Appeal from a judgement of the United States District Court for the Western District of New York, John T. Elfvin, Judge, dismissing for lack of subject matter jurisdiction a complaint alleging sex-based discriminatory treatment in violation of Title VII of the Civil Rights Act of 1964.
Kearse, Circuit Judge, Cardamone, Circuit Judge, and Friedman, Circuit Judge.*fn* United States Court of Appeals for the Federal Circuit, sitting by designation.
This is an appeal from a judgment of the United States District Court for the Western District of New York (John T. Elfvin, Judge), dismissing, for lack of subject matter jurisdiction, a complaint by a former school teacher alleging that the termination of her employment by the appellee school board constituted discriminatory treatment on the basis of her sex, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17 (1982). We affirm, but on a different ground.
A. This is the second time the case is here. The undisputed background facts that are pertinent to the issue we decide were set forth in our prior opinion as follows:
In 1968, the Board hired Schwabenbauer as a probationary elementary school teacher to commence September 1, 1968. At that time New York law required a new teacher to serve a three-year probationary period during which his or her performance could be observed and evaluated before a tenure decision was made by a board of education. . . . Schwabenbauer taught until February 1, 1970, a period of one year and five months, when she was granted, at her request, a maternity leave of absence for a period of up to two years. Schwabenbauer unexpectedly gave birth prematurely on February 7, 1970, and suffered adverse medical consequences; on her doctor's orders, she remained on leave for the remainder of the school year.
At Schwabenbauer's request the Board terminated her maternity leave as of September 1, 1970. Schwabenbauer returned to work on that date and worked until May 15, 1972, when she received notice from the Board that she would not receive tenure and that her employment would be terminated on June 30, 1972.
Schwabenbauer then began a series of attempts to gain reinstatement. She contended that her three-year probationary period, which had commenced on September 1, 1968, should have ended on August 31, 1971. She asserted that because at the end of that period she was neither expressly granted tenure nor terminated but was permitted to continue teaching, she gained tenure by operation of law, sometimes called tenure by acquiescence. The Board took the position that Schwabenbauer's probationary period did not end on August 31, 1971, because that period had been tolled by her lengthy maternity leave (and thence further extended to June 30, 1972, by virtue of amendments to New York law).
Schwabenbauer v. Board of Education, 667 F.2d 305, 307 (1981) (footnotes omitted).
When these attempts to obtain reinstatement were unsuccessful, Schwabenbauer filed the present suit against the school board and its members (collectively the Board). She contended that "by denying credit for her pregnancy leave while granting credit for other lenghty medical leaves, the Board discriminated against her on the basis of her sex, in violation of Title VII." Id. at 307-08 (footnote omitted). She sought reinstatement and backpay.
Both sides moved for summary judgment on the basis of "two short stipulations of fact." Id. at 308. The district court granted summary judgment in favor of Schwabenbauer. 498 F. Supp. 119 (W.D.N.Y. 1980). The court held that Schwabenbauer had established a prima facie case of sex discrimination and that the Board had not rebutted the case.
On the Board's appeal, we held that the record could not support a grant of summary judgment. 667 F.2d at 309. We concluded that "the rather sketchy evidence and the sparse stipulations of fact entered into by the parties simply did not permit the kind of analysis required" in deciding a Title VII case. Id. at 314 (footnote omitted). We vacated the judgment of the district court and remanded the case "for proceedings not inconsistent with this opinion." Id. at 316 (footnote omitted).
B. Following the submission of Schwabenbauer's evidence at the trial on remand, the Board moved to dismiss "due to plaintiff's failure to supply the evidentiary deficiencies that had been indicated by the appellate court." The court denied the motion but dismissed the complaint under rule 12 (h)(3) of the Federal Rules of Civil Procedure, ...