National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 7 (2002)

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Cite as: 536 U. S. 101 (2002)

Opinion of the Court

lation of the continuing violation doctrine, which "allows courts to consider conduct that would ordinarily be time barred 'as long as the untimely incidents represent an ongoing unlawful employment practice.' " 232 F. 3d 1008, 1014 (2000) (quoting Anderson v. Reno, 190 F. 3d 930, 936 (CA9 1999)). Contrary to both the Seventh Circuit's test, used by the District Court, and a similar test employed by the Fifth Circuit,3 the Ninth Circuit held that its precedent "precludes such a notice limitation on the continuing violation doctrine." 232 F. 3d, at 1015.

In the Ninth Circuit's view, a plaintiff can establish a continuing violation that allows recovery for claims filed outside of the statutory period in one of two ways. First, a plaintiff may show "a series of related acts one or more of which are within the limitations period." Ibid. Such a "serial violation is established if the evidence indicates that the alleged acts of discrimination occurring prior to the limitations period are sufficiently related to those occurring within the limitations period." Ibid. The alleged incidents, however, "cannot be isolated, sporadic, or discrete." Ibid. Second, a plaintiff may establish a continuing violation if he shows "a systematic policy or practice of discrimination that operated, in part, within the limitations period—a systemic violation." Id., at 1015-1016.

To survive summary judgment under this test, Morgan had to "raise a genuine issue of disputed fact as to (1) the existence of a continuing violation—be it serial or systemic," and (2) the continuation of the violation into the limitations period. Id., at 1016. Because Morgan alleged three types

3 The Fifth Circuit employs a multifactor test, which, among other things, takes into account: (1) whether the alleged acts involve the same type of discrimination; (2) whether the incidents are recurring or independent and isolated events; and (3) whether the earlier acts have sufficient permanency to trigger the employee's awareness of and duty to challenge the alleged violation. See Berry v. Board of Supervisors, 715 F. 2d 971, 981 (1983).


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