USCA1 Opinion
January 11, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1333
PATRICIA A. STANISLAS,
Plaintiff, Appellant,
v.
CIGNA and INSURANCE COMPANY OF NORTH AMERICA,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________
Timothy J. Ryan with whom Bradford R. Martin, Jr. and Ryan,
________________ _________________________ _____
Martin, Costello, Leiter, Steiger & Cass, P.C. were on brief for
______ _________________________________________
appellant.
Michael A. Davis for appellees.
________________
____________________
____________________
Per Curiam. In this diversity case, plaintiff-appellant
__________
Patricia A. Stanislas appeals from the district court's grant
of summary judgment in favor of defendant-appellees CIGNA and
its wholly owned subsidiary Insurance Company of North
America ("ICNA") on a sexual harassment claim under Mass.
Gen. L. ch. 151B. The district court found that Stanislas
failed to comply with the statute of limitations contained in
Mass. Gen. L. ch. 151B, 5. Our review of the grant of
summary judgment is plenary, and we read the record in the
light most favorable to the party contesting the summary
judgment. See, e.g., Cambridge Plating Co. v. Napco, Inc.,
___ ____ _____________________ ___________
991 F.2d 21, 24 (1st Cir. 1993).
Stanislas alleged that her immediate supervisor, John A.
Cvejanovich, engaged in repeated acts of sexual harassment
towards her beginning in November 1990. Stanislas, the
office administrator of ICNA's Springfield, Massachusetts,
field litigation office, and Cvejanovich, the managing
attorney, last worked together on April 26, 1991, the Friday
before Cvejanovich departed on a one-week vacation. On that
day, according to Stanislas' affidavit, Cvejanovich demanded
that Stanislas sleep with him or find someone else who would.
On April 30, 1991, Stanislas reported Cvejanovich's
conduct to another attorney in the office, who in turn
notified ICNA's area supervisor, John Gilfoyle. On May 2nd
-2-
-2-
and 3rd, two ICNA attorneys, Gilfoyle and Rob Gilbride,
investigated Stanislas' claims. Gilfoyle instructed all of
the office employees to stay home on May 6th, Cvejanovich's
first day back at work; when Cvejanovich reported to work,
Gilfoyle confronted him with Stanislas' allegations and
offered him the choice of resigning or being terminated.
Cvejanovich resigned.
When the office employees, including Stanislas, reported
to work, Gilfoyle and Gilbride told them that Cvejanovich was
no longer employed by ICNA. The employees were also advised
to keep the matter confidential, and they were warned that
the legal consequences of discussing the incident would be on
the employees' heads.
Stanislas filed a complaint with the Massachusetts
Commission Against Discrimination ("MCAD") on October 30,
1991, and on June 22, 1992, brought the instant suit in
federal district court. This appeal concerns Stanislas'
claim under Mass. Gen. L. ch. 151B, 4(16A), which makes it
unlawful for any employer "to sexually harass" an employee.
On that claim, the district court granted summary judgment
for defendants because Stanislas filed her MCAD complaint
more than 6 months after the last incident of harassment.
Before initiating a court action alleging a violation of
section 151B, a plaintiff must file a complaint with MCAD
within six months after the alleged act of discrimination.
-3-
-3-
See Christo v. Edward G. Boyle Insurance Agency, Inc., 525
___ _______ _______________________________________
N.E.2d 643, 645 (Mass. 1988); Mass. Gen. L. ch. 151B, 5,
9. "In the absence of a timely complaint to the MCAD, there
may be no resort to the courts." Sereni v. Star Sportswear
______ _______________
Manufacturing Corp., 509 N.E.2d 1203, 1204 (Mass. 1987). The
___________________
last alleged incident of harassment occurred on April 26,
1991, but Stanislas' complaint with MCAD was not filed until
October 30, 1991, four days after the six-month cut-off date.
Stanislas challenges this conclusion on three grounds.
First, she argues that the district court misconstrued the
nature of her claim. M.G.L. ch. 151B, 1(18) defines sexual
harassment as:
Sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature
when (a) submission to or rejection of such
advances, requests or conduct is made either
explicitly or implicitly a term or condition of
employment or as a basis for employment decisions;
(b) such advances, requests or conduct have the
purpose or effect of unreasonably interfering with
an individual's work performance by creating an
intimidating, hostile, humiliating or sexually
offensive work environment. . . .
Stanislas argues that while the last incident of "quid pro
quo" harassment (as defined in clause (a)) occurred on April
26, the "hostile environment" harassment (as defined in
clause (b)) continued until Stanislas knew that the threat of
further harassment was removed, that is, until May 6, 1991.
This argument is unavailing. Sexual harassment is
defined as "[s]exual advances, requests for sexual favors,
-4-
-4-
and other verbal or physical conduct of a sexual nature"
having the effect of (inter alia) creating a hostile work
__________
environment. It is the acts having the specified effect that
____
constitute the harassment. There is no indication here that
there was any delay between the last act and its effect, so
the act was ripe for a complaint. The last act of sexual
___
harassment alleged by Stanislas occurred on April 26, 1991,
and the six month limitations period runs from that date.
Cf. Ching v. MITRE Corp., 921 F.2d 11, 14 (1st Cir. 1990).
___ _____ ___________
Second, Stanislas argues that her claim is protected
under 804 C.M.R. 1.03(2), which provides that "the six
month requirement shall not be a bar to filing in those
instances where facts are alleged which indicate that the
unlawful conduct complained of is of a continuing nature."
Conduct may be continuing if it involves an ongoing policy or
practice of the employer which, if prolonged into the
limitations period, permits the suit. Jensen v. Frank, 912
______ _____
F.2d 517, 523 (1st Cir. 1990). But there is no claim here
that Cvejanovich's conduct was part of any policy or practice
of the defendants.
Alternatively, a serial violation may occur where there
are "a number of discriminatory acts emanating from the same
discriminatory animus," Sabree v. United Broth. of Carpenters
______ ___________________________
and Joiners, 921 F.2d 396, 400 (1st Cir. 1990) (quoting
____________
Jensen, 912 F.2d at 522), but "[i]n order for the violation
______
-5-
-5-
to be actionable, at least one act in the series must fall
______________________
within the limitations period." Sabree, 921 F.2d at 400
______
(emphasis added). In the instant case, the final act of
harassment alleged occurred on April 26, 1991; in fact, there
was no professional contact between Cvejanovich and Stanislas
after that date.
Third, Stanislas argues that the warning given by
Gilfoyle and Gilbride that she keep the matter confidential
constitutes justification for equitable modification of the
statute of limitations. The statute of limitations under ch.
151B, 5, is subject to equitable modification. See
___
Christo, 525 N.E.2d at 645. The basis urged here is that
_______
defendants unfairly discouraged Stanislas from exercising her
rights. Cf. Felty v. Graves-Humphreys Co., 785 F.2d 516,
___ _____ _____________________
519-20 (4th Cir. 1986).
Because this issue was first raised in a motion under
Fed. R. Civ. P. 60(b)(6) for reconsideration of the district
court's grant of summary judgment, we review the district
judge's determination only for abuse of discretion. See
___
Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988).
________ _____________
There is no evidence that the warning by Gilfoyle and
Gilbride was inappropriate in light of the risks presented
(e.g., defamation) or that it was intended to discourage the
____
-6-
-6-
filing of a complaint with MCAD.1 We think that it was
within the sound discretion of the trial court to decline to
reopen the case to entertain this belated equitable claim of
very doubtful merit.
Affirmed.
________
____________________
1Nor is it clear that the warning had any such effect.
As a matter of fact, Stanislas consulted with an attorney at
least several days prior to the expiration of the limitations
period.
-7-
-7-
