580 F.2d 380 (10th Cir. 1978), 76-1512, Zuniga v. AMFAC Foods, Inc.

Docket Nº:76-1512.
Citation:580 F.2d 380
Party Name:Dec. P 8415 Fred A. ZUNIGA, Plaintiff-Appellant, v. AMFAC FOODS, INC., d/b/a Wilhelm Foods, Inc., Defendant-Appellee.
Case Date:July 10, 1978
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 380

580 F.2d 380 (10th Cir. 1978)

Dec. P 8415

Fred A. ZUNIGA, Plaintiff-Appellant,


AMFAC FOODS, INC., d/b/a Wilhelm Foods, Inc., Defendant-Appellee.

No. 76-1512.

United States Court of Appeals, Tenth Circuit

July 10, 1978

Argued and Submitted Aug. 1, 1977.

Page 381

Thomas H. May, Denver, Colo., for plaintiff-appellant.

Paul E. Mirengoff, Washington, D. C. (Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg, Charles L. Reischel and Lutz Alexander Prager, Washington, D. C., on the brief), for Equal Employment Opportunity Commission as amicus curiae.

R. Brooke Jackson, of Holland & Hart, Denver, Colo. (John C. Siegesmund, III, Holland & Hart, Denver, Colo., with him on the brief), for defendant-appellee.

Before SETH, Chief Judge, and HOLLOWAY and BARRETT, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff-appellant Zuniga brought this action for reinstatement with back pay, advancement in pay grade and seniority denied during a period of discharge, for costs and other equitable relief deemed proper. He alleges that jurisdiction is invoked under 42 U.S.C. § 1981 1 and also avers diversity of citizenship and that the amount in controversy exceeds $10,000.00. Treating the motion to dismiss on limitations grounds as a motion for summary judgment, the district court dismissed the action as barred by both C.R.S.1973 § 13-80-106, containing a two year bar for actions under federal statutes or the limitation period for comparable actions under Colorado law, whichever is longer, and by § 13-80-108(1)(b), the three-year Colorado residuary statute of limitations. This appeal followed.

An agreed statement of the case was approved by the district court and filed pursuant to Rule 10(d), F.R.A.P. It states that the issue on appeal is:

Whether the appropriate statute of limitations governing employment discrimination actions brought in the federal district courts of Colorado under 42 U.S.C. § 1981 is either the two-year "federal action" statute (1973 C.R.S. § 13-80-106) or three-year "residuary" statute (1973 C.R.S. § 13-80-108(1) (b)), on the one hand, or the six-year statute governing certain contract and tort actions (1973 C.R.S. § 13-80-110), on the other, or some other statute.

The agreed statement says that the plaintiff's action was brought solely under 42 U.S.C. § 1981. It briefly summarizes the facts as follows:

The plaintiff was employed by defendant AMFAC from October, 1969 to August, 1970. Plaintiff alleges that in August, 1970, defendant refused him "bumping rights" which would have prevented the termination of his employment. Plaintiff further avers that on April 5, 1971, defendant wrongfully refused him reinstatement and that defendant AMFAC's actions were based on plaintiff's national origin, in violation of 42 U.S.C. § 1981. Defendant denies such allegations.

The agreed statement further says that plaintiff's complaint was filed approximately four years and nine months after his cause of action accrued concerning his alleged "bumping rights" and four years and two months after his cause of action accrued concerning the refusal of reinstatement.

In order to have a more thorough understanding of the complaint, the motion to dismiss and the defendant's supporting statement of points and authorities, on our own motion we directed that a supplemental record containing those critical pleadings be certified and transmitted. 2 See Rule 10(e), F.R.A.P. From that record we note these circumstances:

The complaint essentially alleges these facts: Plaintiff was hired by defendant AMFAC in October, 1969. In August, 1970,

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AMFAC refused to grant or recognize plaintiff's "bumping rights" which would have kept plaintiff working and would have allowed plaintiff to retain his seniority. On April 5, 1971, plaintiff requested reinstatement but this request was denied, allegedly because of plaintiff's national origin, Mexican-American. Anglos with less seniority have been retained and continue to work and the plaintiff has not been reinstated or recalled to work.

Plaintiff further avers that defendant's collective bargaining agreement provides that seniority shall be determined by the length of service in the plant; that plaintiff had been performing the same job which an Anglo specialist is now doing while plaintiff had a hire date and seniority date of October 6, 1969, or more than one month's seniority over the Anglo employee who was retained; that plaintiff was not afforded the opportunity to be trained, which would have enabled him to retain his seniority rights; and that defendant's seniority policy was in effect at the time of the alleged incident.

Further, the complaint alleges that all of defendant's acts complained of are based solely on discrimination against plaintiff because of his national origin, that plaintiff has resorted to processes of the Equal Employment Opportunity Commission pursuant to 42 U.S.C. § 2000e-5, that the E.E.O.C. has sustained plaintiff's allegations in its findings of fact, that defendant has refused to resolve the charges through informal methods of conference, conciliation and persuasion, and that plaintiff has also exhausted all State administrative procedures. Plaintiff claims that 42 U.S.C. § 1981 prevents defendant from engaging in the unlawful employment practices to wit discharging an individual because of race, color or national origin, and from discriminating against an individual in a training or re-training program, including on the job training, because of the individual's race, color or national origin. As noted, reinstatement with full back pay, advancement in pay grade and seniority, costs and other relief are sought.

Defendant AMFAC's motion to dismiss under Rule 12(b)(6), F.R.Civ.P., for failure to state a claim, and its supporting statement of points and authorities, argue for dismissal on limitations grounds. It says that the complaint results from plaintiff's layoff in August 1970, that a discriminatory act on April 5, 1971, was alleged when plaintiff claims he requested reinstatement, and that the complaint was not filed until June 4, 1975 more than four years after the most recent discriminatory act alleged. AMFAC's statement of points and authorities argues that the applicable statute of limitations is two years under C.R.S.1973 § 13-80-106 (Supp.R. 6).

The district court held the action barred by limitations. By an order on March 16, 1976, the court pointed out that there was a difference of views on the limitations question among the Judges of the District, which will be treated later. In this order Chief Judge Winner stated that:

This case is barred under both 13-80-106 and 13-80-108(1)(b), and I need hold no more and I hold no more than did Chief Judge Arraj in Evans. However, if the case had been brought more than two years and less than three years after the claim arose, I would unhesitatingly hold that the action was barred under C.R.S.1973 13-80-106.

The order further advised that it was the court's intention to treat the motion as one for summary judgment and that summary judgment would be entered for defendant on March 29, 1976, unless plaintiff raised genuine issues of material fact before that time. The docket sheet shows no filings by plaintiff before that date when the complaint and action were dismissed.


We begin with the problem that no statute of limitations is provided by Congress for actions to redress infringement of rights protected by 42 U.S.C. § 1981. However, for such cases it is settled that "the silence of Congress has been interpreted to mean that it is federal policy to adopt the local law of limitation." Runyon v. McCrary, 427

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U.S. 160, 180, 96 S.Ct. 2586, 2599, 49 L.Ed.2d 415. "Since there is no specifically stated or otherwise relevant federal statute of limitations for a cause of action under § 1981, the controlling period would ordinarily be the most appropriate one provided by state law. See O'Sullivan v. Felix, 233 U.S. 318 (34 S.Ct. 596, 58 L.Ed. 980) (1914); (Civil Rights Act of 1871); Auto Workers v. Hoosier Corp., 383 U.S. 696, 701-704, (86 S.Ct. 1107, 16 L.Ed.2d 192) (1966) (Labor Management Relations Act) . . . " Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295. Under this principle our court had earlier applied Oklahoma and Kansas limitations periods in civil rights suits brought under 42 U.S.C. §§ 1983 and 1985 and their antecedents. See Crosswhite v. Brown, 424 F.2d 495, 496 (10th Cir.); Wilson v. Hinman, 172 F.2d 914, 915 (10th Cir.), cert. denied, 336 U.S. 970, 69 S.Ct. 933, 93 L.Ed. 1121.

Thus since no federal limitation governs, the timeliness of this suit ". . . is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations." Auto Workers v. Hoosier Corp., 383 U.S. 696, 705, 86 S.Ct. 1107, 1113, 16 L.Ed.2d 192. The process is outlined as follows, id. at 706, 86 S.Ct. at 1113:

We agree that the characterization of this action for the purpose of selecting the appropriate state limitations provision is ultimately a question of federal law. Textile Workers v. Lincoln Mills, supra (353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972); McClaine v. Rankin, supra (197 U.S. 154, 25 S.Ct. 410, 49 L.Ed. 702). But there is no reason to reject the characterization that state law would impose unless that characterization is unreasonable or otherwise inconsistent with (the policy of the federal statute). Cf. Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 210, (66 S.Ct. 992, 90 L.Ed. 1172); De Sylva v. Ballentine, 351 U.S. 570, 580-582, (76 S.Ct. 974, 100 L.Ed. 1415).

There are marked differences in the approach to choice of the appropriate state statute of limitations. This is illustrated by Beard v. Robinson, 563 F.2d 331, 336 (7th Cir.), which rejected the method of characterizing the facts underlying...

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