Baker v. Board of Regents of State of Kan.

• Decision Date: 13 June 1991
• Docket Number: No. 88-4133-R.,88-4133-R.
• Citation: 768 F. Supp. 1436
• Parties: Marvin D. BAKER, Plaintiff, v. The BOARD OF REGENTS OF the STATE OF KANSAS, et al., Defendants.
• Court: U.S. District Court — District of Kansas

768 F. Supp. 1436

Marvin D. BAKER, Plaintiff, v. The BOARD OF REGENTS OF the STATE OF KANSAS, et al., Defendants.

No. 88-4133-R.

United States District Court, D. Kansas.

June 13, 1991.

Anthony D. Clum, Robert E. Keeshan, Hamilton, Peterson, Tipton & Keeshan, Topeka, Kan., for plaintiff.

Malcolm R. Burns, Lawrence, Kan., John C. McFadden, Steven L. Ruddick, Kan. Univ. Med. Center, Kansas City, Kan., for defendants Kan. Bd. of Regents and Kan. Univ. Med. School.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This case involves a denial of admission to the University of Kansas Medical School (KUMS). Plaintiff alleges that he is a victim of reverse discrimination and of an unconstitutionally capricious interview system. Plaintiff also seeks to add a claim of discrimination on the basis of a physical disability. The main issue in this case is whether defendants are entitled to judgment on statute of limitations grounds. This issue is now before the court upon defendants' summary judgment motion.

Under FED.R.CIV.P. 56, summary judgment shall be rendered if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, it is the court's obligation to view the facts in the light most favorable to the adverse party and to allow the adverse party the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Summary judgment is appropriate against a party who fails to make a showing sufficient to establish that there is a genuine issue for trial about an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

The moving party bears the initial burden of demonstrating by reference to portions of pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, the absence of genuine issues of material fact. Id. at 323, 106 S.Ct. at 2552-53. However, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Id. The nonmoving party is then required to go beyond the pleadings and by affidavits, depositions, answers to interrogatories and admissions on file, designate specific facts showing that there is a genuine issue for trial. Id.

A party opposing a properly supported motion for summary judgment cannot simply rest on allegations and denials in his pleading to get to a jury without any significant probative evidence tending to support the complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 249, 106 S.Ct. at 2510-11. A mere scintilla of evidence in favor of the nonmoving party is insufficient to create a genuine issue of material fact and to avoid summary judgment. Id. at 252, 106 S.Ct. at 2512. "In essence ... the inquiry ... is ... whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided or so lacking that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. at 2512; see also, Celotex Corp. v. Catrett, supra, 477 U.S. at 325, 106 S.Ct. at 2553-54.

The following uncontroverted facts supply the basis for defendants' summary judgment motion. Plaintiff received a letter dated January 29, 1986 from the Associate Dean of KUMS, Dr. Thorkil Jensen, which stated that plaintiff had not been selected for admission to KUMS for the fall semester of 1986. The text of the letter read:

Admissions interviews for the 1986 first year class at the University of Kansas School of Medicine have been completed and the committees involved have voted on each applicant interviewed as to whether he or she should be accepted, denied acceptance or placed on the alternate list. By their action you have been denied admission to the 1986 medical school class.

Be assured that I do understand your disappointment at not being accepted for a place in the next medical school class. Do not hesitate to contact me in person or by phone so that we can discuss this matter in some detail. To make an appointment call XXX-XXX-XXXX.

The composition of the class was not finally decided until the time school started in August 1986. Some people were selected from an alternate list at the time. However, the letter to plaintiff made it clear that he was not placed on the alternate list. This was the third consecutive year plaintiff had been denied admission to KUMS.

Plaintiff met with Dr. Jensen on February 12, 1986 regarding the reasons for his rejection. Plaintiff was told by Dr. Jensen that he was not accepted due to his interview for admission. Plaintiff stated that he planned to pursue the matter legally. In June 1986, plaintiff wrote to KUMS to see if the decision to deny him admission was "set in stone and they could not change it meaning I would have to do something different to get in." Plaintiff said in his deposition the purpose of the letter was to try to "talk to Dr. Jensen to see if there could be another way that it could be dealt with other than through litigation or if it was constitutionally just litigation that would be required to get them to change their decision or modify it." Plaintiff received no reply to this letter.

Plaintiff knew that KUMS produced a yearly roster, each August, with the names and pictures of students admitted for each class. Plaintiff had previously obtained one of the rosters for the admission year 1984-85.

On December 1, 1987, counsel for the University of Kansas wrote plaintiff's counsel in response to a request for information concerning the selection process for KUMS students. The letter stated that plaintiff had the highest cumulative GPA and MCAT score of any Kansan who was denied admission in 1986. Plaintiff was not aware of this fact until his counsel received this letter. However, on the basis of evidence presented during a preliminary injunction hearing in this case, it is clear plaintiff knew or could have learned in January 1986 or before, that he had an above average cumulative GPA and MCAT score for applicants to KUMS. The facts presented in the instant motion also support the conclusion that plaintiff knew his test scores were not a factor in the denial of his medical school application more than two years before he filed this lawsuit. As mentioned previously, plaintiff was told by Dr. Jensen in February 1986 that his interview, not his objective test scores, kept him from being admitted to KUMS. Plaintiff filed this lawsuit on June 14, 1988.

The court addressed the limitations issue in this case, as well as other issues, in an order denying plaintiff preliminary injunctive relief. This order is published at 721 F.Supp. 270 (D.Kan.1989). The statute of limitations was one factor among others causing the court to deny injunctive relief to plaintiff. The court has examined many other cases since that order and the court has noted, as have other courts, that some confusion and inconsistency exist in applying such concepts as accrual and equitable tolling. See Cada v. Baxter Healthcare Corporation, 920 F.2d 446, 451 (7th Cir. 1990); Ebrahimi v. E.F. Hutton & Co., 852 F.2d 516, 520 n. 6 (10th Cir.1988). The court is now convinced that this case is time-barred and that defendants are entitled to summary judgment. In reaching this decision, we shall rely to some degree upon our previous discussion of the limitations issue at 721 F.Supp. 270. But, we shall not repeat most of the case authorities which were cited in that order.

We continue to believe that a two-year statute of limitations period should be applied to the federal law claims plaintiff has asserted under 42 U.S.C. §§ 1981 and 2000d. The same period would apply to the federal law claims under 42 U.S.C. § 1983 and 29 U.S.C. § 794 plaintiff has moved to add to the complaint. This limitations period is borrowed from K.S.A. 60-513(a)(4). See discussion at 721 F.Supp. at 274-75.

Plaintiff's cause of action accrued when he received the January 29, 1986 letter informing him that he would not be admitted to the next first-year class at KUMS. We reiterate our previous holding that federal law determines the standard for accrual in this case and that plaintiff's action accrued when plaintiff knew or had reason to know of the injury which is the basis of the action, i.e., the denial of acceptance to KUMS. Id. at 275; see also, Hamilton v. First Source Bank, 895 F.2d 159, 163 (4th Cir.1990); Chapman v. Homco, Inc., 886 F.2d 756, 758 (5th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1784, 108 L.Ed.2d 785 (1990); Merrill v. Southern Methodist University, 806 F.2d 600, 605 (5th Cir.1986); Miller v. I.T. & T. Corp., 755 F.2d 20, 24 (2d Cir.) cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985).

State law on tolling the statute of limitations must be followed if a state statute of limitations is being borrowed, unless the tolling rules are inconsistent with federal law or with the policy which the federal law seeks to implement. 721 F.Supp. at 275 (and cases cited therein). Plaintiff has the burden of establishing a basis for equitable tolling. Id.

Most federal circuit courts differentiate between equitable tolling and equitable estoppel. See, e.g., Cada v. Baxter Healthcare Corporation, supra; Cerbone v. International Ladies' Garment Workers' Union, 768 F.2d 45 (2d Cir.1985). Kansas courts, however, generally use the term "equitable estoppel" to describe any equitable modification to the...