612 F.2d 974 (5th Cir. 1980), 77-2999, Dumas v. Town of Mount Vernon, Ala.

Docket Nº:77-2999.
Citation:612 F.2d 974
Party Name:Joannie Allen DUMAS, Plaintiff-Appellant, v. TOWN OF MOUNT VERNON, ALABAMA, et al., Defendants-Appellees.
Case Date:March 03, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 974

612 F.2d 974 (5th Cir. 1980)

Joannie Allen DUMAS, Plaintiff-Appellant,

v.

TOWN OF MOUNT VERNON, ALABAMA, et al., Defendants-Appellees.

No. 77-2999.

United States Court of Appeals, Fifth Circuit

March 3, 1980

Page 975

Gregory B. Stein, Larry T. Menefee, Mobile, Ala., for plaintiff-appellant.

Thomas A. Deas, Mobile, Ala., for defendants-appellees.

John Gartman, pro se.

Charles Simison, pro se.

Mylan R. Engel, Mobile, Ala., for Mobile County Personnel Bd. & Pierce.

Appeal from the United States District Court for the Southern District of Alabama.

Before BROWN, HILL and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

This is an appeal from the dismissal of an individual action alleging a racially discriminatory refusal to hire. For the reasons set

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out below, we affirm the dismissal of all claims except those against the Personnel Board arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq. (1976).

Appellant, Joannie Allen Dumas, is a black female citizen of Mount Vernon, Alabama, a political subdivision incorporated as a municipality under the laws of Alabama. In September, 1974, Ms. Dumas applied to the Mobile County Personnel Board for the position of Assistant Town Clerk for the Town of Mount Vernon. The Personnel Board, as the administrator of the Mobile County Civil Service System, administered an exam and interview-appraisal to Appellant Dumas. Thereafter, Ms. Dumas was ranked first on the employment register, from which the Town of Mount Vernon was to select the person to fill the vacancy of Assistant Town Clerk. Ms. Dumas was not interviewed by the Town and upon calling the mayor on November 18, 1974, learned that a white person ranked below her on the Personnel Board's certification list had been hired for the job. On December 16, 1974, Ms. Dumas filed the first of several charges of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging she was being denied employment on the basis of race. In April, 1975, the white person who had been hired instead of Ms. Dumas the previous November resigned and Appellant's name was again sent to the Town for consideration. This time she was the only person certified to the Town by the Personnel Board. After an interview, Mayor Simison, on behalf of the Town, notified Ms. Dumas by letter dated May 12, 1975, that "(u)pon a recommendation by the Mobile County Personnel Board," the Town had agreed not to fill the position of Assistant Town Clerk "at this time." The reason given for this decision was that the employee who had just quit the job had one year to reapply for the position under civil service rules. On May 20 and 22, 1975, Ms. Dumas wrote the EEOC supplementing her charges of racial discrimination, informing the EEOC of the Town's decision not to fill the vacancy. The job has remained open at all times since then. Appellant has received no notification that she was no longer being considered for the position and no notification that her name was being removed from the employment register. On January 13, 1977, the EEOC sent Appellant notice of her right to sue within ninety days and she filed suit on March 31, 1977, against the Town of Mount Vernon, the Mobile County Personnel Board, the Town's Mayor and former Councilman, John A. Gartman, the Town's former Mayor, Charles H. Simison, and the former Director of the Personnel Board, George H. Pierce. Jurisdiction over the Town, the Personnel Board and Simison was premised on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq. (1976), and on 42 U.S.C. § 1981 (1976). Jurisdiction over each of the individual defendants was premised on 42 U.S.C. §§ 1981, 1983, 1985(3) and 1986 (1976).

By order of August 10, 1977, the district court held that "the wrongful acts of the defendants complained of by the plaintiff occurred on or about November 18, 1974, and again during the month of May, 1975," and that the claims bottomed on 42 U.S.C. §§ 1981, 1983 and 1985(3) were time-barred by the one-year statute of limitations set out in Ala.Code tit. 7, § 26 (1973), and the § 1986 claims were time-barred by the one-year statute of limitations set out in that section. Defendants Gartman and Pierce were dismissed because the claims against them rested entirely on violations under Title 42. The Personnel Board was dismissed for failure to state a claim upon which relief could be granted since the district court found that there was no allegation on the face of the complaint of any action by the Personnel Board which would amount to an unlawful employment practice under 42 U.S.C. § 2000e Et seq. After a hearing on the jurisdictional question of whether the remaining defendants, the Town and Simison, were "employers" within the meaning of Title VII, the district judge dismissed the action, finding they were not employers since the Town did not employ the requisite fifteen employees specified by 42 U.S.C. § 2000e(b) during the

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relevant years and Simison's liability depended upon that of the Town. Dumas v. Town of Mt. Vernon, 436 F.Supp. 866 (S.D.Ala.1977).

I. Claims Under Sections 1981, 1983, 1985(3) and 1986

Since there is no federal statute of limitations for a cause of action arising under §§ 1981, 1983 or 1985(3), resort must be had to state law to determine the applicable limitations period. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241 at 250 (5th Cir. Jan. 21, 1980); Hamilton v. General Motors Corp., 606 F.2d 576, 579 (5th Cir. 1979). In this case, the appropriate statute is Ala.Code tit. 7, § 26 (1973), which provides for a limitations period of one year. See 42 U.S.C. § 1988 (1976); Ingram v. Steven Robert Corp., 547 F.2d 1260 (5th Cir. 1977); Boshell v. Alabama Mental Health Board, 473 F.2d 1369 (5th Cir. 1973). The claim arising under § 1986 is governed by the one-year limitations period prescribed by that statute.

In support of her contention that the district court erred in holding that the claims under §§ 1981, 1983, 1985(3) and 1986 were time-barred, Appellant advances two arguments. First, Appellant seeks to prevent application of the statutes of limitations by invocation of the doctrine of continuing violation. Second, Appellant asserts that her reliance upon the EEOC's assumption of jurisdiction over her charge of discrimination and its failure to inform her that the Town would not be subject to suit under Title VII warrants application of the doctrine of equitable tolling.

While it is true that Appellant's complaint contains allegations of continuing discrimination, it is incumbent upon the court in a pretrial determination of the existence of jurisdiction to "analyze the specific claims of continuous discrimination to make sure that true continuous discrimination charges have been alleged." Myles v. Schlesinger, 436 F.Supp. 8, 14 (E.D.Pa.1976) (as amended 1977). Apparently realizing that refusal to hire, like termination, has usually been viewed as a discrete event, triggering the running of the limitations period, Appellant argues that the facts of this case, where Ms. Dumas' name remains on the employment register of eligibles certified by the Personnel Board, from which list the Town is required to appoint, make it analogous to a failure to promote, which has more often been viewed as ongoing. See, e. g., Clark v. Olinkraft, Inc., 556 F.2d 1219, 1222 (5th Cir. 1977), Cert. denied, 434 U.S. 1069, 98 S.Ct. 1251, 55 L.Ed.2d 772 (1978), Quoting Rich v. Martin Marietta Corp., 522 F.2d 333, 348 (10th Cir. 1975) (distinguishing failure to hire, which takes place on a particular day from failure to promote, which arises during a lengthy period of time); Jacobs v. Board of Regents, 473 F.Supp. 663 (S.D.Fla.1979) (citing cases).

Case law on the subject of continuing violations has been aptly described as "inconsistent and confusing," both prior to and since the Supreme Court's decision in United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). Elliott v. Sperry Rand Corp., 79 F.R.D. 580, 585 (D.Minn.1978). In Evans, the Court held that where plaintiff was wrongfully terminated in 1968 and rehired as a new employee in 1972, the fact that a nonretroactive seniority system, which was neutral in its operation, gave "present effect to a past act of discrimination" which was not made the basis for a timely charge, was not controlling since there was no present violation. Evans, 431 U.S. at 558, 97 S.Ct. at 1889.

In Elliott, Judge Larson analyzed four situations or fact patterns where continuing violations are often alleged. In one of the fact patterns described, courts must determine which of several different events trigger the running of limitations where such events have occurred at different times and have involved the making of a single employment decision, such as an allegedly discriminatory failure to hire or promote. Some relevant considerations in this determination are when the discriminatee was told of the hiring or promotion decision and

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whether others were hired or promoted subsequent to the discriminatee's application. Judge Larson concluded:

Although the "continuing violation" language may be used in this context, it seems that the courts are not really concerned with continuity so much as they are with practically assessing the employment situation from the lay person's viewpoint. The focus is on what event, in fairness and logic, should have...

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