Lead Opinion
Rеspondents were nontenured administrators in the Puerto Rico Department of Education during the 1976-1977
The decision below is contrary to a recent decision of this Court: Delaware State College v. Ricks,
The Court of Appeals for the First Circuit distinguished Ricks on the ground that Ricks had alleged that denial of tenure was the “unlawful employment practice,” whereas herе respondents allege that termination of their employment as administrators was the “unlawful employment practice.”
In Ricks, we held that the proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful.
Reversed and remanded.
Notes
Petitioners request a writ of certiorari to the Court of Appeals for the First Circuit to review a total of 14 judgments entered in favor of 36 respondents. The published decision, discussed in text, represents one judgment in a suit brought by 23 respondents; that decision was issued May 8, 1981. See
Delaware State College had a policy of giving a final 1-year contract to teachers who were denied tenure. Only when that contract expired, did the “employment relationship en[d].”
Dissenting Opinion
dissenting.
While I agree with the analysis of Judge Campbell for thе Court of Appeals, and therefore join in the dissenting opinion of Justice Stevens, I believe this per curiam disposition is particularly ill-conceived.
It is one thing to hold, as was held in Delaware State College v. Ricks,
The thrust of the Court’s decision is to require a potential civil rights рlaintiff to measure the time for filing his claim from the moment some form of injunctive relief first becomes available. The effect of this ruling will be to increase the number of unripe and anticipatory lawsuits in the federal courts — lawsuits that should not be filed until some concrete harm has been suffered, and until the parties, and the forces of time, have had maximum opportunity to resolve the controversy.
Because this case is plainly distinguishable from Ricks, and the decision potentially far-reaching in its impact, thе issue should be decided only upon plenary review. The Court’s summary reversal is therefore particularly inappropriate, and I respectfully dissent.
Dissenting Opinion
dissenting.
After noting that most judges who have confronted the issue have reached a conclusion at odds with the Court’s holding today, Judge Campbell, writing for the Court of Appeals, cogently explained why the decision in Delaware State College v. Ricks,
“The issue of when the cause of action aсcrues depends, we believe, on when the alleged unlawful act occurred. It is necessary, therefore, to identify the unlawful act. Where, as here, the claim is that an employment decision was made for a prohibited reason, it could be argued that the unlawful act was the making of the decision, rather than the implementation of it. But we think such a refined rule would depart too sharply from the understanding of ordinary people. The plaintiffs in these сases are complaining that they were demoted or discharged, not merely that a decision was made on a particular occasion, of which notice was then given, to take such action against them. Had the decision been made but not yet implemented, equitable relief might have been sought to forestall irreparable harm, but it is unlikely that plaintiffs would have sought or received damages until or unless the threatened action was consummated. The alleged unlawful act was revocable, incomplete and, for practical purposes, nonexistent until the actual demotion or discharge.
“Moreover, important policies of judicial administration favor a rule based on the date of implementation. While the date of notice in the present cases was easily established, other cases would surely arise in which resolution of that question would require lengthy proceеdings. Notice might be oral, or it might be ambiguously phrased, or it might be transmitted by one whose au*11 thority is subject to question. We see no value in requiring courts and parties to devote their resources to litigating the adequacy of notice, whеn the date of the action itself is easily determined. In saying this we are aware that the Supreme Court has declined to reach out for an easily identified date when that date bears no genuine relationship to the act оf which plaintiff complains. Compare Delaware State College v. Ricks, [449 U. S. 250 ] (1980) (date of termination not sufficiently connected to the challenged denial of tenure), discussed infra. But where, as here, the date that is most closely related to the plaintiffs’ claim is also the date mоst easily identified, we think concern for adoption of the rule that best promotes certainty and eliminates litigation over technical niceties is well warranted.
“After the district court’s decision of these cases, the Supreme Court decided Delaware State College v. Ricks, supra. Defendants contend that that decision compels affirmance here. We disagree. Ricks, a black Liberian instructor, was informed in June 1974 that the faculty of Delaware State College had voted to deny him tеnure. In accordance with the school’s usual practice, he was thereafter granted a one-year terminal contract, after which his employment with the school ended. In his suit alleging discrimination on the basis of national origin, Ricks contended that the limitations period under Title VII began to run only when he left the university in June 1975. The Supreme Court rejected this argument and concluded that Ricks’ cause of action had accrued when he was notified of thе denial of tenure, in June 1974, and that his suit was therefore barred. The Court focussed on the allegations of Ricks’ complaint, which it found to charge discrimination in the denial of tenure, not in the discharge or any other subsequent action. Thе Court held that the denial of tenure was the ‘unlawful employment practice’ within the meaning of Title*12 VII, and that the date of that action was therefore the beginning of the limitations period. Three justices, in dissent, accepted thе majority’s analysis (i. e., that denial of tenure, not discharge, was the unlawful employment practice) but placed the denial of tenure at a later date because of the later decision of an internal grievance board. Justice Stevens, alone among the justices, took the view that denial of tenure is analogous to advance notice of discharge. Based on that analogy, he argued that the date of discharge should control.
“Refusal of the Ricks mаjority to adopt Justice Stevens’ analogy does not seem to us in any way to repudiate the precedents to which he sought to draw an analogy. The majority held merely that the denial of tenure in the academic setting is fundаmentally different from a notice of discharge; it is a distinct and separate employment action, with important and far-reaching consequences for all aspects of the employee’s status. While denial of tenurе is often followed by discharge, it is not always, and the consequences of denial of tenure are not dependent on its being followed by discharge. The Court found that Ricks’ complaint was based on the denial of tenure, which was effective immediately; it followed, therefore, that the limitations period began as soon as Ricks received notice of that action. Here, plaintiffs complain of discharges and demotions, not of any distinct event thаt occurred on an earlier date. The letters notifying them of the planned actions were notice and nothing more; they were not actions in themselves comparable to the denial of tenure.
“To be sure, as we have said, one can argue that the notices themselves mirror the allegedly discriminatory motives of the defendants. One can also argue that a suit for injunctive relief might lie after receipt of notice (or, indeed, even bеfore) to forestall threatened irreparable harm. Still plaintiffs’ quarrel is with their demo*13 tions and discharges — not with the notices themselves. No actual harm is done until the threatened action is consummated. Until then, the act which is the сentral focus of the plaintiffs’ claim remains incomplete. Such was not the situation in Ricks, where the denial of tenure was itself the completed act being challenged.
“We conclude, therefore, that Ricks is inapplicable to these cases, and that the district court erred in dismissing the complaints.”648 F. 2d 765 , 768-770 (CA11981) (footnotes omitted).
For the reasons stated by the Court of Appeals, I respectfully dissent.