Summary
noting that claims arising under § 1981 are subject to a two-year statute of limitations, while claims arising under § 1981(b) are subject to a four-year statute of limitations
Summary of this case from HOLMES v. BOALOpinion
Case No. 04-2019-GTV
April 27, 2004
MEMORANDUM AND ORDER
Plaintiff Duane Perkins and fourteen other Plaintiffs bring this case against Defendant Rent-A-Center, claiming that Defendant discriminated against them because of their race in violation of 42 U.S.C. § 1981, as well as other federal statutes. Plaintiffs are current and/or former employees of Defendant who allege that Defendant engaged in a pattern and practice of racial discrimination in employment practices and policies.
The case is before the court on Defendant's motion to dismiss certain claims of Plaintiff Perkins (Doc. 9). Specifically, Defendant contends that the statute of limitations bars several of Plaintiff Perkins's claims. For the following reasons, the court denies Defendant's motion.
Defendant first argues that the statute of limitations for actions arising under 42 U.S.C. § 1981(b) is four years, see Harris v. Allstate Ins. Co., 300 F.3d 1183, 1192 (10th Cir. 2002), and that all of Plaintiff Perkins's claims arising before January 15, 2000 are time-barred. Plaintiff Perkins does not dispute this argument, but clarifies that he is not alleging any discrimination claims arising before January 15, 2000. Accordingly, the court denies this portion of Defendant's motion as moot.
Defendant next argues that Plaintiff Perkins's claims for race discrimination in promotion are brought pursuant to 42 U.S.C. § 1981(a), and are therefore subject to a two-year statute of limitations. Plaintiff Perkins counters that promotion claims are not subject to a shorter statute of limitations, but even if some promotion claims fall under § 1981(a), it is premature to rule whether Plaintiff Perkins's claims fall in that category. The court agrees.
In Harris v. Allstate Ins. Co., the Tenth Circuit held that claims brought pursuant to § 1981(b) are governed by the 28 U.S.C. § 1658 four-year statute of limitations. 300 F.3d at 1192. But see Jones v. Donnelly Sons Co., 305 F.3d 717, 728 (7th Cir. 2002), cert. granted, 123 S.Ct. 2074 (2003) (holding that § 1658 does not apply to any § 1981 claims).Harris also held that claims brought pursuant to § 1981(a) are governed by the appropriate state statute of limitations.Id. at 1188-89. In the instant case, the two-year Kansas personal injury statute of limitations would apply to a § 1981(a) claim. See Onyi v. Learjet, Inc., No. 01-1102-JAR, 2003 WL 12414, at *5 (D. Kan. Jan. 6, 2003); Kan. Stat. Ann. § 60-513. The issue before the court, then, is whether Plaintiff Perkins's promotion claims fall under § 1981(a) or § 1981(b).
In certain circumstances, a claim for failure to promote has been recognized under § 1981(a). See Hooks v. Diamond Crystal Specialty Foods, Inc., 997 F.2d 793, 801 (10th Cir. 1993),overruled on other grounds by Buchanan v. Sherrill, 51 F.3d 227 (10th Cir. 1995). Specifically, to be cognizable under § 1981(a), a promotion must "`rise to the level of an opportunity for a new and distinct relation between the employee and the employer. . . .'"Id. (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 185-86 (1989) (emphasis in Hooks). When evaluating whether a "new and distinct relation" exists, the Tenth Circuit looks for a "meaningful, qualitative change in the contractual relationship."Id. at 802. A promotion from a non-supervisory position to a supervisory one night create a "new and distinct relation," because it "implicates a heightened level of responsibility and increased level of accountability to the company." Id.
At this stage of the litigation, the court is unable to discern whether Plaintiff Perkins's promotion claims meet the "new and distinct relation" test. The court rules on a motion to dismiss based on the allegations in the Complaint. In the Complaint, Plaintiff Perkins alleges simply that "[p]ursuant to Defendant's centralized pattern and practice of discrimination, Mr. Perkins was denied promotional opportunities extended to similarly situated or less qualified Caucasian employees." The court is unable to tell from these allegations what type of promotional opportunities Plaintiff Perkins alleges he was denied. Although some or all of Plaintiff Perkins's promotion claims may be subject to dismissal upon further delineation and further motion, Defendant's motion is premature.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendant's motion to dismiss (Doc. 9) is denied.
Copies or notice of this order shall be transmitted to counsel of record.