Petition — Burnett v. Grattan

| Office- Supreme Court, U.S.

83 - : ) FILED

No. 264 |

| AUG 17 1983

ALEXANDER L. STEVAS,

CLERK

a

In THE

Supreme Court of the United States

OcroBer TERM, 1983

CALVIN W. BURNETT,

PRESIDENT OF CoppiIN STATE COLLEGE;

‘ J. CARSON DOWELL; EDMUND C. MESTER;

AND RONALD K. DeSOUZA, Vice Presipent or

SrupentT Arrairs, Coppin State CoL_ece,

Petitioners,

v.

JAMES R. GRATTAN anp ADRIENNE S. HEDMAN,

Respondents.

On Petition ror Writ oF CERTIORARI TO THE

Unitep States Court or APPEALS

FOR THE FourtH CIRcuIrT

PETITION FOR WRIT OF CERTIORARI AND APPENDIX

STEPHEN H. Sacus,

Attorney General of Maryland,

Diana Grispson Mo7z,

CurisTINE STEINER,

Rosert A. ZARNOCH,

Assistant Attorneys General,

Counsel of Record,

7 North Calvert Street,

Munsey Building — Second Floor,

Baltimore, Maryland 21202,

(301) 576-6338.

a se |

QUESTION PRESENTED

When a claim of public employer discrimination is

brought under 42 U.S.C. §1983, and related civil rights

statutes, is a federal appeals court free to disregard state

policy, clearly reflected in its statutes and common law,

that favors abbreviated’ limitations periods in public

employment disputes and to reject such limitations periods

because they govern state administrative actions or

because they are too short?

PARTIES

The parties to the proceeding in the court of appeals

were James R. Grattan and Adrienne S. Hedman, as

appellants, and Calvin W. Burnett, President of Coppin

State College; J. Carson Dowell; Edmund C. Mester; and

Ronald K. DeSouza, Vice-President of Student Affairs,

Coppin State Coliege, as Appellees.

TABLE OF CONTENTS

Bt REEL IRE SUN STEAL Baier se LNs Senin wee

INI IIIS ~. ..... chisiksveesscnedesoedialaphiceenaapbapoailinbeotase

III iets nccticsachetitconsqndcheetaecbinsptcereoeoqestudeee

ConstiruTIONAL Provisions, STaTUTES AND Rues

STATEMENT OF THE CABE .......ccccsescsescsessscseseresenenseses

Reasons ror GRANTING REVIEW:

I. Review By This Court Is Necessary To

Correct A Decision That Both Under-

mines The Legitimate And Long-

Recognized Policy Of Most States Re-

quiring Prompt Assertion And Reso-

lution Of Public Employee Disputes

And Clearly Departs From Cases Of

Fe i Kendvcceccgsone

II. The Deep Division Among The Lower

Courts On This Critical Question

Which Resulted In The Unsanctioned

Holding Below Should Be Resolved By

SII, ico vdontihassibedbsnscbssbniidnanbectoensstaas

ENE EIA LE EG CR RAND RAO ODS

TABLE OF CITATIONS

Cases

Austin v. Board of Higher Education, 186

Te ED ed ciatatbieriocbasebipibcessaieassoninann

Beard v. Robinson, 563 F.2d 331 (7th Cir.

I i Fe

Bishop v. Wood, 426 U.S. 341 (1976) ........-.....0+

App. 1

App. 16

iii

Board of Regents v. Tomanio, 446 U.S. 478

WA ROR ODS Pe aR Es aie A DSP eee

Burns v. Sullivan, 619 F.2d 99 (1st Cir.), cert.

denied, 449 U.S. 893 (1980) ...........cccccceccseeeeees

Carter v. Supermarkets General Corp., 684

me ROS LESS Cae. SOU) Niccecersbikisthideciceccbiceiee

Chambers v. Omaha Public School District,

536 F.2d 222 (8th Cir. 1976) .............. see AN vee

Darlene S. Cohen v. F. Carvel Payne And

The State Of Maryland, Cir. Ct. For Anne

Arundel County Law No. 1105000 (Order

PURO CEE By BR» icinstcnecsesctntiereees ener eesscoese.

Del Costello v. International Brotherhood Of

Teamters, 51 U.S.L.W. 4693 (June 8, 1983)

Dewey v: University Of New Hampshire, 694

Fae RC MON MINED Pncadacalsch pissed chictsiccisscscesccees

Dillon v. Great Atlantic And Pacific Tea Co.,

43 Md. App. 161, 403 A.2d 406 (1979) ..........

Duffey v. Rickard, 194 Md. 228, 71 A.2d 41

EE lisraittnt Merosnceansventads avste uebacleas santana,

Evans v. Chesapeake And Potomac Tele-

phone Company, 535 F. Supp. 499 (D. Md.

SPIED ss Aedes nnciediits sesteumbawedsVeooinssielanisthdvahalelibedcndericlieeta eee

Garcia v. University Of Kansas, 702 F.2d 849

Cue Ge, ROUEN... cdinice coinbeste cenit tac.

Garmon v. Foust, 6687 F.2d 400 (8th Cir.),

cert. denied, 102 S. Ct. 2283 (1982) ...............

Gray v. Warden, 247 Md. 727, 234 A.2d 603

COSY ei hi id scedy tice yisadesoceatigsebanlaants codbsbebisiiavodate

CR DEB) sesencescrscainnsondernsstesssoctacensecsocesdaniebepetpsabiteny

Holden v. Massachusetts Com’n. Against

Discrimination, 671 F.2d 30 (1st Cir.), cert.

denied, 103 S. Ct. 97 (1982) wecreccccesereeeeee at

passim

17,18

18

16,17

iv

PAGE

Hussey v. Sullivan, 651 F.2d 74 (1st Cir.

RE) iki deecidabaticbiidndeveacatiase\ccabebbehsonseetanchinaeees 18

Johnson v. Railway Express Agency, Inc., 421

SE, QI TID ren divsctsiceccas pctoubnbesscasinntnious 7

Mason v. Owens-Illinois, Inc., 517 F.2d 520

GEE Ge: REID Sis cnicdens ctndecesensensusbbaceeneanies 16

McGill v. General Electric Co., 524 F. Supp.

RES CE Bs BED, eres bccasccceabiasceieihtals 4

McNutt v. Duke Precision Dental And

Orthodontic Laboratories, Inc., 698 F.2d 676

CORE RID parktescvnstarcipteecapees rants sesttinnsordene 5, 6, 16,18

Miles v. Stevenson, 80 Md. 358 (1894) ............... 11

Myers v. Chief Of Fire Bureau, 237 Md. 583,

et Pie SET CRG? eesti 12

Peterson v. Fink, 515 F.2d 815 (8th Cir. 1975) 19

Robertson v. Wegmann, 430 U.S. 584 (1978) ..... 14

Shah v. Halliburton, 627 F.2d 1055 (10th Cir.

SOTIID covsctlhncepsteadicticdlneddttncsccinesibckenseasiittabenbeinn 20

Shaw v. McCorkle, 537 F.2d 1289 (5th Cir.

RRR ae Madan t i AE Ce EE ae 19

Springfield Township School District v. Mad-

elin H. Knoll, 699 F.2d 137 (3rd Cir. 1983),

reh. denied, 699 F.2d 137 (3rd Cir. 1983),

petition for cert. filed, No. 82-1889 .......... 13, 14, 15, 20

State Department Of Assessments v. Clark,

281 Md. 385, 380 A.2d 28 (1977) ............00. 12

Swyka v. Johnson, U.S. Supreme Ct., petition

for cert. filed, No. 82-1928 ................cccccccesesees 14,15

United Parcel Service v. Mitchell, 451 U.S.

A CGD cisasteninedtarenbdiniensttinccanaiasaime mio 5, 16

Warren v. Norman Realty Co., 513 F.2d 730

(8th Cir. 1975), cert. denied, 423 U.S. 855

(1975) .... 8

Vv

Waters v. Wisconsin, Steelworks Of Inter-

national Harverster Co., 427 F.2d 476 (7th

Cir. 1970), cert. denied, 400 U.S. 911 (1970)

White v. United Parcel Service, 692 F.2d 1

A SERRE RS SR a

Zuniga v. AMFAC Foods, Inc., 580 F.2d 380

TOSI TEES ee oo tS Re

PAGE

Constitutional Provisions, Statutes And Rules

United States Constitution—

Pn III o.... . cccceccococncconcceccecnee

Fourteenth Amendment. .................c000008

United States Code:

Annotated Code of Maryland:

Courts and Judicial Proceedings Article—

REESE RING. ERY RABI iia A

ESRI SEA CAN UO OC NTO OR

Article 27—

vi

Article 49B—

ERATE AE LENE Se ie

Chapter 376, Laws of 1983 .........cccceeseeseeees

Rule: and Regulations:

Code of Maryland Regulations—

SPIED MAUR IORI Siscreaccrsscsvesdessocscsscseee

Maryland Rules of Procedure—

I esd dde can SnaEvccas tp lthinnes eoconoeseneds

Miscellaneous

Annot.: Acquiescence Or Delay As Affecting

Rights Of Public Employees Illegally Dis-

charged, Suspended Or Transferred, 145

A.L.R. 767 (1943) And A.L.R. Supplements

9,14

No.

In THE

Supreme Court of the United States

Ocroser Term, 1983

CALVIN W. BURNETT,

PRESIDENT OF Coppin State CoLLece;

J. CARSON DOWELL; EDMUND C. MESTER;

AND RONALD K. DeSOUZA, Vice Presipent or

Srupent Arrairs, Coppin State CoLiece,

Petitioners,

V.

JAMES R. GRATTAN ano ADRIENNE S. HEDMAN,

Respondents.

On Petition ror Writ or CERTIORARI TO THE

Unitrep States Court or Appras

FOR THE Fourtu Circuit

PETITION FOR WRIT OF CERTIORARI

Calvin W. Burnett, President of Coppin State College, et

al. pray that a writ of certiorari issue to review the

judgment entered in this case on June 22, 1983, by the

United States Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit has not yet been reported; it is set forth

2

in the Appendix to this Petition at App. 16. The opinion

and order of the District Court for the District of Maryland

is not reported; it is set forth in the Appendix to the

Petition at App. 2.

JURISDICTION

The judgment of the United States Court of Appeals for

the Fourth Circuit was entered on June 22, 1983. The

jurisdiction of this Court rests on 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES

United States Constitution, First Amendment

United States Constitution, Fourteenth Amendment

42 U.S.C. $1981

42 U.S.C. §1983

42 U.S.C. §1985

42 U.S.C. §1986

42 U.S.C. §1988

Maryland Annotated Code:

Courts and Judicial Proceedings Article, §5-101

Article 49B, §$9, 10, 12

Article 64A, §33

Article 64A, §$52-54

Session Laws: Chapter 376, Laws of 1983

Code of Maryland Regulations: COMAR 06.01.01.60

Maryland Rules of Procedure, Rule B4

These provisions are set forth in the Appendix at App.

1-15.

3

STATEMENT OF THE CASE

In June, 1976, administrators at Coppin State College, a

predominantly Black, publicly-funded institution

governed by a State board, determined not to renew the

employment contracts of two untenured administrative

employees, the Respondents herein, James R. Grattan and

Adrienne S. Hedman (hereafter “the employees”). Shortly

thereafter, these employees filed claims of racial discrimi-

nation with the Equal Employment Opportunity Com-

mission. Hedman also alleged that she as the victim of

sex discrimination.

Seven months later, on February 17, 1977, they brought

suit in State court against Petitioners herein, Calvin W.

Burnett, the President of Coppin State College, and

various other college and state officials (hereafter “the

State”). The employees asked the State court to declare,

under the Maryland Uniform Declaratory Judgment Act,

Md. Code, Courts and Judicial Proceedings Article

§§3-401-3-415, that the non-renewal of their employment

contracts in June of 1976, had been accomplished in a

manner that violated State law and their rights to

procedural due process. The State demurred to the Bill of

Complaint.

After the demurrer was finally ruled on in 1981 and

sustained with leave to amend, the employees filed, on

October 13, 1981, an “Amended and Supplemental Bill of

Complaint.” The amended complaint alleged that both

employees were victims of racial discrimination in vio-

lation of 42 U.S.C. §§1981, 1983, 1985, 1986 and the

Fourteenth Amendment of the United States Constitution

4

At that time, already pending in district court were two

separate actions (outgrowths of the EEOC complaints)

filed by these same employees against the same de-

fendants claiming unlawful employment discrimination

under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§2000e et seq.

The State agreed to consolidate the cases and moved to

dismiss all three as untimely filed. The District Court

(Judge Norman P. Ramsey), however, refused to con-

solidate or to dismiss the Title VII cases and these are still

pending in the District Court. App. 40. However, the

court did dismiss the removed case in its entirety. The

court reasoned that rights and remedies provided by

Maryland’s Human Relations Law (Article 49B) were most

analogous to the asserted federal claims and thus, the

limitations period most appropriate for adoption by the

district court was Article 49B, §9(a), which requires all

employment discrimination complaints to be filed with the

Maryland Commission on Human Relations within six

months of their occurrence.’ Since the federal claims were

not brought within this period, they were dismissed as

not timely filed.”

The employees appealed and the United States Court of

Appeals for the Fourth Circuit reversed. First, relying

' In so doing, the district court followed several earlier

Maryland cases involving suits brought under § 1981. See e.g.,

McGill v. General Electric Co., 524 F. Supp. 1126 (D. Md. 1981).

At the time, the Maryland District Courts, like other courts

throughout the country, (see Argument, Section II, infra) were

divided on the question of whether time periods specified in

state fair employment practices laws should serve as limitations

periods in federal civil rights actions. See Evans v. Che

& Potomac Telephone Company, 535 F. Supp. 499 (D. Md. 1982).

2 The District Court ruled that the employees’ free speech

claim was governed by a three-year limitations period but held

it barred as well since it was not raised until 1981 and therefore

did not relate back to the 1977 com t. The employees did not

appeal this holding to the Fourth Circuit.

5

upon McNutt v. Duke Precision Dental and Orthodontic

Laboratories, Inc., 698 F.2d 676, 678 (4th Cir. 1983), the

court below held the six-month statute of limitations

prescribed in Article 496, §9(a) was not applicable. In

McNutt, a case decided by another panel of the Fourth

Circuit a few weeks prior to oral argument in this case,

the court had concluded that Art. 49B §9(a) should not be

applied ‘to a private employee’s claim of racial discrimi-

nation brought under 42 U.S.C. §1981, because the “mixed

scheme of administrative and judicial enforcement” in

Article 49B was not analogous to a judicial action brought

to enforce §1981. 698 F.2d at 678.

In urging the Fourth Circuit to apply §9(a) in the case

at hand, the State pointed out, inter alia, that the present

case, unlike McNutt, involved a public, rather than

private employee and that the McNutt panel had expressly

recognized that the policy reasons supporting prompt

assertion and prompt resolution of public employee

“controversies over discharges, demotions and failures to

promote or transfer” were “particularly” acute. 698 F.2d at

678. Further, the State noted that the McNutt panel had

reached its view that federal courts can only borrow state

limitations periods which provide the plaintiff with a

purely judicial remedy without reference to this Court’s

decision to the contrary in United Parcel Service v.

Mitchell, 451 U.S. 56 (1981). Even though the employees

offered no response to these arguments, the lower court

rejected them without comment.

The court below also refused to apply other abbreviated

limitations periods urged by the State — limitations

periods of precisely the sort which the McNutt panel had

indicated would be applicable in federal civil rights

actions. The McNutt court concluded that there was no

indication that the Maryland legislature intended the

six-month limitation period found in Article 49B §9(a) to

be applied to other types of judicial actions involving

6

private employees: “No Maryland statute specifically

addresses the matter” and there is no “decision or body of

decisions on the subject” in Maryland. 698 F.2d at 679.

However, the McNutt court said that if there had been

such evidence of state intent, it would have applied a short

limitations period: “Had there been in Maryland a

decision or body of decisions on the subject . . . we would

probably accept them as the common law of the State of

Maryland” and apply them pursuant to 42 U.S.C. §1988.

698 F.2d at 679.

The state argued below that in a case involving a public

employee, there are both statutes and common law which

do, in the words of the McNutt panel, “specifically address

the matter.” Petitioners pointed to a wide body of

Maryland statutes and regulations providing public

employees their own administrative and judicial forum to

challenge a discharge by their public employer — all

within abbreviated limitation periods, see infra at 9-10, as

well as an established common law of Maryland requiring

a public employee to assert his employment dispute in

court in an expeditious fashion. See Duffey v. Rickard, 194

Md. 228, 71 A.2d 41 (1950) (5% months).

The employees’ only response was to argue that these

statutes and case law do not apply to them because they

are not merit system employees. The Fourth Circuit,

however, did not reject the statutory and common law

limitation periods for public employment disputes on this

ground. Rather the court concentrated simply on the

length of the limitation periods, noting twice in the space

of two paragraphs that these periods were “even shorter”

than the period rejected in McNutt. App. at 20. The

Court then made its own independent and conclusory

assessment of the “intent” of the Maryland legislaturé and

found that even though abbreviated limitations periods

were mandated by statutes and case law governing the

rights of public employees, the legislature could not have

ur

7

“intended” that a limitations period of this brevity be

applied “to civil actions for discrimination.” App. at 20.°

Accordingly, the Court held that the general limitations

period of three years for actions for which no other period

is specifically provided, Maryland Code, Courts & Judicial

Proceedings Art. §5-101, should be applied in “discrimi-

nation suits brought under the Civil Rights Acts by

employees in public as well as private employment.” App.

21.

REASONS FOR GRANTING REVIEW

5.

REVIEW BY THIS COURT IS NECESSARY TO CORRECT A DE-

CISION THAT BOTH UNDERMINES THE LEGITIMATE AND LONG.

RECOGNIZED POLICY OF MOST STATES REQUIRING PROMPT

ASSERTION AND RESOLUTION OF PUBLIC EMPLOYEE DISPUTES

AND CLEARLY DEPARTS FROM CASES OF THIS COURT.

Since Congress did not establish a statute of limitations

for actions brought under 42 U.S.C. §1983 and similar

civil rights statutes,* federal courts are generally required

to borrow the state statute of limitations governing an

analogous cause of action. Board of Regents v. Tomanio,

446 U.S. 478, 484 (1980). See also, Johnson v. Railway

Express Agency, Inc., 421 U.S. 454, 462 (1975). In most

cases, the state statute of limitations for the mast

* The Fourth Circuit also rejected the State’s alternative

argument that the employees claims of race and sex discrimi-

nation first raised in their 1981 complaint «id not “relate back”

to the 1977 complaint and so were not timely filed even if a

three-year limitations period was applicable. App. 22. The state

does not pursue that argument before this Court.

* Respondents below pressed claims under 42 U.S.C. §§ 1981,

1985 and 1986, as well as § 1983, and all of these were dismissed

as untimely by the District Court. However, for the sake of

simplicity in argument and because a federal court’s approach to

limitation issues under these statutes would not ordinarily be

expected to vary from one statute to another under 42 U.S.C.

§ 1988, Petitioners will principally refer to § 1983 throughout

their petition.

8

analogous state cause of action is the “binding rule of law”

in federal civil rights actions, which can be «disregarded

only if “inconsistent with the Constitution and laws of the

United States.” Board of Regents v. Tomanio, supra, 446

U.S. at 484-5 and 42 U.S.C. $1988.

Both of these inquiries — the question of what state

cause of action for which there is a limitations period is

most clearly analogous to the federal civil rights claim and

the question of whether that limitations statute is

inconsistent with the United States Constitution and

federal law — are grounded in considerations of comity

and federalism. See Board of Regents v. Tomanio, supra,

446 U.S. at 492 (“Considerations of federalism are quite

appropriate in adjudicating federal suits based on 42

U.S.C. §1983”). This is so as to the first inquiry because

“(t]he ultimate goal is to apply the same limitations period

to the federal civil rights action as would be applied if a

similar action were brought in state courts.” Warren v.

Norman Realty Co., 513 F.2d 730, 733 (8th Cir. 1975), cert.

denied, 423 U.S. 855 (1975); and as to the second, because

in order to “gauge inconsistency,” a federal court must

first identify and thus compare the “federal and state

policies which the respective legislatures sought to foster.”

Board of Regents v. Tomanio, supra, 446 U.S. at 487.

The Court of Appeals below mishandled both of these

inquiries. In particular, it ignored its duty to place itself in

the position of a state court judge and to determine the

appropriate state limitations period with full con-

sideration of state statutory and common law and the

policies they reflect. In addition, it, in effect, found

“inconsistency” without even attempting to articulate the

state policies harmed by its decision. This would and

should have been a very easy task.

The courts of at least 35 states, including Maryland and

the District of Columbia, have had no trouble in articu-

9

lating a common law rule requiring the employment

disputes of public employees to be promptly asserted and

promptly resolved. See, Annot.: Acquiescence or Delay as

Affecting Rights of Public Employees Illegally Discharged,

Suspended or Transferred, 145 A.L.R. 767 (1943) (and

A.L.R. Supplements) which collect more than 100 cases on

the subject — some going as far back as 1879.

The Legislatures of most states obviously share this

view that public employees should promptly assert

grievances and legal actions against their employers,

including those involving discrimination charges. For

example, Maryland law sets up a scheme under which a

classified state employee has 165 days to challenge a

termination. See Md. Code., Art. 64A, §33.° Even un-

classified state employees have a specific remedy for an

alleged illegal, discriminatory or unconstitutional termi-

nation which must be asserted and appealed to court in

an even shorter period — 95 days. Code of Maryland

Regulations COMAR 06.01.01.60.° And Maryland has a

host of other statutes which require that various classes of

public employees’ employment disputes be promptly

resolved — Article 27 §§721 and 734 (Law Enforcement

° Article 64, § 33 of the Maryland Code provides that when a

classified employee (one covered by the State Merit System) is to

be terminated or “permanently removed from the classified

service,” written charges must be filed against him and he must

be given an opportunity to be heard in his own defense. See also

COMAR 06.01.01.61. These charges must be heard within

ninety (90) days after filing and a decision on them must be

rendered within forty-five (45) days after the hearing. There-

after, an appeal is permitted to the Circuit Court within thirty

(30) days. Md. Rule of Procedure B4.

® An unclassified employee who receives a notice of termi-

nation has five working days to note an appeal to the Secretary

of Personnel who must hear the case within 30 days and render

a decision within another 30 days. Thereafter, an appeal to the

Circuit Court must be filed within another 30 days. Md. Rule of

Procedure B4.

10

Officers); Education Article §6-202 (Teachers and Prin-

cipals), §13-1A-01 et seg. University of Maryland Employ-

ees), §14-110 (Board of Trustees of State Universities and

Colleges Employees).

Most significantly, Maryland shares with most states —

t least 30 — the establishment by legislation of an

abbreviated period for the filing of claims of employment

discrimination with a state fair employment practices

agency. In Maryland, that period is 6 months. See Md.

Code, Article 49B, §9(a). Many states have the same filing

deadline; some have an even shorter period.’ Yet, in the

” See ARIZ. REV. STAT. ANN. § 41.1481 (six-month limi-

tation; employment discrimination); COLO. REV. STAT.

§ 24-34-403 (six-month limitation; employment discrimination);

CONN. GEN. STAT. 31-127 (90-day limitation; employment

discrimination); DEL. CODE ANN. Tit. 19, §712 (90-day

limitation; employment discrimination); FLA. STAT. ANN.

§ 23.167 (six-month limitation; employment discrimination);

GA. CODE ANN. § 89-1714 (six-month limitation; employment

discrimination); HAWAII REV. STAT. § 378-4 (90-day limi-

tation; discrimination action); ILL. REV. STAT. ch. 68 § 7-102

and 103 (180-day limitation; civil rights violation); IND. CODE

ANN. § 34-4-16.5-7 (180-day limitation; political subdivision

claim); IOWA CODE ANN. § 601 A.1512) (180-day limitation;

employment discrimination); KAN. STAT. ANN. § 44-1005

(six-month limitation; employment discrimination); KY. REV.

STAT. 344.200 (six-month limitation; employment discrimi-

nation); ME. REV. STAT. ANN. Tit. 5 §4611 (six-month

limitation; employment discrimination); MASS GEN. LAWS

ANN. ch. 151B § 5 (six-month limitation; employment discrimi-

nation); MICH. STAT. ANN. § 3.548 (601) II(b) (90-day limi-

tation; employment discrimination); MINN. STAT. ANN.

§ 363.06 (six-month limitation; employment discrimination);

MO. ANN. STAT. § 296.040 (180-day limitation; employment

discrimination); MONT. CODE ANN. § 49-2-501 (six-month

limitation; employment discrimination); NEB. REV. STAT.

§ 18-1118 (six-month limitation; empl t discrimination);

NEV. REV. STAT. § 613.430 (six-month limitation; employment

discrimination); N.H. REV. STAT. ANN. § 354-A:09 (90-day

limitation; discrimination actions); OKA. STAT. ANN. Tit. 25

$ 1502 (six-month limitation; oy anager discrimination); PA.

STAT. ANN. Tit. 43, § 960 ( y limitation; discrimination

11

face of all this authority to the contrary, the lower court

was able to conclude that the Maryland General Assembly

“intended” that public employees were to have three years

before beginning to litigate a claim of employment

discrimination.

What would the lower court have found if it had placed

itself in the position of a Maryland Court facing the same

discrimination claims brought without resort to the

federal civil rights statutes? It would have found that a

public employee bringing a claim for a discriminatory

firing would have had to file a mandamus action in state

court or pursue his or her statutory or administrative

remedies.

As to the first remedy, mandamus, in Maryland, this

action has as its purpose to correct the abuse of

governmental power, particularly illegal, arbitrary and

even unconstitutional action. Since the 1850’s it has

served as a legal route for a public officer or employee to

challenge his ouster and regain his position. See e.g., Miles

v. Stevenson, 80 Md. 358 (1894). Unlike a state court

action for private employment discrimination, which

would require express statutory authority, Dillon v. Great

Atlantic and Pacific Tea Co., 43 Md. App. 161, 403 A.2d

406 (1979), no legislative authorization is needed to confer

such a private right of action on a public employee via

mandamus. See, Heaps v. Cobb, 185 Md. 372, 45 A.2d 73

(1945). (Maryland courts have inherent power by way of

mandamus or otherwise to review arbitrary or illegal

actions); R.I. GEN. LAWS § 28-6-10 (four-month limitation;

employment discrimination); S.C. CODE ANN. § 65-2D(1)

(six-month limitation; employment discrimination); 8.D. CODI-

FIED LAWS § 20-13-31 (180-day limitation; discrimination

action); TENN. CODE ANN. 4-21-117 (180-day limitation;

discrimination action); UTAH CODE ANN. 34-35-7(15) (30-day

limitation; discrimination action); W. VA. CODE 45-11-10-

90-day limitation; discrimination action); WYO. STAT.

§ 27-9-106 (90-day limitation; employment discrimination).

—

12

governmental action.) And mandamus is an action at law

which, like 42 U.S.C. §1983, offers a damage remedy,

Maryland Rule BE44, ancillary injunctive relief, Mary-

land Rule BF, and the right to a jury trial.

If such an employee had brought his or her mandamus

action in a reasonably prompt manner, there, would be no

bar to relief if the claim had merit. However, if the

plaintiff, like the respondents in this case, waited nearly

eight months before going to court, his or her claim would

be barred by laches under the Maryland decision in Duffey

v. Rickard, 194 Md. 228, 71 A.2d 41 (1950) (Public

employee suit time-barred after 52 months.)

On the other hand, if the plaintiff had access to public

employee grievance remedies or claimed employment

discrimination proscribed by Maryland's Human Relations

Law (Art. 49B), his or her mandamus remedy would be

barred by the existence of such alternate remedies. See

Gray v. Warden, 247 Md. 724, 234 A.2d 603 (1967)

(correction guard entitled to removal proceeding under

§33 of Article 64A may not obtain relief by way of

mandamus). This would be true ever if the public

employee claimed that -his discharge violated the United

States Constitution. State Department of Assessments v.

Clark, 281 Md. 385, 380 A.2d 28, (1977). The plaintiff's

only state judicial remedy would be that provided by the

particular statutory or administrative scheme. And failure

to abide by the time limitations of the grievance

procedures or Article 49B would take away any state court

remedy he or she might have otherwise had. See Myers v.

Chief of Fire Bureau, 237 Md. 583, 589-590, 207 A.2d 467

(1965).

Thus, these statutory deadlines and the laches rule of

Duffey v. Richard, supra, are genuine bars to a state court

discrimination action by a public employee; and they

would be applicable in the state court proceeding most

13

clearly analogous to 42 U.S.C. §1983.° The same would be

true of the statutes and common law laches rules of most

states.”

The lower court not only rejected long-standing and

widespread state policies in determining what state cause

of action was most analogous to 42 U.S.C. § 1983, it

ignored them in effectively concluding that the proffered

state limitations were too short to be consistent with

federal law. This issue is common to those raised in the

pending petitions for certiorari in Springfield Township

® Significantly, in a state court action brought pursuant to 42

U.S.C. §1983 and alleging discrimination against a public

employee, the State made the same limitation argument

rejected by the Grattan court and the Circuit Court dismissed

the plaintiffs civil rights claim. See Darlene S. Cohen v. F.

Carvel Payne and the State of Maryland, Cir. Ct. for Anne

Arundel County Law No. 1105000 (Order filed April 20, 1983).

® The lower court not only erred in ignoring clear state policy

in favor of abbreviated limitations periods for public employees

actions and in masquarading its distaste for the state rule in

unsubstantiated statements about the “intent” of Maryland

Statutes. It further evidenced its misreading of Maryland law in

at least two other respects. The appellate panel said that

deadlines for state grievance proceedings could not be applied to

judicial proceedings because in such cases the grievances are

state-initiated and the state bears the burden of proof and of

14

School District v. Knoll, No. 82-1889, and Swyka uv.

Johnson, No. 82-1928.'°

This Court, in Tomanio, required federal courts to assess

the state policies behind limitation statutes in deter-

mining “inconsistency” with federal law. And in Robertson

v. Wegmann, 430 U.S. 584, 593 (1978), the Court said that

“a state statute cannot be considered ‘inconsistent’ with

federal law merely because the statute causes the plaintiff

to lose the litigation.” There is nothing “too short” about a

six-month limitation period for public employee discrimi-

nation cases. Under federal law, a Title VII plaintiff will

generally be out of federal court if he did not file a

complaint with the Equal Employment Opportunity

Commission within six months of the allegedly dis-

criminatory act. 42 U.S.C. 2000e-5(e). And six months is

longer than the applicable period in some states for public

employee mandamus actions. See e.g., Austin v. Board of

Higher Education, 186 N.Y.S.2d 1 (1959) (four months);

Anno. — Public Employee — Discharge — Acquiescence,

145 A.L.R. 767 (1943). In fact, just last term, this Court in

a somewhat different context held that a six-month

limitations period was an appropriate one for certain

disputes between an employee and his union. Del Costello

v. International Brotherhood of Teamsters, 51 U.S.L.W.

4693 (June 8, 1983). Moreover, it is likely that a

discharged public employee is thinking of his or her

judicial remedies immediately after being terminated —

particularly a potential Title VII plaintiff who only has six

months to make up his or her mind to pursue a federal

statutory claim. Finally, nothing in such a limitation rule

runs counter to the twin purposes of deterrence and

compensation reflected in 42 U.S.C. $1983.

10 For the reasons set forth by the petitioners in Knoll and

Swyka and set forth infra by petitioners herein, the decision of

the Court of Appeals forthe Fourth Circuit is clearly wrong.

15

Although this case has much in common with the Knoll

and Swyka cases, it is also different in a number of

important respects. Unlike those cases, it involves the

vexing question of what state cause of action is most

analogous to §1983. Moreover, it involves the application

vel non of an age-old state common law rule, rather than a

brand new statute as is Knoll and Swyka. And it presents

for review the question whether a state limitations period

set forth in a mixed administrative-judicial scheme can be

applied in a federal §1983 action. In fact, the Respondent

in Knoll, in arguing against review in that case and

against the amicus brief filed by Maryland therein, said:

“The petition in this case [Knoll] does not present

those recurring issues. If the issue presented in this

case were to arise in a case that presents those

additional questions of more general importance, it

might in that context warrant review.”

Petitioners submit that this is such a case and that review

is warranted.

Il.

THE DEEP DIVISION AMONG THE LOWER COURTS ON THIS

CRITICAL QUESTION WHICH RESULTED IN THE UNSANCTIONED

HOLDING BELOW SHOULD BE RESOLVED BY THIS COURT.

The question of whether a state statute of limitations

can be rejected by a federal court in § 1983 cases for any

reason other than a finding that it does not govern the

most analogous state cause of action has caused enormous

division among the lower courts. Much of that division

centers on two unauthorized approaches to this question.

Both were adopted by the court below: i.e., refusal to

borrow a state statute of limitations, even though that

statute governs the state action most analogous to the

federal claim, because (1) an administrative rather than

judicial remedy is provided in state law or (2) the federal

court determines the state limitations period is simply

“too short.”

f

16

As to the refusal to apply an analogous administrative

remedy, a number of courts have refused to apply a state

statute of limitations governing administrative remedies,

like Maryland Code, Art. 49B, §9(a), to a judicial action

brought under the Civil Rights Acts. See McNutt v. Duke

Precision Dental and Orthodontic Laboratories, supra, 698

F.2d 676; Zuniga v. AMFAC Foods, Inc., 580 F.2d 380

(10th Cir. 1978); Chambers v. Omaha Public School

District, 536 F.2d 222 (8th Cir. 1976); Mason v. Owens —

Illinois, Inc., 517 F.2d 520 (6th Cir. 1975); Waters uv.

Wisconsin, Steelworks of International Harvester Co., 427

F.2d 476 (7th Cir, 1970), cert. denied, 400 U.S. 911 (1970).

This approach seems clearly at odds with this Court’s

teachings in Board of Regents v. Toinanio, supra, 446 US.

at 184-5 (most analogous state statute of limitations is

“binding rule of law” which can be disregarded only if

inconsistent with the Constitution and laws of the United

States) and in United Parcel Service v. Mitchell, supra, 451

U.S. at 62 n.3 (“the fact that an employee could not bring

a direct suit [in State Court]. . . does not mean that his

$301 [federal] claim . . . is not closely analogous to such

an action” and so should not be adopted under any

circumstances.)

However, whatever may be the merits of refusing to

borrow a state administrative statute of limitations for

federal actions in other contexts, it seems clearly inap-

propriate in cases involving charges of discrimination by a

public employee. And, in fact, only one circuit, other than

the court below, has refused to apply a state statute of

limitations on this ground in an employment dispute

involving a public employee. See Chambers v. Omaha

Public School District, supra. Moreover, there the court

paid no attention to the fact that Chambers was a public

employee and so there was no acknowledgement of a

particularly significant state interest in this area. See

supra, Argument, §1. Perhaps even more importantly, the

17

Chambers court based its holding, at least in part, on the

fact that application of a short statute of limitations in

that case would have barred the plaintiff’s First Amend-

ment claim. 536 F.2d at 227. Here, of course, there is no

contention that any First Amendment claim is barred by

the “short” statute of limitations. Thus Chambers is

clearly distinguishable from the case at hand.

Moreover, the First Circuit in a series of well-reasoned

opinions has expressly recognized that in the area of

public employment disputes “important policy reasons”

require the application of the limitations period governing

the state statute protecting the same rights sought to be

vindicated by a federal civil rights action, even if that

state statute provides only an administrative remedy. In

Burns v. Sullivan, 619 F.2d 99, 106-107 (1st Cir.), cert.

denied, 449 U.S. 893 (1980) the First Circuit held that a

Massachusetts statute, nearly identical to Article 49B,

which provided that charges of employment discrimi-

nation must be filed with the Massachusetts Human

Relations Commission within six months, should be

applied in a public employee’s suit brought under 42

U.S.C. § 1983. The court explained that to apply a three-

year limitations period'' in §1983 public employee suits

would allow “state employees to bide their time and use

the federal courts, bypassing the state administrative

hearings” resulting in “two unfortunate results”:

“First, the general government policy, observed at

‘both the state and federal levels, of prompt

resolution of personnel disputes, will be thwarted.

Second, without any showing that state admin-

istrative procedures will not provide the plaintiff

‘! The Burns court also specifically noted that a general

three-year statute of limitations, like that applied by the Fourth

Circuit in the case at hand, should only be applied where the

state has not “provided a specific remedy, complete with statute

of limitations for racial discrimination in public employment.”

619 F.2d at 107.

18

with due process and protect against constitutional

violations, the federal courts will become surrogate

state personnel departments.” 619 F.2d at 107.

The First Circuit has consistently followed and indeed,

expanded its holding in Burns in a number of recent cases.

See e.g., Dewey v. University of New Hampshire, 694 F.2d 1

(1st Cir. 1982); Carter v. Supermarkets General Corp., 684

F.2d 187 (1st Cir. 1982); Holden v. Massachusetts Com’n.

Against Discrimination, 671 F.2d 30 (1st Cir.), cert.

denied, 103 S. Ct. 97 (1982); Hussey v. Sullivan, 651 F.2d

74 (1st Cir. 1981). The Court below totally ignored this

authority. Indeed, the Fourth Circuit here not only failed

to distinguish these cases but it also failed to even address

them. This is particularly anomolous in light of the fact

that another panel of the Court only a few months prior to

this decision at hand expressly recognized that these First

Circuit cases were “respectable authority.” McNutt v.

Duke Precision Dental and Orthodontic Laboratories,

supra, 698 F.2d at 678.

Aside from the conflict, the holding below presents with

the well-reasoned First Circuit decisions as to the

applicability of administrative limitations periods to

actions brought under the Civil Rights Acts, its reasoning

seriously conflicts with the approach adopted by most

lower courts. For the Fourth Circuit in this case seems to

have refused to apply the statutory and common law

abbreviated limitations periods specifically governing

public employee disputes, simply because it found those

periods “too short.” Not only has this approach been

expressly disavowed, Burns v. Sullivan, supra, 619 F.2d

106-107 (noting short state limitations period “no shorter

than six-month period available to federal and state

employees under Title VII”); see also, Garcia v. University

of Kansas, 702 F.2d 849 (10th Cir. 1983); White v. United

Parcel Service, 692 F.2d 1 (5th Cir. 1982), but also it has

not been adopted even by those federal courts which have

19

chosen a longer state statute of limitations over a shorter

one. See e.g., Beard v. Robinson, 563 F.2d 331 (7th Cir.

1977); Shaw v. McCorkle, 537 F.2d 1289 (5th Cir. 1976);

Peterson v. Fink, 515 F.2d 815 (8th Cir. 1975), and cases

cited infra at 20. Not one of these courts rejected a

shorter statute of limitations simply because it was “too

short.”

If such an approach is permitted to stand it could have

an enormous effect throughout the country. At least thirty

other states have state statutes of limitations of less than

one year which could be applied to civil rights actions

brought by employees. See n.7, supra. Each of these states

has made a considered decision in balancing the interests

of potential plaintiffs and defendants. The Fourth Circuit’s

decision here obviously undermines the power given to the

states by Congress in 42 U.S.C. $1988.

Significantly, the Court below did not cite a single case

in support of its momentous decision not to apply

abbreviated limitations periods just because they were

“too short.”!? The only other court which has taken such

'2 Moreover, the only reason asserted by the employees for

rejecting these limitations periods — i.e., the periods were

inapplicable to them because they were not merit system

employees — was correctly and soundly rejected by the First

Circuit in Holden v. Comm. Against Discrimination, supra, 671

F.2d at 33:

“Holden argues that . . . Burns should not apply to her

because she does not haveiavailable (because, although a

public employee, she was not appointed as civil servant]

the administrative remedies that are contemplated by

the statute applied in those cases. The unavailability of

the state administrative remedies does tend to violate

the policies observed in Burns. . . . Nevertheless, the

statutes applied in... Burns are still the ‘most

analogous’ to Holden’s claims, and we see no reason to

give her a longer limitations period than that available

to other public employees in Massachusetts. We do not

think that the decision of the Massachusetts legislature

not to give certain public employees such as Holden an

administrative remedy entitles them to a longer limi-

tations period.”

20

an unorthodox and unauthorized approach in a public

employer dispute is the Third Circuit in a recent case

which this Court has been asked to review. Springfield

Township School District ». Madelin H. Knoll, 699 F.2d

137 (8rd Cir. 1983), reh. denied, 699 F.2d 137 (3rd Cir.

1983), petition for cert. filed, No. 82-1889 (May 20, 1983).

(Interestingly, the respondent there, while opposing grant

of certiorari in that case, principally on the theory that it

involves a peculiar state statute, concedes that “the

decisions of the lower courts are in disarray” with regard

to the questions raised in the case at hand. Brief of

Respondent in Opposition at 6).

Another recent decision containing language arguably

supporting such an approach is Garmon v. Foust, 668 F.2d

400, 406 (8th Cir.), cert. denied, 102 S. Ct. 2283 (1982)

(“we . . . reject the tort analogy because it unduly cramps

the significance of Section 1983 as a broad statutory

remedy.”) However, that case, a civil rights action against

police officers, did not involve the established public policy

in favor of resolving employment disputes of public

employees expeditiously as the case at hand does.

Moreover, in Garmon, since the police officers did not raise

it, the Garmon Court specifically reserved the question of

whether a state statute, which required any person

claiming damages against a municipality to commence the

action within six months, should be applied. Jd. 668 F.2d

at 405 n.9.

The only other cases which in any way support the

lower court’s holding come from the Tenth Circuit, which

has indicated, in dicta, that if a substantial question exists

as to which state statute applies, it will apply the “more

generous” limitation period as a matter of policy. See e.g.,

Shah v. Halliburton, 627 F.2d 1055, 1059 (10th Cir. 1980).

However, the Tenth Circuit has recently disavowed that

position. Garcia v. University of Kansas, 702 F.2d 849

(10th Cir. 1983).

21

In summary, the lower courts are clearly divided in this

area; some applying administrative state limitations

periods to analogous federal civil rights actions, many

refusing to do so; most attempting to apply the most

nearly analogous judicia) limitations period whatever its

length, but a few, the court below among them refusing

even to do this. Certiorari should be granted so that this

important public policy question can be definitively

resolved.

22

CONCLUSION

No one case could resolve all of the possible limitations

issues that could arise in a federal court action under 42

U.S.C. §1983.'° However, the issue of what limitations

period is appropriate is a particularly acute and recurring

one in the area of employee discrimination actions brought

against states and other public employers. Because so

many states have articulated a policy of prompt assertion

and resolution of public employment disputes, and because

so many are affected by the important questions raised

herein, we urge that review be granted and this Court

reverse the decision of the Court of Appeals for the Fourth

Circuit.

Respectfully submitted,

Srepuen H. Sacus,

Attorney General of Maryland,

Diana Grispon Mora,

CurisTINE STEINER,

Rosert A. ZARNOCH,

Assistant Attorneys General,

Counsel of Record,

7 North Calvert Street,

Munsey Building — Second Floor,

Baltimore, Maryland 21202,

(301) 576-6338.

‘3 A much longer limitations period might be appropriate in

civil rights actions based upon other kinds of constitutional

violations. For example, Maryland once had an express three-

year statute of limitations for violations of certain State

constitutional isions that protect S goes physical invasion

fp a liberty interests. See Md. Code (1972 Repl. Vol.),

. 57, $1.

App. 1

APPENDIX A

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES

U.S. Constitution—

AMENDMENT I—FREEDOM OF RELIGION,

SPEECH AND PRESS; PEACEFUL

ASSEMBLAGE; PETITION OF

GRIEVANCES

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

AMENDMENT XIV, §1—CITIZENSHIP; PRIVI-

LEGES AND IMMUNITIES; DUE PROCESS;

EQUAL PROTECTION; APPORTIONMENT OF

REPRESENTATION; DISQUALIFICATION OF

OFFICERS; PUBLIC DEBT; ENFORCEMENT

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

Title 42, United States Code:

§ 1981. Equal rights under the law

All persons within the jurisdiction of the United States

shall have the same right in every State and Territory to

make and enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is

enjoyed by white citizens, and shall be subject to like

App. 2

punishment, pains, penalties, taxes, licenses, and exac-

tions of every kind, and to no other.

$1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory,

subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

Ch. 21 CIVIL RIGHTS 42 § 1985

§ 1985. Conspiracy to interfere with civil rights

Preventing officer from performing duties

(1) If two or more persons in any State or Territory

conspire to prevent, by force, intimidation, or threat, any

person from accepting or holding any office, trust, or place

of confidence under the United States, or from discharging

any duties thereof; or to induce by like means any officer

of the United States to leave any State, district, or place,

where his duties as an officer are required to be

performed, or to injure him in his person or property on

account of his lawful discharge of the duties of his office,

or while engaged in the lawful discharge thereof, or to

injure his property so as to molest, interrupt, hinder, or

impede him in the discharge of his official duties;

Obstructing justice; intimidating party,

witness, or juror

(2) If two or more persons in any State or Territory

conspire to deter, by force, intimidation, or threat, any

party or witness in any court of the United States from

attending such court, or from testifying to any matter

pending therein, freely, fully, and truthfully, or to injure

such party or witness in his person or property on account

of his having so attended or testified, or to influence the

verdict, presentment, or indictment of any grand or petit

App. 3

juror in any such court, or to injure such juror in his

person or property on account of any verdict, presentment,

or indictment lawfully assented to by him, or of his being

or having been such juror; or if two or more persons

conspire for the purpose of impeding, hindering, obstruc-

ting, or defeating, in any manner, the due course of justice

in any State or Territory, with intent to deny to any

citizen the equal protection of the laws, or to injure him or

his property for lawfully enforcing, or attempting to

enforce, the right of any person, or class of persons, to the

equal protection of the laws;

Depriving persons of rights or privileges

(3) If two or more persons in any State or Territory

conspire or go in disguise on the highway or on the

premises of another, for the purpose of depriving, either

directly or indirectly, any person or class of persons of the

equal protection of the laws, or of equal privileges and

immunities under the laws; or for the purpose of

preventing or hindering the constituted authorities of any

State or Territory from giving or securing to all persons

within such State or Territory the equal protection of the

laws; or if two or more persons conspire to prevent by

force, intimidation, or threat, any citizen who is lawfully

entitled to vote, from giving his support or advocacy in a

legal manner, toward or in favor of the election of any

lawfully qualified person as an elector for President or

Vice President, or as a Member of Congress of the United

States; or to injure any citizen in person or property on

account of such support or advocacy; in any case of

conspiracy set forth in this section, if one or more persons

engaged therein do, or cause to be done, any act in

furtherance of the object of such conspiracy, whereby

another is injured in his person or property, or deprived of

having and exercising any right or privilege of a citizen of

the United States, the party so injured or deprived may

have an action for the recovery of damages occasioned by

such injury or deprivation, against any one or more of the

conspirators.

App. 4

§ 1986. Action for neglect to prevent

Every person who, having knowledge that any of the

wrongs conspired to be done, and mentioned in section

1985 of this title, are about to be committed, and having

power to prevent or aid in preventing the commission of

the same, neglects or refuses so to do, if such wrongful act

be committed, shall be liable to the party injured, or his

legal representatives, for all damages caused by such

wrongful act, which such person by reasonable diligence

could have prevented; and such damages may be recovered

in an action on the case; and any number of persons guilty

of such wrongful neglect or refusal may be joined as

defendants in the action; and if the death of any party be

caused by any such wrongful act and neglect, the legal

representatives of the deceased shall have such action

therefor, and may recover not exceeding $5,000 damages

therein, for the benefit of the widow of the deceased, if

there be one, and if there be no widow, then for the benefit

of the next of kin of the deceased. But no action under the

provisions of this section shall be sustained which is not

commenced within one year after the cause of action has

accrued.

$1988. Proceedings in vindication of civil rights;

attorney’s fees

The jurisdiction in civil and criminal matters conferred

on the district courts by the provisions of this Title, and of

Title “CIVIL RIGHTS,” and of Title “CRIMES,” for the

protection of all persons in the United States in their civil

rights, anc for their vindication, shall be exercised and

enforced in conformity with the laws of the United States,

so far as such laws are suitable to carry the same into

effect; but in all cases where they are not adapted to the

object, or are deficient in the provisions necessary to

furnish suitable remedies and punish offenses against law,

the common law, as modified and changed by the

constitution and statutes of the State wherein the court

having jurisdiction of such civil or criminal cause is held,

so far as the same is not inconsistent with the Con-

App. 5

stitution and laws of the United States, shall be extended

to and govern the said courts in the trial and disposition of

the cause, and, if it is of a criminal nature, in the infliction

of punishment on the party found guilty. In any action or

proceeding to enforce a provision of sections 1981, 1982,

1983, 1985, and 1986 of this title, title IX of Public Law

92-318, or title VI of the Civil Rights Act of 1964, the

court, in its discretion, may allow the prevailing party,

other than the United States, a reasonable attorney’s fee

as part of the costs.

MARYLAND ANNOTATED CODE

COURTS & JUDICIAL PROCEEDINGS ARTICLE

§5-101. Three-year limitation in general.

A civil action at law shall be filed within three years

from the date it accrues unless another provision of the

Code provides a different period of time within which an

action shall be commenced.

Art. 49B ANNOTATED CODE OF MARYLAND

§9. Complaint to be filed with or issued by Com-

mission; meetings of Commission.

(a) Any person claiming to be aggrieved by an alleged

discrimination prohibited by any section of this article

may make, sign and file with the Human Relations

Commission (hereinafter referred to as the “Commission”)

a complaint in writing under oath. The complaint shall

state the name and address of the person, firm, as-

sociation, partnership, corporation, state agency, depart-

ment or board alleged to have committed the act of

discrimination together with the particulars thereof; and

the complaint also shall contain such other information as

may be required from time to time by the Commission. A

complaint must be filed within six months from the date of

the occurrence alleged to be a violation of this article. A

complaint filed with the federal or with a local human

relations commission within six months from the date of

occurrence shall be deemed to have complied with the

provisions of this section.

App. 6

(b) Whenever the Commission has received reliable

information from any individual or individuals that any

person has been engaged or is engaged in any dis-

criminatory practice within the scope of this article, and

after a preliminary investigation by the Commission’s

staff authorized by the chairman or vice-chairman it is

satisfied that said information warrants the filing of a

complaint, the Commission, on its own motion, and by

action of not less than three commissioners, may issue a

complaint in its name in the same manner as if the

complaint had been filed by an individual.

(c) The Commission shall meet at least once each month.

In addition, the chairman or a majority of the Commission

shall have the right at any time to call special meetings of

the Commission upon five (5) days notice to the members

thereof. The Commission shall establish procedures for the

conduct of said meetings.

§10. Investigation; findings; agreement for elimi-

nation of discrimination; appeals.

(a) After the filing of any complaint the executive

director shall consider the complaint and shall refer it to

the Commission’s staff for prompt investigation and

ascertainment of the facts. The results of the investigation

shall be made as writtén findings. A copy of the findings

shall be furnished to the complainant and to the person,

firm, association, partnership or corporation (hereinafter

referred to as the “respondent”), against whom or \ iich

the complaint is made.

(b) If the finding is that there is probable cause for

believing a discriminatory act has been or is being

committed within the scope of any of these subtitles, the

@ommission’s staff immediately shall endeavor to elimi-

nate the discrimination by conference, conciliation, and

persuasion, and shall forward a written copy of the

findings of any investigation of a real estate agent or

broker to the real estate commission.

App. 7

(c) If an agreement is reached for the elimination of the

discrimination as a result of the conference, conciliation

and persuasion the agreement shall be reduced to writing

and signed by the respondent, and an order shall be

entered by the Commission setting forth the terms of the

agreement. The Commission shall not enter an order at

this stage of the proceedings unless it is based upon a

written agreement. If no such agreement can be reached, a

finding to that effect shall be made and reduced to writing

with copies furnished to the complainant and to the

respondent.

(d) A denial of the request for reconsideration of a

finding of no probable cause by the Commission is a final

order appealable to the circuit court as provided in §255 of

Article 41 of this Code provided that the United States

Equal Employment Opportunity Commission does not

have jurisdiction over the subject matter of the complaint.

§12. Enforcement of Commission’s orders; com-

plaint maliciously made; right to bring civil

action not denied.

(a) If any respondent refuses to comply with an order of

the Commission made within the scope of any of these

subtitles, the Commission may, represented by its general

counsel, institute litigation in the appropriate equity court

of the county or in Baltimore City where the alleged

discrimination took place to enforce compliance with any

of the provisions of this article.

The court, in hearing said case shall be governed by the

judicial review standards as set forth in the Admin-

istrative Procedures Act, $§255-256 of Article 41 of the

Annotated Code of Maryland, except that additional

evidence if otherwise admissible under the law of evi-

dence, may be presented to the court without the necessity

of an application or without the necessity of showing

reasons for the failure to present it at the hearing before

the Commission.

App. 8

(b) Any person (including one acting for or on behalf of

a firm, association, or corporation) is guilty of a mis-

demeanor if

(1) He has claimed to be aggrieved under the provisions

of this subtitle; and

(2) He has pursued the complaint under §§ 14 and 15

{§§11 and 12] of this subtitle, or either of these sections;

and

(3) The Commission has found the complaint to be

unfounded or has dismissed it without further action

against the respondent; and

(4) The court has found the complaint to have been

made maliciously; and

Upon conviction thereof in the appropriate criminal

court, he is subject to a fine of not more than five hundred

dollars, or to imprisonment for a period not expeeding one

year, or to both such fine and imprisonment in the

discretion of the court.

This subsection shall not be construed or applied to deny

the right of a respondent to bring any civil action against

one who has filed a complaint under this subtitle.

Art. 64A, §33 ANNOTATED CODE OF MARYLAND

$33. Separation of employees.

An employee may be permanently separated from the

classified service through resignation, rejection on pro-

bation or removal, and may be temporarily separated

through layoff, suspension or leave of absence.

The Secretary of Personnel shall by rule prescribe what

shall constitute resignation.

The appointing authority may at any time before the

expiration of the probation period reject any person

appointed to a position in his department upon statement

App. 9

’ in writing to the Secretary of Personnel of the cause for

rejection; the probation period shall be for a period not

exceeding 90 days, except for positions higher than the

pay scale numbered 7 on January 1, 1967, in which

positions the probation period shall be for a period not

exceeding six months, unless the appointing authority

shall suggest and the Secretary shall approve a longer

period, which shall in no event under any circumstances,

including changes of job classifications, exceed six months,

except for positions higher than the pay scale numbered

12 on January 1, 1967, in which positions the period of

probation shall not exceed one year, provided that no

appointing authority shall have power to remove a

probationer who has been appointed by promotion from

another class without the consent of the Secretary. The

employee so rejected shall be considered permanently

separated from such position, but the Secretary may keep

the name of the person thus rejected on the eligible list

from which he was appointed for future certification to

another position in the class to which the list applies.

No employee who has completed his probation may be

permanently removed from the classified service except for

cause, upon written charges and after an opportunity to be

heard in his own defense. Such charges may be filed by the

appointing authority or by any citizen, provided, however,

that no such charges may be filed by a citizen, without the

consent of the appointing authority or of the Secretary,

and such charge shall within ninety days after filing, be

heard, investigated and determined by the Secretary or by

some person or board appointed by the Secretary to hear,

investigate and determine the same. The Secretary of

Personne! shall render this decision within 45 days after a

hearing is held before him or his authorized represen-

tative or within 45 days after all legal memoranda or

briefs have been filed.

The finding and decision of the Secretary or of such

person or board when approved by the Secretary shall be

final, and shall be certified to the appointing authority

and shall be forthwith enforced by such authority.

App. 10

The Secretary shall, by rule, prescribe what may

constitute cause for removal, but no removal shall be

allowed because of the religious or political opinions or

affiliations of any employee. The provisions of this section

shall apply to the demotion of an employee as described in

§31 of this article.

Art. 64A, §52

STATE EMPLOYEE GRIEVANCE PROCEDURES

§52. Definitions.

(a) As used in this subtitle, the following words have

the meanings indicated.

(b) “Grievance” means any cause of complaint unless

otherwise provided for under this article arising between

an employee and his employer over the interpretation and

application of State employee personnel rules, regulations,

policies or any other rules, regulations or policies over

which management has control.

(c) “Work day” means any day from Monday through

Friday. (1977, ch. 727.)

§53. Employees authorized to present grievances;

representation; exceptions.

(a) Any employee classified or unclassified, of the

executive branch of the State government, unless excepted

by subsection (c) of this section, may present any

grievance which he may have, in accordance with the

provision of this subtitle, free from interference, coercion,

restraint, discrimination or reprisal.

(b) Any employee authorized to present a grievance

may be represented at any stage of the grievance

procedure by any person or persons of his choice.

(c) The following persons are excepted from the pro-

visions of this subtitle:

App. 11

(1) Persons appointed by the Governor or whose ap-

pointment requires gubernatorial approval;

(2) Deputy Attorneys General and assistant Attorneys

General, and all attorneys on the staff of the Attorney

General including counsel to the principal departments of

the executive branch of the State government;

(3) The chief deputy comptroller, and the chief deputy

treasurer;

(4) Persons who are subject to collective bargaining

agreements containing other grievance procedures;

(5) Persons who are subject to contracts, rules or

regulations concerning teacher tenure, including employ-

ees on a faculty staff;

(6) Student employees;

(7) Patients and inmates in State institutions;

Art. 64A, §54 ANNOTATED CODE OF MARYLAND

STATE EMPLOYEE GRIEVANCE PROCEDURES

§54. Steps in procedure; back pay.

(a) Steps outlined. — There shall be five steps in this

procedure.

(1) Step one. Step one shall be the initiation of a

complaint. Grievances must be initiated within 30 days of

the alleged complaint or within 30 days after the

complaining employee reasonably may be held to have

knowledge of the act of which he is complaining. An

aggrieved employee and his designated representative

may either:

(i) Present his grievance orally to his immediate

supervisor for the purpose of informal discussions. If the

grievance is unresolved after three days, the employee

may appeal to stet two, which appeal must be in writing

and filed within three days; or

App. 12

(ii) Present his grievance in writing to his intermediate

supervisor for formal consideration. If the grievance is

presented to the intermediate supervisor, the intermediate

supervisor shall within five days after receipt of the

written grievance hold a conference with the aggrieved

and or his designated representative and shall within five

days after the conclusion of the conference render his

decision in writing to the aggrieved and or his designated

representative. In the event the aggrieved employee is not

satisfied with the decision rendered at this step, he and or

his designated representative may appeal in writing to

step two within five days.

(2) Step two. The grievance appeal shall be presented,

in writing, to the program director or his designated

representative. Within five days after receipt of the

written grievance, the program director or his designated

representative shall hold a conference with the aggrieved

and or his designated representative and shall render a

written decision within ten days after the conclusion of the

conference. In the event an aggrieved is not satisfied with

the decision, he and/or his designated representative may

appeal in writing to the next step within five days.

(3) Step three. The grievance appeal shall be presented,

in writing, to the appointing authority, or his designated

representative. Within ten days after the receipt of the

written grievance appeal the appointing authority or his

designated representative shall hold a conference with the

aggrieved and/or his designated representative and shall

render a written decision to the aggrieved within 15 days

after the conclusion of the conference. In the event the

aggrieved employee is not satisfied with the decision, he

and/or his designated representative may appeal, in

writing, to the next step within ten days.

(4) Step four. The grievance appeal shall be presented

in writing to the Secretary of the Department or his

designated representative. Within ten days after the

receipt of the written grievance appeal the Secretary or

his designated representative, shall hold a conference with

App. 13

the aggrieved and/or his designated representative and

shall render a written decision to the aggrieved within 15

days after the conclusion of the conference.

(5) Step five. If the dispute is still unresolved, the

grieving employee shall have the right to submit said

dispute to either arbitration or to the Secretary of

Personnel. In either case the appeal must be submitted

within 15 days after the receipt of the written decision at

step four. If the grieving employee chooses to have his

grievance heard by the Secretary of Personnel, the

Secretary shall render his written decision within 45 days

after the hearing is held by him or his authorized

representative or within 45 days after all legal mem-

oranda or briefs have been filed in the grievance hearing.

In the event of arbitration, the parties shall select an

arbitrator by mutual agreement. If they are unable to

reach a mutual agreement, an arbitrator shall be supplied

by the American Arbitration Association in accordance

with its procedures. Any fees resulting from arbitration

shall be assessed by the arbitrator equally between the

two parties. The decision of the arbitrator shall be

advisory to the Secretary of Personnel and no additional

appeals or hearings may be considered. The Secretary of

Personnel shall make the final decision which shall be

binding on all parties. The written decision of the

Secretary shall be rendered within 15 days after the

receipt of the decision of the arbitrator.

(b) Back pay based on grievances. — The Secretary of

Personnel shall have the power to order an appointing

authority to grant back pay in any grievance and an

appointing authority shall enforce any such order.

(c) Back pay based on misclassification. — In any

reclassification case in which the Secretary of Personnel or

his authorized representative determines t an em-

ployee is entitled to back pay because the efnployee has

been misclassified or has been working out of classi-

fication, the Secretary may, in his discretion, award back

pay to the employee for a period not to exceed one year

prior to the initial filing of the grievance.

App. 14

LAWS OF MARYLAND Ch. 376

Human Relations Commission — State Employees

FOR the purpose of eliminating the necessity that State

employees file a grievance, where one is available, in

order to give notice of an employment discrimination

complaint filed with the Human Relations Commission.

BY repealing and reenacting, with amendments,

Article 49B — Human Relations Commission

Section 7(b)

Annotated Code of Maryland

(1979 Replacement Volume and 1982 Supplement)

SECTION 1. BE IT ENACTED BY THE GENERAL

ASSEMBLY OF MARYLAND, That the Laws of Mary-

land read as follows:

Article 49B — Human Relations Commission

7.

(b) (1) In any employment discrimination case in which

an agency, officer or employee of the State of Maryland is

a respondent, the rules, procedures, powers, rights, and

remedies which are applicable in such a case shall be

those which are applicable in a discrimination case in

which a private person is the respondent[; provided that a

State employee making a complaint to the commission

concerning his State employment must first give notice by .

filing a grievance proceeding, if one is available to him].

(2) In discrimination cases in which an agency, officer or

employee is a respondent, the power of the Human

Relations Commission includes the authority to seek

injunctive relief or judicial enforcement of its orders

against such respondents.

SECTION 2. AND BE IT FURTHER ENACTED, That

this Act shall take effect July 1, 1983.

Approved May 24, 1983.

App. 15

CODE OF MARYLAND REGULATIONS

06.01.01.60

60 Appeal of Termination of Employment of An

Unclassified Employee.

A. Notwithstanding the provisions of Regulation .01, an

unclassified employee, except for unclassified and faculty

employees of educational institutions, unless otherwise

provided by law, whose employment is terminated accord-

ing to Regulation .62 may submit a written appeal to the

Secretary within 5 working days after receipt of the notice

of termination.The appeal is limited to the legal and

constitutional bases for the termination.

B. The Secretary or his designated representative shall

hear the appeal within 30 calendar days after receipt of

the written appeal. The Secretary shall render his written

decision within 30 calendar days after the hearing. If the

employee does not appeal the termination within the

5-day period set forth in § A, or if the employee does not

appear at the scheduled hearing, the Secretary shall

uphold the termination.

MARYLAND RULES OF PROCEDURE

Rule B4. Time for Filing.

a. Within Thirty Days.

An order for appeal shall be filed within thirty days

from the date of the action appealed from, except that the

agency is by law required to send notice of its action to

any person, such order for appeal shall be filed within

thirty days from the date such notice is sent, or where by

law notice of the action of such agency is required to be

received by any person, such order for appeal shal] be filed

within thirty days from the date of the receipt of such

notice.

App. 16

APPENDIX B

OPINIONS AND ORDERS

United States Court of Appeals

For The Fourth Circuit

No. 82-1924

James R. Grattan and Adrienne S. Hedman,

Appellants,

v.

Calvin W. Burnett, Individually and in his official capacity

as President, Coppin State College; J. Carson Dowell,

Individually; Board of Trustees of the State Universities

and Colleges of Maryland; Edmund C. Mester, Indi-

vidually; Ronald K. DeSouza, Individually and in his

official capacity as Vice-President of Student Affairs,

Coppin State College and Harry Hughes, Governor of

Maryland,

Appellees.

Appeal from the United States District Court for the

District of Maryland, at Baltimore. Norman P. Ramsey,

District Judge.

Argued March 10, 1983 Decided June 22, 1983

Before WINTER, Chief Judge, ERVIN, Circuit Judge, and

ALDRICH,* Senior Circuit Judge.

* Honorable Bailey Aldrich, Senior United States Circuit

Judge for the First Circuit, sitting by designation.

App. 17

Sheldon H. Laskin (Glen M. Fallin on brief) for Ap-

pellants; Diana G. Motz, Robert A. Zarnoch (Christine

Steiner, Michael A. Anselmi, Assistant Attorneys General;

Stephen H. Sachs, Attorney General of Maryland on brief)

for Appellees.

WINTER, Chief Judge:

James Grattan and Adrienne Hedman appeal from an

order of the district court dismissing their complaints of

race and sex discrimination brought under 42 U.S.C.

§§ 1981, 1983, 1985 and 1986, and Article 23 of the

Maryland Declaration of Rights. The suit was brought

against the president of Coppin State College, a public

institution of higher education operated by the State of

Maryland, the vice-president of student affairs and the

chairman and executive director of the board of trustees

governing Coppin and other state universities and col-

leges. The district court held plaintiffs’ claims time-barred

since they were not brought within the six-month

limitations period prescribed by Md. Ann. Code, Article

49B, § 9(a). We reverse. We conclude that the appropriate

limitations period for such claims is three years, as

prescribed by Md. Ann. Code, Courts and Judicial

Proceedings, § 5-101. We conclude further that the claims

may be deemed to have been brought within this period,

even though they were not explicitly made by amended

complaint until five years after the alleged discrimination,

since the amended complaint relates back to an earlier

and timely complaint.

In the summer of 1976, James R. Grattan and Adrienne

S. Hedman were dismissed from their positions as Director

of Minority Relations and Minority Relations Counselor,

respectively, at Coppin State College.

App. 18

State College was a formerly all-black educational insti-

tution and is today still a predominantly black school.

Hedman also alleges that she was discriminated against

because of her sex.

Plaintiffs filed two claims of race and sex discrimination

with the Equal Employment Opportunity Commission

(EEOC) immediately upon iearning of their pending

termination in June 1976. While those claims were

pending, they filed this suit in state court on February 17,

1977. They alleged that their dismissals were arbitrary,

capricious, without basis in fact or law, illegal and invalid

under the Maryland and Federal constitutions. However,

their complaint contained no specific allegations of race or

sex discrimination. Those claims, together with an

allegation of violation of their right to free speech, were

added on October 13, 1981, by the filing of an amended

complaint. Defendants removed the state court action to

the district court on November 12, 1981. At the time,

there was pending in the district court two separate

actions filed by Grattan and Hedman inn 1981 against the

same defendants claiming unlawful employment discrimi-

nation under Title VII.

On motion of the defendants, the district court dismissed

the removed action. However, it denied a motion to

dismiss the complaints grounded on Title VII as being

outside the scope of plaintiffs’ EEOC charges. These

actions are still pending. The district court ruled that

plaintiffs’ race and sex discrimination claims brought

under 42. U.S.C. §§1981, 1983 and 1985 were barred since

they were not brought within the six-month period of

limitations provided in Md. Ann. Code, Article 49B, §9%a).

Plaintiffs’ §1986 action (failure to redress wrongs pro-

scribed by § 1985 by one who has knowledge and power to

act) was also dismissed, even though it was brought

within the one-year limitations period provided by that

section, on the ground that it was derivative of the barred

$1985 action. The district court ruled further that

plaintiffs’ free speech claim was governed by a three-year

limitations period, but held it barred as well since it was

App. 19

not raised until 1981 and did not relate back to the 1977

complaint. Finally, it dismissed their claim under the

Maryland Constitution holding that it was doubtful that

there was an implied cause of action for damages under

Maryland law and, in the alternative, that the claim was

barred under the six-month limitations period applicable

to the analogous federal right.

Before us, neither party contests the propriety of the

district court’s disposition of the Title VII and free speech

claims. The issues raised concern only the dismissal of

plaintiffs’ claims of race and sex discrimination brought

under 42 U.S.C. §§1981, 1983, 1985 and 1986, and the

Maryland Constitution.

Il.

Sections 1981, 1983 and 1985 of Title 42 specify no

limitations period for actions brought thereunder. We

therefore look to Maryland law to borrow the limitations

period for the most analogous state action. Recently, we

rejected the argument that the appropriate limitations

period for employment discrimination actions in Maryland

is the six-month period prescribed in Md. Ann. Code,

Article 49B, §9(a). That statute empowers the State

Human Relations Commission to investigate and pros-

ecute claims of employment discrimination, and requires

that claims be filed within six months of the date of the

occurrence. We held that the proper period in Maryland

for actions under Title 42 is three years as provided by

Md. Ann. Code, Courts and Judicial Proceedings, §5-501.

That statute provides a general limitations period of three

App. 20

Article 64A establishes a merit system and employment

protection for certain state employees and, by a com-

bination of provisions, gives a discharged employee a total

of five and one-half months to sue in a state court to

redress an improper discharge. Of course, the effect of

Article 64A was not considered in McNutt since the

plaintiff there was a non-public employee, but we think

that the reasoning of McNutt is equally applicable to

public employees.

In McNutt we rejected the six-month limitations period

of Article 49B, §9(a), because it governed the limitation of

administrative proceedings which were informal, inves-

tigatory and conciliatory in nature. We reasoned that

while such a short period might suffice to present an

informal complaint which could then be fleshed out by the

Commission, it was an inadequate time in which to

prepare a formal complaint suitable for adversary pro-

ceedings in federal court, and that for this reason it was

unlikely the Maryland legislature intended that this

limitations period apply to civil actions. 698 F.2d at

678-679. We think it even less likely that the Maryland

legislature intended that the limitations period defendants

derive from Article 64A and related sources be applied to

civil actions for discrimination. That period is even shorter

than the period considered in McNutt. A proceeding under

Article 64A is an administrative proceeding and the

largest part of it — 130 of the total of 165 days — is spent

formally adjudicating a claim initiated by the state. That

the Maryland legislature thought this adequate time to

resolve a termination dispute in which the state must

frame the issues and bear the burden of proof hardly

evidences an intent to impose a similar limit on the time

in which an employee who is discharged may employ

counsel who will investigate the termination and prepare

a complaint. Indeed, under Maryland law a disgruntled

employee, after proceedings under Article 64A are con-

cluded, may turn to the State Human Relations Com-

mission for relief from discrimination. Md. Ann. Code.

Article 49B, §7(b)(1). This, too, indicates that the Mary-

Apr. 21

land legislature did not intend that the passing of a

165-day period should bar an employee from seeking

administrative or judicial relief for discriminatory termi-

nation. Thus, we conclude that, in Maryland, three years

is the limitations period for discrimination suits brought

under the Civil Rights Acts by employees in public as well

as private employment.

III.

Next, we must determine whether the claims of race and

sex discrimination first explicitly raised by Grattan and

Hedman in their 1981 amended complaint relate back to

the 1977 complaint, and so come within the three-year

limitations period. Rule 15(c), F. R. Civ. P., states:

“(w)henever the claim or defense asserted in the amended

pleading arose out of the conduct, transaction, or occur-

rence set forth or attempted to be set forth in the original

pleading, the amendment relates back to the date of the

original pleading.” In applying Rule 15(c) in the past, we

have focused upon two issues in determining whether an

amended claim relates back to an earlier complaint. First,

to relate back there must be a factual nexus between the

amendment and the original complaint. See, e.g., Griggs v.

Farmer, 430 F.2d 638 (4th Cir. 1970), affg per curiam 314

F. Supp. 1185 (E.D. Va. 1969); Wall v. Chesapeake & O.

Ry., 339 F.2d 434 (4th Cir. 1964). Second, if there is some

factual nexus an amended claim is liberally construed to

relate back to the original complaint if the defendant had

notice of the claim and will not be prejudiced by the

amendment. Davis v. Piper Aircraft Corp., 615 F.2d 606

(4th Cir.), cert. dis., 448 U.S. 911 (1980).

There is a factual nexus between the discrimination

claims which Grattan and Hedman added by amendmeut

in 1981 and their complaint of arbitrary dismissal made in

1977. Both concern the events leading up to their

termination at Coppin State College, and in both the

termination was the ultimate wrong of which they

complained.

It appears also that defendants had notice of the claims

and will not be prejudiced by the amendment. Defendants |

App. 22

are the top administrators of Coppin State College. When

Grattan and Hedman complained of race and sex dis-

crimination in complaints filed with the EEOC in June

1976, defendants were bound to have known of them.

Forewarned, they should have realized that, as this suit

progressed, a discrimination theory might evolve. More-

over, because of the EEOC proceedings, it is more likely

than not that they have preserved any evidence relevant

to those claims. Thus, they should not be prejudiced by the

amendment. Plainly, the Title VII proceedings should

have put defendants on notice of the possibility that

Grattan and Hedman might bring claims under the Civil

Rights Act. Cf. Sessions, v. Rusk State Hospital, 648 F.2d

1066 (5th Cir. 1981); Gridley v. Cunningham, 550 F.2d

551 (8th Cir. 1977); Goss v. Revlon, Inc., 548 F.2d 405 (2nd

Cir. 1976) cert. den., 434 U.S. 968 (1977) (claims invoking

Title VII and the Civil Rights Acts relate back to each

other), For these reasons we conclude that the 1981

amendment did relate back and the claims asserted

therein are not time-barred. The case must therefore be

returned to the district court for further proceedings.*

REVERSED AND REMANDED.

* We refrain from expressing any view on the question of

whether plaintiffs have a private right of action under Article

23 of the Maryland Declaration of Rights. In the event that

plaintiffs do not prevail on their federal rights of action and the

district court concludes to exercise pendent jurisdiction, we

think that the district court should certify this question to the

Maryland Court of Appeals under Ann. Md. Code, Courts and

Judicial Proceedings, § 12-601.

App. 23

In The United States District Court

For The District Of Maryland

Memorandum and Order

Civil Action No. R-81-2407

(dated September 17, 1982)

Adrienne S. Hedman, Plaintiff

v.

Coppin State College; Board of Trustees of the State

Universities and Colleges Of Maryland; And State Of

Maryland, Defendants.

Civil Action No. R-81-2914

James R. Grattan and Adrienne S. Hedman, Plaintiffs

v.

Calvin W. Burnett, individually and in his official

capacity as President, Coppin State College; J. Carson

Dowell, individually; Board of Trustees of the State

Universities And Colleges of Maryland; Edmund C.

Mester, individually; Ronald K. DeSouza, individually

and in his official capacity as Vice-President of Student

Affairs, Coppin State College; and

Harry Hughes, Governor of Maryland, Defendants

Civil Action No. R-81-3176

James R. Grattan, Plaintiff

v.

Coppin State College and Board of Trustees of the State

Universities and Colleges of Maryland and State of

Maryland, Defendants

These related cases involving claims of employment

discrimination are currently before the Court on

defendants’ motions to dismiss. The motions have been

» fully briefed and counsel heard on the reconi. At the

‘. hearing, counsel indicated to the Court that certain

agreements had been entered into which would clarify

App. 24

several of the issues in the motions. In a letter dated

May 19, 1982, from counsel for defendants the agree-

ments of counsel were outlined for the Court.

In Hedman v. Coppin State College, R-81-2407, and

Grattan v. Coppin State College, R-81-3176, plaintiffs

Adrienne S. Hedman (“Hedman”) and James R. Grattan

(“Grattan”), respectively, have asserted causes of action

for alleged employment discrimination in violation of

Title VII 42 U.S.C. §2000e et seg. In Grattan v. Burnett,

R-81-2914, Grattan and Hedman are joined as co-

plaintiffs in a suit against various college officials

alleging causes of action pursuant to 42 U.S.C. §§$1981,

1983, 1985, and 1986; the First and Fourteenth

Amendments; and Articles 19, 23, and 46 of the

Maryland Constitution. Since the Title VII cases,

R-81-2407 and R-81-3176, raise common issus, they will

be addressed together and independently of R-81-2914.

I. The Motions To Dismiss Plaintiffs’ Title VII Claims

On September 22, 1981, Hedman, a former unclassified

administrative employee at Coppin State College (“Cop-

pin”), filed Civil Action No. R-81-2407 against Coppin, the

Board of Trustees of the State Universities and Colleges of

Maryland (“the Board”) and the State of Maryland (“the

State”). In her complaint, she alleges race and sex

discrimination in a broad variety of areas including pay

increases, job assignments and the non-renewal of her

employment contract for the academic year 1976-77.

Hedman seeks back pay, compensatory damages, re-

instatement to her former position, and costs and attor-

neys fees, pursuant to Title VII.

On December 10, 1981, Grattan, a former unclassified

administrative employee at Coppin filed Civil Action No.

R-81-3176 against Coppin, the Board, and the State. In his

complaint Grattan alleges race and sex discrimination in a

broad variety of areas including compensation, terms,

conditions, and privileges of employment. Like Hedman,

Grattan seeks back pay, compensatory damages, re-

instatement, and costs and attorney’s fees.

App. 25

Defendants moved to dismiss the Board and State

arguing that they had not been named by either Hedman

or Grattan in their respective charges to the EEOC.

Subsequent to the filing of the motions, counsel for

plaintiffs and defendants stipulated that “the Board and

the State should be dismissed, with the further stipulation

that Coppin State College is an agency of the State of

Maryland. Defendants’ motion to dismiss the Board and

the State in R-81-2407 and R-81-3176, therefore, will be

granted and plaintiffs’ Title VII suits will proceed against

Coppin only.

Defendants have also moved to dismiss all allegations in

Grattan’s and Hedman’s complaints which were not made

in their charges to the EEOC. In Hedman’s charge to the

EEOc she claimed that her race (white) was the reason

that her contract was not renewed for the 1976-77 year

and that because of her sex (temale) she had been paid at a

lower rate than male employees performing the same

duties with less seniority and fewer qualifications. In the

complaint in this case, Hedman alieges race and sex

discrimination not only in connection with pay and

termination, but also in connection with (1) adverse

treatment by supervisors, (2) unjustified transfers within

the College, (3) discriminatory work assignments, (4)

reassignment with the College, (5) payroll difficulties, and

(6) difficulties in securing contracts.

In Grattan’s charge to the EEOC, he claimed that

because he was white, he was terminated whereas black

employees who had been unable to perform their duties

properly had not been discharged. In the complaint in this

case Grattan alleges race and sex discrimination and

discrimination pertaining to terms and conditions of

employment such as denial of (1) conference attendance,

(2) long distance telephone privileges, (3) administrative

and logistical support, and (4) the cancellation of an

athletic event.

It is well settled that “the scope of a Title VII suit is

limited to the claims asserted in the administrative charge

App. 26

of discrimination and such other claims uncovered during

a reasonable administrative investigation of that charge,

provided that those other claims were actually inves-

tigated by the administrative agency.” Mobley v. Acme

Markets, Inc., 473 F. Supp. 851, 853 (D. Md. 1979). This

requirement promotes the statutory preference for agency

conciliation prior to a civil suit. To permit new claims

would by-pass the conciliation procedures and frustrate

the role of the EEOC in the statutory scheme. Hubbard v.

Rubber Maid, Inc., 436 F. Supp. 1184 (D. Md. 1977).

In response to the motions to dismiss, both Hedman and

Grattan have amended their complaints to allege that all

of the allegations contained therein were made to the

EEOC and investigated by the EEOC. In addition,

Hedman has provided the Court with a copy of her

affidavit to the EEOC wherein she stated in detail not

only her termination and equal pay claims, but also those

claims in her complaint dealing with work assignments,

transfer, and treatment. Viewing, as it must on a motion

to dismiss, the well pleaded material allegations of the

complaint in the light most favorable to plaintiffs, the

Court must assume at this stage of these proceedings that

Grattan’s and Hedman’s claims of discrimination were

made to and/or investigated by the EEOC. Defendants’

argument that plaintiffs have failed to substantiate their

allegations that these claims were actually investigatged

by the EEOC is misplaced on a motion to dismiss. The

motions to dismiss portions of Hedman’s and Grattan’s

claims as being outside the scope of their charges to and

the investigations by the EEOC will be denied.’

Defendants have moved to dismiss any claims of alleged

employment discrimination which occurred prior to 180

days before plaintiffs filed their charges of discrimination

' Grattan has noted, however, that any reference in his

complaint to sex discrimination was inadvertent and is not part

of his cause of action. Therefore, defendants’ motion to dismiss

Grattan’s claims of discrimination on the basis of gender as

being outside the scope of his charge to the EEOC will be

granted.

App. 27

with the EEOC. Since Hedman filed her charge with the

EEOC on June 23, 1976, defendants argue that any cause

of action relating to allegations of employment discrimi-

nation prior to December 26, 1975, should be dismissed as

time barred. Grattan filed his charge with the EEOC on

June 22, 1976, and defendants similarly argue that

December 25, 1975, is the temporal time limit for defining

his cause of action. In response to defendants’ argument

for a 180-day limitation, plaintiffs have raised three bases

for a longer limitations period in their respective cases.

First, Hedman and Grattan each argue that their

complaints allege a continuing ‘pattern and practice of

discrimination which tolls the running of the statute of

limitations. Section 706(e) of Title VII, 42 U.S.C.

§ 2000e-5(e) establishes the time limitations for filing a

charge of discrimination with the EEOC. These limi-

tations for filing an EEOC charge are flexible, however,

where a continuing violation of Title VII is present. See

Patterson v. American Tobacco Co., 586 F.2d 300, 304-05

(4th Cir. 1978), after remand, 634 F.2d 744, 751 (4th Cir.

1980), vacated, 71 L. Ed. 2d 748 (1982). Recently the

Supreme Court has restricted the scope of the continuing

violation doctrine. In United Air Lines, Inc. v. Evans, 431

U.S. 553, 588 (1977), the Supreme Court expressly rejected

a claim of continuing discrimination even though it was

conceded that the plaintiff was suffering from present

effects of past discrimination, holding that the emphasis

should not be placed on mere continuity, but instead on

whether any present violation exists. Similarly, in Day v.

Patapsco & Back Rivers Railroad Co., 504 F. Supp. 1301,

1304 (D. Md. 1981), the Honorable Joseph H. Young of

this Court noted that “to construe too loosely ‘continuing

discrimination’ would undermine the theory underlying

the statute of limitations.”

- The typical illustration of a continuing violation is the

payment of a discriminatory wage. See, e.g., Kim v. Coppin

State College, 662 F.2d 1055, 1061 (4th Cir. 1981); Corbin

v. Pan American World Airways, Inc., 432 F. Supp. 939

(N.D. Cal. 1977). The payment of a discriminatory wage is

App. 28

repeated each time the plaintiff receives a pay check.

Mobley v. Acme Markets, Inc., supra, 473 F. Supp. at 858.

“In contrast, demotions, layoffs, and discharges, are

discrete acts not subject to repetition and are normally not

considered to be continuing violations.” /d. (citations

omitted).

Hedman’s principal claims are that she was dis-

criminatorily terminated and paid an unequal wage.

Grattan’s primary claim is that he was discriminatorily

terminated. Under any limitations, Hedman’s and Grat-

tan’s termination claims are timely, each having filed a

charge of discrimination with the EEOC well within 180

days of their termination. Further, as noted above,

Hedman’s equal pay claim is also timely as it clearly

constitutes a continuing violation claim. Both plaintiffs,

however, attempt in their complaints to reach back and

make actionable all those incidents leading up to their

terminations which they regard now as examples of

unequal treatment. Hedman, for example, seeks to recover

for alleged adverse treatment by a supervisor in 1972,

subsequent reassignment within the college, payroll

difficulties in 1973, and treatment by supervisors in 1975.

Similarly, Grattan asserts as continuing violations the

alleged denial of long distance telephone privileges, the

denial of conference attendance, and cancellation of an

athletic event. Counsel for plaintiffs concedes that the

incidents recited above are facially discrete. He argues,

however, that since these incidents are joined by racial

animus, as illustrated by incidents of hostility, they

support findings of continuing violations.

The Court finds that, with the exception of Hedman’s

claim for unequal pay, plaintiffs have not alleged claims

which can be characterized as continuing violations. The

allegedly discriminatory acts asserted in the complaints,

such as termination, cancellation of a sporting event, work

assignments, etc., are discrete and isolated acts and did

not constitute present violations at the time charges were

filed by plaintiffs with the EEOC. Acceptance of counsel

App. 29

for plaintiffs’ theory for finding a continuing violation in

this case would mean that any time a plaintiff alleges

discrimination on the basis of race, there would be a

continuing violation and he, in some cases, could file his

charge with the EEOC at any time without regard to the

statutorily established period of limitations. It was

precisely this type of analysis against which Judge Young

warned in Day v. Patapsco & Back Rivers Railroad Co.,

supra.

As a practical matter, the Court notes that plaintiffs’

cases are not prejudiced by the application of the statutory

limitations period. As noted, their primary claims of

termination and unequal pay are timely filed and are

actionable. Since there can be only recovery if liability is

established, it seems to matter little if, for example,

Grattan had an independent cause of action for being

denied attendance at a conference or long distance

telephone privileges, and Hedman, for example, had an

independent cause of action for discriminatory work

assignments in 1972. As the Supreme Court noted in

United Air Lines, Inc. v. Kvans, supra, all these prior acts

“may constitute relevant background evidence in a

proceeding in which the status of a current practice is at

issue.” 431 U.S. at 558. Evidence about these prior acts

will be admissible at trial and, when viewed together, may

paint two pictures of discriminatory treatment which in

each case ultimately resulted in termination. Thus,

although the incidents occurring before the limitation

period in each case are not independently actionable, they

are relevant to the viable causes of action in these cases.

In addition to arguing that their claims are continuing

in nature thereby tolling limitations, Hedman and

Grattan both argue that limitations should be tolled in

their cases since the running of the period for filing an

administrative charge is subject to equitable tolling.

Plaintiffs’ rely on the Supreme Court’s recent decision in

Zipes v. Trans World Airlines, Inc., 71 L. Ed. 2d 234

(1982), wherein the Court held that filing a timely charge

App. 30

of discrimination with the EEOC is not a jurisdictional

prerequisite to suit in federal court, but a requirement

that, like a statute of limitations, is subject to waiver,

estoppel, and equitable tolling. Although plaintiffs’ have

accurately stated the law, they have not suggested any

reason why limitations should be tolled on equitable

grounds in their respective cases. There is no element of

waiver in these cases since defendants have expressly

raised limitations as a defense in their answers and

motions to dismiss. Similarly, Hedman and Grattan have

not claimed that defendants should be equitably estopped

from raising limitations. See Citicorp Person-to-Person

Financial Corp. v. Brazell, 658 F.2d 232, 234-35 (4th Cir.

1981). Their argument that by characterizing their claims

as continuing violations they are entitled to the benefit of

equitable tolling as outlined in Zipes, is based on an overly

broad interpretation of that case.

Finally, plaintiffs argue that if a limitations period is to

be applied in their cases, 300 days, rather than 180 days is

the applicable period. Under Section 706(e) of Title VII, 42

U.S.C. § 2000e-5(e), the EEOC charge is to be filed within

180 days of the alleged discriminatory act. If the charge

must be filed with the state fair employment practices

agency under 42 U.S.C § 2000e-5(c), the time for filing an

EEOC charge is extended to 300 days. Mohasco Corp. v.

Silver, 447 U.S. 807, 810 (1980). The State of Maryland

has established a deferral agency — the Maryland

Commission on Human Relations (MCHR) — with author-

ity to provide relief from unlawful employment practices.

Article 49B, §9(a) of the Annotated Code of Maryland

provides that to be timely, a charge must be filed with the

MCHR within six months of the alleged discriminatory

conduct. Neither Hedman nor Grattan claim to have filed

charges with the MCHR within six months of the alleged

discriminatory conduct. Charges of discrimination, how-

ever, in both cases were filed with the EEOC within 180

days of their terminations.”

* Defendants do not contest the timeliness of Hedman’s

termination and equal pay claims and Grattan’s termination

App. 31

In Mobley v. Acme Markets, Inc., supra, 473 F. Supp. at

857, the U.S. District Court for this District, relying on

the Court of Appeals for the Fourth Circuit’s decision in

Doski v. M. Goldseker Co., 539 F.2d 1326 (4th Cir. 1976),

held that to trigger the longer, 300-day time limit for

filing charges with the EEOC, state charges must be

timely filed under state law. Accord, Battle v. Clark-

Equipment, Brown Trailer Division, 524 F. Supp. 683, 686

(N.D. Ind. 1981) (and the numerous cases cited therein).®

The Supreme Court’s subsequent decision in Mohasco

Corp. v. Silver, supra, does not require a different result.

In Mohasco, the Supreme Court noted that a claimant in a

deferral state was not required lo file a charge of

discrimination with the state’s deferral agency within 180

days to benefit from the 300-day period for filing a charge

with the EEOC. In that case, however, the plaintiff filed

timely charges with the New York deferral agency under

that state’s one year limitations period. Thus, Mohasco did

not disturb the principal first stated in this district in

Mobley that plaintiffs who fail to file timely charges with

deferral state agencies cannot take advantages of Section

706(e)’s 300-day limitation.

Similarly, the Supreme Court’s decision in Oscar Mayer

& Co v. Evans, 441 U.S. 750 (1979), construing the Age

Discrimination Employment Act (ADEA), also relied on by

plaintiffs, does not require a contrary result. Although

Oscar Mayer arguably lays the ground work for the result

plaintiffs seek, the case does not address the issue of

whether a charging party under Title VII or statutes

modeled on Title VII must file a timely claim with the

claim, the principal claims made in these lawsuits. As counsel

_for plaintiffs noted at the hearing, it is not critical in these cases

whether 180 days or 300 days is the appropriate limitations,

since plaintiffs’ claims, in large part, are either well within 180

pag bg filings or well beyond 300 days of their filings with

* For an outline of the division on this issue which has existed

among the lower federal courts, see Baruah v. Young, 536 F.

Supp. 356, 361-62 (D. Md. 1982).

App. 32

State deferral agency to benefit from a longer limitations

period for filing a charge with the federal agency. In view

of the subsequent opinions from this district, e.g., Mobley

v. Acme Markets, Inc., supra, Fourth Circuit decisions, see

Citicorp Person-to-Person Financial Corp. v. Brazell,

supra, (although Title VII and the ADEA are to be

construed similarly, the filing requirements of each are

not identical), and the absence of a definitive statement

from the Supreme Court, the Court finds that the current

law in this Circuit requires a plaintiff to file a timely

charge with the state deferral agency to be entitled to a

800-day time limit for filing with the EEOC. The Court

concludes, therefore, that it will consider as actionable

only those acts or omissions occurring within the 180-day

period before plaintiffs charges were filed with the EEOC.

As to Hedman, relief pursuant to Title VII for any alleged

unlawful acts occurring prior to December 26, 1975, is

time barred and similar relief for Grattan is time barred

for alleged unlawful acts occurring prior to December 25,

1975.

_ Defendants have also moved to strike Hedman’s and

Grattan’s claims for compensatory damages under Title

VII. In response to the motions, Hedman and Grattan

have abandoned their claims for compensatory damages in

their Title VII suits. Therefore, defendants’ Motions to

strike Hedman’s claim for compensatory damages in

R-81-2407 and Grattan’s claim for compensatory damages

in R-81-3176, will be granted.

Il. The Motion To Dismiss Plaintiffs’ Claims Arising

Under The Civil Rights Act And The United States

And Maryland Constitutions

On February 17, 1977, Hedman and Grattan filed what

is now known as R-81-2914, in the Circuit Court No. 2 of

Baltimore City, against Calvin W. Burnett (“Burnett”),

President of Coppin; J. Carson Dowell (“Dowell”), then the

Chairman of the Board; Edmund C. Mester (“Mester”),

then the Executive Director of the Board; Ronald K.

DeSouza (“DeSouza”), Vice President for Student Affairs

App. 33

at Coppin; and Marvin Mandel, then Governor of Mary-

land. The suit was premised on the Maryland Uniform

Declaratory Judgment Act and sought a declaration that

the non-renewal of plaintiffs’ employment contracts in the

summer of 1976 had been arbitrary, capricious, without

basis in fact or law, illegal, and invalid under the

Constitutions of the United States and the State of

Maryland.

In March, 1977, defendants demurred to the Bill of

Complaint on the grounds of sovereign immunity and in

December, 1978, they filed a supplemental demurrer on

the ground that the facts set forth in the complaint did not

state a case appropriate for declaratory relief. On Sep-

tember 9, 1981, a hearing on defendants’ demurrers was

held before Judge Joseph H. Kaplan of the Supreme Bench

of Baltimore City and, without consideration of the

original demurrer, defendants’ supplemental demurrer

was granted with leave to amend on September 10, 1981.

On October 13, 1981, plaintiffs filed an amended and

supplemental bill of complaint. The amended complaint

altered the jurisdictional basis for and legal theories

underlying the action. In Count I of the amended

complaint, Hedman and Grattan assert a cause of action

under 42 U.S.C. §§1981, 1983, 1985 and 1986, the

Fourteenth Amendment, and Article 23 of the Declaration

of Rights of the Constitution of Maryland, alleging that

they were dismissed from their employment on the basis of

race. In Count II, Hedman alleges a cause of action for

employment discrimination based on sex under 42 U.S.C.

$1983, the Fourteenth Amendment, and Articles 23 and

46 of the Maryland Constitution. Claims for violations of

the right to free speech are asserted by Grattan and

Hedman in Counts III and IV respectively under the First

and Fourteenth Amendments of the United States Con-

stitution, Article 19 of the Maryland Constitution and 42

U.S.C. $1983. Count V of the amended complaint is a

claim by Grattan for relief from alleged employment

discrimination under Title VII, 42 U.S.C. §2000e et seq.

App. 34

In response to the amended complaint, defendants,

noting that the allegations sounded in law rather than in

equity, filed a motion to transfer the action to the Superior

Court for Baltimore City, pursuant to Rule 515 of the

Maryland Rules of Procedure. This transfer was effected

on November 5, 1981, and, on November 12, 1981,

defendants filed a petition removing the action to this

Court. The motion to dismiss currently before the Court

was subsequently filed.

Defendants have moved to dismiss plaintiffs’ claims of

employment discrimination in Counts I and II of the

amended complaint as untimely filed. Sections 1981, 1983

and 1985 contain no facial limitations provisions.* The

relevant statute of limitations for federally created causes

of action which do not provide their own filing periods is

the state statute or remedy “most analogous” to the

federal action. Burns v. Sullivan, 619 F.2d 99, 105 (1st

Cir.), cert. denied, 499 U.S. 893 (1980); see Runyon v.

McCrary, 427 U.S. 160 (1976); Johnson v. Railway Express

Agency, Inc., 421 U.S. 454, 462 (1975); McCausland v.

Mason County Board of Education, 649 F.2d 278, 279 (4th

Cir.), cert. denied, 70 L. Ed. 2d 639 (1981). The Court of

Appeals for the Fourth Circuit has established a more

comprehensive standard for determining which state

statute of limitations should be applied to an action

brought under a federal law that has none:

When borrowing a state statute of limitations for

federal purposes, a court should look to the statute

which most clearly addresses the same or similar

policy considerations as are addressed by the

federal right being asserted. It is not necessary that

a state statute operate in the same fashion as the

federal scheme, nor is it necessary that the state

* Plaintiffs’ claims under 42 U.S.C. § 1983 and 1985 are based

on an alleged denial of equal protection guaranteed by the

Fourteenth Amendment. Plaintiffs’ state in their memoranda

that they are not pursuing claims under the due process clause

of the Fourteenth Amendment, despite language in the original

complaint to the contrary.

App. 35

statute describe a cause of action identical to the

federal cause at issue. There simply must be a

commonality of purpose between the federal right

and the state statutory scheme so that it is

reasonable to subject the federal implied right to

the statute of limitations provided by state law.

O’Hara v. Kovens, 625 F.2d 15, 18 (4th Cir. 1980), cert.

denied, 449 U.S. 1124 (1981) (citations omitted).

In McGill v. General Electric Co., 524 F. Supp. 1126 (D.

Md. 1981), appeal docketed, the Honorable Joseph H.

Young of this Court held that under the O’Hara standard

the six-month limitations period contained in Md. Ann.

Code Art. 49B, § 9(a), is the “most analogous” limitations

period for employment discrimination suits in Maryland

brought under Section 1981. Although Judge Young’s

holding in McGill has not been universally accepted by all

the members of this Court, see Evans v. Chesapeake &

Potomac Telephone Co., 535 F. Supp. 499 (D. Md. 1982)

(Miller, J.) (applying a three-year limitations period to

employment discrimination claims brought under Section

1981); Wilson v. Milke, Civil Action No. HM-80-2214 (D.

Md. March 17, 1982) (Murray, J.) (oral opinion) (applying

a three-year period of limitations to an employment

discrimination claim brought under Section 1981), it

currently is the accepted view of the writer, see McKee v.

SCM, Corp., Civil Action No. R-79-162 (D. Md. January

29, 1982), and at least one other judge of this Court, see

Brice v. Crown Cork & Seal Co., Civil Action No.

H-78-1207 (D. Md. January 15, 1982) (Harvey, J.) (oral

opinion).

The last discriminatory act complained of by Hedman

and Grattan, their termination, became effective July 31,

1976. They had been notified of their termination in June,

1976.° No claims based on their terminations or any other

Tit would appear that limitations commenced on plaintiffs’

termination claims in June, 1976, at the time the em t

decision was made and communicated to them. See

App. 36

incidents which now are claimed to have been dis-

criminatory, were raised until February 17, 1977, more

than six months after the fact. Claims specifically based

on Sections 1981, 1983, and 1985, were not raised until

October 13, 1981. Even assuming that these amended

claims “relate back” to the time of the original filing of the

bill of complaint, they are time barred under the

applicable six month limitations period. Furthermore,

even if the Court were to construe the claims as

continuing in nature, which for the reasons previously

stated, it does not, limitations would still be a bar since

the last act complained of, termination, occurred more

than six months prior to the filing of their lawsuits. The

Court holds, therefore, that plaintilis’ claims for employ-

ment discrimination arising in Maryland under Sections

1981, 1983 and 1985 are barred by limitation.

As to plaintiffs’ claims arising under Section 1986 in

Count I, the one year limitations period prescribed by that

statute governs. However, inasmuch as Section 1986 is

derivative of Section 1985, where a party has failed to

state a timely claim under Section 1985, there is no

ground for relief under Section 1986. See Schoonfield v.

Mayor and City Council of Baltimore, 399 F. Supp. 1068,

1087 (D. Md.) (and the numerous cases cited therein),

aff'd, 544 F.2d 515 (4th Cir. 1975). Since plaintiffs’ claims

of employment discrimination arising under Section 1985

are time barred, the motion to dismiss their claims arising

under Section 1986 will be granted.

As to plaintiffs’ claims of employment discrimination in

Counts I and II arising directly under the Maryland

Constitution, the Court notes that there currently exists

no authority for a cause of action for damages for violation

of state constitutional rights. See generally Rees, State

Constitutional Law for Maryland Lawyers: Judicial Relief

State College v. Ricks, 449 U.S. 250, 258-62 (1980). Even if the

last date of employment, July 31, 1976, is the date limitations

commenced, plaintiffs’ claims would still be barred under a six

month limitations period.

App. 37

for Violations of Rights, 10 U. Balt. L. Rev. 102, 122

(1980). Even if such a cause of action could be said to exist,

however, the applicable limitations logically should be the

same as that controlling the federal right. See Davidson v.

Koerber, 454 F. Supp. 1256 (D. Md. 1978) (cause of action

under Article 23 of Maryland Declaration of Rights

analogous to cause of action under 42 U.S.C. § 1983).

In Count III of the amended complaint Grattan asserts

that he was discharged for advocating and supporting the

establishment or foundation at Coppin of a “white

students union.” In Count IV of the amended complaint,

Hedman asserts that she was discharged because she

expressed opposition to a policy at Coppin which prevented

certain transfer students from graduating “with honors”.

In Counts III and IV plaintiffs’ allege that their discharge

violated their First and Fourteenth Admendment rights

and their rights secured by Article 19 of the Declaration of

Rights of the Constitution of Maryland. The federal

constitutional claims are brought pursuant to Section

1983.

Unlike the plaintiffs’ claims for employment discrimi-

nation contained in Counts I and II of the amended

complaint; their free speech claims in Counts III and IV

are not controlled by a six month limitations period.

Although the alleged First Amendment violations may

have arisen in the same setting as plaintiffs’ employment

discrimination claims, this fact does not operate to divest

plaintiffs of any other claims they might have. Hall v.

Board of County Commissioners of Frederick County, 509

F. Supp. 841, 848 (D. Md. 1981); see Johnson v. Railway

Express Agency, Inc., 421 U.S. 454, 459-60 (1975). Thus, as

to these free speech claims, Art. 49B, §9(a) of the Md.

Ann. Code is not the most analogous limitations period

and instead Maryland’s general three year statute of

limitations applies to plaintiffs’ Section 1983 claims and

state constitutional claims in Counts III and IV. Hall v.

Board of County Commissioners of Frederick County,

supra.

App. 38

Plaintiffs’ amended complaint, alleging for the first time

free speech claims arising prior to July 31, 1976 (the date

plaintiffs were terminated) was filed on October 13, 1981.

As previously noted, the original complaint was filed on

February 17, 1977. It is apparent, therefore, that plain-

tiffs’ First Amendment claims, even under a three year

period of limitations, are timely only if they related back

to the filing of the original complaint.

Rule 15(c) of the Federal Rules of Civil Procedure

provides in relevant part:

Whenever the claim or defense asserted in the

amended pleading arose out of the conduct, trans-

action, or occurrence set forth or attempted to be

set forth in the original pleading, the amendment

relates back to the date of the original pleading.

This rule “is based on the idea that a party who is notified

of litigation concerning a given transaction or occurrence

is entitled to no more protection from statutes of

limitations than one who is informed of the precise legal

description of the rights sought to be enforced.” 3 Moore’s

Federal Practice § 15.15[2).

The critical element in determining whether the claim

relates back under Rule 15(c), is whether the original

complaint gave the defendants notice of the range of

matters sought to be added by the amended complaint.

Wassel v. Eglowsky, 399 F. Supp. 1330, 1359 (D. Md.

1975), aff'd per curim, 542 F.2d 1235 (4th Cir. 1976);

Schoonfield v. Mayor and City Council of Baltimore, supra, *

399 F. Supp. at 1090; Goodman v. Poland, 395 F. Supp.

660, 684 (D. Md. 1975). Amendments that do no more than

restate the original claim with greater particularity or

amplify the details of the transaction alleged in the

original complaint fall with in Rule 15(c). If, however, the

alteration of the original statement is so substantial that

it cannot be said that defendants were given adequate

notice of the conduct, transaction, or occurrence that

formed the basis of the claim, then the amendment will

not relate back and will be time barred if the limitations

App. 39

period has expired. 6 Wright & Miller, Federal Practice &

Procedure § 1497 at pp. 491-92.

In the instant case, the Court finds that the original

complaint filed by plaintiffs on February 17, 1977, did not

put defendants on notice of plaintiffs’ free speech claims

which were added in Counts III and IV of the amended

complaint filed on October 13, 1981. In the original

complaint plaintiffs’ alleged that they were illegally

terminated because of untrue claims by defendants’ that

they had performed their duties|in recruitment of “other

race” students poorly. Although the complaint did not

allege discrimination on the basis of either race or sex,

under a broad interpretation of the notice provision it is

arguable that defendants had notice of race and sex

discrimination claims from plaintiffs’ charges of discrimi-

nation which had been filed with the EEOC in August of

1976, prior to the filing of their complaint. As plaintiffs

concede in their memorandum, however, their free speech

claims were raised in neither the original complaint nor

their Title VII charges of discrimination filed with the

EEOC. It was only in October of 1981, over five years after

the incidents in question, that plaintiffs stated claims

under the First Amendment and alleged a factual basis for

these claims. In view of all the circumstances, the Court

finds that although governed by a three year prior of

limitations, plaintiffs’ free speech claims in Counts III and

IV of the amended complaint do not relate back to the

filing of the original complaint and, therefore, are barred

by limitations and should be dismissed.

In Count V of the amended complaint, Grattan asserts a

cause of action pursuant to Title VII. Grattan, however,

has filed his Title VII claim in an independent lawsuit,

R-81-3176, and, therefore, requests that Count V of the

amended complaint in R-81-2914 be stricken. The motion

to dismiss Count V of the amended complaint, therefore,

will be granted. ;

App. 40

For the reasons stated herein, it is this 17th day of

September, 1982 by the United States District Court for

the District of Maryland,

ORDERED:

1. That defendants’ motions to dismiss the Board of

Trustees of the State Universities and Colleges of

Maryland and the State of Maryland in R-81-2407 and

R-81-3176, are GRANTED;

2. That defendants’ motions to dismiss portions of the

complaints in R-81-2407 and R-81-3176 as outside the

scope of plaintiffs’ charges to the EEOC are DENIED;

3. That defendants’ motion to dismiss plaintiff Grat-

tan’s claims of sex discrimination in R-81-3176 is

GRANTED;

4. That defendants’ motions to dismiss plaintiff Hed-

man’s claims in R-81-2407 arising before December 26,

1975, except for claims of unequal pay, is GRANTED;

5. That defendants’ motion to dismiss plaintiff Grat-

tani’s claims in R-81-3176 arising before December 25,

1975, is GRANTED;

6. That defendants’ motions to dismiss plaintiffs Hed-

man’s and Grattan’s claims for compensatory damages in

R-81-2407 and R-81-3176, respectively are GRANTED;

7. That defendants’ motion to dismiss the amended

complaint in R-81-2914 is GRANTED; and

8. That the Clerk shall mail copies of this Memorandum

and Order to all Counsel of record.

Norman P. Ramsey,

United States District Judge

App. 41

In The United States District Court

For The District of Maryland

Civil Action No. R-81-2914

James R. Grattan and Adrienne S. Hedman,

Plaintiffs,

Vv.

Calvin W. Burnett, Individually and in his official capacity

as President, Coppin State College; J. Carson Dowell,

Individually; Board of Trustees of the State Universities

and Colleges of Maryland; Edmund C. Mester, In-

dividually; Ronald K. DeSouza, Individually and in his

official capacity as Vice-President of Student Affairs,

Coppin State College and Harry Hughes, Governor of

Maryland,

Defendants.

JUDGMENT

(dated September 17, 1982)

In accordance with the Memorandum and Order dated

the 17th day of September, 1982, and filed in the above

entitled case, it is

ORDERED and ADJUDGED:

That judgment is hereby entered in favor of the

defendants and against the plaintiffs.

Norman P. Ramsey,

United States District Judge.