*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

_____________________

No. 98-30790

Summary Calendar

_____________________

BEVERLY BLACHER,

Plaintiff-Appellant,

versus

BASF CORPORATION,

Defendant-Appellee.

_________________________________

Appeal from the United States District Court

for the Middle District of Louisiana

(96-3119-B-M2)

_________________________________

March 25, 1999

Before JOLLY, SMITH and WIENER, Circuit Judges.

Per Curiam*

In this appeal from the dismissal of her employment

discrimination suit, Plaintiff-Appellant Beverly Blacher asks us to

reverse the district court’s orders granting summary judgment in

favor of Defendant-Appellee BASF Corporation. For the reasons

expressed below, we agree with the district court and affirm. 

I

FACTS AND PROCEEDINGS

BASF owns and operates a chemical plant complex in Geismar,

Louisiana. Blacher, a black female, was hired by BASF in 1973 as
 

2LA. REV. STAT. ANN. §§ 23:972 & 51:2242, repealed by Acts 1997,

No. 1409, § 4, effective Aug. 1, 1997. Louisiana’s employment

discrimination statutes were replaced by and consolidated in

Chapter 3-A of Title 23 of the Revised Statutes, §§ 301-354. Acts

1997, No. 1409, § 4, effective Aug. 1, 1997. 

2

an accounting clerk. In 1980, Blacher was promoted from

“Accounting Clerk II” to “Accounting Clerk I,” a job classification

in which she remained for the next 15 years. In 1995, BASF offered

a “Voluntary Special Early Retirement Program” to 96 employees at

Geismar who would be 50 years-old or older by June 30, 1995,

including 56 year-old Blacher. Blacher was one of 77 employees who

accepted the offer and retired. She signed the acceptance

documents in the program on May 23, 1995, and her retirement became

effective July 1, 1995. 

Less than one year later, on May 10, 1996, Blacher filed suit

in state court asserting myriad age- and race-based employment

discrimination claims under former Louisiana statutes.2

Specifically, Blacher alleged that BASF discriminated against her

by (1) failing to promote her in 1979, 1980, and 1990; (2)

consistently undercompensating her throughout her career; and (3)

as a result of these acts, creating such an unpleasant work

environment that Blacher felt compelled to retire. 

BASF removed the action to federal court and thereafter filed

a motion for summary judgment, which the district court granted as

to all of Blacher’s claims except constructive discharge. Four

months later, BASF filed a second motion for summary judgment,

submitting additional evidence on, and seeking dismissal of, the

constructive discharge claim. Following oral argument, the
 

3Hudson v. Raggio & Raggio, Inc., 107 F.3d 355, 356 (5th Cir.

1997). 

 

4LA. REV. STAT. ANN. § 23:972, repealed in and replaced by Acts

1997, No. 1409, § 4, effective Aug. 1, 1997.

 

5LA. REV. STAT. ANN. § 51:2242, repealed in and replaced by Acts

1997, No. 1409, § 4, effective Aug. 1, 1997.

 

6LA. CIV. CODE ANN. ART. 3492 (West 1994). See Harris v. Home

Sav. & Loan Ass’n, No. W95-223 (La. App. 3d Cir. 7/27/95), 663 So.

2d 92, 94 (recognizing that state age discrimination claims are

subject to a one-year prescriptive period). Although no case has

specifically addressed the prescriptive period for race claims

brought under La. R.S. § 51:2242, we have held that an action under

3

district court granted BASF’s second summary judgment motion and

dismissed Blacher’s action with prejudice. Blacher timely filed

this appeal. 

II

ANALYSIS

A. Standard of Review

We review the district court’s grant of summary judgment de

novo, applying the same standard as the district court.3

B. Applicable Law

1. Time Bar

A Louisiana statute makes it unlawful for an employer to “fail

or refuse to hire, or to discharge, any individual or otherwise

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment”

because of age.4 Another state statute proscribes such

discrimination on the basis of race.5 A cause of action brought

under either of these statutes is a tort, governed by Louisiana’s

one-year prescriptive period.6 This period commences on the day
La. R.S. § 23:1006 —— a statute which also prohibited employment

discrimination on the basis of race —— is a tort subject to article

3492's one-year prescriptive period. Williams v. Conoco, Inc., 860

F.2d 1306, 1306 (5th Cir. 1988). See also Winbush v. Normal Life

of La., Inc., 599 So. 2d 489, 491 (La. App. 3d Cir. 1992),

abrogated on other grounds, Harris v. Home Sav. & Loan Ass’n, No.

W95-223 (La. App. 3d Cir. 7/27/95), 663 So. 2d 92 (recognizing with

approval this Circuit’s holding in Williams); Rhea v. Dillard Dep’t

Stores, Inc., No. 96-1404, 1996 WL 537447, at *4 (E.D. La. Sept.

20, 1996)(citing Williams and Winbush in support of the proposition

that a claim brought under La. R.S. § 51:2242 is subject to a oneyear prescriptive period). Blacher does not challenge the general

applicability of article 3492's one-year prescriptive period to her

race claims, but argues, for other reasons, that her claims have

not prescribed. 

 

7LA. CIV. CODE ANN. ART. 3492 (West 1994).

4

that injury or damage is sustained.7 Blacher filed suit on May 10,

1996. Thus, an action for any injury or damage sustained prior to

May 10, 1995 is subject to the defense of prescription. 

To avert application of this one-year prescription, Blacher

asserts —— unartfully —— that the entire course of BASF’s

discriminatory conduct constitutes a continuing tort, which gives

rise to a single cause of action. In addition to contending that

BASF discriminated against her on the basis of race or age or both

when it failed to promote her to various accounting positions in

1979, 1980, and 1990, Blacher also claims that BASF consistently

awarded higher pay raises to her younger co-workers, both black and

white. This discriminatory pay practice, says Blacher, culminated

in the complete denial of a pay raise to her on May 1, 1995.

Finally, as a result of BASF’s discriminatory job advancement and

compensation practices, argues Blacher, her working conditions

became so intolerable that she was compelled to retire. Thus,

Blacher insists, because the damaging effects of all of BASF’s
 

8Waltman v. International Paper Co., 875 F.2d 468, 474 (5th

Cir. 1989); Bustamento v. J.D. Tucker, 607 So. 2d 532, 541 (La.

1992).

 

9Bustamento, 607 So. 2d at 542.

 

10Id. at 538 & 542.

 

11Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998).

5

adverse employment actions continued until the day she retired ——

July 1, 1995 —— her claim never prescribed. As we shall

demonstrate, this argument is wholly without merit, and we reject

it. 

Louisiana’s “continuing tort” doctrine —— analogous to the

theory of “continuing violation” under federal law —— applies to

situations in which the complained-of unlawful employment practice

“manifests itself over time.”8 According to this doctrine,

otherwise unactionable conduct may become tortious as a result of

its “continuous, cumulative, synergistic nature.”9 Because, under

such circumstances, it is difficult to pin-point the specific date

of injury, “prescription does not commence until the last act

occurs or the conduct is abated.”10 Although there is no definitive

standard for determining what constitutes a continuing tort, courts

often consider such factors as the subject matter, frequency, and

permanence of the conduct.11 Thus, if the alleged acts involve the

same type of discrimination, are recurring, and lack the finality

that would ordinarily trigger a plaintiff’s awareness of and duty

to assert his rights, the plaintiff will be relieved from the

burden of proving that the entire violation occurred within the
 

12Messer v. Meno, 130 F.3d 130, 134-35 (5th Cir. 1997).

 

13Id.

 

14See Alldread v. City of Grenada, 988 F.2d 1425, 1431 (5th

Cir. 1993).

 

15The district court found Blacher’s discrimination claim based

on BASF’s May 1, 1995 pay raise denial viable for the seven week

period from May 10, 1995 to July 1, 1995, but ultimately rejected

the claim on its merits. As BASF’s May 1, 1995 employment action

was taken more than one year prior to Blacher’s filing of suit,

however, we conclude that this claim too has prescribed and do not

reach its merits. 

6

actionable period.12 If the plaintiff can show a series of related

acts, one or more of which fall within the limitations period, his

action will be timely.13

In the instant case, though, the conduct about which Blacher

complains does not constitute a single continuing tort. Rather, it

is a series of discrete and salient events. Even if we assume

arguendo that BASF’s adverse employment decisions were unlawfully

discriminatory, each clearly would have given rise to an

immediately apparent injury, resulting in the accrual of a

distinctly separate cause of action, with prescription running one

year from the date of each incident. That Blacher may have felt

the effects of BASF’s decisions long after the date on which the

employment action on each was taken, does not transform the

challenged incidents into a single continuing tort.14

With the exception of her constructive discharge claim, all of

Blacher’s allegations of discrimination are rooted in separate and

distinct employment decisions made by BASF prior to May 10, 1995,

and are no longer viable.15 Consequently, we agree with the
 

16Because Louisiana’s prohibitions against age discrimination

(La. R.S. 23:972) and race discrimination (La. R.S. 51:2242) are

virtually identical to that under federal law, both state and

federal courts applying Louisiana law look to Title VII when

determining whether a plaintiff has asserted a cause of action. In

making this determination, courts adhere to the evidentiary

procedure established by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).

 

17See Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 318 (5th

Cir. 1997). To satisfy the final step of a prima facie case of

race discrimination, a plaintiff need only prove that he was

replaced by someone outside the protected class. Id. In the

context of age discrimination, however, a plaintiff may show that

he was either (1) replaced by someone outside the protected class,

(2) replaced by someone in the protected class but younger than the

plaintiff, or (3) otherwise discharged because of his age. Id. at

319. 

 

18Id. at 319.

 

19Id.

7

district court’s grant of summary judgment in favor of BASF on

those claims. 

2. Constructive Discharge 

To assert a cause of action for discriminatory discharge under

either or both of Louisiana’s age and race employment

discrimination statutes,16 a plaintiff must first establish a prima

facie case by demonstrating that (1) he was discharged, (2) he

belongs to a protected class, (3) he was qualified for the

position, and (4) individuals outside of the protected class were

treated more favorably.17 When, as here, an employee resigns, he

may satisfy the first requirement by proving constructive

discharge.18 To do so, a plaintiff must demonstrate that his

working conditions were so intolerable that a reasonable employee

in his situation would have felt compelled to resign.19 Factors
 

20Barrow v. New Orleans Steamship Ass’n, 10 F.3d 292, 297 (5th

Cir. 1994).

 

21Faruki, 123 F.3d at 319. 

 

22Id.

8

such as (1) demotion, (2) reduction in salary or job

responsibilities, (3) reassignment to menial or degrading work or

to work under a younger supervisor, (4) badgering, harassment, or

humiliation by the employer calculated to encourage the employee’s

resignation, and (5) offers of early retirement on terms that, if

accepted, would make the employee worse off regardless of whether

the offer were to be accepted, may be considered by the court,

either singly or in combination, when determining objectively

whether a reasonable employee would have felt compelled to resign.20

If the plaintiff establishes a prima facie case, a presumption

of discrimination arises. Then, to avoid liability, the employer

must rebut this presumption by articulating a legitimate,

nondiscriminatory reason for its action.21 If the employer carries

this burden, the presumption fades, and the plaintiff must prove

that the true reason for the employment decision is unlawful

discrimination, not the employer’s proffered reason.22

Blacher contends that summary judgment was inappropriate

because she adduced sufficient evidence to create a genuine issue

of material fact as to whether she was constructively discharged

and as to whether the reason for this adverse employment action was

age or race discrimination, or both. In support of her contention,

Blacher argues that BASF’s denial of promotions and inequitable pay
9

raises made her working conditions intolerable. Further, asserts

Blacher, employment with BASF became exceedingly unpleasant when,

in 1995, she was subjected to weekly performance reviews. Blacher

claims that BASF was “building a file against her” and that she had

no choice but to retire. Relying on nothing more than her own

subjective belief that BASF’s employment decisions were based on

age and race, Blacher claims that a reasonable employee faced with

such discriminatory treatment would have felt compelled to resign.

We disagree.

Based on our de novo review, we conclude that Blacher has

failed to adduce evidence sufficient to create a fact issue as to

whether BASF placed her in an intolerable work environment. There

is no evidence that Blacher was demoted or reassigned or that, as

a result of BASF’s conduct, her work description changed in any

way. Furthermore, she has produced no evidence of “badgering,

harassment, or humiliation” by BASF which would tend to support a

finding of constructive discharge. Although Blacher insists that

BASF singled her out for weekly performance reviews, the record

evidence indicates that such reviews were part of a plant-wide

approach to improving productivity, and had been recommended for

any number of employees who, like Blacher, experienced performance

problems. In addition, the simple fact that BASF may have been

“building a file” on Blacher is not indicative of difficult or

unpleasant working conditions, particularly when, as here, the

evidence supports a finding that Blacher’s productivity had

historically been low. Finally, with regard to BASF’s allegedly-
 

23See Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243

(5th Cir. 1993).

10

discriminatory job advancement and compensation practices, we

conclude that, under the circumstances presented in this case,

instead of resigning, a reasonable employee would have continued to

work while simultaneously pursuing the administrative and judicial

employment discrimination remedies available to her under the law.23

When we view all facts in the light most favorable to Blacher,

we are satisfied that her working conditions were not so

intolerable that a reasonable employee would have felt compelled to

resign. We conclude that Blacher elected to retire voluntarily;

that she was not constructively discharged. 

III

CONCLUSION

Blacher’s failure both to file suit in a timely manner and to

raise a genuine issue of material fact as to whether she suffered

an adverse employment action is dispositive of her discrimination

claims. Accordingly, any question whether BASF’s alleged

employment actions were motivated by discriminatory animus has been

rendered moot. We hold, therefore, that the district court

correctly granted summary judgment to BASF on Blacher’s

discrimination claims. The summary judgments of the district court

are, in all respects,

AFFIRMED.