
USCA1 Opinion

	




        September 26, 1996      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1165                                  DAVID JAMES WYATT,                                Plaintiff, Appellant,                                          v.                              THE BOSTON TEACHERS UNION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            David James Wyatt on brief pro se.            _________________            Matthew E. Dwyer, John P. Sheridan and Dwyer & Jenkins on brief            ________________  ________________     _______________        for appellee.                                 ____________________                                 ____________________                      Per Curiam.   Appellant David  James Wyatt  appeals                      __________            from  the dismissal  of  his action  against appellee  Boston            Teachers  Union.  He filed a complaint in the district court,            alleging  that  the  Union  had  retaliated  against  him  in            violation  of  Title VII  by  refusing  to represent  him  in            opposing his termination  from his  job as a  teacher in  the            Boston public  school system.  The  district court determined            that  appellant  had  not  filed  a  charge  with  the  Equal            Employment Opportunity Commission within 300 days as required            by  42 U.S.C.   2000e-5(e).  We agree with the district court            for  essentially  the  reasons  stated in  its  Order,  dated            December 14, 1995.  We add two comments.                      1.    Appellant  raises  on appeal  a  new  theory,            supported by new  facts, concerning his argument  that he did            not discover  that the Union  was refusing  to represent  him            until  June 24, 1994.  Appellant also raises the new argument            that he was unaware of his right to sue the Union under Title            VII until we  issued our opinion in the  appeal of his action            against the City of Boston and others.  See Wyatt  v. City of                                                    ___ _____     _______            Boston,  Nos. 93-2330  and  93-2367 (1st  Cir. September  15,            ______            1994).                      In the absence  of extraordinary circumstances,  we            do not consider arguments never presented to the lower court.            Clauson   v.   Smith,   823   F.2d   660,   666   (1st   Cir.            _______        _____            1987)(collecting cases).  We have reviewed the record and the            briefs, and  do  not find  such  circumstances here.    Thus,            appellant  has  waived appellate  consideration of  these new            assertions.  See id.                         ___ ___                      2.  Using  December 31, 1993 as  the time appellant            learned of  the  alleged  unlawful  practice  --  retaliatory            refusal of  representation --  we conclude that  the November            25,  1994 filing  with the  Massachusetts Commission  Against            Discrimination occurred 328  days after this  date.  This  is            outside  both the 240-day  limit for  filing charges  with an            appropriate  state agency  and the  300-day limit  for filing            charges  with the  EEOC.   See    EEOC v.  Commercial  Office                                       ___    ____     __________________            Products Co.,  486 U.S.  107, 110-11 (1988)  (with exceptions            ____________            not relevant here, a  complainant may not file a  charge with            the  EEOC until 60 days  have passed from  the initial filing            with  the proper state agency; thus, to meet the 300-day time            limit for  filing EEOC charges,  the state complaint  must be            filed  within 240 days of  the date the  alleged unlawful act            took place).                      The judgment  of the  district  court is  summarily                                                                _________            affirmed.  See Local Rule 27.1.                ________   ___
