121 F.3d 1138 (7th Cir. 1997), 96-4152, Dasgupta v. University of Wisconsin Bd. of Regents

Docket Nº:96-4152.
Citation:121 F.3d 1138
Party Name:Ananta M. DASGUPTA, Plaintiff-Appellant, v. UNIVERSITY OF WISCONSIN BOARD OF REGENTS, et al., Defendants-Appellees.
Case Date:September 03, 1997
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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121 F.3d 1138 (7th Cir. 1997)

Ananta M. DASGUPTA, Plaintiff-Appellant,

v.

UNIVERSITY OF WISCONSIN BOARD OF REGENTS, et al., Defendants-Appellees.

No. 96-4152.

United States Court of Appeals, Seventh Circuit

September 3, 1997

Argued May 15, 1997

Page 1139

Steven J. Schooler (argued), Lawton & Cates, Madison, WI, for Plaintiff-Appellant.

Monica Burkett-Brist (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.

Before POSNER, Chief Judge, and KANNE and EVANS, Circuit Judges.

POSNER, Chief Judge.

A psychology professor at the Eau Claire branch of the University of Wisconsin claims that the university discriminated against him in pay because of his national origin (he is Bangladeshi), in violation of Title VII of the Civil Rights Act of 1964 and (though this need not be discussed separately) 42 U.S.C. § 1983. The district judge granted summary judgment for the defendants.

Dr. Dasgupta claims to have been discriminated against on the basis of his national origin (and his membership in the "brown race," a biological novelty--the people of the Indian subcontinent are Caucasians) between 1974, when he was first hired by the Eau Claire branch of the university, and 1987, when the discrimination ceased, only to resume in 1990 and to be repeated in 1994 and 1995. The suit was brought in 1995, and Dasgupta concedes that any of the alleged violations of Title VII that occurred before 1994 are barred by the statute of limitations unless they were continuing violations, that is, violations continuing into the 300-day limitations period. 42 U.S.C. § 2000e5(e) (1); Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 707 (7th Cir. 1995); Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir. 1994). He contends that the violations that occurred between 1974 and 1987 continued into the current period.

A continuing violation is one that could not reasonably have been expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitations period. Galloway v. General Motors Service Parts Operations, 78 F.3d 1164, 1167 (7th Cir. 1996); Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 481-82 (3d Cir. 1997); Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983). The clearest examples involve sexual harassment, where, as we noted in Galloway v. General Motors Service Parts Operations, supra, 78 F.3d at 1167, and Jones v. Merchants National Bank & Trust Co., 42 F.3d 1054, 1058 (7th Cir. 1994), duration is often necessary to convert what is merely offensive behavior, and therefore not actionable under Title VII, Baskerville v. Culligan International Co., 50 F.3d 428, 431 (7th Cir. 1995); Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 534 (7th Cir. 1993); Rabidue v. Osceola Refining Co., 805 F.2d 611, 620-21 (6th Cir. 1986), into an actionable alteration in the plaintiff's working conditions. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405-06, 91 L.Ed.2d 49 (1986); Carr v. Allison Gas Turbine Division, 32 F.3d 1007, 1011 (7th Cir. 1994). The violations of Dasgupta's right not to be discriminated against in the workplace that he alleges occurred between 1974 and 1987 were not of this character; they were outright national-origin discrimination in pay and promotion, coupled with the university's failure to take any measures to protect him from gross harassment by other members of the faculty (including, he implausibly asserts, spitting on him) because of his national origin. These alleged violations would have supported a Title VII suit; Dasgupta's failure to bring such a suit

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cannot be ascribed to the ambiguous or incomplete nature of the discrimination--to his being the victim of a campaign whose discriminatory character was not apparent at the time.

Dasgupta claims, and in the posture of the case we accept, that as a result of the early discrimination his salary during the limitations period, which is to say since February 1994, was much lower than that of his peers in the psychology department, the reason being simply that he received...

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