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 Con-erly’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.
Whеn 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. Hе 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 becаuse 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 salаry 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 аlleged 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 аgainst Westinghouse. Conerly later moved to amend the complaint to include the International Brotherhood of Electrical Workers as a defendаnt, and to add a second cause of action for frau¿. The court below granted Conerly’s motion to amend, and on September 16, 1977, dismissed the amended сomplaint with prejudice. Conerly brings his appeal from that dismissal. A dismissal with prejudice constitutes a final appealable judgment and confers jurisdiction uрon this court under 23 U.S.C. § 1291.
Experimental Engineering v. United Technologies,
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.,
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,
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 lav/ determines . . . whether the statute is tolled.”
Jackson v. Hayakawa,
Conerly argues that the statute should be tolled until his discovery of the Westinghouse seniority lists in July of 1974, and his consequent discovеry of an alleged cause of action for employment discrimination. According to Conerly, Westinghouse *120 fraudulently concealed from him facts giving rise tо 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 thе exercise of reasonable diligence could have discovered the fraud. Sun
'N Sand, Inc.
v.
United California Bank,
Under either California or federal authority, the plaintiff must plead with particularity the facts which give risе to the claim of fraudulent concealment. In
Rutledge v. Boston Woven Hose & Rubber Co.,
“In order to establish fraudulent concealment, the complaint must show: (1) when the fraud was discovered; (2) the circumstances under which it was discovered; and (3) that the plaintiff was not at fault for failing to discover it or had no actual or presumptive knowledge оf fact sufficient to put him on inquiry. . In urging lack of means of obtaining knowledge, it must be shown that in the exercise of reasonable diligence the facts could not hаve been discovered at an earlier date. . . . ‘The existence of such fraud must be alleged clearly and unequivocally and must not rest upon inferenсes.’ (Bank of America v. Williams,89 Cal.App.2d 21 , 25,200 P.2d 151 , 154; 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading § 783, p. 2398.)”
Consequently, we find no inconsistency between California and federal law pleading on fraudulent concealment and apply the principles of Baker to the present case.
Conerly has failed to meet his burden of alleging facts showing due diligence on his part. The second cause of action, set out in the margin, 1 sufficiently alleges both the *121 fraud itself and Conerly’s discovery. It does not allege any facts, however, tending to excuse his failure to discover Westinghouse’s misconduсt for a period of twenty-four years. Upon his return to work, Con-erly could have observed whites with less seniority who had remained on the job. Even if he had not made such observations initially, the normal pattern of promotions and pay raises should have alerted him at some point to the fact that whites who werе hired after his initial hiring date were advancing more quickly than he in the company. There is simply no allegation as to why Conerly could not have discovered the facts giving rise to his claim in a more timely manner. Because Conerly’s complaint, even when read with the required liberality, does not contain sufficient аllegations to support the tolling of the statute, his complaint was properly dismissed.
AFFIRMED.
Notes
. In pertinent part, Conerly’s second cause of action reаds as follows:
II
On or about January 10, 1950, Defendants WESTINGHOUSE ELECTRICAL CORPORATION and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS represented to Plaintiff that Plaintiff was being laid off pursuant to his seniority status with Defendant WESTINGHOUSE ELECTRIC CORPORATION but failed to reveal and suрpressed the fact that there were white employees in plaintiff’s division with less seniority who were not laid off. The suppression of these facts was likely tо mislead plaintiff and did in fact mislead plaintiff to believe that he was in fact being laid off pursuant to his seniority status with Defendant WESTINGHOUSE ELECTRIC CORPORATION.
III
The failure to disclose information and suppression of facts herein alleged to have been made by Defendants WESTINGHOUSE ELECTRIC CORPORATION and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS were made with the intent to induce plaintiff to believe that the plaintiff was laid off pursuant to his seniority status with Defendant WESTINGHOUSE ELECTRIC CORPORATION.
IV
Plaintiff, at the time these failures to disclose and suppression of facts occurred was ignorant of thе existence of the facts which Defendants suppressed and failed to disclose.
V
Plaintiff in July 1974, discovered for the first time the failures to disclose information and suppression of facts by Defendants WESTINGHOUSE ELECTRIC CORPORATION and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS. For the first time, the plaintiff gained access to the seniority lists that showed that in Janu *121 ary 1950, plaintiff was laid off of his job with Defendant WESTINGHOUSE ELECTRIC CORPORATION while white employees with less seniority were not laid off their jobs.