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

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

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”),

, 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,

(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,

(1987)

(applying

). 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 ,

, 229-30 (7th Cir. 1995)), French ancestry (Franchitti v .

Bloomberg,

, *3-4 (S.D.N.Y. 2004)), and Greek

ancestry (Drikos v . City of Palos Heights,

, *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,

(1st Cir. 2003) (Title V I I ) ; Stepney v . Naperville Sch.

Dist. 203,

(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,

4 1 , 142 (2d Cir. 1980); Pearson v . Furnco Const.

Co.,

, 818-19 (7th Cir. 1977); see also Milam v .

United States Postal Service,

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,

*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.,

*4 (S.D. Iowa 2001)(ADEA); see

also Suarez v . Puerto Rico Elec. Power Auth.,

(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.,

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.

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