Benjamin Dykman v. Board of Regents of the University of Wisconsin System

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 14, 2024*
Decided August 15, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 23-3429
BENJAMIN DYKMAN,
Plaintiff-Appellant,
v.
BOARD OF REGENTS OF THE
UNIVERSITY OF WISCONSIN
SYSTEM,
Defendant-Appellee.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 23-cv-217-jdp
James D. Peterson,
Chief Judge.
O R D E R
Benjamin Dykman filed suit alleging that that he was discriminated against and
lost his teaching appointment at the University of Wisconsin–Madison based on
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

-- 1 of 4 --

No. 23-3429 Page 2
perceived disabilities. The district court granted the defendant’s motion to dismiss, and
because Dykman’s complaint is untimely, we affirm.
In March 2014, the leadership of the Psychology Department at the University of
Wisconsin–Madison revoked Dykman’s teaching appointment, changing his
employment classification to one with less job security. The Department’s Executive
Committee explained that its decision was based on Dykman’s performance. Dykman
challenged the decision through the University’s internal grievance process, which
concluded in 2017.
After receiving (in 2017) an audio recording of the Executive Committee’s March
2014 meeting, Dykman filed a discrimination complaint with the University’s Office of
Compliance in 2018. The recording captured committee members describing him as
suffering from neurological problems. Dykman argued that the committee revoked his
teaching appointment because members perceived him as having mental and physical
disabilities that he does not have. The Office of Compliance rejected his complaint.
Dykman appealed, and the Interim Provost, on behalf of the University, upheld the
decision on July 11, 2019, ending all internal proceedings.
Dykman then filed a complaint for administrative review in state court. Among
his challenges to the revocation of his appointment was the argument that the
University discriminated against him on the basis of perceived disability. The circuit
court upheld the provost’s decision, Dykman v. Bd. of Regents of the Univ. of Wis. Sys.,
No. 19-CV-2237 (Cir. Ct. June 8, 2020), and the Wisconsin Court of Appeals affirmed,
Dykman v. Bd. of Regents of Univ. of Wis. Sys., 2022 WI App 1 (Wis. Ct. App. Nov. 4,
2021).
Dykman separately pursued relief through a charge with Wisconsin’s Equal
Rights Division. After receiving a right to sue letter, he filed his federal complaint and
alleged that the University violated the Americans with Disabilities Act, 42 U.S.C.
§ 12112, when it revoked his appointment. Again, he asserted that the Executive
Committee revoked his appointment because the members incorrectly perceived him to
have disabilities.
The University moved to dismiss Dykman’s complaint. It argued that Dykman’s
claims were barred by sovereign immunity, that his suit was untimely, and that claim
preclusion barred the suit. The court agreed that sovereign immunity barred any ADA
claim but considered the claim to arise under the Rehabilitation Act, 29 U.S.C. § 794,
instead. Still, the court granted the motion to dismiss upon concluding that the

-- 2 of 4 --

No. 23-3429 Page 3
complaint was both untimely and barred by claim preclusion. It explained that
Dykman’s claim accrued in March 2014, when his position was revoked, and so his
federal complaint—filed nine years later—was barred by the six-year statute of
limitations in effect at the time of accrual. The court further concluded that claim
preclusion applied because Dykman had litigated a claim against the University in state
court, and that claim arose from the same operative facts as the federal suit.
Dykman appeals, and we review the dismissal of his complaint de novo.
See Orgone Capital III, LLC v. Daubenspeck, 912 F.3d 1039, 1043 (7th Cir. 2019).† We agree
with the district court that Dykman’s complaint was untimely. To find the statute of
limitations for claims under the Rehabilitation Act, we look to state statutes for personal
injury claims. See Rutledge v. Ill. Dep’t of Hum. Servs., 785 F.3d 258, 260 (7th Cir. 2015);
Bush v. Commonwealth Edison Co., 990 F.2d 928, 933 (7th Cir. 1993) (Rehabilitation Act is
“closely akin” to civil-rights laws, so statute of limitations for personal-injury claims in
the forum state is borrowed.). But federal accrual rules apply. Devbrow v. Kalu, 705 F.3d
765, 767 (7th Cir. 2013). Under Title VII, the timing of the violation, not of related
employment decisions, marks the accrual of the claim. Del. State Coll. v. Ricks, 449 U.S.
250, 258 (1980). Therefore, the time to file ran from the date of the alleged
discriminatory act: when his appointment was revoked. See id.; see also Soignier v. Am.
Bd. of Plastic Surgery, 92 F.3d 547, 551 (7th Cir. 1996). At the time, Wisconsin had a six-
year statute of limitations for personal injury suits. WIS . STAT . § 893.53 (2014). Thus, the
limitations period for Dykman’s claim expired in 2019, and his 2023 complaint was
untimely.
Dykman’s two arguments in opposition are unpersuasive. First, he contends that
only the discovery of the recording in 2017 put him on notice of his claim, and the
limitations period should have begun then. But under the federal discovery rule, the
claim accrued when Dykman learned of his injury—his revoked appointment—not
when he learned that the injury resulted from alleged discrimination. See Wallace v. Kato,
549 U.S. 384, 388 (2007); United States v. Kubrick, 444 U.S. 111, 124 (1979) (knowledge of
† The University moved to dismiss the complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, and the court proceeded in that vein. But the statute of
limitations is an affirmative defense that generally should be advanced under
Rule 12(c). See Leavell v. Kieffer, 189 F.3d 492, 494–95 (7th Cir. 1999). Nevertheless,
addressing this defense under either Rule 12(b)(6) or Rule 12(c) requires the same
analysis. See Orgone Capital III, LLC, 912 F.3d at 1043; Leavell, 189 F.3d at 495.

-- 3 of 4 --

No. 23-3429 Page 4
injury, not that it was negligently inflicted, commenced limitations period); Thelan v.
Marc’s Big Boy Corp., 64 F.3d 264, 267 (7th Cir. 1995).
Alternatively, Dykman asserts that he bases his claim on a separate, discrete
act—the provost’s final decision in July 2019—not the revocation of his appointment in
2014. According to Dykman, the provost’s affirmation of the 2014 demotion was itself
discrimination that gave rise to a new limitations period. But failing to remedy
allegedly unlawful actions is not a discrete act that restarts the statute of limitations. See
Wallace, 549 U.S. at 391; Stepney v. Naperville Sch. Dist. 203, 392 F.3d 236, 239–40 (7th Cir.
2004). Further, even if Dykman were correct, a claim that accrued in 2019 would be
subject to a three-year limitations period, and his complaint would still be untimely. See
WIS . STAT . § 893.53 (2011), amended by 2017 Wis. Act 235 (eff. Apr. 5, 2018) (reducing
applicable statute of limitations to three years).
We have considered Dykman’s other arguments but need not address whether
claim preclusion also bars this lawsuit. The judgment is AFFIRMED.

-- 4 of 4 --