Lead Opinion
Plaintiff Clarence Brent Haeberle appeals the district court’s grant of judgment on the pleadings in favor of the defendants. University of Louisville, et al. (“the University”). In response to an allegedly unlawful denial of his tenure application, Professor Haeberle had raised a variety of federal and state-law claims against the University. The district court granted the University’s motion for judgment on the pleadings with respect to the federal claims, finding them to be time-barred under Kentucky’s one-year statute of limitations. The district court then remanded the state common-law claims to the Kentucky state court. The central question for this panel to determine is when the limitations period began to run. As the pleadings conclusively demonstrate that Haeberle’s cause of action accrued more than a year before he filed his complaint, we affirm the district court.
I
On July 1, 1987, the University hired Haeberle as a clinical instructor in the Department of Prosthodonties, which is part of the University’s School of Dentistry. On October 1, 1992, Haeberle became a full-time assistant professor. Like many assistant professors, Haeberle aspired to become a fully tenured professor. The guidelines for tenure were set out in the University’s “Red Book.” which listed some of the factors that university officials may take into consideration in deciding whether to grant tenure. Allegedly relying on these guidelines. Haeberle consciously tailored his professional and scholarly activities to maximize his chances for attaining tenure. These efforts included publishing several articles and making numerous presentations around both the state and the nation.
In August 1998, Haeberle submitted his application for tenure. The Dental School’s Faculty Review Committee reviewed the application and recommended that he be granted tenure. The Dean of the Dental School agreed with the recommendation and forwarded it to Joel Kap-lan, the University’s Vice President for Health Affairs. Kaplan disagreed, however, and recommended that Haeberle be denied tenure because of the inadequacy of his research and publications. Kaplan forwarded his recommendation to the University’s Provost, Carol Garrison. She agreed with Kaplan, and passed her negative recommendation (along with Kaplan’s) to University President John Shumaker.
The actual date on which the University first informed Haeberle of the tenure denial is unclear.
On December 21, 2000, Haeberle filed an action in Kentucky state court. The case was subsequently removed to federal district court upon the University’s request. In his initial complaint, Haeberle alleged that the University violated his due process rights under both the Fourteenth Amendment and § 2 of Kentucky Constitution. He also alleged, under 42 U.S.C. § 1985, that the defendants conspired to deprive him of his due process rights. The University filed a motion for judgment on the pleadings on April 17, 2001. Hae-berle responded by filing an amended complaint on May 14, 2001 (which was accepted and filed by the district court on August 6, 2001).
In the amended complaint, Haeberle reaffirmed every allegation of the initial complaint. He also added a number of new federal claims, including violations of his freedom of association and equal protection rights. Specifically, Haeberle alleged that he was punished for associating with unnamed Dental School officials. He also claimed that the University violated his equal protection rights by granting tenure to a woman with equal credentials. Finally, Haeberle raised tort and contract claims under state law.
The district court rejected the claims in Haeberle’s first complaint on November 5, 2001, while explicitly reserving judgment on the claims of the amended complaint. In rejecting the first complaint, the district court relied on a variety of grounds. For example, it rejected the § 1983 damages claims (with respect to certain defendants) on the basis of state sovereign immunity. With respect to Haeberle’s request for in-junctive relief pursuant to § 1983 and the state due process claim, the district court held that Haeberle had no property interest in the grant of tenure absent a state law or express contract.
II
“The standard of review applicable to a motion for judgment on the pleadings under Fed. R. Civ. Pro. 12(c) is the same de novo standard applicable to a motion to dismiss under Rule 12(b)(6).” Ziegler v. IBP Hog Market,
For § 1983 actions originating in Kentucky, this court has held that the applicable statute of limitations is one year. Collard v. Kentucky Bd. of Nursing,
The Supreme Court addressed this very question in Delaware State College v. Ricks,
We conclude ... that the limitations period commenced to run when the tenure decision was made and [plaintiff] was notified.... The grievance procedure, by its nature, is a remedy for a prior decision, not an opportunity to influence that decision before it is made.... [We also conclude] that the pendency of a grievance, or some other method of collateral review of an employment decision, does not toll the running of the limitations period.
Id. at 259, 261,
A
First, Haeberle argues that, in granting the University judgment on the pleadings, the district court erroneously considered a letter from President Shumaker that was extrinsic to the pleadings. Specifically, Haeberle claims that the district court made its decision “based upon [the February 1999] letter attached to a Reply Brief filed by Defendants below.” Appellant’s Brief at 18. In the letter, dated February 22, 1999, Shumaker informed Haeberle that his application for tenure had been denied.
On a motion for judgment on the pleadings, this court may only look at the pleadings themselves and exhibits “incorporated by reference into the complaint.” Weiner v. Klais & Co.,
The district court’s opinion, however, never mentioned the letter. In fact, the district court relied specifically on the September date included in Haeberle’s complaint to reach its conclusion. (“The plaintiffs complaint reveals that he was notified that the Board of Trustees had denied his application for tenure sometime before September 7, 1999.”). Haeberle’s first argument lacks merit.
B
Second, Haeberle avers that this court should apply the March 2000 date because the University’s action was not yet final, or alternatively, because the University failed to abide by its internal tenure procedures when it rejected his tenure application. In making this argument, Haeberle relies on a series of regulations in § 4.1.5(H)(6)-(12) in the Red Book (“Acquisition of Tenure”). Essentially, Haeberle contends that the regulations required the Board to make a final decision after it received the negative recommendation from President Shumaker. Because the Board never acted, Hae-berle claims that the University’s action (prior to March 2000) should not be considered “final” under the applicable Red Book regulations.
Haeberle, however, misreads the Red Book regulations, which read, in part, as follows:
(7) The President shall make the final recommendation concerning tenure for any faculty member whose status is to be acted upon by the Board of Trustees and shall inform the Board concerning the nonrenewal of contract for any faculty member completing the sixth year of service counted toward tenure.
(9) The Board of .Trustees shall take final action to grant tenure after an affirmative recommendation by the President. In addition, in any case where the initial recommendation to deny tenure is by the President, the Trustees shall decide whether to grant tenure after considering the President’s original recommendation, the Report of the Faculty Grievance Committee and the response of the President and the candidate.
(11) Faculty members not recommended for tenure shall be informed by the President within seven days after the decision has been reported to the Board of Trustees.
The first problem with Haeberle’s reading of the regulations is that many of them apply only when the President makes the initial negative recommendation. In this case, however, Vice-President Kaplan made the initial recommendation. A second problem is that the regulations never state that the Board must ratify the President’s negative recommendation when the initial negative recommendation comes
In light of the text of the regulations, we find that the Board was not required to act after President’s Shumaker’s negative recommendation. Accordingly, the notification by President Shumaker, which happened at some point prior to September 7, 1999, was sufficient to provide Haeberle with notice of his alleged injury. To hold otherwise would suggest that Haeberle could have remained employed indefinitely so long as the Board never acted, despite the President’s negative recommendation. Thus, even assuming these regulations were part of the pleadings (which is questionable), Haeberle’s argument fails.
C
Third, although Haeberle concedes that the statute of limitations question is one of federal law, he contends that the district court should have looked to Kentucky law in order to determine when the University’s decision was final. Appellant’s Brief at 22-27. The argument is that because the University is a “creature of the state of Kentucky,” it is therefore “subject to the interpretations of the Kentucky Supreme Court and the Kentucky legislature” with respect to the finality of state entity decisions. Thus, according to Haeberle, the Kentucky Supreme Court’s decision in Board of Trustees of University of Kentucky v. Hayse,
First, it is not clear that Hayse is even ' relevant to the statute of limitations question. In Collard v. Kentucky Board of Nursing, this court explained that “federal law and not state law is relevant for the purpose of characterizing a section 1983 claim. Accordingly, federal law governs the question of when that limitations period begins to run.”
Even assuming Hayse is relevant, it does not support Haeberle’s position. In Hayse, a professor at the University of Kentucky applied for tenure during the 1976-77 academic year, but the school rejected his application.
It is not completely clear how Haeberle thinks Hayse should be applied in this case. On the one hand, Haeberle might be suggesting that Hayse stands for the proposition that no action by a Kentucky university is final until the Board of Trustees acts in accordance with proper regulations. In Hayse, however, the Kentucky Supreme Court merely repeated a lower court’s finding that, under the University of Kentucky’s regulations, the Board of
Alternatively, Haeberle might be citing Hayse for the more limited proposition that a university’s action must be final before a plaintiff can possibly have notice of the act that initiates the limitations period. Even assuming Haeberle’s reading is correct, we have already concluded that the President’s negative recommendation represented a final decision for purposes of determining when Haeberle’s cause of action accrued.
D
Fourth, Haeberle suggests that the district never overruled its earlier opinion in its second opinion. Presumably, the argument is that because the first opinion dismissed the federal claims on reasons not related to the statute of limitations, and because the second opinion did not clearly overrule the first opinion, this court should review those federal claims that were not explicitly dismissed as untimely. Because we find that our reasoning is equally applicable to the federal claims dismissed in the November 5, 2001 order, we do not need to discuss the bases on which the district court relied in its November 5 order.
E
Finally, there has been considerable confusion as to whether the Board responded in any way to Shumaker’s negative recommendation in 1999.
Despite the University’s lack of clarity, Haeberle’s claims are time-barred. If the Board did in fact act in 1999, then Hae-berle’s claims are clearly time-barred. Even if the Board did not act in 1999, we still conclude (for reasons stated above) that the President’s recommendation constituted a final decision in light of the language of the University’s regulations. We emphasize, however, that we find the
IV
For the reasons set forth above, the judgment of the district court is AFFIRMED. The plaintiffs federal claims will be DISMISSED and the two remaining state-law tort and contract claims raised in the amended complaint will be REMANDED to the state court.
Notes
. In. one of the motions filed in the district court, the University attached a letter from Shumaker dated February 22, 1999, which informed Haeberle of the tenure denial. This letter, however, cannot be considered on appeal because it was not part of the original complaint filed by Haeberle. In a motion for judgment on the pleadings, this court may only look at the pleadings themselves and exhibits "incorporated by reference into the complaint.” Weiner v. Klais & Co.,
. This reasoning also applied to Haeberle's claims for money damages against Kaplan, Garrison, and/or Shumaker in their individual capacities.
. We note that although § 7 requires the President to offer a recommendation for any candidate “whose status is to be acted upon by the Board,” it provides no guidance as to when the Board must act.
. Haeberle conceded that the Board notified him in March 2000 that it had rejected the recommendation of the Faculty Grievance Committee and denied him tenure. Appellant’s Brief at 10-12.
. Haeberle, however, denied that the Board had acted, as it was allegedly required to do under Red Book regulations.
Concurrence Opinion
Circuit Judge, concurring.
I concur in Judge Boggs’s opinion and agree that, based on Ricks, the one-year Kentucky statute of limitations bars Hae-berle’s federal claims. I write separately to note my understanding of the proper record before us and its effect on the result.
With regard to the record, the portions of the Red Book referred to in Part III.B of Judge Boggs’s opinion are not a part of the pleadings. The only portions of the Red Book found in the pleadings are those relating to criteria for tenure decisions, which are attached to plaintiffs original complaint. It is thus difficult for me to see how the remainder of the Red Book can be considered incorporated by reference into the pleadings, and in my judgment it is not a proper part of the record. In any event, however, the Red Book provisions and their interpretation are not pertinent to the result. In fact, Judge Boggs’s opinion (which recognizes that these Red Book provisions may not be part of the pleadings) does not rest on an interpretation of the Red Book, but mentions the Red Book only in explaining why Haeberle’s argument concerning its provisions lacks merit.
The key to this case is not the Red Book or the precise procedure followed by the University or whether the President’s recommendation was a final decision. Rather, the result is determined by the undisputed facts that on September 7, 1999, the Faculty Grievance Committee held a hearing regarding the recommendation that Haeberle be denied tenure and that Hae-berle was aware of the recommendation before that date. Under Ricks, it makes no difference whether we characterize this proceeding before the Faculty Grievance Committee as an appeal of a denial of tenure, as plaintiff does in his complaints, or as pursuit of a grievance, which is the language used by defendants in their answers. Under either description, plaintiff was pursuing the administrative process for obtaining a tenure decision that differed from that recommended by university administrators and communicated to Haeberle prior to September 7, 1999. He was clearly seeking review of a non-tentative decision (whether called a recommendation or something else) rather than trying to influence initial decision-making about whether he should receive tenure. See Ricks,
In addition, the conclusion that Hae-berle’s federal claims are time-barred is reinforced by the fact that Haeberle’s complaints allege federal constitutional violations based on the university administrators’ recommendation, not any later decision-making by the Board or other individuals or entities. J.A. at 22-24, 79. Thus, the focus of the limitations inquiry on the federal claims must be the date when Haeberle learned of the allegedly unconstitutional acts, not the date when he learned of some other action. See Ricks,
Concurrence in Part
United States District Judge, concurring in part and dissenting in part.
Respectfully, I concur, in part, and I dissent, in part. As described below, I believe the Court reaches the correct result regarding Haeberle’s due process and First Amendment claims, although not because he failed to file this action within the statute of limitations. Instead, I find that he fails to show a protected interest in continued employment. With regard to the Court’s discussion of the application of the statute of limitations to Haeberle’s claims, I believe the Court’s opinion is wrong regarding two important issues. First, in a case that was thrown out before the parties started discovery, the majority opinion misapplies the law applicable to motions for judgments on the pleadings under Rule 12(c). Second, it applies the wrong accrual rule for § 1983 claims. I explain my reasons below.
Rule 12(c) Standard
Traditionally, courts have notably hesitated to grant motions for judgment on the pleadings. 5A Wright & Miller, Federal Practice and Procedure: Civil 2d § 1368, at 517 n.1 (1990). For good reason, too; Rule 12(c) carries a difficult standard for moving parties to meet. 5A Wright & Miller, Federal Practice & Procedure 2d § 1368, at 705-06 (2003 Supp.).
Courts apply the same analysis to motions for judgment on the pleadings under Rule 12(c) as they apply to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). E.E.O.C. v. J.H. Routh Packing Co.,
The district court may grant the defendant’s motion for judgment on the pleadings only if “the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle relief.” J.H. Routh Packing Co.,
The majority omits the substance of this standard. Instead, it states only that in reviewing a decision on a Rule 12(c) motion, we apply “the same de novo standard applicable to a motion to dismiss under Rule 12(b)(6),” and that a court “may only look at the pleadings themselves and exhibits ‘incorporated by reference into the complaint.’ ” Supra (citing Weiner v. Klais & Co.,
§ 1983 Accrual
Causes of action filed under 42 U.S.C. § 1983 accrue when the plaintiff knows or has reason to know of the injury which is the basis, of the § 1983 action. Dixon v. Anderson,
The majority concludes that because the University held a hearing regarding a negative tenure decision on September 7, 1999, Haeberle’s claim must have accrued by that time. To reach this conclusion, the majority states that regardless of the labels attached to both the decision that prompted the hearing and the hearing itself, Haeberle knew that a constitutional right had been violated and that it was time to go to court to protect his rights. I cannot agree with this analysis.
Haeberle would not know that a constitutional violation occurred until the University rendered a decision that put him on notice that it decided the tenure issue. For this reason, the label placed upon the decision that prompted the grievance procedure is crucial. If in September 1999, Haeberle appealed a negative recommendation, then clearly he would not be under the impression that his rights had already been violated and that the time to rush to the courthouse had arrived. That is not the case if in September 1999, he appealed a negative determination. A determination is tantamount to an action; a recommendation is not. In other words, recommending that someone violate the Constitution is not sufficient to constitute a violation; only undertaking an action that violates the Constitution causes the action to accrue. Further, what we’re really interested in is the time at which someone should have reasonably known of a constitutional violation, which is all the more reason that a recommendation is insufficient.
Looking solely at the pleadings, as I must at this stage.
Alternatively, the majority says that Haeberle’s claim must have accrued by September 1999 because Haeberle pursued a grievance procedure. It further states that as a matter of law, grievance procedures are not part of the tenure review process, but rather administrative procedures that can be invoked only after a final decision. In support of this proposition, it cites Delaware State College v. Ricks,
The Ricks Court’s analysis repeatedly emphasizes that the Board of Trustees already had voted formally to deny tenure to the plaintiff before the grievance process commenced. Id. at 252,
In sum, the poor state of the record prevents me from concluding that there was no issue of material fact (as required by Rule 12(c)) regarding either (1) when Haeberle was denied tenure, or (2) when Haebeiie knew or should have known that he had been denied tenure. Further, the disparate stories the parties’ pleadings tell regarding what exactly Haeberle appealed in the grievance process suffice to create a genuine issue of material fact regarding when Haeberle knew or should have known of the denial. For these reasons, I think that the majority applied the wrong standards with regard to both appellate review of a motion for judgment on the pleadings and accrual of a § 1983 action.
The district court should not have granted judgment on the pleadings unless it could conclude that Haeberle could prove no set of facts that would entitle him to judgment. As a prerequisite to that conclusion, the district court would have to find that there was no issue of material fact whether Haeberle should have known prior to December 1999 that he had been denied tenure. In a case involving such an underdeveloped record, I do not think it is reasonable for the district court to so conclude.
Under Rule 12(c), district courts should not dispose of cases unless the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle relief. Given the ambiguity of the University’s policies and the poor shape of the record, judgment on the. pleadings on the statute of limitations was inappropriate. I respectfully dissent from the majority’s ruling to the extent that it holds that Haeberle failed to file his claims within the applicable statute of limitations.
The Merits of Haeberle’s Federal Claims
That said, I agree with the majority’s disposition with regard to most of Hae-berle’s claims, but I do so on their merits (or lack thereof) rather than on the statute of limitations. Before the court are three federal-claims: alleged violations of procedural due process, the First Amendment, and equal protection. I discuss each of these in turn. • . .
The district court concluded in its first order granting judgment on the pleadings that the University was entitled to judgment on Haeberle’s federal due process claim, reasoning that Haeberle lacked a cognizable property interest in his job. J.A. at 112. I agree with the district court’s disposition of this issue, and would thus grant the University’s motion for judgment on the pleadings with regard to Haeberle’s federal due process claim.
A prerequisite for establishing a due process violation is that the plaintiff establish deprivation of a liberty or property interest. Here, Haeberle’ asserts that he possessed a property interest in his position with the University. The district court correctly concluded that Haeberle lacked a property interest in his job.
Kentucky law recognizes no property interest in continued employment for plaintiffs in Haeberle’s position. Ashley v. University of Louisville involved a similar factual scenario-a professor who was denied tenure and then sued, alleging a denial of due process.
Haeberle also asserts a violation of the First Amendment’s guarantee of free association. In his Second Amended Complaint, he says that he “has been punished for exercising his lawful right of association under the First Amendment of the U.S. Constitution by following of the standards set by the University ... for his attainment of tenure, and associating with the officials therein.” J.A. at 80-81. The district court did not address this claim on the merits.
Haeberle is correct that the First Amendment confers associational rights. Regardless, his allegations do not provide a basis for finding a violation of these rights. The Supreme Court has recognized the right to associate “for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion.” Roberts v. U.S. Jaycees,
Finally, Haeberle alleges that the University deprived him of equal protection of the laws by its alleged “unequal application of standards to Haeberle as opposed to others seeking tenure at the University who preceded him.” Confusing use of prepositional phrases and independent clauses notwithstanding, I conclude that this allegation states a plausible equal protection cause of action under Village of Willowbrook v. Olech,
State Due Process Claim
The final issue the Comet must address is whether we should remand Haeberle’s due process claim under § 2 of the Kentucky Constitution. Because I conclude that the district court properly dismissed this claim in its first order granting judgment on the pleadings, I agree with the majority that we should not remand it to the district court.
Section 2 of the Kentucky Constitution states in full: “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” The Kentucky Supreme Court has made clear that “Section 2 of the Kentucky Constitution is that part of our constitution which guarantees due process of law to our citizens.” Remote Servs. v. FDR Corp.,
Kentucky courts have reviewed statutes for substantive due process under Section 2 similarly to how federal courts have applied the Fifth and Fourteenth Amendments’ Due Process Clauses. See, e.g., Pigeons’ Roost, Inc. v. Commonwealth,
As I explained above, Haeberle lacked a property interest in his job and could not state a valid due process claim. I conclude that the district court properly dismissed Haeberle’s § 2 claim and therefore join the majority’s conclusion that our remand order applies only to the contract and tort claims Haeberle asserts in his Second Amended Complaint.
. When reviewing a motion for judgment on the pleadings, a court may only look at the pleadings themselves and exhibits incorporated by reference into the complaint. Weiner v. Klais & Co.,
Even if the Red Book were properly before the Court, however, I would still conclude that dismissing Haeberle’s claims for violating the statute of limitations was in error. As I read the Red Book’s contents, no decision on a tenure application is complete until the Board acts upon it. The only provision that allows a University President to deny a professor's application for tenure is paragraph 10, which applies only when the applicant resigns from his position before the Board can act. J.A. at 75. Nor do I see any logic in reading this policy to require Board action only when the President recommends granting tenure or is the first to recommend denying tenure. Such a reading would leave applicants such as Haeberle in a state of limbo. Further, such a reading turns the policy’s language into doublespeak by permitting a negative recommendation to automatically transform into a denial. If a negative recommendation from the President really is a denial, why go through the charade of calling it a "recommendation”?
Additionally, Kentucky law supports this reading of the Red Book, Kentucky Rev. Stat.
. Unfortunately, the majority sloughs over this critical point of contention by stating, "We do know, however, that Haeberle appealed the President’s decision by filing a grievance with the Faculty Grievance Committee” (emphasis added). Indeed, the pleadings contain sufficient evidence that Haeberle appealed only a negative tenure recommendation from the President, as opposed to a final tenure decision, to create a genuine issue of material fact.
. Indeed, the language from Ricks that the majority quotes supports this conclusion. It states, "The grievance procedure, by its nature, is a remedy for a prior decision Ricks,