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Taylor v. Bunge Corp.

United States Court of Appeals, Fifth Circuit
Nov 26, 1985
775 F.2d 617 (5th Cir. 1985)

Summary

holding that § 1981 is best characterized as a tort under Louisiana law

Summary of this case from Foley v. University of Houston System

Opinion

No. 85-3321. Summary Calendar.

October 31, 1985. Rehearing Denied November 26, 1985.

Robert E. Lee, New Orleans, La., for plaintiff-appellant.

Monroe Lemann, Kenneth P. Carter, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, JOHNSON and JONES, Circuit Judges.


OPINION


The principal issue is whether the discharge of an employee in alleged violation of 42 U.S.C. § 1981 and Title VII is a continuing violation of those laws with the result that the statute of limitations on a suit for breach of those laws begins to run anew each day. Joining the Fourth, Seventh, and Eighth Circuits, we hold that the statute of limitations commences to run on discharge, the employee's claims mature at that time, and the violation is not a continuing one. We, therefore, affirm the judgment dismissing the suit for untimely filing.

Unless the statute of limitations has not yet begun to run, or has been tolled, the claims asserted by the plaintiff in this suit are patently untimely. The plaintiff was last employed by the defendant in August, 1982. This suit was filed in September, 1984. The plaintiff was required to bring suit on his claims under Title VII within ninety days of his receipt of the Right-to-Sue letter issued by the Equal Employment Opportunity Commission (EEOC). The EEOC mailed that letter on December 29, 1982.

42 U.S.C. § 2000e-5(f) (1982); Genovese v. Shell Oil Co., 488 F.2d 84 (5th Cir. 1973).

Similarly, the plaintiff's claim of racial discrimination in employment under 42 U.S.C. § 1981 is time barred. A section 1981 claim is best characterized as a tort under Louisiana law and is, therefore, governed by the one-year prescriptive period for delictual actions dictated by La.Civ. Code art. 3492. The filing and processing of charges with the EEOC under Title VII does not toll the running of the state prescriptive period governing section 1981 claims.

Jones v. Orleans Parish School Bd., 679 F.2d 32, 35 (5th Cir. 1982), withdrawn in part on rehearing, 688 F.2d 342 (5th Cir. 1982), cert. denied, 461 U.S. 951, 103 S.Ct. 2420, 77 L.Ed.2d 1310 (1983) (applying former La.Civ. Code art. 3536, the predecessor of art. 3492); Page v. U.S. Indus., Inc., 556 F.2d 346, 351-52 (5th Cir. 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978).

Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 465-66, 95 S.Ct. 1716, 1722-23, 44 L.Ed.2d 295, 304-05 (1975).

The plaintiff's voluntary dismissal of his earlier suit without prejudice did not toll the statute. As we held in LeCompte v. Mr. Chip, Inc., the effect of such a dismissal was to put the plaintiff in the same legal position in which he would have been had he never brought the first suit. The prescriptive period, therefore, is not tolled by the bringing of an action that is later voluntarily dismissed. This principle extends to actions brought under 42 U.S.C. § 1981 (1982) and Title VII.

528 F.2d 601, 603 (5th Cir. 1976).

Willard v. Wood, 164 U.S. 502, 523, 17 S.Ct. 176, 181, 41 L.Ed. 531, 540 (1896); Goff v. United States, 659 F.2d 560, 562 (5th Cir. 1981).

Cleveland v. Douglass Aircraft Co., 509 F.2d 1027, 1030 (9th Cir. 1975); Johnson v. Railway Express Agency, Inc., 489 F.2d 525, 528-29 (6th Cir. 1973), aff'd, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); McClain v. Mack Trucks, Inc., 81 F.R.D. 730, 732-33 (E.D.Pa. 1979); Owens v. Weingarten's, Inc., 442 F. Supp. 497 (W.D. La. 1977). See generally 5 Moore's Federal Practice ¶ 41.05[2] (2d ed. 1975), 9 Wright Miller, Federal Practice and Procedure § 2367, at 186-87 (1971).

The plaintiff's characterization of his claim as one for a continuing violation is incorrect. The plaintiff concedes that his employment with the defendant terminated in August, 1982. He argues, however, that, because his claim is for back pay from the date of discharge to date, it is for a "continuing violation." While the continuing-discrimination theory may be available to present employees, even though on layoff, the Fourth, Seventh, and Eighth Circuits have held that termination of employment either through discharge or resignation is not a "continuing" violation because the individual ceases to be an employee on the date of his discharge and all of his legal claims mature at that time. Under the plaintiff's suggested application of the continuing-violation doctrine, his claims would never prescribe; this would destroy the policy of finality underlying the statute of limitations.

Cf. Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849, 852-53, 28 L.Ed.2d 158 (1971).

Cox v. U.S. Gypsum Co., 409 F.2d 289 (7th Cir. 1969).

West v. ITT Continental Baking Co., 683 F.2d 845, 846 (4th Cir. 1982); Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1234 (8th Cir. 1975) (en banc); Cox v. U.S. Gypsum Co., 409 F.2d 289, 290 (7th Cir. 1969). See also United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977).

As to the plaintiff's pendent state law claims, the Supreme Court has stated in United Mine Workers v. Gibbs, "[c]ertainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state [law] claims should be dismissed as well."

383 U.S. 715, 726, 86 S.Ct. 1130, 1137, 16 L.Ed.2d 218, 228 (1966). See 6 Wright Miller, Federal Practice and Procedure § 1588, at 814-15 (1971).

For these reasons, the judgment is AFFIRMED.


Summaries of

Taylor v. Bunge Corp.

United States Court of Appeals, Fifth Circuit
Nov 26, 1985
775 F.2d 617 (5th Cir. 1985)

holding that § 1981 is best characterized as a tort under Louisiana law

Summary of this case from Foley v. University of Houston System

emphasizing the “policy of finality underlying the statute of limitations”

Summary of this case from N. Cypress Med. Ctr. Operating Co. v. Cigna Healthcare

stating that termination is not a "continuing violation" for limitations purposes in an employment discrimination suit

Summary of this case from Nelson v. University of Texas

reasoning that a timely-filed Title VII suit dismissed without prejudice for want of prosecution does not act to toll the 90-day limitations period for a subsequent Title VII claim

Summary of this case from Sabrina v. Cont'l / United Airlines

extending to antidiscrimination statutes the principle that the limitation period is not tolled by bringing an action that is later dismissed

Summary of this case from Williams v. Career Sys. Dev. Corp.

applying state statute of limitations arising in connection with inquiry under 42 U.S.C. § 1981

Summary of this case from Hitchen v. Se. Cmty. Health Sys.

addressing voluntary dismissal

Summary of this case from Ward v. City of Dallas

In Taylor v. Bunge Corp., 775 F.2d 617 (5th Cir. 1985), the court held that plaintiff's voluntary dismissal of his earlier suit without prejudice did not even toll the statute of limitations.

Summary of this case from Chott v. Cal Gas Corp.
Case details for

Taylor v. Bunge Corp.

Case Details

Full title:REV. GEORGE TAYLOR, PLAINTIFF-APPELLANT, v. BUNGE CORPORATION…

Court:United States Court of Appeals, Fifth Circuit

Date published: Nov 26, 1985

Citations

775 F.2d 617 (5th Cir. 1985)

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