2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-12-2011

Zhaojin Ke v. Assn of PA State College & Uni

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1968

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1968

___________

ZHAOJIN DAVID KE,

Appellant

v.

ASSOCIATION OF PENNSYLVANIA STATE COLLEGE 

& UNVERSITY FACULTIES; CELIA ELDER

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1-10-cv-00448)

District Judge: Honorable John E. Jones III

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 11, 2011

Before: FUENTES, GREENAWAY, JR., and GREENBERG, Circuit Judges

(Opinion filed: October 12, 2011)

___________

OPINION

___________

PER CURIAM
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Zhaojin David Ke, proceeding pro se, appeals from the District Court’s order 

granting Appellees’ motion to dismiss his complaint. For the reasons that follow, we will 

affirm.

I.

Since we write for the parties, who are familiar with the background of this case, 

we discuss the events leading to this appeal only briefly. From August 2001 through

December 2007, Ke served as a professor at Edinboro University of Pennsylvania 

(“EUP”), and was a member of a labor union known as the Association of Pennsylvania 

State College and University Faculties (“APSCUF”). In December 2006, EUP denied Ke 

tenure, a decision he believed was made in retaliation for his having filed racial 

discrimination claims against the university with the Equal Employment Opportunity 

Commission (“EEOC”).

In light of EUP’s tenure decision, Ke filed a grievance against EUP pursuant to the 

collective bargaining agreement. In February 2007, Celia Elder, the director of 

APSCUF’s contract department, informed Ke by letter that APSCUF would not be 

arbitrating his grievance. In April 2007, after having reconsidered the issue at Ke’s 

request, Elder sent Ke a letter reiterating that APSCUF would not be arbitrating his 

grievance.

In September 2007, the EEOC issued its findings with respect to the 

aforementioned claims against EUP, concluding that the university had discriminated 

against Ke. In November 2007, Ke received an email from APSCUF’s EUP Chapter 
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President, David Obringer; that email stated as follows: “I spoke with our state contract 

department. As I expected and had told you on the phone, our contract determines what 

we can do. The EEOC operates under a different set of rules. Their ruling does not 

affect your denied grievance.” (App. 40.)

In May 2008, Ke filed a claim against APSCUF with the EEOC, claiming that 

APSCUF had refused to arbitrate his grievance because he is Chinese. The EEOC 

ultimately dismissed Ke’s claim as untimely.

In February 2010, Ke initiated the instant action by filing a complaint in the 

District Court against APSCUF and Elder (hereinafter collectively referred to as 

“Defendants”). The complaint, which centered around APSCUF’s refusal to arbitrate his 

grievance against EUP, raised claims under Title VII, 42 U.S.C. §§ 1981, 1983, and 

1985, and the Pennsylvania Human Relations Act (“PHRA”). Defendants ultimately 

moved to dismiss the complaint, and the District Court referred that motion to a United 

States Magistrate Judge.

On March 1, 2011, the Magistrate Judge issued a report recommending that the 

court grant Defendants’ motion. Specifically, the Magistrate Judge concluded that Ke’s 

Title VII claim against Elder was non-cognizable, his PHRA claims were barred because 

he had failed to timely file an administrative complaint with the Pennsylvania Human 

Relations Commission, and his remaining claims were time-barred. Ke subsequently 

filed objections to the report, challenging the analysis of his Title VII and § 1981 claims 
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only. On March 15, 2011, the District Court adopted the Magistrate Judge’s report,

granted Defendants’ motion, and dismissed the complaint. This appeal followed.

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise 

plenary review over the District Court’s order granting Defendants’ motion to dismiss. 

See U.S. Dep’t of Transp., ex rel. Arnold v. CMC Eng’g, 564 F.3d 673, 676 (3d Cir. 

2009). In conducting this review, “we accept as true all well-pled factual allegations in 

the complaint and all reasonable inferences that can be drawn from them, and we affirm 

the order of dismissal only if the pleading does not plausibly suggest an entitlement to 

relief.” See id.

The only aspects of the District Court’s decision that Ke disputes are its dismissal 

of his § 1981 claims and its dismissal of his Title VII claim against APSCUF. Having 

considered the parties’ arguments, and for substantially the reasons set forth in the 

Magistrate Judge’s report and the District Court’s March 15, 2011 memorandum, we 

agree with the court’s decision to dismiss his Title VII claim against APSCUF as 

untimely. As for the § 1981 claims, Ke argues that these claims are timely because they 

are governed by the four-year statute of limitations period set forth in 28 U.S.C. 

§ 1658(a), not Pennsylvania’s two-year limitations period for personal injury actions (the 

limitations period applied by the District Court). We disagree. Section 1658(a)’s fouryear limitations period does not apply to claims that could have been raised under the 

pre-1990 version of § 1981. See Jones v. R. R. Donnelley & Sons Co., 541 U.S. 369, 
5

382-83 (2004). Because we agree with the District Court that Ke’s claims could have 

been raised under that version of § 1981, see Patterson v. McLean Credit Union, 491 U.S. 

164, 177 (1989); Goodman v. Lukens Steel Co., 482 U.S. 656, 669 (1987); Allensworth 

v. Gen. Motors Corp., 945 F.2d 174, 179 (7th Cir. 1991), we conclude that the court 

appropriately applied Pennsylvania’s two-year limitations period. See Goodman, 482 

U.S. at 660-64 (agreeing with this Court that Pennsylvania’s two-year limitations period 

governed plaintiffs’ § 1981 claims). 

Since we concur with the District Court’s conclusion that the challenged claims 

are untimely, we need not address Ke’s arguments regarding the underlying merits of 

these claims. To the extent Ke seeks to amend his complaint to “streamline” his 

allegations, we note that any such amendment would be futile. See Foman v. Davis, 371 

U.S. 178, 182 (1962) (indicating that district court may deny leave to amend on the basis 

of futility). Accordingly, and in light of the above, we will affirm the District Court’s 

March 15, 2011 order granting Defendants’ motion to dismiss Ke’s complaint.