Moss v. University of Notre Dame Du Lac et al

Filing 16

OPINION AND ORDER GRANTING IN PART and DENYING IN PART 11 MOTION to Dismiss for Failure to State a Claim by Defendants Erin Hoffman-Harding, University of Notre Dame Du Lac. Count I of the Complaint is DISMISSED against Erin Hoffman Harding only. Count II of the Complaint is DISMISSED. Signed by Senior Judge James T Moody on 9/27/16. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DR. G. DAVID MOSS, PH.D.,

)
)
Plaintiff,
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v.
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THE UNIVERSITY OF NOTRE DAME
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DU LAC, and ERIN HOFFMAN-HARDING, )
INDIVIDUALLY AND IN HER
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OFFICIAL CAPACITY,
)
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Defendants.
)

No. 3:13 CV 1239

OPINION and ORDER
In this action plaintiff Dr. G. David Moss, Ph.D. (“Moss”) alleges that The
University of Notre Dame Du Lac, acting through its employee, Erin Hoffman Harding1
denied him a promotion and demoted him on the basis of his race and as unlawful
retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. (“Title VII”), and in addition violating the First and Fourteenth
Amendments enforceable via 42 U.S.C. § 1983. UND has moved to dismiss the bulk of
Moss’s complaint (all except Count I) pursuant to Federal Rule of Civil Procedure
12(b)(6) for failing to state a claim upon which relief can be granted.
The court applies this standard to the motion: With the complaint’s well-pleaded
factual allegations accepted as true, dismissal for failure to state a claim pursuant to

1

For convenience, the defendants will be referred to collectively as “UND.”
When it is necessary to refer to one of them individually, that will be made clear by the
text, typically by using the terms “Notre Dame” and the surname Hoffman-Harding.

Rule 12(b)(6) is appropriate when those facts are not enough to make a right to relief
plausible, meaning more than speculative. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007); Vinson v. Vermilion Cty., Illinois, 776
F.3d 924, 928 (7th Cir. 2015). To avoid dismissal, the complaint’s factual content must
allow the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Iqbal, 556 U.S. at 678. The court notes, however, that the basis of
UND’s attack on Moss’s complaint is not so much based on the facts he alleges as it is
on the legal theories he invokes.
Describing the complaint’s allegations most briefly, Moss, an African-American
male whom Notre Dame employed for over a decade as an Assistant Vice President of
Student Affairs, was denied a promotion, demoted, and threatened with termination
after he publicly spoke out against incidents of racial harassment on campus directed
against an African-American student organization named “Call to Action.” The
incidents and Moss’s reaction to them received significant publicity in the community,
causing Notre Dame embarrassment. Moss also alleges that Notre Dame’s campus is
open to the public and has stores, restaurants, a church which is Indiana’s secondlargest tourist attraction, a post office, a police force, a fire department, a health center
public roads, and more, which features and services make Notre Dame equivalent to a
“company town” as in Marsh v. Alabama, 326 U.S. 501 (1946).
Moss’s complaint contains five counts. Count I alleges that UND’s adverse
employment actions violated Title VII on the basis of Moss’s race. Count II alleges that
2

UND’s adverse employment actions constituted unlawful retaliation in violation of Title
VII. Count III alleges that UND’s actions violated Moss’s First Amendment right to free
speech in violation of 42 U.S.C. § 1983. Count IV alleges that UND’s actions violated
Moss’s First Amendment right to free association in violation of 42 U.S.C. § 1983. Last,
Count V alleges that UND’s actions deterred Moss’s First Amendment rights of free
speech and free association in violation of 42 U.S.C. § 1983.2 UND has moved to dismiss
the retaliation claim in Count II as being beyond the scope of the charge filed with the
Equal Employment Opportunity Commission (“EEOC”), and because Moss did not
allege that he engaged in statutorily-protected activity. UND has moved to dismiss
Moss’s § 1983 claims in Counts II, IV and V because it is a private actor not acting under
color of state law, and because Moss’s speech was work-related and so not a
constitutional activity protected by § 1983.3
Count II – Retaliation
When Moss filed his charge with the EEOC, he did not check the box for
“retaliation,” only that for discrimination on the basis of race. (DE # 12-1 at 1.) The socalled “scope-of-the-charge” rule prohibits plaintiffs from bringing claims in federal

2

In addition, the introductory paragraph of Moss’s complaint and ¶ 2, alone,
mention 42 U.S.C. § 1981. The inclusion of this statutory reference is addressed briefly
near the conclusion of this opinion and order.
3

UND also moves to dismiss Counts I and II of the complaint to the extent, if
any, that they apply to Hoffman-Harding individually. Moss agrees that dismissal of
any individual claims against her in those counts is appropriate (DE # 14 at 1), so the
court need not discuss the matter further.
3

court that were not included in their EEOC charge, because doing so frustrates the
EEOC’s role to investigate and settle claims, and deprives the charged party of notice.
Alexander v. Gardner–Denver Co., 415 U.S. 36, 47 (1974). However, claims which are “like
or reasonably related to” the allegations in the charge and would be expected to grow
out of the EEOC’s investigation of the allegations in the charge are not beyond the
scope, and may be litigated. Vela v. Village of Sauk Village, 218 F.3d 661, 664 (7th Cir.
2000); Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994).
In response to UND’s motion, Moss argues that, although he did not check the
box for retaliation or mention his demotion, he did not understand the significance of
failing to do so because he is not a lawyer. Instead, in the “particulars” section of his
charge he gave a “brief but detailed . . . description of his tenure with Notre Dame, the
titles he held over the course of his fourteen year tenure with the University, the name
and position of his then supervisor, Defendant Erin Hoffman-Harding, and indicated
that he felt he had been passed over for a promotion in favor of a less qualified white
candidate on the basis of racial discrimination from the period of June 2012 to August
2012.” (DE # 14 at 4.) He then argues that given the publicity surrounding the
harassment incidents at UND and of his reaction to them, and the fact that all of the
events were closely related in “time, people and substance,” it was reasonable for him
to assume that the EEOC’s investigation of the events would encompass everything and
that his charge was sufficient to give UND formal notice of a problem that included
retaliation. (Id. at 5.)
4

Moss compares his charge to that in Kristufek v. Hussmann Foodservice Co., 985
F.2d 364 (7th Cir. 1993), where plaintiff Kristufek alleged age discrimination but not
retaliation in his EEOC charge, and the Court of Appeals affirmed the district court’s
decision not to dismiss the retaliation charge as beyond the scope. Kristufek had been
told by his supervisor, Mosteller, to fire an older employee, McPherson, but refused to
do so, telling Mosteller that doing so would be age discrimination. Kristufek, 985 F.2d at
367. Kristufek himself was then fired a short time later. Both Kristufek and McPherson
filed charges and brought suit. The Court of Appeals explained:
After Kristufek argued McPherson’s case before Mosteller on the basis of
age discrimination, he suffered retaliation. Kristufek testified that to
mention age discrimination to Mosteller only infuriated him. These
charges, his and hers, were all related in time and substance and both
focused on Mosteller’s conduct as president of Hussmann. Mosteller, the
company president, McPherson, his executive secretary, and Kristufek, the
personnel officer of Hussmann, were the people directly involved in the
charges, all part of the company’s inner circle. That should have been
enough even in a perfunctory investigation of the charges to have
revealed the retaliation aspect as part of the whole. Kristufek’s retaliation
charge grew out of McPherson’s age problem.
Id. at 368. Observing that cases dealing with the scope-of-the-charge rule are narrowly
based on their facts and “not easy to reconcile,” the court concluded:
[I]n the present case, the factual relationship of the age and discrimination
charges of the parties is so related and intertwined in time, people, and
substance that to ignore that relationship for a strict and technical
application of the rule would subvert the liberal remedial purposes of the
Act. [Employer] Hussmann had formal notice of a problem though not
complete notice, but that should have been enough.

5

Id. at 368-69. Notably, however, the Court of Appeals said that its decision was “a close
call . . . based on these particular facts Kristufek’s EEOC filing limited to age
discrimination without mention of his retaliatory allegation was enough.” Id. at 368.
In the present case, Moss’s characterization of his EEOC charge’s particulars as
“brief but detailed” implying that he did enough to give notice of retaliation stretches
things too far. The paragraph in the charge that Moss refers to states:
I am a black employee hired by the University of Notre Dame in the Fall
of 1998 as a Special Assistant to the Vice President of Student Affairs. I
held the position of Assistant Vice President of Student Affairs from 1999
until 2010. From 2010 until 2012, I became Assistant Vice President for
Student Affairs for Student Services. I applied for the Associate Vice
President for Student Affairs in June 2012. My supervisor is Erin
Hoffman-Harding, Student Affairs Vice President, White. I was denied the
position, which was a lateral promotion. Dr. William Stockman, White,
was hired for the position. I believe that I was more qualified for the
position than Dr. William Stockman, White.
As Moss admits, nothing in this paragraph mentions his demotion. More critically,
however, nothing in this paragraph hints at UND having denied him the promotion,
demoted him, and threatened him with termination, for speaking out against incidents
of racial harassment on campus and thereby causing unflattering publicity—events
which would seem to be of obvious significance whether or not one is a lawyer. Instead,
Moss’s EEOC charge reads like a straightforward charge of racial discrimination: He
was passed over for a promotion because preference was given to a less-qualified white
person.

6

If the Kristufek case was a “close call,” 985 F.2d at 368, that makes the present case
come up short. Nothing in Moss’s EEOC charge suggests that he thought he was being
discriminated/retaliated against for engaging in protected activities. Count II of Moss’s
complaint will be dismissed.
Counts III, IV and V – 42 U.S.C. § 1983
As stated earlier, UND makes two arguments. First, that it is a private, not state,
actor, and § 1983 applies only to actions taken under color of state law. Second, that
Moss’s speech was work-related and so not a constitutional activity protected by § 1983.
a. Action Under Color of State Law
As is relevant here, § 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory . . . subjects, or causes to be
subjected, any citizen of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law . . .
42 U.S.C. § 1983. The parties are in complete agreement as to what this means: The
essential elements a plaintiff must plausibly allege to state a claim pursuant to § 1983
are that a person “acting under color of state law” deprived the plaintiff of a “right
secured by the Constitution or federal law.” Wilson v. Warren Cty., Illinois, No. 15-1939,
2016 WL 3878215, at *2 (7th Cir. July 18, 2016). “[T]he under-color-of-state-law element
of § 1983 excludes from its reach ‘”merely private conduct, no matter how
discriminatory or wrongful.”’” American. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50
(1999) (internal citations omitted).
7

Notre Dame, as Moss admits, is privately owned. (DE # 1 at 2, ¶ 7.) He asserts,
however—as he alleged in his complaint—that Notre Dame’s campus is so open to the
public and so similar to a traditional town, containing public roads, stores, restaurants,
a post office, a police department and so forth, that it should be viewed as a municipal
entity like the company town was in Marsh v. Alabama. In moving for dismissal, UND
tackles this assertion by arguing on “Plaintiff’s ‘you let the public visit your campus to
eat Burger King and watch football games’ state action theory is not supported by the
law.” (DE # 12 at 8.) UND then cites, in the following sequence, cases which it believes
show the lack of support for plaintiff’s theory: McFadyen v. Duke Univ., 786 F. Supp. 2d
887 (M.D.N.C. 2011); Cohen v. Illinois Institute of Technology, 581 F.2d 658, 663 (7th Cir.
1978); London v. RBS Citizens, N.A., 600 F.3d 742, 748 (7th Cir. 2010); and Alcantar v.
Bridegroom, No. 2:07CV299-PRC, 2008 WL 2097575, at *1 (N.D. Ind. May 16, 2008).
None of those cases—except Cohen—cites Marsh or discusses its “company town”
theory, and so are not persuasive. Although Cohen mentions Marsh, it does so only to
point out that unlike a previous case (Illinois Migrant Council v. Campbell Soup Co., 519
F.2d 391 (7th Cir. 1975), which is discussed below), the complaint at issue did not plead
“specific facts” intended to “establish that a ‘residential community’ maintained by the
defendants was a ‘company town’ within the meaning of Marsh.” Cohen, 581 F.2d at 663.
Here, Moss does plead specific facts which he argues show that Notre Dame is
tantamount to a company town, so Cohen also fails to persuade that Moss has a legally
unsupported theory.
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UND then argues that Marsh itself does not specifically address the issue of what
constitutes “state action” for the purposes of a § 1983 claim, which is true, but then
asserts that “other courts have expressly ruled that Marsh does not, and cannot, apply to
private universities.” (DE # 12 at 9.) The “cannot” portion of the assertion is not
necessarily borne out by the three examples UND cites: Blackburn v. Fisk Univ., 443 F.2d
121, 124 (6th Cir. 1971); Browns v. Mitchell, 409 F.2d 593, 594 (10th Cir. 1969); and
Grossner v. Trustees of Columbia University, 287 F. Supp. 535 (S.D.N.Y. 1968).
UND cites first, and relies most heavily, on Grossner v. Trustees of Columbia
University. In that case the plaintiffs argued that the university was performing a public
function merely by educating people, and the court explained “nothing supports the
thesis that university (or private elementary) ‘education’ as such is ‘state action.’”
Grossner, 287 F. Supp. at 549. This is a great deal different than Moss’s contention that
many aspects of Notre Dame’s campus that make it like a typical municipality.
Browns serves UND’s argument better. In Browns, university students were
suspended after occupying a university building and refusing to leave. The students
argued that the university was like the company town in Marsh, so their suspension was
a state act. In disposing of that argument, the court stated that Marsh was “concerned
only with the delineation of public places for purposes of First Amendment activities,”
and its holding did not mean that dismissing an employee or student could “in any
sense of the word, be deemed state action.”Browns, 409 F.2d at 596. Blackburn is in the

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same vein as Brown, and so both cases do support UND’s contention that Marsh says
nothing about what constitutes “state action” for the purposes of § 1983.
The problem with this line of reasoning is that it runs up against the Campbell
Soup Co., decision in this circuit, a case in which the plaintiffs sought damages for
limitations on their exercise of First Amendment rights by an alleged company town.
The court reversed the district court’s dismissal, stating that the plaintiffs “alleged
sufficient facts upon which it could be concluded that the Campbell Soup Company’s
town of Prince Crossing was a company town within the meaning of Marsh v. Alabama,
and accordingly when the defendant Company acted, it did so under color of state law.”
Campbell Soup Co., 519 F.2d at 395 (emphasis added). Thus, this court does not think it
can say that Marsh could never be applied to UND4 or any private university if it can be
shown to be operating as a company town, and taking actions designed to deter and
chill activities protected by the First Amendment.
The caveat “if it can be shown” in the preceding sentence leads to Moss’s main
argument against dismissal of his complaint. He maintains that his allegations that
UND is a company town are plausible, and so sufficient, to withstand dismissal: It
would simply be premature to dismiss his complaint without letting him attempt to
prove that UND is a company town. In its reply memorandum, relying almost entirely

4

Although not a fact relied on in any way in arriving at this decision, it is
interesting that Notre Dame’s website lists its address as “University of Notre Dame[,]
Notre Dame, Indiana 46556.” https://www.nd.edu/about/contact/ (last accessed
September 27, 2016).
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on the same cases cited in its opening memorandum in support of dismissal, UND
argues that dismissal is not premature, reiterating its argument that no court has
applied Marsh to a university and that it is impossible for Marsh to be used to reason
that UND might be a company town/state actor.
As explained above, the court thinks that Campbell Soup Co. is contrary to this
claim of impossibility. Moreover, because “[d]etermining the threshold of components
necessary to constitute a company town under Marsh requires a detailed factual
analysis,” Illinois Migrant Council v. Campbell Soup Co., 574 F.2d 374, 376 (7th Cir. 1978)
the court agrees with Moss that dismissal would be premature. This court has
previously said as much. Torres v. Univ. of Notre Dame du Lac, No. 3:11-CV-209, 2012 WL
12292946, at *9 (N.D. Ind. Mar. 23, 2012) (“Court expresses doubt that the facts of this
case fit squarely within either Marsh or Burton, . . . and at a minimum, given the fact
sensitive nature of the issue, these questions are more appropriately addressed at a later
stage of the proceedings.”) The court will state clearly, however, that “not impossible”
falls far on the spectrum from “likely.” Nothing above should be taken to mean it is
likely that there will be enough facts to show that Notre Dame is a Marsh-type company
town. It is not possible now, however, to say that Moss’s allegations are so speculative
and unsupported by law that they should be dismissed.5
5

Another argument Moss makes is that “a finding that Defendant Notre Dame is
a state actor also opens the door to personal liability for its officer and agent, Defendant
Hoffman-Harding, such that dismissal of these counts against either Defendant is
improper at this time.” (DE # 14 at 10). As UND points out in its reply, this is simply
contrary to logic. Keeping the individual defendant in the case is not a reason to find
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b. Non-protected Work-related Speech
In paragraphs 22, 35, and 47 of his complaint, Moss alleges that his association
with and speech concerning the Call to Action student group was appropriately done
pursuant to his job duties. UND makes this one-sentence argument:
Section 1983 does not protect acts performed pursuant to an employee’s
job responsibilities. See Garcetti v. Ceballos, 547 U.S. 410 (2006) (“We hold
that when public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their communications
from employer discipline.”)
(DE # 12 at 10.) In Garcetti a deputy prosecutor was disciplined for statements made in a
memo he wrote pursuant to his job duties. The Court held that he could be disciplined
for the memo, because he “did not speak as a citizen by writing a memo that addressed
the proper disposition of a pending criminal case,” instead he “acted as a government
employee.” Garcetti, 547 U.S. at 422. If, however, an “employee spoke as a citizen on a
matter of public concern,” then “the possibility of a First Amendment claim arises.” Id.
at 418.
Moss has come perilously close to pleading himself out of court. However, he
also alleges in his complaint that his speech and conduct regarding Call to Action was
“vocal and comprehensive . . . which garnered significant publicity both on and off
campus,” and that UND’s actions deterred his right to free speech and association “both

that Notre Dame is a state actor. However, because the court has not yet held that Notre
Dame cannot be a state actor, the individual claims against Hoffman-Harding will not
be dismissed.
12

inside and outside of work.” (DE # 1 at ¶¶ 21, 52.) Thus, his complaint includes
allegations that (barely) indicate that he also spoke and acted outside of his role as a
Notre Dame employee. Moss’s complaint will not be dismissed on the basis that he
alleges only non-protected speech and association.
42 U.S.C. § 1981
As mentioned supra at 3 n.2, the introductory paragraph of Moss’s complaint
and its ¶ 2 mention 42 U.S.C. § 1981. After that, the statute goes missing from the
complaint, and UND did not address it in its motion to dismiss. In responding to the
motion, however, Moss included an argument that a “prima facie case of race or ethnicity
discrimination under § 1981 is predicated on the same elements as an ethnicity
discrimination claim under Title VII,” and because he has “sufficiently alleged his Title
VII claims against Defendant Notre Dame, he has also sufficiently alleged his 42 U.S.C.
§ 1981 claims.” (DE # 14 at 16, 17.) This caused UND to argue in its reply:
Plaintiff’s Section 1981 claims should be dismissed because he did not
properly plead them. Alternatively, since Plaintiff now claims that his
Section 1981 claims fall under Counts III, IV, and V, which all involve
Section 1983 First Amendment claims, those claims should also be
dismissed because Notre Dame is not a state actor.
As explained above, it is too early to definitively declare that Notre Dame is a state
actor.
In addition, although the court agrees with UND that it is not at all clear from the
complaint what role Moss intends for § 1981 to play in this litigation:

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[M]atching facts to a legal theory was an aspect of code pleading interred
in 1938 with the adoption of the Rules of Civil Procedure. See Bartholet v.
Reishauer A.G. (Zurich), 953 F.2d 1073, 1077-78 (7th Cir. 1992). A complaint
must narrate a claim, which means a grievance such as “the City violated
my rights by preventing me from renovating my apartments.” Having
specified the wrong done to him, a plaintiff may substitute one legal
theory for another without altering the complaint.
Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir. 1997). Because the court is not
dismissing the claims asserted in Counts I, III, IV and V of Moss’s complaint, and
because legal theories are not claims, there is no reason to “dismiss” § 1981 from the
complaint.
Conclusion
For the foregoing reasons, defendants’ motion to dismiss plaintiff’s complaint is
GRANTED in part and DENIED in part; Count I of the Complaint is DISMISSED
against Erin Hoffman Harding, only; Count II of the complaint is DISMISSED.

SO ORDERED.
Date: September 27, 2016

s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT