Marshall v. Manville Sales Corp.

Decision Date04 October 1993
Docket NumberNo. 92-2211,92-2211
Citation6 F.3d 229
Parties63 Fair Empl.Prac.Cas. 622, 62 Empl. Prac. Dec. P 42,572 Mildred MARSHALL, Plaintiff-Appellant, v. MANVILLE SALES CORPORATION, Defendant-Appellee, and Robert L. Mason, Defendant.
CourtU.S. Court of Appeals — Fourth Circuit

Leman Walton Auvil, Pyles & Auvil, Parkersburg, WV, argued for appellant.

Robert James Kent, Bowles, Rice, McDavid, Graff & Love, Parkersburg, WV, argued (John R. Teare, Jr., Bowles, Rice, McDavid, Graff & Love, Charleston, WV, on brief), for defendant-appellee.

Before NIEMEYER and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge.


BUTZNER, Senior Circuit Judge:

In this appeal Mildred Marshall assigns error to the district court's judgment that the statute of limitations bars her claim of employment discrimination under the West Virginia Human Rights Act, W.Va.Code Sec. 5-11-1 et seq., against her former employer, Manville Sales Corporation. She also assigns error to the district court's denial of her motion to remand to a West Virginia court her action against Robert L. Mason and Manville.

Concluding that summary judgment was improper, we vacate Manville's judgment. Having vacated the final judgment and concluding that the dismissal of Mason and denial of Marshall's motion to remand were improper, we reinstate Mason, remand this case to the district court, and direct the court to remand to state court.


Manville, a Delaware corporation based principally in Colorado, employed Marshall in a West Virginia plant from May 1, 1964, until her retirement on October 1, 1990. In January 1988, she notified Robert Mason, the plant manager, that she felt that her salary was not commensurate with her responsibilities as materials coordinator or with the pay of males in similar positions. Neither Mason nor Manville took action to remedy Marshall's complaints. In January 1989, a younger man was promoted into the position of buyer, a job for which Marshall maintains she was qualified. Marshall asserts that Mason was directly involved in the discrimination about which she complained.

On March 24, 1989, Marshall filed claims alleging sex and age discrimination with the West Virginia Human Rights Commission. The Commission issued notices of a right to sue Marshall on September 15, 1989, and March 16, 1990.

On October 12, 1991, Marshall filed suit in the Circuit Court of Wood County, West Virginia, naming Mason and Manville as defendants. Manville removed the suit to federal court, stating that Marshall had fraudulently joined Mason, a West Virginia resident, to avoid federal diversity jurisdiction. On May 29, 1992, the district court dismissed Mason from the action because he was not Marshall's employer, and it denied Marshall's motion to remand her action to state court. The district court then granted summary judgment to Manville, ruling that the statute of limitations barred Marshall's action. We review a district court's grant of summary judgment de novo. Atlas Machine and Iron Works, Inc. v. Bethlehem Steel Corp., 986 F.2d 709, 712 (4th Cir.1993).


The district court held that Marshall had failed to commence her action within the 90 days allowed after a claimant has received a right-to-sue letter and within the 2-year statute of limitations. W.Va.Code Secs. 5-11-13(b) and 55-2-12. For the purpose of applying the two-year statute of limitations, the court held that Marshall's claims of alleged discrimination occurred on October 6, 1988, and January 4, 1989.

The district court did not address the merits of Marshall's claim of continuing discrimination. Instead, it held that Marshall failed to adequately plead continuing discrimination because she did not show a factual basis for the claim.

Marshall alleged that she had worked for Manville since 1964; she had never been reprimanded; she had always received excellent performance evaluations. Nevertheless, she alleged, because of gender and age discrimination she had been paid less than men performing the same work. She also alleged discriminatory denial of promotion. In addition she claimed that because her pay was lower than it would have been had there been no discrimination, her pension is reduced.

Manville was well aware that Marshall claimed wrongful discrimination with respect to compensation disparity based on gender and age. In its notice of removal it stated that although the complaint does not demand a sum certain, the amount in controversy exceeds $50,000 exclusive of interest and costs because Marshall claims a continuing injury. Indeed, if Marshall's pleading were to be read as not alleging a continuing injury, the court would probably lack subject matter jurisdiction because of an inadequate amount in controversy.

The parties have not called our attention to any West Virginia case precisely on point. Nevertheless, dicta in West Virginia Institute of Technology v. Human Rights Comm'n, 181 W.Va. 525, 383 S.E.2d 490 (1989), persuades us that the West Virginia Supreme Court would adopt the continuing violation doctrine when considering whether an action had been brought within the two-year statute of limitations.

The Court defined a continuing violation in the context of a statute of limitations as follows:

"Unlawful employment discrimination in the form of compensation disparity based upon a prohibited factor such as race, gender, national origin, etc., is a "continuing violation," so that there is a present violation of the antidiscrimination statute for as long as such compensation disparity exists; that is, each paycheck at the discriminatory rate is a separate link in a chain of violations. Therefore, a disparate-treatment employment discrimination complaint based upon allegedly unlawful compensation disparity is timely brought if it is filed within the statutory limitation period after such compensation disparity last occurred.

383 S.E.2d at 499. It is readily apparent that Marshall's allegation of an unlawful continuing injury caused by compensation disparity based on gender and age satisfies this definition of a continuous violation. The West Virginia Court cited West Virginia Human Rights Comm'n v. United Transportation Union, 167 W.Va. 282, 292, 280 S.E.2d 653, 658-59 (1981), which applied the continuing violation theory in the context of the 90-day limitation contained in the Human Rights Act. The Court also included among the authorities that it cited Jenkins v. Home Ins. Co., 635 F.2d 310 (4th Cir.1980), which applied the continuing violation theory in the context of the statute of limitations.

Manville's reliance on Hill v. AT & T Technologies, Inc., 731 F.2d 175 (4th Cir.1984), is misplaced. The intervenor who alleged a continuous violation in Hill was complaining about discrimination in hiring practices. Refusal to hire is not a continuous violation. It is a distinct act, and the statute of limitations runs from the date of refusal. Refusal to hire, unlike continuous pay disparity, is not a present violation. Present violation in the context of limitations means a violation within the time allowed by a statute of limitations. 731 F.2d at 180.

Marshall retired October 1, 1990. Her allegedly unlawful compensation disparity continued until that time. She commenced this action on October 12, 1991, well within the two-year statute of limitations that the district court identified as applicable. Her suit was timely, and we must vacate the district court's judgment of dismissal.


Marshall also assigns error to the district court's denial of her motion to remand her suit to the state court from which it was in her view wrongfully removed.

Ordinarily we would not consider this assignment of error on appeal of the district court's final judgment. In Able v. Upjohn Co., 829 F.2d 1330 (4th Cir.1987), we held that we would not disturb a district court's final judgment on the basis of a defective removal when the plaintiff had failed to seek an interlocutory appeal of the order denying remand. 829 F.2d at 1333-34; accordSorosky v. Burroughs Corp., 826 F.2d 794, 798-99 (9th Cir.1987). But seeCarriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 n. 2 (5th Cir.1990). Able is based on the well-established principle that jurisdiction to enter final judgment will be upheld even though there was no right of removal when "the federal trial court would have had original jurisdiction of the controversy had it been brought in the federal court in the posture it had at the time of the actual trial of the cause or of the entry of the judgment." American Fire & Casualty Co. v. Finn, 341 U.S. 6, 16, 71 S.Ct. 534, 541, 95 L.Ed. 702 (1951). See alsoGrubbs v. General Electric Credit Corp., 405 U.S. 699, 702, 92 S.Ct. 1344, 1347, 31 L.Ed.2d 612 (1972). Able points out that judicial economy and interests in finality are served by not disturbing a final judgment when a party aggrieved by removal could have sought appeal of the issue...

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