Kelley v. SAU #54 CV-98-439-M 07/22/99 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Kate A. Kelley and Richard J. Kelley, Plaintiffs

v. Civil No. 98-439-M

School Administrative Unit #54, Defendant

O R D E R

Kate Kelley brings this action against her former employer.

School Administrative Unit #54, alleging that she was subjected

to a hostile work environment which eventually forced her to

resign from her teaching position in Rochester, New Hampshire.

She seeks compensatory and punitive damages under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seg. Her

husband, Richard, also seeks damages under New Hampshire's common

law for loss of consortium.

Defendant asserts that Kelley failed to file a charge of

discrimination with the New Hampshire Commission for Human Rights

("NHCHR") within 180 days of the last alleged violation and also

failed to file a charge of discrimination with the Egual

Employment Opportunity Commission ("EEOC") within 300 days of the

alleged violation. Accordingly, defendant argues, because

Kelley's claims were not filed with the EEOC in a timely fashion,

she cannot pursue her Title VII claims in this court. As to the

state common law claim filed by Kelley's husband, defendant asserts that it is barred because the spouse of an alleged civil

rights victim has no right to pursue an ancillary cause of action

for loss of consortium.

Finally, defendant argues that even if Kelley may proceed

with her Title VII claim, she is barred from seeking additional

damages for injuries sustained as a result of a hostile work

environment because a state jury already awarded her full and

fair compensation for those injuries. On those grounds,

defendant moves for summary judgment as to both counts of

plaintiffs' complaint.

Standard of Review

Summary judgment is appropriate when the record reveals "no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). When ruling upon a party's motion for summary judgment,

the court must "view the entire record in the light most

hospitable to the party opposing summary judgment, indulging all

reasonable inferences in that party's favor." Griggs-Ryan v.

Smith,

(1st Cir. 1990).

The moving party "bears the initial responsibility of

informing the district court of the basis for its motion, and

identifying those portions of [the record] which it believes

demonstrate the absence of a genuine issue of material fact."

2 Celotex Corp. v. Catrett,

(1986) . If the

moving party carries its burden, the burden shifts to the

nonmoving party to demonstrate, with regard to each issue on

which it has the burden of proof, that a trier of fact could

reasonably find in its favor. See DeNovellis v. Shalala, 124

F .3d 298, 306 (1st Cir. 1997).

At this stage, the nonmoving party "may not rest upon mere

allegation or denials of [the movant's] pleading, but must set

forth specific facts showing that there is a genuine issue" of

material fact as to each issue upon which he or she would bear

the ultimate burden of proof at trial. I d . (guoting Anderson v.

Liberty Lobby, Inc.,

(1986)). In this context,

"a fact is 'material' if it potentially affects the outcome of

the suit and a dispute over it is 'genuine' if the parties'

positions on the issue are supported by conflicting evidence."

Intern'1 Ass'n of Machinists and Aerospace Workers v. Winship

Green Nursing Center,

(1st Cir. 1996)

(citations omitted).

Factual Background

For purposes of its motions for summary judgment, defendant

does not contest the factual allegations set forth in plaintiffs'

complaint. Accordingly, at this juncture, the court will assume

the truth of those allegations.

3 In September of 1993, Kelley began working for defendant as

a teacher in the Rochester Middle School. Shortly thereafter,

someone began defacing personal items in her office (such as

photographs) and subjecting her to vulgar and sexually-oriented

graffiti. Kelley says that she reported these incidents to the

school's principal, who said that it was probably just a middle

school student and that she should get used to such adolescent

conduct. Despite her repeated reports of vandalism and

harassment, the school conducted no investigation into Kelley's

allegations. The perpetrator continued his obscene and vulgar

conduct throughout the 1993-1994 and 1994-1995 school years, as a

result of which Kelley suffered mental anguish and emotional

distress.

In an effort to end the harassment Kelley switched jobs,

assuming the duties of the school's librarian. That position

included a private office, which could be locked when she was not

present. Nevertheless, the perpetrator gained access to Kelley's

office and the harassing, demeaning, and offensive conduct

persisted. At that point, because students did not have access

to her locked office, Kelley began to suspect that the harassment

was being conducted by a fellow faculty member or other school

employee. Kelley again reported the repeated acts of harassment

to school officials, but no administrative investigation was

undertaken, nor was any report filed with the local police.

4 At the beginning of the 1996-1997 academic year, the

harassment resumed. In response to the perpetrator's continued

defacing of her personal photographs, Kelley removed all such

items from her desk. Nevertheless, the harassment continued, and

the perpetrator began leaving clippings from newspapers and

magazines of women who resembled Kelley. On them he wrote

sexually charged and highly offensive comments.

Toward the end of the academic year, in March of 1997,

Kelley again reported the perpetrator's actions, this time to Dr.

Raymond Yeagley, Superintendent of the Rochester School District.

She told Yeagley that although she had initially attributed the

incidents to student "pranks," she was now concerned that the

harassment may be coming from another employee of the school

district. Yeagley told Kelley that her report would be fully

investigated and suggested that they involve the Rochester Police

Department. In his affidavit, Yeagley says that Kelley expressed

uncertainty as to whether she wished to involve the police.

A few days later, however, Kelley contacted the Rochester

Police Department on her own, and that department promptly began

an investigation. As part of its investigation, and with

Yeagley's cooperation, the police placed a video surveillance

camera in Kelley's office. On April 4, 1997, Kelley came to work

and noticed that a framed picture of her and her son had been

defaced. She contacted the police, who retrieved the

5 surveillance video. The video was clear — the school's

custodian, Alphonse Boucher, entered Kelley's office, removed the

picture from its frame, drew on Kelley's breasts with a pen, and

returned the picture to her desk.

On April 8, 1997, police interviewed Boucher, following

which they obtained a warrant for his arrest. The next day,

Yeagley suspended Boucher from his position as custodian, pending

a termination hearing by the Rochester School District. Under

defendant's supervision, Boucher removed his personal belongings

from the school and never returned.

In an affidavit submitted in connection with a related state

civil action, Kelley testified that the harassment stopped after

Boucher was removed from the school in April of 1997. See

Exhibit B to Defendant's motion for summary judgment (document

no. 6), at para. 7. Nevertheless, shortly after returning for

the start of the 1997-1998 academic year, Kelley claimed that she

could no longer work at the school because of all that she had

endured, see

and because in September of 1997 (more than

five months after Boucher had been removed), she discovered "old

writings in her desk which she had not previously seen."

Complaint at para. 38. Those "old writings" consisted of obscene

drawings and lewd comments, which Kelley concedes were, in all

likelihood, authored by Boucher and left in her desk at some

point before he was discharged. In October of 1997, Kelley

6 submitted her resignation, saying that she could no longer

continue her employment at the school as a result of all that she

had gone through.

Plaintiffs later filed suit in Strafford County (New

Hampshire) Superior Court, alleging claims against both the

Rochester School District and Boucher. The trial court dismissed

the claims against the school district as barred by the state's

workers' compensation law, but her claims against Boucher

proceeded to trial. The jury returned verdicts against Boucher

in favor of Kate Kelley and Richard Kelley (on his loss of

consortium claim).

It does not appear that Kelley ever filed a charge of

discrimination with the New Hampshire Commission for Human

Rights, the state's fair employment agency. See

& 1601.80; N.H. Rev. Stat. Ann. 354-A:3. However, on

January 20, 1998, Kelley completed a "Charging Party Information"

guestionnaire, which she says was mailed to the EEOC on January

21, 1998 (the record suggests that the EEOC actually received

that form on February 9, 1998, more than 300 days after the date

on which Boucher was removed from the school and the harassment

apparently ceased). It was not until February 24, 1998, that

Kelley mailed a formal charge of discrimination to the EEOC. See

Exhibit 2 to document no. 10, Letter dated June 1, 1998 to Kelley

from Leonard Moore of the EEOC. That charge was apparently

7 received by the EEOC on February 2 1 , 1998. As required by law,

the EEOC notified defendant of Kelley's charge on March 3, 1998.

See 42 U.S.C. 2000e-5(e)(1);

(a) (requiring

the EEOC to notify the employer within ten days of the filing of

a charge of discrimination).

Discussion

Title VII obligates plaintiffs to exhaust administrative

remedies before filing suit in federal court. See Lawton v.

State Mutual Life Assurance Co. of America,

(1st Cir. 1996) . The general rule provides that charges of

discrimination must be filed with the EEOC within 180 days of the

discriminatory act, unless the charge is first filed with an

authorized state agency, in which case it must be filed with the

EEOC within 300 days of the discriminatory act. See 42 U.S.C.A.

§ 2000e-5(e); E.E.O.C. v. Commercial Office Products Co . ,

(1988). Because Kelley did not file any charge of

discrimination with the NHCHR, defendant asserts that she was

required to file her charge with the EEOC within 180 days of the

last act of alleged discrimination.

Title VII's statutory time limits may, however, be affected

by the terms of work-sharing agreements between the EEOC and

authorized state agencies in deferral states. See, e.g..

Commercial Office Products,

; E.E.O.C. v. Green,

(1st Cir. 1996); Russell v. Delco Remv Div. of General Motors Corp.,

(7th Cir. 1995) . New

Hampshire is a deferral state, which means that it has its own

fair employment practices statute. New Hampshire Revised Statutes

Annotated chapter 354-A, and its own enforcement agency, the

NHCHR. See 42 U.S.C.A. § 2000e-5(c). And, in the past, the

NHCHR has entered into yearly work-sharing agreements with the

EEOC. See, e.g., Madison v. St. Joseph Hospital,

(D.N.H. 1996) .

Unfortunately, the parties have not submitted a copy of the

relevant EEOC-NHCHR work-sharing agreement for the pertinent

year(s). Under the customary terms of past work-sharing

agreements, the NHCHR and EEOC have agreed to serve as each

other's agent for purposes of filing complaints and the NHCHR has

waived its 60-day exclusive jurisdiction period under certain

circumstances. Typically, the effect of the dual-filing rule and

NHCHR's waiver of its exclusive jurisdictional period is to allow

claimants the benefit of the full 300-day filing period. See

generally Sweet v. Hadco Corp., No. 95-576-M, slip op. (D.N.H.

February 3, 1997) .

Nevertheless, defendant suggests that there is some guestion

as to whether Kelley is entitled to the benefit of the 300-day

limitations period or whether she should be held to a shorter

limitations period. But, because defendant has failed to fully

develop (or support) that argument, the court will assume that the 300-day limitations period applies. Even extending Kelley

the benefit of a 300-day limitations period, however, the record

reveals that she did not file a charge of discrimination with the

EEOC in a timely manner.

I. Calculating the Filing Deadline.

Defendant suspended Boucher, pending a termination hearing,

on April 9, 1997. Under defendant's supervision, he collected

his personal belongings from the school and never returned.

Thus, defendant contends that all of the discriminatory acts

directed at Kelley ended, at the very latest, on that date

(Kelley agrees that Boucher was the sole source of the sexual

harassment directed at her and concedes that the harassment ended

once he was caught and removed from the school). Accordingly,

defendant suggests that Kelley had until February 3, 1998 (i.e.,

300 days after April 9, 1997) to file her complaint with the

EEOC, which she failed to do.

Kelly, on the other hand, argues that her claim under Title

VII did not "accrue" until her "constructive discharge" in

October of 1997, when she resigned her teaching position due to

psychological and physical conditions relating to the harassment

she had suffered. Alternatively, she suggests that the

harassment to which she was subjected was "continuing" and did

not end with Boucher's termination in April, 1997. Rather, she

says that notwithstanding Boucher's absence from the school, she

10 continued to suffer the effects of his harassment into the Fall

of 1997, when she discovered Boucher's "old writings" in her

desk. Thus, she claims that the 300-day limitations period did

not begin to run until October of 1997 (when she resigned) or, at

the earliest, September of 1997 (when she discovered the last of

Boucher's harassing notes). The court disagrees.

First, it is important to note that Kelley's Title VII claim

is one by which she seeks compensation for a hostile work

environment. She has not advanced a claim for constructive

discharge. See generally Complaint, Count I. Thus, the date of

her alleged "constructive discharge" is not independently

relevant in calculating when the applicable limitations period

began to run. Instead, the court must focus on the last date on

which Kelley claims to have been the victim of sexual harassment.

And, as noted above, that date appears to have been, at the very

latest, April 9, 1997.

Even if Kelley's complaint could arguably be construed to

allege a claim for constructive discharge, she would not fair any

better. The court of appeals for this circuit has consistently

held that a claim for constructive discharge can only survive

upon proof that the conditions under which plaintiff worked were

"so arduous or unappealing, or [her] working conditions so

intolerable that a reasonable person would feel compelled to

forsake [her] job rather than to submit to looming indignities."

11 Vega v. Kodak Caribbean, Ltd.,

(1st Cir. 1993).

See also Ramos v. Davis & Geek, Inc.,

(1st Cir.

1999) ("We have long applied an 'objective standard' in

determining whether an employer's actions have forced an employee

to resign. The test is whether a reasonable person in the

employee's shoes would have felt compelled to resign.")

(citations and internal guotation marks omitted). Here, Kelley

has pointed to no evidence in the record from which a rational

trier of fact could reasonably conclude that, when she resigned

in October of 1997, defendant had made the conditions under which

she was working so intolerable that her decision to resign (to

the extent it was based upon the conditions of her employment)

was reasonable. See generally Tavares de Almeida v. Children's

Museum,

(D. M a . 1998). Nor has she

demonstrated that the defendant employer could have reasonably

foreseen that, despite its legitimate effort to stop the

harassment, she would discover, nearly six months after Boucher's

suspension, the offensive writings which had been in her desk

since at least the prior Spring. Stated somewhat differently,

Kelley does not allege that there were any additional steps that

defendant could have or reasonably should have undertaken to

prevent her from discovering Boucher's "earlier writings."

Finally, to avoid summary judgment with regard to a claim

for constructive discharge, Kelley would have to demonstrate that

her alleged constructive discharge occurred "within a reasonable

12 time after last being the subject of discrimination." Smith v.

Bath Iron Works Corp.,

(1st Cir. 1991). In

Smith, the court of appeals concluded that a delay of roughly six

months between the date on which plaintiff was last subjected to

harassment and her subseguent resignation precluded any claim for

constructive discharge.

Accord Jett v. Dallas Indep. Sch.

Dist.,

(5th Cir. 1986) (no constructive

discharge when plaintiff resigned five months after working in

allegedly intolerable conditions), modified on other grounds,

(1989); Hirschfeld v. New Mexico Corrections Dept.,

, 580 (10th Cir. 1990) (affirming district court's

rejection of constructive discharge claim where plaintiff did not

leave job until four months after alleged acts of

discrimination) .

Kelley has failed to demonstrate that a rational trier of

fact could reasonably conclude that: (a) the conditions of her

employment prior to her resignation in the Fall of 1997 were so

intolerable that her decision to resign was reasonable; (b)

defendant could or should have taken any further remedial steps

which might have prevented her from discovering Boucher's "old

writing;" or (c) her decision to resign as a teacher at Rochester

Middle School was made within a reasonable period of the date on

which she was last subjected to harassment. Thus, even if her

complaint alleged a claim for constructive discharge, defendant

would be entitled to judgment as a matter of law.

13 That Kelley discovered offensive and lewd writings authored

by Boucher prior to his departure (more than five months

earlier ) , does not amount to a new, discrete act of

discrimination or harassment. Instead, as Kelley seems to

recognize and concede in her complaint, the discovery of those

writings no doubt aggravated the injury and suffering she

experienced at Boucher's hands, but was not contemporaneous

harassment. See Complaint, para. 38 ("These symptoms were

further aggravated when the plaintiff Kate A. Kelley found old

writings inside her desk which she had not previously seen.") .

Conseguently, the date in October of 1997 when Kelley resigned is

not the point at which to start the running of the 300-day

limitations period; her earlier (and continuing) distress was no

doubt revisited when she discovered that artifact of Boucher's

earlier harassment, but one can hardly say that defendant was

aware of or permitted an act of harassment in October, having

resolved the problem back in April.

Boucher's sexual harassment of Kelley ended, at the very

latest, on April 9, 1997, when defendant properly and permanently

removed him from his position at the school. Notwithstanding her

subseguent discovery of Boucher's "old writings," the actionable

conduct for which defendant might be held liable ceased when it

took both reasonable and effective steps to stop the harassment

by investigating Kelley's complaints, cooperating with law

enforcement officers to discover the identity of the perpetrator,

14 and then terminating Boucher's employment. Thus, in order for

her to have filed a timely charge with the EEOC, Kelley must have

filed her charge of discrimination on or before February 3, 1998

(i.e., within 300 days of April 9, 1997).1

II. Charge of Discrimination v. Intake Questionnaire.

To support her claim that she filed her charge with the EEOC

on or before February 3, 1998, Kelley says that she filed a

"Charging Party Information" intake guestionnaire (which was

signed under oath) on January 21, 1998. While technically not a

"charge of discrimination" (as must be filed within the 300-day

limitations period), Kelley says that filing the intake

guestionnaire within the limitations period should be sufficient

and, in support of that thesis, she relies on Philbin v. General

Electric Capital Auto Lease, Inc.,

(7th Cir. 1991).

In Philbin, the Court of Appeals for the Seventh Circuit held

that a verified intake guestionnaire may, under certain

circumstances, constitute a "charge." And, while it does not

appear that the court of appeals for this circuit has yet

addressed the issue, a number of other courts have held that a

1 The EEOC also concluded that the limitations period began to run in April of 1997, when Boucher was suspended. See Exhibit 2 to defendant's response to plaintiffs' objection (document no. 10), Letter dated June 1, 1998 from EEOC to Kelley ("On April 8, 1997, the harasser was arrested and suspended. He never returned after April [9], 1997. The harassment did not continue after that date. You filed your charge . . . more than 300 days after April 1997. . . [Y]our charge is untimely."). Of course, experienced labor and employment attorneys, if not plaintiff herself, are well aware of the applicable limitations period.

15 verified intake questionnaire may constitute a valid "charge."

See generally Shempert v. Harwich Chemical Corp.,

,

196 n.7 (8th Cir. 1998) (collecting cases), cert. denied,

(1999) .

So, again giving Kelley the benefit of the doubt, the court

will deem her intake questionnaire to have been a "charge" that

defendant engaged in discriminatory employment practices, as that

term of art is used in the applicable statute and regulations.

That, however, does not resolve the question concerning whether

Kelley complied with the pertinent regulations by filing the

intake questionnaire, or charge, in a timely fashion.

Title VII provides that charges "shall be in writing under

oath or affirmation and shall contain such information and be in

such form as the [EEOC] requires." 42 U.S.C. § 2000e-5 (b) . The

applicable regulations make clear that a charge of sexual

discrimination is timely if received by the EEOC within the

pertinent limitations period. See

. Thus, as

this court (Devine, J.) has previously held, a charge which is

mailed within the limitations period but not received by the EEOC

until after that period has lapsed is untimely. See Madison v.

St. Joseph Hospital,

("Title VII provides that

charges 'shall be filed in writing under oath or affirmation and

shall contain such information and be in such form as the [EEOC]

requires.' The timeliness of the filing is determined by the

16 date on which the charge is received by that agency.") (emphasis

in original) (citations omitted). See also, Tavlor v. General

Telephone Co. of the Southwest,

(5th Cir. 1985)

("Our review of case construing Title VII filing provisions leads

inescapably to the conclusion that ''mailing, may not be construed

as ''filing' for the purposes of Title VII."); E.E.O.C. v. Dillard

Dept. Stores,

, 1252 n.2 (W.D. Tenn. 1991) ("The

plaintiff's argument that [the] charge should be considered

received when mailed is without merit."); Johnson v. Host

Enterprise, Inc.,

(E.D. Pa. 1979) ("Charges

of employment discrimination may, of course, be filed with the

EEOC by mail. The timeliness of filings, however, is determined

by the date on which the charge is received by the EEOC.")

(emphasis added) (citations omitted).

The rule advocated by Kelley, under which a complaint would

be deemed timely if mailed to the EEOC within the pertinent

limitations period lacks support in the unambiguous text of the

regulations, as well as the case law applying those regulations.

Thus, the court concludes that in order to be timely, a charge

must be received by the EEOC within the pertinent limitations

period.

The pertinent dates in this case are as follows: (1) on

January 20, 1998, Kelley completed the charging party information

guestionnaire; (2) on January 21, 1998, she says that it was

17 mailed to the EEOC; and (3) the EEOC received and date-stamped

that form on February 9 , 1998. Importantly, Kelley has pointed

to no evidence in the record which suggests that the EEOC might

have received her guestionnaire at any point prior to that date

(e.g., received the form prior to February 3, but failed to date

stamp it until nearly a week later). It is, therefore, plain

that Kelley's "charge" was not filed in a timely fashion (i.e.,

on or before February 3, 1998).

Conclusion

A federal court may not adjudicate a Title VII claim unless

a timely charge of discrimination has been filed with the EEOC.

See 42 U.S.C. § 2000e-5(e)(1). Even allowing Kelley the benefit

of treating her verified intake guestionnaire as a formal

"charge" and assuming that she is entitled to the benefit of the

300-day limitations period, the record demonstrates that she

still failed to file that document with the EEOC in a timely

fashion. And, she has not demonstrated that there is any

eguitable basis upon which to toll that limitations period.

In sum, the last date on which Kelley could have been

subjected to actionable workplace harassment, for which her

employer might be held liable, was April 9, 1997. The 300-day

limitations period lapsed on February 3, 1998. Kelley did not

file her "charge" (intake guestionnaire) with the EEOC until a

week later, on February 9, 1998. While the court is sympathetic

18 to plaintiff's situation and all she endured at Boucher's hands,

much of which could probably have been avoided if defendant had

undertaken investigative action earlier when she first

complained, Kelley simply did not file her charge with the EEOC

within the time allowed by law. Conseguently, defendant's motion

for summary judgment (document no. 6) as to count 1 of

plaintiffs' complaint (sexual harassment) must be and is granted.

As to count 2 of the complaint (state common law claim for loss

of consortium), the court declines to exercise its supplemental

jurisdiction. See generally Camelio v. American Federation,

(1st Cir. 1998). Defendant's motion for summary

judgment on count 2 (document no. 13) is, therefore, denied as

moot.

The Clerk of the Court shall enter judgment in accordance

with the terms of this order and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

July 22, 1999

cc: Robert A. Shaines, Esg. Donald E. Gardner, Esg.

19