                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT


                         ____________________

                             No. 96-30481
                           Summary Calendar
                         ____________________


HUGH FOSTER,

                                                  Plaintiff-Appellant,

                                 versus

INTERNATIONAL BUSINESS MACHINES
CORPORATION; DENNY SLAYTON,

                                                 Defendants-Appellees.

_________________________________________________________________

      Appeal from the United States District Court for the
                  Eastern District of Louisiana
                          (95-CV-3456-N)
_________________________________________________________________
                        November 21, 1996
Before GARWOOD, JOLLY, and DENNIS, Circuit Judges.

PER CURIAM:*

     In   this    removed,   diversity-based    employment   case,   the

plaintiff, Hugh Foster, appeals the district court's dismissal of

his case under Rule 12(b)(6) on grounds that it was prescribed by

the applicable state statute of limitation.

     We review Rule 12(b)(6) motions de novo. Cinel v. Connick, 15

F.3d 1338, 1341 (5th Cir.), cert. denied, 115 S.Ct. 189, 130


 *
  Pursuant to Local Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
L.Ed.2d 122 (1994).         For the reasons detailed below, the district

court is affirmed.

                                            I

     Mr. Foster contends that in 1993 and 1994 his employer, IBM,

discriminated        against      him   on       the   basis     of   race.          This

discrimination is alleged to have culminated on September 22, 1994,

when IBM notified Foster he was fired.                 Foster's last day of work

with IBM, however, was November 30, 1994.                He filed this lawsuit on

September 29, 1995.

     The district court held that Louisiana's one-year statute of

limitations barred the complaint, determining that the cause of

action arose on September 22, 1994, the date Foster learned of his

dismissal.        In contrast, Foster contends that the cause of action

arose   on    his    last   day   of    work,     November     30,    1994,    and   his

complaint, therefore, was filed in a timely manner.                           Thus, the

narrow question on appeal is whether a cause of action for race

discrimination under La. Rev. Stat. § 23:1006, § 51:2242, and §

51:2256 arises when an employee has notice of termination or on the

last day of employment.

                                           II

                                            A

     In diversity cases, such as this one, federal courts are

obliged      to    follow   the    state        high   court's    determination       of




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substantive state law issues.         When the high court has not spoken

to a particular issue, the federal court must attempt to decide how

the state high court would rule on the issue.                       Erie R. Co. v.

Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Walker

v. Savell, 335 F.2d 536, 540-42 (5th Cir. 1964).

     Although decisions of state appellate courts are influential,

they are not binding upon us when we find that the state’s highest

court would decide differently.                West v. American Telephone &

Telegraph Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139

(1940).

                                          B

     In   Williams   v.    Conoco,    we        concluded    that    although      the

Louisiana Supreme Court had not resolved the issue, a cause of

action for employment discrimination cases runs from the date the

employee has notice of an adverse action.                   Williams v. Conoco,

Inc., 860 F.2d 1306 (5th Cir. 1988).                   In 1992, the Louisiana

Appellate Court ruled in a state race discrimination case that the

prescriptive period begins to run at the time of notice, confirming

the federal courts' position. Winbush v. Normal Life of Louisiana,

599 So.2d 489 (La. App. 3 Cir. 1992).                 Therefore, at least as of

1992,   the   question    of   when   a       cause   of   action    arises   in   an

employment discrimination case appeared settled.




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      The plaintiff, however, contends that the recent opinion of

Harris v. Home Savings and Loan Assoc. changes everything.           Harris

v. Home Savings and Loan Assoc., 663 So.2d 92, 95 (La. App. 3

Cir.); writ denied 664 So.2d 405 (1995).          The court in Harris held

that under the facts before it, a claim for age discrimination

began on the date of firing and not from the date of notification.

Id. at 94.   The plaintiff argues that Harris overruled Winbush.         We

find that Harris is distinguishable from both Winbush, and from

Foster's claim.

      Harris involved unusual facts: After working thirty-six years

for his employer, Home Savings and Loan notified Harris he was

going to lose his job.         Rather than simply firing Harris, his

employer gave him two options.        He could continue with the company

for three years at a reduced salary, or he could keep his current

salary for one additional year, but lose certain other benefits.

Harris chose to continue to work for a single year.          He filed his

age discrimination complaint a few months after finally leaving the

company, but over a year after learning that he would eventually

lose his job.

      The Harris Court was concerned that in such circumstances, an

employee may be forced to choose between continuing to work during

a   "phase   out"   period    and   filing   a   well-grounded   employment

discrimination suit.         The court noted: "a claimant's cause of




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action may very well be undermined, if not completely thwarted, by

a wily employer who misleads the claimant into believing that

ameliorative measures may be taken within a year of notification to

prevent a termination and then does nothing to annul the decision

to terminate."      Id. at 95-96.

     The    Harris Court's particular take on Delaware State College

v. Ricks is illuminating.       Delaware State College v. Ricks, 449

U.S. 250, 101 S.Ct 498, 66 L.Ed.2d 431 (1980).            Ricks, a college

teacher who had been denied tenure, claimed that he had been

discriminated against based on his national origin.             Denial of

tenure     was     the   functional    equivalence   of     being   fired.

Nevertheless, Ricks was permitted to work for more than a year,

before being forced to leave.          The Supreme Court found that the

"unlawful employment practice" occurred when Ricks learned that

tenure was denied; the ultimate termination of employment at the

end of the following academic year was a consequence of the denial

of tenure.       Therefore, the Court held, the cause of action arose

when Ricks learned of the denial of tenure.

     The Harris Court contrasted Ricks with Harris, noting that

"Once tenure was denied in Ricks, the damage was done.          The intent

to terminate Mr. Harris as evidenced by the October, 1992 notice

could easily have been annulled before his actual termination."

Harris, 663 So.2d at 95.       Therefore, the decision in Harris, the




                                      -5-
Louisiana court reasoned, does not apply to circumstances such as

those     in   Ricks   where   a   decision    to    fire     an       employee    is

unequivocally communicated and little or no hope for a reprieve

exists.

     In contrast, the letter notifying Foster that he was fired was

unequivocal.      It noted Foster's employment was to end permanently

on November 30, 1994.       Contrary to Foster's assertions, nothing in

the letter gave hope of another position in the company being

available.       The letter notes that "[w]hile internal placement

activities may be undertaken, opportunities for placement within

IBM are expected to be very limited.          You do not have the option of

assuming a job that would displace another IBM regular employee."

Therefore,      whatever   force   Harris   may   have,     it    is    simply    not

applicable to the case before us.

     The       district    court   correctly      concluded        that    in     the

circumstances before us, Foster's cause of action arose when he was

notified that he had been fired.            Therefore, the district court

opinion is

                                                                 A F F I R M E D.




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