Kessler v. Board of Regents, 83-5103

• Decision Date: 11 July 1984
• Docket Number: No. 83-5103,83-5103
• Citation: 738 F.2d 751
• Parties: 18 Ed. Law Rep. 838 Mary KESSLER, Plaintiff-Appellant, v. BOARD OF REGENTS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 751

738 F.2d 751

18 Ed. Law Rep. 838

Mary KESSLER, Plaintiff-Appellant, v. BOARD OF REGENTS, et al., Defendants-Appellees.

No. 83-5103.

United States Court of Appeals Sixth Circuit.

Submitted Jan. 9, 1984.

Decided July 11, 1984.

Mary Kessler, pro se.

William M. Leech, Jr., Atty. Gen. of Tenn., Susan Short-Kelly, Asst. Atty. Gen., Nashville, Tenn., for defendants-appellees.

Before EDWARDS and JONES, Circuit Judges, and PECK, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

Plaintiff-appellant, Mary Kessler, appeals from the district court's dismissal of her civil rights action based on its conclusion that the action was barred by the statute of limitations. We affirm.

I.

On August 30, 1982, Kessler filed suit against the defendants alleging that they violated her rights under the First, Fifth and Fourteenth Amendments of the United States Constitution in violation of 42 U.S.C. Secs. 1983, 1985 and 1986. Kessler's allegations arose out of her employment as a resident physician at East Tennessee State University. Initially, she entered a contract with the University which provided that she would perform the duties of a PGY I resident physician and graduate student assistant in exchange for salary and training. This contract was for the period from February 24, 1979 until February 23, 1980. Kessler completed that contract and entered into a PGY II contract with the University which was to be effective from February 24, 1980 until February 23, 1981.

In May, 1980, however, prior to the completion of Kessler's PGY II contract, defendant John Smith, Associate Department Chairman, allegedly questioned Kessler's eligibility to be in the residency program. Kessler claims that no reasonable procedure was offered to resolve this issue. Kessler further contends that Smith told her that if she wished to remain in the residency program, she would have to help someone who Smith knew was illegally employed by the University. Kessler refused to help and now claims that because of her refusal, Smith and defendant Stanley Weiner, the Department Chairman, harassed her.

Smith and Weiner allegedly harassed Kessler by deleting her PGY I contract from the American Medical Association Physician Registry, falsifying her academic record by removing or failing to include favorable evaluations, and including in her record untrue and unjustified unfavorable comments which she was not given a meaningful opportunity to refute. Furthermore, they allegedly threatened to have her Wyoming medical license revoked.

Kessler attempted unsuccessfully to secure a remedy from the Acting Dean, defendant Sheppard. Due to the futility of her efforts to have her record cleared, Kessler resigned from the University on August 27, 1980, claiming that the University breached its contract. She also requested a hearing. On August 29, 1980, Kessler was terminated by the University in a manner which ignored both her attempted resignation and the University procedures for terminating employees for cause.

Kessler appealed her termination to the President of the University, the Chancellor, and the Board of Regents of the State University and Community College System of Tennessee. Kessler claims, however, that the appeals procedure did not provide her with due process because she was not told the time, place, purpose, or procedural rules of appeal. In addition, she was not afforded an opportunity to discover evidence or provided with a procedure to obtain documents or summon witnesses. Kessler claims that she was not even informed of the reason for her termination until March, 1981, two months after the President of the University upheld her termination.

In May, 1981, the Chancellor upheld Kessler's termination but at the same time he informed her that her record had been amended to show that she had resigned for personal reasons. Despite the amendment to Kessler's records to show that she resigned, defendant Smith sent a letter to a potential employer in June, 1981, stating that Kessler had been terminated. By letter dated June 30, 1981, the Board of Regents also upheld Kessler's termination, stating that it "found no basis to reverse the decision of the Chancellor...."

Kessler filed suit against the University in August, 1981, but that suit was dismissed pursuant to Fed.R.Civ.P. 8(a)(1). In November, 1981, Kessler informed each member of the Board of Regents of the alleged violations of her rights. She was informed in December, 1981, however, that the Board's June, 1981 decision was final.

In February, 1982, as a result of a decision made by the Chancellor, the University President, and the General Counsel to the Board of Regents, Dr. Kessler was offered a hearing limited in scope to one phrase in a letter sent to the Wyoming Board of Medical Examiners by defendant Weiner. Since this matter had been resolved in Wyoming nine months earlier, the proposed hearing was dismissed pursuant to a motion by the University. Kessler continued her attempt to obtain a bona fide due process hearing on relevant matters. She received no response from any member of the Board of Regents.

The present complaint was filed on August 30, 1982. Defendants moved to dismiss for lack of jurisdiction and failure to state a claim for which relief may be granted. Objection to the motion was timely filed. The Report and Recommendation of the Magistrate advised that defendants' motion to dismiss be granted. The district court adopted the Magistrate's recommendation and dismissed the case based upon the applicable statute of limitations.

II.

It is undisputed on this appeal that a one-year statute of limitations applies to civil rights cases arising in Tennessee. T.C.A. Sec. 28-3-104; Wright v. State of Tennessee, 628 F.2d 949, 951 (6th Cir.1980). The issue that is disputed is when Kessler's cause of action actually accrued. When allegations of discrimination involve a termination from employment, the critical date is the date of termination; the existence of a grievance procedure does not change the importance of this date. Delaware State College v. Ricks, 449 U.S. 250, 258, 261, 101 S.Ct. 498, 504, 505, 66 L.Ed.2d 431 (1980). Accordingly, defendants contend that Kessler's cause of action accrued on August 29, 1980, more than two years prior to the filing of the present action.

In Delaware v. Ricks, a faculty member alleged that he had been denied academic tenure because of his national origin. In February, 1973, the Faculty Committee on Promotions and Tenure (the tenure committee) recommended that Ricks not receive a tenured position. The tenure committee, however, agreed to reconsider its decision the following year. Upon reconsideration in February, 1974, the committee adhered to its earlier recommendation. On March 13, 1974, the College Board of Trustees formally voted to deny tenure to Ricks.

Dissatisfied with the decision, Ricks immediately filed a grievance with the Board's Education Policy Committee (the grievance committee), which in May, 1974 held a hearing and took the matter under submission. During the pendency of the grievance, the College administration continued to plan for Ricks' eventual termination. Like many colleges, however, Delaware State had a policy of not immediately discharging a faculty member who was denied tenure. Instead, such a person would be offered a "terminal" contract to teach one additional year. Accordingly, on June 26, 1974 the Trustees informed Ricks that he would be offered a one year "terminal" contract that would expire June 30, 1975. Ricks signed the contract on September 4, 1974. Shortly thereafter, on September 12, 1974, the Board of Trustees notified Ricks that it had denied his grievance. Ricks filed his lawsuit on September 9, 1977. A three-year statute of limitations applied and the issue addressed by the Supreme Court was when Ricks' cause of action accrued.

Ricks claimed that the action accrued on June 30, 1975, when he was actually discharged. The court, however, found that the only discriminatory charge alleged in Rick's complaint was the failure of the college to grant him tenure. The complaint did not allege discriminatory discharge. Accordingly, the Court held that the limitations period commenced to run when the tenure decision was made and Ricks was notified. The Court further held that such decision had been made apparent no later than June 26, 1974.

The E.E.O.C., in an amicus brief, contended that the tenure decision was not made until ...