Gamas v . Anheuser-Busch CV-03-89-PB 02/23/05
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
George Gamas
v. Civil N o . 03-89-PB 2005 DNH 030 Anheuser-Busch, Inc.
MEMORANDUM AND ORDER
George Gamas has filed a three-count complaint against
Anheuser-Busch, Inc. He charges in Count I that Anheuser-Busch
violated 42 U.S.C. § 1981 by discriminating against him on the
basis of his national origin. He claims in Count II that
Anheuser-Busch engaged in national origin discrimination in
violation of Title V I I , 42 U.S.C. § 2000e, et seq. He alleges in
Count III that Anheuser-Busch violated his rights under the
Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101, et
seq.
Anheuser-Busch has filed a motion for summary judgment. It
argues that it is entitled to prevail on Count I because § 1981 does not cover national origin discrimination. It contends that
it is entitled to prevail on Counts II and III because Gamas did
not file a timely charge asserting his claims with the Equal
Employment Opportunity Commission (“EEOC”). I address each
argument in turn.
A. Section 1981 Claim
Gamas alleges in his complaint that Anheuser-Busch violated
§ 1981 by discriminating against him on the basis of his Greek
national origin. Anheuser-Busch argues that it is entitled to
prevail on this claim because § 1981 does not cover claims of
national origin discrimination.
Although I agree that § 1981 does not cover discrimination
based on national origin, it does reach certain claims based on
ancestry. See Saint Francis College v . Al-Khazraji, 481 U.S.
604, 613 (1987). Whether a claim of ancestry discrimination is
cognizable under § 1981 depends upon whether the group whose
ancestry the plaintiff shares was viewed as racially distinct and
entitled to protection when § 1981 was enacted. See Shaare
Tefila Congregation v . Cobb, 481 U.S. 615, 616-17 (1987)
(applying 42 U.S.C. § 1982). Courts in other jurisdictions have
applied this test to recognize § 1981 claims based on Italian
-2- ancestry (Bisciglia v . Kenosha Unified Sch. Dist. N o . 1 , 45 F.3d
223, 229-30 (7th Cir. 1995)), French ancestry (Franchitti v .
Bloomberg, 2004 WL 2366183, *3-4 (S.D.N.Y. 2004)), and Greek
ancestry (Drikos v . City of Palos Heights, 2003 WL 22872130, *2
(N.D. Ill. 2003)).
Although Gamas limited his complaint to a claim of national
origin discrimination, his objection to the motion for summary
judgment reveals that he intended to also claim that he was the
victim of discrimination on the basis of his Greek ancestry. As
discussed, this claim could be brought under § 1981. Rather than
waiting for Gamas to formally move to amend his complaint,
however, I deem the complaint to be amended to include a claim
for discrimination on the basis of Greek ancestry. Anheuser-
Busch’s motion for summary judgment with respect to this claim is
denied without prejudice.
B. Title VII and ADA Claims
Both Title VII and the ADA require claimants such as Gamas
to file a charge with the EEOC before filing a claim in court.
See Rivera v . Puerto Rico Aqueduct and Sewers Authority, 331 F.3d
183, 188 (1st Cir. 2003) (Title V I I ) ; Stepney v . Naperville Sch.
Dist. 203, 392 F.3d 236, 239 (7th Cir. 2004) (ADA). In this
-3- case, Gamas was required to file a charge “within three hundred
days after the alleged unlawful employment practice occurred. . .
.” 1 42 U.S.C. § 2000e-5. The parties disagree as to how this
limitation period should be determined. Anheuser-Busch argues
that the 300-day limitation period includes weekends and
holidays, even when the last day of the period falls on a weekend
or holiday. Gamas relies on Fed. R. Civ. P. 6(a) 2 in arguing
that the last day of the filing period should not be counted when
it is a Saturday, Sunday, or legal holiday. This difference is
significant because Gamas filed his charge on the Tuesday after
the Labor Day weekend, on what would be the three hundred and
second day if I were to adopt Anheuser-Busch’s time computation
rule.
Title VII does not have its own time computation rule and
the statute’s implementing regulations are also silent on the
subject. Although it could certainly be argued that in the
1 The parties agree that Gamas is entitled to the 300-day limitation period. I accept this agreement without attempting to determine on my own whether a different limitation period should apply. 2 Rule 6(a) provides in pertinent part that “the last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday . . . .”
-4- absence of such a rule, the most reasonable way to construe the
limitation period would be to count all days, even when the last
day of the filing period falls on a day when the EEOC is not open
for business, it makes more sense to construe the filing
requirement in light of the time computation rule set forth in
the Federal Rules of Civil Procedure.
Every circuit court that has addressed the issue in the
context of Title VII’s general statute of limitations has
endorsed this view and construed the limitation period in
accordance with Rule 6 ( a ) . Kane v . Douglas Elliman, Hollyday &
Ives, 635 F.2d 1 4 1 , 142 (2d Cir. 1980); Pearson v . Furnco Const.
Co., 563 F.2d 815, 818-19 (7th Cir. 1977); see also Milam v .
United States Postal Service, 674 F.2d 8 6 0 , 862 (11th Cir. 1982)
(construing special limitations period for claims against the
federal government). Although no circuit court has yet
considered whether the approach to time computation embodied in
Rule 6(a) should also be applied to Title VII’s administrative
filing requirement, the only district courts that have addressed
the issue had concluded that it should. See Davitt v . Open MRI
of Allentown, LLC, 2003 WL 2316429 *4 (E.D. P a . 2003) (Title
V I I ) ; Bethelmie v . New York City Health and Hosp. Corp., 2001 WL
-5- 863424 *2 (S.D.N.Y. 2001) (ADA); Bonebrake v . West Burlington
Ind. Sch. Dist., 2001 WL 901265 *4 (S.D. Iowa 2001)(ADEA); see
also Suarez v . Puerto Rico Elec. Power Auth., 798 F.Supp. 876,
887 (D.P.R. 1992) (relying on Rule 6(a) for determination that
administrative limitation period begins on day after unlawful
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Gamas v . Anheuser-Busch CV-03-89-PB 02/23/05
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
George Gamas
v. Civil N o . 03-89-PB 2005 DNH 030 Anheuser-Busch, Inc.
MEMORANDUM AND ORDER
George Gamas has filed a three-count complaint against
Anheuser-Busch, Inc. He charges in Count I that Anheuser-Busch
violated 42 U.S.C. § 1981 by discriminating against him on the
basis of his national origin. He claims in Count II that
Anheuser-Busch engaged in national origin discrimination in
violation of Title V I I , 42 U.S.C. § 2000e, et seq. He alleges in
Count III that Anheuser-Busch violated his rights under the
Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101, et
seq.
Anheuser-Busch has filed a motion for summary judgment. It
argues that it is entitled to prevail on Count I because § 1981 does not cover national origin discrimination. It contends that
it is entitled to prevail on Counts II and III because Gamas did
not file a timely charge asserting his claims with the Equal
Employment Opportunity Commission (“EEOC”). I address each
argument in turn.
A. Section 1981 Claim
Gamas alleges in his complaint that Anheuser-Busch violated
§ 1981 by discriminating against him on the basis of his Greek
national origin. Anheuser-Busch argues that it is entitled to
prevail on this claim because § 1981 does not cover claims of
national origin discrimination.
Although I agree that § 1981 does not cover discrimination
based on national origin, it does reach certain claims based on
ancestry. See Saint Francis College v . Al-Khazraji, 481 U.S.
604, 613 (1987). Whether a claim of ancestry discrimination is
cognizable under § 1981 depends upon whether the group whose
ancestry the plaintiff shares was viewed as racially distinct and
entitled to protection when § 1981 was enacted. See Shaare
Tefila Congregation v . Cobb, 481 U.S. 615, 616-17 (1987)
(applying 42 U.S.C. § 1982). Courts in other jurisdictions have
applied this test to recognize § 1981 claims based on Italian
-2- ancestry (Bisciglia v . Kenosha Unified Sch. Dist. N o . 1 , 45 F.3d
223, 229-30 (7th Cir. 1995)), French ancestry (Franchitti v .
Bloomberg, 2004 WL 2366183, *3-4 (S.D.N.Y. 2004)), and Greek
ancestry (Drikos v . City of Palos Heights, 2003 WL 22872130, *2
(N.D. Ill. 2003)).
Although Gamas limited his complaint to a claim of national
origin discrimination, his objection to the motion for summary
judgment reveals that he intended to also claim that he was the
victim of discrimination on the basis of his Greek ancestry. As
discussed, this claim could be brought under § 1981. Rather than
waiting for Gamas to formally move to amend his complaint,
however, I deem the complaint to be amended to include a claim
for discrimination on the basis of Greek ancestry. Anheuser-
Busch’s motion for summary judgment with respect to this claim is
denied without prejudice.
B. Title VII and ADA Claims
Both Title VII and the ADA require claimants such as Gamas
to file a charge with the EEOC before filing a claim in court.
See Rivera v . Puerto Rico Aqueduct and Sewers Authority, 331 F.3d
183, 188 (1st Cir. 2003) (Title V I I ) ; Stepney v . Naperville Sch.
Dist. 203, 392 F.3d 236, 239 (7th Cir. 2004) (ADA). In this
-3- case, Gamas was required to file a charge “within three hundred
days after the alleged unlawful employment practice occurred. . .
.” 1 42 U.S.C. § 2000e-5. The parties disagree as to how this
limitation period should be determined. Anheuser-Busch argues
that the 300-day limitation period includes weekends and
holidays, even when the last day of the period falls on a weekend
or holiday. Gamas relies on Fed. R. Civ. P. 6(a) 2 in arguing
that the last day of the filing period should not be counted when
it is a Saturday, Sunday, or legal holiday. This difference is
significant because Gamas filed his charge on the Tuesday after
the Labor Day weekend, on what would be the three hundred and
second day if I were to adopt Anheuser-Busch’s time computation
rule.
Title VII does not have its own time computation rule and
the statute’s implementing regulations are also silent on the
subject. Although it could certainly be argued that in the
1 The parties agree that Gamas is entitled to the 300-day limitation period. I accept this agreement without attempting to determine on my own whether a different limitation period should apply. 2 Rule 6(a) provides in pertinent part that “the last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday . . . .”
-4- absence of such a rule, the most reasonable way to construe the
limitation period would be to count all days, even when the last
day of the filing period falls on a day when the EEOC is not open
for business, it makes more sense to construe the filing
requirement in light of the time computation rule set forth in
the Federal Rules of Civil Procedure.
Every circuit court that has addressed the issue in the
context of Title VII’s general statute of limitations has
endorsed this view and construed the limitation period in
accordance with Rule 6 ( a ) . Kane v . Douglas Elliman, Hollyday &
Ives, 635 F.2d 1 4 1 , 142 (2d Cir. 1980); Pearson v . Furnco Const.
Co., 563 F.2d 815, 818-19 (7th Cir. 1977); see also Milam v .
United States Postal Service, 674 F.2d 8 6 0 , 862 (11th Cir. 1982)
(construing special limitations period for claims against the
federal government). Although no circuit court has yet
considered whether the approach to time computation embodied in
Rule 6(a) should also be applied to Title VII’s administrative
filing requirement, the only district courts that have addressed
the issue had concluded that it should. See Davitt v . Open MRI
of Allentown, LLC, 2003 WL 2316429 *4 (E.D. P a . 2003) (Title
V I I ) ; Bethelmie v . New York City Health and Hosp. Corp., 2001 WL
-5- 863424 *2 (S.D.N.Y. 2001) (ADA); Bonebrake v . West Burlington
Ind. Sch. Dist., 2001 WL 901265 *4 (S.D. Iowa 2001)(ADEA); see
also Suarez v . Puerto Rico Elec. Power Auth., 798 F.Supp. 876,
887 (D.P.R. 1992) (relying on Rule 6(a) for determination that
administrative limitation period begins on day after unlawful
practices); Treadwell v . John Hancock Mut. Life Ins. Co., 666
F.Supp. 2 7 8 , 292 (D. Mass. 1987) (same). Because it is
reasonable to assume that the drafters of the 300-day limitation
period had Rule 6(a) in mind when they enacted the limitation
period, I adopt Gamas’s argument on this point and reject
Anheuser-Busch’s motion for summary judgment.
CONCLUSION
For the reasons set forth in this Memorandum and Order,
Anheuser-Busch’s Motion for Summary Judgment (Doc. N o . 18) is
denied. Anheuser-Busch may file a second motion for summary
judgment arguing that Gamas has failed to provide sufficient
evidence to support: (1) his § 1981 claim that he was subject to
unlawful discrimination on the basis of his Greek ancestry; (2)
-6- his Title VII claim that he was discharged as a result of his
national origin; (3) his ADA claim that he was discharged because
of his disability; and (4) his contention that his Title VII and
ADA hostile work environment claims are not barred by the 300-day
limitation period because they are part of continuing violations
that included his unlawful termination.
SO ORDERED.
Paul Barbadoro United States District Judge February 2 3 , 2005
cc: William Aivalikles, Esq. Andrea K. Johnstone, Esq. Laurel Siemers, Esq.
-7-