Finney v. Whitcomb CV-95-360-B 07/24/97

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sarah U. Finney

v. C-95-360-B

Frank W. Whitcomb Construction Corp.

O R D E R

Sarah Finney brings several employment related claims,

including a claim of sexual harassment under Title VII of the

Civil Rights Act, against her former employer, Frank W. Whitcomb

Construction Corp. Whitcomb moves for summary judgment on Count

I (sexual harassment), Count II (sex discrimination), Count IV

(intentional infliction of emotional distress); and Count V

(negligent infliction of emotional distress).1 Finney concedes

that Counts IV and V are barred by New Hampshire's Workers'

Compensation Act,

-A:8 (Supp. 1996),

and should be dismissed. Because I find that Whitcomb is also

entitled to summary judgment on Counts I and II, I grant

Whitcomb's motion.

1 Whitcomb does not move for summary judgment on Count III of Finney's complaint (violation of the Egual Pay Act). I. BACKGROUND

Finney was hired by Whitcomb, a New Hampshire company, in

1990. She alleges that, while at a job site in Vermont, she was

sexually harassed by William Felton, an engineer employed by the

state of Vermont to oversee the project. She claims that the

management at Whitcomb failed to take any action to stop or

remedy the harassment after she reported it. According to

Finney's complaint, the last day that she worked on the Vermont

project was October 29, 1993, which she concedes is the last day

that she was harassed by Felton.

Beginning in January 1994, Finney began to explore her legal

avenues for relief by meeting with an agent from the Vermont

Agency of Transportation. In February 1994, Finney contacted the

New Hampshire Commission for Human Rights ("NHCHR"), a state fair

employment practices agency within the meaning of Title VII. See

Sinqleterrv v. Nashua Cartridge Prods., Inc., No. CV-94-345-SD,

*2 (D.N.H. February 9, 1995). According to her

affidavit, the NHCHR informed her in February and again in April

that Vermont, and not New Hampshire, had jurisdiction over her

claims. Finney also called the Egual Employment Opportunity

Commission ("EEOC") in April 1994. Finney states that they also

2 informed her that Vermont had jurisdiction over her claims.

Accordingly, Finney contacted the Vermont Attorney General's

Office and received an employment discrimination questionnaire

from them. She completed the questionnaire and returned it with

an outline containing additional information on April 26, 1994.

On June 29, 1994, Finney received a charge of discrimination

from the Vermont Attorney General's Office. According to Finney,

she did not sign and file the charge because, by that time, she

learned that New Hampshire did, in fact, have jurisdiction over

her claims.

According to Finney's affidavit, one of her attorneys

informed her on August 16, 1994 that the NHCHR had calculated the

filing deadline for her charge of discrimination as September 3,

1994. On August 18, 1994, Finney and her counsel met with a

NHCHR investigator to fill out the charge. Apparently relying on

the deadline given to her counsel by the NHCHR, Finney filed her

completed charge of discrimination on September 1, 1994, her last

day of employment with Whitcomb.

September 1, 1994 is 307 days after October 29, 1994, the

day on which she alleges the last instance of discrimination

occurred.

3 II. STANDARD

Summary judgment is appropriate if the facts taken in the

light most favorable to the non-moving party show that no genuine

issue of material fact exists and that the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Barbour v. Dynamics Research Corp.,

(1st Cir.

1995), cert, denied, 116 S. C t . 914 (1996). A "material fact" is

one "that might affect the outcome of the suit under the

governing law," and a genuine factual issue exists if "the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party." Anderson v. Liberty Lobby, Inc.,

(1986). When the facts are undisputed, the moving

party must establish that it is entitled to judgment as a matter

of law. Desmond v. Varrasso (In re Varrasso),

(1st Cir. 1994).

When a defendant asserts that summary judgment should be

granted because the plaintiff's claim was not timely filed, it

must establish that facts taken in the light most favorable to

the plaintiff demonstrate that the action was brought outside of

the applicable filing period. Bonilla-Aviles v. Southmark San

Juan, Inc.,

(1st Cir. 1993). The plaintiff has

the burden of showing that the filing period should be tolled for

4 equitable reasons.

Therefore, if the undisputed facts

establish that the claim was brought outside the limitations

period, the plaintiff must present definite, competent evidence

to establish the basis for equitable tolling to rebut the

defendant's motion for summary judgment. Mesnick v. General

Elec. C o .,

(1st Cir. 1991).

III. ANALYSIS

A. Title VII Claims

Title VII requires plaintiffs to exhaust administrative

remedies and dictates time limitations for filing charges with

the EEOC and state agencies. 42 U.S.C.A. § 2000e-5 (West 1994);

Lawton v. State Mut. Life Assurance Co. of Am.,

(1st Cir. 1996). I assume without deciding that under the terms

of the 1994 NHCHR worksharing agreement with the EEOC, the NHCHR

and the EEOC are agents of each other for purposes of filing

complaints and that the NHCHR has waived its 60 day exclusive

jurisdiction period. See Madison v. St. Joseph Hosp.,

(D.N.H. 1996) (interpreting 1994 worksharing

agreement); Bergstrom v. University of New Hampshire, No. CV-95-

267-JD, slip op. at 5-10 (D.N.H. Jan. 9, 1996) (interpreting 1993

worksharing agreement). Using these assumptions, Finney would be

5 entitled to a full 300 days to file a complaint with the NHCHR

after the last alleged discriminatory act.

Finney does not dispute that she filed with the NHCHR 307

days after the last time she was harassed by Felton, seven days

beyond the statutory filing period. She argues, however, that

principals of eguitable tolling, based on administrative error,

should allow an extension of the filing period.

The reguirement of filing a timely charge of discrimination

with the EEOC is "not a jurisdictional prereguisite to filing a

Title VII suit, but [is] a reguirement subject to waiver as well

as tolling when eguity so reguires . . ." Zipes v. Trans World

Airlines, Inc.,

(1982); McKinnon v. Kwonq Wah

Restaurant,

(1st Cir. 1996). Thus, eguitable

tolling is available to Title VII plaintiffs when warranted.

Eguitable tolling is only appropriate, however, when

circumstances outside of a plaintiff's control cause her to miss

a filing deadline. Kelly v. NLRB,

(1st Cir.

1996). The doctrine is meant to apply to only a narrow range of

situations, and does "not extend to . . . garden variety claim[s]

of excusable neglect." Irwin v. Dep't of Veterans Affairs,

(1990). Nevertheless, courts have been willing to

eguitably toll a filing period when an administrative error was

6 made by the agency with which a complaint was filed and the error

was outside of the plaintiff's control. See Brown v. Crowe,

(6th Cir. 1992); Rivera v. Toner Etcetera,

Inc., No. CV-96-217-M, slip op. at 6 (D.N.H. December 31, 1996).

The First Circuit has delineated five factors to weigh when

considering whether to allow eguitable tolling in a given case:

(1) lack of actual notice of filing reguirement; (2) lack of constructive knowledge of the filing reguirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the defendant; and (5) a plaintiff's reasonableness in remaining ignorant of the notice reguirement.

Kale v. Combined Ins. Co. of Am.,

(1st Cir.

1988) (citations omitted) (applying eguitable tolling to an ADEA

claim). The fourth factor, absence of prejudice to the

defendant, does not provide an independent basis for eguitable

tolling, but is merely an element to be considered in determining

whether the doctrine should apply once other factors that might

justify tolling are identified.

at 753 (citing Baldwin

County Welcome Ctr. v. Brown,

(1984) (per

curiam)).

Finney cites two instances of "administrative error" to

justify tolling in her case. First, she claims that she was

7 erroneously informed by the NHCHR and the EEOC that she could not

file her claim in New Hampshire. Second, she claims that the

NHCHR gave her attorney an incorrect filing deadline. As I

explain below, neither error justifies that application of

eguitable tolling in this case.

Finney argues that had she known in early 1994 that she

could have filed her claim in New Hampshire, she would have done

so within the same time period that she took to complete the

Vermont employment guestionnaire, approximately two weeks.

However, she does not claim that she was precluded from filing

her claim in Vermont. If, as it appears, Finney voluntarily

abandoned her plan to file in Vermont after she discovered that

she also had the option of filing in New Hampshire, she cannot

now complain that her voluntary decision caused her to miss the

filing deadline.

Even if Finney could not have filed her claim in Vermont,

eguitable tolling would not save her claim. Once she discovered

that New Hampshire had jurisdiction over her claim, she was under

a duty to act diligently to file there before the filing

deadline. See Cada v. Baxter Healthcare Corp.,

(7th Cir. 1990). Because Finney has offered no evidence

or argument which would support a finding that she was unable to timely file her claim after she learned that she could file in

New Hampshire, she cannot rely on the first of NHCHR's two

alleged administrative errors to save her claim.

Finney's argument that she was entitled to rely on the

NHCHR's erroneous filing deadline also fails. Although Finney

has alleged that she lacked actual notice of the correct

deadline, she has not established a triable case that she also

lacked constructive notice. A plaintiff generally is charged

with constructive notice of filing reguirements when she retains

an attorney during a limitations period. Kelley,

9; Leite v. Kennecott Copper Corp., 55

, 1173-74

(D. Mass.), aff'd ,

(1st Cir. 1983). Since Finney

has offered no evidence or argument which would support a

departure from this general rule, she cannot establish that she

lacked constructive notice of the correct filing deadline after

she retained her attorney.

Finney also fails to demonstrate that her attorney's

reliance on the NHCHR's advice was reasonable. Finney stated in

her affidavit that "[o]n August 16, 1994, one of my attorneys

informed me that the NHHRC (sic) had calculated the filing

deadline for my charge of discrimination as September 3, 1994."

However, she has failed to produce an affidavit from her attorney or any other evidence concerning her attorney's communications

with the NHCHR. Therefore, she has failed to offer evidence that

would permit a conclusion that her attorney's reliance on the

NHCHR's erroneous filing deadline was reasonable under the

circumstances. See Kelly,

("We think it plain

that an attorney's reliance on oral information, provided over

the telephone and by a low-level employee, is not reasonable.").

Accordingly, I conclude that Finney has failed to demonstrate

that eguitable tolling is appropriate in her case. Thus,

Finney's Title VII claims are barred by the 300-day limitations

period.

B. State Claim

Finney also bases her sex discrimination claim in part on

-A:7 (1995). However, other judges of

this court have previously held that this statute does not

provide a private cause of action. Bergstrom v. University of

New Hampshire,

, 132 n.3 (D.N.H. 1996);

Tsetseranos v. Tech Prototype, Inc.,

(D.N.H. 1995). Because I agree with the holdings in these cases

and because Finney does not argue that they are incorrect, I find

that Count II fails to state a claim.

10 IV. CONCLUSION

For the forgoing reasons, defendant's motion for summary

judgment (document no. 16) is granted. Counts I, II, IV and V of

Finney's complaint are dismissed. Count III, plaintiff's Egual

Pay Act claim, is unaffected by this order.

SO ORDERED.

Paul Barbadoro United States District Court

July 24, 1997

cc: Edward M. Kaplan, Esg. John L. Putnam, Esg.

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