Hines v. Board of Ed. of Covington, Ky.

• Decision Date: 03 July 1980
• Docket Number: Civ. A. No. 77-157.
• Parties: Gayle J. HINES, Plaintiff, v. BOARD OF EDUCATION OF COVINGTON, KENTUCKY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

492 F. Supp. 469

Gayle J. HINES, Plaintiff, v. BOARD OF EDUCATION OF COVINGTON, KENTUCKY, et al., Defendants.

Civ. A. No. 77-157.

United States District Court, E. D. Kentucky, Covington Division.

July 3, 1980.

Bernard J. Blau, Newport, Ky., for plaintiff.

Richard Nelson, Louis DeFalaise, Covington, Ky., for defendants.

BERTELSMAN, District Judge.

FACTS

This is a federal civil rights action by a non-tenured teacher who claims her contract was not renewed under circumstances which entitled her to a due process hearing.¹

The plaintiff Gayle Hines is a resident of the State of Ohio and was employed by the Covington School System as an untenured teacher during the school year 1973-74. The defendant Board of Education of Covington, Kentucky is authorized pursuant to KRS 160.290 to control and manage the public school system in Covington, Kentucky. The defendant Bert Bennett served as superintendent of the Covington School System at the time the plaintiff's contract was not renewed. The defendant Gary Blade served as superintendent of the Covington School System at a time the plaintiff requested a hearing on the non-renewal of her contract. The remaining defendants were members of the Covington School Board either at the date of the contract non-renewal or the request for a hearing.

In March of 1974, after accusations of sexual misconduct and illegal drug use were made against the plaintiff, the defendant Superintendent Bert Bennett requested the plaintiff's resignation. The request was refused by the plaintiff. The charges against plaintiff became public, during these events. In May of 1974, at a meeting of the defendant School Board, the Board voted not to renew the plaintiff's contract. Plaintiff alleges that the charges, which she claims were false, were, at least in the public eye, the reason for the unfavorable personnel decision. Plaintiff contends that the Superintendent and Board were responsible for the publicity. The defendants deny responsibility. See Board of Regents v. Roth,² and Owen v. City of Independence.³ Thereafter, the plaintiff twice requested hearings before the Board and was refused.

Three-and-a-half years later, on December 6, 1977, the plaintiff filed suit in this court seeking relief under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343(3) alleging deprivation of rights granted through the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The gravamen of the complaint is that plaintiff was wrongfully denied a hearing to clear her name, and therefore is entitled to reinstatement until such hearing is held, as well as to compensatory and punitive damages. Defendants duly raised the defense that the action is barred by the statute of limitations.

BACKGROUND

Since the Federal Civil Rights Acts fail to provide a statute of limitations for actions brought pursuant to them, it has been held that the federal courts should apply the state statute of limitations which is most analogous to the civil rights action.⁴

The principle that the statute of limitations to be applied is the most analogous state statute is easy of statement, but frequently difficult of application, as the instant case demonstrates. Defendants here make a forceful argument that the statute of limitations to be applied is the Kentucky one-year statute for actions sounding in libel and slander.⁵

On the other hand, the plaintiff argues with equal vigor that, since the plaintiff's claim involves an employment situation, the most analogous statute is the five-year statute for actions based on a contract not in writing.⁶ The plaintiff makes an alternative argument that the provisions of KRS 413.120(2) setting five years as the limitations period for "an action upon a liability created by a statute" should be applicable.

Scholarly comment on the statute of limitations problem in civil rights actions has been uniformly critical of the failure of the Supreme Court of the United States to prescribe any definitive standards for making the analogy to the state statute of limitations. This failure has led to widespread confusion, uncertainty, and a lack of uniformity in the lower courts. As the scholars point out, this unfortunate situation has involved a waste of judicial time, but even more importantly, has proved highly prejudicial to the litigants involved, both plaintiffs and defendants.⁷

If this court were writing on a clean slate in this matter, it would be inclined to view the need for certainty and uniformity as an overwhelming consideration and, following the suggestions of the commentators, adopt a single state statutory analogue for all federal civil rights actions. A suitable candidate would be the state limitations statute for an action upon a liability created by statute.⁸ This is the solution adopted by the Ninth Circuit Court of Appeals.⁹

SIXTH CIRCUIT CASES

Whatever may be said for such an approach to the problem, however, it would be clearly contrary to the decisions of the Sixth Circuit Court of Appeals on the subject, and this court is not free to adopt it. The Sixth Circuit Court has used the state statute of limitations for a cause of action based on statute in at least two cases,¹⁰ but these involved claims of alleged discrimination based on sex or race, which was a type of action unknown to the common law.

In other cases, the Sixth Circuit Court has applied other state statutes of limitations, applicable to types of claims which it has believed to be more similar to the particular federal civil rights action. Thus, in Austin v. Brammer,¹¹ the court applied the Ohio statute of limitations which applied to actions for false arrest and false imprisonment, where the federal complaint alleged a false conviction due to the perjured testimony of police officers. And in Carmicle v. Weddle,¹² the court applied the Kentucky one-year statute for malicious prosecution to a case based on an alleged conspiracy to deprive plaintiff of his civil rights by causing unfounded criminal prosecutions to be instituted in a state court. Therefore, the Sixth Circuit decisions dictate that this court may not adopt across the board, in federal civil rights cases, the Kentucky five-year limitations period for a liability based on statute, as it would otherwise be inclined to do. Rather, a more detailed analysis must be made in each case to determine if some other state cause of action is more analogous to the federal cause of action.

FACTORS TO BE CONSIDERED

Trial courts have been provided with little guidance in the methods to be used in making the required analysis. This court believes and holds that in implementing the Sixth Circuit approach the two primary factors to be considered in attempting to analogize a federal civil rights claim to a state claim for the purpose of selecting an appropriate statute of limitations are the interest of plaintiff sought to be protected, and the operative facts comprising the claim. Giving primary emphasis to these two factors will give as much certainty and predictability as possible in the face of existing case law, while yet affording due deference to the state policies involved.¹³

INTEREST PROTECTED

In support of her argument that the five-year limitations period for actions based on contracts not in writing should be applied, plaintiff cites the decisions of the Supreme Court of the United States, which collectively establish the principle that a civil rights suit for deprivation of due process in failure to renew a non-tenured teacher's contract, must be based on a legitimate expectancy of reemployment.¹⁴ Therefore, she contends, the interest she seeks to protect is contractual.

On the other hand, defendants argue that, although the existence of the employment relation and the legitimate expectation of reemployment is a condition precedent to the bringing of an action of this kind, a close analysis of the cases demonstrates that the interest being protected is the right to vindicate one's reputation. This argument is supported by the fact that, if the charges are not made public and the plaintiff's good name is not impugned, there is no right to bring the federal civil rights action, even though the legitimate expectancy of reemployment may be present.¹⁵ The rationale of the court in Owen v. City of Independence,¹⁶ makes this especially clear.

"In determining whether a government employer has deprived its employee of a liberty interest in the termination of employment, the crucial issue is whether the government employer, in connection with the termination of government employment, including a refusal to rehire or reemploy, makes a charge which might seriously damage the employee's standing and reputation in the community."

In support of this statement, the court quoted the Supreme Court of the United States in Codd v. Velger,¹⁷ as follows:

"Assuming all of the other elements necessary to make out a claim of stigmatization under Roth and Bishop, the remedy mandated by the Due Process Clause of the Fourteenth Amendment is `an opportunity to refute the charge.' 408 U.S., at 573, 92 S.Ct. at 2707. `The purpose of such notice and hearing is to provide the person an opportunity to clear his name,' id., n.12. But if the hearing mandated by the Due Process Clause is to serve any useful purpose, there must be some factual dispute between an employer and a discharged employee which has some significant bearing on the employee's reputation.

* * * * * *

"Only if the employer creates and disseminates a false and defamatory impression about the employee in connection with his termination is such a hearing required." (emphasis added).

A further repudiation of the plaintiff's argument that this action should be considered analogous to a state action for breach of an implied contract is found in that the state law is clear that a non-tenured teacher has no contractual right to reemployment, express or implied. Indeed, if the failure to renew the contract or grant...