                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-3-2009

Philip Yip v. Union Cty College
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3207




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                      No. 08-3207
                                      ___________

                                      PHILIP YIP,
                                                       Appellant

                                            v.

                 UNION COUNTY COLLEGE; CYNTHIA ROEMER
                    ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                            (D.C. Civil Action No. 06-4238)
                     District Judge: Honorable Susan D. Wigenton
                     ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 February 2, 2009
               Before: BARRY, SMITH AND GARTH, Circuit Judges

                           (Opinion filed: February 3, 2009)

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Philip Yip appeals from an order of the United States District Court for the District

of New Jersey granting summary judgment to defendants Union County College and

Cynthia Roemer. We will affirm.
         Yip taught biology and chemistry as an adjunct instructor at Union County

College, a public institution of higher education. In 2004, he registered for the New

Pathway to Teaching in New Jersey, offered by the Continuing Education Division of the

college. The program consisted of three phases. Yip registered to take Phase I in the

summer of 2004. When the college released the summer schedule, Yip learned that the

summer courses he was assigned to teach would overlap with Phase I of the New Pathway

course by at least one week. Accordingly, Yip was unable to attend the first few days of

New Pathway. Yip informed Roemer that he would be absent from the first few days of

class, and Roemer assured him it was not a problem. Yip alleges that he never received a

syllabus for the class, and over the course of the semester, Roemer never returned any

assignments to him. On September 2, 2004, Yip received by mail a grade of “C” for the

course. Yip attempted to register for Phase II of the course, but he was instead instructed

to see Dean Willenbrock, who informed him that his low grade in Phase I precluded his

registration for Phase II. Dean Willenbrock then encouraged Yip to discuss his grade

with Roemer. Roemer emailed Yip with the grades that Yip received on all assignments,

from which Yip determined that Roemer had penalized him for missing the first two days

of class, and that he had received grades of zero for five reflective journals because, in

Roemer’s words, the journals “missed the mark.” Yip’s failure to grasp the nature of the

assignments, Roemer suggested, stemmed from his having missed the first two days of

class.



                                              2
       Yip explained his absences again and requested that he be permitted to rewrite the

five reflective journals. On the advice of Dean Willenbrock, Roemer refused to give Yip

an opportunity to rewrite the journals.

       On September 7, 2006, Yip filed a complaint in the District Court, asserting four

claims: (1) violation of civil rights and discrimination under 42 U.S.C. §§ 2000a and

2000d; (2) violation of due process and equal protection; (3) dereliction of duties and

negligence; and (4) pain, suffering, humiliation and embarrassment.

       Defendants filed a motion for summary judgment on all claims, and the District

Court granted the motion at a hearing on June 19, 2008. The District Court determined

that the statute of limitations barred Yip’s federal claims, and that Yip had failed to

exhaust his state law claims through the procedure set forth by the New Jersey State Tort

Claims Act. Accordingly, the District Court concluded that Yip’s complaint was time-

barred. In the alternative, the District Court determined that Yip’s claims lacked merit

because his complaint sought judicial review of a course grade, and the court was

reluctant to interfere with a teacher’s academic judgment regarding student performance.

Yip appealed.

       We have jurisdiction under 28 U.S.C. § 1291. We review the grant of summary

judgment de novo. Startzell v. City of Phila., 533 F.3d 183, 192 (3d Cir. 2008). We will

affirm the grant of summary judgment only if, viewing the facts most favorably to the

non-moving party, we determine that there are no genuine issues of material fact for trial.



                                              3
Id.

          We agree that Yip’s claims are untimely. A two-year statute of limitations applies

to Yip’s constitutional claims under 42 U.S.C. § 1983, as well as his claim under Title VI,

42 U.S.C. § 2000d.1 See Wilson v. Garcia, 471 U.S. 261, 276 (1985) (statute of

limitations for personal injury claims under state law applies to actions under 42 U.S.C. §

1983); Taylor v. Regents of Univ. of Calif., 993 F.2d 710, 712 (9th Cir. 1993) (claims

under § 1983 and § 2000d are governed by same statute of limitations); N.J.S.A.§ 2A:14-

2(a) (two-year statute of limitations applies to personal injury claims).

          Yip admitted that he learned of his “C” grade on September 2, 2004, and that he

did not file suit until September 7, 2006. Although Yip argues that he attempted to

redress the low grade after September 2, 2004, we note that the statute of limitations

begins as soon as the plaintiff learns or reasonably should have learned that she has been

injured and is not tolled until the last day that her curative efforts fail. See Mest v. Cabot

Corp., 449 F.3d 502, 510 (3d Cir. 2006). Therefore, Yip’s claims for violations of due

process and equal protection are time-barred.

          As for his state law claims for dereliction of duty, negligence and pain, suffering

and embarrassment, the District Court properly determined that these claims arose under




      1
    Yip also cites the public accommodations provision of Title VI, 42 U.S.C. § 2000a,
but this provision does not apply to his claim of race discrimination in the context of
academic assessment. Accordingly, we do not analyze this claim or determine whether
Yip’s assertion of such a claim would be timely.

                                                4
state tort law, and that Yip had not satisfied the time and notice requirements under the

NJTCA. See N.J.S.A. § 59:8-8 (requiring a plaintiff to notify a public entity within 90

days of learning of an injury). This notice provision is a prerequisite to suit, except in

circumstances not applicable here, and no claim can be brought more than two years after

accrual. Id. As Yip failed to comply with the notice requirements under state law and

filed his complaint after more than two years had passed from the date his claims accrued,

summary judgment was also proper as to his state law claims.

       For the foregoing reasons, we will affirm the decision of the District Court.




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