IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-30790
Summary Calendar
_____________________
BEVERLY BLACHER,
Plaintiff-Appellant,
versus
BASF CORPORATION,
Defendant-Appellee.
_________________________________
Appeal from the United States District Court
for the Middle District of Louisiana
(96-3119-B-M2)
_________________________________
March 25, 1999
Before JOLLY, SMITH and WIENER, Circuit Judges.
Per Curiam*
In this appeal from the dismissal of her employment
discrimination suit, Plaintiff-Appellant Beverly Blacher asks us to
reverse the district court’s orders granting summary judgment in
favor of Defendant-Appellee BASF Corporation. For the reasons
expressed below, we agree with the district court and affirm.
I
FACTS AND PROCEEDINGS
BASF owns and operates a chemical plant complex in Geismar,
Louisiana. Blacher, a black female, was hired by BASF in 1973 as
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
an accounting clerk. In 1980, Blacher was promoted from
“Accounting Clerk II” to “Accounting Clerk I,” a job classification
in which she remained for the next 15 years. In 1995, BASF offered
a “Voluntary Special Early Retirement Program” to 96 employees at
Geismar who would be 50 years-old or older by June 30, 1995,
including 56 year-old Blacher. Blacher was one of 77 employees who
accepted the offer and retired. She signed the acceptance
documents in the program on May 23, 1995, and her retirement became
effective July 1, 1995.
Less than one year later, on May 10, 1996, Blacher filed suit
in state court asserting myriad age- and race-based employment
discrimination claims under former Louisiana statutes.2
Specifically, Blacher alleged that BASF discriminated against her
by (1) failing to promote her in 1979, 1980, and 1990; (2)
consistently undercompensating her throughout her career; and (3)
as a result of these acts, creating such an unpleasant work
environment that Blacher felt compelled to retire.
BASF removed the action to federal court and thereafter filed
a motion for summary judgment, which the district court granted as
to all of Blacher’s claims except constructive discharge. Four
months later, BASF filed a second motion for summary judgment,
submitting additional evidence on, and seeking dismissal of, the
constructive discharge claim. Following oral argument, the
2
LA. REV. STAT. ANN. §§ 23:972 & 51:2242, repealed by Acts 1997,
No. 1409, § 4, effective Aug. 1, 1997. Louisiana’s employment
discrimination statutes were replaced by and consolidated in
Chapter 3-A of Title 23 of the Revised Statutes, §§ 301-354. Acts
1997, No. 1409, § 4, effective Aug. 1, 1997.
2
district court granted BASF’s second summary judgment motion and
dismissed Blacher’s action with prejudice. Blacher timely filed
this appeal.
II
ANALYSIS
A. Standard of Review
We review the district court’s grant of summary judgment de
novo, applying the same standard as the district court.3
B. Applicable Law
1. Time Bar
A Louisiana statute makes it unlawful for an employer to “fail
or refuse to hire, or to discharge, any individual or otherwise
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment”
because of age.4 Another state statute proscribes such
discrimination on the basis of race.5 A cause of action brought
under either of these statutes is a tort, governed by Louisiana’s
one-year prescriptive period.6 This period commences on the day
3
Hudson v. Raggio & Raggio, Inc., 107 F.3d 355, 356 (5th Cir.
1997).
4
LA. REV. STAT. ANN. § 23:972, repealed in and replaced by Acts
1997, No. 1409, § 4, effective Aug. 1, 1997.
5
LA. REV. STAT. ANN. § 51:2242, repealed in and replaced by Acts
1997, No. 1409, § 4, effective Aug. 1, 1997.
6
LA. CIV. CODE ANN. ART. 3492 (West 1994). See Harris v. Home
Sav. & Loan Ass’n, No. W95-223 (La. App. 3d Cir. 7/27/95), 663 So.
2d 92, 94 (recognizing that state age discrimination claims are
subject to a one-year prescriptive period). Although no case has
specifically addressed the prescriptive period for race claims
brought under La. R.S. § 51:2242, we have held that an action under
3
that injury or damage is sustained.7 Blacher filed suit on May 10,
1996. Thus, an action for any injury or damage sustained prior to
May 10, 1995 is subject to the defense of prescription.
To avert application of this one-year prescription, Blacher
asserts —— unartfully —— that the entire course of BASF’s
discriminatory conduct constitutes a continuing tort, which gives
rise to a single cause of action. In addition to contending that
BASF discriminated against her on the basis of race or age or both
when it failed to promote her to various accounting positions in
1979, 1980, and 1990, Blacher also claims that BASF consistently
awarded higher pay raises to her younger co-workers, both black and
white. This discriminatory pay practice, says Blacher, culminated
in the complete denial of a pay raise to her on May 1, 1995.
Finally, as a result of BASF’s discriminatory job advancement and
compensation practices, argues Blacher, her working conditions
became so intolerable that she was compelled to retire. Thus,
Blacher insists, because the damaging effects of all of BASF’s
La. R.S. § 23:1006 —— a statute which also prohibited employment
discrimination on the basis of race —— is a tort subject to article
3492's one-year prescriptive period. Williams v. Conoco, Inc., 860
F.2d 1306, 1306 (5th Cir. 1988). See also Winbush v. Normal Life
of La., Inc., 599 So. 2d 489, 491 (La. App. 3d Cir. 1992),
abrogated on other grounds, Harris v. Home Sav. & Loan Ass’n, No.
W95-223 (La. App. 3d Cir. 7/27/95), 663 So. 2d 92 (recognizing with
approval this Circuit’s holding in Williams); Rhea v. Dillard Dep’t
Stores, Inc., No. 96-1404, 1996 WL 537447, at *4 (E.D. La. Sept.
20, 1996)(citing Williams and Winbush in support of the proposition
that a claim brought under La. R.S. § 51:2242 is subject to a one-
year prescriptive period). Blacher does not challenge the general
applicability of article 3492's one-year prescriptive period to her
race claims, but argues, for other reasons, that her claims have
not prescribed.
7
LA. CIV. CODE ANN. ART. 3492 (West 1994).
4
adverse employment actions continued until the day she retired ——
July 1, 1995 —— her claim never prescribed. As we shall
demonstrate, this argument is wholly without merit, and we reject
it.
Louisiana’s “continuing tort” doctrine —— analogous to the
theory of “continuing violation” under federal law —— applies to
situations in which the complained-of unlawful employment practice
“manifests itself over time.”8 According to this doctrine,
otherwise unactionable conduct may become tortious as a result of
its “continuous, cumulative, synergistic nature.”9 Because, under
such circumstances, it is difficult to pin-point the specific date
of injury, “prescription does not commence until the last act
occurs or the conduct is abated.”10 Although there is no definitive
standard for determining what constitutes a continuing tort, courts
often consider such factors as the subject matter, frequency, and
permanence of the conduct.11 Thus, if the alleged acts involve the
same type of discrimination, are recurring, and lack the finality
that would ordinarily trigger a plaintiff’s awareness of and duty
to assert his rights, the plaintiff will be relieved from the
burden of proving that the entire violation occurred within the
8
Waltman v. International Paper Co., 875 F.2d 468, 474 (5th
Cir. 1989); Bustamento v. J.D. Tucker, 607 So. 2d 532, 541 (La.
1992).
9
Bustamento, 607 So. 2d at 542.
10
Id. at 538 & 542.
11
Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998).
5
actionable period.12 If the plaintiff can show a series of related
acts, one or more of which fall within the limitations period, his
action will be timely.13
In the instant case, though, the conduct about which Blacher
complains does not constitute a single continuing tort. Rather, it
is a series of discrete and salient events. Even if we assume
arguendo that BASF’s adverse employment decisions were unlawfully
discriminatory, each clearly would have given rise to an
immediately apparent injury, resulting in the accrual of a
distinctly separate cause of action, with prescription running one
year from the date of each incident. That Blacher may have felt
the effects of BASF’s decisions long after the date on which the
employment action on each was taken, does not transform the
challenged incidents into a single continuing tort.14
With the exception of her constructive discharge claim, all of
Blacher’s allegations of discrimination are rooted in separate and
distinct employment decisions made by BASF prior to May 10, 1995,
and are no longer viable.15 Consequently, we agree with the
12
Messer v. Meno, 130 F.3d 130, 134-35 (5th Cir. 1997).
13
Id.
14
See Alldread v. City of Grenada, 988 F.2d 1425, 1431 (5th
Cir. 1993).
15
The district court found Blacher’s discrimination claim based
on BASF’s May 1, 1995 pay raise denial viable for the seven week
period from May 10, 1995 to July 1, 1995, but ultimately rejected
the claim on its merits. As BASF’s May 1, 1995 employment action
was taken more than one year prior to Blacher’s filing of suit,
however, we conclude that this claim too has prescribed and do not
reach its merits.
6
district court’s grant of summary judgment in favor of BASF on
those claims.
2. Constructive Discharge
To assert a cause of action for discriminatory discharge under
either or both of Louisiana’s age and race employment
discrimination statutes,16 a plaintiff must first establish a prima
facie case by demonstrating that (1) he was discharged, (2) he
belongs to a protected class, (3) he was qualified for the
position, and (4) individuals outside of the protected class were
treated more favorably.17 When, as here, an employee resigns, he
may satisfy the first requirement by proving constructive
discharge.18 To do so, a plaintiff must demonstrate that his
working conditions were so intolerable that a reasonable employee
in his situation would have felt compelled to resign.19 Factors
16
Because Louisiana’s prohibitions against age discrimination
(La. R.S. 23:972) and race discrimination (La. R.S. 51:2242) are
virtually identical to that under federal law, both state and
federal courts applying Louisiana law look to Title VII when
determining whether a plaintiff has asserted a cause of action. In
making this determination, courts adhere to the evidentiary
procedure established by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
17
See Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 318 (5th
Cir. 1997). To satisfy the final step of a prima facie case of
race discrimination, a plaintiff need only prove that he was
replaced by someone outside the protected class. Id. In the
context of age discrimination, however, a plaintiff may show that
he was either (1) replaced by someone outside the protected class,
(2) replaced by someone in the protected class but younger than the
plaintiff, or (3) otherwise discharged because of his age. Id. at
319.
18
Id. at 319.
19
Id.
7
such as (1) demotion, (2) reduction in salary or job
responsibilities, (3) reassignment to menial or degrading work or
to work under a younger supervisor, (4) badgering, harassment, or
humiliation by the employer calculated to encourage the employee’s
resignation, and (5) offers of early retirement on terms that, if
accepted, would make the employee worse off regardless of whether
the offer were to be accepted, may be considered by the court,
either singly or in combination, when determining objectively
whether a reasonable employee would have felt compelled to resign.20
If the plaintiff establishes a prima facie case, a presumption
of discrimination arises. Then, to avoid liability, the employer
must rebut this presumption by articulating a legitimate,
nondiscriminatory reason for its action.21 If the employer carries
this burden, the presumption fades, and the plaintiff must prove
that the true reason for the employment decision is unlawful
discrimination, not the employer’s proffered reason.22
Blacher contends that summary judgment was inappropriate
because she adduced sufficient evidence to create a genuine issue
of material fact as to whether she was constructively discharged
and as to whether the reason for this adverse employment action was
age or race discrimination, or both. In support of her contention,
Blacher argues that BASF’s denial of promotions and inequitable pay
20
Barrow v. New Orleans Steamship Ass’n, 10 F.3d 292, 297 (5th
Cir. 1994).
21
Faruki, 123 F.3d at 319.
22
Id.
8
raises made her working conditions intolerable. Further, asserts
Blacher, employment with BASF became exceedingly unpleasant when,
in 1995, she was subjected to weekly performance reviews. Blacher
claims that BASF was “building a file against her” and that she had
no choice but to retire. Relying on nothing more than her own
subjective belief that BASF’s employment decisions were based on
age and race, Blacher claims that a reasonable employee faced with
such discriminatory treatment would have felt compelled to resign.
We disagree.
Based on our de novo review, we conclude that Blacher has
failed to adduce evidence sufficient to create a fact issue as to
whether BASF placed her in an intolerable work environment. There
is no evidence that Blacher was demoted or reassigned or that, as
a result of BASF’s conduct, her work description changed in any
way. Furthermore, she has produced no evidence of “badgering,
harassment, or humiliation” by BASF which would tend to support a
finding of constructive discharge. Although Blacher insists that
BASF singled her out for weekly performance reviews, the record
evidence indicates that such reviews were part of a plant-wide
approach to improving productivity, and had been recommended for
any number of employees who, like Blacher, experienced performance
problems. In addition, the simple fact that BASF may have been
“building a file” on Blacher is not indicative of difficult or
unpleasant working conditions, particularly when, as here, the
evidence supports a finding that Blacher’s productivity had
historically been low. Finally, with regard to BASF’s allegedly-
9
discriminatory job advancement and compensation practices, we
conclude that, under the circumstances presented in this case,
instead of resigning, a reasonable employee would have continued to
work while simultaneously pursuing the administrative and judicial
employment discrimination remedies available to her under the law.23
When we view all facts in the light most favorable to Blacher,
we are satisfied that her working conditions were not so
intolerable that a reasonable employee would have felt compelled to
resign. We conclude that Blacher elected to retire voluntarily;
that she was not constructively discharged.
III
CONCLUSION
Blacher’s failure both to file suit in a timely manner and to
raise a genuine issue of material fact as to whether she suffered
an adverse employment action is dispositive of her discrimination
claims. Accordingly, any question whether BASF’s alleged
employment actions were motivated by discriminatory animus has been
rendered moot. We hold, therefore, that the district court
correctly granted summary judgment to BASF on Blacher’s
discrimination claims. The summary judgments of the district court
are, in all respects,
AFFIRMED.
23
See Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243
(5th Cir. 1993).
10