United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 1997 Decided October 31, 1997
No. 96-7120
Mary A. Harris,
Appellant
v.
Joyce A. Ladner, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 95cv01111)
Clifford A. Brooks argued the cause for the appellant.
David G. Leitch argued the cause for the appellees. Janet
Pitterle Holt was on brief.
Before: Edwards, Chief Judge, Henderson and Garland,
Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: The appellant,
Mary A. Harris, appeals the district court's dismissal of her
complaint alleging that Howard University (University) and
various University officials engaged in unlawful acts in deny-
ing her tenure and promotion to the rank of associate profes-
sor of Spanish at the University. The district court dismissed
her action, concluding that the applicable statute of limita-
tions barred the bulk of her claims. The court determined
the statute of limitations commenced on October 31, 1991, the
date the University first informed her by letter that tenure
and promotion had not been approved. Harris argues, inter
alia, that the letter does not constitute a final "tenure deci-
sion" under Delaware State College v. Ricks, 449 U.S. 250,
258 (1980) (statute of limitations commences "at the time the
tenure decision was made and communicated to" candidate),
because, according to University regulations, she was entitled
to--and ultimately received--reconsideration of the tenure
committee's negative recommendation before receiving a final
letter of denial from the University. We reverse the district
court's dismissal based on the statute of limitations. The
appellant does not contest, however, and we therefore affirm,
the dismissal of her constitutional claims.
I.
Mary Harris is a black female of Guyanese descent. In
August 1985 the University hired her as an assistant profes-
sor of Spanish on a probationary appointment.1 In October
1989 Harris applied for tenure and promotion to associate
professor.2 The Appointments, Promotions, and Tenure
__________
1 Harris's probationary status meant that tenure was not guaran-
teed. The Howard University Faculty Handbook (Handbook)
explains that "[t]enure shall not be granted by default, through the
mere serving of the full limit of time (seven years) by a faculty
member under probationary appointment." Joint Appendix (JA)
130.
2 The Handbook includes a section entitled, "Precise Policies And
Procedure Of The Tenure Process," which details the following
levels of review for a tenure application: the departmental Appoint-
Committee of the Department of Romance Languages (De-
partment APT Committee) denied Harris's application. She
alleges that she was informed that she should publish addi-
tional material (either five articles or one book) and reapply
in one year.
After completing a book on poetry which was accepted for
publication, Harris reapplied for tenure and promotion in
October 1990. This time the Department APT Committee
and the department chairman recommended Harris for pro-
motion and tenure. Her application was then forwarded to
the APT Committee of the College of Arts and Sciences
(College APT Committee) which recommended against pro-
motion and tenure. Her application was next reviewed by
the Acting Dean of the College, Clarence Lee, who "en-
dorse[d] her promotion with tenure ... but with great reser-
vation." Joint Appendix (JA) 234. Joyce A. Ladner, the
University's Vice President of Academic Affairs, recom-
mended against promotion and tenure. By letter dated Octo-
ber 31, 1991 Harris was informed by Dean Lee that:
[T]he President of the University, Dr. Franklyn G. Jeni-
fer, has not approved the recommendation that you be
promoted to the rank of Associate Professor with tenure.
On behalf of the College of Arts and Sciences, I wish to
thank you for your service and wish you well in your
future endeavors.
JA 151.
After receiving the letter, Harris sought the assistance of
James Davis, Acting Chairman of the Department of Ro-
__________
ments, Promotions, and Tenure (APT) Committee, the department
chairman, the College of Arts and Sciences APT Committee, the
Dean of the College of Arts and Sciences, the Vice-President for
Academic Affairs, the President and the Board of Trustees. JA
130-32. See also Howard University's Guidelines for Appoint-
ments, Promotions, and Tenure Committee (Guidelines), JA 133-38
(The Handbook and the Guidelines are separate publications. The
former was adopted by the Board of Trustees in June 1980, while
the latter was published by the Office of the Vice President for
Academic Affairs in 1986.). According to the Handbook, "[t]he
decision of the Board shall be final." JA at 132.
mance Languages. According to Harris's amended com-
plaint, Davis informed her that she had "the right to reconsid-
eration." JA 26. Davis instructed her to write a letter to
Dean Lee and include two letters of recommendation from
outside the University to commence the reconsideration pro-
cess. Harris then consulted with Dean Lee. According to
Harris, "[b]oth Dr. Davis and Dr. Lee affirmatively advised
[her] that said reconsideration was the next step in the tenure
application process." Id. In addition, by letter dated Janu-
ary 9, 1992 Ladner "confirmed that plaintiff's application for
tenure would be 're-evaluate[d]' pursuant to 'the guidelines
established for petitions of reconsideration,' and that [Ladner]
would inform Dr. Lee, of President Jenifer's 'decision' " once
Harris initiated the reconsideration process. Id.
Harris subsequently resubmitted her application with two
letters of recommendation and a copy of her book on poetry,
which had by then been published. By letter dated March 25,
1992 she was notified by Dean Lee that:
[Y]our petition to have your application for promotion
and tenure reconsidered has been reviewed thoroughly
by the College and the Central Administration. All
pertinent supporting documents and relevant factors in
your case were carefully evaluated. It is however, my
unpleasant task to inform you that no basis was found
upon which to change the original recommendation,
namely that promotion and tenure be denied to you.
JA 159.
On March 24, 1995 Harris filed a complaint against the
University and various University officials.3 Her complaint,
alleging that she was wrongfully denied tenure and pro-
motion, pressed five claims: (1) race discrimination in viola-
__________
3 The officials include Joyce A. Ladner, Interim President, Frank-
lyn G. Jenifer, Past President, Moraima Donahue, a member of the
"Tenure Committees" and "John Doe (unknown person[s]), individu-
ally and as officials, employees, agents, assistants and/or persons
acting in concert or cooperation with the other named defendant[s]
or under their supervision." JA 1.
tion of 42 U.S.C. s 1981; (2) equal protection and due process
violations under the fifth and the fourteenth amendments; (3)
breach of contract; (4) tortious violation of a common law
right of "fair procedure"; and (5) tortious interference with
contract. Relying on Delaware State College v. Ricks, 449
U.S. 250, 258, 261 (1980) (statute of limitations commences "at
the time the tenure decision was made and communicated to"
candidate and "pendency of a grievance, or some other meth-
od of collateral review of an employment decision, does not
toll the running of the limitations periods"), the district court
concluded that the October 31, 1991 letter to Harris "was
final and unequivocal" and therefore triggered the three-year
statute of limitations applicable to Harris's claims. Harris v.
Ladner, No. 95-1111, mem. op. at 5 (D.D.C. Oct. 3, 1995).
The district court considered Harris's "resubmission of her
application" after October 31, 1991 as "a form of collateral
review of the initial decision" which did "not in any way alter
the finality of the first decision." Id. Because her complaint
was filed after October 31, 1994, the district court found her
claims time-barred. In addition, the district court found
Harris's constitutional claims deficient because she failed to
allege sufficient governmental involvement in the tenure pro-
cess to invoke the protections of the fifth and the fourteenth
amendments. Consequently, the district court granted the
University's motion to dismiss.4
II.
Our review of the district court's grant of a motion to
dismiss is de novo. See Wilson v. Pea, 79 F.3d 154, 160 n.1
__________
4 On October 30, 1995 Harris filed a "Motion for Reconsideration,
to Set Aside Order of Dismissal, and for Leave to Amend Com-
plaint" alleging that she had discovered new facts supporting an
amended complaint. The district court eventually denied her mo-
tion because, inter alia, the new evidence on which her motion
relied was available to her "at least two months prior to the
judgment." Harris v. Ladner, No. 95-1111, at 6 (D.D.C. May 23,
1996) (order denying plaintiff's motion for reconsideration). The
Court also held that her new claims, like her original ones, were
time-barred. Id.
(D.C. Cir. 1996). To determine whether the district court
appropriately dismissed Harris's action for failure to state a
claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, we must accept her factual allegations as true, see
Albright v. Oliver, 510 U.S. 266, 268 (1994), and draw all
inferences in her favor. See Scheuer v. Rhodes, 416 U.S. 232,
236 (1974). To prevail on a motion to dismiss for failure to
state a claim under Rule 12(b)(6), the defendants must show
"beyond doubt that the plaintiff can prove no set of facts in
support of [her] claim which would entitle [her] to relief."
Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
The appellees argue that this appeal can be resolved
through a routine application of the Supreme Court's holding
in Ricks. Plaintiff Ricks joined the education department
faculty at Delaware State College in 1970. In February 1973
the appropriate faculty committee recommended against ten-
ure but agreed to reconsider its decision the following year.
In February 1974, on reconsideration, the committee "ad-
hered to its earlier recommendation." 449 U.S. at 252. The
following month the faculty senate voted to support the
tenure committee's recommendation and on March 13, 1974
the board of trustees (Board) formally voted to deny Ricks
tenure. Ricks subsequently filed a grievance. During the
pendency of the grievance, the Board formally notified Ricks,
by letter dated June 26, 1974, that it "officially endorsed" the
recommendation of the faculty senate not to grant him tenure
and offered him a one-year "terminal" contract expiring on
June 30, 1975. Id. at 253 n.2. Ricks signed the contract on
September 4, 1974. On September 12, 1974 the Board noti-
fied Ricks that it had denied his grievance.
Ricks filed suit on September 9, 1977, alleging that Dela-
ware State College unlawfully denied him tenure based on his
national origin (Liberian) in violation of Title VII of the Civil
Rights Act of 1964 and 42 U.S.C. s 1981. Id. at 254. The
district court determined that his claims accrued on June 26,
1974, the date he was notified by the Board that tenure had
been denied, and therefore his claims were untimely filed.
The Third Circuit reversed, holding that the applicable three-
year statute of limitations began on the date Ricks's terminal
contract expired. The Supreme Court reversed the Third
Circuit, concluding that the statute of limitations commenced
"at the time the tenure decision was made and communicated
to" Ricks. Id. at 258. The district court was justified, the
Supreme Court said, in concluding that the decision was
communicated "no later than" the date of the June 26, 1974
letter, notwithstanding Ricks's grievance remained pending
until September. Id. at 262. Relying on its earlier decision
in Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229
(1976), the Court noted "we already have held that the
pendency of a grievance, or some other method of collateral
review of an employment decision, does not toll the running of
the limitations periods" and that the "existence of careful
procedures to assure fairness in the tenure decision should
not obscure the principle that limitations periods normally
commence when the employer's decision is made." Id. at 261.
We believe Harris's case is distinguishable from Ricks.
Harris maintains that originally she was not apprised of her
right to reconsideration under Section E of the University's
Guidelines for Appointments, Promotions, and Tenure Com-
mittees (Guidelines).5 Consequently, Harris claims that she
was not given a meaningful opportunity to seek reconsidera-
tion from the College ATP Committee, as was her "right"
__________
5 Section E reads:
E. Faculty's Right to Petition for Reconsideration
When a decision not to recommend promotion or tenure for a
faculty member is rendered by the departmental or school- or
college-wide APT Committee, the faculty member has the right
to petition the APT Committee for reconsideration of its
decision if he or she can provide materials that were not
available during the initial review. The APT Committee has
the obligation to determine whether the new materials warrant
reconsideration of its decision. The faculty member should be
notified promptly of this decision. Petitions should be submit-
ted through department chairmen for departmental Commit-
tees and through the deans for school- or college-wide Commit-
tees.
JA 137-38 (emphases added).
pursuant to the Guidelines, before the negative recommenda-
tion was forwarded directly to University officials for further
action. Moreover, Harris might reasonably have believed
that the reconsideration her application ultimately received
was given in accordance with the Guidelines. She alleged
that both the department chairman and the College Dean
"affirmatively advised [her] that said reconsideration was the
next step in the tenure application process." JA 26. Indeed,
defendant Ladner, the University Vice President, revealed in
a January 9, 1992 letter to Ian Isidore Smart, a University
faculty member who strongly supported Harris's tenure ap-
plication, that Harris planned to file a "petition for reconsid-
eration" and had been "encouraged ... to follow the guide-
lines established for petitions of reconsideration." JA 158.
As the appellees conceded during oral argument, however,
those procedures provide for reconsideration before the final
decision. As a result, it may have been reasonable for Harris
to believe that the University was reconsidering her applica-
tion pursuant to the Guidelines and that the tenure decision
thus was not yet final. Her belief could have been bolstered
by the fact that the University has a specific "grievance"
procedure, wholly distinct from the reconsideration process,
which is available to an unsuccessful candidate only after the
University's final adverse action. Howard University Manu-
al: Faculty Handbook Section, JA 116-17. The reconsidera-
tion Harris received was, according to the University's own
process, not part of its grievance procedure. As a result, the
reconsideration might well not have been "a grievance, or
some other method of collateral review of an employment
decision" that "does not toll the running of the limitations
periods" Ricks, 449 U.S. at 261. Rather, the reconsideration
may have been a continuation of the original application
process.
We note that our holding is not intended to allow a plaintiff
to avoid the holding in Ricks simply by labeling the final
decision "preliminary" and procedures to review that decision
an "integral part" of the decision process rather than collater-
al review of the final decision. Our disposition of this case
does not disturb or undercut the holding in Ricks that the
"existence of careful procedures to assure fairness in the
tenure decision should not obscure the principle that limita-
tions periods normally commence when the employer's deci-
sion is made." Id. Rather, our holding is restricted to
Harris's allegations regarding the reconsideration process
afforded her, which process, although termed "reconsidera-
tion," does not appear to be like the collateral review proce-
dure at issue in Ricks. Rather, under the University's proce-
dures as set forth in its Guidelines and conceded at oral
argument, the reconsideration provided Harris appears to
occur only prior to the final tenure decision.
Because the defendants did not show below "beyond doubt
that the plaintiff can prove no set of facts in support of [her]
claim which would entitle [her] to relief," Conley, 355 U.S. at
45-46, we conclude that Harris sufficiently set forth a claim
upon which relief could be granted and dismissal under Rule
12(b)(6) was therefore improper. We leave open to the
district court the possibility of disposing of this case as a
matter of law after discovery. We simply hold that the
district court erred in dismissing Harris's amended complaint
on the statute of limitations ground at this stage of the
litigation.
III.
As Harris does not appear to contest the dismissal of her
fifth and fourteenth amendment claims, we need not tarry
over them.6 While "[t]here is no doubt that Howard [Univer-
sity]'s action has serious consequences for appellant ... it is
not subject to all the constraints put on governmental action
by the due process clause." Williams v. Howard Univ., 528
F.2d 658, 660 (D.C. Cir. 1976). Indeed, because Howard
University is a private institution, the plaintiff must show
more than "general governmental involvement" in the Univer-
sity's affairs before constitutional protections are implicated.
See, e.g., Sanford v. Howard Univ., 415 F. Supp. 23, 29
(D.D.C. 1976) ("A showing of general involvement in a private
educational institution is not enough to convert essentially
__________
6 See Appellee's Br. at 7 n.2; Appellant's Br. at 1-3.
private activity into governmental activity for purposes of a
due process claim, and Howard [University]'s essentially pri-
vate status must be recognized."), aff'd, 549 F.2d 830 (D.C.
Cir. 1977). The district court correctly dismissed the consti-
tutional claims on the ground that Harris "failed to show the
necessary level of governmental involvement in the tenure
decision-making process to allow the court to find that How-
ard University, a private institution, should be held to the
constraints of the Fifth and Fourteenth Amendments." Har-
ris, No. 95-1111, at 8 (internal footnote omitted).
* * *
For the foregoing reasons we reverse the district court's
dismissal of Harris's non-constitutional claims, affirm its dis-
missal of her constitutional claims and remand for further
proceedings consistent with this opinion.
So ordered.