Opinion
Civil Action No. 01-44-JBC.
April 25, 2002
MEMORANDUM OPINION ORDER
This matter is before the court upon the defendants' motion for judgment on the pleadings (No. 18). The court, having reviewed the record and being otherwise sufficiently advised, will grant the defendants' motion in part and deny it in part and will remand the plaintiff's state law claims to Jefferson Circuit Court.
Factual Summary
On July 1, 1987 the plaintiff was hired as a clinical instructor with the Department of Prosthodontics at the University of Louisville School of Dentistry (the "University"). On October 1, 1992, he became an assistant professor. In 1998, he submitted an application for tenure to the University. On September 24, 1998, the University's Faculty Review Committee unanimously recommended that he be awarded a tenured position. Sometime before September 7, 1999, however, the University's Board of Trustees denied his tenure application and advised him that his employment with the University would terminate as of March 31, 2000.
After receiving notice that the Board of Trustees had denied his tenure application, the plaintiff appealed the Board's decision to the Faculty Grievance Committee, which heard the matter on September 7, 1999 and recommended that the Board reconsider its decision and award tenure to the plaintiff. Nevertheless, the Board refused to reconsider its decision and the plaintiff's employment terminated on March 31, 2000.
The plaintiff filed this action on December 21, 2000. In his second amended complaint, he alleges that the defendants have violated his Freedom of Association and Equal Protection rights and have breached and tortiously interfered with his University contract. With respect to his federal claims, he contends specifically that the defendants violated his First Amendment rights by denying him tenure because of his association with certain, unspecified University officials. He also claims that the defendants violated the Fourteenth Amendment by granting tenure to a similarly situated female professor.
The court dismissed the claims in his first amended complaint on November 5, 2001.
Analysis
The plaintiff's federal claims, raised pursuant to 42 U.S.C. § 1983, are untimely. The statute of limitations applicable to such claims is one year from the date the cause of action accrued. See Collard v. Kentucky Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990). Where, as here, the plaintiff claims that his tenure application was denied for discriminatory reasons, his cause of action accrues when the employer makes and communicates a final decision that he will not be granted tenure. See Delaware State College v. Ricks, 449 U.S. 250, 259 (1980); EEOC v. UPS, 249 F.3d 557, 561 (6th Cir. 2001). The plaintiff's complaint reveals that he was notified that the Board of Trustees had denied his application for tenure sometime before September 7, 1999. He did not, however, file this action within one year from that date. Therefore, his federal claims must be dismissed.
The plaintiff's citation to Bd. of Trustees v. Hayse, 782 S.W.2d 609 (Ky. 1989) is unpersuasive, as that case is not binding on this court. See, e.g., Kuhnle Brothers, Inc. v. County of Geauga, 103 F.3d 516, 520 (6th Cir. 1997). Moreover, Hayse is distinguishable because the plaintiff there filed his complaint within a year of receiving notice of the University's final decision not to grant tenure. See id. at 613. The plaintiff's argument that the University did not make a final decision here until it refused to reconsider its decision denying him tenure is also unavailing. The portions of the University handbook submitted by the plaintiff do not show that the Board's initial decision denying tenure was not a "final" decision. The mere fact that the University has an internal grievance process by which the Board may be urged to reconsider its decisions does not mean that the Board's initial decisions lack finality. "[E]ntertaining a grievance complaining of the tenure decision does not suggest that the earlier decision was in any respect tentative. The grievance procedure, by its nature, is a remedy for a prior decision, not an opportunity to influence that decision before it is made." Ricks, 449 U.S. at 261. Ricks applies to § 1983 claims. See, e.g., Kessler v. Bd. of Regents, 738 F.2d 751, 754 (6th Cir. 1984).
Finally, the plaintiff was not required to exhaust the University's administrative remedies prior to bringing his § 1983 claims, see Porter v. Nussle, 122 S.Ct. 983, 987 (2002); Patsy v. Bd. of Regents, 457 U.S. 496, 516 (1982), and the statute of limitations was not tolled during the time he pursued those remedies. See Ricks, 449 U.S. at 261.
As the court will dismiss the plaintiff's federal claims, the court will remand the plaintiff's two remaining state law claims to Jefferson Circuit Court pursuant to 28 U.S.C. § 1367(c)(3). See Long v. Bando Mfg. of America, Inc., 201 F.3d 754, 761 (6th Cir. 2000). Accordingly,
IT IS ORDERED that the defendants' motion for judgment on the pleadings is GRANTED IN PART and DENIED IN PART. Insofar as it seeks judgment on the plaintiff's federal claims, it is granted; in all other respects, it is denied.
IT IS FURTHER ORDERED that the plaintiff's state law claims are REMANDED to Jefferson Circuit Court and the pretrial conference scheduled in Louisville on May 21, 2002 and the trial of this action are CANCELLED.
ORDER
Although the plaintiff has attempted to assert her federal claims directly under the Fourteenth Amendment, 42 U.S.C. § 1983 provides the exclusive remedy for constitutional violations by state officials. Schul v. Sherard, 102 F. Supp.2d 877, 83-884, n. 6 (S.D. Ohio 2000). Thus, the court construes the plaintiff's complaint as alleging her due process claims under § 1983. Id.
The crux of the plaintiff's complaint is that the defendants have violated his due process rights by not following the criteria set forth in the University's handbook i.e., the "Red Book" for making tenure decisions. The plaintiff's claims are without merit, and under no set of facts as currently alleged by the plaintiff could the plaintiff establish that he is entitled to relief. Therefore, the defendant's motion or judgment on the pleadings will be granted and fthe plaintiff's action will be dismissed with prejudice.
Section 4.1.5(f) of the University handbook sets forth the provisions that are the focus of the present controversy. The pertinent provisions of section 4.1.5(f) provide that: "Criteria for tenure shall be established in, but not limited to, the following areas:
teaching and the scholarship of teaching, the scholarship of discovery, the scholarship of integration, the scholarship of application, service to the profession, the unit, the University and the community, collaboration with colleagues and students, and adherence to professional standards." The plaintiff's complaint is that the defendants violated this provision by considering criteria or actors not explicitly enumerated, such as the quality for his scholarly publications and his lack of board certificatioan, in deciding to deny him tenure. In light of the act that section 4.1.5(f) implicitly provides that factors other than those expressly listed may be considered since it provides, "Criteria . . . shall be established in, but not limited to" the listed areas (emphasis added), the plaintiff makes a dubitable actual assertion that the defendants have even violated section 4.1f.5(f). However, since this case is decided on motion for judgment on the pleadings, the court will assume that the plaintiff is correct in arguing that the defendants did indeed violate the terms of the handbook when they made the decision to deny him tenure.
The plaintiff's amended complaint, which the instant motion does not address, states causes of action for breach of contract, tortious interference with contractual relations, and violations of his Equal Protection and Freedom of association rights.
Legal Analysis
Claim under 42 U.S.C. § 1983
The plaintiff brings this action, in part, under 42 U.S.C. § 1983 alleging that the defendants have violated his due process rights under the Fourteenth Amendment by not following the criteria set forth in the University handbook for making tenure decisions. The plaintiff's complaint includes a prayer for compensatory and punitive damages against each of the defendants. Insofar as the plaintiff's complaint seeks money damages against the University and its officers acting in their official capacity, it is barred by the Eleventh Amendment. Hutsell v. Sayre, 5 F.3d 996, 1002 (6th Cir. 1993). Congress did not abrogate state sovereign immunity under the Eleventh Amendment for suits brought under 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332, 241 (1979); Cowan v. University of Louisville School of Medicine, 900 F.2d 936, 940-42 (6th Cir. 1990). The plaintiff's argument that the defendants' choice to remove this action to federal court constituted a waiver of the states' Eleventh Amendment immunity is specious. The plaintiff cannot, as a matter of law, recover money damages from the University, or against the Board of Trustee members or Kaplan, Garrison, or Shumaker acting in official capacity.
The plaintiff erroneously cites Gwinn Area Community Schools v. Michigan, 741 F.2d 840 (6th Cir. 1984) as holding that the "state's removal of [an] action from state court amounted to a consent to the [federal] court's jurisdiction and thereby a waiver of Eleventh Amendment sovereign immunity protection." To the contrary, the court in Gwinn noted that the "actions of attorneys representing the state defendants in this case in joining the removal petition cannot be treated as" a waiver of Eleventh Amendment protections. Id. at 847. The plaintiff's only other authority for the notion that a state defendant's removal of a state court action to federal court waives the states' Eleventh Amendment protection is from a lone concurring opinion from Justice Kennedy in Wisconsin Dept. of Corrections v. Schact, 524 U.S. 381, 393 (1998). The majority opinion in Schact, however, defeats conclusively any notion that a state's removal to federal court operates to waive the state's Eleventh Amendment immunity, since the state defendants in that case did remove the action to federal court and still were permitted to raise the Eleventh Amendment as a bar to the plaintiff's § 1983 due process claim.
The plaintiff's complaint states a cause of action against the Board members only in their official capacity.
To the extent the plaintiff's complaint seeks injunctive relief under 42 U.S.C. § 1983 against the University or the Board of Trustees, or seeks money damages against Kaplan, Garrison, and/or Shumaker in their individual capacities, the complaint must be dismissed because the facts alleged by the plaintiff do not constitute a violation of his due process rights under the Fourteenth Amendment. A non-tenured professor has no property right in the grant of tenure absent a state law or express contract that guarantees continued employment. Board of Regents v. Roth, 408 U.S. 564, 577 (1972); Perry v. Sindermann, 408 U.S. 593, 601 (1972); Farmer v. Lane, 864 F.2d 473, 480 (7th Cir. 1988). The plaintiff does not allege that he and the defendants reached any mutually explicit understandings that he would be given tenure or continued employment with the University. Furthermore, Kentucky law does not give a non-tenured professor a cognizable property right in continued employment. Ashley v. University of Louisville, 723 S.W.2d 866, 867 (Ky.App. 1987). Thus, the plaintiff has no due process rights under the Fourteenth Amendment to be awarded tenure.
Furthermore, the criteria set forth in the University handbook for making tenure decisions did not create a property right under the Fourteenth Amendment. Colburn v. Trustees of Indiana University, 973 F.2d 581, 589 (7th Cir. 1992); Lovelace v. Southeastern Massachusetts University, 793 F.2d 419, 422 (1st Cir. 1986); Bunger v. University of Oklahoma Bd. of Regents, 95 F.3d 987, 990-991 (10th Cir. 1996). As the Seventh Circuit has held: "A property interest is not established by general statements in handbooks . . . that an employee will be judged based on some `criteria.'" Colburn, 973 F.2d at 589. Here, as in Colburn, the criteria set forth in the handbook do not guarantee that the plaintiff could be denied tenure only under specific conditions and do not otherwise limit the employer's discretion. Hence, the plaintiff had no assurance that the University would consider only the criteria expressly set forth in the Red Book and, thus, the plaintiff cannot show that his due process rights were violated by the defendants' alleged conduct.
Thus, it is unnecessary to consider the qualified immunity defenses of the individual defendants or the argument that the plaintiff's action is untimely.
Claim under § 2 of the Kentucky Constitution
The plaintiff's claim under § 2 of the Kentucky Constitution is substantively identical to his § 1983 claim under the Fourteenth Amendment. Accordingly, it must be dismissed since the plaintiff has no claim under state law that the defendants' actions violated his due process rights. Ashley v. University of Louisville, 723 S.W.2d 866, 868 (Ky.App. 1987). The plaintiff's argument that this court lacks jurisdiction to hear his state law claims once it determines that the Eleventh Amendment applies to bar his § 1983 action is without merit. See Wisconsin Dept. of Corrections, v. Schact, 524 U.S. 381, 392-393 (1998).Claim under 42 U.S.C. § 1985(3)
The plaintiff's complaint fails to state a cause of action under 42 U.S.C. § 1985(3). Although the plaintiff properly alleges that the defendants conspired to violate his due process rights, he fails to include the required allegation that the conspiracy involved some "class-based discriminatory animus" directed at him. Newell v. Brown, 981 F.2d 880, 886 (6th Cir. 1994). Consequently, the plaintiff cannot possibly recover for violations of 42 U.S.C. § 1985(3) under the facts he has alleged. Accordingly,
IT IS ORDERED that the defendants' motion for judgment on the pleadings (No. 4) is GRANTED.