Green v. Town of Brookline

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2300
BARBARA F. GREEN AND STANLEY R. GREEN,
Plaintiffs, Appellants,
v.
TOWN OF BROOKLINE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
Barbara F. Green and Stanley R. Green on brief pro se.
Joslin Ham Murphy on brief for appellee.
April 17, 1997
Per Curiam. Appellants Barbara F. and Stanley R.
Green filed a complaint in the Massachusetts district court.
The complaint challenges the treatment Mrs. Green received at
the hands of her employer, the Town of Brookline, and cites
two bases of jurisdiction: (1) 42 U.S.C. 1983; and (2)
Title VII, 42 U.S.C. 2000e-3 and 2000e-5. The district
court dismissed the complaint due to the expiration of the
statute of limitations. We affirm.
1. We agree with the district court that
appellants' 1983 claims are time-barred. "Local law
determines the limitations period for section 1983 claims."
Morris v. Government Dev. Bank of Puerto Rico, 27 F.3d 746,
748 (1st Cir. 1994). We thus look to the three-year
Massachusetts statute of limitations for personal injury
actions. Street v. Vose, 936 F.2d 38, 39 (1st Cir. 1991)
(per curiam) (citing M.G.L.c. 260, 2A). When the cause of
action accrued, however, is a federal question. Id. at 40.
In a case such as this, "the statute of limitations begins to
run when the plaintiff learns of the decision to terminate
[her] employment. . . ." Rivera-Muriente v. Agosto-Alicea,
959 F.2d 349, 353 (1st Cir. 1992).
Mrs. Green learned that the Town had decided to
terminate her on December 10, 1986. This lawsuit, filed over
nine years after this date, plainly is late. The same
conclusion results even if we consider the Town's threats to
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use certain notes in evidence in the workers' compensation
case. According to the complaint, these threats were first
made in 1990. Because this is about six years prior to the
initiation of the instant action, the complaint also is time-
barred in relation to these later charges.
Finally, appellants present no reason to toll the
running of the limitations period. Even assuming that the
attorney for the Town coerced Mrs. Green into dismissing her
court case appealing the decision of the Civil Service
Commission, this occurred in 1988. There simply are no
factual allegations that the Town or anyone acting on its
behalf did anything to prevent appellants from filing the
present lawsuit. See Pahlavi v. Palandjian, 809 F.2d 938,
942-43 (1st Cir. 1987) (in the absence of specific factual
allegations, a plaintiff cannot claim that duress tolls the
statute of limitations).
2. Title VII has two deadlines which are in issue
in this case. First, an individual in a state such as
Massachusetts -- a "deferral" state with its own civil rights
law and agency -- must file a complaint with the Equal
Employment Opportunity Commission (EEOC) within 300 days
after the "alleged unlawful employment practice occurred."
42 U.S.C. 2000e-5(e). See also Lawton v. State Mut. Life
Assurance Co., 101 F.3d 218, 221 (1st Cir. 1996). Second,
the individual must file an action in the district court
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within 90 days of receiving a right to sue letter from the
EEOC. 42 U.S.C. 2000e-5(f).
"In actions brought under Title VII . . . a
plaintiff must plead affirmatively performance of the
conditions precedent to filing a lawsuit." 2A J. Moore,
Moore's Federal Practice 9.04, at 9-65 (2d ed. 1996)
(footnote omitted); Jackson v. Seaboard Coast Line R.R. Co.,
678 F.2d 992, 1010 (11th Cir. 1982). Under Fed. R. Civ. P.
9, which governs the pleading of special matters, "it is
sufficient to aver generally that all conditions precedent
have been performed or have occurred." Fed. R. Civ. P. 9(c).
However, our review of the record reveals that
plaintiffs never met their burden of alleging general
compliance with Title VII's filing requirements. That is,
they never stated in their complaint, in their responses to
the Town's motion to dismiss, or even in their briefs on
appeal, that they filed an EEOC charge concerning retaliation
within 300 days of Mrs. Green's termination and that they
filed the federal complaint within 90 days of receiving a
right to sue letter. Further, the record does not contain
any documents from which such inferences can be drawn.
The judgment of the district court is affirmed.
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