Dasgupta v. University of Wisconsin Bd. of Regents

• Decision Date: 03 September 1997
• Docket Number: No. 96-4152.,96-4152.
• Citation: 121 F.3d 1138
• Parties: Ananta M. DASGUPTA, Plaintiff-Appellant, v. UNIVERSITY OF WISCONSIN BOARD OF REGENTS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

121 F.3d 1138

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.

Argued May 15, 1997.

Decided September 3, 1997.

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 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 raises similar to those that his peers received, and since he was starting from a lower base he ended up lower too. But an untimely Title VII suit cannot be revived by pointing to effects within the limitations period of unlawful acts that occurred earlier. Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980); Webb v. Indiana National Bank, 931 F.2d 434, 437-38 (7th Cir.1991). That would make employers pay compensation for violations that were no longer actionable and would thus unravel the statute of limitations. It would be like allowing the losing party in a lawsuit to toll the period for appeal by filing a motion for reconsideration eight years after the judgment; Dasgupta filed this suit eight years after the end of the first period of alleged discrimination, which was 1974 to 1987.

This is not a case like Bazemore v. Friday, 478 U.S. 385, 395-96, 106 S.Ct. 3000, 3006, 92 L.Ed.2d 315 (1986), or Wagner v. NutraSweet Co., 95 F.3d 527, 534 (7th Cir. 1996), where the illegal act is repeated during the limitations period. Any illegal act that takes place in the limitations period is actionable; the limitations bar falls only on earlier acts. A lingering effect of an unlawful act is not itself an unlawful act, however, so it does not revive an already time-barred illegality — a conclusion supported not only by Ricks and Webb but also by Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 658-59 (11th Cir.1993), and Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 249 (5th Cir.1980). The line is a fine one, but reasonably distinct. In Ricks, the discriminatory act, which occurred outside the limitations period, was the denial of tenure; Ricks's loss of his job, which occurred later, during the limitations period, was merely an effect of the illegal act — like other faculty denied tenure, he received a terminal one-year appointment — and did not revive it. In Bazemore and NutraSweet, the plaintiffs alleged that during the limitations period they failed to receive the amount of compensation that the law entitled them to. The fact that this level had been determined before the limitations period...