Jones v. Merchants Nat. Bank & Trust Co. of Indianapolis

• Decision Date: 12 December 1994
• Docket Number: No. 92-4076,92-4076
• Citation: 42 F.3d 1054
• Parties: 66 Fair Empl.Prac.Cas. (BNA) 865, 65 Empl. Prac. Dec. P 43,414 Evelyn R. JONES, Plaintiff-Appellant, v. MERCHANTS NATIONAL BANK & TRUST COMPANY OF INDIANAPOLIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1054

42 F.3d 1054

66 Fair Empl.Prac.Cas. (BNA) 865,

65 Empl. Prac. Dec. P 43,414

Evelyn R. JONES, Plaintiff-Appellant, v. MERCHANTS NATIONAL BANK & TRUST COMPANY OF INDIANAPOLIS,

Defendant-Appellee.

No. 92-4076.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 12, 1994.

Decided Dec. 12, 1994.

Patrick E. Chavis, III, John O. Moss (argued), Indianapolis, IN, for plaintiff-appellant.

David L. Swider (argued), Karen Glasser Sharp, Bose, McKinney & Evans, Indianapolis, IN, for defendant-appellee.

Before GODBOLD, ^* FLAUM, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge.

Evelyn Jones, a black female, filed a claim against Merchants National Bank ("MNB") alleging it discriminated against her on account of her race in violation of 42 U.S.C. Sec. 1981. Specifically, she alleged that MNB discriminatorily denied her promotions, pay increases, and management training classes. In addition, Jones claimed that MNB paid her less than white employees for the same job and that her superiors racially and sexually harassed her. The district court granted MNB's motion for summary judgment and Jones appealed. We affirm.

I.

MNB hired Evelyn Jones on November 15, 1982, as a Clerk III, a nonsupervisory, nonsalaried position. Jones enrolled at the University of Indianapolis in 1983, and began working toward a Bachelor of Science in Accounting. ¹ Over the next several years Jones received various promotions and pay raises. However, over this same time period, Jones failed to be promoted to other positions she felt entitled to and qualified for.

In February, 1987, Jones agreed to a transfer to a different department which her superiors suggested held greater opportunities for advancement. One year later, Jones received a promotion to MNB Accountant but allegedly did not receive a promised pay raise. Sometime in 1989, Jones requested a promotion to officer status. Her superiors informed her that they would not promote her because of her lack of a college degree. After learning that a white woman with less seniority and no college degree had received a promotion to an officer position, Jones again sought such a promotion. Her supervisors insisted that MNB could not promote her without a college degree. Jones took MNB's refusal as a constructive discharge and tendered her resignation, effective July 31, 1989.

Jones filed this action on March 28, 1991, alleging that MNB had discriminated against her on account of her race, in violation of 42 U.S.C. Sec. 1981, by:

a. treating her negatively from the manner in which similarly situated Caucasian employees were treated;

b. failing and refusing to promote Plaintiff to the position of Senior Bank Accountant and/or Officer Status;

c. failing to compensate the Plaintiff on the same terms and conditions as similarly situated Caucasian employees were compensated; and

d. denying Plaintiff the opportunity to apply for advanced positions.

Plaintiff's Complaint p 6. In her list of contentions, Jones enumerated several promotions which she alleges MNB discriminatorily denied her, including: Tax Accountant Coordinator in 1983; Tax Officer in 1986; Senior Cost Analyst in 1986; Assistant Tax Officer in 1987; Senior Corporate Accountant in 1988; Senior Bank Accountant in 1988; General Ledger Report Writer in 1988; and an officer position in 1989. Jones further claimed that she received less pay than the white employees who obtained the above promotions. She also contended that MNB discriminatorily denied her placement in its Management Training Program in 1984, which she believes would have increased her advancement opportunities. Finally, Jones alleged that MNB employees racially and sexually harassed her because of her race. ²

MNB moved for summary judgment on February 24, 1992. On July 10, 1992, before the close of discovery, Jones served her second request for production of documents and second set of interrogatories on MNB. MNB moved for an enlargement of time to respond to that request. On July 29, 1992, the court gave MNB until 30 days after its ruling on the motion for summary judgment in which to respond to Jones' requests. The district court granted MNB's motion for summary judgment on November 17, 1992.

In its order granting summary judgment for MNB, the district court held that all of Jones' promotion claims, except for the 1989 promotion to officer status, and the discriminatory pay claims related to those promotions were barred by Indiana's two year statute of limitations. The court further held that Jones had waived a contract claim by her failure to make any allegations relating to the claim prior to her motion opposing summary judgment, and that the claim was barred by the statute of limitations. ³ Finally, the court held that all of Jones' other claims were barred by Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Jones challenges these findings and also asserts that the district court abused its discretion in granting MNB an extension of time in which to respond to her discovery requests.

II.

We review the district court's grant of summary judgment for MNB de novo, Karazanos v. Navistar International Transportation Corp., 948 F.2d 332, 335 (7th Cir.1991), and review the record, and all reasonable inferences which can be drawn from it, in the light most favorable to Jones, the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). Once the moving party has demonstrated that no genuine issue of material fact exists the non-moving party must show, by specific factual allegations, the existence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). "Self-serving assertions without factual support in the record will not defeat a motion for summary judgment." McDonnell v. Cournia, 990 F.2d 963, 969 (7th Cir.1993).

The district court held that Indiana's two year statute of limitations for personal injury actions barred all of Jones' promotion claims except one. Ind.Code Sec. 34-1-2-2(1) (1993). We have previously determined that this statute of limitations applies to Sec. 1981 claims. Coopwood v. Lake County Community Development Dept., 932 F.2d 677, 679 (7th Cir.1991). Jones filed her action on March 28, 1991, thus she can only complain about those promotions MNB denied her after March 28, 1989, namely a promotion to officer status sometime in 1989.

However, Jones claims that these various promotion denials (putting aside for now the 1989 officer position) constitute a "continuing violation" so that they are not time-barred. In United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1971), the Supreme Court held that a Title VII plaintiff may recover for acts barred by the statute of limitations if she can show a "continuing violation." The Court, however, stressed that there must be a present violation to complain about, not just the persisting effects of past discrimination. Id. at 558, 97 S.Ct. at 1889.

Since Evans this Court has discussed three different continuing violation theories. Selan v. Kiley, 969 F.2d 560, 565 (7th Cir.1992); Stewart v. CPC International, Inc., 679 F.2d 117, 120-21 (7th Cir.1982). The first theory encompasses decisions, usually relating to hiring and promotions, where the employer's decision-making process takes place over a period of time, making it difficult to determine the actual date of the allegedly discriminatory act. In such instances, the statute of limitations begins running for the claim when the plaintiff knows that the decision has been made. Stewart, 679 F.2d at 121 n. 2. Jones' allegations do not fit this theory because all of MNB's refusals to promote her and the corresponding promotions of others, which would have given her notice of its decision, fell outside of the limitations period. See Selan, 969 F.2d at 565.

The second continuing violation theory involves an employer's express, openly espoused policy that is alleged to be discriminatory. Id. This concept also does not apply to Jones' case because nowhere does she allege that MNB had an explicit, clearly conveyed policy of discriminating against blacks in promotion decisions.

Finally, a plaintiff can show a continuing violation where an employer covertly follows a practice of discrimination over a period of time. Id. In such a case, the plaintiff can only realize that she is a victim of discrimination after a series of discrete acts has occurred. The limitations period begins to run when the plaintiff gains such insight. Moskowitz v. Trustees of Purdue University, 5 F.3d 279, 281-82 (7th Cir.1993). However, if the plaintiff knew, or "with the exercise of reasonable diligence would have known after each act that it was discriminatory and had harmed" her, she must sue over that act within the relevant statute of limitations. Id. at 282. Here, Jones admits that she felt, at the time that they occurred, that some of MNB's refusals to promote her were discriminatory. See Plaintiff's Affidavit in Support of her Response to Defendant's Motion for Summary Judgment pp 8, 11. In addition, each promotion was a discrete decision and each time Jones knew, or should have known, that she had not received the promotion and another person had. See Selan, 969 F.2d at 565. Thus, Jones cannot rely on any continuing violation theory to revive her claims for discriminatory promotions. ⁴ And, because her promotion claims are barred, Jones' claims of discriminatory pay based on her failure to obtain the promotions are likewise barred. Webb v. Indiana National Bank, 931...