07-1386-cv
Alleyne v. American Airlines

                           UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT
                                    _______________

                                       August Term, 2008
(Submitted: November 10, 2008                                      Decided: November 17, 2008)

                                     Docket No. 07-1386-cv
                                      _______________

                                       RUPERT ALLEYNE ,
                                                            Plaintiff-Appellant,
                                             —v.—

                  AMERICAN AIRLINES, INC., also known as AMERICAN EAGLE,
                                                        Defendant-Appellee,

               LOCAL 501 OF THE TRANSPORT WORKERS UNION OF AMERICA ,
                                                    Defendant.
                                    _______________

Before:
                               SOTOMAYOR, KATZMANN AND HALL
                                                                   Circuit Judges.
                                        ______________

         Appeal from an April 4, 2007 judgment of the United States District Court for the Eastern
District of New York (Irizarry, J.), dismissing the complaint. Because we agree with the district
court that appellant’s claim of employment discrimination accrued for statute of limitations
purposes on the date when appellant learned of his allegedly discriminatory loss of seniority, and
not on the subsequent date of the neutral termination of his employment, the judgment of the
district court is AFFIRMED.
                             _________________________________

       ALAN E. WOLIN , Wolin & Wolin Esqs., Jericho, NY, for Plaintiff-Appellant.

       RENE M. JOHNSON , Morgan, Lewis & Bockius LLP, New York, NY, for Defendant-
       Appellee.
                         _________________________________
PER CURIAM

       Appellant Rupert Alleyne appeals an April 4, 2007 judgment of the United States District

Court for the Eastern District of New York (Irizarry, J.), dismissing his discrimination claim

brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–17 (2006)

(“Title VII”). The district court held that Alleyne had failed to file a Charge of Discrimination

with the Equal Employment Opportunity Commission (“EEOC”) within 300 days of the alleged

unlawful employment action, as required by 42 U.S.C. § 2000e-5(e)(1). As a result, the district

court dismissed appellant’s Title VII claim and declined to exercise supplemental jurisdiction

over appellant’s other claim, which was asserted under New York State Executive Law

§§ 296–97. On appeal, Alleyne contends that the district court erred in determining the date on

which the statute of limitations for his Title VII claim began. We disagree and affirm the

judgment of the district court.

                                        BACKGROUND

       Appellant Alleyne, an African-American, held the position of service clerk with appellee

American Airlines, Inc. (“American Airlines”) from 1994 to 2003. Alleyne was also a member

of Local 501 of the Transport Workers Union of America (“Transport Union”). Under the terms

of a collective bargaining agreement between American Airlines and the Transport Union, “[a]n

employee who accepts a temporary or acting assignment with the Company as a manager,

supervisor or any special assignment outside the scope of this Agreement will not exceed a

period of three hundred and twenty (320) hours for all time worked in any calendar year.” An

employee who worked in excess of 320 hours forfeited “all Occupational seniority.”


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       With American Airlines’ permission, Alleyne worked for 323 hours as a Management

Personnel Replacement for the company during the first two months of 2002. His seniority was

subsequently forfeited around March 2002. Because of a reduction in workforce and as a

consequence of his loss of seniority, Alleyne was advised in June 2003 that his employment

would be terminated. The forfeiture of seniority also affected the likelihood that Alleyne would

be rehired by American Airlines. Alleyne asked the Transport Union to dispute American

Airlines’ actions under the collective bargaining agreement, but the Transport Union refused.

       In March 2004, approximately two years after his seniority was forfeited, Alleyne filed a

claim with the EEOC, which later granted permission to sue. Alleyne asserts here that American

Airlines and the Transport Union acted together to revoke his seniority so that he would be laid

off because of his race. He contends that Caucasian and Latino employees who worked for

comparable periods as Management Personnel Replacements were not required to forfeit their

seniority and therefore did not lose their jobs.

                                           DISCUSSION

       The issue before this Court is whether Alleyne’s complaint with the EEOC was filed

within 300 days of American Airlines’ “alleged unlawful employment practice,” as required

under 42 U.S.C. § 2000e-5(e)(1). This inquiry, in turn, requires us to identify the unlawful

employment practice at issue. American Airlines contends that the relevant employment action

was the loss of Alleyne’s occupational seniority in March 2002, while Alleyne argues that the

pertinent conduct included the termination of his employment in June 2003. If the unlawful

employment action consisted only of Alleyne’s loss of seniority, then Alleyne filed his claim


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with the EEOC too late. If the discriminatory act included Alleyne’s discharge, then Alleyne’s

claim was timely filed.

       We hold that Alleyne’s filing with the EEOC was not timely because the only alleged

discriminatory act was Alleyne’s loss of seniority. This conclusion is compelled by Delaware

State College v. Ricks, 449 U.S. 250 (1980), in which a college professor asserted a claim under

Title VII after he was denied tenure and then discharged one year later. Id. at 252–54. The

complaint alleged that the denial of tenure was discriminatory but failed to identify any “alleged

discriminatory acts that continued until, or occurred at the time of, the actual termination of his

employment.” Id. at 257. While acknowledging that the termination of employment may have

been a “delayed, but inevitable, consequence of the denial of tenure,” the Court held that the

“emphasis is not upon the effects of earlier employment decisions; rather, it is upon whether any

present violation exists.” Id. at 257–58 (internal quotation marks, brackets and italics omitted).

Accordingly, the Court held that the limitations period commenced when the college

communicated to the professor its decision to deny tenure as opposed to when the college

terminated his employment. Id. at 261–62; see United Air Lines, Inc. v. Evans, 431 U.S. 553,

560 (1977) (holding that an allegedly discriminatory practice that was no longer actionable could

not form the predicate of a challenge to a neutral seniority system).

       Like the complaint in Ricks, Alleyne’s complaint fails to allege that his termination of

employment was discriminatory. See 449 U.S. at 257. Instead, it alleges that a discriminatory

loss of seniority resulted in a discharge that indiscriminately affected those without seniority.

According to the complaint, Caucasian and Latino employees who worked as Management


                                                  4
Personnel Replacement for as long as Alleyne “did not lose their seniority and were not laid off.”

Because Alleyne concedes that “[h]ad [he] not allegedly exceeded 320 hours, he would not have

been laid off,” the alleged discrimination arose from his loss of seniority, not his termination of

employment. Although Alleyne broadly alleges that American Airlines and the Transport Union

manipulated the collective bargaining agreement to ensure his dismissal because of his race, he

does not allege that any other employee who lacked seniority was treated differently than he was

at the time of his termination.1

       Alleyne argues that Ricks is distinguishable because, in that case, the discriminatory

denial of tenure and the decision to terminate employment were communicated simultaneously to

the plaintiff. See 449 U.S. at 252–53. Accordingly, the plaintiff in Ricks was on notice, at the

same time, of both the discriminatory act and its consequences. Id. In contrast, Alleyne suggests

that he was not necessarily aware of the effects of his loss of seniority. He contends that he could

have remained employed even after the loss of seniority and that, in fact, he was not notified of

his discharge until approximately nine months after his loss of seniority.

       We do not find this distinction to be relevant. Alleyne does not, and reasonably cannot,

downplay the significance of the loss of approximately nine years of seniority. “Seniority is an

important employee benefit because . . . it provides job protection. Its deprivation is an injury



       1
         Although “an employment discrimination plaintiff need not plead a prima facie case of
discrimination” in order to survive a motion to dismiss, Swierkiewicz v. Sorema N. A., 534 U.S.
506, 515 (2002), a generous reading of Alleyne’s complaint does not uncover any suggestion that
he was treated differently from other non-senior employees because of his race, or any allegation
of discrimination with respect to his termination that is independent of his earlier loss of
seniority.

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that sets the statute of limitations running even though the injury is contingent rather than

actual unless and until job protection is needed.” Kennedy v. Chem. Waste Mgmt., Inc., 79 F.3d

49, 50 (7th Cir. 1996) (internal citation omitted). Thus, in order to have notice of his claim under

Title VII, Alleyne need not have forecast every problem attending his loss of seniority. “[T]he

proper focus [for calculating the limitations period] is upon the time of the discriminatory acts,

not upon the time at which the consequences of the acts became most painful.” Ricks, 449 U.S.

at 258 (internal quotation marks and emphasis omitted); see also Flaherty v. Metromail Corp.,

235 F.3d 133, 137 (2d Cir. 2000) (“It has long been settled that a claim of employment

discrimination accrues for statute of limitations purposes on the date the employee learns of the

employer’s discriminatory conduct.”).2

                                          CONCLUSION

       Because Alleyne’s discharge was merely the delayed, neutral effect of alleged

discrimination that took place outside the period of limitations, the order of the district court

dismissing the complaint is AFFIRMED.




       2
         The complaint does not allege a continuous violation spanning from the loss of
Alleyne’s seniority to his discharge because the loss of seniority was the only alleged
discriminatory act. See Patterson v. County of Oneida, 375 F.3d 206, 220 (2d Cir. 2004) (“To
bring a claim within the continuing violation exception, a plaintiff must at the very least allege
that one act of discrimination in furtherance of the ongoing policy occurred within the limitations
period.”).

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