Frank McKenna v. Bowling Green State Univ, et al

Filing

OPINION filed: AFFIRMED, decision not for publication. Alan E. Norris; R. Guy Cole , Jr. and Julia Smith Gibbons, (authoring) Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0429n.06
No. 13-4054

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FRANK E. MCKENNA,
Plaintiff-Appellant,
v.
BOWLING GREEN STATE UNIVERSITY;
BOWLING GREEN STATE UNIVERSITY
BOARD OF TRUSTEES; SIMON MORGANRUSSELL,

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FILED
Jun 13, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE
NORTHERN DISTRICT OF
OHIO

Defendants-Appellees.

BEFORE: NORRIS, COLE, and GIBBONS, Circuit Judges.
GIBBONS, Circuit Judge. Frank McKenna was a tenured professor in Bowling Green
State University’s Department of Political Science. In January 2010, Bowling Green terminated
McKenna’s employment contract, fired him for cause, and revoked his tenure. McKenna sued
Bowling Green, Bowling Green’s Board of Trustees, and Simon Morgan-Russell, in his official
and individual capacities, under 42 U.S.C. § 1983, alleging that defendants violated his right to
procedural and substantive due process. The district court dismissed McKenna’s substantive due
process claim against all defendants and dismissed McKenna’s procedural due process claim
against Bowling Green, its Board of Trustees, and Morgan-Russell in his official capacity. The
district court then granted summary judgment to Morgan-Russell in his individual capacity on

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McKenna’s procedural due process claim. McKenna appeals. For the following reasons, we
affirm.
I.
In 1982, Bowling Green hired McKenna as an instructor in the Department of Political
Science. McKenna became an Assistant Professor in 1984 and achieved tenure as an Associate
Professor in 1989. The first ten years of McKenna’s employment were largely uneventful. But
starting in 1993, McKenna frequently cancelled class, refused to hold regular office hours,
submitted final grades late, and rarely attended faculty or committee meetings.

McKenna

attributes most of these deficiencies to various health issues.
After investigating McKenna’s performance issues, Bowling Green suspended McKenna
without pay for the 2008–2009 academic year with notice that he would be fired if he continued
to neglect his professional duties. McKenna filed a charge of discrimination with the Ohio Civil
Rights Commission alleging that Bowling Green violated the Americans with Disabilities Act by
failing to provide him with reasonable accommodations for his illnesses. McKenna and Bowling
Green eventually settled this claim. Bowling Green allowed McKenna to return for the spring
2009 semester, and McKenna agreed to abide by an addendum to his 2008–2009 faculty
appointment letter. The addendum identified a list of expectations for McKenna’s conduct upon
his return. The addendum also provided:
Dr. McKenna’s compliance with the terms and conditions set forth in Section 2.0
shall be reasonably determined and decided by a panel of three faculty members,
one who will be selected by the Dean, one who will be selected by the Chair, and
one who will be selected by Dr. McKenna. Should it be determined by the panel
that Dr. McKenna has failed to comply with the terms and conditions as
hereinabove set forth Dr. McKenna shall be subject to further disciplinary action
up to and including a one year suspension without pay, or, termination and
revocation of tenure. Any termination or revocation of tenure shall be undertaken
consistent with the procedures prescribed in the Academic Charter.

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The parties agree that McKenna complied with the terms of the addendum during the spring
2009 semester.
In summer 2009, the start of the 2009–2010 academic year, McKenna taught an online
political science class. Halfway through the course, a student complained that, among other
things, McKenna “had not been online for roughly three weeks [and] had not returned any
work.” The students “attempted to contact Dr. McKenna . . . but no one received a response.” A
student’s mother also complained to the Office of Admission that McKenna was nonresponsive.
The Chair of the Political Science Department, Neal Jesse, talked to McKenna about these
complaints.

McKenna responded that he had been out of town and was having technical

difficulties with his computer and online software.
Following this conversation, the Chair wrote Simon Morgan-Russell, Dean of the College
of Arts and Sciences, a memorandum about the complaints and recommended that the College of
Arts and Sciences impanel a committee as outlined in the addendum. McKenna was copied on
this memorandum. On September 10, 2009, Morgan-Russell notified McKenna that he was
“activat[ing] the procedure outlined in Section 3.0 of your Settlement Agreement.” MorganRussell noted the two student complaints.

He also reiterated Jesse’s concern that these

complaints “may be seen as a failure to meet the obligations of the Settlement Agreement.”
Morgan-Russell then wrote to the Department, copying McKenna, and asked for the committee
to be formed.
The committee met three times “to investigate questions raised about Dr. McKenna’s
compliance with the terms and conditions set forth in the addendum to his 2008–2009 faculty
appointment letter.” The committee interviewed Jesse, McKenna, and a Technology Projects
Specialist.

The committee also reviewed the online software’s user statistics, the course

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syllabus, and 321 emails provided by McKenna. After considering this evidence, the committee
concluded that “there remain four periods of time . . . totaling 54 days, where [McKenna] did not
respond to student emails received by him.” The committee found McKenna’s explanations for
his failure implausible.
After reviewing the committee’s report, Morgan-Russell notified McKenna that he was
seeking termination of McKenna’s contract and revocation of his tenure. In the letter, MorganRussell quoted Jesse’s initial summary of the students’ complaints as well as Jesse’s personal
concerns with McKenna’s performance. He also attached the committee’s report and provided a
bulleted summary. Bowling Green then terminated McKenna’s contract, dismissed him for
cause, and revoked his tenure.
On January 28, 2010, McKenna, through counsel, sent a formal grievance petition to
Bowling Green’s Faculty Personnel Conciliation Committee (FPCC). After rejecting his initial
grievance for failure to follow the proper procedures, the FPCC accepted McKenna’s amended
grievance in April. On September 2nd, McKenna asked that the FPCC impanel a Hearing Board
to continue the grievance process. Under the Academic Charter, a Hearing Board should have
been impaneled by September 12th—within ten class days of McKenna’s request. But by the
end of September, the FPCC had only identified the Chair and Vice Chair. The Hearing Board
was not selected until mid-November.
In anticipation of the hearing, McKenna submitted his written evidence and list of
witnesses in December. Morgan-Russell submitted his evidence, including evidence concerning
pre-summer 2009 discipline and performance issues, in January 2011. The FPCC then set the
hearing for March 24, 2011.

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Ten days before the hearing, McKenna’s counsel wrote to the Chair of the FPCC about “a
couple specific due process concerns [McKenna had] related to the upcoming hearing.”
Specifically, McKenna asked that, pursuant to the Academic Charter, he be allowed to designate
a faculty member and licensed attorney to try the case on his behalf. McKenna also objected to
several of Morgan-Russell’s designated witnesses and exhibits. In response, the FPCC cancelled
the March hearing to consult with Bowling Green’s counsel. The FPCC told McKenna that
“scheduling in the month of April can be problematic, given the demands of course exams, endof-the year reports and the like.” McKenna “reluctantly agree[d] to such a delay,” but “insist[ed]
that the matter be rescheduled before April 29th when the FPCC officially suspends its activities
for the summer.” McKenna reiterated that “the longer this grievance languishes, the less likely
students whom Dr. McKenna has identified as potential witnesses will be available to testify at
the Hearing Board session as they scatter following graduation or otherwise leave the
University.”
The grievance process stalled. At the beginning of the fall 2011 semester and after
several inquiring letters from McKenna’s counsel, the FPCC contacted McKenna and MorganRussell and conveyed its “wish to proceed with the hearing board for this case as expeditiously
as possible.”
Three months later, the FPCC circulated a revised list of names for the Hearing Board.
Morgan-Russell wrote privately to the FPCC challenging one of the members:
As you likely know, an important component of the Frank McKenna case is that
A&S conducted two investigations according to our longstanding practice of
having a faculty committee consider whether allegations made in complaints are
sustainable—or not. Last year, we asked Brad Clark to serve as a member of a
committee that considered some concerns expressed about a faculty member in
the School of Art. Mr. Clark agreed to serve, but his work on the committee
made it clear to us that he had little to no confidence in the process that the
College follows, and, in fact, he raised sufficient concern that the process would
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deal with the complaint fairly (i.e. that the College had already made up its
“mind,” effectively rendering the committee’s work a sham) that the individuals
who had raised the concern chose to withdraw their formal complaint, causing the
investigation to stall and fail. . . . I am concerned that Mr. Clark’s understanding
of the work of A&S investigation committees based on this negative experience
might have an impact on the grievance. I would prefer that he not serve on this
particular committee.
The FPCC agreed and removed Clark from the Hearing Board. A week later, the FPCC told
McKenna’s faculty advisor that “the FPCC-EC considered and upheld the challenge of a hearing
board member by the respondent in this case. . . . [and] a new board roaster will be publicized to
both sides in short order.” No further information was given.
McKenna filed this action on January 3, 2012, demanding, among other things, a posttermination hearing. After numerous communication difficulties and scheduling issues, the
hearing was finally set for April 19, 2012. The grievance hearing went forward as scheduled. It
lasted three hours and fifteen minutes. McKenna appeared with counsel and his chosen faculty
advisor.

McKenna’s advisor presented an opening statement and questioned McKenna.

Morgan-Russell called Jesse and the faculty members who investigated McKenna’s actions
during his summer 2009 class.

McKenna’s advisor cross-examined these witnesses, and

McKenna delivered his own closing statement.
The Hearing Board upheld the termination of McKenna’s contract and the revocation of
his tenure on May 2, 2012. It determined that McKenna’s performance “over time along with
the progressive disciplinary actions taken by [Morgan-Russell], or his predecessors, justified
revocation of tenure and dismissal from the University.” The Hearing Board also found that “the
addendum was in effect during the relevant time period” because it was “just one step in a series
of steps of progressive discipline applied to [McKenna] and therefore its language and intent is
not limited to the 2008-2009 contract year.”

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After the hearing, McKenna continued with this lawsuit, alleging that defendants (1)
violated his right to procedural due process; (2) violated his right to substantive due process; and
(3) breached his employment contract.

He requested money damages and injunctive and

declaratory relief.
Defendants moved for judgment on the pleadings, which the district court granted in part.
The district court dismissed “any procedural due process claims for monetary damages against
[Bowling Green], the Board of Trustees, and Dean Morgan-Russell in his official capacity” on
the basis of the Eleventh Amendment. The district court then dismissed McKenna’s substantive
due process claims against all defendants for failure to state a claim upon which relief could be
granted. The district court also dismissed McKenna’s contract claims.
Morgan-Russell, in his individual capacity, moved for summary judgment on McKenna’s
procedural due process claim, arguing that he did not violate McKenna’s procedural due process
rights and that, regardless, he was entitled to qualified immunity. The district court granted
Morgan-Russell’s motion. McKenna now appeals.
II.
We apply the same de novo standard of review employed for a motion to dismiss under
Rule 12(b)(6) to a district court’s decision regarding a motion for judgment on the pleadings.
Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008). “‘For purposes of a
motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of
the opposing party must be taken as true, and the motion may be granted only if the moving
party is nevertheless clearly entitled to judgment.’” Id. (quoting JPMorgan Chase Bank, N.A. v.
Winget, 510 F.3d 577, 581 (6th Cir. 2007)). “The factual allegations in the complaint need to be
sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must

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plead ‘sufficient factual matter’ to render the legal claim plausible, i.e., more than merely
possible.” Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)).
A.
McKenna appeals the district court’s dismissal of his substantive due process claim.
“[T]he termination of public employment does not constitute a denial of substantive due process”
unless there has been an “infringement of some ‘fundamental’ right.” Young v. Twp. of Green
Oak, 471 F.3d 674, 684 (6th Cir. 2006) (quoting Sutton v. Cleveland Bd. of Educ., 958 F.2d
1339, 1351 (6th Cir. 1992)) (internal quotation marks omitted); see also Perry v. McGinnis, 209
F.3d 597, 609 (6th Cir. 2000) (holding that even when a public employee is discharged for
reasons that shock the conscience, the violation of a fundamental right is still “necessary”).
Here, McKenna only alleges that he was denied his right to tenured employment. He does not
plead a violation of a fundamental right. See Sutton, 958 F.2d at 1350 (“[W]e conclude that
plaintiffs’ state-created right to tenured employment lacks substantive due process protection.”);
cf. Bell v. Ohio State Univ., 351 F.3d 240, 251 (6th Cir. 2003) (“Where . . . there is no equal
protection violation, we can see no basis for finding that a medical student’s interest in
continuing her medical school education is protected by substantive due process.”). Therefore,
McKenna’s substantive due process claim cannot survive defendants’ motion for judgment on
the pleadings.
B.
McKenna also challenges the district court’s conclusion that it “disposed of all
[McKenna’s] claims against [Bowling Green] and the Board of Trustees.”

McKenna

acknowledges that he cannot seek monetary relief against either Bowing Green or its Board of

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Trustees, but asks this court to remand to allow his claim for injunctive relief to proceed against
both entities. We decline to do so for two reasons.
First, neither defendant is a “person” subject to suit under § 1983. See Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 64 (1989) (holding that “a State is not a person within the
meaning of § 1983”). When an action is brought against a public institution, as it is here, the
question is whether the institution can be characterized as an arm or alter ego of the state. See
Hall v. Med. Coll. of Ohio at Toledo, 742 F.2d 299, 301 (6th Cir. 1984). McKenna does not
challenge the district court’s holding that Bowling Green is an arm of the state. See Ohio Rev.
Code § 3345.011 (recognizing Bowling Green as a “state university”); Hall, 742 F.2d at 301–07
(holding that Medical College of Ohio at Toledo is an arm of the state). It follows that the Board
of Trustees, a corporate body charged with conducting University affairs, is also an arm of the
state. Therefore, having sued only the University and its Board of Trustees, rather than the
individual trustees, McKenna has failed to state a claim against a person covered by § 1983. 1
See, e.g., Gaby v. Bd. of Trs. of Cmty. Technical Colls., 348 F.3d 62, 63 (2d Cir. 2003) (holding
that “boards of trustees of state colleges and universities are not subject to suit under § 1983”);
McLaughlin v. Bd. of Trs. of State Colls. of Colo., 215 F.3d 1168, 1172 (10th Cir. 2000) (same).
Additionally, because Bowling Green and its Board of Trustees are arms of the state,
Eleventh Amendment immunity also attaches. See Hall, 742 F.2d at 301–07. Alluding to Ex
parte Young, 209 U.S. 123 (1908), McKenna argues that the Eleventh Amendment bar does not
apply to his claims for injunctive relief. Under Ex parte Young, “a federal court, consistent with
the Eleventh Amendment, may enjoin state officials to conform their future conduct to the
1

McKenna is correct that “a state official in his or her official capacity, when sued for
injunctive relief, would be a person under § 1983.” See Will, 491 U.S. at 71 n.10. The problem
is not the type of relief McKenna requests, but the fact that McKenna failed to sue “state
officials.”
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requirements of federal law.” Quern v. Jordan, 440 U.S. 332, 337 (1979). But Ex parte Young
does not apply because Bowling Green and its Board of Trustees are not state officials. See
Westside Mothers v. Haveman, 289 F.3d 852, 860 (6th Cir. 2002).
III.
Lastly, McKenna appeals the district court’s grant of summary judgment in favor of
Morgan-Russell, in his individual capacity, on McKenna’s procedural due process claim. We
review a district court’s grant of summary judgment de novo. Allstate Ins. Co. v. Thrifty Rent-ACar Sys., Inc., 249 F.3d 450, 453 (6th Cir. 2001). Summary judgment is appropriate if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). In deciding motions for summary
judgment, we draw all reasonable inferences in favor of the nonmovant. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “The ultimate inquiry is ‘whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’” Phillips v. Roane Cnty., 534 F.3d 531,
538 (6th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986)).
In order to establish a procedural due process claim, McKenna “‘must show that (1) he
had a life, liberty, or property interest protected by the Due Process Clause; (2) he was deprived
of this protected interest; and (3) the state did not afford him adequate procedural rights prior to
depriving him of the property interest.’” O’Neill v. Louisville/Jefferson Cnty. Metro Gov’t,
662 F.3d 723, 732 (6th Cir. 2011) (quoting Waeschle v. Dragovic, 576 F.3d 539, 544 (6th Cir.
2009)). It is undisputed that McKenna had a protected property interest and that he was deprived
of this interest. The only element of his claim at issue is whether McKenna was afforded the
process that he was due.

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A.
McKenna argues that he did not receive a constitutionally valid pre-termination hearing.
The Supreme Court has held that the state must provide a pre-termination hearing before firing a
public for-cause employee, but that this hearing “need not be elaborate.” Cleveland Bd. of Educ.
v. Loudermill, 470 U.S. 532, 542–46 (1985). In this context, a pre-termination hearing “should
be an initial check against mistaken decisions—essentially, a determination of whether there are
reasonable grounds to believe that the charges against the employee are true and support the
proposed action.” Id. at 545–46. Specifically, McKenna was entitled to oral or written notice of
the charges against him, an explanation of Bowling Green’s evidence, and an opportunity to
present his side of the story to Bowling Green. See Farhat v. Jopke, 370 F.3d 580, 595 (6th Cir.
2004) (quoting Buckner v. City of Highland Park, 901 F.2d 491, 494 (6th Cir. 1990)).
We agree with the district court that McKenna was given all the pre-termination process
he was due.2 Morgan-Russell sent McKenna three letters notifying him of student complaints
and the resulting departmental concern about his conduct during the summer 2009 course.
Morgan-Russell then impaneled a committee to investigate the student complaints.

This

committee met three times. McKenna appeared in front of the committee and spoke to them for
approximately an hour. He also provided the panel with 321 emails in support of his case.
Although he was not given a formal evidentiary hearing, McKenna was given an opportunity to
2

The district court alternatively dismissed McKenna’s claim because it found that
McKenna did not plead a pre-termination due process violation. However, McKenna’s
complaint does not distinguish between pre- or post-termination hearings. Instead, he broadly
alleges that his “termination was unlawful as Defendants deprived [him], a tenured university
professor, of certain constitutionally protected rights . . . when one or all of Defendants
discharged Plaintiff without providing him with a hearing in which he was informed of the
grounds of his dismissal and given the opportunity to challenge the sufficiency of those
grounds.” Because McKenna’s complaint can fairly be read to include a challenge to both preand post-termination hearings, we reach the merits.
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be heard and that is all the process required at this stage. See Brickner v. Voinovich, 977 F.2d
235, 237 (6th Cir. 1992) (“These essential elements do not require a full evidentiary,
adjudicatory hearing, which is the primary function of a posttermination proceeding[].”);
Loudermill v. Cleveland Bd. of Educ., 844 F.2d 304, 311 (6th Cir. 1988) (holding that an
informal, in-office meeting between an employee and his supervisor satisfied the constitutional
requirements for pre-termination due process).
McKenna’s main argument on appeal is that the pre-termination panel was not
“legitimate” because it was conducted according to the terms of the Addendum, which McKenna
argues expired at the end of the spring 2009 semester. This is irrelevant to the procedural due
process analysis. We do not ask what procedures an employee was or was not entitled to under
state law, local ordinances, or, in this case, a university charter. See Chandler v. Vill. of Chagrin
Falls, 296 F. App’x 463, 470 (6th Cir. 2008). Rather, we look at what process the plaintiff
actually received and ask whether it was sufficient to satisfy the Constitution. See id. In this
case, the pre-termination process was sufficient.
B.
We turn now to McKenna’s arguments concerning the post-termination process.
Procedural due process requires “‘notice and opportunity for hearing’” that is “‘appropriate to
the nature of the case.’” See Brickner, 977 F.2d at 237 (quoting Mullane v. Cent. Hanover Bank
& Trust Co., 339 U.S. 306, 313 (1950)). In this case, McKenna argues that both aspects of his
post-termination procedures were constitutionally inadequate.
As an initial matter, McKenna claims that he received inadequate notice of the charges
against him because the memoranda only charged that he had violated the terms of the
Addendum; yet at the formal grievance hearing, Morgan-Russell argued that McKenna’s

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behavior also violated the general provisions of Bowling Green’s Charter. We hold that the
multiple notices provided to McKenna were reasonably calculated, under the circumstances, to
apprise him of the pendency of the action and to afford him an opportunity to present his
objections. See Morrison v. Warren, 375 F.3d 468, 475 (6th Cir. 2004). Before McKenna’s
termination, Morgan-Russell sent McKenna three memoranda describing the alleged misconduct
(McKenna’s handling of the online course during the summer of 2009) and the basis for
dismissing McKenna because of that misconduct (the Addendum). After the informal committee
hearing, Morgan-Russell sent another memorandum detailing the same grounds for McKenna’s
dismissal—nothing had changed. At the hearing, Morgan-Russell continued to point to the same
troubling behavior. And the report of the Hearing Board recounted the same misconduct.
Additionally, McKenna was on notice that Morgan-Russell intended to introduce progressive
discipline evidence over a year before the hearing.
We acknowledge that none of the written notices mention the University’s authority to
act on McKenna’s misconduct outside of the Addendum. But it does not necessarily follow from
this fact that McKenna’s due process rights were violated. In this context, the touchstone of the
notice requirement is that an employer must notify the employee of the misconduct alleged so
that the employee can present his side of the story. Cf. McDaniel v. Princeton City Sch. Dist. Bd.
of Educ., 45 F. App’x 354, 358 (6th Cir. 2002). It is undisputed that Morgan-Russell notified
McKenna of all alleged misconduct. Whether Morgan-Russell comprehensively discussed all
legal bases allowing the University to fire McKenna for this misconduct is irrelevant to the
question. We find no constitutional deficiency with the notice McKenna received.
McKenna also claims that his post-termination hearing violated his due process rights.
We have held that “[w]hat form of hearing is ‘appropriate’ depends in large part upon the timing

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of the hearing, i.e., whether it is given before or after the deprivation occurs.”
977 F.2d at 237.

Brickner,

When a public employee only receives an “abbreviated pre-termination

hearing,” then, at a minimum, he should be “permitted to attend the [post-termination] hearing,
to have the assistance of counsel, to call witnesses and produce evidence on his own behalf, and
to know and have an opportunity to challenge the evidence against him.” Rodgers v. 36th Dist.
Court, 529 F. App’x 642, 649 (6th Cir. 2013) (quoting Carter v. W. Reserve Psychiatric
Habilitation Ctr., 767 F.2d 270, 273 (6th Cir. 1985)). Here, McKenna alleges five problems
with his post-termination hearing: (1) Morgan-Russell submitted evidence of McKenna’s
conduct prior to the summer 2009 course; (2) Morgan-Russell sought and obtained dismissal of a
Hearing Board member through ex parte communication; (3) the hearing was delayed for two
years; (4) the Charter’s provisions for the hearing, including the burden of proof, its allowance
for counsel, and the time limits, disadvantaged McKenna; and (5) the Hearing Board’s decision
was contrary to the substantial weight of the evidence.
Morgan-Russell asserts a qualified-immunity defense to these claims. The doctrine of
qualified immunity is a defense to § 1983 claims. Binay v. Bettendorf, 601 F.3d 640, 647 (6th
Cir. 2010). There are two general steps to a qualified immunity analysis. The court must
determine whether “the facts alleged show the officer’s conduct violated a constitutional right”
and whether that right was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201–02 (2001).
Under Pearson v. Callahan, the court may address either question first. 555 U.S. 223, 236
(2009).

“Once the qualified immunity defense is raised, the burden is on the plaintiff to

demonstrate that the officials are not entitled to qualified immunity.” Binay, 601 F.3d at 647
(quoting Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006)).

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McKenna’s procedural due process claim fails at step one; Morgan-Russell’s conduct did
not violate a constitutional right. To be held liable under § 1983, a plaintiff must establish that
“each Government-official defendant, through the official’s own individuals actions, has violated
the Constitution.” Aschroft v. Iqbal, 556 U.S. 662, 676 (2009). “Simply put, to establish liability
and to overcome a qualified immunity defense, an individual must show that his or her own
rights were violated, and that the violation was committed personally by the defendant.”
Robertson v. Lucas, No. 12-3877, slip op. at 10 (6th Cir. 2014); see also Summers v. Leis,
368 F.3d 881, 888 (6th Cir. 2004) (“The first question for the Court is whether [defendant],
acting under the color of state law, committed a constitutional violation.

A claimed

constitutional violation must be based upon active unconstitutional behavior.”).
Here, McKenna concedes that Morgan-Russell was not responsible for most of the
alleged due process violations, including the two-year delay, the “overall shortcomings” in
Bowling Green’s Grievance Procedures, and the sufficiency of the Hearing Board’s decision.
McKenna also concedes that he is alleging a due process violation stemming from the
University’s admission of allegedly prejudicial evidence at the grievance hearing. The hearing
was adversarial in nature, with McKenna as the petitioner and Morgan-Russell as the respondent.
A due process violation does not stem merely from Morgan-Russell’s seeking admission of
evidence during this adversarial process. Rather, as McKenna admits, the violation, if any, stems
from the Hearing Board’s admission and consideration of the evidence.
Thus, the only conduct arguably committed by Morgan-Russell involving the posttermination hearing was his ex parte communication about the Hearing Board member.3
McKenna claims that Morgan-Russell’s ex parte email challenging the seating of a Hearing
3

Although, like with the admission of evidence, it was ultimately the University that
decided to remove the Hearing Board member.
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Case: 13-4054

Document: 31-1

Filed: 06/13/2014

Page: 16

No. 13-4054, McKenna v. Bowling Green State Univ., et al.
Board member biased the Hearing Board and tainted the proceedings. However, McKenna
offers no support for his allegation of bias other than the ex parte email itself. Cf. C.Y. ex rel.
Antone v. Lakeview Pub. Schs., No. 13-1791, 2014 WL 541096, at *4 (6th Cir. 2014) (“[A]bsent
a showing of bias, it does not violate due process for school administrators to communicate ex
parte with the Board . . . .” (emphasis added)). The email alone does not support an inference of
bias. Morgan-Russell did not submit any additional evidence to the Hearing Board and it is clear
that the merits of the case were not discussed. Furthermore, McKenna does not offer any
evidence that the replacement Hearing Board member was biased against him or that the overall
composition of the Hearing Board was unbalanced in light of Clark’s removal. Therefore, there
is no genuine issue of material fact and summary judgment is appropriate.
IV.
For the above reasons, we affirm the district court’s dismissal of McKenna’s substantive
due process claim against all defendants; affirm the district court’s dismissal of McKenna’s
procedural due process claim against Bowling Green and its Board of Trustees; and affirm the
district court’s grant of summary judgment to Morgan-Russell in his individual capacity on
McKenna’s procedural due process claim.

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