Morse v. University of Vermont

Decision Date19 August 1992
Docket NumberNo. 1141,D,1141
Citation973 F.2d 122
Parties77 Ed. Law Rep. 34, 3 NDLR P 66 Linda MORSE, Plaintiff-Appellant, v. UNIVERSITY OF VERMONT, Defendant-Appellee. ocket 91-7977.
CourtU.S. Court of Appeals — Second Circuit

John C. Gravel, Burlington, Vt. (Jane Watson, Bauer, Gravel & Watson, of counsel), filed a brief for plaintiff-appellant.

Ritchie E. Berger, Burlington, Vt. (Pietro J. Lynn, Dinse, Erdmann & Clapp, of counsel), filed a brief for defendant-appellee.

Robert Appel, Asst. Atty. Gen., Montpelier, Vt. (Jeffrey L. Amestoy, Atty. Gen. for State of Vt., of counsel), filed a brief on behalf of State of Vt. as amicus curiae.

Before: LUMBARD, NEWMAN, and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

Generally, if a controversy is fully litigated, the right of a matter emerges. Yet, with the passage of time the wrong alleged becomes stale, witnesses die, memories fade so the litigation must be timely commenced or a statute of limitations may bar its continuing. The law offers a potential plaintiff a choice: having her rights determined by trial or sleeping on those rights so long that they are deemed under the law to be permanently at rest.

On March 30, 1990, appellant Linda Morse, a handicapped person, filed a complaint in Vermont Superior Court alleging that the University of Vermont (UVM or university), a recipient of federal funds, refused to accommodate her handicap and failed to grant her a masters degree in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988). The complaint also alleged the university denied her its advantages and privileges on account of her handicap in violation of Vermont Public Accommodation Law, Vt.Stat.Ann. tit. 9, § 4502(c) (1990). Appellant suffers from hypothyroidism, an endocrinological disorder producing symptoms of apathy, difficulty concentrating, and fatigue, that she declares renders her a qualified handicapped person under both statutes. The federal and pendent state law causes of action were removed to the United States District Court for the District of Vermont (Parker, J.) pursuant to 28 U.S.C. §§ 1331, 1441-52 (1988).


Appellant was admitted into UVM's Masters of Education (M.Ed.) in Counseling program for the Spring semester of 1976. Under university policy a Masters degree candidate must complete the required course work within five years. When Morse did not meet this requirement, UVM informed her in a letter dated October 7, 1982 that her Masters degree work was terminated.

In the ensuing two years appellant continued to enroll in courses at the university while seeking reinstatement as a candidate for a Masters degree. During this time UVM discontinued its M.Ed. in Counseling program. After a series of meetings with faculty and administrative personnel, UVM informed her that it would make an exception to its usual policy and accept her as a candidate for its new Masters of Science in Counseling (M.S.) degree, subject to certain restrictions with respect to credit transfers and supervision. On June 6, 1984 Morse was sent a letter setting forth these requirements as "the definitive statement of conditions for readmission."

Receiving no response to this letter over the summer and into the early fall, the university advised her on October 4 that unless she accepted the offer of readmission in writing by October 15, 1984, it would conclude that she declined the offer. On the specified date, Morse responded that she did not "find the terms [of readmission] at all acceptable." The following day--October 16, 1984--UVM acknowledged appellant's rejection and withdrew its offer of readmission.

An appeal from the initial decision in October 1982 to dismiss her as a candidate for a Masters of Education degree and from the conditions for readmission into the new M.S. program extended to her in June 1984 was taken to the Executive Committee of the Graduate College. This appeal was denied, as was her further appeal to the Vice President for Academic Affairs, Dr. Robert Arns.

Dr. Arns subsequently met with Morse in February 1985 and informed her she could seek reconsideration of his decision by submitting a written request. She asked to meet with Dr. Arns with her attorney present, and was advised she should first complete the required written request for reconsideration. Almost three years later, on June 27, 1988, Interim President for Academic Affairs Dr. Gerald Francis received a letter from appellant seeking reconsideration of Dr. Arns' decision. He also received a letter from her attorney demanding a waiver of the time limitation for the completion of the Masters degree program as a "reasonable accommodation" to Morse's alleged handicap. After consulting medical experts, UVM concluded that appellant's hypothyroidism was a treatable medical condition, and that it had reasonably accommodated her by its offer of readmission. Thus, on October 24, 1988, Morse's request for reconsideration was denied.

Appellant instituted the instant litigation on March 30, 1990. On January 31, 1991 UVM moved for summary judgment, alleging Morse's federal and state causes of action were time-barred under Vermont's three-year statute of limitations for personal injury actions, 12 V.S.A. § 512(4). Judge Parker agreed, and further ruled that appellant's actions accrued more than three years prior to the filing of her complaint. Accordingly, he granted summary judgment in favor of UVM on both the federal and pendent state law claims. Morse v. University of Vermont, 776 F.Supp. 844 (D.Vt.1991). From that judgment, Morse appeals.

A. The Rehabilitation Act Claim

In holding that Morse's claim under § 504 of the Rehabilitation Act was governed by Vermont's three-year statute of limitations period for personal injury actions, the district court found her cause of action accrued at the latest on October 16, 1984 when the university withdrew its offer of readmission. Hence, it ruled the instant suit commenced in 1990 was time-barred. Morse challenges this accrual date for her federal claim. She further contends the district court erred in applying Vermont's statute of limitations for personal injury actions rather than its six-year statute of limitations for general civil actions, Vt.Stat.Ann. tit. 12, § 511.

1. Accrual Date

Federal law governs the question of when a federal claim accrues notwithstanding that a state statute of limitations is to be used. See Cullen v. Margiotta, 811 F.2d 698, 725 (2d Cir.), cert. denied, 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 764 (1987). Under federal law, a claim accrues when the plaintiff "knows or has reason to know" of the injury that is the basis of the action. Id.; Keating v. Carey, 706 F.2d 377, 382 (2d Cir.1983); Pauk v. Board of Trustees, 654 F.2d 856, 859 (2d Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982). In analyzing the timing of accrual in the context of discrimination claims, the Supreme Court has instructed that "the proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful." Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29, 70 L.Ed.2d 6 (1981) (emphasis in original) (citing Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980)). Thus, "the timeliness of a discrimination claim is measured from the date the claimant receives notice of the allegedly discriminatory decision." O'Malley v. GTE Serv. Corp., 758 F.2d 818, 820 (2d Cir.1985).

Under these principles, the allegedly discriminatory act for purposes of Morse's claim occurred on October 7, 1982 when UVM informed her that she was terminated as a candidate for a Masters degree. In the alternative, as the district court held, the latest possible discriminatory act took place on October 16, 1984 when the university withdrew its offer of readmission. Considering either of these dates, appellant's action was untimely. Contrary to her assertion, there was no "continuing violation" that would alter this analysis. The fact that UVM allowed appellant to continue to take courses and undertook an internal administrative review of its allegedly discriminatory decision has no effect on when the statute of limitations period begins to run. See Ricks, 449 U.S. at 261, 101 S.Ct. at 505. The district court correctly ruled therefore that appellant's cause of action accrued at the latest on October 16, 1984.

Appellant's equitable tolling argument based on her handicap, not raised in the district court, is one we decline to consider for the first time on appeal. See Yee v. City of Escondido, --- U.S. ----, ----, 112 S.Ct. 1522, 1529, 118 L.Ed.2d 153 (1992); Getty Petroleum Corp. v. Bartco Petroleum Corp., 858 F.2d 103, 107 (2d Cir.1988), cert. denied, 490 U.S. 1006, 109 S.Ct. 1642, 104 L.Ed.2d 158 (1989); Long Island Airports Limousine Serv. Corp. v. Playboy-Elsinore Assocs., 739 F.2d 101, 104 (2d Cir.1984).

2. Three-Year Statute of Limitations for § 504

We turn now to decide what statute of limitations should be applied to appellant's Rehabilitation Act claim. Section 504 of that Act provides in relevant part that "[n]o otherwise qualified individual with handicaps ... shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a) (1988). No limitation of time is set forth in the Act for actions brought pursuant to § 504. Accordingly, we are required in determining the applicable limitations period to select the "most appropriate or analogous state statute of limitations." Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 2620, 96 L.Ed.2d 572 (1987); Wilson v. Garcia, 471 U.S. 261, 266-68, 105 S.Ct. 1938, 1941-42, 85 L.Ed.2d 254 (1985); Board of Regents v. Tomanio, 446 U.S. 478, 488, ...

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