Shields v. Gerhart

• Decision Date: 07 September 1990
• Docket Number: No. 88-148,88-148
• Parties: Carol SHIELDS v. Rolland GERHART, et al.
• Court: Vermont Supreme Court

Page 153

582 A.2d 153

155 Vt. 141

Carol SHIELDS v. Rolland GERHART, et al.

No. 88-148.

Supreme Court of Vermont.

Sept. 7, 1990.

William A. Hunter, Ludlow, for plaintiff-appellee.

Jeffrey L. Amestoy, Atty. Gen., and Ron Shems, Asst. Atty. Gen., Montpelier, for defendants-appellants.

Before ALLEN, C.J., and PECK, GIBSON and DOOLEY, JJ.

DOOLEY, Justice.

This is a civil rights action in which the plaintiff, Carol Shields, alleges that defendants, the Vermont Department of Social and Rehabilitation Services (SRS) and three employees of the department, revoked her license to run a day care center in retaliation for her activities in opposing an SRS policy against the use of corporal punishment in licensed day care facilities. This interlocutory appeal is brought from the opinion and order of the trial court denying defendants' motion to dismiss. We affirm.

Plaintiff was licensed to run a day care facility in her home in 1978 in accordance with 33 V.S.A. §§ 2752(2), 2852(a). Between 1978 and September, 1981 when she applied for a new license because she was moving her home and the facility, plaintiff and SRS disagreed over plaintiff's use of physical discipline on children in her day care facility. In November of 1981, plaintiff was notified orally that a new license would not be granted unless she ceased using corporal punishment. At that time, SRS had in effect regulation 124.40, which prohibited "cruel, severe, unusual or unnecessary punishment" of children in licensed day care facilities. SRS interpreted the legislation to prohibit corporal punishment. Plaintiff was a vociferous opponent of this SRS interpretation. She argued against it in the press and before the Legislature.

In January of 1982, plaintiff formally applied for a new license for the relocated facility and was denied in March. Despite the denial, she operated a day care center without a license until she received notice of a violation of SRS licensing requirements. She again applied for a license and was denied. This time she appealed and was allowed to operate pending the appeal. She prevailed on appeal and was licensed through June, 1984.

In April, 1984, plaintiff applied for a renewal of her license, and she was visited by Durwood Collier and Frederick Satink, SRS employees and defendants in this action. During this visit, defendants noticed effluent rising to the surface in plaintiff's yard, near where the children played. Plaintiff told the inspectors of a problem with her septic system and that arrangements had been made to correct the problem as soon as the ground was dry enough. Plaintiff's correction plan had been approved by the local health official.

At this point, the parties' factual versions differ substantially, and the presence of differing facts before the court is itself a matter of dispute between the parties. Although we are reviewing a motion to dismiss, defendants attached to the motion extensive factual material. Plaintiff responded to the motion, arguing in part that the factual material could not be considered. The court below denied summary judgment without giving plaintiff an opportunity to respond to the factual material. ¹ Although the court described the motion as one for summary judgment, it did not attempt to resolve the various factual disputes. In view of this confused record, we have taken the facts from plaintiff's complaint. This version is denied by defendants. We have also reviewed the deposition and affidavits submitted by defendants and do not believe that consideration of this material would affect the outcome of the narrow issues before this Court.

At the inspection, the two SRS inspectors indicated that plaintiff's license could be revoked because of the septic system failure, but that the septic system problem would not be an impediment to plaintiff running a registered family day care home. Thereafter, plaintiff applied to be a registered day care home and did not disclose the septic system problem on the application. Defendant Satink again visited plaintiff on May 18, 1984. He stated that plaintiff would never be registered or licensed because she had failed to disclose the septic system failure on the application; that she could not receive a hearing on this denial, or, if she did, she could not operate pending the hearing; and, that if she continued to pursue her application, she would be required to put in a mound system at a cost of $7,000 to $10,000. He asked to enter plaintiff's home, and she refused.

As a result of defendant Satink's visit, plaintiff mailed a letter to SRS relinquishing her facility license as of May 25, 1984. The letter was mailed on May 21 or 22, 1984, and received on May 24, 1984. On May 22, 1984, defendant Rolland Gerhart, Director of the Division of Licensing and Regulation of SRS, mailed to plaintiff a notice that her license was revoked as of June 24, 1984, and her application to be registered was denied. The decision was based on four grounds, including the septic system failure and plaintiff's refusal to admit defendant Satink into her home on May 18th.

Plaintiff sued on May 19, 1987, and commenced the action by serving the Deputy Attorney General pursuant to V.R.C.P. 4(d)(2). Service was accepted with a notation that acceptance was for defendants in their official capacity only. The complaint alleged that defendants had violated plaintiff's rights under the United States Constitution ² and sought relief under the Civil Rights Act, 42 U.S.C. § 1983 (1982), for damages caused by these violations. The complaint further alleged that defendants had violated her rights under the Vermont Constitution ³ and sought damages for these violations. In essence, plaintiff's position is that defendants revoked her day care facility license in retaliation for her opposition to the corporal punishment policy and that they used fraud and deception to induce her to abandon her license and forego her appeal rights.

Defendants answered the complaint and filed their motion to dismiss on three grounds: (1) plaintiff's Civil Rights Act claims are time-barred because they were not brought within the three year period allowed by 12 V.S.A. § 512(4); (2) her claims under the Vermont Constitution are time-barred for the same reason; and (3) defendants are immune from liability in this suit. Defendants attached to the motion the deposition of plaintiff, along with various exhibits, and a number of affidavits. Plaintiff responded, in part, by seeking to amend the complaint to name defendants "in their individual capacities." The trial court granted the motion to amend ⁴ and denied the motion to dismiss, treating it as a motion for summary judgment. Defendants raise here the same grounds for dismissal that they urged in the trial court, adding that the trial court misallocated the burden of proof on the immunity question. ⁵

The first issue deals with the statute of limitations for the Civil Rights Act claims. Defendants allege that the causes of action accrued on May 18, 1984, or earlier, and since the applicable limitation period is three years and plaintiff filed the complaint on May 19, 1987, the action must be dismissed. The trial court agreed that the applicable limitation period is three years but held that the cause of action did not accrue until June 24, 1984, when plaintiff was required to close her day care center.

In Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 1947, 85 L.Ed.2d 254 (1985), the Supreme Court held that the state statute of limitations for personal injury tort actions applied to civil rights actions under 42 U.S.C. § 1983. In Vermont, that limitation period is three years. See 12 V.S.A. § 512(4). Although the applicable limitation period is a matter of state law, the question of when a cause of action accrues for purposes of applying the limitation period is one of federal law. See 2 J. Cook & J. Sobieski, Civil Rights Actions p 4.02, at 4-22.14 (1989). The federal rule is that a cause of action accrues when the plaintiff knew or should have known of the injury that serves as the basis for the action. See, e.g., Keating v. Carey, 706 F.2d 377, 382 (2d Cir.1983).

We agree with defendants that the trial court's selection of the date on which plaintiff's license expired, as the date for accrual of plaintiff's action, is not consistent with the federal accrual rule. In Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), the Supreme Court examined when a cause of action accrued under Title VII of the Civil Rights Act of 1964 for purposes of the requirement that an aggrieved person notify the EEOC of his or her claim within 180 days of its accrual. The plaintiff alleged that he had been denied tenure as a college professor because of his race. The plaintiff was notified of the official tenure decision in June of 1984, although the decision in response to plaintiff's administrative appeal did not occur until September, 1984 and plaintiff received a terminal contract allowing him to work until June of 1985. The Court held that the cause of action accrued when the tenure decision was made and communicated to plaintiff and not when the appeal was decided or when plaintiff's employment ended. As to the claim that accrual occurred on the termination of employment, the Court quoted a federal court of appeals decision to the effect that the action accrued when the discrimination occurred and not when its effect became most painful. Id. at 258, 101 S.Ct. at 504 (quoting Abramson v. University of Hawaii, 594 F.2d 202, 209 (9th Cir.1979)).

Ricks was followed in Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981) (per curiam), another § 1983 case involving a claim for employment discrimination. Again the Court held that the action accrued when the plaintiffs were officially notified of dismissal and not when the employment terminated. Id. at 8, 102 S.Ct. at 29.

The time when plaintiff's license expired is...