DeMoss v. Delaware State University

Filing 30

MEMORANDUM OPINION. Signed by Judge Maryellen Noreika on 10/12/2018. (dlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JEFFREY DEMOSS,

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Plaintiff,
v.
DELAWARE STATE UNIVERSITY, et al.,
Defendants.

C.A. No. 16-680 (MN)

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MEMORANDUM OPINION
Andrew G. Ahern, III, Esquire: Joseph W. Benson, P.A., Wilmington, DE- attorneys for plaintiff
James Darlington Taylor, Jr., Esquire, Allison Jean McCowan, Esquire, Gerard M. Clodomir,
Esquire: Saul Ewing LLP, Wilmington, DE- attorneys for defendants
October 12, 2018

JUDGE:
I.

INTRODUCTION
On August 8, 2016, Plaintiff Jeffrey DeMoss ("Plaintiff' or "DeMoss") filed this lawsuit

against Delaware State University ("DSU" or "the University") asserting claims for violation of
the Equal Protection Clause and racial discrimination in connection with DeMoss's employment
and termination of employment with DSU. (D.I. 1). On September 16, 2016, DeMoss filed a First
Amended Complaint (D.I. 4), adding several individual University employees as defendants: Irene
Chapman-Hawkins ("Hawkins"), Teresa Hardee ("Hardee"), and Harry L. Williams ("Williams")
(collectively, "the Individual Defendants"). The First Amended Complaint alleged: (1) claims
under 42 U.S.C. § 1983 against the Individual Defendants for violation of the Equal Protection
clause; (2) claims under 42 U.S.C. § 1981 against the Individual Defendants for racial
discrimination; and (3) claims under 42 U.S.C. § 2000d ("Title VI") against DSU for racial
discrimination.
On October 3, 2016, DSU and the Individual Defendants (collectively, "the Defendants")
filed a Motion to Dismiss the First Amended Complaint for failure to state a claim. (D.I. 5). On
September 7, 2017, the Court granted the motion with leave to amend. (D.I. 16). On October 6,
2017, DeMoss filed a Second Amended Complaint that added ce1iain allegations to the "Facts"
section of the Complaint.

(D.I. 28

,r,r 24,

25, 32, 40, 42, 43-45).

On November 3, 2017,

Defendants filed the instant Motion to Dismiss the Second Amended Complaint for failure to state
a claim. (D.1. 21).

II.

BACKGROUND
As discussed in the Court's earlier opinion (D.I. 15) and as previously alleged in Plaintiffs

Amended Complaint (D.I. 4), DeMoss "is a Caucasian male who was employed by DSU from

July 9, 2007 to October 3, 2014, as its Executive Director for Dining and Auxiliary Services."
(D.I.41 12; D.I. 181 12). Prior to his employment at DSU, DeMoss held similar positions at four
different universities for approximately thirty-six years.

(D.I. 4 113; D.I. 18

1 13). In

January 2010, DeMoss was "also named operations director of the Matiin Luther King Jr. Student
Center, as an added duty." (D.I.4118; D.I. 18118). Around the same time, Williams became
the tenth President ofDSU. (D.I.4119; D.I.18119). In the three years of his employment prior
to September of 2014, "[DeMoss] received the highest possible scores on his performance
evaluations from DSU ... [and] ... received the 'Vice President's Award for Excellence' from
DSU in September 2013." (D.I.4120; D.I. 18120).
In August 2014, DeMoss "began reporting to the new Vice President of Finance, Dr. Teresa
Hardee, an African American female in her late 40's." (D.I. 4, 121; D.I. 18, 1 21).

On

September 19, 2014, DeMoss was informed by Hawkins, Senior Associate Vice President of
Human Resources, that his "employment would be terminated in two weeks, effective
October 3, 2014." (D.I.4123; D.I. 18123). The "stated reason for Plaintiff's termination by the
University was that it was part of 'a substantial reorganization eff01i."' (D.I.4125; D.I. 18127).
DeMoss asserts that the stated reorganization effort was a "pretext" and "was not in fact occurring
and/or did not require the elimination of Plaintiff's position." (D.I. 4 126; D.I. 18 1 28). He
asserts that his "position continues to this day, and is being performed by African-American
women who have received raises to perform said duties." (D.I. 4 127; D.I. 18 129). He further
asse1is that DSU offered positions to other African American managers whose positions were
eliminated. (D.I.4138; D.I. 18143). And he asse1is that DSU did not give him the same notice
of termination it gave to others or follow its "custom and practice ... to only eliminate positions
at the end of the academic year." (D .I. 4 11 32, 39; D.I. 18 11 35, 44 ). DeMoss asserts that the

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decision to retain and promote those employees and to terminate his employment without
following the customary practice was discriminatory.
The Court dismissed Counts I and II of the First Amended Complaint, finding that the
allegations were insufficient to remove the protection of qualified immunity from the Individual
Defendants and insufficient for the Court to reasonably infer that DeMoss was discriminated
against because he is White.

(D.I. 15 at 4-7).

Subjective beliefs, unsupported by factual

allegations, cannot give rise to an inference of discrimination. (Id. at 7). The Court also dismissed
Count III, finding that Plaintiff had failed to make a plausible showing that the primary purpose of
the Federal funding received by DSU was for employment, and thus his Title VI claim was
deficient. (Id.).
In his Second Amended Complaint (D.I. 18), the counts remain the same. Count I alleges
an equal protection claim against the Individual Defendants arising under 42 U.S.C. § 1983 based
on race discrimination. Count II alleges a race discrimination claim against the Individual
Defendants under 42 U.S.C. § 1981. Count III alleges a race discrimination claim against the
University under Title VI. In addition, Plaintiff added the following new allegations:
24.

There was no legitimate reason for Plaintiffs termination, which was motivated by
an intent to discriminate against Plaintiff on the basis of his race.

25.

As set forth below, race was a motivating factor in Plaintiffs termination.

32.

This motive is supported by the fact that other Caucasian employees were treated
similarly as Plaintiff, and other African-American employees were treated more
favorably.

40.

Thus, Defendants complied with University practice with regard to AfricanAmerican employees, but deviated from said practice when handling the
termination of Plaintiff and another Caucasian employee. This departure from
typical practice is further evidence of a discriminatory intent.

42.

This is further evidence of an intent to discriminate against Plaintiff by removing
him and installing African-American employees in his place.

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He also added the underlined text to the following paragraphs.
43.

44.

Similarly, when DSU sought to terminate the employment of Vice President of
Student Affairs Kemal Atkins, an African-American male, DSU merely asked
Atkins to resign, it gave him several months of advance notice, it allowed Atkins
to conduct a job search during work time at his DSU office, and provided Atkins
with a farewell reception. DSU did not provide such a reception to Carolyn Curry
or Plaintiff. Once again similarly situationed African-American employees were
treated more favorably than how Plaintiff and another terminated Caucasian
employee were treated.

45.

III.

Further, there are at least five African-American managers whose jobs were
eliminated, but DSU placed these African-Americans in other jobs within the HR
and/or Finance Departments. No such offer of placement was made to Plaintiff as
part of the alleged reorganization plan. Again, similarly-situated African-American
employees were treated more favorably than how Plaintiff was treated.

President Williams called Plaintiff a "fat fuck" and an "asshole" on numerous
occasions. Williams falsely stated that Plaintiff "doesn't get along with black
people"'. These statements were made in order to pretextually terminate Plaintiff,
and Williams' reference to race is further proof that Plaintiffs status as Caucasian
was a motivating factor in terminating Plaintiff.

LEGAL STANDARDS
Rule 8 requires a complainant to provide "a short and plain statement of the claim showing

that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) allows the accused
party to bring a motion to dismiss the claim for failing to meet this standard. A motion to dismiss
pursuant to Rule 12(b)(6) may be granted only if, accepting the well-pleaded allegations in the
complaint as true and viewing them in the light most favorable to the complainant, the Court
concludes that those allegations "could not raise a claim of entitlement to relief." Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 558 (2007); Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir.

2016). The Court is "not required to credit bald assertions or legal conclusions improperly alleged
in the complaint." In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198,216 (3d Cir. 2002).
"Though 'detailed factual allegations' are not required, a complaint must do more than
simply provide 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of

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action."' Davis v. Abington Mem'l Hosp., 765 F.3d 236,241 (3d Cir. 2014) (quoting Twombly,
550 U.S. at 555). "To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a
right to relief above the speculative level on the assumption that the allegations in the complaint
are true (even if doubtful in fact)."' Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007)
(quoting Twombly, 550 U.S. at 555)). A plaintiff must plead facts sufficient to show that a claim
has substantive plausibility. See Johnson v. City of Shelby, 135 S. Ct. 346, 347 (2014). A claim
is facially plausible "when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Deciding whether a claim is plausible will be a "context-specific task
that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.
IV.

DISCUSSION
The Defendants argue that DeMoss's Second Amended Complaint does not remedy the

defects identified in the Court's prior opinion, and merely adds conclusory statements that do not
state plausible claims against the Defendants. Plaintiff disagrees. The Court addresses the issues
below.
A.

Qualified Immunity: Counts I and II

The doctrine of qualified immunity "protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223,231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "[Q]ualified immunity is an
immunity from suit, rather than a mere defense to liability." Hubbard v. Taylor, 399 F.3d 150,
167 (3d Cir. 2005).

To determine whether qualified immunity applies, the Court asks two

questions: "( 1) whether the Plaintiff has alleged the violation of an actual constitutional right, and

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if so, (2) whether the right was clearly established at the time of the alleged violation." Brockstedt

v. Sussex Cty. Council, 771 F. Supp. 2d 348, 355 (D. Del. 2011); Torisky v. Schweiker, 446 F.3d
438, 442-43 (3d Cir. 2006). The right Plaintiff alleges the official to have violated must have been
"clearly established" in a "particularized" sense.

Abdul-Akbar v. Watson, 4 F.3d 195, 202

(3d Cir. 1993) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). A right is clearly
established when " [t]he contours of the right [are] sufficiently clear that a reasonable official would
understand that what he is doing violates that right." Id. The Court decides whether the facts
alleged, taken in a light most favorable to the party asserting injury, show a violation of a
constitutional right and whether that right is clearly established. Saucier v. Katz, 533 U.S. 194,201
(2001).
1.

Count I: Equal Protection Under 42 U.S.C. § 1983

In Count I, Plaintiff alleges that he was discriminated against by Individual Defendants
based on his race in violation of 42 U.S.C. § 1983. 1 The Equal Protection Clause "prohibits selective
enforcement of the law based on considerations such as race." Whren v. United States, 517 U.S. 806,
813 (1996); Village ofWillowbrookv. Olech, 528 U.S. 562,564 (2000). An equal protection claim
under§ 1983 requires intentional, or purposeful discrimination. See, e.g., Johnson v. Fuentes, 704
F. App'x 61, 65 (3d Cir. 2017).

In Counts I and II, Plaintiff asserts that he was deprived of "privileges and immunities
secured to him by the First and Fourteenth Amendments of the United States Constitution,
and in paiiicular, his right to be free from discrimination on the basis of race and/or
gender." (D.I. 18 Jrlr 50, 53). "A public employee alleging an adverse employment action
because he engaged in protected First Amendment activity must show that (1) he engaged
in protected activity, and (2) the protected activity was a substantial or motivating factor
for the adverse action." Fultz v. Dunn, 165 F.3d 215, 218 (1998) (citing Swineford v.
Snyder County, 15 F.3d 1258, 1270 (3d Cir. 1994)). Plaintiff has pleaded no facts that
specify any protected activity that was the motivating factor for his termination. The Court
cannot plausibly infer a First Amendment claim based on these pleadings.
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To prevail, Plaintiff must allege facts showing both that (1) there was an adverse
employment action; and (2) that race was a motivating factor in the Individual Defendants'
decision. Id.
Here, the Court previously found that DeMoss had adequately pleaded that an adverse
employment action took place but had failed to allege sufficient facts that race was a motivating
factor in the Individual Defendants' decision. The First Amended Complaint alleged that DeMoss
was terminated based on race as part of a substantial reorganization but did not support the claim
that the Individual Defendants intentionally terminated DeMoss based on his race. The Court
found that fact that DeMoss was terminated, without more than had been pleaded, was insufficient
to remove the protection of qualified immunity from the Individual Defendants under § 1983.
In connection with the pending motion, the Court reviews the additional allegations in the
Second Amended Complaint to determine whether they address the deficiencies of the First
Amended Complaint. The Court concludes that they do not. The new allegations are largely
conclusory statements and summaries of previously pleaded allegations. For example, Paragraph
23 asserts a legal conclusion that "[t]here was no legitimate reason for Plaintiffs termination,
which was motivated by an intent to discriminate against Plaintiff on the basis of his race." (D .I. 18

123). Similarly, Paragraph 24 provides a lead-in to the previously pleaded allegations that is
simply a conclusion: "As set forth below, race was a motivating factor in Plaintiffs termination."
The allegations in new Paragraphs 32, 40 and 42 similarly are conclusions that either lead
into or summarize previously alleged facts, without providing any additional facts in support. For
example, Paragraphs 40 and 42 simply summarize the preceding paragraphs (which the Court
previously found were insufficient to meet the pleading standard). So too the additional sentences

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added to Paragraphs 43-45 add no factual allegations, but rather conclusions based on the prior
sentences.
As the Court previously recognized, subjective beliefs, unsupported by factual allegations,
cannot give rise to an inference of discrimination. See Rodriguez v. AMI'RAK, 532 F. App'x 152,
153 (3d Cir. 2013). And the allegations asserted by Plaintiff are not the kind of allegations from
which the Court may reasonably infer that DeMoss was discriminated against because of his race.
See Iqbal, 556 U.S. at 683. As Plaintiff has failed to plead adequately that race was a motivating
factor in the Individual Defendants' decision to terminate his employment, and termination of
DeMoss alone is insufficient to remove the protection of qualified immunity from the Individual
Defendants under § 1983, Plaintiffs claim pursuant to § 1983 must be dismissed.
2.

Count II: Race Discrimination 42 U.S.C. § 1981

As the Court previously held, Plaintiff has failed to bring a case properly under 42 U.S.C.
§ 1981. (D.I. 15 at 5 n.2). The Third Circuit has held that "the express cause of action for damages

created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed
in§ 1981 by state governmental units." McGovern v. City of Philadelphia, 554 F.3d 114, 120-21
(3d Cir. 2009) (citing Jett v. Dallas Independent School District, 491 U.S. 701, 733 (1989)). In
other words, though § 1981 regulates both public and private action, § 1981 does not provide a
remedy for a government actor's violation of its terms. See Ford v. SEPTA, 374 F. App'x 325,
326 (3d Cir. 2010) ("No private right of action lies against a state actor under § 1981." (citing
McGovern, 554 F.3d at 121 and Jett, 491 U.S. at 731)). 2

2

The case on which Plaintiff relies (D.I. 26 at 7-8), Schurr v. Resorts Intern. Hotel, Inc.,
196 F.3d 486,499 (3d. Cir. 1999), involves a§ 1981 claim brought against a private actor
- not a state actor.
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As the Court previously noted, Plaintiffs Second Amended Complaint asserts one
allegation against Individual Defendant, Hawkins.

Hawkins, in her role as head of Human

Resources of DSU, advised Plaintiff that he would be terminated effective October 3, 2014.
(D.I. 18 ,r 23). Plaintiffs Second Amended Complaint further asserts that Defendants Hardee and
Williams made the decision to terminate Plaintiff. (D.I. 4 ,r 30). There is no dispute that all these
defendants are public actors, and thus, Plaintiffs remedy for violation of his rights is not 42 U.S.C
§ 1981, but rather§ 1983. To the extent Count II intends to assert a claim under § 1983, the Court's
analysis above in connection with Count I applies equally to Count II.

B.

Count III: Title VI Claim

Title VI (42 U.S.C. § 2000d) provides that, "No person in the United States shall, on the
ground of race, color, or national origin, be excluded from paiiicipation in, be denied the benefits
of, or be subjected to discrimination under any program or activity receiving Federal financial
assistance." 41 U.S.C. § 2000d; see also Alexander v. Sandoval, 532 U.S. 275 (2001) (explaining
no private right of action exists under Title VI to remedy non-intentional discrimination). Title VI
was not meant to be the primary Federal vehicle to prohibit employment discrimination, but it does
forbid employment discrimination by recipients where the primary objective of the Federal
financial assistance to a recipient is to promote employment. 42 U.S.C. § 2000d-3.
The allegation advanced by Plaintiff in support of his Title VI claim in the Second
Amended Complaint is identical to the allegation made in the prior Amended Complaint, namely
that "DSU has at all times material received federal funds, a primary purpose of which has been
to provide employment and to provide a non-discriminatory community of students, faculty and
employees." (D.I. 18 ,r 10). As the Court previously determined, this conclusory statement is not

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a plausible showing that the primary purpose of the federal funding received by DSU was for
employment. 3 Thus, Plaintiffs Title VI claim against DSU is dismissed.

V.

FEES/AMENDMENT
Defendants ask that the Court dismiss the Second Amended Complaint with prejudice and

award Defendants their fees and costs. (DJ. 22 at 6-7). The Court declines to do so.
Civil litigants are generally responsible for their own attorney's fees. The Court may, in
its discretion, allow a prevailing party to recover reasonable attorney's fees as part of the costs
pursuant to 42 U.S.C. § 1988(b), which provides in pertinent part:
In any action or proceeding to enforce a provision of sections 1981 ... [or] 1983 .
. . of this title ... the court, in its discretion, may allow the prevailing party ... a
reasonable attorney's fee as part of the costs.
The Supreme Court has noted that a "prevailing defendant may recover an attorney's fee
only where the suit was vexatious, frivolous, or brought to harass or embarrass the defendant."

Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983). Attorney's fees for prevailing defendants
"are not routine but are to be only sparingly awarded." Quiroga v. Hasbro, Inc., 934 F.2d 497,
503 (3d Cir. 1991). Here, while the Court has granted the motion to dismiss the Second Amended
Complaint, the Court cannot conclude that that pleading was "vexatious, frivolous, or brought to
harass or embarrass the defendant." Nor can the Court conclude that it is obvious that Plaintiff
cannot state a claim such that the motion to dismiss be granted without further leave to amend.

3

Plaintiff did not timely file a motion for reargument in connection with Count III, nor has
it asserted that the Court's prior decision was in error. Having been presented with no
reasons to reassess its prior decision, the Court declines to do so.
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VI.

CONCLUSION
For the foregoing reasons, the Court will grant the Defendants' motion to dismiss Counts

I and II of the Amended Complaint against Individual Defendants and Count III against Delaware
State University.
An appropriate order will be entered.

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