Unpublished Disposition, 931 F.2d 896 (9th Cir. 1991)

MEMORANDUM^* 

Henry Barnum brought this employment discrimination action in district court alleging Title VII (42 U.S.C. § 2000e et seq.) and 42 U.S.C. § 1981 violations as well as pendent state claims.

Barnum, a Hispanic, worked for Pacific Bell for approximately thirty years. During that time, he received only two promotions. He contended he was denied promotion to an upper-level management position because of his race and because he was actively involved with Los Padrinos, an organization within Pacific Bell committed to the promotion and enforcement of rights of Hispanic employees.

Barnum also alleged he was subjected to a continuing course of racial harassment by his superiors. He asserted that he was forced to endure numerous transfers, was given poor performance evaluations, suffered pay reduction and was mentally intimidated, all because of his Hispanic origin and his involvement with Los Padrinos. He also contended Pacific Bell harassed him and failed to promote him because he sought help from the Equal Employment Opportunity office.

The district court granted summary judgment in favor of Pacific Bell on the federal claims and dismissed the pendent state claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

DISCUSSION

An employee bringing a Title VII action has 180 days after the alleged unlawful employment practice in which to file his claim. However, when an employee has initiated proceedings with a state or local agency, the discrimination claim may be filed within 300 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e). The district court concluded that Barnum's Title VII claim was time-barred because he failed to point to a discriminatory act that fell within the applicable statute of limitations period. In so ruling, the court rejected Barnum's reliance upon the doctrine of continuing violations.

An employee establishes discrimination under the doctrine of continuing violations by showing either a systematic policy and practice of discrimination, at least partially occurring within the applicable limitations period, or a series of discriminatory events of which one or more fall within the period. Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1480 (9th Cir. 1989). The former situation is referred to as a "systemic violation" while the latter has been termed a "serial violation." Both situations require proof of at least one discriminatory event during the relevant limitations period.

Barnum asserts only two allegedly discriminatory events which fall within the relevant period: he alleges (1) he was not promoted after discussing his desire for a new position with his supervisor, and (2) his desk was not moved to another building at the same time other employees' desks were moved. Although Barnum concludes these acts were part of a continuing course of racial discrimination in violation of Title VII, he offers no factual support that the acts were racially motivated or taken as retaliation for his Los Padrinos activity or the filing of his Equal Employment Opportunity complaint.

Barnum also alleges that he was subjected to racial harassment and that Pacific Bell failed to promote him in violation of 42 U.S.C. § 1981. The district court correctly granted summary judgment in favor of Pacific Bell on these claims. The Supreme Court has held that claims of racial harassment in the conditions of employment are precluded under section 1981. Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 2374, 105 L. Ed. 2d 132 (1989). In addition, under Patterson, a claim for failure to promote is actionable under section 1981 " [o]nly where the promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer...." Id. at ----, 109 S. Ct. at 2377, 105 L. Ed. ----. There is nothing in the record to show that a promotion to the upper-level management position Barnum sought would have resulted in an opportunity for a new and distinct employment relationship between Barnum and Pacific Bell.

AFFIRMED.