612 F.2d 383 (8th Cir. 1980), 79-1397, Guy v. Swift and Co.

Docket Nº:79-1397.
Citation:612 F.2d 383
Party Name:John A. GUY, Appellant, v. SWIFT AND COMPANY, Appellee.
Case Date:January 08, 1980
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 383

612 F.2d 383 (8th Cir. 1980)

John A. GUY, Appellant,

v.

SWIFT AND COMPANY, Appellee.

No. 79-1397.

United States Court of Appeals, Eighth Circuit

January 8, 1980

        Submitted Jan. 2, 1980.

        John A. Guy, pro se, filed brief.

        William T. Oakes, Kennedy, Holland, DeLacy & Svoboda, Omaha, Neb., filed brief, for appellee.

        Before HEANEY, ROSS and McMILLIAN, Circuit Judges.

        PER CURIAM.

        John A. Guy appeals from the district court 1 order dismissing his complaint. Adopting the findings of fact and conclusions of law filed by the magistrate 2 to whom the case had been referred, the court granted defendant-appellee Swift & Company's (Swift) motions to dismiss for failure to state a claim under either 42 U.S.C. § 1981 or the fourteenth amendment, entered summary judgment against Guy on

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his Title VII claim and accordingly dismissed Guy's complaint. Guy, proceeding Pro se, 3 appeals the district court's entry of judgment against him.

        Swift employed John A. Guy, a black male, in its boning department from February 27, 1974, until April 1, 1974. On April 2, 1974, he was suspended for disciplinary reasons and the suspension was converted to a layoff on April 5, 1974. Since then he has not been recalled for employment nor has he applied for another job with Swift.

        Guy's suit arises out of an incident which occurred on April 2, 1974. On that day, Guy entered the office of Swift's plant superintendent, William Linder, and demanded to know what Linder intended to do about Guy's complaints of harassment by fellow workers, approximately half of whom were black. In his deposition, Guy characterized the harassment as "horseplay" on the part of his fellow workers and described the conduct to which he objected as throwing pieces of meat at him or near him as well as the making of accusations that he was insufficiently productive. Guy does not accuse Swift's foreman or plant superintendent of harassment.

        During the conversation between Guy and Linder, Guy leaned over the desk within a few feet of Linder's face as he addressed him. Linder told Guy several times to discontinue the loud talk or he would suspend him, and later requested him to leave the office and threatened to call the county sheriff to remove him. Linder then suspended Guy, and Guy left.

        While Guy denied that he used the phrase "God dammit" in the exchange, he did admit that he verbally accosted Linder and used the term "dammit."

        Guy submitted his grievance concerning the suspension to the grievance arbitration procedure specified in the Master Agreement then in effect between Swift and the Amalgamated Meat Cutters and Butchers Workmen of North America, AFL-CIO, the bargaining unit of which he was a member. 4 On October 27, 1975, the arbitrator determined that Guy's conduct had amounted to insubordination warranting imposition of the three-day suspension, and the grievance was denied.

        Guy filed a complaint with the Nebraska Equal Employment Opportunity Commission on September 6, 1974, alleging that his layoff and discharge were the result of Swift's racially animated discrimination against him. The hearing examiner subsequently concluded, "There is nothing about the facts in this case to suggest the employers were biased in any way toward complainant because of his race." The Nebraska Commission entered a final order dismissing Guy's complaint with prejudice on September 12, 1977.

        Guy also filed a charge of race discrimination arising out of his suspension and layoff with the federal Equal Employment Opportunity Commission. The federal Commission issued a final determination that there was not reasonable cause to believe that the charge was true.

        Guy finally filed a Pro se complaint in the district court on January 13, 1978, seeking damages and declaratory and injunctive relief and charging Swift with violation of 42 U.S.C. § 1981 (1976), the fourteenth amendment and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq. (1976). The district court granted Guy's motion to prosecute the suit In forma pauperis and appointed counsel to represent him. From the district court's dismissal of his complaint, Guy appeals.

        Pursuant to Fed.R.Civ.P. 12(b)(6), Swift moved to dismiss Guy's § 1981 claim on the ground that it was barred by the applicable statute of limitations, Neb.Rev.Stat. § 25-

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219 (Reissue of 1975). 5 The magistrate recommended that the motion be granted, and the district court adopted the magistrate's recommendation.

        Because there is no specifically stated or otherwise relevant federal statute of limitations for a cause of action...

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