Conerly v. Westinghouse Elec. Corp.

Decision Date14 July 1980
Docket NumberNo. 77-3909,77-3909
Citation623 F.2d 117
Parties23 Fair Empl.Prac.Cas. 318, 23 Empl. Prac. Dec. P 31,107 Samuel CONERLY, Plaintiff-Appellant, v. WESTINGHOUSE ELECTRIC CORP. et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Eric D. Carlyle, San Jose, Cal., for plaintiff-appellant.

Edwin L. Currey, Jr., San Francisco, Cal., for defendants-appellees.

On Appeal from the United States District Court for the Northern District of California.

Before ANDERSON and TANG, Circuit Judges, and WYATT, * District Judge.

J. BLAINE ANDERSON, Circuit Judge:

Conerly appeals from the dismissal of his civil rights action for employment discrimination under 42 U.S.C. § 1981 against Westinghouse. The district court dismissed Conerly's action because it had not been filed until twenty-seven years after the alleged act of discrimination had occurred, and was therefore barred by the statute of limitations.

When Conerly was hired by Westinghouse on January 4, 1949, he was the only black employee in his division. He was subsequently laid off on January 10, 1950. On July 3, 1950, Conerly returned to work at Westinghouse. He continued working for Westinghouse until 1970 when he was placed on a disability retirement pension.

Conerly claims that the only reason he was laid off was because of his race. Although the 1950 layoff was supposed to be under the "last hired, first fired" concept, Conerly alleges that there were white employees in his division with less seniority who were not laid off. Because of the layoff, Conerly lost his seniority status, at least as it dated from 1949. Since later promotions and salary increases were determined by seniority status, Conerly claims that the whites who were not laid off (but should have been instead of him) advanced more rapidly than did he.

In addition, Conerly alleges that Westinghouse both suppressed and failed to disclose the facts surrounding the layoff. He asserts that he did not discover the alleged discrimination until July of 1974 when he gained access to seniority lists which showed that whites with less seniority were kept on the job when he was laid off in 1950.

In June of 1977 Conerly filed the present civil rights action against Westinghouse. In his original complaint, Conerly alleged only a cause of action for employment discrimination against Westinghouse. Conerly later moved to amend the complaint to include the International Brotherhood of Electrical Workers as a defendant, and to add a second cause of action for fraud. The court below granted Conerly's motion to amend, and on September 16, 1977, dismissed the amended complaint with prejudice. Conerly brings his appeal from that dismissal. A dismissal with prejudice constitutes a final appealable judgment and confers jurisdiction upon this court under 28 U.S.C. § 1291. Experimental Engineering v. United Technologies, 614 F.2d 1244, (9th Cir. 1980).

When the running of the statute is apparent from the face of the complaint, as it is in the present case, then the defense may be raised by a motion to dismiss. Jablon v. Dean Witter & Co., 614 F.2d 677 (9th Cir. 1980). A dismissal motion should be granted, "only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Id. at 682.

Conerly attempts to state a cause of action under § 1981. Since § 1981 does not have its own limitation period, federal courts apply the most appropriate state statute of limitations. Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). Unless the statute of limitations was tolled, Conerly's complaint far exceeded any potentially applicable California statute of limitations. See Kirk v. Rockwell International Corp., 578 F.2d 814, 820 n. 19 (9th Cir.), cert. denied, 439 U.S. 1004, 99 S.Ct. 616, 58 L.Ed.2d 680 (1978); Griffin v. Pacific Maritime Ass'n, 478 F.2d 1118, 1119 (9th Cir. 1973). In view of our result on the tolling issue, therefore, we need not decide which statute of limitations is appropriate.

Although the principle that federal courts must borrow the state statute of limitations has been firmly established, there has been some confusion, as this author has noted, "whether state or federal law determines . . . whether the statute is tolled." Jackson v. Hayakawa, 605 F.2d 1121, 1127 (9th Cir. 1979), cert. denied, --- U.S. ----, 100 S.Ct. 1601, 63 L.Ed.2d 787 (1980); see also Briley v. State of California, 564 F.2d 849, 854, 855 (9th Cir. 1977). The Supreme Court, however, has recently resolved that confusion in favor of the application of state tolling law where not inconsistent with the Constitution or other federal law. See Board of Regents of the University of the State of New York v. Tomanio, --- U.S. ----, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980).

Conerly argues that the statute should be tolled until his discovery of the Westinghouse seniority lists in July of 1974, and his consequent discovery of an alleged cause of action for employment discrimination. According to Conerly, Westinghouse fraudulently concealed from him facts giving rise to his cause of action until 1974.

The California statute of limitations for fraud provides for tolling until the aggrieved party discovers the facts constituting the fraud, or through the exercise of reasonable diligence could have discovered the fraud. Sun 'N Sand, Inc. v. United California Bank, 21 Cal.3d 671, 582 P.2d 920, 941, 148 Cal.Rptr. 329 (1978). California applies the same principle to claims of fraudulent concealment under the statute of limitations. E. g., Bowman v. McPheeters, 176 P.2d 745, 77 Cal.App.2d 795 (1947).

Under either California or federal authority, the plaintiff must plead with particularity the facts which give rise to the claim of fraudulent concealment. In Rutledge v. Boston Woven Hose & Rubber Co., 576 F.2d 248, 250 (9th Cir. 1978), this court stated that the plaintiff "must plead with particularity the circumstances surrounding the concealment and state facts showing his due diligence in trying to uncover the facts. . . ." The Rutledge court further required that the plaintiff must allege facts showing "affirmative conduct" on the part of the defendant which would lead a reasonable person to believe that there was no claim for relief. Id. California has placed a similarly heavy burden upon the plaintiff in these cases. In Baker v. Beech Aircraft Corporation, 39 Cal.App.3d 315, 321, 114...

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