654 F.2d 856 (2nd Cir. 1981), 877, Pauk v. Board of Trustees of City University of New York

Docket Nº:877, Docket 80-9018.
Citation:654 F.2d 856
Party Name:Edgar PAUK, Plaintiff-Appellant, v. The BOARD OF TRUSTEES OF the CITY UNIVERSITY OF NEW YORK, et al., Defendants-Appellees.
Case Date:July 22, 1981
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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654 F.2d 856 (2nd Cir. 1981)

Edgar PAUK, Plaintiff-Appellant,



al., Defendants-Appellees.

No. 877, Docket 80-9018.

United States Court of Appeals, Second Circuit

July 22, 1981

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[Copyrighted Material Omitted]

Argued April 6, 1981.

Rehearing and Rehearing In Banc Denied September 11, 1981.

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Jonathan A. Weiss, New York City (Oscar Chase and Edgar Pauk, New York City, on the brief), for plaintiff-appellant.

Edward F.X. Hart, New York City (Allen G. Schwartz, Corp. Counsel, and Ronald E. Sternberg, New York City, on the brief), for defendants-appellees.

Before TIMBERS and NEWMAN, Circuit Judges, and SOFAER [*], District Judge.

NEWMAN, Circuit Judge:

This appeal concerns the recurring issue of determining the appropriate statute of limitations under New York law for actions commenced under 42 U.S.C. § 1983 (1976). The District Court for the Eastern District of New York (Jacob Mishler, Judge), applying New York's three-year limitations period for liability created or imposed by statute, N.Y.Civ.Prac.Law and Rules (CPLR) § 214(2) (McKinney 1972), dismissed appellant's claim as time barred. We affirm, concluding that § 214(2) is the New York limitations provision that best fulfills the federal policies underlying § 1983 actions.

Appellant Edgar Pauk became an Assistant Professor in the Department of Romance Languages of Queens College of the City University of New York in the Fall of 1970 after serving as a Lecturer for the three preceding years. Under New York law, tenure is automatically conferred within the City University when an individual has served full-time as an Assistant Professor for five continuous years and is reappointed for a sixth consecutive year. N.Y.Educ.Law § 6212(3) (McKinney Supp. 1980) (formerly N.Y.Educ.Law § 6206(3)). On September 24, 1975, after five years of full-time service, 1 Pauk was informed by his Department that it had voted to recommend him for reappointment with tenure and was submitting its recommendation to the College Personnel and Budget Committee. However, on October 24, 1975, Pauk was notified by the President of the College that the Committee had voted against his reappointment.

In this letter, the President indicated that he would entertain an appeal of the Committee's determination based on either information

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that had been unavailable to the Committee, or credible allegations that the Committee had considered non-academic matters. Pauk appealed, outlining his academic credentials, and alleging that he had been denied reappointment because of his union activities. On November 14, 1975, the President denied Pauk's appeal, and shortly thereafter, on November 24, 1975, Pauk was notified by the Provost that his appointment terminated on the final day of his existing one-year contract, August 31, 1976. Pauk's tenure application was not considered by the University Board of Trustees because it was the Board's practice to act on tenure matters only when positive tenure recommendations were made.

On January 7, 1976, Pauk challenged the denial of his reappointment by filing a grievance in accordance with the collective bargaining agreement between the Board of Higher Education (now the Board of Trustees of the City University of New York) and the faculty union, the Professional Staff Congress. Under this agreement, grievances were submitted to an arbitrator empowered to rule only whether the challenged decision was procedurally defective. If the arbitrator so ruled, the matter was referred to a select faculty committee to reconsider the decision and make a recommendation to the Board. Rather than pursue this path, Pauk withdrew his grievance one month after filing it. In the interim, he commenced an Article 78 proceeding in New York state court, CPLR § 7801, et seq. (McKinney 1981), alleging that his dismissal was improper since he had in fact obtained tenure, counting either the three years in which he taught in the capacity of a lecturer, or the one year during which he was on leave of absence without pay from any teaching duties. This petition was ultimately rejected by the New York Court of Appeals in 1979. Pauk v. Board of Higher Education, 48 N.Y.2d 930, 425 N.Y.S.2d 92, 401 N.E.2d 214 (1979), aff'g 62 A.D.2d 660, 406 N.Y.S.2d 46 (1st Dep't 1978). On August 31, 1979, three years after the termination of his employment contract, and three years and nine months after notification of both the tenure denial and his discharge date, Pauk filed this action under 42 U.S.C. § 1983, alleging that the College and City education officials had deprived him of First Amendment rights by denying him reappointment with tenure in retaliation for his active participation in the faculty union.

The District Court granted appellees' motion to dismiss the complaint on the ground that Pauk's action was time barred. The Court determined that Pauk's claim had accrued in November 1975 when he received notification of the tenure denial and his discharge date. The Court then applied the three-year limitations period of CPLR § 214(2) for liability created or imposed by statute. We agree with both conclusions of the District Court.


Federal law determines when a claim accrues under § 1983. Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981). In Singleton, following the Fourth Circuit's approach in Bireline v. Seagondollar, 567 F.2d 260, 263 (4th Cir. 1977), cert. denied, 444 U.S. 842, 100 S.Ct. 83, 62 L.Ed.2d 54 (1979), we held that the federal claim accrues when the plaintiff "knows or has reason to know" of the injury that is the basis of his action. 632 F.2d at 191. Pauk knew of his injury, the alleged improper denial of tenure, on November 24, 1975, when he received notice of termination of his employment from the Provost following the President's denial of his appeal. He contends, however, that his right of action did not accrue until August 31, 1976, the date of his actual discharge, because the letters he received in November did not represent final action on his tenure application, action that he alleges could be taken only by the Board of Trustees of the University. 2

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In Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), the Supreme Court held that the date of accrual of a claim alleging that the plaintiff was denied tenure because of his national origin in violation of 42 U.S.C. § 1981 (1976) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976), was the date on which the plaintiff had received notice of the negative tenure decision and not the date of his actual termination. Appellant seeks to distinguish Ricks on factual grounds, contending that, unlike the circumstances of this case, there was clear evidence of the decision's finality in Ricks because the Board of Trustees of Delaware State College had both reviewed the faculty tenure decision and sent the notification letter to Ricks. 3

The gist of appellant's claim is that under New York law the Board of Trustees cannot delegate its decisional authority with respect to academic matters such as tenure, and that the negative tenure determination by the College Committee and the President therefore lacked binding authority without the Board's approval. Pauk maintains that since these decisions were not "final," his claim did not accrue until his actual discharge, when he no longer qualified under the tenure statute's continuous full-time service requirement. We disagree.

New York courts have held that the Board has a "nondelegable duty" to decide faculty appointments, promotion, and tenure, Rodriguez-Abad v. Kibee, 71 A.D.2d 588, 418 N.Y.S.2d 430 (1st Dep't 1979); Aptekar v. Board of Higher Education, 66 A.D.2d 630, 414 N.Y.S.2d 156 (1st Dep't 1979); Legislative Conference of City University v. Board of Higher Education, 38 A.D.2d 478, 330 N.Y.S.2d 688 (1st Dep't), aff'd, 31 N.Y.2d 926, 340 N.Y.S.2d 924, 293 N.E.2d 92 (1972); see Professional Staff Congress/CUNY v. City University of New York, 507 F.Supp. 637 (S.D.N.Y.1981). But the context of these rulings is quite distinct: at issue was the Board's ability to reject a faculty committee's positive recommendation of tenure. The courts uniformly concluded that the committee recommendations did not bind the Board because the Board's authority to grant tenure was not delegable. In Rodriguez-Abad, the Appellate Division further held that when a select committee established in accordance with the collective bargaining agreement's arbitration procedures voted to recommend an individual for tenure, the President could not veto that determination on his own but had to pass the recommendation on to the Board for its review. We do not find in these rulings a requirement that the Board independently review all negative tenure decisions. The Board's only nondelegable duty concerning tenure under New York law is to review recommendations for tenure supported throughout the administrative

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process or committee recommendations following a properly filed grievance even if disapproved during the administrative process.

There was no occasion for Board review of the denial of Pauk's tenure because the administrative process did not result in a favorable recommendation and Pauk withdrew from the grievance procedure which the New York courts have found to require ultimate Board review. Since appellant chose not to pursue the grievance procedure, the letters of notification he received from the President and Provost constituted final university action rejecting his tenure application. Pauk's discharge following receipt of those letters was simply the "inevitable consequence" of the adverse tenure decision previously made by the College just like the plaintiff's discharge following the...

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