Gladys Banks v. Chesapeake and Potomac Telephone Company

802 F.2d 1416, 256 U.S. App. D.C. 22

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 20, 1986
• Docket: 84-5830
• Status: Published

Opinions

J. SKELLY WRIGHT, Senior Circuit Judge:

In this case we must decide whether the District of Columbia’s one-year or three-year statute of limitations applies to claims brought in the District of Columbia under 42 U.S.C. § 1981 (1982). Appellant Gladys Banks brought this suit against her former employer alleging race and sex discrimination three years and one day after the last alleged discriminatory act occurred. The district court dismissed the suit, holding that appellant’s suit was barred even under the more generous statute of limitations.

We conclude that the three-year statute of limitations applicable to personal injuries suits controls actions brought under § 1981 in the District of Columbia. Moreover, because the last day of the limitations period in this case fell on Sunday, the statute of limitations was extended an additional day and appellant’s suit was therefore filed within the three-year statute. Because appellant failed to proffer sufficient evidentiary support for the allegations of her complaint, however, we affirm the grant of summary judgment in favor of appellee.

I. Background

Appellant Gladys Banks was employed from 1970 to 1978 by appellee Chesapeake & Potomac Telephone Company of the District of Columbia (C&P of D.C.) as a directory assistance operator. She was transferred during the summer of 1978 to the Chesapeake & Potomac Telephone Company of Virginia (C&P of Virginia).¹ Almost two years after the transfer, on March 27, 1980, appellant became ill and began an absence that lasted over a year. During appellant’s illness C&P of Virginia paid her disability benefits as provided for under its disability plan. Under the terms of the plan employees unable to return to work after receiving benefits for a year would be terminated. When Ms. Banks failed to report to work on March 31, 1981, the company terminated her on the following day, April 1, 1981.

After efforts to gain reinstatement, appellant filed this suit against C&P on April 2, 1984. Her complaint alleged violations of Title VII, 42 U.S.C. § 2000e et seq. (1982), and of the federal civil rights statutes, 42 U.S.C. §§ 1981, 1983 (1982). She claimed that the company had discriminated against her on the basis of race and sex in her training, transfers, evaluations, suspensions, termination, protection of her personal records, and administration of her benefit plan, and that the company had discriminatorily harassed her. Appellant sought damages as well as declaratory and injunctive relief. See Appendix (App.), Vol. II at 1-4 (Complaint).

C&P of D.C. answered appellant’s complaint by denying the allegations, arguing that in any event it was not legally responsible for the acts of C&P of Virginia, and by raising several affirmative defenses, including the statute of limitations. See App., Vol. II at 5-9 (Answer). After the parties stipulated to the dismissal of appellant’s Title VII claims, appellee filed a motion for summary judgment together with supporting affidavits, claiming that appellant’s suit was barred by the statute of limitations.

The district court granted the motion and dismissed the action. See Brief and Appendix for Appellant at 46 (Memorandum Opinion and Order filed October 23, 1984). The court first noted that § 1981 provides no remedy for sex discrimination. Moreover, the court noted, § 1983 applies only to actions taken under color of law and consequently cannot provide a remedy against private employers such as C&P. Thus the only colorable claim remaining was appellant’s race discrimination claim under § 1981, which the court concluded was time-barred. The court reasoned that because appellant was terminated on April 1, 1981 and did not file this suit until April 2, 1984, the claim was time-barred even under the District of Columbia three-year statute of limitations for personal injury actions. Consequently, it dismissed appellant’s suit.

II. Statutes of Limitations

Appellant challenges the dismissal of her race-based § 1981 claim.² She argues that the district court erred in concluding the claim was time-barred under the three-year statute of limitations applicable to personal injury actions brought in the District of Columbia. Because the last day of the three-year period fell on a Sunday, she argues, the statute of limitations was extended an extra day. Consequently her complaint was timely filed and should not have been dismissed.

We agree. Federal Rule of Civil Procedure 6(a) directs a federal court, in calculating any time period prescribed by any applicable statute, to extend the period an additional day if the time period ends on a Saturday, a Sunday, or a legal holiday. See also National Black Media Coalition v. FCC, 760 F.2d 1297, 1299 n. 2 (D.C. Cir.1985). Similarly, under District of Columbia law the limitation period is tolled if the last day falls on a Sunday. See People’s Counsel v. Public Serv. Comm’n of D.C., 451 A.2d 90, 91 (D.C.C.A.1982). Thus we conclude that the district court erred in finding that this suit would be time-barred under the three-year statute of limitations.³ Because we conclude that appellant’s suit, insofar as it challenged her termination,⁴ was timely filed under the three-year statute, we must reach and resolve the issue left undecided by the district court (i.e., whether the three-year or the one-year statute of limitations applies).

A. The Process of Selecting a Limitations Period: Garcia

Federal civil rights statutes, such as § 1981⁵ and § 1983, contain no statute of limitations. Rather, federal courts are guided in their determination of the appropriate statute of limitations to apply to federal civil rights actions by a companion statute, 42 U.S.C. § 1988 (1982). Section 1988 directs federal courts to examine federal law and, to the extent that federal law provides no applicable rule of decision, to examine state law.⁶ The Supreme Court has described this as a three-step process:

First, courts are to look to the laws of the United States “so far as such laws are suitable to carry [the civil and criminal civil rights statutes] into effect.” * * If no suitable federal rule exists, courts undertake the second step by considering application of state “common law, as modified and changed by the constitution and statutes” of the forum state. * * * A third step asserts the predominance of the federal interest: courts are to apply state law only if it is not “inconsistent with the Constitution and laws of the United States.” * * *

Wilson v. Garcia, 471 U.S. 261,267,105 S.Ct 1938, 1942-43, 85 L.Ed.2d 254 (1985) (citations omitted). See also Burnett v. Grattan, 468 U.S. 42, 47-48, 104 S.Ct. 2924, 2928-2929, 82 L.Ed.2d 36 (1984). Thus courts are to look to state law for guidance if federal law provides no statute of limitations.⁷

Application of § 1988’s “borrowing” principle, originally referred to as a search for the “most appropriate” or “most analogous” state statute of limitations, see Board of Regents v. Tomanio, 446 U.S. 478, 488, 100 S.Ct. 1790, 1797, 64 L.Ed.2d 440 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975), however, led to confusion over which state statute of limitations is “most analogous.” The lower courts were confused as to whether the characterization of the claim was an issue of federal or state law and whether the characterization of the claim ought to turn on the particular facts of the case. See Garcia, 471 U.S. at 274 & n. 33,105 S.Ct. at 1946 & n. 33; Smith v. City of Pittsburgh, 764 F.2d 188, 192-94 (3d Cir.), cert. denied, — U.S.-, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985).

The courts in this jurisdiction have also struggled with the issue of which statute of limitations applies to § 1981 claims.⁸ This court held, in Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 994 (D.C. Cir.1973), that the District’s three-year personal injury statute applied. After that case was decided, however, the District of Columbia enacted the District of Columbia Human Rights Act of 1978, D.C. Code § 1-2501 et seq. (1981). That statute is governed by a one-year statute of limitations. See Davis v. Potomac Elec. Power Co., 449 A.2d 278, 281 (D.C.C.A.1982). The authority in this jurisdiction is now split on which of the two statutes controls.⁹

Our resolution of these issues is guided by the Supreme Court’s recent decision in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 1254 (1985). In that case a plaintiff brought a § 1983 claim against a police officer, alleging that he had been beaten by the defendant. 471 U.S. at 263, 105 S.Ct. at 1940. The district court refused to dismiss the suit on timeliness grounds, concluding that the claim was governed by the New Mexico statute of limitations that governed all claims not otherwise specifically provided for. On appeal, after exhaustively reviewing all of the ways in which § 1983 claims have been characterized by each of the federal circuits, the Tenth Circuit concluded that § 1983 claims were best characterized as personal injury claims. The Supreme Court affirmed.

The Court began its analysis by examining the borrowing principle of § 1988. The Court emphasized that the characterization of the federal claim is a matter of federal law. Id. at 270 & n. 22, 105 S.Ct. at 1944 & n. 22. Thus a particular state’s characterization of a federal claim for purposes of determining which statute of limitations is applicable is not binding on a federal court.¹⁰ Id.

The Court then analyzed the particular character of § 1983 claims. It noted that § 1983 provides a remedy for a broad range of injuries. Id. at 272-73,105 S.Ct. at 1945-46. A single claim under § 1983 could be characterized as any one of a number of state causes of action. Allowing courts to select an appropriate statute of limitations “on an analysis of the particular facts of each claim * * * inevitably breeds uncertainty and time-consuming litigation that is foreign to the central purposes of § 1983.” Id. at 272, 105 S.Ct. at 1945.

The simplicity of the admonition in § 1988 is consistent with the assumption that Congress intended the identification of the appropriate statute of limitations to be an uncomplicated task for judges, lawyers and litigants, rather than a source of uncertainty, and unproductive and ever increasing litigation. Moreover, the legislative purpose to create an effective remedy for the enforcement of federal civil rights is obstructed by uncertainty in the applicable statute of limitations, for scarce resources must be dissipated by useless litigation on collateral matters.

Id. at 275, 105 S.Ct. at 1946-47 (footnote omitted). Consequently, the Court concluded that § 1988 “is fairly construed as a directive to select, in each State, the one most appropriate statute of limitations.” Id. at 275,105 S.Ct. at 1947.

The Court then turned to the Tenth Circuit’s “exhaustive[ ] review[],” id., of the different ways that § 1983 claims have been characterized by each of the federal circuits. The Court examined the historical context of the Civil Rights Act of 1871, noting the campaign of violence in the South that motivated Congress to enact the statute. The Court also noted that the unifying theme of the Civil Rights Act was the Constitution’s command that all persons be accorded the full privileges of citizenship and that no person be deprived of life, liberty, or property without due process of law or be denied the equal protection without due process of law or be denied the equal protection of the laws. “A violation of that command is an injury to the individual rights of the person.” Id. at 277, 105 S.Ct. at 1948. Finally, the Court quoted the Fourth Circuit’s opinion in Almond v. Kent, 459 F.2d 200, 204 (4th Cir.1972), to explain why this analogy is persuasive:

In essence, § 1983 creates a cause of action where there has been injury, under color of state law, to the person or to the constitutional or federal statutory rights which emanate from or are guaranteed to the person. In the broad sense, every cause of action under § 1983 which is well-founded results from ‘personal injuries.’

471 U.S. at 278, 105 S.Ct. at 1948. Consequently, the Court concluded that § 1983 claims are most appropriately characterized as personal injury actions. Id. at 278, 105 S.Ct. at 1949.

B. Application of Garcia to § 1981 Claims

Although the Supreme Court has not considered whether the same statute of limitations should apply in § 1981 suits as in § 1983 suits, see Burnett v. Grattan, 468 U.S. 42, 48 n. 11, 104 S.Ct. 2924, 2929, n. 11, 82 L.Ed.2d 36 (1984), we find the reasoning of Garcia to be persuasive in this context as well. As an initial matter, it is clear that the same statutory directive applies to both types of claims. See 42 U.S.C. § 1988 (1982). Similarly, the Court’s emphasis in Garcia on avoiding collateral litigation over the applicable statute of limitations is equally compelling here. Both § 1983 and § 1981 provide remedies for a broad range of actions that could be characterized as various state torts. Allowing the characterization to turn on the particular facts of a case presents the same threat of excessive collateral litigation. Thus the Court’s conclusion that § 1988 “is fairly construed as a directive to select, in each State, the one most appropriate statute of limitations,” Garcia, 471 U.S. at 275, 105 S.Ct. at 1947, is equally applicable here.

More importantly, we see no difference between the central objectives of § 1981 and § 1983 — each a product of the Reconstruction Era¹¹ — for the purposes of applying Garcia to § 1981 claims. Both statutes were enacted “to ensure that individuals whose federal Constitutional or statutory rights are abridged [could] recover damages or secure injunctive relief.” Burnett, 468 U.S. at 55, 104 S.Ct. at 2932. Section 1981, like § 1983, broadly protects the right of all persons “to the full and equal benefit of all laws and proceedings for the security of persons and property.” 42 U.S.C. § 1981 (1982). A violation of that command is a “personal injury” in very much the same sense as is a violation of § 1983. As the Court explained in Garcia,

The unifying theme of the Civil Rights Act of 1871 is reflected in the language of the Fourteenth Amendment that unequivocally recognizes the equal status of every “person ” subject to the jurisdiction of any of the several States. The Constitution’s command is that all “persons ” shall be accorded the full privileges of citizenship; no person shall be deprived of life, liberty, or property without due process of law or to be denied the equal protection of the laws. A violation of that command is an injury to the individual rights of the person.

471 U.S. at 277, 105 S.Ct. at 1948 (last emphasis added; footnote omitted). See also Curtis v. Loether, 415 U.S. 189, 196 n. 10, 94 S.Ct. , 1009 n. 10, 39 L.Ed.2d 260 (1974) (suggesting that racial discrimination be treated as a “dignitary tort”); Developments — Section 1981, 15 Harv. C.R./C.L. L.Rev. 29, 224 (1980) (noting that some courts have characterized claims under § 1981 as “dignitary torts”). Indeed, it is significant to note that in reaching the conclusion that § 1983 claims are best characterized as “personal injury” claims, the Court cited two cases that held that § 1981 claims are also appropriately characterized as “personal injury” claims. See Garcia, 471 U.S. at 278 n. 38, 105 S.Ct. at 1948 n. 38 (iciting Runyon v. McCrary, 427 U.S. 160, 179-82, 96 S.Ct. 2586,2598-2600,49 L.Ed.2d 415 (1966)); McCausland v. Mason County Bd. of Educ., 649 F.2d 278, 279 (4th Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981)).

Moreover, characterization of § 1981 claims as personal injury actions is far from unique. Indeed, before Garcia, courts frequently characterized claims brought under both statutes as personal injury claims. See Runyon, 427 U.S. at 182, 96 S.Ct. at 2600 (affirming reliance on personal injury statute of limitations in § 1981 claim and noting that “petitioners have not cited any Virginia court decision to the effect that the term ‘personal injuries’ in § 8-24 means only ‘physical injuries’ ”); Garcia v. University of Kansas, 702 F.2d 849, 851 (10th Cir.1983) (applying statute for injury to the rights of another to both § 1981 and § 1983 claims); Jones v. Orleans Parish School Bd., 679 F.2d 32, 36 (5th Cir.) (applying tort statute to §§ 1981 and 1983 claims for racial discrimination), modified on other grounds, 688 F.2d 342 (5th Cir.1982), cert. denied, 461 U.S. 951, 103 S.Ct. 2420, 77 L.Ed.2d 1310 (1983); McCausland (personal injury statute applied to § 1981 and § 1983 claims); Movement for Opportunity & Equality v. General Motors Corp., 622 F.2d 1235, 1242-43 (7th Cir.1980) (Indiana personal injury statute applied to § 1981 claim; court noted that “the choice of a statute of limitations under section 1981 (for discriminatory actions by private individuals) is essentially the choice to be made under 42 U.S.C. § 1983 (1976) (for discriminatory actions under color of state law).”); Ingram v. Steven Robert Corp., 547 F.2d 1260, 1263 (5th Cir.1977) (applying “injury to the rights of another” statute of limitations to a § 1981 claim). Indeed, this very court has applied the District’s personal injury statute to § 1981 claims. See Macklin v. Spector Freight Systems, Inc., 478 F.2d at 994. Thus we conclude that characterization of § 1981 claims as personal injury actions is both appropriate and accurate.

Our conclusion is consistent with the result reached by other courts that have considered the issue. In Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir.1985), which similarly involved allegations of employment discrimination, the Third Circuit concluded that the Garcia analysis “applies] equally to actions under § 1981.” Id. at 119. Thus the court held that “the personal injury statute of limitations of the forum state supplies the most analogous statute of limitations for actions brought under § 1981.” Id. at 120.¹² See also Al-Khazraji v. Saint Francis College, 784 F.2d 505, 511 (3d Cir.1986) (Garcia “made the Goodman decision inevitable”) (emphasis added). Similarly, the Eleventh Circuit has indicated in dicta that the personal injury statute of limitations should apply to § 1981 claims. See Friedlander v. Trout-man, Sanders, Lockerman & Ashmore, 788 F.2d 1500, 1503 n. 2 (11th Cir.1986). See also Anderson v. University Health Center, 623 F.Supp. 795, 796 (W.D.Pa.1985) (“[Tjhere is no reason why the same rule [applicable to § 1983 claims] should not apply to Section 1981 actions.”); Saldivar v. Cadena, 622 F.Supp. 949, 958 (W.D.Wis. 1985) (applying statute applicable to actions for injuries to the character or “rights of another” to § 1981 claims). Indeed, the concurrence has cited not a single decision by a court outside this circuit that, in the wake of Garcia, has applied a statute other than that applicable to personal injury claims to a § 1981 action.¹³

C. The Human Rights Act Statute of . Limitations

Appellee argues that this court should apply the one-year limitations period of the D.C. Human Rights Act to § 1981 claims, as several district courts have done. See note 8 supra. The concurring opinion argues that this statute of limitations is applicable not only to § 1981 claims, but possibly to § 1983 claims as well, even in light of Garcia. In our view, however, this statute is an inappropriate choice, and the concurrence’s reading of Garcia ignores the plain holding of the Court’s opinion.

In selecting the appropriate statute of limitations, this court must recognize the primacy of federal interests embodied in the civil rights statutes. When a state emphasizes different interests in a statute of limitations — such as the need for repose, judicial economy, or other state policy goals — by shortening the limitation period, a federal court cannot borrow that statute.¹⁴ Burnett, 468 U.S. at 55, 104 S.Ct. at 2933. We cannot “borrow” D.C.’s Human Rights Act statute of limitations because we conclude that the Civil Rights Act’s emphasis on providing relief to victims of discrimination is inconsistent with the District of Columbia’s remedial scheme’s emphasis on the need to minimize the diversion of state officials’ attention by shortening limitation periods. Compare Burnett, 468 U.S. at 55, 104 S.Ct. at 2933 (policy of minimizing diversion of state officials’ attention is “manifestly inconsistent with the central objective of the Reconstruction-Era civil rights statutes”), with Davis v. Potomac Elec. Power Co., 449 A.2d 278, 281 (D.C.C.A.1982) (stressing importance of such issues to the interpretation of the D.C. Human Rights Act). Because the District’s Human Rights Act emphasizes interests that are “inconsistent with, or of marginal relevance to, the policies informing the Civil Rights Act,” Burnett, 468 U.S. at 53, 104 S.Ct. at 2931, it would be inappropriate to borrow that Act’s one-year statute of limitations to govern federal civil rights actions.¹⁵ By contrast, as the Supreme Court noted in Garcia, it is unlikely that a state’s personal injury statute would similarly “discriminate against federal claims, or be inconsistent with federal law in any respect.” 471 U.S. at 279, 105 S.Ct. at 1949.¹⁶

Moreover, although the Human Rights Act prohibits discrimination in certain decisions, e.g., D.C. Code § 1-2512 (employment), § 1-2515 (real estate transactions), § 1-2519 (public accommodations), § 1-2520 (educational decisions), it does not apply to many forms of discrimination remediable under § 1981. See, e.g., Georgia v. Rachel, 384 U.S. 780, 798, 86 S.Ct. 1783, 1793.16 L.Ed.2d 925 (1965) (§ 1981 guarantees a defendant the right to a jury selected without racial discrimination) (dicta) (citing Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 312, 25 L.Ed. 664 (1879)); Jennings v. American Postal Workers Union, 672 F.2d 712, 716 (8th Cir.1982) (§ 1981 provides remedy against union for racial discrimination in union’s processing of plaintiff’s grievance); Bell v. Southwell, 376 F.2d 659, 664 (5th Cir.1967) (Civil Rights Acts, including § 1981, provide remedy for racial discrimination in Georgia election procedures). Consequently, we conclude that the District’s three-year personal injury statute of limitations, rather than the Human Rights Act limitations period, should apply to § 1981 claims.

Our conclusion is also supported by our reading of Garcia. A perusal of the Court’s opinion leaves no doubt that the Court intended in all cases to require application of a state’s “personal injury” statute of limitations to claims brought under § 1983. The Court’s opinion is replete with restatements of its holding. See, e.g., 471 U.S. at 272, 105 S.Ct. at 1945 (“practical considerations help to explain why a simple, broad characterization of all § 1983 claims best fits the statute’s remedial purpose”); id. at 278, 105 S.Ct. at 1948 (“Had the 42d Congress expressly focused on the issue decided today, we believe it would have characterized § 1983 as conferring a general remedy for injuries to personal rights.”); id. at 279,105 S.Ct. at 1949 (“The characterization of all § 1983 actions as involving claims for personal injuries minimizes the risk that the choice of a state statute of limitations would not fairly serve the federal interests vindicated by § 1983.”); id. at 280,105 S.Ct. at 1949 (“§ 1983 claims are best characterized as personal injury actions”).¹⁷

Not surprisingly, courts considering § 1983 claims in the wake of Garcia have uniformly eschewed analysis of whether the particular claim involved or claims brought under the statute generally might best be characterized as one or another state cause of action. Rather, courts have consistently recognized that Garcia mandates, as a matter of federal law, that state personal injury statutes of limitations apply to § 1983 claims.¹⁸ The concurrence nevertheless reads Garcia to leave open the possibility that “the analogy between section 1983 and [a] local civil rights law [might be] sufficiently strong to permit adoption of the state civil rights statute of limitations in the section 1983 context.” Concurring op. at 1441 n. 7. This analysis suggests that courts may remain free to consider any potentially analogous state causes of action for which New Mexico, the state at issue in Garcia, had no special limitations period.¹⁹ Because New Mexico did not have a state Human Rights Act statute of limitations similar to that of the D.C. Human Rights Act, the reasoning goes, we can still apply the D.C. Human Rights Act to this case as the “most analogous” statute of limitations.

It appears clear, however, that the Court’s discussion was intended to encompass all of the possible characterizations of § 1983 claims under any state law. Indeed, the Court began its discussion of this issue by noting:

After exhaustively reviewing the different ways that § 1983 claims have been characterized in every Federal Circuit, the Court of Appeals concluded that the tort action for the recovery of damages for personal injuries is the best alternative available. * * * We agree that this choice is supported by the nature of the § 1983 remedy, and by the federal interest in ensuring that the borrowed period of limitations not discriminate against the federal civil rights remedy.

See 471 U.S. at 276,105 S.Ct. at 1947 (emphasis added; citation omitted). Moreover, our conclusion that the Garcia Court intended its holding to apply to all § 1983 claims brought in every state is bolstered by the fact that the Court discussed and rejected the application of “catchall periods of limitations for statutory claims that were later enacted by many States.” Id. at 278,105 S.Ct. at 1948. New Mexico, however, has no statute of limitations applicable to claims for liability created by statute. See generally N.M.Stat.Ann. Ch. 37, Art. I (1978) (“Limitations of Actions”); Garcia v. Wilson, 731 F.2d 640, 651 (10th Cir.1984) (“Because there is no New Mexico statute governing actions on a liability created by statute, the court applied the four-year residual limitations period found in N.M.Stat.Ann. § 37-1-4 (19*78).”), aff'd, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Thus, by discussing the possibility that a § 1983 claim might be characterized as an action for liability created by statute, the Court indicated that it, like the Tenth Circuit, was considering all of the potential characterizations for § 1983 claims in any state.

Moreover, as an examination of our sister circuits’ application of Garcia reveals, no other court has adopted the concurring opinion’s narrow reading of Garcia. Prior to Garcia, the Second and Ninth Circuits were of the view that § 1983 claims were “most analogous” to claims for liability created by statute. Accordingly, in both of these circuits the court adopted that statute of limitations applicable to such claims. See Pauk v. Board of Trustees, 654 F.2d 856, 866 (2d Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982); Clark v. Murick, 623 F.2d 89, 92 (9th Cir.1980). As noted above, however, New Mexico has no statute of limitations applicable to claims for liability created by statute. Under the concurrence’s narrow reading of Garcia, therefore, these circuits not only could have, but should have, followed their prior conclusion that § 1983 claims are most analogous to claims for liability created by statute. Neither of the circuits has done so, however. On the contrary, both have read Garcia to control the characterization of § 1983 claims and have rejected their prior holdings. See Villante v. Department of Corrections of City of New York, 786 F.2d 516, 520 n. 2 (2d Cir. 1986) (dicta); Marks v. Parra, 785 F.2d 1419, 1419-20 (9th Cir.1986). Indeed, in light of the Court’s explicit rejection of such limitations periods, it would be difficult to argue otherwise. Accordingly, because we find no “exception” to Garcia’s holding and because we find that holding equally applicable to § 1981 claims, we conclude that § 1981 claims brought in the District of Columbia should be governed by the District’s personal injury statute of limitations.

D. The “Intentional” Torts Limitations Period

Although neither party raised the point, the concurring opinion notes that the D.C. Code contains two statutes of limitations applicable to personal injury claims. The first provides a one-year limitations period for several enumerated torts. See D.C. Code § 12-301(4) (applicable to actions for “libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment”). The second, D.C.Code § 12-301(8), provides a three-year limitations period for all claims not otherwise provided for. With the exception of the enumerated intentional torts, all other claims for personal injuries, intentional and nonintentional, are governed by § 301(8). See Lawrence v. Acree, 665 F.2d 1319, 1323 n. 5 (D.C.Cir.1981); Habib v. Raytheon Co., 616 F.2d 1204, 1208 (D.C. Cir.1980) (dicta); Alley v. Dodge Hotel, 501 F.2d 880, 882 n. 3 (D.C.Cir.1974). The parties apparently assumed that were we to conclude that the D.C. “personal injury” statute of limitations applies to § 1981 claims, we would follow Macklin and borrow § 301(8) to provide the appropriate “personal injury” limitation period. The concurring opinion, however, argues that § 301(4) is the correct statute of limitations.

Unlike in the case of jurisdictional questions, the court need not raise statute of limitations issues sua sponte. Reliance on a statute of limitations is an affirmative defense and is waived if a party does not raise it in a timely fashion. Fed.R.Civ.P. 8(c); Lopez v. Rodriguez, 668 F.2d 1376, 1378-79 n. 4 (D.C.Cir.1981); Gabauer v. Woodcock, 594 F.2d 662, 665 (8th Cir.1979). C&P has not cited § 301(4) in any of its pleadings or briefs and has thereby waived this particular defense. We consider the issue in dicta only, and only in order to answer Judge Buckley’s discussion of the question in his concurrence.

There appears to be a growing split in the circuits as to whether general tort statutes of limitations or intentional tort limitations should apply to § 1983. While several courts have concluded that the specific intentional tort statute of limitations controls § 1983 claims, see Mulligan v. Hazard, 777 F.2d 340, 344 (6th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 2902, 90 L.Ed.2d 988 (1986); Gates v. Spinks, 771 F.2d 916, 920 (5th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1378, 89 L.Ed.2d 603 (1986); Jones v. Preuit & Mauldin, 763 F.2d 1250, 1255 (5th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 893, 88 L.Ed.2d 926 (1986), several other courts have reached the opposite conclusion. See Mismash v. Murray City, 730 F.2d 1366, 1370 (10th Cir.1984) (en banc), cert. denied, 471 U.S. 1052, 105 S.Ct. 2111, 85 L.Ed.2d 476 (1985); Hamilton v. City of Overland Park, 730 F.2d 613, 614 (10th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 2111, 85 L.Ed.2d 476 (1985); Greenfield v. District of Columbia, 623 F.Supp. 47, 48 (D.D.C. 1985). Cf. Saldivar v. Cadena, 622 F.Supp. 949, 955 (W.D.Wis.1985).²⁰

The application of Garcia to a § 1983 claim in a jurisdiction that has two “personal injury” statutes of limitations is not directly before the court. We note, however, that the Court in Garcia did not rest its conclusion that § 1983 claims were best characterized as personal injury claims on the ground that the statute was intended merely to provide a remedy for physical violence. Rather, the Court also emphasized that violations of the Fourteenth Amendment’s antidiscrimination command are injuries “to the individual rights of the person.” 471 U.S. at 277,105 S.Ct. at 1948 (emphasis added). See also Curtis v. Loether, 415 U.S. 189, 196 n. 10, 94 S.Ct. 1005, 1009 n. 10, 39 L.Ed.2d 260 (1974) (suggesting that actions to redress racial discrimination should be treated as “dignity torts”) (citing C. Gregory & H. Kalven,Cases and Materials on Torts 961 (2d ed. 1969)). Thus we might well conclude, if directly confronted with the question, that § 301(8) should control claims brought under § 1983.

On this point it is instructive to compare the analysis adopted by the courts in the Second Circuit in applying New York law. Like the District of Columbia, New York has a statute of limitations governing several specific intentional torts, see N.Y.Civ. Prac.Law § 215(3) (McKinney Supp.1986) (one year), and another governing all other personal injury tort actions, id. at § 214(5) (three years). Nonetheless, each court in New York that has considered the issue has concluded that the general tort statute of limitations should be applied to § 1983 actions. See, e.g., Villante v. Department of Corrections of City of New York, 786 F.2d at 520 n. 2 (dicta); Okure v. Owens, 625 F.Supp. 1568, 1570 (N.D.N.Y.1986); Williams v. Allen, 616 F.Supp. 653, 655 (E.D.N.Y.1985); Ladson v. New York City Police Dep’t, 614 F.Supp. 878, 879 (S.D. N.Y.1985); Rodrigues v. Village of Larchmont, 608 F.Supp. 467, 476-77 (S.D.N.Y. 1985). Cf. Martin v. City of New York, 627 F.Supp. 892, 900 (E.D.N.Y.1985) (applying the three-year statute to a § 1985 claim).

The case before the court, however, involves § 1981, not § 1983. Even if we were to agree with those courts that have concluded that the intentional tort statute should be applied to § 1983 claims, it is far from clear that the same analysis should apply in a § 1981 suit. Like § 1983, § 1981 is best characterized as a remedy for personal injury torts, see text supra at 1421-22, but unlike § 1983, it was not designed to provide a remedy for intentional torts such as assaults or batteries. Rather, § 1981 primarily ensures equal rights to make and enforce contracts, equal access to judicial process, and equal rights under law. See 42 U.S.C. § 1981. Even though claims for violation of these rights are personal injury claims, they cannot accurately be characterized as intentional tort claims of the sort enumerated in § 301(4). Thus it would be inappropriate to apply the one-year intentional tort statute to § 1981 claims.²¹

This court has already found, in Macklin v. Spector Freight Systems, Inc., 478 F.2d 979 (D.C. Cir.1973), that the three-year limitation period set out in § 301(8) is the most appropriate period for § 1981 claims. Although the Supreme Court’s Garcia decision does require that we re-examine the Macklin finding, we see nothing in Garcia that conflicts with Macklin. Unlike cases in other circuits whose case-by-case approach to statutes of limitations for § 1983 actions has been changed in response to Garcia, see Jones v. Preuit & Mauldin, 763 F.2d 1250 (11th Cir.1985); Gates v. Spinks, 771 F.2d 916 (5th Cir.1985), our Macklin decision arrived at a single statute of limitations to be applied to § 1981 cases in general. 478 F.2d at 994. This is precisely the approach mandated by the Supreme Court to avoid unnecessary and costly litigation of collateral matters in civil rights cases. Garcia, 471 U.S. at 275, 105 S.Ct. at 1946-47. We see no principle enunciated in Garcia that alters our finding in Macklin or that requires or suggests adoption of the intentional tort statute of limitations set out in D.C. Code § 12-301(4).

The Macklin opinion did not explicitly consider whether § 301(4)'s one-year limitations period might apply to § 1981 cases. In fact, this court has never ruled directly on the applicability of § 301(4) to either § 1981 or § 1983. This circuit has evaluated the one-year limitations period, however, as applied to Bivens (Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)) and § 1985(3) actions. In Bivens actions this court has found § 301(4) to be the most appropriate limitations period for constitutional torts specifically listed in the statute. Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1115 (D.C. Cir.1985) (defamation action); McClam v. Barry, 697 F.2d 366, 372-74 (D.C. Cir.1983) (false arrest).²² The McClam opinion, however, was careful to distinguish Macklin. The § 1983 claim in Macklin, wrote Judge Bork, “was for racial discrimination, clearly not analogous to the torts listed in section 12-301(4),” 697 F.2d at 372, unlike the false arrest claim in McClam. This language clearly implies that the three-year period would be appropriate for § 1981 racial discrimination claims.

This court recently clarified its position on these issues by specifically holding that the three-year limitations period in § 301(8) applies both to most Bivens actions and to § 1985(3) actions. Hobson v. Wilson, 737 F.2d 1, 32 (D.C. Cir.1984). The Hobson panel rejected an analogy between the plaintiffs’ cause of action for deprivation of First Amendment free speech rights, and the torts set out in § 301(4). The panel read McClam to adopt the one-year limitations period only for Bivens actions analogous to the common law actions mentioned in § 301(4). 737 F.2d at 32 n. 99. On remand the defendants once again claimed that the one-year period was the applicable provision. Their argument relied on the Supreme Court’s intervening Garcia opinion and cases in other circuits that subsequently adopted intentional tort limitations periods for these actions. The district court rejected this approach. Hobson v. Brennan, 625 F.Supp. 459 (D.D.C. 1985). Judge Oberdorfer found that the three-year statute establishes the “general” personal injury statute of limitations period for the purposes of Garcia, and that the three-year provision better reflects the federal interests embodied in Bivens and § 1985(3) actions. He rejected the defendants’ reliance on post-Gama cases in other circuits that adopted intentional tort limitations periods, finding that those opinions misread Garcia. 625 F.Supp. at 467-68. As Judge Oberdorfer noted, the Garcia Court “easily could have specified that the ‘one most appropriate statute of limitations’ is that statute which is applicable to intentional torts. The Court conspicuously failed to do so. Instead it concluded that § 1983 claims are best characterized as ‘personal injury actions’ * * Id. at 468.

Our decisions in Macklin, McClam, Wilson and Brennan strongly suggest that § 301(8)’s three-year limitations period applies to § 1981 actions in this circuit. These decisions, coupled with the language of § 1981 itself, clearly foreclose application of a one-year intentional tort limitations period to this case.

Applying the three-year statute of limitations for personal injuries to the facts of this case quickly leads to the conclusion that the district court erred in dismissing this suit as time-barred. Appellant alleges that she was discriminatorily terminated on April 1, 1984. Her suit was filed exactly three years and one day later, on April 2, 1984. Because April 1, 1984 was a Sunday, however, the limitations period was extended an extra day. See text supra at 1418 (limitations period extended under federal and state practice when last day falls on a Sunday). Consequently, appellant’s suit, insofar as it alleged a discriminatory termination, was timely filed and the district court erred in concluding otherwise.

III. Summary Judgment

Despite our conclusion that this suit was timely filed, we nonetheless affirm the dismissal of the suit on the merits. We find that appellant failed properly to support her opposition to appellee’s motion for summary judgment. Because appellant failed to proffer evidentiary support for her allegations of racial discrimination, the district court properly dismissed the suit.

On a motion for summary judgment the evidence in the record must be viewed in the light most favorable to appellant, the nonmoving party below. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Appellee C & P of D.C. supported its motion for summary judgment with several affidavits from various supervisors employed by C&P of Virginia. See App., Vol. II at 38-50. It argued that appellant’s claims were barred by the statute of limitations and that C&P of D.C. was a separate corporate entity that could not be held responsible for the acts of C&P of Virginia. Moreover, appellee argued that although the two corporations have a few high level executive officers in common, none of those officers played any role in supervising, training, or disciplining appellant. See id. at 41 (affidavit of Gloria C. Smith). Finally appellee argued that Ms. Banks had received all of the benefits to which she was entitled under the company’s disability plan and therefore had not been subject to any discriminatory treatment. From this evidence, it appears clear that appellee carried its burden of showing the absence of a genuine issue of material fact as to whether appellant was discriminatorily terminated. See Celotex Corp. v. Catrett, — U.S.-,-, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(e). Thus the burden of production shifted to appellant, as the nonmoving party, to “designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex, 106 S.Ct. at 2553.

Appellant’s opposition to the motion for summary judgment failed to support her allegations with evidence sufficient to create a contested issue of fact. Appellant opposed the motion by arguing first that the two companies were the same corporate entity and second that C&P of D.C. was liable under the “borrowed servant” doctrine. Appellant further supported her opposition to the motion for summary judgment with two letters from her employer and her own deposition. See Brief and Appendix for Appellant at 44-45; App., Vol. II at 51-57. We need not consider whether appellant’s evidence was sufficient to create a contested issue of fact as to whether appellee could be held liable for the acts of C&P of Virginia. Even if such responsibility could be established, appellant simply failed to introduce specific evidence supporting her allegations of racial discrimination.

Appellant does not challenge the company’s disability plan as discriminatory on its face. She must therefore demonstrate that the plan was discriminatory as applied. Neither of the letters offered into evidence, however, support her claim that the company discriminated against her on the basis of race.²³ The only possible evidentiary basis for appellant’s allegations is her own deposition. Yet appellant explicitly conceded that she had received all of the benefits to which she was entitled under the disability plan. See Deposition of Gladys Banks at 22, 111. More important, she conceded that she knew of no other employees who had been kept on the company’s payroll after the expiration of the one-year benefit plan. See id. at 111, 129, 132-34.²⁴ Thus, because appellant failed to support the allegations of her complaint with any evidence of disparate treatment, summary judgment on the merits clearly would have been proper.

Rule 56(e) specifically provides that

[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or * * * otherwise * * *, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

In this case appellant has done little more than rest on the allegations of her pleadings. We conclude that appellant failed to carry her burden of opposing appellee’s motion for summary judgment.²⁵ Because we may affirm the entry of judgment by the district court on any ground that finds support in the record, we hold that entry of summary judgment on the merits was appropriate.

IV. Conclusion

The Supreme Court’s recent pronouncement in Garcia persuades us that the proper statute of limitations governing § 1981 claims brought in the District of Columbia is the three-year statute governing personal injury actions. Appellant’s suit was timely filed under that statute and consequently should not have been dismissed on that ground. However, because appellant failed to carry her burden of producing specific evidentiary support for her allegations of racial discrimination, we affirm the judgment in favor of the defendant on the merits.

Affirmed.

1 . These two companies are separate corporations. At the time they were wholly-owned subsidiaries of the American Telephone & Telegraph Company. They are now wholly-owned subsidiaries of the Bell Atlantic Corporation.

2 . Appellant has expressly declined to challenge the dismissal of her sex discrimination claim under § 1981 or the dismissal of her § 1983 claims. See Brief and Appendix for Appellant at 6 n. 14. Moreover, as noted above, the parties stipulated to the dismissal of the Title VII claims.

3 . We note that the Supreme Court has instructed the federal courts to borrow state law tolling rules in the absence of a federal rule to calculate the appropriate limitation period under the federal civil rights statutes, so long as those rules are not inconsistent with federal policies. See Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 1943, 85 L.Ed.2d 254 (1985); Chardon v. Fumero Soto, 462 U.S. 650, 655-56, 103 S.Ct. 2611, 2615-16, 77 L.Ed.2d 74 (1982). Whether an inconsistent state tolling rule would overcome the command of Federal Rule 6(a) is an issue we need not address, given that in this case the federal and state rules are identical.

4 . Appellant's claims based on her pre-1978 employment with C&P of D.C. are clearly time-barred under any of the possible statutes of limitations, as are her pre-termination claims arising from her employment with C&P of Virginia. Thus we consider her racial discrimination claim only insofar as it relates to her termination.

5 . 42 U.S.C. § 1981 provides:

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.

6 . 42 U.S.C. § 1988 provides, in part:

The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this Title, and of Title "CIVIL RIGHTS," and of Title "CRIMES," for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they Eire not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause * * *.

Section 1988 is, of course, equally applicable to both § 1981 claims, see, e.g., Runyon v. McCrary, 427 U.S. 160, 180-82, 96 S.Ct. 2586, 2599-2600, 49 L.Ed.2d 415 (1976), and § 1983 claims. See, e.g., Wilson v. Garcia, 471 U.S. at 267, 105 S.Ct. at 1942-43.

7 . Appellee’s suggestion that we apply a "significant interest” analysis to determine whether the Virginia or the District of Columbia statute of limitations applies must be rejected. Congress has expressly directed the federal courts to refer to the forum state’s law. See 42 U.S.C. § 1988. Moreover, the District of Columbia’s choice of law rule dictates that the District of Columbia statute of limitations applies to suits brought in this jurisdiction. See Hodge v. Southern Ry. Co., 415 A.2d 543, 544 (D.C.C.A.1980); May Department Stores v. Devercelli, 314 A.2d 767, 773 (D.C.C.A.1973).

8 . Application of the problematic "most analogous” analysis to § 1981 claims was no less confused in other jurisdictions. See generally Developments — Section 1981, 15 Harv.C.R./C.L. L.Rev. 29, 222-35 (1980) (discussing the various state statutes of limitations applied to § 1981 claims). While some courts examined § 1981 claims on a case-by-case basis, see, e.g., Jones v. Orleans Parish School Board, 679 F.2d 32, 35-36 (5th Cir.), modified on other grounds, 688 F.2d 342 (5th Cir.1982), cert. denied, 461 U.S. 951, 103 S.Ct. 2420, 77 L.Ed.2d 1310 (1983), others applied the statute of limitations applicable to claims for liability created by statute, see, e.g., Bratton v. Bethlehem Steel Corp., 649 F.2d 658, 663-64 (9th Cir.1980). Still others applied contract limitation periods, see, e.g., Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011, 1017 n. 16 (5th Cir.1971), or for personal injury claims. See, e.g., Garcia v. University of Kansas, 702 F.2d 849, 851 (10th Cir.1983). Finally, some courts applied the statute of limitations for all claims not otherwise provided for. See, e.g., Teague v. Caterpillar Tractor Co., 566 F.2d 7, 8 (7th Cir.1977) (per curiam ).

9 . Compare Covert v. Washington Hilton Hotel, 33 F.E.P. 660, 661 (D.D.C.1983) (3-year statute controls); Jones v. Management Partnership, Inc., 32 F.E.P. 639, 641 (D.D.C.1983) (same); Hughes v. C & P Telephone Co., 33 F.E.P. 1648, 1649 (D.D.C.1983) (same), with Pender v. National R.R. Corp., 625 F.Supp. 252, 39 F.E.P. 1282, 1284 (D.D.C.1985) (1-year statute controls); Blake v. American College of Obstetricians & Gynecologists, 608 F.Supp. 1239,37 F.E.P. 1349, 1352 (D.D.C.1985) (same); Monroe v. United Air Lines, 34 F.E.P. 1588 (N.D.Ill.1983) (same); Lane v. American Airlines, 34 F.E.P. 1579, 1580 (D.D.C.1983) (same).

Although this court noted Macklin with approval in Gordon v. National Youth Work Alliance, 675 F.2d 356, 358 n. 1 (D.C.Cir.1982), the issue was not expressly considered in that case. See also Fitzgerald v. Seamans, 553 F.2d 220, 223 (D.C.Cir.1977) (citing Macklin with approval). Thus the division in the lower courts reflects the uncertainty over whether Macklin remains good law.

10 . This discussion re-emphasized the Court’s recent explanation in Burnett v. Grattan, 468 U.S. 42, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984), that a statute of limitations represents a balancing of various factors, the most important being a defendant’s need for repose and the government’s interest in ensuring that statutory rights are vindicated. When borrowing a state limitations period, the Court admonished, a federal court cannot adopt the state’s balancing of interests if the factors considered by the state "are inconsistent with, or of marginal relevance to, the policies informing the Civil Rights Acts.” Id. at 53, 104 S.Ct. at 2931. Rather, the federal court must conduct an independent balancing focusing on the federal interests at stake in civil rights laws.

11 . See Garcia, 471 U.S. at 276-77, 105 S.Ct. at 1947-48 (discussing purposes of § 1983); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422-37,88 S.Ct. 2186, 2194-2202, 20 L.Ed.2d 1189 (1967) (reviewing history and purposes of the Civil Rights Act of 1866, which included § 1981); Monroe v. Pape, 365 U.S. 167,187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961) (discussing history and purpose of § 1983). See generally K. Stampp, The Era of Reconstruction, 1865-77 (1965); Gressman, The Unhappy History of the Civil Rights legislation, 50 Mich.L.Rev. 1323 (1952).

12 . In reaching this conclusion the Third Circuit noted that "[a] substantial overlap exists in the types of claims brought under sections 1981 and 1983.” Goodman, 777 F.2d at 120. Because of this overlap, applying different statutes of limitations to claims brought under the two statutes "would lead to a bizarre result." Id.

13 . Although the United States District Court for the District of the Virgin Islands adopted an analysis similar to the concurrence’s analysis in Harrigan v. Sebastian’s on the Waterfront, Inc., 629 F.Supp. 102 (D.V.I.1985), that court concluded that "42 U.S.C. § 1981 was designed to protect economic rights. * * * It follows, therefore, that Section 1981 is best governed by the statute of limitations applicable to contract actions.” Id. at 105. This approach, as noted above, was rejected by the Third Circuit, governing that district court, in Goodman.

14 . We do not suggest that "repose is inconsistent with the policy of the federal civil rights laws,” concurring op. at 1442. As noted above, a statute of limitations represents a balancing of a defendant’s need for repose and the government’s interest in vindicating statutory and constitutional rights. See note 10 supra. That balancing of interests might tip in either direction. As the Court in Garcia noted, a federal cause of action at" 'any distance of time’ would be ‘utterly repugnant to the genius of our laws.’ ” 471 U.S. at 271, 105 S.Ct. at 1944 (citation omitted). At the same time, however, the government’s interest in vindicating statutory or constitutional rights cannot be ignored. The Garcia Court stated,

[Tjhe application of any statute of limitations would promote repose. By adopting the statute governing an analogous cause of action under state law, federal law incorporates the State’s judgment on the proper balance between the policies of repose and the substantive policies of enforcement embodied in the state cause of action.

Id. at 271, 105 S.Ct. at 1945 (emphasis in original). However, the Court specifically cautioned federal courts borrowing state statutes of limitations for the federal civil rights acts that

the length of a limitations period will be influenced by the legislature’s determination of the importance of the underlying state claims, the need for repose for potential defendants, considerations of judicial or administrative economy, and the relationship to other state policy goals. To the extent that particular state concerns are inconsistent with, or of marginal relevance to, the policies informing the Civil Rights Acts, the resulting state statute of limitations may be inappropriate for civil rights claims.

Burnett, 468 U.S. at 53, 104 S.Ct. at 2931 (emphasis added).

15 . Many states have Human Rights Acts similar to the D.C. Human Rights Act. See, e.g., Ariz. Rev.Stat.Ann. § 41-1401 et seq. (1956 & Supp. 1986) (Arizona Civil Rights Act); Ill.Rev.Stat. Ch. 68, § 1-101 et seq. (1972 & Supp.1986) Illinois Human Rights Act); Iowa Code Ann. § 601A.1 et seq. (1975 & Supp.1986) (Iowa Civil Rights Act of 1965); N.Y. Executive Law § 290 et seq. (1951 & Supp.1986) (New York Human Rights Act); Ohio Rev.Code Ann. § 4112.01 et seq. (1953 & Supp.1986) (Ohio Civil Rights Act). In Burnett, the Court considered the question whether the limitations period provided by such statutes should be borrowed for federal civil rights actions. The Court concluded that they should not, reasoning that such schemes applied to administrative complaints and often imposed short limitations periods emphasizing interests that are inconsistent with the federal civil rights acts.

The concurring opinion distinguishes Burnett by noting that the D.C. Human Rights Act’s one-year statute of limitations applies equally to judicial actions under that statute and provides a relatively generous one-year period. We are unconvinced that this distinction makes the D.C. Human Rights Act applicable to federal civil rights claims. Although the concurrence notes that some courts have upheld one-year statutes as applied to civil rights claims, see concurring op. at 1442, other courts have rejected such periods as unduly short. See Pauk v. Board of Trustees, 654 F.2d 856, 862 (2d Cir.1981) (rejecting applicability of one-year-ninety-day statute of limitations to § 1983 claims), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982), cited with approval in Burnett, 468 U.S. at 55 n.18, 104 S.Ct. at 2932 n. 18; Saunders v. State of New York, 629 F.Supp. 1067, 1070 (N.D. N.Y.1986). Moreover, even in New York, which applies the limitations period for causes of action arising under statute to its own human rights law, see Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 307, 461 N.Y.S.2d 232, 239, 448 N.E.2d 86, 93 (Ct.App.1983), the courts have insisted on the application of the general personal injury limitation period for § 1983 claims. See Villante v. Department of Corrections of City of New York, 786 F.2d 516, 520 n.2 (2d Cir.1986) (dicta) (general personal injury tort limitation should be applied to § 1983 claims); Okure v. Owens, 625 F.Supp. 1568, 1570 (N.D.N.Y.1986) (applying general limitation period to § 1983 claim); Williams v. Allen, 616 F.Supp. 653, 655 (E.D.N.Y.1985) (same); Ladson v. New York City Police Dep't, 614 F.Supp. 878, 879 (S.D.N.Y. 1985); Rodrigues v. Village of Larchmont, 608 F.Supp. 467, 476-77 (S.D.N.Y.1985) (same). See also Martin v. City of New York, 627 F.Supp. 892, 900 (E.D.N.Y.1985) (applying general personal injury tort limitation to § 1985 claim). Granted, as the concurring opinion observes, see concurring op. at 1441 n. 8, the limitations period for actions arising under statute and the limitation period for general personal injury torts are both three years in New York. Nevertheless, the federal courts in that state have consistently held that the personal injury limitations period is the statute of limitations applicable to § 1983 actions. This court must take them at their word.

16 . Our decision not to adopt the Human Rights Act limitations period implies neither "bad faith" on the part of the D.C. government nor an assumption that the Act is not "a legitimate piece of local antidiscrimination legislation.” See concurring op. at 1441. It simply reflects the Supreme Court’s admonition that the borrowing of limitations periods under § 1988 is purely a matter of federal law and does not involve “policies of comity and federalism” that are involved in borrowing limitations periods in diversity cases. Mazzanti v. Merck & Co., 770 F.2d 34, 36 (3d Cir.1985) (distinguishing Garcia in a diversity case). Cf. concurring op. at 1442.

17 . See also Springfield Township School Dist. v. Knoll, 471 U.S. 288, S.Ct. 2065, 85 L.Ed.2d 275 (1985) (per curiam) (remanded in light of Garcia "in which we have held that all § 1983 claims should be characterized for statute of limitations purposes as actions to recover damages for injuries to the person”); Anton v. Lehpamer, 787 F.2d 1141, 1143 (7th Cir.1986) (Garcia held that “in every state the statute of limitations for the ‘tort action for the recovery of damages for personal injuries is the best alternative available’ ”) (emphasis added); Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.1986) (Garcia held that § 1983 claims “should be invariably characterized as personal injury actions”) (emphasis added).

18 . See Rivera v. Green, 775 F.2d 1381, 1383 (9th Cir.1985) (personal injury statute governs § 1983 claims); Wycoff v. Menke, 773 F.2d 983, 984 (8th Cir.1985) (same); Gates v. Spinks, 771 F.2d 916, 918 (5th Cir.1985) (same); Altear Corp. v. Pesquera de Busquets, 769 F.2d 30, 31 (1st Cir.1985) (same); Smith v. City of Chicago, 769 F.2d 408, 411 (7th Cir.1985) (same) (dicta); Bailey v. Faulkner, 765 F.2d 102, 103 (7th Cir.1985) (same); Smith, v. City of Pittsburgh, 764 F.2d 188, 192-94 (3d Cir.) (same), cert. denied, — U.S.-, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985); Burkhart v. Randles, 764 F.2d 1196, 1200 n. 5 (6th Cir.1985) (same); Jones v. Preuit & Mauldin, 763 F.2d 1250, 1253 (11th Cir.1985) (same), cert. denied, — U.S. -, 106 S.Ct. 893, 88 L.Ed.2d 926 (1986). Cf. Garda v. Wilson, 731 F.2d 640, 650-51 (10th Cir.1984), aff'd, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985).

19 . In fact, New Mexico has no separate limitations periods for liability based on a statute, or for false arrest or assault and battery claims. See N.M.Stat.Ann. Ch. 37, Art. I (1978). Thus the Court’s analysis of the various alternative characterizations, which settled upon the general personal injury analogy, must have been intended to encompass all of the possible alternatives. Despite this, the concurring opinion, relying on Runyon, argues that the courts may consider potentially analogous limitations periods that apply to state human rights laws. Concurring op. at 1439 n. 5. But the concurrence’s line of reasoning, based on a single phrase from that case, is not easily limited to so restricted a result. It seems a minor step from consideration of human rights law limitation periods alone to consideration of limitations periods for all causes of action for which New Mexico had no special period.

20 . See also Mulligan v. Hazard, — U.S. -, 106 S.Ct. 2902, 90 L.Ed.2d 988 (1986) (White, J., with Marshall, J., dissenting from denial of certiorari) (“[T]he courts of appeals also have reached conflicting results concerning what should be done when more than one state statute of limitations applies to personal injury actions.”); Preuit & Mauldin v. Jones, — U.S. -,-, 106 S.Ct. 893, 894-95, 88 L.Ed.2d 926 (1986) (White, J., dissenting from denial of certiorari) (noting split in the circuits on this issue).

21 . The concurring opinion argues that we are inconsistent in arguing that §§ 1981 and 1983 are sufficiently similar to require us to apply the personal injury statute of limitations to § 1981 claims, but sufficiently dissimilar to apply the District’s general tort statute of limitations, rather than the intentional tort statute of limitations, to § 1981 claims. See concurring op. at 1438-39 n. 4. First of all, nothing is necessarily inconsistent about these two propositions. Our review of the Civil Rights Act leads us to believe that Congress intended § 1981 to be a personal injury remedy, but not solely for intentional personal injuries of the kind set out by § 301(4). Second, our argument on this point is in the alternative. Even if we accepted the contention that the intentional tort statute of limitations should be applied to § 1983 claims— an issue that is not presented by this case — we would nonetheless conclude that the general tort statute of limitations should be applied to § 1981 claims. Moreover, as noted above, see text supra at 1427, were we presented with the question of which of the two personal injury statutes of limitations to apply to a § 1983 claim, we might well agree with the Second Circuit’s suggestion that the general personal injury statute of limitations should be applied. See Villante, 786 F.2d at 520 n. 2. Such a conclusion would remove any possible inconsistency.

22 . If the Garda opinion also applies to Bivens actions, this case-by-case approach will no longer be valid. See Garcia, 471 U.S. at 276,105 S.Ct. at 1947.

23 . The first letter, written to Ms. Banks by C&P of D.C.'s employment office in 1983, merely notes the circumstances of appellant’s departure from the company and confirms the company’s refusal to rehire her. See Brief and Appendix for Appellant at 44 (letter of C. Carroll, III). The second letter, written to appellant from legal counsel to both C&P of D.C. and C&P of Virginia, provides even less support. In it counsel notes that under C&P of Virginia’s collective bargaining agreement it may only recognize the Communications Workers of America, AFL-CIO as Ms. Banks’ exclusive representative for purposes of consideration of any grievable issue. Id. at 45 (letter of Charles M. Carrón).

24 . Appellant’s counsel questioned his client near the end of the deposition. In response to the questions asked by her counsel she reiterated her allegations.

BY MR. ANDERSON:

Q Ms. Banks, is it your testimony that when other employees who were similarly situated as yourself, who were white and who were male, that when they were terminated, they received some kind of warning or notice that they would be terminated and you didn’t?

A Yes.

******

Q Is it your testimony that C&P disregarded your employment rights when they terminated you, and that they didn’t do this when they terminated white people and males?

A Yes. Deposition of Gladys Banks at 190-91. Such conclusory allegations, however, are wholly insufficient to carry appellant’s burden of production. Absent some evidentiary support for her allegations that the company discriminated against her, summary judgment for the defendant was clearly proper. We do not require a party opposing a motion for summary judgment to come forward with admissible evidence. Rather, we require only that a party opposing a motion for summary judgment come forward with evidence that ”designate[s] ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex Corp. v. Catrett, — U.S.-,-, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(e)).

25 . We note that defendant’s motion for summary judgment was later characterized as concerning only the statute of limitations defense. See Originad Record on Appeal at 18 (Defendant’s Motion to Extend Deadline for Filing Motions for Summary Judgment on the Merits); id. at 20 (order of the district court dated August 29, 1984 granting motion). At the time that appellant responded to the motion for summary judgment, however, no such limitation had been placed upon the original motion for summary judgment. Thus it was incumbent upon appellant to rebut the defendant’s claim that it was entitled to summary judgment and to proffer evidence to the court sufficient to support the allegations of the complaint.