Hill v. Textron CV-00-221-M 08/24/01
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
James Hill, J r .,
Plaintiff
v. Civil No. 00-221-M
Opinion No. 2001 DNH 158
Textron Automotive
Interiors, Inc.,
Defendant
O R D E R
James Hill, Jr. brings this action against his former
employer, Textron Automotive Interiors, seeking damages for
alleged acts of harassment and discrimination based upon the
color of his skin. See 42 U.S.C. § 1981 and Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. He claims
that while an employee of defendant, he was subjected to
harassment, denied promotions, and wrongfully terminated because
he is a person of color. Textron denies any wrongdoing and moves
for summary judgment.
Standard of Review
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-Rvan v. Smith, 904
F.2d 112, 115 (1st Cir. 1990). 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). 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,
103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).
The key, then, to defeating a properly supported motion for
summary judgment is the non-movant's ability to support his or
her claims concerning disputed material facts with evidence that
conflicts with that proffered by the moving party. While a
reviewing court must take into account all appropriately
documented facts, it may ignore those allegations "which have
2
since been conclusively contradicted by [the non-moving party's]
concessions or otherwise," Chonqris v. Board of Appeals, 811 F.2d
36, 37 (1st Cir. 1987), as well as bald assertions, unsupported
conclusions, and mere speculation. See Serapion v. Martinez, 119
F .3d 982, 987 (1st Cir. 1997).
Background
Viewed in the light most favorable to Hill, the material
facts of record appear as follows. Hill was employed by Textron
as a machine operator from November of 1989 through October of
1996, when he was laid off as part of a reduction in force.
Textron recalled Hill the following Spring, but he declined its
offer of reinstatement.
Hill is of English and Portugese descent and, while he
apparently categorizes himself as Caucasian and a member of a
"white race," Hill deposition at 25-27, he says his "skin is
darker than a Caucasian's." Complaint at para. 10. Accordingly,
he claims to be a "person of color." During the course of his
employment. Hill says he was subjected to (or witnessed) the
following acts of discrimination:
3
1. Early in his employment. Hill overheard
Textron employees refer to a Costa Rican co
worker as "Julio" and "Spic Boy."
2. At times during his employment various co
workers and supervisors called Hill "Chico"
(a reference to Freddie Prinze's character in
"Chico and the Man") and "Hadji" (a reference
to a cartoon character in "Johnny Quest").
3. Hill and other employees were sometimes
referred to as "you guys" and "brother."
4. One of Hill's supervisors sometimes called
him "Rick," referring to another Textron
employee of color, "when she wanted to make
him feel stupid for asking a question."
Complaint at para. 13.
5. Hill perceived that his supervisors were
overly critical of his work, conduct he
attributes to their bias against him due to
the color of his skin.
6. Hill applied for various vacant positions
within Textron during his tenure but was
consistently denied promotions.
7. When Textron announced its plans to carry out
a reduction in force, layoffs were supposed
to take place in reverse order of seniority.
Nevertheless, Hill says his employment was
terminated prior to that of an employee who
had less seniority than he.
See Complaint, paras. 9-20.
4
On March 24, 1997, approximately five months after his
employment was terminated. Hill filed a charge with the New
Hampshire Human Rights Commission ("HRC") , alleging that he had
been subjected to unlawful discrimination during the course of
his employment. Because Hill specifically requested that his
charge also be presented to the EEOC, it is deemed to have been
filed with the EEOC sixty days later (i.e.. May 23, 1997) . See
29 C.F.R. § 1601.13(b). In December of 1998, the HRC issued a
finding of "no probable cause."
In January of 1999, counsel for Hill asked the Equal
Employment Opportunity Commission ("EEOC") to reconsider the
matter and, upon completion of its review, to issue a "right-to-
sue" letter. Approximately three months later, on March 23,
1999, the EEOC mailed a "Dismissal and Notice of Rights" letter
to both Hill and Textron. Hill's copy was addressed to the post
office box he had provided as his mailing address. In that
notice, the EEOC told Hill that it had adopted the findings of
the HRC, informed him of his right to sue Textron, and
specifically notified him that "your lawsuit must be filed within
90 days of your receipt of this Notice; otherwise your right to
5
sue based on this charge will be lost." Exhibit A-3 to
defendant's memorandum. The copy sent to Textron arrived in due
course. Hill, however, claims he never received his copy,
despite the fact that letter addressed to him was not returned to
the EEOC as undelivered or undeliverable.
In January of 2000, more than a year after she asked the
EEOC to reconsider the matter and issue a right-to-sue letter,
counsel for Hill contacted the EEOC and inquired into the status
of Hill's case. On February 4, 2000, the EEOC faxed her a copy
of the right-to-sue letter it mailed nearly a year earlier, dated
March 23, 1999. Hill and his counsel say that was the first time
they learned that the EEOC had issued a right-to-sue letter.
And, because he commenced this litigation within 90 days of his
counsel's having received a copy of the right-to-sue letter. Hill
asserts that his complaint should be deemed timely.
Textron points out that Hill filed this suit more than one
year after the EEOC mailed the original right-to-sue letter and,
for that reason, says Hill's Title VII claim is barred by the 90
day filing requirement. It also asserts that the circumstances
6
of this case do not warrant application of equitable tolling
principles. As for the merits of Hill's Title VII claim, Textron
says it had legitimate, non-discriminatory reasons for failing to
promote Hill and ultimately terminating his employment; his
allegations of harassment describe incidents that do not meet the
"severe or pervasive" requirement; and Hill failed to avail
himself of Textron's internal discrimination grievance
procedures. With regard to Hill's § 1981 claim, Textron says
most of his claims are time barred and, in any event, hecannot
establish a prima facie case of discrimination. Finally, it says
its failure to promote him as well, as its decision to terminate
his employment, were not racially motivated.
Discussion
I. Hill's Title VII Claim was not Timely Filed.
In order to be timely, a federal suit under Title VII must
be filed within 90 days after the EEOC provides the claimant with
a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1) (the EEOC
"shall so notify the person aggrieved and within ninety days
after the giving of such notice a civil action may be brought
against the respondent named in the charge.") (emphasis
7
supplied). However, most courts have concluded that the 90-day
period does not begin to run until the aggrieved person actually
receives notice in the form of a right-to-sue letter. The EEOC,
in turn, has adopted the general rule that the 90 day period
begins to run upon the claimant's receipt of the right-to-sue
letter. See EEOC Compliance Manual, para. 255, § 4.5(a)(2)
(2000), Exhibit D to defendant's motion to dismiss (document no.
4) ("the date the [right-to-sue letter] is received begins the
Title VII/ADA/ADEA 90 day limitation.").
In considering the effect of a plaintiff's failure to file
suit within the 90 days specified in section 2000e-5(f)(1), the
Court of Appeals for the First Circuit has concluded that
"section 2000e-5(f) (1) is nonjurisdictional." Rice v. New England
College, 676 F.2d 9, 10 (1st Cir. 1982). Thus, the 90-day filing
requirement is more akin to a statute of limitations than a
jurisdictional prerequisite to suit, and is subject to waiver and
equitable tolling. See generally Zipes v. Trans World Airlines,
Inc.,
455 U.S. 385 (1982). Nevertheless, it remains plaintiff's
burden to demonstrate either: (1) compliance with the 90-day
filing requirement; or (2) a basis for equitable tolling. See,
e.g., Stambaugh v. Kansas Dept, of Corrections,
844 F. Supp.
1431, 1433-34 (D.Kan. 1994) .
In the absence of evidence to the contrary, courts will
presume that a plaintiff received his or her right-to-sue letter
three days after the EEOC mailed it. See Fed. R. Civ. P. 6(e);
Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 n.l
(1984). See also Holmes v. NBC/GE,
914 F. Supp. 1040, 1043
(S.D.N.Y. 1996) (collecting cases). That presumption is,
however, rebuttable. See, e.g., Sherlock v. Montefiore Medical
Center,
84 F.3d 522, 526 (2d Cir. 1996) ("If a claimant presents
sworn testimony or other admissible evidence from which it could
reasonably be inferred either that the notice was mailed later
than its typewritten date or that it took longer than three days
to reach her by mail, the initial presumption is not
dispositive.").
As noted above, the original right-to-sue letter was mailed
to Hill on March 23, 1999, to the address (post office box) he
provided to the EEOC. See Exhibit C to defendant's motion to
dismiss. Affidavit of Robert Sanders, EEOC Keeper of the Records,
9
at para. 3. That notice was not returned to the EEOC as
undelivered or undeliverable. I d ., at para. 4. A copy of the
right-to-sue letter sent simultaneously to Textron arrived in due
course, on March 25, 1999. See Exhibit B to defendant's motion
to dismiss.
Notwithstanding the evidence that the right-to-sue letter
was mailed in March of 1999, Hill denies that he received it and
claims the first notice he received of his right to sue was when
a copy of that letter was faxed to his attorney in February of
2000. In support of that claim. Hill originally submitted what
is, at best, a deft affidavit. In it, he testified, "At the
residence where I lived on or about March, 1999, mail was often
not delivered to my residence." Exhibit 2 to plaintiff's
objection to motion to dismiss (document no. 5) (emphasis
supplied). Of course, since Hill collected his mail at a post
office box (the address he gave to the EEOC), the claim that mail
was often not delivered to his residence says nothing about mail
sent to his post office box, and does nothing to dispel the
presumption that the right-to-sue letter was delivered in a
timely manner to his post office box. And, statements of that
10
sort might reasonably be viewed as part of a calculated effort to
mislead.1 In a more recent affidavit, submitted in opposition to
defendant's motion for summary judgment. Hill more pertinently
and unequivocally denies having received the original right-to-
sue letter in March of 1999.
Nevertheless, Hill's denial of receipt is, standing alone,
insufficient to rebut the presumption that he received the right-
to-sue letter on or before the end of March, 1999. See, e.g.,
Sherlock, 84 F.3d at 526 (concluding that the plaintiff's sworn
statement that she could not recall the specific date on which
she received a right-to-sue letter and her claim that her husband
believed it was received more than three days after the date on
which it was mailed were insufficient to rebut the presumption of
timely delivery). Here, Hill adds, by way of corroboration, that
in addition to the right-to-sue letter, he failed to receive two
other pieces of mail he had been expecting - a phone bill and a
credit card bill. Other than his unsupported claims, however, he
1 In his deposition. Hill admitted that he never received
mail at his home, in a freestanding mailbox at the end of his
driveway, or in a collection of mailboxes on a rural free
delivery route. His mail was always delivered to the post
office, and placed in his post office box. Hill deposition at 8,
38-39.
11
has failed to provide any evidence that those pieces of mail were
not received in a timely fashion (e.g., affidavit from a
representative of the utility and/or credit card company
describing Hill's asserted efforts to obtain second copy of his
monthly statements, copies of those duplicate statements and/or
cover letters that might have accompanied them, an affidavit of
the local postmaster attesting to Hill's claims regarding
delivery problems at that particular post office, etc.).
Alternatively, Hill suggests that the right-to-sue letter
may have actually arrived at his post office box, but was
retrieved (and not delivered) by his wife. The record contains
no statement, sworn or otherwise, from his wife that might
support that supposition. And, while the court of appeals for
this circuit has yet to confront this precise issue, several
courts have concluded that Title VII's 90-day filing period
begins to run upon a spouse's receipt of the claimant's right-to-
sue letter. See, e.g., Harvey v. City of New Bern Police Dept.,
813 F.2d 652 (4th Cir. 1987); Bell v. Eagle Motor Lines,
693 F.2d
1086 (11th Cir. 1982). Again, conclusory supposition cannot
serve to rebut the presumption of timely delivery.
12
Hill has failed to rebut the presumption that the properly
addressed right-to-sue letter deposited by the EEOC in the United
States mail system did not arrive in a timely fashion. His Title
VII claims are, therefore, untimely.
Principles of equitable tolling (a point plaintiff discusses
only in passing) are not warranted under the circumstances of
this case. See generally Irwin v. Veterans Admin., 498 U.S. 89,
96 (1990) ("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. We have generally been much less forgiving in receiving
late filings where the claimant failed to exercise due diligence
in preserving his legal rights."). If, as Hill claims, he was
aware that he had not received at least two pieces of mail he
expected, he (or his counsel) should have made timely inquiry
into the status of his administrative complaint. Notwithstanding
the fact that Hill claims to have contacted his creditor(s) and
13
requested copies of the allegedly missing bills, he waited more
than a year after requesting EEOC reconsideration of his
administrative complaint before checking on its status. Such a
prolonged delay precludes Hill from availing himself of the
equitable remedy of tolling (if his wife indeed intercepted his
mail and failed to deliver it to h i m ) . That is particularly true
since the EEOC is required to notify a claimant of the status of
his or her complaint within 180 days of filing. See 42 U.S.C.
2000e-5(f)(1). See also Kremer v. Chemical Construction Corp.,
456 U.S. 461, 465 n.3 (1982) ("[WJhere the EEOC determines that
there is no reasonable cause to believe that a charge is true, it
must dismiss the charge and issue the complainant a statutory
right-to-sue letter. Where the Commission has not filed a civil
action against the employer, it must, if requested, issue a
right-to-sue letter 180 days after the charge was filed.");
Pietras v. Board of Fire Commissioners, 180 F.3d 468, 473 (2d
Cir. 1999) ("If no civil suit is filed by the EEOC or its
authorized agent within 180 days of the filing of the charge,
then the EEOC must notify the plaintiff by letter.").
14
After having allegedly failed to receive a right-to-sue
letter within 180 days. Hill was obligated to undertake at least
some modest effort to check on the status of his complaint,
particularly in light of what he claims were known problems
concerning delivery of his mail. He failed to do so until more
than a year had passed. As the Court of Appeals for the Eleventh
Circuit observed, "There is no reason why a plaintiff should
enjoy a manipulable open-ended time extension which could render
the statutory limitation meaningless. Plaintiff should be
required to assume some minimum responsibility himself for an
orderly and expeditious resolution of his dispute." Lewis v.
Conners Steel Co., 673 F.2d 1240, 1242 (11th Cir. 1982) .
Under the circumstances of this case. Hill's conclusory,
unsupported denial of receipt, standing alone, is insufficient to
rebut the presumption of receipt or create a trial-worthy issue
of material fact concerning when (or whether) he actually
received notification of his right to sue. That is particularly
so given evidence that Textron received its copy of the EEOC's
letter in due course, and that Hill's letter was properly
addressed, routinely mailed, and never returned as undelivered or
15
undeliverable. To conclude otherwise would subject the 90-day
filing requirement imposed by Congress to easy manipulation - by
simply claiming not to have received written notification of the
right to sue, the timeliness requirement could be easily
nullified by dilatory plaintiffs.
II. Hill's Title VII and § 1981 Claims Fail on the Merits.
Alternatively, even if Hill's Title VII claims were deemed
timely (or if he were presumed to have created a sufficient
factual dispute to warrant a jury's resolution of the timeliness
issue), Textron has demonstrated that it is entitled to judgment
as a matter of law as to both his Title VII and Section 1981
claims. See Textron's amended memorandum (document no. 2 6) and
its amended reply (document no. 34).
With regard to Hill's claim that he witnessed racial
discrimination directed toward a co-worker early during his
employment - an effort, it would seem, to support his claims of a
hostile work environment - Textron has introduced evidence that
those incidents were isolated and occurred early in Hill's tenure
with the company, the involved co-worker complained about the
16
conduct, Textron promptly resolved it to that employee's
satisfaction, and the complained-of behavior stopped. Hill
himself concedes as much. See Hill deposition at 101.
As to the alleged acts of discrimination directed at him
(co-worker references to "Hadji," "you guys," "brother," and
"Rick"), the court will assume that such references were related
to the color of Hill's skin and created a severe or pervasive
hostile work environment, notwithstanding the fact that neither
assumption is well supported by Hill's submissions. For example,
references to Hill as "Hadji" (a cartoon character) began when
one of his friends started using that nickname to refer to him.
Hill did not protest, did not ask the employee (or others) to
stop and, instead, simply returned serve by calling that employee
"Sherman" (a reference, says Hill, to another cartoon character).
According to Textron, none of the employees Hill identifies as
having called him "Hadji" held supervisory roles at Textron. See
Defendant's second amended reply (document no. 34) at 1 n.l. See
also Hill deposition at 102-03. As to the alleged use of the
nickname "Chico," Hill admits he did not find it "offensive,"
"damaging," or "cruel" since he thought he resembled Freddie
17
Prinze (the late comedian). Hill deposition at 121. See also
Hill affidavit at para. 8. As to the references to Hill as
"brother," Hill testified in his deposition that the term
"brother" was used by fellow employees to refer to him as well as
white co-workers. Hill deposition at 120. Thus, there is no
evidence that it was used in a derogatory, discriminatory, or
offensive manner. Finally, while the references to Hill as
"Rick" were clearly intended to be demeaning. Hill has provided
little evidence (other than the claim that Rick is a "person of
color") to suggest that those references evidence a race-based or
color-based animus.2
2 It is, perhaps, worth noting that both Textron and Hill
always considered him to be "Caucasian," apparently based on his
European heritage. Consequently, it is unclear exactly what Hill
means when he says he is "a person of color," other than he
considers his skin tone to be slightly darker than that of a
"white Caucasian." Because Hill's § 1981 claim is premised upon
alleged discrimination based upon his skin tone, it raises
interesting questions concerning § 1981's scope, including issues
related to possible distinctions between discrimination claims
based on race and those based on color and whether § 1981 even
contemplates the latter. See generally Trina Jones, Shades of
Brown: The Law of Skin Color, 49 Duke L.J. 1487 (2000)
(suggesting that "even if one concludes that Congress used the
word 'white' only to reference a racial category, this fact alone
should not prevent the inclusion of color claims under
§ 1981, given that color now plays a role analogous to the one
that race played for the drafters. . . . Because colorism
involves many of the same stereotypes and assumptions that result
in discrimination on the basis of race, it provides the same sort
of invidious treatment that Congress sought to eliminate in 1866
18
Even giving Hill the benefit of those generous assumptions,
he has failed to present evidence that he ever availed himself of
Textron's internal grievance procedures. Despite having received
anti-discrimination training from Textron, and despite being
aware of Textron's "open door policy" regarding employee
reporting of discrimination in the workplace. Hill never asked
Textron to take any steps to address what he now claims was a
hostile discriminatory work environment, and discriminatory acts
aimed at him. See Affidavit of Sandra Conley (submitted with
Textron's motion for summary judgment) at para. 29. Having
"unreasonably failed to avail [himself] of the employer's
preventative or remedial apparatus, [he] should not recover
damages that could have been avoided if [he] had done so."
Faragher v. City of Boca Raton, 524 U.S. 775, 806-07 (1998). See
also Burlington Industries, Inc. v. Ellerth,
524 U.S. 742, 765
(1998) .3
when § 1981 was enacted. The mere fact that the trigger for
discrimination is skin color and not race should not bar coverage
of these claims under § 1981.").
3 Hill's vague references to a letter he sent to Ms.
Conley are insufficient to demonstrate that he notified Textron
of alleged acts of discrimination. Although he relies on that
letter to demonstrate that he notified Textron of his concerns.
Hill neglected to provide the court with a copy. Nevertheless,
in his deposition. Hill conceded that the letter made no
19
As to Hill's assertion that he was denied promotion
opportunities based upon the color of his skin, even assuming he
has made out a prima facie claim under Title VII and/or section
1981 (again, a questionable proposition), Textron has responded
by submitting evidence documenting a legitimate non-
discriminatory basis for each of the hiring/promotion decisions
challenged by Hill. See Textron's memorandum (document no. 26)
at 9-12; 24-27. Nothing in Hill's submissions supports a claim
that Textron's actions were simply a pretext for race-based or
color-based discrimination. See generally Strauqhn v. Delta Air
Lines, Inc., 250 F.3d 23 (1st Cir. 2001); Rodriquez-Cuervos v.
Wal-Mart Stores, Inc.,
181 F.3d 15 (1st Cir. 1999). He has,
therefore, failed to carry his burden under the McDonnell Douglas
burden-shifting analysis. See generally Conward v. Cambridge
School Committee,
171 F.3d 12 (1st Cir. 1999) .
And, finally, as to his claim that he was, for
discriminatory reasons, laid off before another employee with
less seniority. Hill has failed to show that Textron's conduct
reference to, nor would it reasonably notify the reader of, any
concerns he might have had regarding race-based or color-based
discrimination. See Hill deposition at 85.
20
was, in any way, discriminatory. Textron, on the other hand, has
demonstrated that prior to his termination. Hill was offered (or,
at a minimum, was aware of), but refused, an opportunity to work
on the so-called transition team. See Affidavit of Sandra Conley
at para. 8-9 ("At that time, Mark Johnson, an employee with less
seniority than Hill, was retained as a member of the plant
transition team. . . . Mr. Hill did not apply for the transition
team. If Mr. Hill applied for the transition team, he would
likely have been placed on the team ahead of Mr. Johnson, by
virtue of his seniority."). See also Plaintiff's objection
(document no. 27) at 5 (conceding that Hill did not seek the
vacant position on the transition team). Thus, unlike Hill, the
employee he claims was improperly retained after his own
termination actually volunteered for the transition team. And,
after his work in that short-term capacity was complete, that
other worker, like Hill, was terminated. See generally Affidavit
of Sandra Conley. Thus, the record reveals that Hill and the co
worker with less seniority were both laid off as part of the same
reduction in force, and the only reason the other employee
remained at Textron longer than Hill was because he volunteered
for a short term appointment to a different job - a job Hill knew
21
was available but elected not to seek. Again, Hill has failed to
proffer any evidence that suggests Textron's treatment of him
with regard to its reduction in force was, in any way,
discriminatory, or that its non-discriminatory explanation for
its conduct is merely a pretext for discrimination.
Conclusion
Hill's Title VII claim was not filed in a timely manner and,
therefore, must be dismissed. But, even if it were timely filed,
Textron has demonstrated that it is entitled to judgment as a
matter of law on both counts in Hill's complaint. Accordingly,
for the reasons set forth above and in Textron's amended
memorandum and its amended reply, defendant's motion for summary
judgment (document no. 23) is granted. The Clerk of Court shall
enter judgment in accordance with this order and close the case.
SO ORDERED.
Steven J. McAuliffe
United States District Judge
August 24, 2001
cc: Leslie H. Johnson, Esq.
Debra Dyleski-Najjar, Esq.
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