                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-2288
                                  ___________

Donald Jackson,                      *
                                     *
             Appellant,              *
                                     * Appeal from the United States
      v.                             * District Court for the Eastern
                                     * District of Arkansas.
Homechoice, Inc., doing              *
business as Rentway of               * [PUBLISHED]
Pine Bluff, Arkansas; Rent-Way,      *
Inc.                                 *
                                     *
             Appellees.              *
                                ___________

                            Submitted: April 30, 2004

                                 Filed: May 21, 2004
                                  ___________

Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

       In this employment discrimination suit, Donald Jackson, an African-American,
appeals from the district court’s adverse grant of summary judgment to Homechoice,
Inc. d/b/a Rent-Way (Rent-Way). We affirm in part and reverse in part.

      Jackson filed his complaint on September 24, 2001, claiming discrimination
(including his March 1999 discharge) based on race and in retaliation for filing a
charge of discrimination with the Equal Employment Opportunity Commission
(EEOC), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
et seq. (Title VII), and 42 U.S.C. § 1981.

       The district court granted Rent-Way’s motion for summary judgment. As to
Jackson’s Title VII claims, the court held that Jackson had not proven that his EEOC
charge was timely filed, and that no EEOC misconduct justified equitably tolling the
limitations period. The court also held that Jackson’s section 1981 claims were
untimely under the statute of limitations found in the Arkansas Civil Rights Act
(ACRA). Ark. Code Ann. § 16-123-107(c)(3) (Supp. 2003) (employment action shall
be brought within one year after alleged employment discrimination occurred).

       This court reviews the district court’s grant of summary judgment de novo,
viewing the record in the light most favorable to Jackson. See Shempert v. Harwick
Chem. Corp., 151 F.3d 793, 795 (8th Cir. 1998). The district court did not err by
granting summary judgment on Jackson’s Title VII claims. Although Jackson
attested that he mailed a charge of discrimination to the EEOC in September 1998,
the undisputed evidence showed that the EEOC did not receive the charge until June
2001. See 42 U.S.C. § 2000e-5(e)(1) (requiring that Title VII claims be filed with
EEOC within 180 days after alleged unlawful employment practice); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (summary judgment may be granted
if evidence is merely colorable or not significantly probative; mere existence of
scintilla of evidence in support of non-movant’s position will be insufficient to avoid
summary judgment).

      Jackson also did not show that the 180-day deadline for filing the charge
should be equitably tolled. See Shempert, 151 F.3d at 797 (requirement of filing
timely charge with EEOC is subject to waiver, estoppel, and equitable tolling;
equitable tolling is premised on excusable neglect of filing party). Jackson’s
evidence--that he made numerous calls to the EEOC and was always told his file was

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unavailable and the EEOC would get back to him--did not show misconduct by the
EEOC that warrants equitable tolling. Cf. Lawrence v. Cooper Communities, Inc.,
132 F.3d 447, 451-52 (8th Cir. 1998) (failure to file timely charge was excusable
neglect where EEOC mistakenly told plaintiff his unverified charge information form
was valid charge, and EEOC did not complete formal, verified charge until after 180-
day deadline; failure to file timely charge arose from EEOC’s misconduct which was
circumstance beyond plaintiff’s control); Jennings v. American Postal Workers
Union, 672 F.2d 712, 715 (8th Cir. 1982) (plaintiff alleged EEOC told her it lacked
jurisdiction over her claim; EEOC did have jurisdiction and court of appeals
remanded to district court for determination of when she attempted to file charge;
“uncounseled plaintiff should not be penalized for the EEOC’s mistakes of law”).
Moreover, Jackson did not explain how the EEOC’s response to his ineffective phone
calls caused him to wait some 27 months after his March 1999 termination before he
demanded a right-to-sue notification. See Shempert, 151 F.3d at 798 (equitable
tolling not justified because at no point were circumstances out of plaintiff’s control;
EEOC did not mishandle plaintiff’s claim or otherwise mislead her into inaction); cf.
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984) (per curiam)
(individual who fails to act diligently cannot invoke equitable principles to excuse
lack of diligence).

       We conclude, however, that Jackson's section 1981 claims should not have
been dismissed based on ACRA’s one-year statute of limitations. After the district
court's decision, the Supreme Court held in Jones v. R.R. Donnelley & Sons Co., 124
S. Ct. 1836 (2004), that the four-year statute of limitations set forth in 28 U.S.C.
§ 1658 applies to any claim that was made possible by an Act of Congress enacted
after December 1, 1990. Thus, any claim created by the Civil Rights Act of 1991,
which expanded the scope of section 1981, is governed by a four-year limitations
period.




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       Jackson's claims that he was discriminated against and discharged from
employment because of his race, and that he was harassed and terminated in
retaliation for filing a charge of discrimination with the EEOC, were not cognizable
under section 1981 prior to 1991. As originally enacted, the statute did not protect
against harassing conduct that occurred after the formation of a contract. See
Patterson v. McLean Credit Union, 491 U.S. 164, 176-78 (1989). Claims alleging
wrongful discharge or hostile work environment did not state violations of the
original version of section 1981. Jones, 124 S. Ct. at 1840. The 1991 Act, however,
expanded the statute to include the "termination of contracts, and the enjoyment of
all benefits, privileges, terms, and conditions of the contractual relationship." 42
U.S.C. § 1981(b). It is this post-1990 version of section 1981 that Jackson invokes
as the basis for his claims under section 1981. Accordingly, in light of the Supreme
Court's decision in Jones, the applicable statute of limitation is four years, and the
claims should not have been dismissed based on the one-year statute of limitations
in ACRA.

       For the foregoing reasons, we affirm the grant of summary judgment with
respect to Jackson’s Title VII claims, but remand to the district court for further
proceedings on claims brought under section 1981 that arise within the four-year
limitations period. We deny Rent-Way’s pending motion.

                       ______________________________




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