The opinion of the court was delivered by: Matthew F. Kennelly, United States District Judge.
MEMORANDUM OPINION AND ORDER
In these consolidated suits, the plaintiffs, current and former
African-American employees of R.R. Donnelley & Sons, a printer and
provider of information services and logistics, allege employment
discrimination in violation of 42 U.S.C. § 1981 and Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) & 3(a). The Court
recently certified three classes of plaintiffs: the first consists of
"All African-American employees of R.R. Donnelley who were employed at
the Chicago Manufacturing Division and who were discharged during the
shutdown of that division and were not transferred to another Donnelley
division"; the second consists of "All African-American employees of
R.R. Donnelley who were employed at the Chicago Manufacturing Division at
any time from November 1992 to the present as non-regular employees
(including temporary, casual, contract, contingent, task force, etc.)";
and the third consists of "All African-American employees of R.R.
Donnelley who worked at (a) the Dwight division; (b) the Chicago
Financial Division; or (c) the Chicago Manufacturing Division from
November 1992 to the present and were subject to racial harassment so
pervasive as to create a hostile working environment." See Adams v. R.R.
Nos. 98 C 4025, 96 C 7717, 2001 WL 336830, at *20 (N.D.Ill. Apr. 6, 2001).
The parties have urged the Court to consider and resolve a single
issue-the appropriate statute of limitations to be applied to plaintiffs'
claims-arguing that resolution of this issue will in turn govern how the
parties proceed on summary judgment and ultimately at trial. As framed by
the parties, the question presented is whether the appropriate statute of
limitations is the four-year period contained in 28 U.S.C. § 1658
(what has been referred to as the federal "catch-all" statute of
limitations) or the two-year statute of limitations that governs personal
injury actions in Illinois.
This is not the first time the statute of limitations issue has been
raised in this case. Before the cases were consolidated, Donnelley moved
for partial summary judgment in the Jones case on the ground that the
claims relating to its Chicago Manufacturing Division and the claims of
many of the named plaintiffs were time-barred, filed after the expiration
of what Donnelley argued was the applicable statute of limitations:
Illinois' two-year personal injury statute of limitations. The plaintiffs
opposed the motion, arguing (among otherthings) that the applicable
statute of limitations was the four-year catch-all period contained in
§ 1658. Magistrate Judge Ian Levin concluded that § 1658, by its
plain language, applied only to Acts of Congress enacted after December
1990, not Acts amended after December 1990, Jones v. R.R. Donnelley, No.
96 C 7717, 1999 WL 33257839, at *9 (N.D. Ill. Feb. 11, 1999); because
"[t]he addition of Section 1981(b) was merely an amendment to Section
1981, which occurred after the enactment of Section 1658," Judge Levin
reasoned, § 1658 did not apply to the plaintiffs' claims. Id. Judge
Levin therefore recommended that Judge Williams grant Donnelley's motion
for partial summary judgment with respect to all claims relating to the
operation and shutdown of the CMD and all the named plaintiffs identified
and designated by the defendant in its motion. Id. at *12.
The plaintiffs objected to the magistrate's report and recommendation,
Donnelley responded, and ultimately Judge Williams denied the summary
judgment motion, though she did so on non-statute-of-limitations grounds
and indeed stated that the Court "expresse[d] no opinion on the
correctness of Judge Levin's analysis of . . . the applicability of
28 U.S.C. § 1658's four-year statute of limitations to actions brought
under 42 U.S.C. § 1981(b)." Jones v. R.R. Donnelley, No. 96 C 7717,
1999 WL 639180, at *2 (N.D.Ill. Aug. 17, 1999). In short, we are
essentially writing on a clean slate on the statute of limitations
issue, though, as discussed below, we are hardly the first court to
consider the question.
Before 1991, § 1981 read as follows:
All persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of
every kind, and to no other.
The statute, as then written, protected just two rights: the right to
make contracts, which "extend[ed] only to the formation of a contract,
but not to problems that may arise later from the conditions of
continuing employment," and the right to enforce
"embrace[d] protection of a legal process, and of a right of access to
legal process, that will address and resolve contract-law claims without
regard to race." Patterson v. McLean Credit Union, 491 U.S. 164, 176-77
(1989). The Civil Rights Act of 1991, which became law (i.e., was
enacted) on November 21, 1991, revised § 1981, making the
above-quoted language subsection (a) and adding two more subsections:
subsection (b), which defined "make and enforce contracts" to include
"the making, performance, modification, and termination of contracts, and
the enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship"; and subsection (c), which made the section
applicable to private entities. In other words, the version of § 1981
in the 1991 Act created new causes of action that were not cognizable
under the pre-1991 version of the statute.
Because § 1981 does not contain a statute of limitations, courts
considering claims under § 1981 for civil rights violations
historically have applied the state personal injury statute of
limitations, see Goodman v. Lukens Steel Co., 482 U.S. 656 (1987); Reed
v. United Transp. Union, 488 U.S. 319, 323-24 (1989), which in Illinois
is two years, 735 ILCS 5/13-202. The question for the Court is whether
this well-settled proposition was altered by Congress' enactment on
December 1, 1990 of 28 U.S.C. § 1658, the federal "catch-all" statute
of limitations. Section 1658 provides that "[e]xcept as otherwise
provided by law, a civil action arising under an Act of Congress enacted
after the date of the enactment of this section may not be commenced
later than 4 years after the cause of action accrues."
Looking at the plain language of § 1658, this seems to this Court
to be an easy question to answer, though judging by the panoply of ways
in which the question has been framed and answered this is apparently a
minority view. The Seventh Circuit has yet to address the question of
whether § 1658 governs claims brought under the 1991 Act; in fact
only one circuit court, the Third, has actually considered, analyzed and
answered the question. In Zubi v. AT&T Corp., 219 F.3d 220, 225 (3rd
Cir. 2000), the court held that § 1658 applies "only when Congress
establishes a new cause of action without reference to preexisting law.
. . ." Thus, because Congress "chose to build upon a statutory text that
has existed since 1870," the court held, "Zubi's civil action arises
under an Act of Congress enacted before December 1, 1990, and is governed
by New Jersey's two-year statute of limitations." Id. at 226. The Court
cannot imagine how this is possible; in Patterson, the United States
Supreme Court clearly held that claims such as those asserted by Zubi
(discriminatory firing) did not arise under the pre-1991 version of
§ 1981. See Patterson, 491 U.S. at 177 ("the right to make contracts
does not extend, as a matter of either logic or semantics, to conduct by
the employer after the contract relation has been established. . . .).
Rather, such claims can be made only by virtue of Congress' 1991
enactment of § 1981(b).
The Sixth Circuit has acknowledged that this issue exists, though it
has not yet decided whether § 1658 actually applies to § 1981
claims. In one case, the district court applied Kentucky's personal
injury statute of limitations to the plaintiff's § 1981 claims
without considering § 1658, and the Sixth Circuit remanded with
instructions to do so. Young v. Sabbatine, No. 97-5169, 1998 WL 136559,
at *3 (6th Cir. March 19, 1998). On remand, the district court found that
§ 1658 governed the claims, and although the parties tried
to argue the issue on appeal, the Sixth Circuit concluded that it lacked
jurisdiction to consider the question because the party with standing to
do so failed to file a notice of cross-appeal. Young v. Sabbatine, No.
99-6336, 2000 WL 1888672, at *2 n. 2 (6th Cir. Dec. 19, 2000).
The Tenth Circuit, interestingly, has applied the state's personal
injury statute of limitations to § 1981 claims without so much as
discussing the possibility that § 1658 might come into play, see
Reynolds v. School District No. 1, Denver, Colorado, 69 F.3d 1523 (10th
Cir. 1995); Roberts v. Roadway Express, Inc., 149 F.3d 1098 (10th Cir.
1998), which seems odd given that a number of district courts in that
circuit have considered and resolved the issue-to conflicting ends.
Compare Alexander v. Precision Machining, Inc., 990 F. Supp. 1304
(D.Kan. 1997) (holding that § 1658 applies to claims arising out of
the 1991 Act), with Mason v. Anadarko Petroleum Corp., No. 97-1051, 1998
WL 166562 (D.Kan. 1998); Lasley v. Hershey Foods Corp., 35 F. Supp.2d 1319
(D. Kan. 1999); and Hall v. Flightsafety International, Inc.,
106 F. Supp.2d 1171 (D.Kan. 2000) (all holding that § 1658 does not
apply to § 1981 claims, even those arising under the 1991 Act). The
Tenth Circuit has considered § 1658's impact in the context of a
§ 1983 claim, however, and concluded that the statute would not apply
because the 1996 amendment to § 1983-which merely added a right to
seek injunctive relief-did not create a cause of action. See Laurino ...