
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-1571                       EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,                                Plaintiff - Appellant,                                          v.                            DONALD E. GREEN, LAW OFFICES,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            John  F. Suhre,  Attorney, with  whom C. Gregory  Stewart, General            ______________                        ___________________        Counsel, Gwendolyn Young Reams, Associate General Counsel, and Vincent                 _____________________                                 _______        J. Blackwood, Assistant General Counsel, were on brief for appellant.        ____________            Nancy  S.  Shilepsky, with  whom  David  J.  Burgess  and Dwyer  &            ____________________              __________________      ________        Collora, were on brief for appellee.        _______                                 ____________________                                   February 9, 1996                                 ____________________                      STAHL, Circuit Judge.   On December 29, 1993, Ollie                      STAHL, Circuit Judge.                             _____________            Osinubi, a female paralegal  at the Law Offices of  Donald E.            Green  ("Green"),  filed a  Title  VII  charge against  Green            alleging  sexual  harassment   and  constructive   discharge.            Osinubi  filed   her  charge   with   the  Equal   Employment            Opportunity  Commission ("EEOC")  191  days  after  the  last            alleged act of discrimination.  After investigating Osinubi's            charge, the  EEOC brought  this action  against Green in  the            United   States   District   Court   for  the   District   of            Massachusetts  alleging  sexual   and  racial  harassment  in            violation  of Title VII of  the Civil Rights  Act of 1964, 42            U.S.C.   2000e et seq.   Green moved to dismiss the complaint                           __ ___            under Fed. R. Civ. P.  12(b)(6), arguing that Osinubi's claim            was  untimely,   having  been   filed  outside   the  180-day            limitations  period outlined  in section  706(e)(1) of  Title            VII,  42 U.S.C.   2000e-5(e)(1).   The district court agreed,            and  because  Green's  Motion  to  Dismiss presented  matters            outside the pleadings, the  court treated it as a  motion for            summary judgment and granted summary judgment for Green.  The            EEOC appeals.  For the reasons discussed below, we reverse.                                            I.                                          __                                      BACKGROUND                                      __________            A.  Title VII            _____________                      Under section 706(e)(1), a charge of employment            discrimination generally must be filed with the EEOC within            180 days of the last alleged act of discrimination.  42                                         -3-                                          3            U.S.C.   2000e-5(e)(1).1   However, if a claimant initially            institutes proceedings with a state or local agency, a charge            can be filed with the EEOC up to 300 days after the            discriminatory act.  Id.                                 ___                      Section 706(c) provides that where an alleged            discriminatory employment practice has occurred in a so-            called "deferral state" (a state that has its own anti-            discrimination laws and enforcement agency), the deferral            state has sixty days of exclusive jurisdiction over the            claim, and only after the sixty days have expired or the            proceedings have been "earlier terminated" can the charge be            filed with the EEOC.  42 U.S.C.   2000e-5(c).2  The sixty-                                            ____________________            1.  In relevant part, section 706(e)(1) reads:                                    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  or to                      institute   criminal   proceedings   with                      respect  thereto  upon  receiving  notice                      thereof, such charge shall be filed by or                      on  behalf of the person aggrieved within                      three  hundred  days  after  the  alleged                      employment practice occurred . . . .            42 U.S.C.   2000e-5(e)(1).               2.  In relevant part, section 706(c) reads:                      In  the  case  of  an   alleged  unlawful                      employment practice occurring in a State,                                         -4-                                          4            day period of exclusive jurisdiction is intended to "give            States and localities an opportunity to combat discrimination            free from premature federal intervention."  EEOC v.                                                        ____            Commercial Office Prods. Co., 486 U.S. 107, 110 (1988).  Many            ____________________________            state agencies, in order to facilitate the federal processing            of charges, have entered into "worksharing agreements" with            the EEOC in which the state agency agrees to waive its right            to the sixty-day period of exclusive jurisdiction for certain            categories of claims.                      Massachusetts is a deferral state and the            Massachusetts Commission Against Discrimination ("MCAD") is            the agency responsible for enforcing Massachusetts's anti-            discrimination laws.  The EEOC and the MCAD have entered into            a Worksharing Agreement to avoid duplication of effort by            apportioning the responsibilities for processing charges.                                              ____________________                      .  . .  which has  a State  or local  law                      prohibiting   the   unlawful   employment                      practice  alleged   and  establishing  or                      authorizing a State or local authority to                      grant or seek relief from such practice .                      . .  no charge  may be filed  under [this                      section] by the  person aggrieved  before                      the  expiration  of   sixty  days   after                      proceedings  have  been  commenced  under                      State   or   local   law,   unless   such                      proceedings have  been earlier terminated                      . . . .             42 U.S.C.   2000e-5(c).                                         -5-                                          5            B.  Facts            _________                      In reviewing a motion for summary judgment, we            recite the facts in the light most favorable to the non-            moving party.  See Mesnick v. General Elec. Co., 950 F.2d                           ___ _______    _________________            816, 822 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992).                                      _____ ______                      Green hired Osinubi as a paralegal in October of            1992.  Osinubi later left Green's employment allegedly            because a work environment fraught with sexual harassment            made work intolerable.  On December 29, 1993, Osinubi filed a            charge of sexual harassment and constructive discharge with            the EEOC.  Osinubi did not file a separate charge with the            MCAD.                      At the top of her EEOC charge form, in the space            provided for naming the state or local agency, if any,            Osinubi typed "Mass Comm Against Discrimination."  Osinubi            failed, however, to mark a box in the lower left-hand corner            that stated, "I want this charge filed with both the EEOC and            the State or local Agency, if any."  Osinubi also indicated            on the charge form that the latest date that discrimination            took place was June 20, 1993, 191 days prior to her filing            the charge.  After investigating the charge, the EEOC            commenced this sexual harassment and race discrimination            action in federal district court on December 7, 1994.                      On February 8, 1995, Green moved to dismiss the            complaint under Fed. R. Civ. P. 12(b)(6), contending that the                                         -6-                                          6            EEOC's claim was time-barred because of Osinubi's failure to            file her charge within 180 days of the last alleged act of            discrimination.  Green further maintained that the EEOC could            not avail itself of the extended 300-day limitations period            because the extension only applies to claimants who have            first filed with the state agency and Osinubi's charge was            never filed with the MCAD.  To support this factual            proposition, Green attached to its motion the affidavit of            Jane Brayton, executive assistant to the MCAD Commissioners,            stating that her review of the MCAD computer files revealed            no record of Osinubi's charge having been filed with the            MCAD.                      On March 6, 1995, the EEOC filed its Opposition to            the Motion to Dismiss and attached the affidavit of Elizabeth            Grossman, an EEOC trial attorney.3  In her affidavit,            Grossman stated, inter alia, that the EEOC had forwarded a                             _____ ____            copy of Osinubi's charge to the MCAD on December 29, 1993.             Grossman supported this statement with a copy of the EEOC's            charge transmittal form for Osinubi's charge, dated 12/29/93            and addressed to the MCAD.  The form, however, was not signed            by an officer of the MCAD indicating the MCAD's receipt.                                              ____________________            3.  Grossman  attached  to her  affidavit  the following  six            exhibits:   a copy of Osinubi's charge,  her notes of a phone            conversation   with  Green's  attorney,   the  EEOC's  charge            transmittal form addressed to  the MCAD for Osinubi's charge,            the  EEOC-MCAD Worksharing  Agreement,  letters from  Green's            attorney to the  EEOC investigator, and the EEOC's  letter of            determination.                                          -7-                                          7                      On March 13, 1995, Green moved to strike the charge            transmittal form and that portion of Grossman's Affidavit            regarding the EEOC's forwarding of Osinubi's charge.  Green            contended that the charge transmittal form was            unauthenticated, did not prove filing with and receipt by the            MCAD, and that Grossman has no personal knowledge of the            EEOC's forwarding of Osinubi's charge to the MCAD.                      On March 23, 1995, the EEOC filed its Opposition to            the Motion to Strike.  The EEOC responded that Grossman could            attest to routine EEOC procedures and thereby authenticate            the charge transmittal form and that Osinubi's charge was            constructively filed with the MCAD when the EEOC forwarded it            to the MCAD on December 29, 1993.  In the alternative, the            EEOC argued that even if the MCAD's receipt of Osinubi's            charge was required to initiate MCAD proceedings, it could            verify such receipt with the attached affidavit of Walter W.            Horan, the EEOC Program Coordinator for the MCAD.  In his            attached affidavit, Horan stated that he was the MCAD's            custodian of records of EEOC charges forwarded to the MCAD            and that MCAD records indicated that the MCAD received a copy            of Osinubi's charge on January 6, 1994.  Horan attached to            his affidavit a signed copy of the charge transmittal form            acknowledging the MCAD's receipt of Osinubi's charge.                                           -8-                                          8            C.  District Court Opinion            __________________________                      On March 29, 1995, the district court issued its            opinion resolving the Motion to Dismiss and the Motion to            Strike.  The court began its opinion by noting that because            matters outside the pleadings were presented, it was            converting Green's motion to dismiss for failure to state a            claim to a motion for summary judgment.  The district court            had not previously notified the parties of its intention to            convert.  The court then explained that to qualify for the            extended limitations period, Osinubi or the EEOC on Osinubi's            behalf must have initially filed charges with the MCAD.  The            court found, however, that neither Osinubi nor the EEOC had            done so.  With respect to Osinubi, the court viewed her            failure to check the box on the EEOC charge form as evincing            a preference not to have her charge filed with the MCAD.                      The EEOC, the court found, had also failed to file            Osinubi's charge with the MCAD.  The court assumed arguendo                                                               ________            that Grossman's contested attestation that the EEOC had            forwarded Osinubi's charge to the MCAD was admissible.  The            court held, however, that merely forwarding the charge to the            MCAD was not sufficient to initiate MCAD proceedings and            thereby trigger the extended limitations period; proof that            the MCAD actually received the forwarded charge also was            necessary.                                           -9-                                          9                      Despite Horan's verification of the MCAD's receipt            of Osinubi's charge, the district court found that the EEOC            had not contested Brayton's assertion that the MCAD had no            record of receiving Osinubi's charge.  Accepting this            "uncontested" fact as true, the court reasoned as follows:             because the MCAD never received a copy of Osinubi's charge, a            precondition to invoking the 300-day extended limitations            period had not been satisfied; thus, the general 180-day            limitations period applied, and the EEOC's complaint was            time-barred.  The district court made no mention of the Horan            Affidavit and did not explain the reason for its failure to            consider it.                          Finally, the district court dismissed the EEOC's            argument that paragraph II.A. of the EEOC-MCAD Worksharing            Agreement ("[the MCAD] designates [the EEOC] as its agent for            the purpose of receiving charges") allows MCAD proceedings to            be initiated upon the EEOC's receipt of a charge and without                                  ______            additional notice to the MCAD.  Citing Hamel v. Prudential                                                   _____    __________            Ins. Co., 640 F. Supp. 103, 107 (D. Mass. 1986), the court            ________            held that filing with the state agency is a precondition to            invoking the extended limitations period and that to allow            otherwise, e.g., by way of worksharing agreement, would be            inconsistent with the scheme Congress established.                                         -10-                                          10                                         II.                                         ___                                      DISCUSSION                                      __________                      On appeal, the EEOC argues that the district court            erred in granting summary judgment because:  (1) in paragraph            II.A. of the EEOC-MCAD Worksharing Agreement, the MCAD            designated the EEOC as its agent for receiving charges and            therefore MCAD proceedings were initiated when the EEOC            received Osinubi's charge, thereby qualifying Osinubi for the            extended limitations period and (2) even if actual receipt by            the MCAD was required to commence MCAD proceedings, the Horan            Affidavit provided ample evidence that the MCAD received            Osinubi's charge to contradict the Brayton Affidavit and            create a genuine issue of material fact.                        Because we find the EEOC's second argument            dispositive, we do not consider its first claim except to            offer the following observation from our examination of the            EEOC-MCAD Worksharing Agreement.  While Title VII4 and the                                            ____________________            4.  Title  VII encourages  cooperation between  the EEOC  and            state and local agencies  and authorizes the formalization of            such  cooperative  efforts in  written  agreements.   Section            705(g)(1)  empowers the  EEOC  "to cooperate  with and,  with            their consent,  utilize  regional, State,  local,  and  other            agencies."    42  U.S.C.    2000e-4(g)(1).    Section  709(b)            provides that "[i]n furtherance of such cooperative  efforts,            the Commission  may enter  into written agreements  with such            State  or  local agencies."   42  U.S.C.    2000e-8(b).   The            Supreme Court has interpreted these sections to "envision the            establishment of  some sort of worksharing agreements between            the  EEOC  and  state  and  local  agencies"  and  to  permit            provisions within  these worksharing agreements  "designed to            avoid unnecessary  duplication of  effort or waste  of time."            EEOC  v.  Commercial Office  Prods.  Co., 486  U.S.  107, 122            ____      ______________________________                                         -11-                                          11            case law of other circuits5 support the conclusion that            worksharing agreements can permit state proceedings to be            automatically initiated when the EEOC receives the charge, it            is unclear from the language of the EEOC-MCAD Worksharing            Agreement whether the EEOC and the MCAD intended MCAD            proceedings to be initiated upon the EEOC's receipt.6                                            ____________________            (1988).            5.  See Griffin v. City  of Dallas, 26 F.3d 610,  612-13 (5th                ___ _______    _______________            Cir. 1994) (holding  that, under the  terms of a  worksharing            agreement between  the EEOC and the Texas Commission on Human            Rights ("TCHR"),  the EEOC's  acceptance of  a charge  as the            TCHR's agent instituted state  proceedings within the meaning            of section 706(e)(1)); Hong v. Children's Memorial Hosp., 936                                   ____    _________________________            F.2d  967, 970-71  (7th Cir.  1991) (holding  that "workshare            agreement can alone effect both initiation and termination of            state proceedings and that, as  a result, plaintiffs may file            with the EEOC without first filing with the [state agency]");            Sofferin v.  American Airlines, Inc., 923 F.2d  552, 559 (7th            ________     _______________________            Cir.  1991)  (holding  that "a  worksharing  agreement  could            provide that a filing  with the EEOC simultaneously initiates            and terminates state proceedings"); Petrelle v. Weirton Steel                                                ________    _____________            Corp.,  953 F.2d 148, 152 (4th  Cir. 1991) (conceding without            _____            deciding that  plaintiff "may  be correct in  arguing that  a            work sharing agreement can  be crafted to authorize automatic            implementation of the requirements of [the ADEA equivalent to            section 706(e)(1)]").            6.  The  EEOC  and  the MCAD  would  be  wise  to revise  the            language  of  their Worksharing  Agreement  to clarify  their            intent.   Rather  than explicitly  providing that  the EEOC's            receipt  of  charges  on  the MCAD's  behalf  initiates  MCAD            proceedings  for  purposes  of  section  706(e)(1), paragraph            II.A.  states that  the EEOC  will be  the MCAD's  "agent for            purposes  of receipt."   That  phrase, however,  supports two            readings:  that the EEOC will act as the MCAD's mailbox, date            stamping  and accepting mail on the MCAD's behalf or that the            EEOC's receipt  of a charge also  initiates MCAD proceedings.            The  EEOC  and the  MCAD  should  also address  the  apparent            ambiguity arising from the Worksharing Agreement's failure to            define terms such as "appropriate charges" in paragraph II.D.            and  to  distinguish  the  "advance  waivers"  of   paragraph            III.E.11. from the other waivers of paragraph III.E.1-10.                                         -12-                                          12                      After reciting the standard of review, we turn our            attention to the EEOC's second argument.  We review a grant            of summary judgment de novo and are guided by the same                                __ ____            criteria as the district court; a grant of summary judgment            cannot stand on appeal "unless the record discloses no            trialworthy issue of material fact and the moving party is            entitled to judgment as a matter of law."  Alexis v.                                                       ______            McDonald's Restaurants of Mass., Inc., 67 F.3d 341, 346 (1st            _____________________________________            Cir. 1995).                      Whether Osinubi's charge enjoys the extended            limitations period and is thereby timely filed depends on            whether the MCAD received a copy of Osinubi's charge.7  The            parties have put this material fact in dispute by submitting            two competing affidavits:   Brayton's assertion that the MCAD            has no record of receiving Osinubi's charge and Horan's            attestation to the MCAD's receipt of Osinubi's charge and            charge transmittal form denoting the same.  Accordingly,            because the record before the district court posed a genuine            issue of material fact, summary judgment could have been            granted for Green only if the district court acted within the            sphere of its discretion in failing to consider the Horan            Affidavit.                                              ____________________            7.  Because the  EEOC does  not contest the  district court's            ruling that forwarding a charge to the MCAD is not sufficient            to  initiate MCAD  proceedings,  we need  not decide  whether            anything less  than the  MCAD's receipt, such  as the  EEOC's            mere forwarding, initiates MCAD proceedings.                                         -13-                                          13                      Ordinarily, the district court has broad authority            to prescribe the evidentiary materials it will consider in            deciding a motion for summary judgment.  See United States v.                                                     ___ _____________            Parcels of Land, 903 F.2d 36, 45-46 (1st Cir. 1990).  We are            _______________            reluctant to second-guess the district court in this area and            review such decisions only for a clear abuse of discretion.             See id. at 45. Nonetheless, we conclude that on the very            ___ ___            unusual circumstances of this case, the district court            overstepped its authority and abused its discretion in            failing to consider the Horan Affidavit.                      The unusual circumstances that motivate this            decision include:  (1) the district court's failure to notify            the parties of its intention to convert Green's Motion to            Dismiss into a motion for summary judgment, (2) the EEOC's            attachment of the Horan Affidavit to a filing that was            directly related to the Motion to Dismiss, and (3) the            prejudice to the EEOC from the court's failure to give notice            of its intention to convert.  We discuss each in turn.                      Fed. R. Civ. P. 12(b) has been interpreted to            require the district court to expressly notify the parties of            its intention to convert.  See Chaparro-Febus v.                                       ___ ______________            International Longshoremen Ass'n, Local 1575, 983 F.2d 325,            ____________________________________________            332 (1st Cir. 1992).  In an effort to be pragmatic, this            court has excused such a failure when it is harmless.  Id.                                                                   ___            (holding the failure harmless "when the opponent has received                                         -14-                                          14            the affidavit and materials, has had an opportunity to            respond to them, and has not controverted their accuracy").             We decline to excuse the district court in the instant case,            however, as we find that its failure to notify the EEOC and            Green of its decision to convert the Motion to Dismiss to one            for summary judgment prejudiced the EEOC because the district            court failed to consider the Horan Affidavit.                          Although the district court never explained its            failure to consider the Horan Affidavit in its summary            judgment order or referred to the Horan Affidavit in any way,            we presume that once it denied the Motion to Strike, the            court saw no need to consider the EEOC's Opposition to the            Motion to Strike and accordingly overlooked the Horan            Affidavit referred to therein and attached thereto.  The            Opposition to the Motion to Strike, however, was directly            related to the Motion to Dismiss; the district court had to            resolve the Motion to Strike in order to determine which            affidavits were properly before it on summary judgment.  As            such, the Opposition to the Motion to Strike was a filing to            which a party reasonably might attach evidentiary materials            opposing the Motion to Dismiss.8  Having failed to notify                                            ____________________            8.  In  its  Opposition to  the  Motion to  Strike,  the EEOC            argued that should the  court grant the Motion to  Strike the            Grossman  Affidavit, it  should consider  the  attached Horan            Affidavit  in its place.  While it would have been preferable            for  the EEOC  to  have attached  the  Horan Affidavit  to  a            separate  motion   requesting  the  court   to  consider  the            affidavit as newly submitted evidence, the Horan Affidavit is                                         -15-                                          15            the parties of its intention to convert, the district court            at a minimum should have considered a filing like the Horan            Affidavit that had reasonably been attached to an opposition            that was directly related to the Motion to Dismiss.9                        Had the district court followed the prescribed            approach of Rule 12(b) and notified the parties of its intent            to convert, the EEOC would almost certainly have had the            opportunity to ensure that the district court consider the            Horan Affidavit.  When a court informs the parties of its            intention to convert, ordinarily it provides the parties with            a minimum of ten days, pursuant to Fed. R. Civ. P. 56(c), in            which to augment previous filings.  Had the district court so            notified the parties in the instant case, the EEOC could have            resubmitted the Horan Affidavit, attached to an opposition to            the converted motion for summary judgment, and thereby            guaranteed its consideration.10  Similarly, had the            district court specified which submissions it would consider                                            ____________________            sufficiently  related  to  the  Motion to  Strike,  that  its            attachment  to  the Opposition  to  the Motion  to  Strike is            reasonable.              9.  In  so holding, we do  not require the  district court to            scour ancillary  filings for hidden  and potentially relevant            affidavits.   A  court need  only refer  to those  filings in            which a  party reasonably might include  materials in support            of or in opposition to the motion to dismiss.            10.  Local  Rule  56.1  of  the  District   of  Massachusetts            requires a  district court to consider  evidentiary materials            filed as exhibits to the opposition to the motion for summary            judgment.                                           -16-                                          16            in making its summary judgment decision, the EEOC could have            filed the Horan Affidavit in compliance therewith.                        As it turned out, however, the district court's            failure to notify the parties of its intention to convert            left the parties in the dark.  Under this unique set of            circumstances, where the district court's failure to notify            the parties of its intention to convert was prejudicial and            the Horan Affidavit was attached to a filing directly related            to the Motion to Dismiss, the district court's failure to            consider the Horan Affidavit was an abuse of discretion.                                           III.                                         ____                                      CONCLUSION                                      __________                      Because we find that the Horan and Brayton            Affidavits presented the district court with a genuine issue            of material fact, we vacate the district court's order                                 ______            granting summary judgment for Green and remand for further                                                    ______            proceedings consistent with this opinion.                                         -17-                                          17
