
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-
