

                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  &amp;                                                                              
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
