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The Wrongful Termination Claim Is Time-Barred Because Davis Failed To File A Complaint

We first address Lucent's contention that the wrongful termination claim is time-barred because Davis failed to file a complaint with the MCAD within six months of when she was fired. Section five of the Massachusetts anti-discrimination statute, chapter 151B, requires plaintiffs to file an administrative complaint within six months of the incident giving rise to the claim. See Mass. Gen. Laws ch. 151B, § 5; see also Andrews v. Arkwright Mut. Ins. Co., 673 N.E.2d 40, 41 (Mass. 1996); Carter v. Commissioner of Correction, 681 N.E.2d 1255, 1259 (Mass. App. Ct. 1997). "The purpose of mandatory submission to the MCAD process is to provide notice to the prospective defendant and to encourage conciliation and settlement of disputes." Fant v. New England Power Serv. Co., 239 F.3d 8, 11 (1st Cir. 2001). This purpose would be thwarted if plaintiffs "were permitted to allege one thing in the administrative charge and later allege something entirely different in a subsequent civil action." Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996).

Terminated on August 7, 1996, Davis should have filed an administrative complaint within six months of that day for her MCAD charge to be timely. However, she did not seek to add the charge of wrongful termination to her administrative complaint alleging sexual harassment until November 1997. Because more than six months had passed since her August 1996 termination, the EEOC denied her request to amend as untimely. Lucent argues that Davis's claim for wrongful termination is thus barred because it was not timely filed with the state administrative agency.

Davis advances five arguments in support of her position that we should consider the wrongful termination claim as though it were timely filed with the MCAD: (1) the termination is reasonably related to her claim of sexual harassment; (2) an investigation of the harassment should have led the MCAD to discover the termination; (3) her filing of a grievance pursuant to her employment contract should toll the six-month filing period; (4) the termination and the alleged harassment are part of a continuing violation; and (5) the filing period should be equitably tolled because the EEOC misled her into not filing a timely complaint about the termination. Of these five arguments, we agree with Lucent that Davis waived the first three by not presenting them to the district court.(2) The fourth argument, based on the continuing violation doctrine, is a closer call on whether there was a waiver. Even if we assume, however, that Davis presented that claim below, we conclude that the continuing violation theory cannot salvage her wrongful termination claim, for reasons we explain in Part IIB where we also conclude that the continuing violation doctrine does not save her sexual harassment claim. Lastly, we find no merit in her argument for equitable tolling.

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