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An 8th U.S. Circuit Court of Appeals panel has determined that the statute of limitations in Title VII discrimination cases is triggered when an alleged unlawful employment practice is announced, not when it is put into effect. The panel upheld U.S. District Judge Donovan W. Frank’s dismissal of a Title VII case as untimely, along with his ruling that the 11th Amendment bars federal court jurisdiction over state-law claims under the Minnesota Human Rights Act. U.S. Circuit Court of Appeals Judge Frank J. Magill wrote the Sept. 25 decision in Myrle B. Cooper v. St. Cloud State University, No. 99-2777, in which Judges Diana E. Murphy and Gerald W. Heaney concurred. When the St. Cloud State University Art Department hired Myrle Cooper in July 1986 for a full-time faculty position, he did not have the required academic credentials, according to the court record. His appointment expressly stated, “Consideration for tenure is contingent upon completion of Doctorate.” Despite two paid leaves to work on his degree, Cooper did not earn a Ph.D. by the time he was to be reviewed for tenure during the 1990-91 academic year, court records stated. University policy was to retain faculty members denied tenure for another academic year and to then automatically terminate them. The university denied Cooper tenure, but told him the decision would be rescinded if he finished his degree during the 1991-92 academic year. In a 1992 grievance settlement over the matter, the university extended the time for Cooper to finish his degree to a total of five additional years. Cooper failed to complete his Ph.D. within this period, according to the court record. Cooper was terminated from his faculty position. He accepted a staff job that was created for him by the university and then took early retirement. PRECEDENT IN ‘DELAWARE STATE COLLEGE v. RICKS’ In January 1997, a year before retiring, Cooper filed a complaint with the Equal Employment Opportunity Commission and later sued in the U.S. District Court for Minnesota. Both complaints alleged claims under Title VII and the state human rights law of racial discrimination and harassment and reprisal. Judge Magill said the threshold question was whether the EEOC complaint was filed within 300 days of the alleged unlawful employment practice. Resolution of this issue requires identifying the conduct underlying the claim, he said. In a 1980 decision, Delaware State College v. Ricks, the U.S. Supreme Court held that the limitations period is triggered when a college offers a faculty member a one-year terminal contract, not when the contract expires. The panel must follow Ricks, Judge Magill explained, because “the only discrimination occurred at the time the tenure decision was made and communicated, even though one of the effects of the denial of tenure … the eventual loss of a teaching position … did not occur until later.’” Judge Magill rejected the argument of Leslie L. Lienemann, Cooper’s lawyer, that the university committed additional unlawful acts after the 1992 tenure decision. First, he wrote, 17 white faculty members granted tenure in other departments were not similarly situated to Cooper, who is not white, because “market considerations of supply and demand explain why tenure requirements differ.” Next, Judge Magill said, it was irrelevant that Cooper was replaced by people who did not have doctoral degrees when they were hired. The judge said, “Hiring decisions are different than tenure decisions.” Lastly, the judge found, Cooper’s situation was not similar to that of a business professor who was denied tenure and transferred to another department because there was no showing of “an actual opening or an existing need for someone with Cooper’s abilities.” Cooper’s termination in 1996 was the “inevitable result” of not meeting the terms of the settlement agreement made in 1992, Magill found. He said the right or action accrued in 1992. Magill then concurred with District Judge Frank, finding that the “Eleventh Amendment bars federal court jurisdiction over state law claims against unconsenting states or state officials when the state is the real, substantial party in interest, regardless of the remedy sought.” THE THEORY OF NEW FEDERALISM Magill agreed with Minnesota Assistant Attorney General Gary Cunningham that the state did not waive the university’s immunity by subjecting the university to potential liability under the Minnesota Human Rights Act. “A careful reading of the statute reveals that Minnesota only consented to suit in its own state courts,” Magill wrote. “Under controlling Eighth Circuit precedent [e.g., the 1997 decision in Santee Sioux Tribe of Nebraska v. Nebraska], the fact that Minnesota waived its immunity in Minnesota’s state courts is simply insufficient to waive its Eleventh Amendment immunity.” The panel affirmed District Judge Frank’s opinion dismissing Cooper’s claims in its entirety. In an interview with American Lawyer Media News Service, attorney Steven Andrew Smith of the Minneapolis firm Nichols, Kaster & Anderson said the appellate court decision on 11th Amendment immunity “is consistent with the U.S. Supreme Court’s theory of new federalism.” The theory is to leave as much to state courts as possible, especially in cases involving the interpretation and application of state laws, said Smith, who has represented both plaintiffs and employers in Title VII cases. Nevertheless, whenever possible he would bring a discrimination case in federal rather than state court. And he would be pleased to draw such a “thoughtful” jurist as District Judge Frank, said Smith said. But the major impact of the appellate court ruling involves the decision on when a cause of action accrues, he said. The ruling signals that “prospective plaintiffs are expected to immediately recognize discriminatory conduct and make legal decisions on their own,” Smith said. Aggrieved employees delay filing a complaint at their own peril, Smith added. Anyone who does not take legal action at the first instance of unlawful conduct risks a defense argument that the first unlawful act triggered the requirement of filing an administrative complaint, he said. But Smith notes that much discriminatory conduct begins unclearly or tentatively, or it starts and stops. He said “one-act cases of egregious conduct” are rare. Smith suggested that defendants try to cast earlier unlawful acts that were unclear, or seemingly harmless, as evidence of motive or intent — not as evidence of harassment. Such positioning of acts that occurred long before filing an administrative complaint can take the act out of the purview of the statute of limitations. Nevertheless, Smith said, cumulative evidence of such acts as “accidentally” brushing or rubbing against someone’s body can have a “powerful impact” on the jury.

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