                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 99-2777
                                      ___________

Myrle B. Cooper,                        *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
       v.                               * District Court for the
                                        * District of Minnesota.
St. Cloud State University, a Minnesota *
State University,                       *
                                        *
             Appellee.                  *
                                   ___________

                               Submitted: June 16, 2000
                                   Filed: September 25, 2000
                                    ___________

Before MUPRHY, HEANEY and MAGILL, Circuit Judges.
                          ___________

MAGILL, Circuit Judge.

        This appeal requires us to decide when the statute of limitations began to run on
a Title VII discrimination action brought by a college professor who was denied tenure.
For reasons to be discussed, we hold that the statute of limitations began to run when
the college announced its official tenure decision, rather than at the time of termination,
and, thus, affirm the decision of the district court1 dismissing plaintiff's Title VII claim


       1
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.
as time-barred.

                                I. BACKGROUND

       In 1986, Saint Cloud State University (SCSU) hired Myrle Cooper as a full-time
faculty member in its Art Department. The announcement for Cooper's position stated:
"M.F.A. [Master of Fine Arts] and experience preferred. M.A. [Master of Arts] with
a record of successful professional activity and fundamental interest in teaching and
previous teaching experience will be considered." At the time he was hired, Cooper
held a Bachelor of Fine Arts degree, a Master of Science degree in Adult Vocational
Education, a Master of Science degree in Media Technology, and an Educational
Specialist degree in Industrial Education and Technology. Cooper indicated on his
application form that he was enrolled in a doctoral program and that he intended to
pursue an M.F.A. after he completed his Doctor of Philosophy degree (Ph.D.). The
faculty appointment form issued by SCSU and signed by Cooper in July of 1986
expressly stated that "consideration for tenure is contingent upon completion of
Doctorate."

      SCSU faculty are reviewed for tenure during their fifth year of employment.
Thus, Cooper's tenure year was the 1990-1991 academic year. If tenure is not granted
during the tenure year, the faculty member is retained for one more academic year and
then automatically terminated. Although SCSU granted Cooper two paid leaves to
work on his Ph.D., Cooper failed to complete his Ph.D. by the end of his tenure year.
In April 1991, the faculty committee recommended to deny tenure because Cooper had
not completed his Ph.D. However, Cooper was told that the denial would be
automatically rescinded if he finished his Ph.D. during the next academic year.

       In 1992, Cooper and SCSU entered into a grievance settlement with respect to
the tenure issue. Under the terms of the settlement, Cooper had until May 1, 1995, to
complete his Ph.D. If Cooper completed his Ph.D. at any time prior to that date, tenure

                                         -2-
would automatically be granted. SCSU ultimately extended the final deadline by one
year because Cooper's dissertation chair had died and Cooper had to find a
replacement. However, despite being provided two paid leaves of absence and an
additional five years after his tenure year to complete his Ph.D., Cooper failed to do so
within the prescribed time-period and was automatically terminated from his position
in the Art Department.2

        Following his termination, on January 13, 1997, Cooper filed a complaint with
the Equal Employment Opportunity Commission (EEOC). Cooper subsequently filed
suit in federal district court alleging claims under Title VII and the Minnesota Human
Rights Act (MHRA) for racial discrimination, racial harassment, and reprisal. SCSU
moved for summary judgment, arguing that 1) Cooper's Title VII claim was time-
barred and 2) the Eleventh Amendment bars Cooper's MHRA claim. The district court
granted SCSU's motion for summary judgment.

                                   II. ANALYSIS

A. Title VII Claim: Denial of Tenure

        The threshold question we must answer is whether Cooper filed his complaint
with the EEOC within the applicable statute of limitations period. Title VII provides
that a charge of discrimination must be filed within three hundred days after the alleged
unlawful employment practice occurred. See 42 U.S.C. § 2000e-5(e). Cooper's Title
VII claim arises from SCSU's decision to deny Cooper tenure and to terminate his


      2
       Cooper was actually terminated from his faculty position and offered a staff
position, which was created especially for him. Cooper accepted the staff position of
"Special Assistant," providing SCSU students with computer support in the Learning
Resources Services area and providing graphic support for campus publications.
Cooper took early retirement in November 1998.

                                          -3-
employment because he failed to obtain a Ph.D. within the time period set forth in the
1992 settlement agreement. SCSU argues that Cooper's Title VII claim is time-barred
because the statute of limitations began to run when Cooper learned of SCSU's decision
in 1992. Cooper argues that the limitations period began to run no earlier than when
SCSU actually terminated his employment in 1996 and assigned him to a "dummy
position" in the Learning Resources Services area. In order to resolve this issue, we
must first identify the discriminatory conduct underlying Cooper's claim.

       The Supreme Court has recognized a distinction between the present effects of
a past discriminatory act and present continuing discrimination. Compare Bazemore
v. Friday, 478 U.S. 385 (1986) (holding that perpetuation of salary discrepancies based
on race were actionable under Title VII, regardless of the fact that the discriminatory
practice began prior to Title VII's effective date), with Delaware State College v.
Ricks, 449 U.S. 250 (1980) (holding that the limitations period was triggered at the
moment the college allegedly denied plaintiff tenure for a discriminatory reason, rather
than a year later when he ultimately lost his job). Cooper argues that because SCSU
granted tenure to seventeen white faculty members who lacked Ph.Ds during the time
it was withholding tenure from Cooper, the statute of limitations issue should be
analyzed as a continuing violations case. In essence, Cooper argues that SCSU
committed a wrongful act of discrimination each time it granted tenure to a white
faculty member who did not possess a Ph.D. SCSU maintains, however, that the
uncontroverted evidence shows these other faculty members were not similarly situated
to Cooper, and, thus, Cooper's appeal should be resolved under Ricks, a case involving
one wrongful past act with continuing effects in the present.

       In Ricks, the Supreme Court held that Title VII's limitations period began to run
when the plaintiff, a college professor, was notified that he was denied tenure and
would be offered a one-year terminal contract, rather than when the terminal contract
expired a year later. See id. at 259. The Supreme Court reasoned that the only alleged
discrimination occurred at the time the tenure decision was made and communicated

                                          -4-
to the college professor, "even though one of the effects of the denial of tenure– the
eventual loss of a teaching position– did not occur until later." Id. at 258 (emphasis in
original) (internal quotation omitted). The Court explained that in order for the
limitations period to commence with the date of the terminal contract:

      Ricks would have had to allege and prove that the manner in which his
      employment was terminated [via the terminal contract] differed
      discriminatorily from the manner in which the College terminated other
      professors who also had been denied tenure. But no suggestion has been
      made that Ricks was treated differently from other unsuccessful tenure
      aspirants.

Id. at 258.

      SCSU notified Cooper in 1992 that he would not receive tenure and would
automatically be terminated from the Art Department unless he obtained his Ph.D.
before May 1, 1995.3 As in Ricks, the 1996 denial of tenure and termination were
automatic effects of SCSU's 1992 decision to require Cooper to obtain a Ph.D. before
he could receive tenure. Moreover, as in Ricks, Cooper was "abundantly forewarned"
of the consequences of not obtaining his Ph.D. within the next three years. See id. at
262 n.16. Thus, unless Cooper can identify a discriminatory act that occurred after
SCSU's 1992 tenure decision, the limitations period began to run when SCSU notified
him of its official tenure decision in 1992. See id. at 258. Cooper failed to meet this
burden.

       Cooper first argues that SCSU committed wrongful acts of discrimination by
granting tenure to other white faculty members who lacked Ph.Ds during the time it was
denying him tenure. However, Cooper fails to identify any Art Department faculty


      3
      As previously mentioned, SCSU extended this deadline by one year because
Cooper's dissertation chair passed away.

                                          -5-
member who was granted tenure without holding a terminal degree between 1992 and
1996. Rather, Cooper identifies seventeen white faculty members who were granted
tenure in other departments at SCSU. Nothing in the record suggests, however, that
these faculty members were similarly situated to Cooper. According to the undisputed
evidence, market considerations of supply and demand explain why tenure
requirements differ between some of SCSU's departments. Because colleges have
difficulty recruiting computer science professors and librarians who hold Ph.Ds, SCSU
maintains "professional" and "academic" tenure tracks within its Computer Sciences
and Learning Resources Departments. The fact that SCSU granted tenure to
professors in these departments even though they lacked Ph.Ds does not even begin to
suggest that SCSU acted in a discriminatory manner by requiring members of its Art
Department to hold Ph.Ds before gaining tenure. Thus, SCSU's decision to grant
seventeen white faculty members tenure does not provide any basis for finding SCSU
discriminated against Cooper in denying his tenure application.

       Cooper next suggests that SCSU's decision to replace him with individuals who
lacked Ph.Ds demonstrates that he was discriminated against because of his race. We
reject this argument. The requirements for being hired at SCSU are not identical to
obtaining tenure at SCSU. The vast majority of college and university professors are
hired without having obtained the qualifications necessary for tenure; it is understood
that they will meet those qualifications within a certain number of years prior to tenure
review. If the professors do not meet the required qualifications by the time they come
up for review, tenure is denied and they are terminated. The mere fact that SCSU hired
two individuals who lacked Ph.Ds does not support a finding of discrimination because
hiring decisions are different than tenure decisions.

     Cooper finally argues that SCSU terminated his employment in a discriminatory
manner. After Cooper's denial of tenure became final in 1996, Cooper requested a




                                          -6-
transfer to the Mass Communications Department.4 Cooper alleges that SCSU granted
such a transfer to Professor Rudolf, a member of the Business Department who had
been denied tenure in his original department. However, nothing in the record indicates
that Cooper was similarly situated to Rudolf. Most significantly, the record does not
indicate an actual opening or an existing need for someone with Cooper's abilities in
the Mass Communications Department. In short, even assuming, arguendo, that SCSU
transferred Rudolf to the Mass Communications Department, there is nothing in the
record to support a finding that Rudolf and Cooper were similarly situated or treated
in a discriminatorily different manner. Rather, the record merely shows an isolated
incident that most likely occurred under unique circumstances at SCSU. SCSU had no
obligation to create a position in its Mass Communications Department to avoid Title
VII liability.

       In sum, because Cooper failed to identify any discriminatory conduct that
occurred after the 1992 settlement, we hold that the statute of limitations began to run
when SCSU announced its official tenure decision, rather than at the time of
termination, and, thus, affirm the decision of the district court dismissing plaintiff's Title
VII claim as time-barred.5 Cooper failed to present any evidence that SCSU acted in
a discriminatory manner after it informed him of its tenure decision in 1992. Under the
1992 settlement agreement, Cooper's 1996 termination was the inevitable effect of
Cooper not obtaining his Ph.D.




       4
       Because the Mass Communications Department's accreditation depended on
maintaining both "academic" and "professional" faculty, there were positions in that
department for which tenure was available without a terminal degree.
       5
       Having carefully reviewed the record and the parties' briefs, we conclude
dismissal was proper with respect to Cooper's reprisal and hostile environment claims
and affirm for the reasons stated by the district court. See 8th Cir. R. 47B.

                                             -7-
B. MHRA

       SCSU asserts that the Eleventh Amendment bars federal-court jurisdiction over
Cooper's state law claim under the MHRA. The Eleventh Amendment bars federal
court jurisdiction over state law claims against unconsenting states or state officials
when the state is the real, substantial party in interest, regardless of the remedy sought.
See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984). This
constitutional bar applies with equal force to pendent state law claims. See Pennhurst,
465 U.S. at 120-21. We have previously recognized that the University of Minnesota
is an instrumentality of the state which enjoys the state's Eleventh Amendment
protections. See Trevelen v. University of Minnesota, 73 F.3d 816, 818 (8th Cir.
1996). SCSU argues that it also shares the state's Eleventh Amendment immunity
because it is an agency of the State government under Minnesota Statute § 144. The
district court agreed with SCSU. Cooper does not challenge this argument, but rather
argues that Minnesota waived SCSU's Eleventh Amendment immunity by subjecting
SCSU to potential liability under the MHRA. Thus, for purposes of this opinion, we
assume that SCSU would be entitled to the protection of the Eleventh Amendment
unless the state of Minnesota waived its immunity from suit in federal court.

       "The test for determining whether a State has waived its immunity from federal
court jurisdiction is a stringent one." Atascadero State Hosp. v. Scanlon, 473 U.S. 234,
241 (1985). A State "is deemed to have waived its immunity only where stated by the
most express language or by such overwhelming implication from the text as will leave
no room for any other reasonable construction." Id. at 239-40. "The interests of
Federalism require that such a waiver be clear and unequivocal." Burk v. Beene, 948
F.2d 489, 493 (8th Cir. 1991). Importantly, "[a] State's general waiver of sovereign
immunity is insufficient to waive Eleventh Amendment immunity; the state must specify
an intent to subject itself to federal court jurisdiction." Santee Sioux Tribe of Neb. v.
Nebraska, 121 F.3d 427, 431 (8th Cir. 1997) (emphasis added). In this case, Cooper
has failed to argue, much less demonstrate, that the State of Minnesota has waived its

                                           -8-
Eleventh Amendment immunity to suit in federal court. Rather, Cooper only argues
that Minnesota waived SCSU's immunity from suit by including it within the definition
of "persons" liable to suit under the MHRA. However, a careful reading of the statute
reveals that Minnesota only consented to suit in its own state courts. Under controlling
Eighth Circuit precedent, the fact that Minnesota waived its immunity to suit in
Minnesota's state courts is simply insufficient to waive its Eleventh Amendment
immunity. See id.


                                III. CONCLUSION

       For the reasons discussed, we affirm the district court's opinion dismissing
plaintiff's claims in its entirety.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -9-
