Court rejects continuing violations deadline extension in failure-to-train case

This case teaches us some painful lessons about statutes of limitations. While Title VII relaxes the SOL in certain cases under the continuing violations doctrine, it does not help the plaintiff in this case because he was aware of certain adverse employment actions while they were happening and therefore had to file an EEOC charge at that time.

The case is Tassy v. Buttigieg, issued on October 20. Plaintiff worked for the Federal Aviation Administration and was denied a series of training opportunities. In hostile work environment cases, where the abuse is ongoing, the statute of limitations starts to run on the date of the last hostile act. The reason for this is that the employee may not be fully cognizant of the hostile environment right away, as HWE cases require a series of hostile acts for there to be a claim under Title VII. But promotion denials and other discrete acts of discrimination do not fall into that exception, as these personnel decisions are apparent on the day they take place. As discrete acts are easy to identify, you cannot wait for a series of promotion denials to unfold before filing an EEOC charge. The Supreme Court said that in National Railroad Passenger Corp. v. Morgan, 536 U.S. 135 (2002). 

Plaintiff must not have filed an EEOC charge during the early training denials. His failure-to-trail claims were dismissed in the district court. Hence this appeal. He argues that the training denials were part of an ongoing pattern of harassment and that the short federal EEO deadline was not waived. But the Court of Appeals (Livingston, Pooler and Sack) says that training denials are among the discrete acts that must be grieved within the EEOC deadline and cannot comprise a continuing violation that we associate with HWE claims. 

What this means is that when Tassy went to the federal EEO office with his discrimination charge, his failure to train claims were untimely because none had happened in the previous 45 days, the deadline for EEO charges when you work for the federal government. He tries to get around this by stating that other acts of discrimination took place during those 45 days, which included management ignoring his training requests. The Court says this conclusory allegation in his affidavit is not enough to make the claims timely His "vague reference to 'repeatedly . . . rebuffed' requests is insufficient to support his claim that discrete acts of discriminatory conduct occurred throughout the entirety of his time" at the federal office where he worked. Practice tip: summary judgment affidavits need to be as detailed as possible.

What about plaintiff's claim that the training denials were part of a larger pattern of discriminatory conduct in the workplace, creating an overall HWE? This is a creative argument, as negative personnel decisions can in fact support a HWE claim in certain circumstances. If that argument has merit, then Tassy can invoke the continuing violations rule. The Court rejects that argument, noting that the Supreme Court has already "rejected the . . . view that a series or pattern of ‘related discrete acts’ could constitute one continuous ‘unlawful employment practice’ for purposes of the statute of limitations." To the contrary, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges,” as “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act.” This language comes from the Morgan ruling, and Chin v. Port Authority, 685 F.3d 135 (2d Cir. 2012).