Griffen v. Big Spring Independent School Dist.

• Decision Date: 09 June 1983
• Docket Number: No. 80-2149,80-2149
• Citation: 706 F.2d 645
• Parties: 31 Fair Empl.Prac.Cas. 1750, 32 Empl. Prac. Dec. P 33,667, 11 Ed. Law Rep. 100 James GRIFFEN, Plaintiff-Appellant, v. BIG SPRING INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 645

706 F.2d 645

31 Fair Empl.Prac.Cas. 1750,

32 Empl. Prac. Dec. P 33,667, 11 Ed. Law Rep. 100

James GRIFFEN, Plaintiff-Appellant, v. BIG SPRING INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees.

No. 80-2149.

United States Court of Appeals Fifth Circuit.

June 9, 1983.

Michael Gottesman, Bredhoff, Gottesman, Cohen & Weinberg, Mady Gilson, David Rubin, Washington, D.C., for plaintiff-appellant.

Jones, Milstead, Jones & McKinney, Richard C. Milstead, Big Spring, Tex., Randal M. Patterson, Odessa, Tex., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before BROWN, GOLDBERG and HIGGINBOTHAM, Circuit Judges.

GOLDBERG, Circuit Judge:

This appeal from a summary judgment for the defendant in a civil rights case raises two procedural issues. Appellant Griffen was a teacher in the Big Spring Independent School District whose contract was not renewed. Griffen believed this nonrenewal was racially motivated and pursued administrative remedies in the state system. These remedies were ultimately unsuccessful and Griffen filed a civil rights action in federal court. On Big Spring's motion for summary judgment, the trial court ruled against Griffen on the grounds that Griffen's claim was barred by the statute of limitations and, alternatively, that Griffen was collaterally estopped by the state proceedings. We reverse and remand for further proceedings.

I. INTRODUCTION

Beginning in 1973, Griffen was employed by the Big Spring Independent School District ("Big Spring") as a high school teacher/coach under a series of one year contracts. After various internal decisionmaking procedures, Big Spring notified Griffen on May 13, 1977 that his contract would not be renewed. Griffen, a black, believed his termination was racially motivated and requested a hearing before the school board. On June 9, 1977, the board held a hearing and determined it would Griffen then appealed the board's decision to the Texas Education Agency under Tex.Educ.Code Ann. Sec. 11.13 (Vernon 1972), alleging that his discharge was racially motivated. Beginning December 8, 1977, the Assistant Deputy Commissioner of Education conducted two days of hearings with testimony from various witnesses. On September 15, 1978, the hearing officer issued a Proposal for Decision including findings of fact and conclusions of law, finding that Griffen's discharge was racially motivated and recommending reinstatement with back pay. The hearing officer's recommendations were transmitted to the Texas Commissioner of Education, who was charged by law with the duty of making the actual decision. On November 14, 1978, the Commissioner issued a decision, which essentially adopted the hearing officer's proposed decision.

take no action, thus letting Griffen's contract lapse.

Big Spring appealed this decision to the Texas State Board of Education. During the pendency of the appeal, Big Spring had two ex parte contacts with the Board. First, during an unrelated conversation between Jim Binnion, a State Board member, and Lynn Hise, Superintendent of Big Spring, Binnion asked Hise "to send him some material in regard to" the appeal. Hise Deposition at 42. Second, in January, 1979, the General Counsel of the Texas Education Agency spoke to Big Spring's counsel and asked him to submit proposed findings and a proposed order. Griffen was neither advised of this request nor asked to submit his own proposed findings or orders. On January 12, 1979, Hise delivered the proposed findings and order to the State Board. On January 13, 1979, the State Board adopted the proposed findings and orders as its own. The State Board "found" that Griffen's termination was properly motivated and reversed the Commissioner's findings and ruling. The State Board held no actual hearing and gave no explanation for reversing the findings of the Commissioner and hearing examiner, which were based on a full evidentiary hearing.

On February 12, 1979, Griffen filed for judicial review of the Board's decision in the state district court of Travis County. This is the court charged with exclusive jurisdiction of review of actions of the State Board. One of the jurisdictional prerequisites for review of a State Board decision, however, is that a motion for rehearing be filed with the State Board. Tex.Rev.Civ.Stat.Ann. art. 6252-13a (Vernon 1970). Because Griffen had failed to file a Motion for Rehearing, the court determined that it was without jurisdiction and dismissed the case on May 30, 1979.

One week later, on June 8, 1979, Griffen filed a complaint in federal district court under 42 U.S.C. Secs. 1981, 1983, and 1985, on the same grounds and requesting the same relief. The district court granted Big Spring's motion for summary judgment on two grounds. First, the court held that Griffen's action accrued on May 13, 1977. The relevant statute of limitations is two years, Tex.Rev.Civ.Stat.Ann. art. 5526 (Vernon 1958), so Griffen's suit, filed June 8, 1979, was barred. Second, the court held that Griffen was collaterally estopped by the State Board's findings. This appeal followed. ¹

On appeal Griffen argues that both of the district court's rulings were incorrect. Griffen provides three arguments that his claim is not barred by the statute of limitations. First, he urges that the statute should be tolled while pursuing state administrative remedies. Second, he claims that Big Spring's June 9, 1977, decision was a separately actionable event within the two year statute. Third, he contends that the Texas "wrong court" tolling statute, Tex.Rev.Civ.Stat.Ann. art. 5539a (Vernon 1958), applies and tolled the statute during the pendency of the state court proceedings. Griffen also argues that the proceeding of

the State Board should not be given collateral effect because it was not based on adequate procedures and because of the ex parte contacts. We shall treat these arguments in turn.

II. STATUTE OF LIMITATIONS

A. State Law, Exhaustion, and Tolling

Griffen argues that the statute of limitations should have been tolled during the time he was exhausting state administrative remedies. During the pendency of this appeal the Supreme Court clarified this point in Patsy v. Board of Regents, --- U.S. ----, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). Patsy held that state administrative exhaustion is not required to pursue a federal section 1983 action. Patsy specifically mentioned the continuing vitality of Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980), which held that pursuing state remedies does not toll the statute of limitations for section 1983 actions. Patsy, --- U.S. at ---- n. 17, 102 S.Ct. at 2567 n. 17, 73 L.Ed.2d at 186 n. 17. Accordingly, any tolling must be by operation of state law.

B. Accrual of the Cause of Action and the June 9 Board Meeting

Griffen was notified on May 13, 1977 that his contract would not be renewed. On June 9, 1977, the school board provided Griffen with a hearing and declined to take action leading to a renewal of Griffen's contract. Because Griffen's suit was filed June 8, 1979, the June 9, 1977 date is crucial. Below Griffen argued that his cause of action did not accrue until June 9, 1977. This argument is foreclosed by Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), holding that reconsideration of a discriminatory decision does not draw the accrual of a cause of action past the initial date of decision. Griffen does not press this argument on appeal.

Instead, Griffen argues on appeal that the June 9, 1977, decision constitutes an independent actionable event. This allegation was made in Griffen's complaint:

On June 9, 1977, the Board of Trustees of the Big Spring Independent School District voted not to renew Plaintiff's contract to teach in the District. Plaintiff alleges that the School Board, acting in concert with Defendants McKenzie, Smith and Robbins, took this action on account of Plaintiff's race.

Record at 3. Thus, the claim that the June 9, 1977 meeting was an independent actionable event was before the court from the very first.

The trial court handled this allegation by holding that "[t]he board took no action after the hearing of June 9, 1977 but let stand its decision in May." Record at 255. Big Spring here makes the same argument--the board did nothing on June 9, so no cause of action arose on that date. We are not persuaded that a sin of omission cannot be an actionable event.

The board, by its own rules, was obligated to give Griffen a hearing. A hearing necessitates a decision whether to alter the status quo. The fact that the board chose to preserve the status quo does not cause the decision to evaporate into the mists. If the decision to preserve the status quo were nondiscriminatory, such as a review of the principal's recommendation under some kind of plain error standard, Griffen will not prevail. On the other hand, Griffen might well be able to show that the decision to preserve the status quo was itself discriminatorily motivated. Ricks certainly does not preclude this common-sense notion. Cf. Al-Hamdani v. State University, 438 F.Supp. 299 (W.D.N.Y.1977) (improper review of tenure decision may itself give rise to Title VII claim). In short, we hold that Griffen has alleged a cause of action accruing on June 9, 1977, that will withstand the plea of limitations; in light of the rest of our holding, however, this portion is of little practical import.

C. Texas' Wrong Court Tolling Statute

Griffen's broadest argument is that the entire claim is saved from the statute of limitations by Texas' "wrong court" tolling Limitations on dismissal for want of jurisdiction and refiling action in proper court

statute. Tex.Rev.Civ.Stat.Ann. art. 5539a (Vernon 1958) provides:

When an action shall be dismissed in any way, or a judgment therein shall be set aside or annulled in a direct proceeding, because of a want...