Branco v. Massachusetts Dep't. of Revenue

Full title: ANTONIO M. BRANCO, Plaintiff, v. MASSACHUSETTS DEPARTMENT OF REVENUE…

Court: United States District Court, D. Massachusetts

Date published: Nov 2, 2000

Civil Action No. 99-11697-MEL (D. Mass. Nov. 2, 2000)

Opinion

Civil Action No. 99-11697-MEL

November 2, 2000

MEMORANDUM AND ORDER

LASKER, D.J.

Branco brings this action against his former employer, the Massachusetts Department of Revenue and several of its managers (collectively, the "defendants") alleging that they discriminated against him on the basis of his Portuguese ancestry. Based on this alleged discrimination, Branco is suing the defendants under Title VII. On February 22, 2000, defendants moved for summary judgment arguing in a cursory memorandum that Branco failed to file a claim with the Equal Employment Opportunity Commission ("EEOC") within the applicable limitations period. On March 17, 2000, defendants' motion was denied. On July 7, 2000, defendants moved for "reconsideration" of the Order.¹ Defendants' motion is granted.

1 A motion for "reconsideration" is ordinarily brought under Fed.R.Civ.P. 59(e). However, Rule 59(e) requires that "any motion to alter or amend a judgment shall be filed no later than 10 days after the entry or judgement." Defendants have not met this requirement. However, because the defendants raise a meritorious legal argument in their motion for reconsideration, it is appropriate to consider the matter under the provisions of Fed.R.Civ.P. 60(b)(6).

I.

Branco, a naturalized citizen of the United States, is a native of the Azores Islands, Portugal. He started working for the Massachusetts Department of Revenue in 1984. Branco alleges that during the course of his employment, he was discriminatorily denied promotions on nine separate occasions, was verbally harassed by his superiors on ten separate occasions, and was physically assaulted by his manager on another occasion. The alleged verbal harassment, included incidents where his supervisors made comments such as: "you f------ Portugees are all the same"; "I am going to make sure I f------ get you fired you piece of sh-- greenhorn"; and "you f---head, is that all you a — hole Portugees do is complain." Complaint, ¶¶ 24, 26, 28. On June 6, 1997, the Department of Revenue terminated Branco's employment.

Shortly thereafter, Branco filed a complaint with the Massachusetts Civil Service Commission seeking reinstatement. In December of 1997, Branco grew impatient with the Civil Service Commission's lack of progress and contacted the Massachusetts Commission Against Discrimination ("MCAD") about filing a charge of discrimination. Branco alleges that the MCAD informed him that because he had filed a claim with the Civil Service Commission, he should file directly with the EEOC and file nothing with the MCAD. In February of 1998, while Civil Service Commission proceedings were still pending and approximately 260 days after his termination, Branco filed a complaint with the EEOC. On May 12, 2000, the EEOC issued a notice of right to sue. On August 4, 1999, Branco filed his discrimination claim with the district court.

II.

Branco's Filing with the Civil Service Commission does not Toll the Limitations Period Under Title VII

Defendants argue that Branco's failure to file a timely charge of discrimination with the EEOC bars his Title VII claim. Section 706 of Title VII defines the statutory period for filing a charge with the EEOC:

A charge under this section shall be filed 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 three hundred days after the alleged unlawful employment practice occurred.

§ 706 of Title VII (codified at 42 U.S.C. § 2000e-5 (e)(1)).

Defendants argue that, contrary to the March 17, 2000, Order, the Civil Service Commission is not "a state or local agency with the authority to grant relief from [a discriminatory] practice" as that phrase is used in § 706 of Title VII. If the Civil Service Commission is not a state agency described in § 706 of Title VII, then Branco's EEOC complaint, which was filed 260 days after he was fired, would be untimely.²

2 Under § 706 of Title VII (codified at 42 U.S.C. § 2000e-5 (e)(1)) if a complainant does not file first with a state agency, he is required to file with the EEOC within 180 days.

In their motion for reconsideration, defendants for the first time point out that 29 C.F.R. § 1601.70 clarifies the definition of a state or local agency described in § 706 of Title VII. 29 C.F.R. § 1601.70 specifies the criteria which the EEOC uses to determine whether a state or local agency qualifies for designation as a "Fair Employment Practices Agency" ("FEP") (i.e. an agency falling under § 706 of Title VII). 29 C.F.R. § 1601.70 (a) provides in pertinent part:

a) State and local fair employment practice agencies or authorities which qualify under section 706(c) of Title VII and this section shall be designated as "FEP agencies." The qualifications for designation under section 706(c) are as follows: (1) That the State or political subdivision has a fair employment practice law which makes unlawful employment practices based upon race, color, religion, sex, national origin or disability; and (2) That the State or political subdivision has either established a State or local authority or authorized an existing State or local authority that is empowered with respect to employment practices found to be unlawful, to do one of three things: To grant relief from the practice; to seek relief from the practice; or to institute criminal proceedings with respect to the practice.

Section 1601.70(b) then goes on to provide:

(b) Any State or local agency or authority seeking FEP agency designation should submit a written request to the Chairman of the Commission. However, if the Commission is aware that an agency or authority meets the above criteria for FEP agency designation, the Commission shall defer charges to such agency or authority even though no request for FEP agency designation has been made.

Defendants argue that the Civil Service Commission never has been a FEP organization because it has never been designated as one. See 29 C.F.R. § 1601.74 (listing the designated FEP organizations).

Branco responds that the Civil Service Commission is a FEP organization because even though it has never been designated a FEP organization, it meets all of the requirements for designation set out in 29 C.F.R. § 1601.70 (a).

Although Branco is correct that the Civil Service Commission meets all of the EEOC's criteria for FEP designation set out in 29 C.F.R. § 1601.70 (a), it does not meet the criteria in 29 C.F.R. § 1601.70 (b). There is no evidence of record either that: (1) the Civil Service Commission actually petitioned the EEOC for FEP designation; or (2) that the EEOC was otherwise aware that the Civil Service Commission met the criteria for FEP designation. 29 C.F.R. § 1601.70 (b). Accordingly, 29 C.F.R. § 1601.70 (b) prevents the Civil Service Commission from operating as a state agency under § 706 of Title VII.

III. Branco's Argument for Tolling the Limitations Period Under Title VII Based on the "Continuing Violation" Theory is Without Merit

Branco argues that even if filing a charge with the Civil Service Commission did not toll the limitations period, the "continuing violation" theory does. To support his position, he alleges that after he was fired, the defendants continued to discriminate against him by unreasonably refusing him access to his personnel file and by their conduct in connection with his Civil Service Commission hearing. In addition, Branco argues that he "first became aware that he had a specific national origin discrimination issue with recourse to the EEOC on or about December 1997." Opp. to Motion for Reconsideration, 5.

Branco's continuing violation theory fails because he "has not demonstrated that the timely acts are linked to the untimely act[s] by similarity, repetition or continuity." Provencher v. CVS Pharmacy, Div. of Melville Corp., 145 F.3d 5, 15 (1st Cir. 1998). The defendants' alleged misconduct as an adversary in an administrative hearing is neither similar nor can it be characterized as a continuation of the defendants' alleged misconduct as employer.

Branco's continuing violation theory also fails because he "was . . . aware that he was being unlawfully discriminated against while the earlier acts, now untimely, were taking place."Provencher, 145 F.3d at 14. The vivid nature of Branco's complaint itself makes it clear that if the actions alleged in the complaint occurred, Branco would have been on notice as early as 1991, that he was being discriminated against. If Branco's boss in 1991, called Branco a "F------- gringo," as is alleged, then his boss' discriminatory animus would have been anything but subtle. As Branco's statement in opposition to the motion for reconsideration demonstrates, his real complaint is that he was unaware that there was a federal remedy for this conduct until December of 1997. Unlike a situation where a plaintiff does not know that she is being discriminated against, Branco's lack of knowledge about the law cannot be a basis for tolling Title VII's limitations period.

IV. Equitable Tolling Cannot Apply

Branco argues that even if he did not file his charge with the EEOC within the limitations period, "equitable tolling" should apply. Branco asserts that equitable tolling applies because he was allegedly given incorrect information by the MCAD about where he should file (the MCAD allegedly told him to file directly with the EEOC). In his opposition to the motion for reconsideration Branco posits that the MCAD (a state agency) purposely gave him false information to protect another state agency (the Department of Revenue)

In Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S. Ct. 1127, 71 L.Ed.2d 234 (1982), the Supreme Court held that "a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that like a statute of limitations, is subject to waiver, estoppel and equitable tolling." In Irwin v. Department of Veterans Affairs, 498 U.S. 89, 94-95, 111 S. Ct. 453, 112 L.Ed.2d 435 (1990), the Court held that the rule of equitable tolling applies to suits against the government in the same way that it is applicable to Title VII suits against private employers.

However, while equitable tolling is applicable to Title VII cases against the government, the First Circuit "hew[s] to a `narrow view' of equitable exceptions to Title VII limitations periods." Lavery v. Marsh, 918 F.2d 1022, 1027 (1st Cir. 1990). In describing this "narrow view" taken by most federal courts the Supreme Court has commented:

Federal courts have typically extended equitable relief only sparingly. We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.

Irwin, 498 U.S. at 96 (citations and footnote omitted).

Branco's equitable tolling argument cannot be sustained because he fails to show either that he filed a "defective pleading" or that he was "tricked by his adversary's misconduct into allowing the filing deadline to pass." Branco's contention that he was given false information by the MCAD to protect the Department of Revenue is highly speculative. Branco has produced no evidence to support this proposition.

It is arguable that this is a paradigmatic case for an extension of the equitable tolling doctrine in the Title VII arena. However, as sympathetic as the facts are here, Irwin andLavery's restrictive interpretations of the doctrine counsel against such an extension.

V.

It is unfortunate that the system which has been established to determine whether a Title VII claim is timely has become so riddled with murky details that it is difficult for all involved to navigate. This murkiness is particularly troubling because the result can often be that pro se litigants, like Branco, are left without judicial recourse for grave (alleged) wrongs. Nevertheless, as the current system is conceived it is now clear that Branco has no remedy. While this result is correct, should it prove mistaken, Branco's cure is an immediate appeal. It is indispensable to determine whether the court has the power to act before expending time and energy on a trial.

Defendant's motion is granted. The case is dismissed.

It is so ordered.