*1 strate that “counsel’s errors were serious deprive
enough proceeding of a [him]
the result of which was reliable.” Glenn
Tate, clearly prejudiced by
Barnes was his coun- investigate
sel’s failure to con- medical present
dition evidence of that condi-
tion when it would likely have raised a guilt.
reasonable doubt about Barnes’ For reasons, foregoing I respectfully dis-
sent. ANTHONY, Jr.,
Lawrence E.
Plaintiff-Appellant,
BTR AUTOMOTIVE SEALING
SYSTEMS, INC., Defendant-
Appellee.
No. 01-6028.
United Appeals, States Court of
Sixth Circuit.
Argued Dec. Aug.
Decided and Filed *2 forth,
the reasons set this court AFFIRMS the district court. Background
Factual *3 Jr., Anthony, Plaintiff Lawrence E. age black male over the forty, was hired age defendant at the Be- nineteen. school, yond high Anthony attended University of ap- Tennessee at Martin for proximately year one employ- before his ment with the defendant. Anthony Stephen Hyder. (argued Talbert possess not a college degree or Certified briefed), TN, Maryville, Plaintiff-Ap- for Quality Engineer “CQE” status. pellant. Sealing Defendant BTR Automotive Deakins, Jr., (“BTR”)1
Homer L. Robert Systems, Incorporated 0. Sands manufac- briefed), Deakins, (argued and Ogletree, automobiles, tures door seals pri- for new Nash, Stewart, Atlanta, Smoak & Georgia, marily “Big sold to the Three” automobile Defendant-Appellee. for Motors, makers —General Ford Chrysler. historically BTR has had three CLAY, Before: COLE and operations mixing plant on site: BERTELSMAN, Judges; Senior District plant2 extrusion located within one Judge.* building, finishing plant3 and the located a yards away. few Each of the opera- three OPINION separate tions had laboratories. BERTELSMAN, Judge. District Anthony appeals grant of summary Jr., Plaintiff Anthony, ap- Lawrence E. judgment to BTR on his claims that BTR’s peals the district grant summary court’s promote refusal to him separate on four judgment to defendant on Anthony’s discriminatory occasions was based on his claims for race and discrimination age.4 un- race and appeals grant He also der Title VII of the Civil Act summary of of judgment by the district court seg., U.S.C. 2000e et Age days four before trial because that time Discrimination in Employment Act of already expended he had money on wit- 621 et seq., U.S.C. per ness diem and service fees for the and the Tennessee Human Rights Act. trial.' For
* Bertelsman, The Honorable finishing plant William O. Senior The is where extruded mate- coated, Judge United together, States District rials are taken for the Eastern and molded Kentucky, sitting secondary operations performed District and various by designation. prior packaging shipment for to the cus- 1. BTR has been sold and is known now as tomer. Systems. Metzeler Automotive Profile 4. At the Anthony district court level also plant In the compounds extrusion after raw sought relief for claims of discrimination for together raw materials are blended at the adverse actions related to his rubber, mixing plant to form the rubber com- pay. pay The district court found the pound through run dye. is an extrusion This were barred for failure include them in his subjects pressure. the rubber to heat and The Anthony appeal EEOC action. did product primarily final ruling. door seals. performed Anthony maintains that he all long-time that he was argues supervisory nonsupervisory duties work good BTR with a employee of faithful supervi- laboratory when there was no day record, missing never including Massey was transferred. Antho- sor twenty- During his being tardy. work or Moore, Denny ny submitted resume BTR, twenty- spent he years seven manager, the human resources laboratory years quality in the two Massey’s position. Moore told Massey. of Debbie supervision posi- fill looking BTR was not that, in his em- early Anthony maintains and, laboratory supervisor as a in- tion president then-vice ployment, BTR’s stead, wanted to fill it with someone who McManus, a John operations, technical or who had technical decree. College graduate from National Wilham, job given to Tim *4 London, taught in Polymer Technology forty. He white male the did from notebooks. directly class Anthony college degree not have a and was not. a jury have been contends a should Anthony began for BTR CQE. working Wilham as a early experi- to hear how this permitted supervisor in December production “set the Anthony’s employment ence in for loyalty and enthusiasm tone” for his assigned In Wilham had been to during company mixing plant. in the supervisor as a work in- he was demonstrates that ultimately plant objected mixing employees The to promotions. for the qualified deed previous a presence because of Wilham’s include: promotions The at issue four BTR and the union arrangement between 1997; (1) in late job to Tim Wilham given a supervisor ássigned a would not be to (2) in June job to Mark Ledbetter given employees. particular group of J.W. this (3) in to Abston 1998; job given Leann Burton, operations manager, and Ter- 1998; (4) job given to December of Brosi, manager, conceded to ry general August in 1999. The Rusty Kreyling re- employees’ request for Wilham’s promotion facts of each follow. moval, not to was determined be which fault Because through any of Wilham. given Tim Wilham The to promotion experienced supervisor an was Wilham laboratory su- Massey, In Debbie BTR, to termi- company did not want super- plant and pervisor of the extrusion BTR, Brosi According him. to nate com- Anthony, transferred to the visor Massey’s Wilham to for- assigned Burton Rockford, Massey Maryland office. pany’s laboratory supervisor position as a mer from the degree place put had a of Science Bachelor there was no other because only tempo- additional was University of Tennessee with an him. This considered until another rary placement for Wilham chemistry psy- in year of education him. was available for position Antho- supervising In addition to chology. employ- supervised other
ny, Massey two neither Wilham nor testified that Moore plant finishing ees in and extrusion position. qualified for the Anthony was Anthony responsibili- no had laboratories. the pro- Burton made Brosi and plant. finishing ties in While pe- initial After Wilham’s motion decision. primarily performing was lab tests company laboratory, in the decid- riod lines, covering Massey was extrusion out and that to work going ed it was not locations, including a few variety duties Within qualified. in was Wilham another finishing po- as well he was transferred materials as months incoming sition. plant. promotion given to Mark lab. supervising Ledbetter the extrusion CQE Abston was a who had em- been After Wilham was moved out of the ployed by BTR since October 1991 in vari- BTR it determined position, maintains quality engineer/supervisor positions ous it would seek for the candidates within quality department. assurance quality engineers. were
who
significant
She had a
back-
educational
preferred
with a college
BTR
someone
ground, including an engineering degree
or
degree,
background
technical
cre-
degree
and a
master’s
business adminis-
Wilham,
dentials to succeed
instead of a
previous
tration.
had
She also
automotive
supervisor. BTR further
lab
contends
experience
Company.
with the Ford Motor
prior experience within the
automo-
supply
industry
“Big
tive
Three”
Abston had
selected
been
for a reduction
plus.
automakers was
considered
in early
force
1998. After she contested
decision,
was
during
she
reinstated
May
In
Hood
Patrick
was em-
departed
late 1998.
Ledbetter
about
Since
manager
as a
ployed
quality
while BTR
time,
the same
Abston
Ledbet-
given
undergoing
attempt
improve
its
ter’s
BTR
agreed
because
had
quality
regain
Ql”
standards and
a “Ford
return Abston work.
While Hood testi-
require
status. This status would
the im-
fied that
was technically qualified
Abston
plementation
quali-
of the
standard of
new
*5
perform
job,
he
the
did have reserva-
designated
QS-
within
ty
industry,
the
as
personality
tions about her
and her absen-
BTR
9000.5
maintains
it needed to
Nonetheless,
teeism from work.
he was
change
approach
quality oversight
its
told
interim
acting
general manager
the
attempting to
the
identify
root cause of
at that time that Abston was
back
coming
problems,
testing
rather than
materials af-
to work in quality engineering.
fact.
ter the
Ledbetter,
Hood hired Mark
a white
promotion
The
given Rusty
Kreyling
age
forty,
male
the
to fill the
Abston
in
resigned August of
and
in
June of 1998. Ledbetter had a
Rusty Kreyling
permanently
was hired
in
status,
education,
CQE
a technical
and ex-
early 1999 to
as a quality
work
technician
perience within the automotive industry.
in
plant.
the finishing
Kreyling was con-
job comprised
just
Ledbetter’s
more than
sidered highly qualified by Hood because
supervising the
lab.
extrusion
His duties
degree
of his
in
from
statistics
the Univer-
identifying
prob-
also included
and solving
sity of
and his
Tennessee
advanced knowl-
lems, conducting
experiments,
designs
edge of
Kreyling
statistics.
not a
was
performing
bring pro-
statistical studies to
CQE. Nonetheless, because of his statistics
control,
and generally identifying
cesses
degree,
Hood testified
procedures.
Kreyling
developing
better test
CQEs
more
than other
promotion given
to Leann Abston
whom he
past.
had worked in the
quit
Ledbetter
five
after
months to take
promoting
BTR’s reasons
job in
another
of 1998. At
November
Wilham was
after
Abston,
time Leann
a white female under
transferred
forty, replaced
the
him
quali-
as the
ty engineer responsible for
projects
the
While
in-
Hood was aware of Anthony’s
which
doing
Ledbetter had
as well
in laboratory supervision
been
as
terest
position,
QS-9000 system
5. The
governing
set of
produc-
standards
same set of standards
tion,
their
adopted by
industry
the automotive
to ensure
reporting,
systems.
suppliers
that all
are held accountable to the
Univ.,
had no Bowman
Shawnee State
Anthony that he
explained to
he
Summary judg
after
available
Wilham
such
only
one of
if there is
proper only
genuine
Wilham was
ment is
no
moved.
designated
ever
any
who was
mov
individuals above
issue as to
material fact
The other
laboratory supervisor.
judgment
as a
party is entitled to
ing
quality engineers.
56(c);
three were
law.
see
matter of
Fed.R.Civ.P.
Co.,
Street v. J.C.
&
Bradford
depo-
concisely in his
also testified
Hood
Cir.1989).
56(c)
“Rule
mandates
with a
that BTR wanted someone
sition
entry
judgment,
ade
summary
for the
degree or
status
technical
motion,
upon
quate
discovery
time for
for some-
looking
Hood was also
position.
against
party
who fails to make a show
studies,
experience in statistical
one with
ing sufficient
establish
existence
QS-9000
design,
administra-
experiment
case,
that party’s
an element essential to
solving,
tion,
problem
one-on-one customer
party
and on which that
will bear
after Wil-
persons
and PPAPs.6 The
hired
proof
Corp.
burden of
at trial.” Celotex
equivalent qualifica-
all had these or
ham
Catrett,
477 U.S.
to Hood.
according
tions
(1986). In conducting
91 L.Ed.2d
An-
majority
Hood testified that
judgment
summary
analysis,
this court
job
testing
parts
thony’s
included the
from
must view all inferences to be drawn
also filed
entering
the data.
light
fa
underlying
facts
most
regard
certain documentation
honmoving party.
Gen.
vorable
had never
QS-9000 as
clerk would. He
Siempelkamp
v. G.
GmbH &
Elec. Co.
designed
any statistical studies or
done
.
(6th Cir.1994)
1095, 1097-98
Hood,
According
An-
any experiments.
qualified, hands
thony “[sjimply wasn’t
*6
summary judg
granting
On the
of
why
When asked to summarize
down.”
regard
in
close to trial
ment so
qualified,
was not
Hood testified
docket,
its
controlling
court’s
district
deposition:
in his
appeals
such for an abuse
of
reviews
court
degree,
doesn’t
a technical
have
[H]e
Guillory v.
generally
of discretion.
one,
a certified
number
he doesn’t have
Indus., Inc.,
In Congress the wake of 1981 actions in Tennessee was the passed Civil one-year Act state’s which limitation set forth amended Ann. designating original its Tenn.Code 28-3-104. See Jack- text, (a) above, quoted son v. Richards as subsection Med. (b) a new adding subsection to define the term “make and enforce” contracts to 1, 1990, on December Con- include making, performance, “[t]he modi- gress passed a general fication, contracts, and termination of and statute applicable of limitations to all fed- benefits, enjoyment all privileges, date, eral statutes enacted after that which terms, and conditions of contractual pertinent part: “Except states in as other- 1981(b). relationship.” See 42 U.S.C. law, provided by wise a civil action arising *7 This effectively amendment reversed Pat- under an Act of Congress enacted after §
terson permitted the use of 1981 to the date of enactment of this section may challenge alleged race discrimination not not be years commenced later than after I only in the formation of the the cause of action accrues.” 28 U.S.C. but in relationship, “post-formation” em- added). § (emphasis 1658 ployment actions as well. how, all, question The if at pas
Thus, § the 1991 amendments to 1981 sage § of 28 U.S.C. 1658 affected the stat created that no legal “liabilities had exis- limitations § ute of claims 1981 is one tence passed.” before the 1991 Act that has divided the federal courts. See Inc., Rivers v. Roadway 511 Express, Harris, U.S. F.3d at (noting 300 1187 that the 298, 313, 1510, 1519-20, 114 S.Ct. 128 split federal courts “have in determining (1994); L.Ed.2d 274 see also Harris v. applies which statute of limitations to suits Co., 1183, Allstate Ins. brought 1186-87 version amended (10th Cir.2002) (“The 1981”); Rights § Civil Act of see also Jones v. R.R. Donnelley 1991 ... essentially 717, a new created cause of & Sons 305 728 F.3d Cir.
513
1981(b)).
Harris,
§
2002)
claims under
See
among
(e.g.,
circuits and
division
(noting
§ 1658 does not
at
The
28 U.S.C.
Eleventh
holding that
—
claims),
granted,
§
cert.
presented
1981
been
with the issue but has
apply
has
2074,
-,
155 L.Ed.2d
Taylor
ruled on it.
v. Ala.
U.S.
not
Inter
(2003).
J.T.P.A.,
1059
TV
261
tribal Council Title
F.3d
(11th Cir.2001)
1032,
(affirming
1034
dis
2000,
Circuit, in
discussed
The Third
missal of 1981 claims on
immu
approaches
courts
that
three different
nity grounds
reaching
and not
statute of
219
Corp.,
Zubi v. AT&T
have taken.
issue),
denied,
limitations
cert.
535 U.S.
Cir.2000).
(3d
220, 222
Summarized
F.3d
1936,
1066, 122
L.Ed.2d
S.Ct.
(1)
created
briefly,
are:
that claims
they
(mem.).
(2002)
amending
Act of 1991
Rights
the Civil
to the
four-
subject
§ 1981
be
new
should
years ago,
recognized Several
we
limitations, but all other
year statute of
but did not have occasion to re
question
subject to the state “bor-
claims remain
Sabbatine,
136559,
it.
1998 WL
solve
(2)
that all
period;
rowed”
Again
year,
presented
we
*3.
last
were
of 28
accruing
passage
explicitly
the issue but
declined to
four-year
to the
subject
1658 are now
express a
on the merits because
view
we
(3) that the
period; and
Civil
limitations
jurisdiction.
did not have
See Smith v.
merely
of 1991
amended
Act
Hamilton,
Appx.
County
Fed.
existing
and was not a new enactment
law
(6th Cir.2002)
(unpublished).7
and thus
purposes
of U.S.C.
Sabbatine,
plaintiff
In
invoked
subject
all
claims remain
employer
had
allege
Id.
period.
limitations
state “borrowed”
discriminatory
racially
created a
hostile
Third, Seventh,
Eighth
Circuits
The
environment and
it had failed to
work
presently hold
28 U.S.C.
race.
promote him on account of his
any claims under
district,
at *1.
court dis-
WL
original text or
arising
whether
under its
un-
untimely
missed the
1981 claims as
Jones,
1991 amendments. See
under the
one-year
statute of limitations
der
Inc.,
728;
IBP,
305 F.3d at
Madison
Kentucky.
Id.
*3. We
borrowed from
(8th Cir.2001),
on
vacated
remanded, stating that
reversed and
grounds, 536
other
U.S.
applica-
consider the
district court should
(2002) (mem.);
L.Ed.2d 773
limitation
four-year
tion of the
Zubi,
F.3d at 225.
of the 1991
light
28 U.S.C.
contrast,
recently
In
the Tenth Circuit
§ 1981.8 Id.
amendments to
four-year
§ 1658
stat-
held that 28 U.S.C.
this circuit
district courts within
ute of
1981 claims
Several
applies
limitations
four-year limita-
since
that the
the 1991 amendments
have
held
were created
*8
remand,
Supreme
recently
On
the district court concluded
7. We
that the
Court
note
§
granted
in
that 28 U.S.C.
1658 did extend
statute
certiorari
the Jones case out of
Circuit,
plaintiff's §
likely
1981 claims
indicating
it
limitations for the
Seventh
that will
of
Sabbatine,
years.
Young v.
No.
See
v. R.R.
to four
See
soon resolve
issue.
Jones
99-6336,
1888672,
Sons,
Co.,
*2 n. 2
WL
at
Donnelley
305
717
2000
&
-
19, 2000) (so
-,
holding
Cir.2002),
noting,
granted,
Dec.
and
U.S.
123
Cir.
cert.
2074,
(2003).
jurisdiction to
had no
that the Sixth Circuit
S.Ct.
tions 28 1658 results in should construction claims, apply now to 1981 in whole inor being subject four-year 1981 claims part. Kinley v. Ry. See Southern period limitations claims “formation” Norfolk 770, F.Supp.2d (E.D.Ky.2002) 776 subject remaining to the borrowed state four-year period (applying limitations not change limitations this claims); promote failure to Brown v. Jen analysis. F.3d at As the Tenth Ctr., ny Weight No. Craig Loss C-1-97- noted, routinely apply “courts dif (S.D.Ohio 0211, 2,May WL ferent statutes of limitations to different e 2000) (holding four-year that statut of claims, including claims made within a sin apply portions all limitations should of gle Particularly Id. lawsuit.” within 1981); Express Corp., Miller v. Fed. law, employment realm rights where 955, (W.D.Tenn.1999) F.Supp.2d 964-65 be, may and are typically, asserted under four-year (applying statute limitations to law, both litigants federal state racially 1981 claim alleging discriminato routinely courts differing deal with limita termination); ry Rodgers South, Apple v. periods tions for related causes of action. Inc., F.Supp.2d 976-77 (W.D.Ky. may yield While this result the great 1999) (holding four-year that statute of est it simplicity, does reflect what we be apply limitations should to all 1981 lieve to be the most faithful reading of . claims) see Shoney’s, But v. Coleman these statutes. Inc., (W.D.Tenn. F.Supp.2d 2001) (holding that apply 1658 does not B. Whether the court district erred in any claim under granting summary judgment to BTR now hold the four-year that Anthony’s on racial We claims statute of limitations in set forth 28 U.S.C. discrimination9 1658 does indeed 1981 claims by alleges discrimination they insofar portion as arise under the promote BTR’s refusal him allegedly the statute enacted the Civil Act based on his race and In age. order to legislation of 1991. undisputably That cre discrimination, employment establish An rights ated new did legal not exist thony present either must direct evidence Rivers, prior passage. to its 511 U.S. of discrimination or introduce circumstan S.Ct. 1519-20. Section 1981 tial evidence would allow an inference premised upon alleged discriminato of discriminatory treatment. Wexler v. ry occurring actions after the formation of Inc., Furniture, White’s Fine relationship, such as the (6th Cir.2003) (en banc). case, failures to in promote at issue this relies on pres circumstantial evidence and are thus actionable under only by ents no direct evidence. legislation virtue of enacted Decem 1, 1990, ber its terms 28 U.S.C. approach The burden-shifting un applies 1658therefore to them. Green, der Douglas Corp. McDonnell In regard, agreement this we are in U.S. L.Ed.2d 668 (1973), reasoning Tenth Circuit Har which was later refined Texas ris, supra. Burdine, agree, expressed Dept. We also Community Affairs Harris, the fact statutory U.S. 67 L.Ed.2d *9 Bd., Anthony’s claims of separately. discrimination See Wade v. Knoxville Utils. require 452, different (6th Cir.2001). statutes the same standards 259 F.3d 464 proof of therefore analyzed and will not be
515 promotion present case. Wilham (1981), the applies to 207 framework, Anthony faces this Under Anthony, an African-American over prima a facie presenting initial burden is age forty,11 indeed within The establishment case of discrimination. age protected ap- race and classes. He a rebuttable prima facie case creates of a promotion, for the it was plied but denied requires presumption of discrimination requirements It remaining to him. is the nondis legitimate, BTR articulate some prima a facie case that are at issue on taking chal reason for criminatory promotion. the Wilham only is one lenged action. BTR’s burden v. persuasion. Gray production, not he On whether was considered for Prods., Inc., 268 Toshiba Am. Consumer Moore, Denny promotion, the human Cir.2001) (6th Bur 595, (citing F.3d 599 manager, Anthony resources testified 1093). dine, 253, 101 S.Ct. at U.S. him resume. At that time BTR gave remains persuasion burden of The ultimate a looking laboratory supervi was not for produces legiti If Anthony. Id. BTR with sor, position Anthony sought. which reasons, Anthony nondiscriminatory mate Instead, searching BTR was someone pretext are prové must BTR’s reasons a It degree a status. is not for discrimination. with disputed Anthony did not have these prima a facie case In order make and was not interviewed. qualifications Anthony promote, upon a failure to based ordinarily the fact that a candidate While (1) that he is member prove must proper credentials did not have the class; (2) for, applied that he protected might employer excuse the from position (3) receive, was job; that he and did not him, we considering not continue (4) job; simi qualified for position facie because the was prima case was in the larly-situated person who Wilham, who did not have the filled also protected received plaintiffs class Moore testified that proper credentials. Sys., job.10 Freight v. Yellow Thurman qualified Wilham nor neither (6th Cir.1996); Inc., 1160, see 90 F.3d position. plaintiff A should not be for the 254, Burdine, 450 also U.S. that he is required prove Douglas, 411 U.S. (citing McDonnell posi for a 668). requirements the stated 1817, meet 792, 93 L.Ed.2d Cf. 01-5953, TVA, where the selected candidate likewise No. WL tion Seay v. 2003).` (6th 6, requirements.12 does not meet the Aug. Cir. Tenn., (6th Cir. Pub. 693 F.2d that in Farmer Cleveland 10.We note Cir.2002) Power, We, therefore, (6th adopt "less-qual F.3d decline Inc., Estates, 241 F.3d Roh v. Lakeshore be language used in Farmer Roh ified” Cir.2001), (6th this Court stated that prior precedent. it from cause deviates prong if the went fourth could be met less-qualified applicant who was not a to a forty-three years of when group. protected This stan member of the promotion went Wilham. the first ignores prior published with or dard conflicts "similarly using the this decisions of Court may be instances where deviation 12. There See, City e.g., Nguyen v. situated” standard. job of a from the stated criteria Cleveland, (6th Cir. 229 F.3d 562-63 of discrimina- would result in inference Corr., 2000); Dep't 165 F.3d Allen v. Mich. Anderson, Briggs v. e.g., tion. (6th Cir.1999); Aultman Betkerur v. partic- Under the Ass'n, Hasp. Cir. case, no such inference ular facts of 1996); Goodyear Ercegovich v. & Rubber Tire warranted. 1998); Cir. Brown *10 prong prima final quality engineer promotions On the of the facie case, Anthony neither nor met the Wilham position after Wilham As position stated criteria for the actual BTR moved, sought BTR only out candi sought engineer, fill with a quality but qualifications it necessary dates with experience both had which could make quality deemed engineer. essential a them viable candidates for laboratory Anthony The real issue here is whether supervisor. Accordingly, they can be con- was for qualified position quality similarly purposes sidered situated for the engineer. Anthony Hood testified that of reviewing Anthony’s failure-to-promote qualified per was not “hands down.” The Hence, position son BTR wanted for the claim. that Court finds Antho- someone with a back ny prima has hismet facie case. technical/statistical
ground degree or or someone who awas CQE. Experience with the “Big Three” The burden now shifts to BTR to companies motor was also considered legitimate, articulate a nondiscriminatory plus. reason placing position. for Wilham in the supervisor
BTR Wilham removed as of the undisputed It Anthony is that did not plant due mixing agreement to an with the qualifications, have these while the three union, and it did not want terminate persons promotions who received the did. him. Placing Massey’s Wilham into for Anthony Although argues experi- that his mer was necessary because BTR background ence and him made as well any did candidates, not have other qualified that other we can- time Anthony presented say has not in the mind that Wilham. of BTR this was equivalent degree, no to a contrary. college evidence to the
status,
objective
or the other
qualifications
sought
quality
To
which BTR
engineer.
make
submissible case on the
credibility
Accordingly, Anthony
was not
explanation,
of BTR’s
“
position,
and he
failed
has
to establish
‘required
by preponderance
to show a
Wexler,
prima
facie case.
(1)
of the
either
prof
evidence
(holding
that in determining wheth-
(2)
fered
fact,
reasons had no basis in
plaintiff
er
has
qualification prong
satisfied
proffered
actually
reasons did not
mo
test,
prima
facie
on
inquiry should focus
(3)
action],
tivate [the
or
criteria).
objective
they were
to motivate [the
insufficient
”
employment action].’ Manzer v. Dia
C.
Whether
district court
its
abused
mond Shamrock Chem.
in granting summary judg-
discretion
(6th Cir.1994) (alteration
in original)
days
ment
to BTR
trial
four
before
(citing
Auth.,
McNabola v. Chi. Transit
complains
because
(7th
Cir.1993)).
F.3d
the district court
until four days
waited
Anthony has failed to
show
BTR’s before trial to issue its decision on sum
pretextual.
pres-
reasons are
He
mary judgment.
trial courts
ent any evidence
BTR’s
showing
reasons
power
have inherent
their
control
dock
were not based
fact
they
or that
were
See,
ets.
e.g., Gould v.
Chip
Wood/Chuck
not the real reasons for its decision. An-
99-1544, 99-1707,
per
Nos.
Corp.,
2000 WL
thony only presents
qualifications
his own
2000);
Aug.
Cir.
Oliva
on
pretext,
Sullivan,
issue of
and this is insuffi-
Cir.1992);
Ed
Tex.,
cient.
County,
wards v. Cass
517
Rights
(5th Cir.1990);
enacted
the Civil
Act of 1991.”
Wayne
Polk-Osumah
(E.D.Mich.
Mich.,
I
separately
I
there
205 F.R.D.
write
because
believe
County,
Reaves,
F.Supp.
2001);
portion
U.S. v.
are no claims that arise under the
of
timing
trials
(E.D.Ky.1986).
§
of
under the
1981 enacted
Civil
are
best left to
control
matters
and docket
I
Act of
because
believe
trial
In re Air
the
court.
discretion of
the
§
not intended to
to
(6th
Disaster,
Cir.
Crash
§ 1981 as amended or otherwise.
the
say that
district
We cannot
1981(b)
§
Although,
allows new causes
judgment four
granting summary
court’s
plaintiffs
bring
of
in that it
to
action
allows
an
of discre
before trial was
abuse
days
aris
previously unavailable claims—claims
tion,
un
considering
heavy
caseloads
ing
discriminatory
that oc
out of
conduct
district courts labor. Plain
der which the
private employment
curs
rela
than he would be if the
tiff is better off
1981(b)
§
tionship is
alone cannot
formed—
judgment as a
granted
court had
district
of
In
give rise to these causes
action.
plaintiffs
of law at the close
matter
1981(b)
stead,
phrase
§
defines the
“make
evidence.
phrase
contracts” as that
is
enforce
stated,
we AFFIRM
For
reasons
1981(a). Specifically,
§
used in
as the ma
court.
district
notes,
jority
Supreme
reaction
Court’s decision in Patterson v. McLean
COLE,
concurring.
Judge,
Union,
164, 109
Credit
U.S.
Anthony’s Title VII and ADEA claims
1981(b)
(1989),§
Jones Thus, I beyond plain language
would look
§ 1658 to determine whether it was in- post-formation § apply
tended to
claims. legislative histories of 1658 and the Civil Act of 1991 suggest that America, UNITED STATES of Congress four-year did not intend 1658’s Plaintiff-Appellee, period apply post- limitation formation claims. As the Seventh Circuit explained, 1658 was enacted to “alleviate FAISON, Lavadius Defendant- uncertainty practice inherent Appellant. borrowing analogous state statutes of limi- No. 01-6344. tations for federal causes of action that do periods.”
not contain their own limitations Appeals, United Court of States (citing H.R.Rep. 101-734, Id. No. Sixth Circuit. 24). Moreover, § 1658 “was also con- Argued June 2003. disrupting litigants’ cerned with settled ex- that, pectations.” Id. (explaining to ad- Aug. Decided and Filed 2003. concern, Congress dress this made Rehearing Sept. Denied 2003. prospective). I agree with the Seventh the conclusion that 1658’s four-year limitation does not post-formation
§ claims is consis- Congress’s purposes
tent two in en-
acting Likewise, Id. at 726-27. I
believe that the legislative history of supports this conclusion. Id. at 102-40(1), (citing H.R.Rep. No. at 63
(1991), Cong. & Admin. U.S.Code News
1991 at
Thus, I Anthony’s would find that
§ 1981 relating positions Wilham, Ledbetter, Abston,
filled not Kreyling,
but are time-barred. With 1981(b). purposes argu- mation claim could be arising viewed as un- ment, (a) (b) post-for- I concede will that a der both subsections