
USCA1 Opinion

	




          January 11, 1996      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1333                                PATRICIA A. STANISLAS,                                Plaintiff, Appellant,                                          v.                    CIGNA and INSURANCE COMPANY OF NORTH AMERICA,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Michael A. Ponsor, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Timothy J.  Ryan  with whom  Bradford  R.  Martin, Jr.  and  Ryan,            ________________             _________________________       _____        Martin,  Costello,  Leiter, Steiger  & Cass,  P.C.  were on  brief for        ______   _________________________________________        appellant.            Michael A. Davis for appellees.            ________________                                 ____________________                                 ____________________                 Per Curiam.  In this diversity case, plaintiff-appellant                 __________            Patricia A. Stanislas appeals from the district court's grant            of summary judgment in favor of defendant-appellees CIGNA and            its  wholly  owned  subsidiary  Insurance  Company  of  North            America  ("ICNA") on  a sexual  harassment claim  under Mass.            Gen.  L. ch. 151B.   The district court  found that Stanislas            failed to comply with the statute of limitations contained in            Mass. Gen.  L. ch. 151B,    5.   Our review  of the  grant of            summary  judgment is plenary, and  we read the  record in the            light  most favorable  to  the party  contesting the  summary            judgment.  See,  e.g., Cambridge Plating Co. v.  Napco, Inc.,                       ___   ____  _____________________     ___________            991 F.2d 21, 24 (1st Cir. 1993).                 Stanislas alleged that her immediate supervisor, John A.            Cvejanovich, engaged  in repeated  acts of  sexual harassment            towards  her  beginning in  November  1990.   Stanislas,  the            office  administrator  of ICNA's  Springfield, Massachusetts,            field  litigation  office,  and  Cvejanovich,   the  managing            attorney, last  worked together on April 26, 1991, the Friday            before Cvejanovich departed on a one-week  vacation.  On that            day, according to Stanislas' affidavit,  Cvejanovich demanded            that Stanislas sleep with him or find someone else who would.                 On  April  30,  1991,  Stanislas  reported Cvejanovich's            conduct to  another  attorney  in  the office,  who  in  turn            notified  ICNA's area supervisor, John  Gilfoyle.  On May 2nd                                         -2-                                         -2-            and  3rd,  two ICNA  attorneys,  Gilfoyle  and Rob  Gilbride,            investigated  Stanislas' claims.   Gilfoyle instructed all of            the office employees  to stay home on  May 6th, Cvejanovich's            first day back  at work; when  Cvejanovich reported to  work,            Gilfoyle  confronted  him  with  Stanislas'  allegations  and            offered  him the  choice  of resigning  or being  terminated.            Cvejanovich resigned.                   When the office employees, including Stanislas, reported            to work, Gilfoyle and Gilbride told them that Cvejanovich was            no  longer employed by ICNA.  The employees were also advised            to  keep the matter  confidential, and they  were warned that            the legal consequences of discussing the incident would be on            the employees' heads.                    Stanislas  filed  a  complaint  with  the Massachusetts            Commission  Against Discrimination  ("MCAD")  on October  30,            1991,  and  on June  22, 1992,  brought  the instant  suit in            federal  district court.    This appeal  concerns  Stanislas'            claim under Mass. Gen. L. ch. 151B,   4(16A), which makes  it            unlawful for  any employer "to sexually  harass" an employee.            On that  claim, the  district court granted  summary judgment            for  defendants because  Stanislas filed  her MCAD  complaint            more than 6 months after the last incident of harassment.                 Before initiating a court action alleging a violation of            section 151B,  a plaintiff must  file a  complaint with  MCAD            within six  months after  the alleged act  of discrimination.                                         -3-                                         -3-            See Christo v.  Edward G. Boyle  Insurance Agency, Inc.,  525            ___ _______     _______________________________________            N.E.2d 643, 645 (Mass. 1988);  Mass. Gen. L. ch. 151B,     5,            9.  "In the absence of  a timely complaint to the MCAD, there            may be  no resort to the courts."   Sereni v. Star Sportswear                                                ______    _______________            Manufacturing Corp., 509 N.E.2d 1203, 1204 (Mass. 1987).  The            ___________________            last  alleged incident  of harassment  occurred on  April 26,            1991, but Stanislas'  complaint with MCAD was not filed until            October 30, 1991, four days after the six-month cut-off date.                 Stanislas challenges  this conclusion on  three grounds.            First, she  argues that  the district court  misconstrued the            nature of her claim.  M.G.L. ch. 151B,   1(18) defines sexual            harassment as:                 Sexual  advances, requests  for sexual  favors, and                 other verbal or physical conduct of a sexual nature                 when  (a)  submission  to   or  rejection  of  such                 advances,   requests  or  conduct  is  made  either                 explicitly  or  implicitly a  term or  condition of                 employment or  as a basis for employment decisions;                 (b) such  advances,  requests or  conduct have  the                 purpose or effect  of unreasonably interfering with                 an individual's  work  performance by  creating  an                 intimidating,  hostile,   humiliating  or  sexually                 offensive work environment. . . .            Stanislas argues that  while the last  incident of "quid  pro            quo"  harassment (as defined in clause (a)) occurred on April            26,  the  "hostile  environment" harassment  (as  defined  in            clause (b)) continued until Stanislas knew that the threat of            further harassment was removed, that is, until May 6, 1991.                 This  argument  is  unavailing.    Sexual  harassment is            defined  as "[s]exual  advances, requests for  sexual favors,                                         -4-                                         -4-            and  other  verbal or  physical conduct  of a  sexual nature"            having the  effect of  (inter alia) creating  a hostile  work                                    __________            environment.  It is the acts having the specified effect that                                    ____            constitute the harassment.  There is no indication here  that            there was any delay between the  last act and its effect,  so            the act  was ripe for  a complaint.   The last act  of sexual                                                           ___            harassment alleged  by Stanislas occurred on  April 26, 1991,            and  the six month  limitations period  runs from  that date.            Cf. Ching v. MITRE Corp., 921 F.2d 11, 14 (1st Cir. 1990).            ___ _____    ___________                 Second,  Stanislas argues  that  her claim  is protected            under  804 C.M.R.    1.03(2),  which  provides that  "the six            month  requirement  shall not  be a  bar  to filing  in those            instances  where facts  are alleged  which indicate  that the            unlawful conduct  complained of  is of a  continuing nature."            Conduct may be continuing if it involves an ongoing policy or            practice  of  the  employer  which,  if  prolonged  into  the            limitations period, permits the suit.   Jensen v. Frank,  912                                                    ______    _____            F.2d 517,  523 (1st Cir. 1990).   But there is  no claim here            that Cvejanovich's conduct was part of any policy or practice            of the defendants.                 Alternatively, a serial violation  may occur where there            are "a number of discriminatory acts emanating from the  same            discriminatory animus," Sabree v. United Broth. of Carpenters                                    ______    ___________________________            and  Joiners, 921  F.2d  396, 400  (1st  Cir. 1990)  (quoting            ____________            Jensen, 912 F.2d at  522), but "[i]n order for  the violation            ______                                         -5-                                         -5-            to be  actionable, at least  one act in the  series must fall                                         ______________________            within  the limitations  period."   Sabree,  921 F.2d  at 400                                                ______            (emphasis  added).   In the  instant case,  the final  act of            harassment alleged occurred on April 26, 1991; in fact, there            was no professional contact between Cvejanovich and Stanislas            after that date.                 Third,  Stanislas  argues  that  the  warning  given  by            Gilfoyle and  Gilbride that she keep  the matter confidential            constitutes justification  for equitable modification  of the            statute of limitations.  The statute of limitations under ch.            151B,    5,  is  subject  to  equitable  modification.    See                                                                      ___            Christo, 525  N.E.2d at 645.   The basis  urged here  is that            _______            defendants unfairly discouraged Stanislas from exercising her            rights.   Cf. Felty  v. Graves-Humphreys  Co., 785  F.2d 516,                      ___ _____     _____________________            519-20 (4th Cir. 1986).                 Because this issue  was first raised  in a motion  under            Fed. R. Civ. P. 60(b)(6) for reconsideration  of the district            court's  grant of  summary judgment,  we review  the district            judge's  determination only  for  abuse of  discretion.   See                                                                      ___            Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988).            ________    _____________            There  is  no  evidence  that the  warning  by  Gilfoyle  and            Gilbride was  inappropriate in  light of the  risks presented            (e.g., defamation) or that it  was intended to discourage the             ____                                         -6-                                         -6-            filing  of a  complaint  with MCAD.1   We  think that  it was            within  the sound discretion of the trial court to decline to            reopen the case to entertain  this belated equitable claim of            very doubtful merit.                 Affirmed.                 ________                                            ____________________                 1Nor is it clear  that the warning had any  such effect.            As  a matter of fact, Stanislas consulted with an attorney at            least several days prior to the expiration of the limitations            period.                                         -7-                                         -7-
