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UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 07-1185 -----------------------------------

YONG LI,

Plaintiff, Appellant,

v.

RAYTHEON COMPANY, ET AL.,

Defendants, Appellees.

-------------------------------------

Before

Lynch, Circuit Judge,

Campbell and Selya, Senior Circuit Judge
-----------------------------------------

JUDGMENT

Entered: September 10, 2007

Appellant Yong Li seeks review of the district court’s order granting summary judgment for appellees Raytheon Corp., Ian C. Mitchell and Arthur Buliung, dismissing Li’s discrimination and retaliation complaint. We have conducted the required de novo review of the record, Noviello v. City of Boston, 398 F.3d 76, 84 (1st Cir. 2005), and conclude that the dismissal was proper.

Briefly, these are the relevant facts. Li, a Chinese national, began working as a senior software engineer at the Raytheon facility in Marlborough, Massachusetts, in 1998. In July 2001, there was a disagreement between Li and another software engineer regarding the proper methodology to use in a particular software program. Li believed her approach was superior, but the team manager picked the competing proposal. Li believed that this decision and the team manager’s subsequent criticism of her was motivated by racial animus against her because she is Chinese. More than a year later, in October 2002, Li filed a formal complaint against the manager with Raytheon’s Equal Employment Opportunity (“EEO”) office. The EEO office investigated, interviewed co-workers Li suggested, and concluded that no discrimination had occurred.

===============rebut=================

Jen Lewis made Li a negative performance review in January 2002, Li refused to sign and also requested an apology from Jen Lewis, but the section manager Anna Selwyn stopped Li. Anna said Jen Lewis would become a very high level person in Raytheon, if Li searched an apology from her, Li would make an enemy. Li went to see EEO manager Steve King in March 2002, and filed the formal complaint in October 2002. So the gap between the misconduct and the complaint to HR can not say more than a year.



The EEO office never interviewed Li’s co-worker William Kerr, whose email stated “┅When we first went out to Marlborough, it very quickly became clear to both Conall and myself that you were not being fairly treated especially by Gayle. I was surprised that in the US above all places, that such behavior would be tolerated (A 235),” despite Li had showed this email to the investigator in 2002.

===============end rebut================

Li disagreed with the results of the investigation and demanded a copy of the written report. When the EEO office declined, Li concluded that Raytheon was continuing to discriminate against her. She demanded a new investigation, which was undertaken by appellee Buliung, a human resources administrator for Raytheon. Additional employees suggested by Li were interviewed, and again the investigation found no discrimination against Li.

===============rebut==============

Li did not know the written report collected negative opinions from the peoples Li had complained about. This secret report was sent to Dr. Reade in 2005 for prefixing Li’s mental evaluation, so that Dr. Reade concluded Li’s “personality” problem and ignored the trauma event in workplace.



To stop Li requesting the investigation report, HR arranged Li to see Raytheon EAP counselor John Didio on 1/28/03, to which Li thought Didio was the person holding the report.



The new investigation did not interview William Kerr either, despite Li demanded.

===============end rebut==============

Li then transferred to Raytheon’s Langley, Virginia, facility, where she worked until December 2003. Upon her return to Marlborough in January 2004, Li claims that she began to suffer widespread retaliation for filing the EEO complaint more then a year earlier. The team manager who was the subject of the complaint allegedly “aggressively stared” at Li and attempted to intimidate her whenever they were alone. Li’s section manager allegedly failed to assist her in finding a new permanent assignment, suggested that she transfer to the Raytheon facility in Towson, Maryland, and intimidated that her name was on a lay-off list. Despite the lack of a permanent, however, Li’s section manager found full-time work for Li throughout this time and Li drew her full salary. In June 2004, Li found a permanent assignment.

===============rebut==============

Raytheon never informed Li that there was no layoff at all until 2006, when Ian Mitchell answered the Interrogatory, in which he admitted that there was no layoff plan and no layoff list. Li felt suspicious to the layoff threaten, because a new hire, Gordon Maxx joined Raytheon in the summer of 2004.



It was section manager’s duty to find Li assignments. The panel ignored Ogle*****y’s multi-times harassment, which including pushing Li to quit and threatened to layoff off. Li sent emails to Buliung, Maryann King and Ian Mitchell, they either ignored or blamed Li of difficult to find a job due to the clearance problem.



Jen Lewis’ constant staring became frequently and more aggressive because Li moved into building-3 on June 21, 2004, where the project ERAM located, and Jen Lewis worked in the same building.

===============end rebut==============

Also in June 2004, Li sent an email to the Raytheon Asian Pacific Association (“RAPA”) complaining about a “conspiracy” to force her out of Raytheon. Buliung and two other human resources employees met with Li to discuss this email. They explained that the difficulty placing her after her return from Langley was because she lacked security clearance, not because of retaliation. Li did not believe this explanation.

=============== rebut==============

They did not inform Li of whether there was layoff plan, or whether Li’s name was on the list.

===============end rebut==============

She reported that her team manager’s staring was becoming “more aggressive and intense.”

===============rebut==============

Wrong! Li did not report the Staring incident until the meeting with EAP counselor on 8/3/04.

===============end rebut==============

A few weeks later, Li emailed Buliung recounting an earlier conversation with her section manager in which she stated that if anything happened to her or her family, “don’t believe that it’s an accident; it may be a ‘murder’!”

===============rebut==============

The panel ignored Ogle*****y’s harassment on 7/29/04, or the panel regarded the harassment as a normal conversation. Ogle*****y’s harassment, combine with Jen Lewis’ staring, caused Li worried about her safety.



On July 29, 2004, Mr. Ogle*****y deliberately denied “No, I never said that [the company is going to layoff, I’m sure your name is on the list], you can not prove. Actually there was no layoff,” Li was shocked. Mr. Ogle*****y also laughed at Li “When Jen Lewis becomes the lab manager, you will be in trouble,” Li replied “Bill Clinton became the president, Paula Jones was safe,” Mr. Ogle*****y reprimanded Li “Shame!” (Li’s brief, p18)

===============end rebut==============

Buliung then recommended that Li meet with John Didio, a counselor from Raytheon’s Employee Assitance Program (“EAP”). Li agreed, apparently believing that this person was an investigator looking into her claims. At this meeting, Li claims that Didio never asked her about her fears for her own and her family’s safety, but instead pointed his finger at her, stared at her, and demanded, “Do you want to kill someone?” Li became angry and the meeting abruptly ended.

===============rebut==============

John Didio violated Li’s right of consent because Li was not informed of the mental evaluation, he violated Li’s right of privacy because two HR officers in the room. This interview is illegal as a matter of law.



The panel ignored the devastated damage. Li was traumatized and felt raped, and started flashback and could not function normally since.

===============end rebut==============

A few days later, Li emailed the RAPA mailing list again, this time complaining about Didio. The email’s subject line stated, “Any policy supports such disgusting behavior to insult an asi [sic] woman?” Buliung and another human resources employee again met with Li and told her to stop using the RAPA email list for personal matters. Buliung also sent an email to RAPA explaining that the situation had been resolved. Viewing this email as a misrepresentation of the truth, Li filed a complaint against Buliung with the Raytheon Business Ethics and Compliance Officer, which was denied. Li also informed the Director of Software Engineering that the meeting with Didio made her want to commit suicide.

===============rebut==============

When Li told her suicidal thought, Mr. King answered “it’s not intentional”, and she asked Li to stop sending email and move forward.

===============end rebut==============

On August 30, 2004, Li sent a mass email to the company that contained the following statement:



John Didio with his professional skill poisoned my brain, he treated me, a victim as a potential murder, this is an evil behavior! As I’m sitting in my office and working, quit offenly [sic], I want to scream!!



The following day, Raytheon place Li on administrative leave and recommended that she see a psychiatrist, which she did.

===============rebut==============

The reason to put Li on administrative leave is her insubordination of sending email to CEO, and not because of the safety rationale. HR failed to provide Chinese witness in the meeting despite Li requested, and the meeting caused Li retraumatized once Li was forced to get into the office room .

===============end rebut==============

Li claims that Raytheon the “hid” the psychiatrist’s report and would not give it to her or her Chinese doctors. Li also applied for and received short-term disability benefits from Raytheon’s insurer, MetLife. These benefits were discontinued, Li claims, when Raytheon refused to release the psychiatrist’s report to MetLife. Raytheon “administratively terminated” Li after her short-term disability benefits ceased and she refused to return to work. Li appealed and the short-term disability benefits were reinstated. MetLife also found Li eligible for long-term disability benefits, which she began receiving in January 2005. Raytheon subsequently restored Li to medical leave status.

===============rebut==============

In fact, Li never received her STD benefit until January 2005, four (4) months after she was traumatized. Raytheon’s hiding doctor report and warning Li go back to work in October 2004 is outrageous and is worthy of being condemned.



In fact, Li never received her LTD until April 2005, eight (8) months after she was traumatized, and Li’s employment was already terminated in January 2005. Raytheon reinstated her medical leave statute at May, 2005 because Li reported to EEOC in April 2005.



Li received the investigation report from EEOC in 2005, the report collected negative opinions from the people Li complained about, and mischaracterized Li as “strong personality” and “opinioned.” However, Li’s performance reviewed stated Li was “friendly and pleasant to work with”. The HR witness form stated “She was never confrontational.”



Li received Dr. Reade report from DIA court in 2005. Based on the “strong personality” and “opinioned,” Dr. Reade concluded that Li had “personality disorder” and “long term maladaptive traits,” although Li had no history of mental illness, and had successful employment in England for 7 years. Dr. Reade did not mention John Didio’s interrogation and Jen Lewis’ staring.

===============end rebut==============

Li her discrimination complaint, asserting just federal law claims against Raytheon, at the Equal Employment Opportunity Commission (“EEOC”) on April 21, 2005. The following day, she filed the complaint at the Massachusetts Commission Against Discrimination (“MCAD”). Contrary to Raytheon’s argument, it makes no difference that the complaint was filed at the EEOC first. Pursuant to the “work-sharing agreement” between the EEOC and the MCAD, a complaint filed with one agency is considered automatically filed with the other. Davis v. Lucent Technologies, Inc., 251 F. 2d 227, 230 n.1 (1st Cir. 2001). As a result, Li is entitled to the 300-day limitations period provided in 42 U.S.C. § 2000e-5(e), not the 180 days argued by Raytheon. See also Seery v. Biogen, Inc., 203 F. Supp. 2d 35, 44 (D. Mass. 2002).



Even applying the longer limitations period, however, it is clear that Li’s claims are time-barred. In July 2001, Li believed that her programming work was rejected and she was criticized solely because she is Chinese. Li officially complained about this discrimination to the Raytheon EEO office in October 2002. In late 2002 and early 2003, Li believed that EEO investigation was a sham and constituted further discrimination against her. When Li returned from Langley, Virginia in January 2004, she believed that numerous Raytheon employees were retaliating against her because of the October 2002 EEO complaint. Despite her contemporaneous belief that she had been the victim of discriminatory, harassing, and/or retaliatory conduct in violation of Title VII in 2001, 2002, 2003, and early 2004, Li did not file her complaint with the EEOC until April 2005. Her complaint was timely only as to events that occurred within the prior 300 days, on or after June 25, 2004.

===============rebut==============

The panel ignored Ogle*****y’s harassment on July 31, 2004, and misrepresented the staring incident as if it happened until June 2004, misrepresented Li’s email complained “conspiracy” on July 17, 2004 and the following HR meeting as if they happened in June 2004, so that the panel claimed that the retaliation occurred outside of the statute of limitation, i.e. before June 25, 2004.

===============end rebut==============

As to the events that occurred within the limitations period ˉ the meeting with the EAP counselor, being place on administrative leave, the problems surrounding the psychiatrist’s report and Li’s short-term disability benefits ˉ Li has failed to meet her burden of showing that these are discrete discriminatory or retaliatory acts in violation of Title VII. Li has not produced any competent evidence that these events were motivated by discriminatory animus, and there are simply too many gaps in the chronology to sustain her claim that these events constitute impermissible retaliation under Title VII. There must be some temporal proximity between the protected conduct (filing the EEO complaint) and the alleged retaliation. Gaps of months and years weaken any inference of a causal connection. See, e.g., Dessler v. Daniel, 315 F. 3d 75, 79-80 (1st Cir. 2001) (two year gap between protected conduct and alleged retaliation defeated claim); Miller v. New Hampshire Dept. of Corrections, 296 F. 3d 18, 19 (1st Cir. 2002) (same); Mesnick v. General Electric Co., 950 F. 2d 816, 828 (1st Cir. 1991) (nine month gap defeated retaliation claim).

===============rebut==============

Two years gap should not defeat the claim, because Li spent a year in Langley Virginia and the harassers had no opportunity until Li came back to Marlboro. The panel’s ruling is conflicted with other the 6th and 9th circuit’s decisions.

===============end rebut==============

At best, Li’s argument can be understood as asserting that during the limitations period, she continued to suffer the effects (primarily her severe emotional distress) of prior discriminatory acts. In the absence of a separate and timely violation of Title VII, however, this is not sufficient to establish a continuing violation. Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007); Kassaye v. Bryant College, 999 F. 2d 603, 606 (1st Cir. 1993). See also National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116-17 (2002).

===============rebut==============

Because the panel erred by ruling on two years gap defeated the claim, the panel preempted the timely violation of Title VII, so that preempted establishing a continuing violation.

===============end rebut==============

We have reviewed Li’s remaining claims and find them either waived, United States v. Zannino, 895 F. 2d 1, 7 (1st Cir. 1990), or meritless. Finding the facts and legal arguments adequately presented in the briefs and record, we deny appellant’s motion for oral argument. Fed. R. App. P. 34(a).

The judgment of the district court is affirmed.



By the Court:

Richard Cushing Donovan, Clerk.



By: Margaret Carter (Chief Deputy Clerk)