Dixon v. Anderson

Citation928 F.2d 212
Decision Date07 May 1991
Docket NumberNo. 90-3126,90-3126
Parties66 Ed. Law Rep. 560 Dolores DIXON, Executrix of the Estate of Thomas Dixon, Deceased; and Masaji Toki, Plaintiffs-Appellants, v. Thomas ANDERSON, William McLaughlin, C.J. Grothaus, Henry Helling and R.O. Huffman, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Paul H. Tobias (argued), Tobias & Kraus, Cincinnati, Ohio, for plaintiffs-appellants.

Patrick A. Devine (argued), Theresa Rittinger Schaefer, Office of Atty. Gen. of Ohio, Columbus, Ohio, for defendants-appellees.

Before JONES and RYAN, Circuit Judges, and WISEMAN, Chief District Judge. *

RYAN, Circuit Judge.

In this civil rights action brought under 42 U.S.C. Sec. 1983, an Ohio state employee and a deceased Ohio state employee's executrix appeal the district court's summary judgment in favor of defendants, who are directors of state retirement programs. The only issue on appeal is whether, as the district court held, plaintiffs brought their action after expiration of the relevant limitations period. We conclude that they did so, and now affirm.


Except as otherwise noted, the parties have stipulated to the facts as follows.

A. The State Retirement Systems

In Ohio, every employee of state or local government may become a member of the state retirement system that covers the employee's branch of public service. Each of the state's six retirement systems is a defined benefits plan, which means that a member employee has a vested right to receive a certain level of retirement benefits without regard to the amount of money he or she has paid into the system in the way of pension benefits contributions. After retirement, the employee continues to receive benefits even if the employee "outlives" his or her life expectancy.

Members of a particular retirement system contribute a certain portion of their salaries to that system. The members' employers withhold these contributions from the members' payroll checks and pay them into "employees' savings funds." "These contributions are credited to the individual member and may be withdrawn by that member if he or she leaves Ohio state employment."

State employers also contribute to the appropriate state retirement systems on behalf of employees. The amount contributed is a percentage of the total earnable salary of all members of an Ohio state retirement system. This money goes into a general "employers' trust fund," does not stand to the credit of an individual member, and stays in the fund even as individual members exit the system. The employer percentage varies annually according to the actuarially computed needs of the particular retirement system, but the employer percentage is applied uniformly without regard to the particular employer's characteristics or its history.

According to the stipulated facts, the retirement systems operate as follows:

At the beginning of the benefit, the member's individual accumulated account in the employee's trust [savings] fund is transferred to the pension reserve fund. The difference between the member's account and the reserve necessary to guarantee payment [according to actuarial calculations] is transferred from the employer's trust fund. If, at any time, there are insufficient assets in the annuity and pension fund and the guarantee fund, then the amount of such deficiency must be paid by an additional employer rate of contribution assessed against all employers or by direct appropriation from the State Treasury.

Employees who have been members of more than one Ohio public retirement system may be able to "combine service credit under one system or coordinate retirements by various methods set forth by statute." However, all the systems and employers must adhere to Ohio Rev.Code Ann. Sec. 124.85 (Anderson 1990), Ohio's "double-dipping" statute. 1 Under this statute, once a system member begins receiving retirement benefits from one system, he or she may not then become or remain a member of a different retirement system. The fact that an employee is receiving retirement benefits from a source other than an Ohio public retirement system is no bar to membership in an Ohio public retirement system.

B. Plaintiff's Decedent Dixon

On August 27, 1975, Thomas Dixon left his job with the Cincinnati Police Division, where he had accumulated a number of years of "service credit" with the Police and Fire Disability Pension Fund ("PFDPF"). In September 1976, he started work for the Cincinnati Board of Education. The clerk-treasurer for the Cincinnati Public Schools informed Dixon that if he began receiving benefits from the PFDPF system, he would not be eligible for membership in the School Employees Retirement System (SERS). Nevertheless, Dixon thereafter applied for membership in SERS, and his employer deducted SERS contributions from Dixon's payroll check for September, October, and November of 1976.

On November 10, 1976, Dixon retired from PFDPF and began receiving benefits from that plan. At that point, SERS refunded the contributions Dixon had made to that plan and, pursuant to Ohio Rev.Code Ann. Sec. 124.85 (Anderson 1990), refused to allow Dixon to become a SERS member. Had Dixon chosen to postpone retiring from PFDPF until he retired from the Board of Education, he would have been required to join SERS and could have "coordinated" retirement benefits from both SERS and PFDPF.

Until his recent death, Dixon continued to receive benefits from PFDPF. His employer deducted no retirement contributions from his paycheck, and Dixon received no service credit toward retirement for his work for the Board of Education. 2

C. Plaintiff Toki

On April 1, 1978, Plaintiff Masaji Toki left his job with the Cincinnati Regional Crime Information Center. Through that job, Toki had accumulated some service credit toward retirement with the City of Cincinnati Retirement System ("CCRS"). Also on April 1, 1978, Toki began working for the Cincinnati Board of Education. Through his interview for this latter position in March 1978, Toki learned that he would not be eligible for membership in SERS while he received retirement benefits from another state retirement system. Nevertheless on April 1, 1978, he retired from CCRS and began receiving benefits. Thus, he was not eligible for membership in SERS. 3

D. The Litigation

On September 29, 1988, Dixon and Toki filed a complaint on behalf of themselves and a class composed of certain other state employees against the defendants who are the executive directors of five of the six Ohio state retirement systems, under 42 U.S.C. Sec. 1983. Plaintiffs alleged that the directors of the retirement systems, under color of state law, denied plaintiffs pension system participation in violation of the fourteenth amendment right to equal protection of the laws. The complaint alleged a violation of equal protection on the grounds that while SERS denied plaintiffs membership in a state retirement system, SERS allowed "similarly situated" state employees 4 not already receiving Ohio state pensions to join.

Both parties moved for summary judgment. Defendants argued, among other things, that the statute of limitations barred plaintiffs' claim. The district court granted defendants' motion for summary judgment on that ground. 727 F.Supp. 1124. Plaintiffs appealed. During the pendency of this appeal, Thomas Dixon died, and his executrix was substituted as a party plaintiff pursuant to Fed.R.App.P. 43(a).


In section 1983 actions, the appropriate statute of limitations is the analogous state statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 276-80, 105 S.Ct. 1938, 1947-49, 85 L.Ed.2d 254 (1985). In Ohio, the two-year limitations period of Ohio Rev.Code Ann. Sec. 2305.10 (Anderson 1981) governs. Browning v. Pendleton, 869 F.2d 989 (6th Cir.1989).

In determining when the statute of limitations begins to run, that is, when the cause of action accrues, we follow federal law. Sevier v. Turner, 742 F.2d 262, 272 (6th Cir.1984). "The statute of limitations commences to run when the plaintiff knows or has reason to know of the injury which is the basis of his action. A plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence." Id. at 273 (citations omitted). In determining when the cause of action accrues in section 1983 actions, we have looked to what event should have alerted the typical lay person to protect his or her rights. Conlin v. Blanchard, 890 F.2d 811, 815 (6th Cir.1989).

Dixon and Toki had reason to know of their injuries when their new employer both informed them of Ohio Rev.Code Ann. Sec. 124.85's prohibition against "double-dipping" and refused to allow them to join SERS. Since these events occurred well outside the two-year limitations period, it might seem a straightforward conclusion that plaintiffs' claims are time-barred. Indeed, defendants contend that this conclusion ends the matter. In their view, no events operate to extend the original limitations period or to trigger the running of a new one.

However, plaintiffs now argue on appeal that their case falls under the "continuing violation" doctrine, which would allow plaintiffs to bring their claim within two years of the most recent of any discrete acts of discrimination against them. Dixon and Toki claim such a discrete act occurred when SERS last responded to their requests for membership, in 1987 and 1988, respectively. Alternatively, plaintiffs seem to claim that under the continuing violation doctrine, they may bring an action at any time, so long as the allegedly discriminatory statutory policy against double-dipping remains in effect. Before the district court, plaintiffs mentioned the possibility of a continuing violation only briefly in passing, with the result that the court omitted all reference to such contentions...

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