Appeal from a judgment of the United States District Court for the Eastern District of New York, Neaher, J., dismissing appellant's civil rights complaint as time-barred. Affirmed.
Before Feinberg, Chief Judge, and Van Graafeiland and Meskill, Circuit Judges.
Kathleen Fiesel, a licensed New York City teacher, commenced this civil rights action on June 30, 1978, seeking declaratory and injunctive relief, including a grant of full seniority rights and back pay with interest, on the basis of alleged discriminatory practices and policies of appellees beginning in 1970. The district court dismissed the complaint as time-barred. We affirm.
The relevant facts can be briefly stated. Fiesel, who has been paralyzed in both legs since birth, alleges that she has successfully completed her educational studies, leading to her receipt of a degree of Master of Science in Education in July 1973. She further alleges that her physical handicap has not interfered with her ability to perform teaching duties.
This case arises from Fiesel's 1969 application with the New York City Board of Education for a license as a Regular Teacher of Social Studies, Junior High School. Fiesel claims that despite satisfactory scores on her written and oral examinations, she was denied a license "solely and expressly on the basis of her physical handicap." Complaint at 4. She received official notice that her application had been denied on September 22, 1970. Although Fiesel filed a complaint with the New York City Commission on Human Rights, she chose not to seek judicial relief because she felt that the state courts would not be sympathetic to her claims and because, at the time, municipalities enjoyed immunity from suit in federal court under Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961).
In February 1975, after Fiesel reapplied, the Board of Education issued her a per diem license as a Teacher of the Educable Mentally Retarded. Four months later, she was granted permanent licenses to teach English and Social Studies in Day High School. She taught in the New York City public schools during the 1974-1975 academic year, but was laid off in June 1975 as a result of budget cutbacks. She was rehired in September 1980 and is currently teaching.
On June 30, 1978, twenty-four days after the Supreme Court held in Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), that municipalities were no longer immune from suit under 42 U.S.C. § 1983, Fiesel commenced the present action under section 1983 and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., alleging that she was refused a teaching license in 1970 because of her physical handicap. She further stated that had she been granted a license in 1970, she would have had sufficient seniority to withstand the 1975 budget cuts. As relief, Fiesel asked the district court to enjoin appellees from engaging in the alleged discriminatory practices and policies and to grant her "full seniority and other rights and back-pay with interest ... to September 1970." Complaint at 12.
On May 28, 1980, the district court granted appellees' motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b) on the ground that it was barred by the relevant three-year statute of limitations.*fn1
Fiesel's argument on appeal, simply stated, is that accrual of a cause of action is a matter of state law, and that under New York law this cause of action did not accrue until the Supreme Court's decision in Monell in June 1978. We accept neither the premise nor the conclusion.
While the statute of limitations applicable to a section 1983 action is determined by reference to state law, Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980); Meyer v. Frank, 550 F.2d 726, 728 (2d Cir.), cert. denied, 434 U.S. 830, 98 S. Ct. 112, 54 L. Ed. 2d 90 (1977), accrual of the cause of action remains a question of federal law, Leonhard v. United States, 633 F.2d 599, 613 (2d Cir. 1980), cert. denied, 451 U.S. 908, 101 S. Ct. 1975, 68 L. Ed. 2d 295 (1981); Kaiser v. Cahn, 510 F.2d 282, 285 (2d Cir. 1974).
We agree with the Ninth Circuit, McConnell v. Critchlow, 661 F.2d 116 (9th Cir. 1981), that
(a) decision recognizing a cause of action after the period has run does not retroactively interrupt the running of the limitations period.... Such delayed accrual could result in an outpouring of stale, difficult to defend ...