August 4, 1993    UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-1943

                     WANDWOSSEN KASSAYE,

                    Plaintiff, Appellant,

                              v.

                   BRYANT COLLEGE, ET AL.,

                    Defendants, Appellees.

                                         

                         ERRATA SHEET

   The  opinion  of this  Court issued  on  August 3,  1993, is
amended as follows:

   On  page  10,  line  2  of  first  full  paragraph,  replace
"indictating" with "indicating". 

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-1943

                     WANDWOSSEN KASSAYE,

                    Plaintiff, Appellant,

                              v.

                   BRYANT COLLEGE, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

         [Hon. Francis J. Boyle, U.S. District Judge]
                                                    

                                         

                            Before

                    Boudin, Circuit Judge,
                                         

               Campbell, Senior Circuit Judge,
                                             

                  and Stahl, Circuit Judge.
                                          

                                         

Peter Antell with whom J. Daniel  Lindley and Antell &amp;  Associates
                                                                  
were on brief for appellant.
Patricia K. Rocha  with whom Adler Pollock &amp; Sheehan  Incorporated
                                                                  
was on brief for appellees.

                                         

                        August 2, 1993
                                         

          CAMPBELL,   Senior  Circuit  Judge.    This  appeal
                                            

concerns   the  limitations  period   for  filing  employment

discrimination charges under Title VII.  Appellant Wandwossen

Kassaye was employed since 1986 as an associate professor  of

marketing by  Bryant College, a private  institution in Rhode

Island.  Kassaye is a black male and a United States national

born  in  Ethiopia.   In 1988,  Kassaye  applied for  and was

denied tenure by  Bryant.   Nevertheless, Bryant  reappointed

Kassaye as an associate  professor for the 1989-1990 academic

year.    He reapplied  for tenure  in  August 1989.   College

officials informed  Kassaye in writing on  December 18, 1989,

that he  would not be  granted tenure.  On  January 20, 1990,

appellee William  E. Trueheart, president of  Bryant College,

officially confirmed  the tenure denial and  notified Kassaye

that his employment would end on July 31, 1990.

          Kassaye  continued teaching  at Bryant  through the

spring semester.  On June  8, 1990, the marketing  department

chairman,  appellee Frank Bingham, sent Kassaye the following

memorandum:

          Please make arrangements  to vacate  your
          office no  later than July 1,  1990.  The
                               
          office  has  been  assigned   to  another
          faculty member who  will be moving  in on
          July 1, thus the reason for this request.
          If this presents a problem, please advise
          as  I  am  willing   to  do  one  of  the
          following:

               *    Have   Maintenance  pack   your
                    books,  etc.   in  cartons  and
                    store in a secure space

                             -3-

               *    Try to find  a temporary  space
                    for your belongings, which will
                    give you the option  of packing
                    the books, etc. yourself.  This
                    will   be    difficult   (maybe
                    impossible)  but  I will  do my
                    best if requested

          These "options" should  not be  necessary
          as the July 1 date is  a full three weeks
          away giving you ample opportunity to pack
          and   move.      Thank   you   for   your
          cooperation.

Kassaye protested the request to vacate his office before the

expiration  of his contract.   In  a June  26, 1990,  memo to

appellee  James  W.  Robinson,  vice  president  for academic

affairs, Kassaye wrote:

          I understand my  contract expires on July
          31, 1900.  [sic]   Until then, I continue
          to  honor  my contractual  obligations to
          the  College  and  perform  my  committee
          duties as  required.   In that  spirit, I
          have attended the CCAS interview sessions
          earlier this month.

          Needless to say,  I strongly protest  the
          request to vacate  the office before July
          31.    I  find  the action  a  breach  of
          contact [sic], and  further testimony  to
          the   continued   harassment  I'm   being
          subjected to.   I think what  was done is
          unprofessional and detestable.

On July 2, 1990, Bingham again wrote to Kassaye:

          I regret  that you  will not  vacate your
          office  as  I  requested.    Although the
          office  is  needed  badly to  accommodate
          several moves, I  will honor your request
          to remain until July 31.

          Although  I  recognize   that  you   have
          negative  feelings   about  being  denied
          tenure, your failure to  accommodate this
          move inconveniences only persons who were

                             -4-

          not   even   Bryant  employees   when  it
          happened.

Kassaye retained access to  his office until the last  day of

his employment, July 31, 1990.

          On  November 19,  1990, Kassaye  filed a  charge of

discrimination with  the  Rhode Island  Commission for  Human

Rights ("RICHR"), alleging that Bryant  College discriminated

against  him on  the basis  of his  race, color  and national

origin.  Kassaye  is automatically deemed  to have filed  the

same charge with the  Equal Employment Opportunity Commission

("EEOC") on January 18,  1991, sixty days after he  filed the

RICHR charge.  See 29 C.F.R.   1601.13(b).
                  

          The RICHR and the EEOC issued  right-to-sue letters

in  July and  October 1991,  respectively, and  Kassaye filed

this civil action for  injunctive and monetary relief  in the

United States District Court for the District of Rhode Island

on  October 16,  1991.   The  complaint  alleged that  Bryant

College  and college  administrators  William  E.  Trueheart,

James W.  Robinson, Michael  B. Patterson, and  Frank Bingham

violated  section 703(a)(1) of Title VII  of the Civil Rights

Act of 1964, 42 U.S.C.   2000e-2(a)(1) "by denying his tenure

and thereby terminating his  employment" because of his race,

color and national origin.   The complaint also alleged  that

                             -5-

the  tenure  denial  constituted,  under  Rhode  Island  law,

tortious conduct and breach of contract.1

          The  district court  granted  summary judgment  for

defendants on the Title VII claims on the ground that Kassaye

did  not file  his  charge of  discrimination  with the  EEOC

within  the 300-day limitations period set out in 42 U.S.C.  

2000e-5(e).      Lacking   any  other   basis   for   federal

jurisdiction, the district court dismissed  the pendant state

law  claims.  See  Newman v. Burgin,  930 F.2d  955, 963 (1st
                                   

Cir. 1991). 

          On  appeal, Kassaye  disputes the  district court's

conclusion  that his  EEOC  charge was  untimely  filed.   42

U.S.C.     2000e-5(e)  defines  the  limitations  period  for

charges of unlawful employment practices:

               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
          . . . , such charge shall  be filed by or
          on  behalf of the person aggrieved within

                    

1.   The complaint was amended once to add a copy of the EEOC
right-to-sue letter.   The  amended complaint is  referred to
herein as "the complaint."

                             -6-

          three  hundred  days  after  the  alleged
          unlawfulemployment
                           practiceoccurred. . . .2

It is undisputed that  the 300-day limitations period applied

here,3  and that the filing date of Kassaye's charge for EEOC

purposes  was January 18, 1991.   It is  also undisputed that

Kassaye received actual notice  of the tenure denial,  at the

latest,  by January 20,  1990.4  Thus,  Kassaye's EEOC charge

was timely only if "the alleged unlawful employment practice"

                    

2.   This portion of 42 U.S.C.   2000e-5(e) is now designated
as paragraph (1).  See Civil  Rights Act of 1991, Pub. L. No.
                      
102-166, Title I,   112, 105 Stat. 1071, 1078-79 (1991).  The
redesignation of this text and the  addition of new paragraph
(2), concerning seniority systems,  do not affect the outcome
of appellant's case.

3.   All parties assume    as the EEOC itself has declared   
that Rhode Island is  a deferral state for purposes  of Title
VII, and  thus that the 300-day period  applies here.  See 29
                                                          
C.F.R.     1601.70(a), 1601.74(a).   A deferral state  is one
with an "agency with  authority to grant or seek  relief from
such [unlawful employment] practice[s]."   42 U.S.C.   2000e-
5(e).   In a deferral state, the EEOC defers consideration of
a discrimination charge  until the  appropriate state  agency
has  had up  to sixty  days to act  on the  charge.   Id.; 29
                                                         
C.F.R.    1601.13(a)(3)-(4),  (b).   If the  aggrieved person
files  a  claim  first with  a  state  or local  agency  in a
deferral state, he has 300 days, instead of 180 days, to file
a charge with the EEOC.   42 U.S.C.   2000e-5(e); Cajigas  v.
                                                         
Banco de Ponce, 741 F.2d 464, 467 n.8 (1st Cir. 1984).  Given
              
the parties' agreement that Rhode Island is a deferral state,
we  need not resolve the issue  ourselves, but simply proceed
on that assumption.  Compare, e.g., Cajigas, 741 F.2d at 467;
                                           
Goldman v. Sears,  Roebuck &amp;  Co., 607 F.2d  1014, 1017  (1st
                                 
Cir. 1979).  

4.   It  is possible  that Kassaye  received final  notice on
December  18,  1989,  when  the vice  president  of  academic
affairs notified him of the tenure decision by memo.  We need
not determine  whether adequate  notice was received  on that
earlier date,  however, since even if  the limitations period
did  not commence until January 20, 1990, the EEOC charge was
still out of time.

                             -7-

occurred within 300  days before January  18, 1991.   Kassaye

concedes that if, as the district court held, the gravamen of

his complaint was the tenure denial, his charge was filed too

late  because it was not  filed until 363  days after January

20, 1990.  See Delaware State College v. Ricks, 449 U.S. 250,
                                              

258  (1980)  (holding  that  the  limitations  period  for  a

discrimination  charge based  on  tenure  denial begins  when

aggrieved person receives notice of  denial, not on the  last

day of employment).

          Kassaye's   administratively-filed   discrimination

charge,  and  his subsequent  civil  complaint  filed in  the

district court,  centered upon  the denial  of tenure.   Only

after  defendants  raised  the  limitations  problem  in  the

district  court, in  their motion  for summary  judgment, did

Kassaye  put forward  his  current theory:  that there  was a

continuing violation of  Title VII that ended within the 300-

day limitations period.5   If a Title  VII violation is of  a

                    

5.   Appellees do  not contest appellant's right to do so, so
we  shall  assume without  deciding  that  appellant was  not
precluded from raising the continuing violation theory in his
opposition  to summary  judgment.   See  Cajigas v.  Banco de
                                                             
Ponce, 741  F.2d 464, 468 n.12 (1st Cir. 1984).  But see Mack
                                                             
v. Great Atl. &amp; Pac. Tea Co., 871 F.2d 179,  183-84 (1st Cir.
                            
1989) (warning future litigants that the continuing violation
theory should be spelled out clearly in their complaints).  
     It is nonetheless noteworthy that the June 8th memo  was
neither  emphasized  nor  discussed in  appellant's  original
discrimination charge and complaint.   See Ricks, 449 U.S. at
                                                
257  n.8.  Appellant  wrote on the form  filed with the RICHR
that  the most  recent  act of  discrimination took  place on
January 20, 1990     the date he received official  notice of
the  tenure   denial.     His  description  of   the  alleged

                             -8-

continuing nature, the  charge of  discrimination filed  with

the appropriate agency may be timely as to all discriminatory

acts  encompassed by the violation  so long as  the charge is

filed  during  the  life  of  the  violation  or  within  the

statutory period  (e.g., 300  days) which commences  upon the

violation's  termination.  Mack v. Great Atl. &amp; Pac. Tea Co.,
                                                            

871 F.2d 179, 183 (1st Cir. 1989); Cajigas v. Banco de Ponce,
                                                            

741  F.2d 464, 469 (1st Cir. 1984); Goldman v. Sears, Roebuck
                                                             

&amp; Co., 607 F.2d 1014, 1018 (1st Cir. 1979).  
     

          There  are  two  kinds  of  continuing  violations:

systemic and serial.  Jensen v. Frank, 912 F.2d 517, 522 (1st
                                     

Cir.  1990).  Kassaye does not assert that what happened here

fits within  the former definition.  What  Kassaye now argues

is that the record discloses a series of discriminatory acts,
                                     

beginning at a time  unspecified and ending on June  8, 1990,

when Bingham asked  him to  vacate his office.   These  acts,

said  to constitute harassment of Kassaye on the basis of his

race, color  and national  origin, included assigning  him to

teach  a  class he  did not  wish  to teach,  relying  on the

evaluations  of white  peers  and students  in making  tenure

                    

discrimination, in  both the  charge form and  his complaint,
focused  almost  exclusively on  the  details  of the  tenure
denial.   Only one sentence on his discrimination charge form
mentioned  the request  that  he vacate  his  office a  month
early.  The complaint did  not even allege that the June  8th
incident occurred, but merely  referred to the discrimination
charge  form    which itself only mentioned the memo    as an
exhibit.

                             -9-

decisions, denying him tenure,  and asking him to  vacate his

office.   Because  the last  of  these purported  serial acts

occurred  on June  8, 1990,  Kassaye contends  that the  EEOC

charge was filed during the 300-day limitations period, viz.,

224 days after June 8, 1990.

          A  serial violation  is described  as "a  number of

discriminatory  acts emanating  from the  same discriminatory

animus,  each  act constituting  a separate  wrong actionable

under  Title VII."  Sabree v. United Bhd. of Carpenters Local
                                                             

33,  921 F.2d 396, 400  (1st Cir. 1990)  (quoting Jensen, 912
                                                        

F.2d  at  522).   The mere  effects  or consequences  of past

discrimination,  as  opposed   to  independently   actionable

violations  of Title  VII, are insufficient  to serve  as the

trigger of the limitations  period.  Ricks, 449 U.S.  at 258;
                                          

United  Air Lines, Inc. v.  Evans, 431 U.S.  553, 558 (1977);
                                 

Goldman,  607  F.2d at  1018.   "[T]he  critical  question is
       

whether  any present violation  exists."  Evans,  431 U.S. at
                                               

558 (emphasis in original).  

          The only  one of  this series of  alleged harassing

acts that occurred within the limitations period was the June

8,  1990, request  for appellant  to move  out of  his office

prior to the  termination of his  contract.  For  appellant's

continuing  violation theory to  succeed, that  incident must

have constituted an  independently actionable  discriminatory

                             -10-

act,  and not have been  merely a consequence  of the earlier

tenure denial.  Mack, 871 F.2d at 183.
                    

          We  do not think that Kassaye has raised a  genuine

issue of material fact as to whether the June 8  incident was

an actionable Title VII violation.   The ultimate question in

any  Title  VII  claim  is whether  the  defendant's  alleged

conduct was discriminatory.   St. Mary's Honor Ctr. v. Hicks,
                                                            

No. 92-602,  61  U.S.L.W. 4782,  4786 (U.S.  June 25,  1993);

Goldman, 607 F.2d at  1019.  However, nothing in  this record
       

suggests, directly  or indirectly,  that the request  to move

was  discriminatory.    The  request  was  not  on  its  face

unreasonable, given  the unrebutted need to accommodate other

faculty  members who were staying  on.  There  is no evidence

that,  by  asking Kassaye  to vacate  his  office on  July 1,

Bingham was treating Kassaye any differently from the  way he

had, or would have, treated other non-black and non-Ethiopian

professors  who had been denied tenure.  See, e.g., Mack, 871
                                                        

F.2d  at  182   (affirming  summary  judgment   dismissal  of

discrimination claim where plaintiff offered no evidence that

similarly   situated,  male   employees  were   treated  more

favorably  than she);  Cajigas, 741  F.2d at  468 (dismissing
                              

claim  because  plaintiff failed  to  allege  that employer's

refusal to offer equal pay  and promotions to her constituted

different  treatment  from  that  afforded  males  in similar

situations); Underwood v. Digital  Equip. Corp., 576 F. Supp.
                                               

                             -11-

213, 216  (D. Mass.  1983) (dismissing claim  where plaintiff

did  not   allege  that  his  former   employer  treated  him

differently from  the way  in which  it treated  other former

employees).

          Kassaye's  assertions  to  the  contrary   are  not

substitutes  for  concrete  evidentiary materials  indicating

differential treatment.   August  v. Offices  Unlimited, Inc.
                                                             

981 F.2d 576, 580  (1st Cir. 1992).  The only record evidence

regarding the office incident  are the three memos reproduced

in full supra, showing simply that Kassaye was asked to leave
             

his  office a month before  his contract expired  in order to

permit  another faculty  member  to move  in.   When  Kassaye

refused to move, he was told he could stay until his contract

ran out.   The request to move had been  politely phrased and

was accompanied by a stated willingness to take certain steps

helpful to Kassaye if moving out presented a problem.  In his

subsequent letter  honoring Kassaye's request  to stay  until

July  31,  Bingham  spoke of  needing  the  office  "badly to

accommodate several moves."  While Kassaye viewed the request

as "unprofessional and detestable," we are unable to see that

the  mere making of it  provided grounds for  an inference of

discrimination.  Asking a teacher whose contract was about to

expire to  vacate his office  a few weeks  early in  favor of

someone who  would be teaching next fall was a mere effect of

the past, allegedly discriminatory,  act of refusing to renew

                             -12-

appellant's employment at Bryant College.  It was the latter,

if anything, which provided grounds for complaint.

          Because  the  events  of   June  8,  1990  did  not

constitute an actionable violation of Title VII, there was no

continuing  violation extending into  the 300-day limitations

period.   The district court correctly  held that appellant's

EEOC  charge was  not timely  filed.   Because we  affirm the

district  court's  dismissal of  Kassaye's  complaint  on the

limitations ground,the other issuesraised by Kassayeare moot.

          Affirmed.  Costs to appellees.
                                        

                             -13-
