Gerardo A. Franceschi v. United States Department of Veterans Affairs; Anthony J. Principi

Of the Tenth Circuit, sitting by designation. *
United States Court of Appeals
For the First Circuit
No. 06-2677
GERARDO A. FRANCESCHI,
Plaintiff, Appellant,
v.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS;
ANTHONY J. PRINCIPI,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. Senior District Judge]
Before
Torruella, Circuit Judge,
Baldock, Senior Circuit Judge, *
and Lipez, Circuit Judge.
Elaine Rodríguez-Frank, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellees.
January 30, 2008

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TORRUELLA, Circuit Judge. Gerardo A. Franceschi brought
three claims against his former employer, the Department of
Veterans Affairs ("VA"), along with VA Secretary Anthony J.
Principi (together, "Defendants"), under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.: (1) he had been
subjected to gender discrimination in the workplace; (2) he had
been subjected to a hostile work environment based on gender; and
(3) he had suffered unlawful retaliation for having formally
complained of this treatment to the Equal Employment Opportunity
Commission ("EEOC"). The district court granted summary judgment
in favor of Defendants on all three claims, and Franceschi
appealed. After careful consideration, we affirm.
I. Background
We recount the relevant facts from the record in the
light most favorable to the nonmovant, Franceschi. See Hodgens v.
Gen. Dynamics Corp., 144 F.3d 151, 156 (1st Cir. 1998).
Franceschi, a medical doctor, was the Associate Chief of Staff in
the Ambulatory Care Service of the San Juan VA Medical Center
("VAMC"). In 2001, he was passed over for promotion to the
position of VAMC Chief of Staff by Dr. Sandra Gracia-López, a
colleague who had been associate chief of staff in another
department.
Gracia soon discovered that the VAMC had numerous
performance deficiencies and that many of the problems fell within

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Franceschi's area of responsibility. Over the course of 2002 and
2003, Gracia engaged in a continuous dialogue with Franceschi about
how to remedy these problems. She repeatedly warned him that if he
failed to improve his unit, his own job performance ratings might
suffer. Gracia also drew Franceschi's attention to his many
alleged violations of hospital protocol -- including unexcused
absences, the failure to follow established procedures, and the use
of foul language in meetings and in the hallways -- and admonished
him to correct his behavior or suffer the consequences.
There were also suspicions that Franceschi was unfairly
favoring a female staff member with whom he was involved
romantically. The VAMC's in-house Equal Employment Opportunity
("EEO") officer, Marta Vázquez, met with Franceschi on April 1,
2003 to discuss this relationship; Franceschi asserts that he took
this opportunity to complain to Vázquez that Gracia had subjected
him to harassment through her abusive critiques of his performance.
Franceschi sent a memo to the VAMC Director on August 19, 2003
complaining that Gracia had created an intolerable work atmosphere
with her "micro-management style" and that he felt "harassed,
pursued and frustrated." On March 4, 2004, Franceschi was given a
"low satisfactory" overall job performance rating in an evaluation
report covering the period from January 31, 2003 to January 31,
2004; this rating differed sharply from his prior evaluation of
"high satisfactory."

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Franceschi made first contact with the VA Office of Resolution 1
Management in January 2004. Shortly thereafter, an EEOC counselor
interviewed Franceschi and informed him of his right to file a
formal complaint.
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Franceschi filed a formal administrative charge with the
EEOC on March 26, 2004, alleging that he had been the victim of
"constant harassment," "including unfavorable evaluations," at the
hands of Gracia. The EEOC organized the complaint into two 1
separate claims: first, that Gracia had subjected Franceschi to a
pattern of harassment motivated by his male gender ("Claim A"); and
second, that Gracia had accorded him unfavorable gender-based
treatment by rating his performance lower than it had been rated in
previous years ("Claim B"). On June 7, 2004, the EEOC sent
Franceschi a letter informing him that it had dismissed Claim A
because he had failed to respond to the EEOC's requests that he
specify the dates on which the alleged instances of harassment
occurred. It accepted Claim B, however, and informed Franceschi
that someone would be assigned to investigate this claim; an
investigator was assigned on July 16, 2004.
In the meantime, Gracia sent several memos to Franceschi
between April and June 2004, telling him that his performance was
still too low and needed to improve. Franceschi was again
evaluated on July 8, 2004, and this time received a lower overall
score of "unsatisfactory." Gracia informed Franceschi that, as a
result of the poor score and in accordance with VA regulations, he

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See infra note 5 (noting the differences between the respective 2
claims).
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would be demoted to the position of staff physician. The demotion
took effect on July 11, 2004.
Franceschi chose not to wait for the EEOC process to run
its course. On July 22, 2004, he filed suit in federal district
court and informed the EEOC that he had done so in a letter dated
July 30, 2004. In his complaint and arguments before the district
court, Franceschi made three claims; the first two were largely
parallel to Claims A and B, respectively, of his EEOC complaint.2
His third claim was that the poor performance evaluation of
March 4, 2004, and the even poorer evaluation of July 8, 2004 and
consequent demotion, constituted retaliation for having made
contact with the EEOC in January 2004 and for filing the formal
administrative charge on March 26, 2004.
The district court granted summary judgment in favor of
Defendants on all of Franceschi's claims. With respect to the
hostile work environment and discrimination claims, it found that
Franceschi had failed to exhaust his administrative remedies and
that these claims failed on the merits in any event. On the
retaliation claim, the district court found that Franceschi had
failed to establish a causal connection between his filing of the
EEOC charge and the poor evaluations. Franceschi appealed.

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II. Discussion
A. Standard of Review
We review orders granting summary judgment de novo,
viewing the record in the light most favorable to the nonmovant and
drawing all reasonable inferences in his favor. Buchanan v. Maine,
469 F.3d 158, 162 (1st Cir. 2006). Summary judgment is warranted
if "the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56©). Issues of law are reviewed
de novo. Buchanan, 469 F.3d at 162.
B. Title VII and Exhaustion of Administrative Remedies
Title VII is a vehicle through which an individual may
seek recovery for employment discrimination on the grounds of race,
color, religion, gender, or national origin. See Jorge v.
Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005). Nevertheless,
"[j]udicial recourse under Title VII . . . is not a remedy of first
resort." Id. (quoting Morales-Vallellanes v. Potter, 339 F.3d 9,
18 (1st Cir. 2003)). Before an employee may sue in federal court
on a Title VII claim, he must first exhaust administrative
remedies. See Love v. Pullman Co., 404 U.S. 522, 523 (1972).
The Title VII administrative process begins with the
filing of an administrative charge before the EEOC. See Jorge, 404

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For employees located in Puerto Rico, such filing must take 3
place within 300 days of the alleged unlawful employment practice.
Frederique-Alexandre v. Dept. of Natural and Envtl. Res. of P.R.,
478 F.3d 433, 437 (1st Cir. 2007).
The relevant provision in Title VII states that it is the 4
Attorney General, and not the EEOC, who has the obligation to give
notice of a dismissed claim in a case such as this one, where a
government agency is involved. See 42 U.S.C. § 2000-e5(f)(1); see
also Jorge, 404 F.3d at 564 (noting that "[t]he ninety-day period
begins to run from the time the Attorney General notifies the
employee"). It is clear, however, that this obligation may
alternatively be satisfied by the EEOC where it dismisses an
administrative charge at an early stage of the administrative
process. See Dougherty v. Barry, 869 F.2d 605, 611-12 (D.C. Cir.
1989) (§ 2000e-5(f)(1) contemplates that the EEOC will issue
notices "in cases involving a governmental unit when it does not
find probable cause," and "[t]he Attorney General will issue such
notices only when the EEOC finds probable cause, conciliation
efforts fail, and the EEOC refers the case to the Justice
Department, but the Attorney General decides not to pursue the
action").
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F.3d at 564 (citing 42 U.S.C. § 2000e-16©)). The employee may sue 3
in federal court only if the EEOC dismisses the administrative
charge, or if it does not bring civil suit or enter into a
conciliation agreement within 180 days of the filing of the
administrative charge. 42 U.S.C. § 2000e-5(f)(1). In either case,
the EEOC must send the employee notice, in the form of what is
known as a right-to-sue letter. See Jorge, 404 F.3d at 564 4
(citing 42 U.S.C. § 2000e-5(f)(1)); Clockedile v. N.H. Dep't of
Corr., 245 F.3d 1, 3 (1st Cir. 2001); see also Equal Employment
Opportunity Comm'n v. D.H. Holmes Co., Ltd., 556 F.2d 787, 790 n.4
(5th Cir. 1977) ("'Right to sue letter' refers to the notification
required by 42 U.S.C. § 2000e-5(f)(1) as a necessary condition for

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a private suit."). Upon receiving such notice, the employee has
ninety days to sue in federal court. 42 U.S.C. § 2000e-5(f)(1);
see also Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222
(8th Cir. 1994). With limited exceptions, such as that described
below regarding claims of retaliation for filing an administrative
charge, the failure to exhaust this administrative process "bars
the courthouse door." Bonilla v. Muebles J.J. Álvarez, Inc., 194
F.3d 275, 278 (1st Cir. 1999).
Franceschi filed his formal administrative charge on
March 26, 2004; he filed his complaint in the district court 118
days later on July 22, 2004. Administrative remedies could not be
considered to have been exhausted, however, until the EEOC issued
Franceschi a right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1).
The EEOC sent him a letter on June 7, 2004 stating that it had
dismissed one of the claims in the administrative charge --
Claim A, which alleged harassment -- but that it had accepted Claim
B, which alleged discrimination through poor job performance
ratings. In accordance with applicable federal regulations, the
EEOC informed Franceschi that, because Claim B had been accepted
for processing and investigation, the dismissal of Claim A did not
constitute final action on the administrative charge as a whole,
and that he could not avail himself of the agency's appeal
procedures until final action had been taken. See 29 C.F.R.
§ 1614.107(b). The EEOC's letter does not explicitly tell

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The allegations of a hostile work environment resulting from 5
Gracia's purported harassment of Franceschi are more thoroughly set
forth in Franceschi's complaint and brief than they were in his
administrative charge before the EEOC. Because the additional
allegations "bear . . . close relation" to the allegations in
Claim A, we consider them together with it. Jorge, 404 F.3d at
565. Similarly, the allegations of discrimination in Franceschi's
complaint and brief are somewhat broader than Claim B of the
administrative charge as characterized by the EEOC, in that they
aver two further instances of discrimination: the second poor job
performance rating from July 8, 2004, and the demotion. These
additional allegations likewise "bear . . . close relation" to
those in Claim B, so we consider them together with it. Id.
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Franceschi that he was prohibited from suing in federal court on
Claim A until final action had been taken on the whole complaint,
but such a prohibition is clearly contemplated in the applicable
regulations. See id. §§ 1614.407(a), 1614.110(b).
The EEOC was not given the opportunity to take final
action on the administrative charge. It had only just started to
investigate Claim B when Franceschi jumped the gun by filing suit.
Administrative remedies were accordingly not exhausted with respect
to either claim -- that alleging a hostile work environment, or
that alleging gender-based discrimination -- and we decline to 5
consider their merits. The district court's grant of summary
judgment on these two claims is affirmed without prejudice as to
any civil action Franceschi may bring after he has exhausted
administrative remedies. See Lebrón-Ríos v. U.S. Marshal Serv.,
341 F.3d 7, 14-15 (1st Cir. 2003) (non-prejudicial dismissal of
prematurely filed Title VII claim warranted where plaintiff
apparently not barred from returning to the EEOC to continue

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pursuit of administrative relief); see also Frederique-Alexandre,
478 F.3d at 440; Weber v. Cranton Sch. Comm., 212 F.3d 41, 54 (1st
Cir. 2000).
C. The Retaliation Claim
Franceschi made a third claim before the district court
that postdates, and thus does not appear in, the administrative
charge: that he was given poor job performance ratings and was
demoted in retaliation for making contact with the EEOC and filing
the administrative charge. Although the district court rejected
Franceschi's retaliation claim on the merits, we need not reach
this question here because the retaliation claim was not properly
before the court.
A claim of retaliation for filing an administrative
charge with the EEOC is one of the narrow exceptions to the normal
rule of exhaustion of administrative remedies. Such a claim may
ordinarily be bootstrapped onto the other Title VII claim or claims
arising out of the administrative charge and considered by the
district court, even though it has not been put through the
administrative process. See Clockedile, 245 F.3d at 6. This is so
because such a claim of retaliation is "reasonably related to and
grows out of the discrimination complained of to the [EEOC]." Id.
In other words, the retaliation claim survives what would otherwise
be a failure to exhaust administrative remedies by virtue of its

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close relation to and origins in the other Title VII discrimination
claims.
Yet where, as here, administrative remedies have not been
exhausted with respect to any of the other Title VII claims in the
civil action, there is nothing properly before the court to which
the retaliation claim may be bootstrapped. Although we have never
expressly addressed this specific circumstance, we think that, as
a logical corollary of the rule in Clockedile, the exception to the
exhaustion requirement cannot apply, and the retaliation claim must
be dismissed along with the others for failure to exhaust. Such an
approach accords with that of several of our sister circuits. See,
e.g., Jones v. Runyon, 91 F.3d 1398, 1402 (10th Cir. 1996) (where
Title VII gender discrimination claim had been dismissed for
failure to exhaust administrative remedies, bootstrapped
retaliation claim likewise "suffer[ed] the defect of non-
exhaustion" and had to be dismissed); Barrow v. New Orleans S.S.
Ass'n, 932 F.2d 473, 479 (5th Cir. 1991) (where ADEA age-
discrimination claims had been dismissed as untimely and therefore
"were not 'properly' before the district court," bootstrapped
retaliation claim likewise had to be dismissed, as it had "no
charge on which to attach itself"); Hargett v. Valley Fed. Sav.
Bank, 60 F.3d 754, 762 (11th Cir. 1995) (similar).
Since the Title VII claims to which Franceschi's
retaliation claim relates have been rightly dismissed, we will not

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consider the merits of the retaliation claim. We affirm the
district court's grant of summary judgment on this claim. This
affirmance is also without prejudice as to any civil action
Franceschi may bring after exhausting administrative remedies. See
Lebrón-Ríos, 341 F.3d at 14-15.
III. Conclusion
For the foregoing reasons, we affirm without prejudice
the district court's grant of summary judgment in favor of
Defendants.
Affirmed.

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