APPEAL FROM THE UNITED STATES DISTRICT COURT (D.C. Civil No. 75-1020)
Before Adams, Van Dusen and Rosenn, Circuit Judges.
This case presents the issue of which Pennsylvania statute of limitation governs an action brought in federal court under 42 U.S.C. § 1981, alleging racially discriminatory employment practices culminating in a wrongful discharge. The federal district courts in Pennsylvania have applied divergent limitation periods in federal Civil Rights Act cases involving racial discrimination in employment.*fn1 While this court has previously determined the Pennsylvania statute of limitation to be applied in Civil Rights Act suits alleging racial discrimination in the refusal to sell or rent housing, racial discrimination in employment has been implicitly treated as raising a distinct statute of limitation issue. We now have occasion to consider this issue and conclude that the six-year limitation period of 12 P.S. § 31 should have been applied to the complaint in this case, where the issue was raised by defendant's motion to dismiss or, alternatively, for summary judgment.
Plaintiff Thelma Davis' complaint, filed August 13, 1975, alleged that when hired in 1966 she had been the first black non-laborer employee to work for defendant, U.S. Steel Supply. While working as a clerk-typist, her fellow employees harassed her by means of racial slurs, threats and damage to her clothing. Despite persistent complaints to her supervisor, the complaint alleged that U.S. Steel Supply made no effort to correct the situation and provide plaintiff with a safe workplace. On February 2, 1970, after complaining to her immediate supervisor about slashed clothing, she was discharged, purportedly for " "her own personal safety' " (P 26 of complaint, 10a). The complaint further alleged that U.S. Steel Supply's failure to protect Mrs. Davis from a pattern of racial harassment constituted tacit approval of such harassment. Such tacit approval and her subsequent discharge were alleged to be racially discriminatory conduct, in violation of 42 U.S.C. § 1981. For relief the complaint sought damages under § 1981 for lost wages and fringe benefits, plus costs and attorney's fees.
U.S. Steel Supply responded by filing a motion to dismiss the complaint or, in the alternative, for summary judgment. The brief filed in support of the alternative motions argued that plaintiff's § 1981 action was time barred and that it was precluded by a prior adverse state court judgment. By order of January 14, 1976, the District Court for the Western District of Pennsylvania granted U.S. Steel Supply's motion and dismissed Mrs. Davis' complaint. The district court's accompanying opinion held that plaintiff's § 1981 claim was time barred by application of the two-year statute of limitation specified in 12 P.S. § 34. Davis v. U.S. Steel Supply, 405 F. Supp. 394 (W.D.Pa.1976). The opinion did not advert to the state court judgment which was asserted to be Res judicata. This court must determine whether the district court, in its opinion and order of January 14, 1976, erred in interposing the two-year limitation period of 12 P.S. § 34 to bar Mrs. Davis' § 1981 complaint. We find that the district court did err and therefore we reverse.
Congress has not prescribed a limitation period for actions brought under § 1981 or the other Civil Rights Acts. Accordingly, federal courts apply " "the limitation . . . which would be applicable in the courts of the state in which the federal court is sitting had an action seeking similar relief been brought under state law' Polite v. Diehl, 507 F.2d 119, 122 (3d Cir. 1974) (en banc)." Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 900 (1977). See also Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975). Selection of the appropriate forum state statute of limitation requires characterization of the essential nature of the federal claim within the scheme created by the various state statutes of limitation.
Pennsylvania's scheme of statutes of limitation is designed in terms of common law causes of action. Pennsylvania's colonial legislature enacted in 1713 an omnibus statute, now codified as 12 P.S. § 31, that provides a six-year limitation period for, Inter alia, contract actions and actions of trespass.*fn2 Nearly two centuries later the Pennsylvania Commonwealth's legislature passed the Act of June 24, 1895, now codified as 12 P.S. § 34, which prescribed a two-year limitation period for a suit "brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death . . . ." The current Code's retention of both Acts as originally enacted complicates determination of the applicable limitation period insofar as the two Acts overlap. This court has previously canvassed the state's judicial construction of these Acts and clarified the operation of Pennsylvania's statutes of limitation scheme. Unless Pennsylvania's highest court alters its interpretation of the Acts or the legislature repeals them, we in this circuit are bound by this court's decision in Meyers v. Pennypack Woods Home Ownership Association, 559 F.2d 894 (3d Cir. 1977).
Pennypack Woods recognized that the Pennsylvania Supreme Court had held that the Act of 1895 repealed the Act of 1713 only as to trespass actions which also involved injury to the person, short of death. Id. at 902. Trespass actions which do not fall within the precise terms of 12 P.S. § 34 remain governed by the more general 12 P.S. § 31. In construing the precise terms of the Act of 1895, this court has noted its application only to damage actions.*fn3 Moreover, Pennypack Woods considered the statutory reference to injury to the person as encompassing only actions for bodily injury. Id.
While 12 P.S. §§ 31 and 34 apply to a broad range of common law and statutory actions, some state statutory causes of action have accompanying limitation periods. For example, Pennsylvania has enacted an Equal Pay Act, 43 P.S. § 336.5 (1968), which creates a private cause of action for wages lost due to discrimination in employment on the basis of sex. The Equal Pay Act expressly contains a two-year statute of limitation. In addition to creating private actions for sex discrimination, Pennsylvania has proscribed employment discrimination on the basis of race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability. Pennsylvania Human Relations Act, 43 P.S. §§ 953, 955. However, victims of discrimination must first resort to administrative remedies within 90 days of the alleged discrimination. Id. § 959. The Commission is given one year to investigate the charges and to effectuate conciliation. Only if the state Human Relations Commission fails to settle the dispute within that period or dismisses the complaint may an individual bring a private suit based on the Human Relations Act in state court. Id. § 962(c). The Act does not specify a limitation period in which the plaintiff must file such a suit after receiving notification from the Commission of its dismissal of the complaint or its failure to obtain a conciliation agreement. Id.
12 P.S. §§ 31 and 34 and the limitation periods associated with the aforementioned statutory rights of action for employment discrimination are each urged upon the court as a source of the statute of limitation to be applied to plaintiff's federal civil rights suit. To choose from among these limitation periods, we must first characterize the essential nature of the plaintiff's federal claim. In characterizing the essence of a § 1981 claim, we look to the complaint's factual allegations concerning defendant's conduct and plaintiff's injury and its requested relief. Pennypack Woods, supra at 901.
Plaintiff's complaint accuses her employer of racially discriminatory conduct in basically two respects. First, U.S. Steel Supply's supervisory personnel are alleged to have failed to correct, and to have tacitly approved, a pattern of racial abuse directed at Mrs. Davis by her fellow workers. Second, plaintiff alleges that her discharge was in response to her complaints of racial harassment and constituted an unlawful termination of her employment. Plaintiff's complaint cites incidents of abuse and of personal property damage, but not of bodily injury. The gravamen of the complaint does not concern Mrs. Davis' interest in personal security, but rather involves unlawful interference with her rights as an employee. Mrs. Davis implicitly asserts a right to good faith efforts by an employer to correct instances of co-worker racial harassment and a right not to be discharged for complaining of such incidents. Essentially, Mrs. Davis complains that U.S. Steel Supply demeaned her and fired her because of her race. In terms of legal relief, plaintiff's complaint does not seek damages for either property or bodily injury. The complaint seeks back wages and fringe benefits lost as a result of her firing.
U.S. Steel Supply analogizes Mrs. Davis' complaint to a classic tort action for assault, slander or battery, each of which is said to typically involve injury to the person within the meaning of 12 P.S. § 34. U.S. Steel Supply denies the complaint sounds in contract because Mrs. Davis worked without a written contract. We reject both contentions. Mrs. Davis' complaint does not rest its claim for relief on any allegation of bodily injury such as would be encompassed within the two-year limitation of 12 P.S. § 34. Furthermore, Mrs. Davis' complaint alleges an unlawful breach of an existing at-will employment contract and, therefore, is within the precise terms of 12 P.S. § 31.
That part of Mrs. Davis' complaint which alleges unlawful discharge clearly does not resemble a tort action for assault or battery. Even the factual allegations of racial slurs and attacks on her property do not cause her action to be governed by 12 P.S. § 34. Had Mrs. Davis brought suit against her co-workers, who hurled the racial epithets and threatened her person, then the complaint might be analogized to a tort action for assault. But Mrs. Davis did not sue because of bodily injury or even the threat of bodily injury. She sued her employer for subjecting her to a discriminatory status as an employee because of her race. The federal Civil Rights Acts do not create a general federal tort law. See Griffin v. Breckenridge, 403 U.S. 88, 101-02, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971). They create a right to be accorded equal or color-blind status in the pursuit of various legal rights and economic interests. If Mrs. Davis' complaint is to be analogized to tort actions, it would best be analogized, as was the claim of racial discrimination in Pennypack Woods, to those torts which involve the wrongful ...