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Davis Tried To Amend Her Administrative Charge To Include A Claim For Wrongful Termination

The facts in the light most favorable to Davis. See Griel v. Franklin Med. Ctr., 234 F.3d 731, 732 (1st Cir. 2000). Davis was employed as a tester for Lucent Technologies ("Lucent") from 1980 to 1996. This position required her to evaluate the quality of newly manufactured technological equipment. She worked closely with engineers in her department and shared testing equipment with other workers. The parties agree that few women were employed as testers at Lucent.

Davis alleges that she was subject to a hostile work environment because of her sex beginning in 1992. She identifies a series of altercations with male co-workers to support this claim. In August 1993, she attempted to ask an engineer, Fred Abayazzi, a question about one of the products she was testing. He refused to answer, telling her he did not have time to discuss her question. When Davis persisted, Abayazzi grabbed her arm and pushed it behind her, in an apparent effort to read the name on the identification tag she wore on the front of her shirt. At least one witness interviewed during Lucent's investigation of this incident corroborated Davis's charge that Abayazzi yelled at her and pulled her arm. Although Abayazzi was reprimanded for this incident, Lucent also concluded in its written report that Davis was partially at fault.

Davis also described a series of incidents involving William Gaudet and Rafael Rodriguez. In her appeal from the finding of a lack of probable cause by the MCAD, she stated that the men engaged in "intimidating quacking noises and constant laughing and snickering" directed at her. Additionally, Davis claims they were responsible for leaving a joke book at her work station opened to a page containing a "sexist reference" to a quacking joke. Finally, Davis says the two men prevented her from punching in at the time clock in July 1994, as was required by company policy. Rodriguez, who was not a member of Davis's work group, was eventually banned by Lucent from entering her testing area.

Ken Dors transferred into Davis's department in September 1995. Davis claims that Dors refused to share equipment or parts with her and "would constantly respond in an abusive and derogatory manner" when she requested that he cooperate with her. Davis says that Dors also laughed at her when she asked for his assistance. Finally, Davis and Dors collided in one of the narrow aisles of the testing work area, in what Davis characterizes as an intentional attempt to intimidate her. In its position statement submitted to the Equal Employment Opportunity Commission ("EEOC"), Lucent described this incident as a situation where the two employees simply reached the same location at the same moment, and neither of them yielded to the other.

Davis began a medical leave on April 19, 1996, citing the continued harassment she experienced as the reason for her "uncontrollable shaking and crying" at work. She began treatment with a psychologist, Dr. Ellen Becker. Three months later, Lucent ordered Davis to attend an independent medical examination conducted by Dr. Charles R. Morin, a psychiatrist. He concluded that Davis was not disabled due to mental illness, but noted her perception that her coworkers had made her work environment unsafe. On July 17, 1996, Davis filed a charge of sexual discrimination with the EEOC and the MCAD,(1) alleging that the actions of her coworkers created a hostile work environment. After her medical leave expired and Davis refused to return to work, Lucent terminated Davis from her position on August 7, 1996. Over one year later, in November 1997, Davis tried to amend her administrative charge to include a claim for wrongful termination, but the EEOC rejected that amendment as untimely. The EEOC issued a finding of no probable cause in March, 1998, and the MCAD, relying partly on that determination, issued a notice of final disposition denying Davis's charge in February, 1999. Davis appealed the MCAD's determination to an investigative commissioner at that agency, but her appeal was rejected in May, 1999. On July 16, 1999, Davis filed a complaint in Essex Superior Court, claiming both sexual harassment and wrongful termination. Lucent removed the case to federal district court and filed a motion to dismiss both claims as being untimely. Although Davis had been represented by counsel when she appealed the MCAD's finding of no probable cause, she was acting pro se both when she filed her complaint in state court and when she opposed Lucent's motion to dismiss before the federal district court. She is again represented by counsel in her appeal here

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