all
the circumstances." Harris, 510 U.S. at 23. If Breton's
following her and whistling were considered in circumstantial
isolation, that conduct alone would not create a hostile work
environment. Isolated analysis is not appropriate, however.
Actions that occurred prior to the filing period may be
considered as background to determine whether actions within the
filing period constitute violations of Title VII.4 See, e.g..
United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977); Cortes
v. Maxus Exploration Co., 977 F.2d 195, 199-200 (5th Cir. 1992);
Mandv v. Minnesota Mining and Mfg., 940 F. Supp. 1463, 1469 (D.
Minn. 1996); Ruffino v. State Street Bank and Trust, 908 F. Supp.
1019, 1039 (D. Mass. 1995) .
Taking Breton's following Sweet and whistling in the light
most favorable to her, and in the context of his alleged abusive
and sexually harassing conduct prior to January 1994, Sweet could
reasonably have understood him to be continuing his previous
sexually harassing behavior. The apparent reason Sweet was the
4 The harassing conduct within the limitations period, eerie whistling and following, was new harassment aimed at Sweet, at least arguably discriminatory, and, therefore, was something more than the mere effect of Breton's prior conduct. See Kassave v. Bryant College, 999 F.2d 603, 606 (1st Cir. 1993); Ruffino, 908 F. Supp. at 1038.
12 target of Breton's attention was that she had spurned his sexual
interest in her. A related threat might reasonably be inferred
from his continuing inappropriate attention, particularly after
Hadco had clearly warned him to have no contact with Sweet.
Certainly Sweet and the Hadco managers perceived a continuing
threat from Breton; all seemed to agree that she could not
continue to work at Tech Center One with him. As a result, her
continued job opportunities at Hadco were restricted. That view
of Breton's conduct, again in the light most favorable to Sweet
at this early juncture, raises a trial worthy factual issue as to
whether his actions after April 14 continued to impose a hostile
work environment upon Sweet.
3. Application of the continuing violations theory.
Consideration of prior conduct as evidence of discrimination
occurring within the limitations period does not convert untimely
claims into timely ones. Timely filing as to one discriminatory
action is only the first step toward establishing a continuing
violation that would allow Sweet to "reach back" to recover for
conduct that occurred prior to the filing period. Under a
continuing violations theory. Sweet must be able to show that she
suffered discrimination that was either part of a series of
violations or was due to a systemic violation of Title VII.
13 Lawton, 101 F.3d at 221; Sabree, 921 F.2d at 400. Sweet seems to
rely only on a serial violations theory as to her claims based on
Breton's conduct, and accordingly only that theory is considered.
See Mack, 871 F.2d at 183 (plaintiff's burden to clearly present
the theory of her claims).
Serial violations "comprise a number of discriminatory acts
emanating from the same discriminatory animus, each of which
constitutes a separate wrong actionable under Title VII."
Lawton, 101 F.3d at 221. To recover for actions beyond the
filing period, once she has shown a discriminatory action within
the filing period. Sweet must show a "substantial relationship"
between the timely and untimely conduct. Sabree, 921 F.2d at
400. The most important factor to consider in determining
whether a substantial relationship exists is the degree of
"permanence" of the untimely acts, meaning the extent to which
the plaintiff was aware of her claims but failed to file a timely
administrative complaint. Id. at 402; Bergstrom v. University of
New Hampshire, 943 F. Supp. 130, 133 (D.N.H. 1996). In other
words, if the plaintiff knew that she had actionable claims but
suffered continuing discrimination without filing a complaint,
those acts are not substantially related to later actions within
the filing period. Id. Thus, Sweet must be able to establish
(1) that the earlier acts were not isolated events but related to
14 the acts on which she bases her timely claims, (2) that all were
motivated by the same intent to discriminate against her, and (3)
that a plaintiff would not have appreciated the discrimination
she experienced until the acts within the limitations period
occurred. See Smith v. Bath Iron Works Corp., 943 F.2d 164, 166
(1st Cir. 1991); Lawton v. State Mut. Life Assurance Co. of
America, 924 F. Supp. 331, 340 (D.Mass.), aff'd , 101 F.3d 218
(1st Cir. 1996).
In this case, the serial violations analysis begins and ends
with the third and most important factor: whether Sweet was on
notice of her claims before the filing period, precluding a
substantial relationship between timely and untimely acts. Sweet
does not deny that she was aware that Breton's conduct toward her
constituted harassment before April 1994, but she contends that
she relied on Hadco management's assurance that they would remedy
the situation with Breton. Conseguently, Sweet asserts, Hadco
should be eguitably estopped from asserting that she was aware of
her claim before the limitations period.
Eguitable estoppel may modify a Title VII administrative
filing period if "an employee is aware of his . . . rights but
does not make a timely filing due to his reasonable reliance on
his employer's misleading or confusing representations or
conduct." Kale v. Combined Ins. Co. of America, 861 F.2d 746,
15 752 (1st Cir. 1988) (discussing estoppel in ADEA context); accord
Lawton, 924 F. Supp. at 339 (estoppel in Title VII case) and
Ruffino, 908 F. Supp. at 1040-41 (same). In this case. Sweet
complained to Hadco management about Breton's harassment,
particularly after September 1993. She says that she complained
about Breton at least twice after she moved to Salem Drill at the
end of November. In December, Sweet contacted an attorney about
the harassment and Hadco's failure to remedy the situation.
On the advice of her attorney. Sweet met with Cameron Ogden,
Tech Center One plant manager, in an attempt to get Hadco to
intervene to control Breton. Their meeting was in early January
1994. Sweet says that she had little confidence in Ogden or
Hadco's willingness to do anything to help her, but that Ogden
gave her his personal guarantee that "everyone would come out of
this feeling good about themselves, that he could make things
happen if I just gave him a little time, and he would get me
either a lateral or a better position, all I had to do was give
him some time." Despite her doubts, she says she left the
meeting thinking that Ogden would do something.
Within days of the meeting, another Hadco manager sent
Breton the January 5, 1994, warning that he should have no
contact with Sweet or risk losing his job. In response to the
warning. Sweet contends, Breton stopped calling, writing, and
16 shouting at her, but began his following and whistling
harassment. That conduct, which Sweet recognized as harassment
and about which she complained to Hadco management, continued
through August 1994 when Sweet says she stopped going into the
Tech Center One building of her own volition. Nevertheless,
Sweet did not file her complaint with the NHCHR until February
1995 more than a year after the following and whistling began.
Based on these factual circumstances. Sweet cannot show that she
reasonably relied on Ogden's assurances to delay filing as long
as she did.
Because the record facts show that Sweet was aware of her
harassment discrimination claims more than a year before she
filed her NHCHR complaint, those claims were permanent then, and
she has not shown that reliance on Ogden's assurances or Hadco's
conduct reasonably delayed her filing. Accordingly, Sweet has
not established a continuing series of violations, and her claims
based on acts, conduct, and occurrences before April 14, 1994,
are time-barred.
B. Constructive Discharge
Hadco moves for summary judgment on Sweet's constructive
discharge claim on the grounds that she cannot prove the elements
of her claim. "It is well settled in this Circuit that, to
17 establish a claim of constructive discharge, the evidence must
support a finding that the new working conditions would have been
so difficult or unpleasant that a reasonable person in the
employee's shoes would have felt compelled to resign." Greenberg
v. Union Camp Corp., 48 F.3d 22, 27 (1st Cir. 1995) (internal
guotations omitted). Because the standard is an objective one, a
particular employee's sensitivity to a working environment is not
relevant. Id.
In response. Sweet argues that Jim Lewis's letters to her in
the summer of 1994 show that he (and therefore Hadco) intended to
terminate her. Then, she contends, Hadco excluded her from six
activities at Tech Center One from July through November 1994 and
Lewis turned over her personnel file in the Grillo divorce action
in December, all of which made her working conditions
intolerable. She resigned on January 4, 1995.
These factual circumstances, even taken in toto, however, do
not rise to the level sufficient to support a theory of
constructive discharge. See Harriston v. Chicago Tribune Co.,
992 F.2d 697, 705 (7th Cir. 1993) (exclusion from office
activities, unwarranted reprimands, and several adverse
employment assignments not intolerable so as to cause
constructive discharge). In addition, the events Sweet points to
are not the deeply demeaning and humiliating experiences
18 compelling resignation that ordinarily constitute constructive
discharge. See Greenberg, 48 F.3d at 27. Based on the record
Sweet presents, then, no rational jury could conclude that she
was compelled to resign due to unpleasant or difficult working
conditions. Summary judgment is granted on this claim in favor
of Hadco.
CONCLUSION
Hadco's motion for summary judgment (document no. 14) is
granted in part and denied in part. Sweet's Title VII claim is
limited to conduct and events that occurred after April 14, 1994,
and summary judgment is granted in Hadco's favor on her
constructive discharge claim.
SO ORDERED.
Steven J. McAuliffe United States District Judge February 3, 1997
cc: James W. Craig, Esg. William H. Barry, III, Esg. Charles A. Szypszak, Esg. Patricia Randall, Esg.