                                                                     F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                                    PUBLISH
                                                                  October 12, 2006
                   UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
                                                                     Clerk of Court
                               TENTH CIRCUIT



 M A RK E. B RO WN ,

             Plaintiff-Appellant,

 v.                                                    No. 05-3378

 UNIFIED SCHOOL DISTRICT 501,
 TO PEK A PUBLIC SCHOOLS,

             Defendant-Appellee.



        A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                    FOR T HE DISTRICT OF KANSAS
                      (D.C. No. 04-CV-1193-DW B)


Submitted on the briefs:

Larry G. M ichel, Chris J. Kellogg, Kennedy, Berkley, Yarnevich, & W illiamson,
Chtd., Salina, Kansas, for Plaintiff-Appellant.

David P. M udrick, Thomas E. W right, Allison M . Kenkel, W right, Henson, Clark,
Hutton, M udrick & Gragson, L.L.P., Topeka, Kansas, for Defendant-Appellee.


Before HA RTZ, A ND ER SO N, and TYM KOVICH, Circuit Judges.


A ND ER SO N, Circuit Judge.
      Plaintiff, a former teacher/coach in the defendant school district, appeals

from an order of the magistrate judge 1 granting summary judgment for the school

district and dismissing his employment discrimination action as untimely.

On de novo review, see Boyer v. Cordant Technologies, Inc., 316 F.3d 1137, 1138

(10th Cir. 2003), w e affirm for the reasons discussed below. 2

      Plaintiff is a black male who was employed by the school district from

1980 to 1996 as a physical education teacher and, for some of that time, as a

basketball coach. During that period, he received a number of critical teacher

evaluations, was transferred from coaching girls’ basketball based on a report of

inappropriate conduct, and was discharged as a boys’ coach due to performance

issues. He sued the school district for race discrimination and retaliation in 1991.

The suit failed and he was ordered to pay attorney fees. He continued teaching in

the school district until 1996, when he relocated to Texas.

      He later returned to Kansas and on June 20, 2000, submitted an application

for teaching and coaching jobs to the school district. The school district’s human

resources manager, Lynn King, interviewed plaintiff in August 2001. After the

interview, M s. King sent a letter to plaintiff relating the superintendent’s decision


1
      The parties consented to disposition of the case by a magistrate judge
pursuant to 28 U.S.C. § 636(c).
2
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

                                         -2-
that, due to his past employment record with the school district, he “will not be

considered for rehire by this district.” Appellant’s Appendix (A pp.) I at 124.

The letter concluded with this clarifying admonition: “This letter should end any

uncertainty regarding your status with the [school district].” Id. W hile plaintiff

questioned the basis for the decision, he admitted that “after receiving this

[letter]” he “knew that they were saying they w[ould] not hire [him].” A pp. II

at 285 (B rown deposition pages 130, 132).

      In M arch 2002, plaintiff filed an EEOC charge over the school district’s

refusal to rehire him. See App. II at 321. He did not, however, pursue the matter

upon receipt of a right-to-sue letter in April 2002. See id. at 320.

      Plaintiff continued an aggressive correspondence with the school district

over his unsuccessful application, but the school district did not relent. As the

district court noted, plaintiff was repeatedly told that he would not be considered

for re-employment by the school district. See, e.g., id. at 437, 438. A letter sent

by M s. King to plaintiff in January 2003 concluded by saying: “I don’t know

what additional words to use to make the point more clear, you will not be rehired

by the school district.” Id. at 438.

      Finally, on M ay 23, 2003, M s. King sent plaintiff the letter that became the

basis of a second EEOC charge and, ultimately, this case. See id. at 311 (EEOC

charge citing M ay 23 letter); id. at 511 n.4 (district court order noting plaintiff’s

reliance on M ay 23 letter as only discrete act of discrimination); see also Br. of

                                           -3-
Aplt. at 8-9. In the letter, she reiterated the school district’s refusal to consider

plaintiff for any position and directed him to “re-read the volume of previous

responses to you on the subject of your rehire by the school district.” Id. at 439.

Plaintiff filed his associated charge with the EEOC on August 1, 2003. He was

sent a right-to-sue letter on M arch 31, 2004, id. at 312, and filed this action on

June 18, 2004, asserting claims of race discrimination under 42 U.S.C. § 1981

and race discrimination and retaliation under Title VII.

                          U ntimeliness of Title VII Claims

      There are two limitations provisions that together fix the time frame for

bringing suit under Title VII. First, the claimant must timely seek administrative

relief. “In a deferral state such as K ansas, a Title VII claimant must file his

discrimination charge within 300 days of the alleged unlawful act.” Peterson v.

City of Wichita, 888 F.2d 1307, 1308 (10th Cir. 1989) (applying 42 U.S.C.

§ 2000e-5(e)(1)); see also Davidson v. Am. Online, Inc., 337 F.3d 1179, 1183 &

n.1 (10th Cir. 2003). Second, the claimant must timely pursue legal action upon

conclusion of the administrative proceedings. “Under 42 U.S.C. § 2000e-5(f)(1)

a com plainant has ninety days in which to file suit after receipt of an EEOC

right-to-sue letter.” Witt v. Roadway Express, 136 F.3d 1424, 1429 (10th Cir.

1998). If the claimant fails to file suit within the ninety-day window, the lapsed

claims are not revived by including them in a second EEOC charge and restarting

the process. See, e.g., Spears v. M o. Dep’t of Corr. & Hum an Res., 210 F.3d 850,

                                           -4-
853 (8th Cir. 2000); Soso Liang Lo v. Pan Am. World Airways, Inc., 787 F.2d

827, 828 (2d Cir. 1986); Price v. Greenspan, 374 F. Supp. 2d 177, 184

(D.D.C. 2005).

      Plaintiff’s administrative charge and subsequent suit based on the school

district’s M ay 23, 2003 letter facially satisfied the time limitations summarized

above. However, the district court noted that the letter simply restated the school

district’s unconditional decision, first related to plaintiff in August 2001, refusing

to consider him for rehire in light of his past employment record. Thus, relying

on the non-revival rule cited above, the district court held that the operative

limitations period commenced and expired long before this action was filed.

Plaintiff challenges that decision, arguing that the M ay 23, 2003 letter was a

discrete act of discrimination/retaliation actionable independently of the school

district’s prior refusal to rehire him.

      The circumstances and briefing in this case suggest two polarized positions,

neither of which, in its extreme form, seems fully satisfactory: (1) an employer

may unilaterally impose a once-and-for-all condition on a claimant’s right to seek

redress for discrimination in hiring (or promotion, etc.) that could ultimately

involve the denial, over an extended time period, of multiple job opportunities,

versus (2) the claimant can perpetually revive an otherwise expired claim of

discrimination by repeatedly applying for additional positions. W e need not

choose between these stark alternatives here, however, as the particular claim

                                          -5-
pursued by plaintiff falls in the middle ground between them. Before explaining

our resolution of this case, we review some pertinent background principles that

are clearly established in the case law.

      First, “[e]ach discriminatory act starts a new clock for filing charges

alleging that act.” Nat’l R.R. Passenger Corp. v. M organ, 536 U.S. 101, 113

(2002). Thus, “discrete discriminatory acts are not actionable if time barred, even

when they are related to acts alleged in timely filed charges.” Id.

      Second, in determining when the limitation period comm ences, “the proper

focus is upon the time of the discrim inatory acts, not upon the time at which the

consequences of the acts became most painful.” Del. State Coll. v. Ricks,

449 U.S. 250, 258 (1980) (quotation omitted). Thus, when an initial

discriminatory act is time-barred, a later related event is not actionable if it is

merely a consequence of the first; to be actionable, the later event must involve

an independent act of discrimination (which in certain circumstances may be

inherent in the event, but otherwise requires explicit supporting allegations).

Com pare id. at 257-58 (holding claim time-barred because alleged discrimination

occurred w hen plaintiff w as denied tenure, not when he w as later terminated as a

result) with Bazemore v. Friday, 478 U.S. 385, 394-97 & n.6 (1986) (holding

disparate-pay claim timely, despite genesis of disparity in segregation long since

abandoned, because “[e]ach week’s paycheck that delivers less to a black than to

a similarly situated white is [inherently] a wrong actionable under Title VII”).

                                           -6-
In the same vein, a time-barred act cannot supply the requisite discriminatory

animus for an otherw ise neutral act within the limitations period. See United

Air Lines, Inc. v. Evans, 431 U.S. 553, 557-58 (1977) (rejecting claim by rehired

employee for allegedly wrongful denial of seniority for years spent outside

workforce following resignation under admittedly discriminatory marriage

prohibition, because seniority scheme was facially neutral and discrimination

associated with resignation was outside limitations period).

      Complementing the above two principles is a third that is especially

pertinent here. W hile a time-barred discriminatory act will not make actionable

(or be made actionable by) its later facially neutral consequences, such an act will

not preclude an action for subsequent related acts that would support suit on their

own. “The existence of past acts and the employer’s prior knowledge of their

occurrence . . . does not bar employees from filing charges about related discrete

acts so long as the acts are independently discriminatory and charges addressing

those acts are themselves timely filed.” M organ, 536 U.S. at 113. The Supreme

Court’s decision in Bazemore, noted above, illustrates this point in holding pay

disparities based on race actionable (with each pay check) even though they were

related to historical segregation practices not subject to suit.

      Plaintiff contends that his case falls within the scope of this last principle.

Based on his administrative charge and the pleadings and pretrial order herein,

we disagree. Plaintiff did not assert and offer a supporting factual basis for a

                                          -7-
claim that the school district’s letter of M ay 23, 2003 reflected an independent act

of discrimination/retaliation in hiring. Neither the charge, complaint, nor pretrial

order referred to any position that plaintiff had applied for and been denied, for

prohibited reasons, by that letter. See App. I at 11, 29, 126. Rather, consistent

with its content, which just referred back to past correspondence, the letter was

alleged to be w rongful because it reflected a continuation of the district’s

previously stated refusal to consider plaintiff for work based on his employment

history. Id. To the extent this broadly stated decision was itself actionable,

distinct from any independently discriminatory/retaliatory refusal to rehire

plaintiff for a particular job, the time for suit had clearly expired and, under the

authority discussed above, was not revived by plaintiff’s repeated attempts to

revisit the matter.

      None of the arguments advanced by plaintiff overcome this basic deficiency

in his case. In particular, he contends that his copious correspondence with the

school district over the broad decision it made in 2001 should be deemed a series

of discrete job applications and that the school district’s reaffirmations of that

decision should be deemed a series of discrete (and independently discriminatory

or retaliatory) decisions denying each application, the last of which, the letter of

M ay 23, 2003, would not be time-barred. But that is simply not the charge he

pursued administratively and the claim he pled in the district court, which fix the

scope of the case properly before us. Those remedial efforts were directed at the

                                          -8-
school district’s broad decision in August 2001 as reaffirmed, in equally broad

terms, in M ay 2003, not at any particular, independently discriminatory hiring

decision.

      Thus, as noted earlier, we have no occasion to decide whether the school

district’s once-and-for-all refusal to consider plaintiff for employment established

a single immutable accrual date for all failure-to-hire claims or, conversely, that

the intended effect of the unconditional refusal was rendered meaningless by

subsequent application(s) for employment that it w as intended to foreclose.

W e hold only that an employer’s mere reiteration of a broad decision not to

consider an applicant for any employment does not revive expired objections

regarding its initial statement of that decision.

                            Untimeliness of § 1981 Claim

      The forum state’s statute of limitations for personal injury actions governs

civil rights claims under both 42 U.S.C. § 1981 and § 1983. Scheerer v. Rose

State C oll., 950 F.2d 661, 664 (10th Cir. 1991) (citing Goodman v. Lukens Steel

Co., 482 U.S. 656, 660-62 (1987), for § 1981, 3 and Wilson v. Garcia, 471 U.S.

261, 276-80 (1985), superseded by statute on other grounds, as stated in Jones v.



3
      W e note that 28 U.S.C. § 1658 now provides a federal four-year limitations
period for statutory causes of action created after December 31, 1990, but this
provision has no application to discrimination claims under § 1981 involving the
formation of employment contracts (i.e., failure to hire), which were actionable
before the specified date. Cross v. The Home Depot, 390 F.3d 1283, 1288
(10th Cir. 2004).

                                          -9-
R.R. Donnelley & Sons Co., 541 U .S. 369, 377-78 (2004), for § 1983). In Kansas,

that is the two-year statute of limitations in Kan. Stat. Ann. § 60-513(a). Hamilton

v. City of Overland Park, 730 F.2d 613, 614 (10th Cir. 1984) (en banc).

      Here, that two-year period, like the Title VII limitations period, does not

reach back to the August 27, 2001 letter first stating the school district’s refusal

to consider plaintiff for rehire, but does cover the M ay 23, 2003 letter reiterating

that position. Thus, as the district court tacitly held and both parties explicitly

concede, the limitations issue under § 1981 clearly turns on the same accrual

analysis controlling our disposition of the Title VII claims. See Br. of Aplt. at 13;

Br. of Aplee. at 26. Accordingly, for the reasons explained above in connection

with the latter, we also hold that plaintiff’s § 1981 claim was properly dismissed

as time-barred.

      The judgment of the district court is AFFIRMED.




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