Betty Q. Keasler Rubin v. Marie L. O'KOren , 644 F.2d 1023 ( 1981 )

HATCHETT, Circuit Judge:

This is an appeal from a district court order dismissing a 42 U.S.C. 1983 action on the ground that the claim was not filed within the applicable statute of limitations period. Because we find the § 1983 action timely filed, we reverse and remand.¹

After being dismissed from her employment as a full-time instructor at the University of Alabama, Betty Q. Keasler Rubin brought suit in federal district court for reinstatement and damages under 42 U.S.C. § 1983. On February 14, 1975, the University notified Mrs. Rubin that upon expiration of her current contract in September, 1975, it would not be renewed for the succeeding year. The University provided a one-year notice period, which she completed on March 12, 1976. Shortly thereafter, Rubin filed an administrative complaint with a University grievance committee which upheld her dismissal in February, 1977. On October 11, 1977, Rubin brought this 42 U.S.C. § 1983 action in federal court alleging that her termination abridged her constitutional right to due process of law in violation of the fourteenth amendment to the Constitution of the United States. The court granted a motion to dismiss for failure to file within the one-year statute of limitations period required by Alabama statute.²

Rubin filed her suit in federal court over a year and a half after her last day of employment with the University. The grievance procedure, however, was filed less than one month after the cause of action accrued. Rubin argues that by filing her administrative grievance with the University she tolled the running of the statutory period.

We must decide whether the administrative grievance procedure tolled the running of the statute of limitations period.

The district court correctly applied Alabama law to determine the applicable statutory limitations period. Lavellee v. Listi, 611 F.2d 1129 (5th Cir. 1979); Kissinger v. Foti, 544 F.2d 1257 (5th Cir. 1977). It is well-established that “in a § 1983 action a federal court looks to state law for the appropriate limitations period.” Ehlers v. City of Decatur, 614 F.2d 54, 55 (5th Cir. 1980); Prince v. Wallace, 568 F.2d 1176 (5th Cir. 1978). Because Rubin’s suit represents an action for “injury to the person or rights of another not arising from contract,” we agree with the district court that the one-year statutory period set forth in Title 6 § 6-2-39(a)(5), Code of Alabama (1975), is applicable. See Ingram v. Steven Robert Corp., 419 F.Supp. 461 (S.D.Ala.1976), aff’d 547 F.2d 1260 (5th Cir. 1977); Sewell v. Grand Lodge of the International Association of Machinists and Aerospace Workers, 445 F.2d 545 (5th Cir. 1971).

The trial court found that Rubin’s cause of action commenced on March 12, 1976, the last day of her employment. The University agrees. Rubin, however, contends that accrual commenced only upon completion of the processing of the grievance procedure.

We agree'with the trial court that Rubin’s cause of action did not accrue until her last day of employment. Such a finding is consistent with Delaware State College v. Ricks, 449 U.S. -, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980).

Under Ricks, where the challenged practice occurs before the date of termination of employment, and the complaint fails to point to any injurious act after the challenged practice, the date of the challenged act is the date the cause of action accrues.

Unlike the complaint in Ricks, Rubin’s complaint alleges numerous injurious acts that occurred in the period between, and including, her termination notification on February 14, 1975, and her last day of employment on March 12, 1976. The Ricks Court found that the limitations period began to run upon initial notice and not upon the last day of employment because “the only alleged discrimination [injurious act] occurred ... at the time the tenure decision was made and communicated to Ricks.” 101 S.Ct. at 504. Such is not the case with Rubin.

Alabama law determines whether the filing of the administrative grievance tolled the one-year limitations period. This is true because federal courts, in § 1983 actions, must not only apply the appropriate state statute of limitations, but also must apply the applicable state rule for tolling that statute of limitations. Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). Tomanio also requires that the state tolling rule not be inconsistent with the policies underlying § 1983 as an independent federal remedy.

The Supreme Court of Alabama has held that pursuit of a grievance procedure tolls the applicable statute of limitations. Jefferson County v. Reach, 368 So.2d 250 (Ala.1978). In Reach, a former deputy sheriff filed an action for damages for an alleged wrongful dismissal. Prior to filing that action, Reach sought administrative review by the county personnel board. In determining that his action for damages was not time-barred, the Supreme Court of Alabama concluded that “[w]hile Reach was not limited to review of his alleged wrongful dismissal by the Personnel Board, his election to do so tolled the statute of limitations during the pendency of the administrative proceedings.” 368 So.2d at 252. This Alabama tolling procedure is consistent with the policies underlying § 1983 as articulated in Tomanio. It follows that Rubin’s pursuit of her administrative grievance with the University tolled the prescriptive period. Her action therefore was timely filed.

Rubin also claims that in reasonable reliance on statements made by University administration officials she concluded her administrative grievance before filing her federal claim. She asserts that, as a result, the appellees are estopped to claim the statute of limitations defense. Because we find that Rubin timely filed her § 1983 action, we need not address this assertion.

Accordingly, we reverse the district court’s order dismissing Rubin’s complaint.

REVERSED AND REMANDED.

1 . We granted rehearing to reconsider the law of Alabama and the effects of Patsy v. Florida International University, 634 F.2d 900 (5th Cir. 1981) (en banc).

2 . Title 6, § 6-2-39(a)(5), Code of Alabama (1975), provides:

(a) The following must be commenced within one year:

(5) Actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section!.]