Banks v. Chesapeake and Potomac Telephone Co.

Decision Date20 October 1986
Docket NumberNo. 84-5830,84-5830
Citation802 F.2d 1416,256 U.S. App.D.C. 22
Parties41 Fair Empl.Prac.Cas. 1125, 42 Fair Empl.Prac.Cas. 464, 41 Empl. Prac. Dec. P 36,634, 256 U.S.App.D.C. 22, 55 USLW 2156 Gladys BANKS, Appellant, v. CHESAPEAKE AND POTOMAC TELEPHONE COMPANY.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 84-1022).

Mercer Gordon Anderson, Washington, D.C., for appellant.

R. Michael Smith, Washington, D.C., for appellee.

Before WALD, Chief Judge, BUCKLEY, Circuit Judge, and WRIGHT, Senior Circuit Judge.

Opinion for the court filed by Senior Circuit Judge WRIGHT, in which Chief Judge WALD concurs.

Opinion concurring in the result filed by Circuit Judge BUCKLEY.

J. SKELLY WRIGHT, Senior Circuit Judge:

In this case we must decide whether the District of Columbia's one-year or three-year statute of limitations applies to claims brought in the District of Columbia under 42 U.S.C. Sec. 1981 (1982). Appellant Gladys Banks brought this suit against her former employer alleging race and sex discrimination three years and one day after the last alleged discriminatory act occurred. The district court dismissed the suit, holding that appellant's suit was barred even under the more generous statute of limitations.

We conclude that the three-year statute of limitations applicable to personal injuries suits controls actions brought under Sec. 1981 in the District of Columbia. Moreover, because the last day of the limitations period in this case fell on Sunday, the statute of limitations was extended an additional day and appellant's suit was therefore filed within the three-year statute. Because appellant failed to proffer sufficient evidentiary support for the allegations of her complaint, however, we affirm the grant of summary judgment in favor of appellee.


Appellant Gladys Banks was employed from 1970 to 1978 by appellee Chesapeake & Potomac Telephone Company of the District of Columbia (C&P of D.C.) as a directory assistance operator. She was transferred during the summer of 1978 to the Chesapeake & Potomac Telephone Company of Virginia (C&P of Virginia). 1 Almost two years after the transfer, on March 27, 1980, appellant became ill and began an absence that lasted over a year. During appellant's illness C&P of Virginia paid her disability benefits as provided for under its disability plan. Under the terms of the plan employees unable to return to work after receiving benefits for a year would be terminated. When Ms. Banks failed to report to work on March 31, 1981, the company terminated her on the following day, April 1, 1981.

After efforts to gain reinstatement, appellant filed this suit against C&P on April 2, 1984. Her complaint alleged violations of Title VII, 42 U.S.C. Sec. 2000e et seq. (1982), and of the federal civil rights statutes, 42 U.S.C. Secs. 1981, 1983 (1982). She claimed that the company had discriminated against her on the basis of race and sex in her training, transfers, evaluations, suspensions, termination, protection of her personal records, and administration of her benefit plan, and that the company had discriminatorily harassed her. Appellant sought damages as well as declaratory and injunctive relief. See Appendix (App.), Vol. II at 1-4 (Complaint).

C&P of D.C. answered appellant's complaint by denying the allegations, arguing that in any event it was not legally responsible for the acts of C&P of Virginia, and by raising several affirmative defenses, including the statute of limitations. See App., Vol. II at 5-9 (Answer). After the parties stipulated to the dismissal of appellant's Title VII claims, appellee filed a motion for summary judgment together with supporting affidavits, claiming that appellant's suit was barred by the statute of limitations.

The district court granted the motion and dismissed the action. See Brief and Appendix for Appellant at 46 (Memorandum Opinion and Order filed October 23, 1984). The court first noted that Sec. 1981 provides no remedy for sex discrimination. Moreover, the court noted, Sec. 1983 applies only to actions taken under color of law and consequently cannot provide a remedy against private employers such as C&P. Thus the only colorable claim remaining was appellant's race discrimination claim under Sec. 1981, which the court concluded was time-barred. The court reasoned that because appellant was terminated on April 1, 1981 and did not file this suit until April 2, 1984, the claim was time-barred even under the District of Columbia three-year statute of limitations for personal injury actions. Consequently, it dismissed appellant's suit.


Appellant challenges the dismissal of her race-based Sec. 1981 claim. 2 She argues that the district court erred in concluding the claim was time-barred under the three-year statute of limitations applicable to personal injury actions brought in the District of Columbia. Because the last day of the three-year period fell on a Sunday, she argues, the statute of limitations was extended an extra day. Consequently her complaint was timely filed and should not have been dismissed.

We agree. Federal Rule of Civil Procedure 6(a) directs a federal court, in calculating any time period prescribed by any applicable statute, to extend the period an additional day if the time period ends on a Saturday, a Sunday, or a legal holiday. See also National Black Media Coalition v. FCC, 760 F.2d 1297, 1299 n. 2 (D.C. Cir.1985). Similarly, under District of Columbia law the limitation period is tolled if the last day falls on a Sunday. See People's Counsel v. Public Serv. Comm'n of D.C., 451 A.2d 90, 91 (D.C.C.A.1982). Thus we conclude that the district court erred in finding that this suit would be time-barred under the three-year statute of limitations. 3 Because we conclude that appellant's suit, insofar as it challenged her termination, 4 was timely filed under the three-year statute, we must reach and resolve the issue left undecided by the district court (i.e., whether the three-year or the one-year statute of limitations applies).

A. The Process of Selecting a Limitations Period: Garcia

Federal civil rights statutes, such as Sec. 1981 5 and Sec. 1983, contain no statute of limitations. Rather, federal courts are guided in their determination of the appropriate statute of limitations to apply to federal civil rights actions by a companion statute, 42 U.S.C. Sec. 1988 (1982). Section 1988 directs federal courts to examine federal law and, to the extent that federal law provides no applicable rule of decision, to examine state law. 6 The Supreme Court has described this as a three-step process First, courts are to look to the laws of the United States "so far as such laws are suitable to carry [the civil and criminal civil rights statutes] into effect." * * * If no suitable federal rule exists, courts undertake the second step by considering application of state "common law, as modified and changed by the constitution and statutes" of the forum state. * * * A third step asserts the predominance of the federal interest: courts are to apply state law only if it is not "inconsistent with the Constitution and laws of the United States." * * *

Wilson v. Garcia, 471 U.S. 261, 267, 105 S.Ct. 1938, 1942-43, 85 L.Ed.2d 254 (1985) (citations omitted). See also Burnett v. Grattan, 468 U.S. 42, 47-48, 104 S.Ct. 2924, 2928-2929, 82 L.Ed.2d 36 (1984). Thus courts are to look to state law for guidance if federal law provides no statute of limitations. 7

Application of Sec. 1988's "borrowing" principle, originally referred to as a search for the "most appropriate" or "most analogous" state statute of limitations, see Board of Regents v. Tomanio, 446 U.S. 478, 488, 100 S.Ct. 1790, 1797, 64 L.Ed.2d 440 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975), however, led to confusion over which state statute of limitations is "most analogous." The lower courts were confused as to whether the characterization of the claim was an issue of federal or state law and whether the characterization of the claim ought to turn on the particular facts of the case. See Garcia, 471 U.S. at 274 & n. 33, 105 S.Ct. at 1946 & n. 33; Smith v. City of Pittsburgh, 764 F.2d 188, 192-94 (3d Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985).

The courts in this jurisdiction have also struggled with the issue of which statute of limitations applies to Sec. 1981 claims. 8 This court held, in Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 994 (D.C. Cir.1973), that the District's three-year personal injury statute applied. After that case was decided, however, the District of Columbia enacted the District of Columbia Human Rights Act of 1978, D.C. Code Sec. 1-2501 et seq. (1981). That statute is governed by a one-year statute of limitations. See Davis v. Potomac Elec. Power Co., 449 A.2d 278, 281 (D.C.C.A.1982). The authority in this jurisdiction is now split on which of the two statutes controls. 9

Our resolution of these issues is guided by the Supreme Court's recent decision in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 1254 (1985). In that case a plaintiff brought a Sec. 1983 claim against a police officer, alleging that he had been beaten by the defendant. 471 U.S. at 263, 105 S.Ct. at 1940. The district court refused to dismiss the suit on timeliness grounds, concluding that the claim was governed by the New Mexico statute of limitations that governed all claims not otherwise specifically provided for. On appeal, after exhaustively reviewing all of the ways in which Sec. 1983 claims have been characterized by each of the federal circuits, the Tenth Circuit concluded that Sec. 1983 claims were best characterized as personal injury claims. The...

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