Unpublished Disposition, 874 F.2d 816 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 874 F.2d 816 (9th Cir. 1989)

Arlene MARSHALL, Plaintiff-Appellant,v.CIBA-GEIGY CORPORATION, a New York Corporation, and WilliamGish, Defendants-Appellees.

No. 88-3731.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 1989.Decided April 21, 1989.

Before CANBY, DAVID R. THOMPSON and LEAVY, Circuit Judges.


MEMORANDUM* 

Arlene Marshall appeals the district court's dismissal on summary judgment of her Title VII and section 1981 claims alleging racial discrimination in her working conditions and termination. She also appeals the summary judgment dismissal of her pendent claim under Oregon law asserting wrongful discharge. Reviewing de novo, we affirm on the basis that the plaintiff did not present " 'evidence from which a reasonable jury could return a verdict in [the plaintiff's] favor.' " United Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 256 (1986)).

Marshall's complaint alleges that CIBA-Geigy and her former supervisor, William Gish, discriminated against her on the basis of race in the terms and conditions of her employment, in allowing a racially discriminatory and hostile work atmosphere to prevail, in failing to promote her, and in terminating her. Marshall concedes that her termination is the sole allegedly discriminatory act that occurred during the actionable period. The doctrine of continuing wrong does not entitle Marshall to recovery for claims based on incidents outside of the actionable period unless Marshall has raised an inference of intentional discrimination occurring during the actionable period. See Williams v. Owens-Illinois Inc., 665 F.2d 918, 924 (9th Cir.), cert. denied, 459 U.S. 971 (1982); Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 760 (9th Cir. 1980); United Airlines v. Evans, 431 U.S. 553, 558 (1977).

Marshall fails to create an inference of intentional discrimination concerning her termination. Marshall testified in deposition that she knew of no improper motives on the part of CIBA-Geigy in terminating her on the ground that she had abandoned her job. Moreover, Marshall has not sustained a prima facie case based on circumstantial evidence under the McDonnall-Douglas test because she never established or even asserted that a white person was hired after she was terminated. See Jones v. Los Angeles Community College Dist., 702 F.2d 203, 205 (9th Cir. 1983); accord, Breneman v. Kennecott Corp., 799 F.2d 470, 474 (9th Cir. 1986). Marshall is not entitled to consideration of incidents before the actionable period as "relevant background evidence" of discriminatory intent, Evans, 431 U.S. at 558, because such incidents concerned defendant Gish, who had no involvement in Marshall's termination.

Because Marshall fails to create an inference of intentional discrimination concerning her termination, the doctrine of continuing wrong does not apply. Therefore, the defendants were entitled to summary judgment on all Title VII claims. See Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d 1409, 1418 (9th Cir. 1988).

In Goodman v. Ludens Steel Co., 107 S. Ct. 2617 (1987), the Supreme Court held that the appropriate state statute to be applied in section 1981 actions is the state personal injury statute. Id. at 2621. Goodman may be applied retroactively if there was no established rule in the circuit on which the complaining party was entitled to rely. Id. at 2621-22. At the time Marshall filed suit, Wrighten v. Metropolitan Hosps., Inc., 726 F.2d 1346 (9th Cir. 1984), held that Oregon's six-year statute of limitations, which governs certain statutory actions, should be applied in section 1981 cases. However, Wrighten did not constitute a clear and established rule because in 1985 the Supreme Court decided Wilson v. Garcia, 471 U.S. 261 (1985), which holds that state personal injury statutes govern actions brought under section 1983. Given the similarity of sections 1981 and 1983, it is reasonable to conclude that the former statute also falls under Wilson. Accordingly, Marshall's action is governed by Oregon's two-year personal injury statute, ORS 12.110.

Marshall's complaint was filed more than two years after any allegedly discriminatory act except her termination. As discussed above, recovery for acts other than the termination is time-barred and the continuing wrong doctrine is inapplicable because Marshall fails to raise an inference of intentional discrimination in her termination. See Miller v. Fairchild Indus., Inc., 797 F.2d 727, 733 (9th Cir. 1986) (same standards apply to claims under 42 U.S.C. § 1981 and Title VII); General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 388 (1982) (Sec. 1981 plaintiff must prove intentional race discrimination).

In her complaint, Marshall alleged that she was discharged in retaliation for having filed a workers' compensation claim. During argument below (RT 3-4) and on appeal, Marshall contends that it was not known whether the discharge was retaliatory, and argues that CIBA-Geigy committed a tort by discharging Marshall for failing to come to work when her workers' compensation claim for total temporary disability was still pending. Marshall argues that terminating an employee who is not working and has a pending workers' compensation claim violates public policy and interferes with the employee's contractual right to assert a workers' compensation claim.

In Delaney v. Taco Time Int'l, Inc., 297 Or. 10, 681 P.2d 114 (1984), the court divided wrongful discharge claims into three categories: 1) discharge for fulfilling a societal obligation; 2) discharge for exercising a statutory right related to the plaintiff's role as an employee; and 3) noncognizable claims where the employee has adequate existing remedies. Id. at 15-16; 681 P.2d at 117-18. Delany does not hold that a termination that affects exercise of a statutory right, regardless of the employer's legitimate motive, constitutes wrongful discharge. Thus, Marshall cannot state a claim under Delaney without arguing and showing evidence that CIBA discharged her because she filed a workers' compensation claim. Cf. Brown v. Transcon Lines, 284 Or. 597, 588 P.2d 1081 (1978) (plaintiff discharged in alleged retaliation for filing a workers' compensation claim). She made no such showing.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

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