
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2300                        BARBARA F. GREEN AND STANLEY R. GREEN,                               Plaintiffs, Appellants,                                          v.                                  TOWN OF BROOKLINE,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Barbara F. Green and Stanley R. Green on brief pro se.            ________________     ________________            Joslin Ham Murphy on brief for appellee.            _________________                                 ____________________                                    April 17, 1997                                 ____________________                      Per Curiam.   Appellants Barbara F.  and Stanley R.                      __________            Green filed a complaint  in the Massachusetts district court.            The complaint challenges the treatment Mrs. Green received at            the hands of her  employer, the Town of Brookline,  and cites            two  bases of  jurisdiction: (1)  42 U.S.C.    1983;  and (2)            Title  VII, 42 U.S.C.     2000e-3 and 2000e-5.   The district            court dismissed the  complaint due to  the expiration of  the            statute of limitations.  We affirm.                      1.     We  agree  with  the   district  court  that            appellants'     1983  claims  are time-barred.    "Local  law            determines the limitations  period for section  1983 claims."            Morris v. Government Dev.  Bank of Puerto Rico, 27  F.3d 746,            ______    ____________________________________            748  (1st Cir.  1994).    We  thus  look  to  the  three-year            Massachusetts  statute  of  limitations  for  personal injury            actions.  Street  v. Vose, 936  F.2d 38, 39  (1st Cir.  1991)                      ______     ____            (per curiam) (citing  M.G.L.c. 260,   2A).  When the cause of            action accrued, however, is  a federal question.  Id.  at 40.                                                              ___            In a case such as this, "the statute of limitations begins to            run when the  plaintiff learns of  the decision to  terminate            [her] employment.  . . ."   Rivera-Muriente v. Agosto-Alicea,                                        _______________    _____________            959 F.2d 349, 353 (1st Cir. 1992).                      Mrs.  Green learned  that the  Town had  decided to            terminate her on December 10, 1986.  This lawsuit, filed over            nine  years after  this  date, plainly  is  late.   The  same            conclusion results even  if we consider the Town's threats to                                         -2-            use certain  notes in  evidence in the  workers' compensation            case.  According  to the complaint, these threats  were first            made in 1990.   Because this is about six  years prior to the            initiation of the instant action, the complaint also is time-            barred in relation to these later charges.                      Finally, appellants  present no reason to  toll the            running of the  limitations period.   Even assuming that  the            attorney for the Town coerced Mrs. Green  into dismissing her            court  case  appealing  the  decision of  the  Civil  Service            Commission,  this  occurred in  1988.   There  simply  are no            factual allegations  that the  Town or anyone  acting on  its            behalf  did anything  to prevent  appellants from  filing the            present lawsuit.   See Pahlavi v.  Palandjian, 809 F.2d  938,                               ___ _______     __________            942-43 (1st  Cir. 1987) (in  the absence of  specific factual            allegations, a  plaintiff cannot claim that  duress tolls the            statute of limitations).                      2.   Title VII has two deadlines which are in issue            in this  case.   First,  an  individual in  a  state such  as            Massachusetts -- a "deferral" state with its own civil rights            law  and agency  --  must file  a  complaint with  the  Equal            Employment  Opportunity  Commission  (EEOC) within  300  days            after  the "alleged  unlawful employment  practice occurred."            42  U.S.C.   2000e-5(e).  See  also Lawton v. State Mut. Life                                      ___  ____ ______    _______________            Assurance  Co., 101 F.3d 218,  221 (1st Cir.  1996).  Second,            ______________            the  individual must  file an  action in  the  district court                                         -3-            within 90  days of receiving  a right to sue  letter from the            EEOC.  42 U.S.C.   2000e-5(f).                      "In  actions  brought  under  Title VII  .  .  .  a            plaintiff  must  plead   affirmatively  performance  of   the            conditions  precedent to  filing a  lawsuit."   2A J.  Moore,            Moore's Federal  Practice     9.04,  at 9-65  (2d  ed.  1996)            _________________________            (footnote omitted); Jackson v.  Seaboard Coast Line R.R. Co.,                                _______     ____________________________            678 F.2d 992, 1010 (11th  Cir. 1982).  Under Fed. R.  Civ. P.            9, which  governs the  pleading of  special  matters, "it  is            sufficient to  aver generally that  all conditions  precedent            have been performed or have occurred."  Fed. R. Civ. P. 9(c).                      However,  our  review  of the  record  reveals that            plaintiffs  never  met  their   burden  of  alleging  general                        _____            compliance with  Title VII's  filing requirements.   That is,            they  never stated in their complaint,  in their responses to            the  Town's motion  to dismiss,  or even  in their  briefs on            appeal, that they filed an EEOC charge concerning retaliation            within  300 days  of Mrs.  Green's termination and  that they            filed the federal  complaint within  90 days  of receiving  a            right  to sue letter.   Further, the record  does not contain            any documents from which such inferences can be drawn.                      The judgment of the district court is affirmed.                                                            ________                                         -4-
