Opinion
Civ. No. AMD 99-1593.
October 14, 1999.
MEMORANDUM
Plaintiff, Earl Hart, has filed an eight count employment discrimination complaint against his employer, the Board of Education of St. Mary's County, Maryland. He alleges claims for age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq., race and sex discrimination in violation of the Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., disability discrimination under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., and companion equal protection claims under the Fourteenth Amendment as to all of the above theories pursuant to 42 U.S.C. § 1983. Pending before the court is the defendant's motion to dismiss or, in the alternative, for summary judgment. No hearing is necessary. Local Rule 105.6 (D. Md. 1999). The motion will be granted.
(i)
The parties have included material outside the pleadings in their submissions and so I shall treat the alternative motion as a motion for summary judgment. The dispositive issues presented — and the only ones I find it necessary to address — concern limitations: (1) whether Hart failed to exhaust his administrative remedies under the above-mentioned anti-discrimination statutes in a timely fashion, and (2) whether, as to the claims asserted pursuant to 42 U.S.C. § 1983, those claims are time-barred by his failure to satisfy the indisputably applicable three year statute of limitations. The answer plainly is "yes."
The material facts on the question of limitations are not disputed. As of June 1994, Hart had been employed by the Board for several years as an assistant principal at Leonardtown High School. On June 15, 1994, the Board (acting through the Superintendent of Schools) removed Hart from this position. (He insists it was a demotion; defendant seems to insist that it was a "reassignment.") Hart then resumed his earlier role as a classroom teacher of civics.
Thereafter, from July 1994 through August 1998, with the assistance of counsel at all stages, Hart pursued appeals through the state administrative and judicial machinery in an effort to overturn his loss of the assistant principalship. Significantly, however, he did not file a charge of discrimination with the Equal Employment Opportunity Commission until July 14, 1998, more than four years after his "demotion." Furthermore, he did not file his complaint in this court until June 4, 1999, just shy of five years to the day from the effective date of the Superintendent's final decision returning Hart to the classroom.
(ii)
Hart did not file his charge for more than four years after his "demotion" and the Board has invoked a limitations defense. Prior to bringing a civil action, a person alleging a claim under the anti-discrimination statutes relied on here must first file a timely administrative charge. Under Title VII, for example, a "complainant must file a discrimination charge with the EEOC within 180 days of the occurrence of the alleged unlawful employment practice or . . . if a complainant initially institutes proceedings with a state or local agency having authority to grant or seek relief from the practice charged, the time limit for filing with the EEOC is extended to 300 days." EEOC v. Commercial Office Prod. Co., 108 S.Ct. 1666, 1668 (1998).
Maryland is a "deferral state;" thus, a work-sharing agreement between the Maryland Commission on Human Relations and the EEOC gives "primary responsibility to the EEOC to process all charges filed between 180 and 300 days of the alleged discrimination." EEOC v. Techalloy, 894 F.2d 676, 678 (4th Cir. 1990). Hence, a charge is deemed timely in Maryland if it is lodged with the EEOC within 300 days after the alleged unlawful practice. See id. at 679 (holding that a complaint filed with the EEOC no later than the 299th day after the alleged unlawful practice was timely) . This 300 day period, however, is not absolute, i.e., it is not jurisdictional. The availability of a limitations defense is subject to waiver, estoppel and equitable tolling. See Zipes v. Trans World Airways, 455 U.S. 385, 393 (1982). None of these escape hatches is available to Hart.
(a) waiver
Waiver is appropriate in very limited circumstances, such as where the parties have agreed to extend the period of time in which the plaintiff may file his claim or the defendant has delayed in alleging a timeliness defense. See, e.g., Girard v. Rubin, 62 F.3d 1244, 1247 (9th Cir. 1995) (failure to contest EEOC's determination of timeliness at administrative level constituted waiver); Shea v. Tisch, 870 F.2d 786, 788 (1st Cir. 1989) (per curiam) (same); Jackson v. Seaboard Coastline R.R., 678 F.2d 992 (11th Cir. 1982) (defense not raised until defendant's motion to vacate judgment); Leake v. University of Cincinnati, 605 F.2d 255 (6th Cir. 1979) (employer gave employee express assurances that its investigation into the employee's claims would stall the beginning of the limitations period). No such circumstances are alleged here.
(b) estoppel
Estoppel may be raised where the defendant affirmatively misled a claimant, or culpably prevented the plaintiff from filing an administrative charge in a timely fashion. Nealon v. Stone, 958 F.2d 584, 589 (4th Cir. 1992) (quoting Zografov v. V.A. Medical Center, 779 F.2d 967, 969 (4th Cir. 1985)); Price v. Litton Bus. Sys., Inc., 694 F.2d 963, 965 (4th Cir. 1982); see, e.g., Dillman v. Combustion Eng'g., Inc., 784 F.2d 57 (2d Cir. 1986) (employer's actions not meant to delay plaintiff's filing). There is no evidence here to suggest that the Board did anything to lull Hart into a false sense of security or to prevent him from filing a timely charge, or that it took any steps reasonably likely to have that effect.
(c) "continuing violation"
Similarly, Hart's suggestion that his self-described "demotion" on June 15, 1994, constitutes a continuing violation which should toll limitations, is without merit. The Supreme Court explained in United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), "that the mere continuing effect on a plaintiff of past discrimination was not sufficient to support a continuing violation," Lex K. Larson, 5 Employment Discrimination § 72.08[2] (2 ed. 1995).
In Evans, the plaintiff was fired in 1968, allegedly in violation of Title VII. Although she was rehired in 1972, she was given no seniority credit for her prior service. Thus, she alleged that United Air Lines' seniority system acted as a continuing violation as to its effect on her in terms of compensation. In response to this argument, the Court held:
United's seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists.Evans, 431 U.S. at 558. Without the existence of a "present violation," the Court explained, a discriminatory act which was not the basis of a timely charge "is merely an unfortunate event in history which has no legal consequences." Id. As there was no "present violation," the Court held that plaintiff was not entitled to relief on the basis of her prior dismissal.
Several years later, the Court again addressed the issue of continuing violations in Delaware State College v. Ricks, 449 U.S. 250 (1980). Ricks had been a teacher at Delaware State College since 1970. In February 1973 and again in February 1974, the tenure committee recommended that Ricks not receive tenure. The committee's recommendation was seconded by the Faculty Senate and, in March 1974, the Board of Trustees formally voted to deny Ricks tenure. Ricks was notified by the Board of its decision, and in June 1974 it offered him a "terminal" one-year contract to teach until June 30, 1975. Ricks filed a complaint with the Equal Employment Opportunity Commission in April 1975 alleging discrimination based on race. The Court of Appeals for the Third Circuit held that Ricks's Title VII claims were timely. The court explained that because of the possible stress an earlier filing might have created on the then-existing employment relationship, the limitations period did not begin to run until Ricks' contract expired in June 1975.
The Supreme Court disagreed. It held that the statute of limitations began to run when Ricks was notified of the adverse tenure decision and that his last date of employment would be June 30, 1975. 449 U.S. at 258-61. The Court explained: "That is so even though one of the effects of the denial of tenure — eventual loss of a teaching position — did not occur until later." Id. at 258. Moreover, the Court stated, neither Ricks's request for reconsideration of the tenure decision, nor the Board's suggestion that it might be willing to change its decision if Ricks's administrative grievance complaint was found to be meritorious, extended the limitations period. Id. at 261 n. 15. The Board's suggestion that it might reconsider its decision, according to the Court, "[did] not suggest that the earlier decision was in any respect tentative." Id. See also Dachman v. Shalala, 46 F. Supp.2d 419, 435 (D.Md. 1999) (discussing "continuing violation" doctrine).
In light of Evans and Ricks, I conclude as a matter of law that Hart has failed to allege a "present violation." A demotion is a discrete, identifiable act. Indeed, in this case, it gave rise to a prolonged series of administrative and judicial appeals. There is no warrant here to treat Hart's demotion as a continuing violation.
(iii)
Hart's constitutional claims are likewise time-barred; indeed, he makes no independent argument as to the constitutional claims. It is well-settled that in Maryland, claims under § 1983 generally must be instituted within three years of their accrual. Wilson v. Garcia, 471 U.S. 261, 278 (1985), clarified, Owens v. Okure, 488 U.S. 235 (1989); Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180, 187 (4th Cir. 1999); Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 955 (4th Cir. 1995) (en banc); Duke Street Ltd. Partnership v. Board of County Com'rs of Calvert County, 112 Md. App. 37, 684 A.2d 40, cert. denied, 344 Md. 566, 688 A.2d 445 (1997). There is no doubt whatsoever that Hart's equal protection claims accrued no later than July 15, 1994, upon the Superintendent's denial of his request that he be returned to the assistant principalship.
(iv)
For the reasons set forth above, the Board's motion for summary judgment shall be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). An order follows.
ORDER
In accordance with the foregoing Memorandum, it is this 14th day of October, 1999, by the United States District Court for the District of Maryland, ORDERED
(1) That the Defendants' Motion for Summary Judgment BE, and it hereby IS, GRANTED AND JUDGMENT IS HEREBY ENTERED IN FAVOR OF DEFENDANTS; and it is further ORDERED
(2) That the Clerk CLOSE this case and TRANSMIT copies of this Order and the foregoing Memorandum to the attorneys of record.