In Smith, the plaintiff had argued that he had been dismissed in violation of his right to procedural due process. In the case, sub judice, however, plaintiff has alleged she was discharged in violation of her First Amendment rights. Our Court of Appeals has addressed this issue as well in Fitzgerald v. Larson, supra and held that Wilson v. Garcia applied retrospectively to claims alleging wrongful discharge for exercise of First Amendment rights.
With the law clearly set forth, the court turns to plaintiff's arguments which resist a finding that her claim is time-barred. Plaintiff's first argument is that Wilson v. Garcia should not be given retrospective application. This argument is clearly foreclosed by the Third Circuit's decisions in Smith and Fitzgerald, supra.
Plaintiff's remaining arguments require more discussion. First, it is argued that defendants did not raise the affirmative defense of the Statute of Limitations in a timely manner,
and second, that plaintiff filed her complaint within the two-year Pennsylvania personal injury statute of limitations. See 42 Pa. Cons. Stat. Ann § 5524(2). The court will address these issues seriatim.
Plaintiff argues that defendants have waived raising the two-year statute of limitations pursuant to 42 Pa. Cons. Stat. Ann. § 5524 because defendants only raised the six-month statute of limitations pursuant to 42 Pa. Cons. Stat. Ann. § 5521(b). See Document 3 and 8 of the Record. Thus, plaintiff's argument is that by raising only that a six-month statute of limitations was applicable to the action, defendants are now precluded from asserting that a two-year limitations period should be applied.
The court is not persuaded by this argument. The cases plaintiff cites in support are inapposite in that those cases involved a situation in which the defendant failed to plead the affirmative defense at all or failed to raise the defense until just before or during trial. See e.g., Peterson v. Air Line Pilots Assoc. Internat., 759 F.2d 1161 (4th Cir. 1985); Trio Process Corp. v. L. Goldstein's Sons, Inc., 461 F.2d 66 (3d Cir. 1972); Evans v. Syracuse City School District, 704 F.2d 44 (2d Cir. 1984).
Before Wilson was decided, the first step in selecting the applicable state statute of limitations was to characterize the essential nature of the federal action. Wilson v. Garcia, 731 F.2d 640, 642 (10th Cir. 1984), aff'd 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985) (citations omitted). The court then has to determine which state limitations period is applicable to this characterization. Id. This court does not interpret the analysis as restricting the court to choose only the limitations period advanced by the parties. Rather, once the issue of the statute of limitations period has been raised, the court makes the determination of the appropriate limitations period. For example, the defendants in Garcia raised a two-year limitations period as a defense in the district court. The district court, however, held that a four-year limitations period was more appropriate. Wilson, supra 731 F.2d at 651. On appeal, the Tenth Circuit court held a three-year personal injury limitations period should apply in Section 1983. Thus, the court is not bound to choose only the particular limitations period advanced by the parties. Rather, the court chooses the applicable period after appropriate analysis, once the issue has been raised. Because defendants raised the statute of limitations as a defense immediately, they are free to re-assert that defense in light of the fact that the precedent this court relied upon has been vacated. See Knoll, supra. The court rejects plaintiff's argument that defendants are limited to asserting only a six-month limitations period.
Having concluded that defendants are not barred from raising the statute of limitations period, the court turns to plaintiff's second argument that her claims were timely filed.
A. First Amendment
As stated infra, the Third Circuit Court of Appeals held that the two-year statute of limitations should be applied retrospectively to claims of wrongful discharge. Plaintiff urges this court to find that her First Amendment claim was timely filed, in that she did not discover she was fired for outspokenness until February 13, 1981. According to plaintiff, she was unaware of any First Amendment issue until it was disclosed to her by Mary Redgate on February 13, 1981. A careful review of Redgate's trial testimony, however, reveals that Redgate offered no support to plaintiff's theory that she was fired for exercising her right to free speech, viz. speaking out on kick-backs of school rings or writing to the newspaper criticizing the School Board.
Rather, Redgate's testimony did not even address these issues and was directed principally to her part in collecting harmful data on plaintiff's teaching activities which ultimately were utilized by the School Board to support plaintiff's discharge. Thus, the court does not find persuasive evidence that the statute of limitations period should be tolled under these circumstances. The burden of establishing that the statute of limitations should be tolled is placed upon the party asserting it. Plaintiff has not set forth any factual support for her allegation that she was unaware of her First Amendment claim. As a result, her cause of action accrued on the date of her discharge, November 1, 1978. Because plaintiff did not file her federal action until June 4, 1982, her action is time-barred pursuant to Wilson v. Garcia and Fitzgerald v. Larson, supra.
B. Sexual Harassment
Plaintiff's claim for sexual harassment is also time-barred in that by plaintiff's own account, all harassment stopped in October, 1977. See Affidavit of Elizabeth Gobla, Document 124 of the Record, Exhibit B at 38.
Thus, her claim for sexual harassment is barred as well. Moreover, the jury decided against the plaintiff on the issue of sexual harassment, finding that the harassment was not a substantial or motivating factor in her discharge.
To the extent plaintiff may be arguing that her conspiracy claim is still viable, that argument is rejected. Defendants are correct in maintaining that plaintiff is foreclosed from advancing this claim. Because testimony was minimal on this issue, the court did not submit the issue to the jury. Plaintiff did not object and pursuant to Fed.R.Civ.P. 49(a), she is precluded from asserting the conspiracy claim is still viable. Additionally, the verdict in favor of plaintiff was premised solely on the free speech issue which was unrelated to any class-based or gender-based animus.
In conclusion, the court finds that defendants timely asserted the defense of the statute of limitations. In light of Wilson v. Garcia and Fitzgerald v. Larson, supra, plaintiff's claims of First Amendment violations and sexual harassment are time-barred. It is unfortunate that after a verdict is entered by a jury, it must be set aside. This court is constrained, however, to follow controlling case law of the United States Supreme Court and United States Court of Appeals for the Third Circuit. The verdict in favor of plaintiff and against defendants will be vacated.
An appropriate Order will enter.
In accordance with the reasoning set forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT the jury verdict entered in favor of plaintiff is vacated and judgment is entered in favor of the defendants.