John Robert Howell, Plaintiff-appellant, v. General Electric Company, Defendant-appellee, 836 F.2d 1342 (4th Cir. 1988)

Howell appeals the district court's grant of summary judgment in favor of his employer, General Electric, on his race discrimination claims. Because we find no error in the ruling below, we affirm.

John Robert Howell brought Title VII and section 1981 charges against General Electric Company alleging that he was discriminated against because he was black. He began working for General Electric in April of 1971, in its Appliance Park-East facility. In 1976, he began a two year pre-supervisory training course. Ten to fifteen black and white employees participated in the course with Howell.

In 1978, Howell was promoted to the position of Quality Control Supervisor. He worked under John Johnstone in building one of the facility. In mid-1978, Howell was moved to building number two, where he worked under Frank Kos. In his deposition, Howell said that he enjoyed the supervisory course, he worked well with Johnstone, and he worked well with Kos. Howell said that he had no reason to believe that Johnstone or Kos discriminated against him because of his race.

Howell's position as a supervisor was eliminated in December, 1979, because of manpower cutbacks due to foreign competition. He was given the job of Senior Repairman, a demotion in status. Carmel Bruno, a white supervisor, also was demoted during this time. Howell argues that Judge Murray erred in granting GE's motion for summary judgment because there exist genuine disputes of material fact. He also contends that his section 1981 claim is not time-barred because he is suffering continuing injury. Because these claims are completely without merit, we agree with Judge Murray and affirm the grant of summary judgment.

Howell argues that a genuine dispute exists as to whether he was demoted for racially motivated reasons. Judge Murray dismissed this argument reasoning that Howell "offers no facts to support his claims, but merely restates conclusory allegations that he was discriminated against." App. 275-76. Howell seeks to rebut Judge Murray's conclusion with the argument that his affidavit contains statements that he believes he was not treated in the same manner as his co-workers. Howell then makes the unbelievable claim that, "In the face of this affidavit, the conclusory nature notwithstanding, the Court had sufficient material factual issues before it to negate G.E.'s entitlement to summary judgment...." (emphasis added) Appellant's brief at 5.

Rule 56(e) of the Federal Rules of Civil Procedure outlines Howell's burden in responding to GE's motion for summary judgment:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

See also, Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986), and Celotex Corporation v. Catrett, 106 S. Ct. 2548, 2553 (1986). Howell's two-page affidavit simply is not sufficient to resist GE's motion. The affidavit is conclusory and void of factual support.¹  Such an affidavit will not create a jury question. Barwick v. Celotex Corporation, 736 F.2d 946, 959-960 (4th Cir. 1984). Howell testified in his deposition that he believed his demotion was for economic reasons, that he worked well with his supervisors, and that he felt he had been evaluated fairly. Howell did not rebut GE's motion.

Howell's section 1981 claims are time-barred. In Maryland, the general three-year limitations period set forth in Md.Cts. & Jud.Proc. Code Ann. Sec. 5-101 governs causes of action raised under 42 U.S.C. § 1981. Burnett v. Grattan, 468 U.S. 42 (1984); Davis v. Bethlehem Steel Corp., 600 F. Supp. 1312, 1321 (D. Md.), aff'd, 769 F.2d 210 (4th Cir.), cert. denied, 106 S. Ct. 573 (1985). Howell filed his complaint on December 23, 1985; any matters occuring before December 24, 1982, are time-barred. Most of Howell's section 1981 claims (counts 11, 12, and 13 in his complaint) occurred prior to 1981. Howell's retaliation claim (count 14) was thoroughly discredited by his own disposition testimony. Judge Murray dismissed all of the claims.

Howell argues that his claims remain viable because of their continuing nature. Judge Murray explicitly found that the violations were not continuing in nature, that the incidents were separate and discrete. This court has made clear that the plaintiff's calling the defendant employer's behavior "continuing in nature" does not necessarily make it so. Hill v. AT & T Technologies, Inc., 731 F.2d 175, 179-80 (4th Cir. 1984). This court pointed out in Hill that in order for a plaintiff to show a continuing violation, the plaintiff must first show the existence of a violation. "It is only where an actual violation has occurred within that requisite time period ... that under any possible circumstances the theory of continuing violation is sustainable." (emphasis in original) Id. at 180. See also Woodward v. Lehman, 717 F.2d 909, 914-15 (4th Cir. 1983). Given that Howell has failed to show enough evidence of racial discrimination to survive a summary judgment motion, he obviously cannot show that such discrimination has continued long enough to justify the displacement of repose statutes. The decision below is affirmed.

AFFIRMED.