Doe v. Kentucky Community and Technical College System et al
MEMORANDUM OPINION & ORDER: (1) Dfts' Motion to Dismiss 25 is GRANTED; (2) Plf's Amended Complaint 11 is dismissed as detailed below: (a) Plf's claims against KCTCS are dismissed with prejudice; (b) Plf' ;s federal claims against Dr. Zylka and John Roes 1 through 5 in both their official and individual capacities are dismissed with prejudice; (c) Plf's state law causes of action, namely, breach of contract, breach of common law duty of fundamental fairness, negligence, and intentional infliction of emotional distress, are dismissed without prejudice; and (3) A Judgment shall be filed contemporaneously herewith. Signed by Judge David L. Bunning on 9/9/2021. (RCB)cc: COR
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 1 of 21 - Page ID#: 326
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 20-6-DLB
MEMORANDUM OPINION & ORDER
KENTUCKY COMMUNITY &
TECHNICAL COLLEGE SYSTEM, et al.
This matter is before the Court on Defendants Kentucky Community & Technical
College System, Sherry Zylka, and John Roes 1 through 5’s Motion to Dismiss for Failure
to State a Claim. (Doc. # 25). The Motion has been fully briefed, (Docs. # 30 and 31),
and is now ripe for the Court’s review. For the reasons set forth herein, the Motion is
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff John Cecil1 requests declaratory and injunctive relief against Defendants
Kentucky Community & Technical College System (“KCTCS”), Big Sandy Community &
Technical College (“BSCTS”), Dr. Sherry Zylka and John Roes 1 through 5,2 for damages
arising out of the termination of his employment at the Big Sandy Campus of KCTCS due
Plaintiff originally filed his Complaint under the pseudonym John Doe, (Doc. # 1), along
with a Motion for Permission to Proceed under Pseudonym, (Doc. # 3), which was denied by this
Court on January 30, 2020, (Doc. # 8). As a result, the action is now styled with Plaintiff’s full
As mentioned above, supra n.1, John Cecil originally proceeded as John Doe, and
therefore named the unknown Defendants John Roe 1 through 5. (See Doc. # 1). For purposes
of clarity, the Court will continue to refer to these Defendants as John Roes 1 through 5 although
they are renamed John Does 1 through 5 in Cecil’s First Amended Complaint. (See Doc. # 11).
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 2 of 21 - Page ID#: 327
to allegations of sexual harassment.3 (Doc. # 11 ¶ 1). Plaintiff asserts a number of claims
against Defendants: (I) violation of the Due Process Clause of the 14th Amendment, (II)
deliberate indifference, (III) discrimination in violation of Title IX of the Civil Rights Act,
(IV) breach of contract, (V) employment discrimination in violation of Title VII of the Civil
Rights Act and the Kentucky Civil Rights Act, (VI) breach of common law duty of
fundamental fairness, (VII) negligence, (VIII) intentional infliction of emotional distress,
and (IX and X) two counts seeking declaratory judgment for his reinstatement,
expungement of his employee record, and for amendment of KCTCS policies on
allegations of sexual misconduct. (Id. at ¶¶ 28-105). Defendants move to dismiss each
of these claims. (Doc. # 25).
On or about June 16, 2018, Plaintiff Cecil entered into a contract (“the contract”)
renewing his position as a faculty member in the psychology department at BSCTS for
the 2018-2019 academic year. (Id. ¶ 9). On or about September 21, 2018, he received
a letter from Dr. Sherry Zylka that he “may have violated KCTCS’s Harassment Free
Workplace and Sexual Misconduct Policies.” (Id. ¶ 10). The letter informed Cecil that he
would be placed on paid administrative leave, and further indicated that he would be
placed on unpaid leave if he did not make himself available during the investigation
process. (Id.). After receiving the letter, Cecil was informed by phone that he was
required to submit to an interview. (Id. ¶ 11). During the phone conversation, Cecil
Plaintiff’s Complaint lists all of the above-mentioned Defendants. (Doc. # 9 at 1).
However, Plaintiff only issued summons to KCTCS, BSCTS, and Zylka. (Doc. # 24). Plaintiff,
although ordered to Show Cause, (Doc. # 32), failed to illustrate why Defendants John Roes 1
through 5 should not be dismissed for failure to prosecute under Federal Rule of Civil Procedure
4(m). Further, as pointed out by Defendants, because BSCTS has no independent legal
existence outside of KCTCS, BSCTS is not a proper party to this action, and is dismissed. See
Ky. Rev. Stat. §§ 164.580, 164.591 (KRS § 164.580 establishes KCTCS, and KRS § 164.591
indicates where the locations of KCTCS will be established) (emphasis added); (Doc. # 25).
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 3 of 21 - Page ID#: 328
requested what specific allegations were being made against him, but was told this
information would not be provided over the phone and “you’ll see from the questions we
ask.” (Id.). The interview subsequently occurred on October 4, 2018, and Cecil was not
advised of the nature of the allegations prior to answering questions from the interviewers.
(Id. ¶ 12). Following the interview, on or about November 8, 2018, the investigative report
was completed, and on November 28, 2018, Cecil received a “Pre-Termination
Notice/Pre-Termination Hearing Invitation” advising him that KCTCS intended to
terminate his employment due to his violation of KCTCS polies. (Id. ¶¶ 14-15). Namely,
the document stated that Cecil had “made students uncomfortable when, on multiple
occasions, [Plaintiff] touched them in an unwanted manner and commented on their
appearance.” (Id.). A pre-termination hearing was set for December 4, 2021, in which
Cecil participated by telephone with legal counsel present. (Id. ¶ 15-16). Cecil requested
time to provide additional evidence to Dr. Zylka prior to a final determination and was able
to provide such information to Zylka. (Id. ¶¶ 17, 19). On or about December 10, 2018,
Cecil received a copy of the investigative report which was supplemented with additional
specific information about his misconduct, including that he had made inappropriate
comments and touched two students in ways that made them uncomfortable. (Id. ¶ 18).
Cecil’s employment was terminated by KCTCS on December 20, 2018. (Id. ¶ 20).
Standard of Review
Granting a motion to dismiss is appropriate if a plaintiff fails “to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Further, “to survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 4 of 21 - Page ID#: 329
claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In order to have “facial
plausibility,” the plaintiff must “plead factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
(quoting Twombly, 550 U.S. at 556). In evaluating a motion to dismiss, a court should
“construe the complaint in the light most favorable to the plaintiff” and “accept all wellpleaded factual allegations as true.” Hill v. Snyder, 878 F.3d 193, 203 (6th Cir. 2017)
(citing Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570). However, “mere conclusory
statements, do not suffice” and legal conclusions “must be supported by factual
allegations.” Iqbal, 556 U.S. at 678-79.
Applicability of the Eleventh Amendment
The Eleventh Amendment to the United States Constitution provides that:
The Judicial Power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any
U.S. Const. amend. XI. Although suits against a state by one of its own citizens are not
directly addressed by the amendment, “unassailable case law has interpreted the
amendment in such a way to close that gap.” Barton v. Summers, 293 F.3d 944, 948 (6th
Cir. 2002). Because of this interpretation, states are generally “immune from private suit
in both federal and state courts.” Id.
This immunity extends to arms of the state. In re Ohio Execution Protocol Litig.,
709 F. App’x 779, 782 (6th Cir. 2017). Both federal courts within the Sixth Circuit and
Kentucky state courts have held that KCTCS is an agency of the Kentucky state
government. See McCollum v. Owensboro Cmty. & Tech. Coll., No. 4:09-CV-121, 2010
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 5 of 21 - Page ID#: 330
WL 1742379, at *2 (W.D. Ky. April 29, 2010); Benton v. Ky. Cmty. & Tech. Coll., No. 5:14CV-42, 2014 WL 4388255, at *2 (E.D. Ky. Sept. 4, 2014); Robinson v. Ky. Cmty. & Tech.
Coll., No. 2014-CA-659, 2015 WL 5656312, at *1 (Ky. Ct. App. Sept. 25, 2015). Thus, all
of Plaintiff’s claims against KCTCS are barred.
Similarly, Cecil’s claims against Dr. Zylka and John Roes 1 through 5 (“the
individual Defendants”), in their official capacities, are barred, excluding those that seek
prospective injunctive relief. The Eleventh Amendment bars suits against state officers
in their official capacities, but as Plaintiff points out, does not prevent “a federal court from
issuing an injunction ordering prospective relief against a state official in order to prevent
future constitutional violations.” Barton, 293 F.3d at 948 (emphasis added); (Doc. # 30 at
The exception for prospective injunctive relief originated in Ex parte Young, 209
U..S. 123, 155-56, where the Supreme Court determined that officers of the state “who
threaten and are about to commence proceedings . . . to enforce against parties affected
an unconstitutional act” may be enjoined from doing so by a federal court. The Sixth
Circuit has interpreted this doctrine to mean that “the claim must seek prospective relief
to end a continuing violation of federal law.” Russell v. Lundergan-Grimes, 784 F.3d
1037, 1047 (6th Cir. 2015) (emphasis added). Therefore, if there is no ongoing violation
of federal law, the Ex parte Young exception does not apply. However, the exception
“does not allow an award for monetary relief that is the practical equivalent of money
damages, even if this relief is characterized as equitable.” MacDonald v. Village of
Northport, Mich., 164 F.3d 964, 971 (6th Cir. 1999).
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 6 of 21 - Page ID#: 331
As explained in Barton, even if Ex parte Young’s requirements are met by “naming
officials (rather than the state) as defendants, and seeking injunctive relief, relief should
not be granted if ‘the relief is tantamount to an award of damages for a past violation of
federal law, even though styled as something else.’” 293 F.3d at 949 (quoting Papasan,
478 U.S. at 278). In Barton, the Sixth Circuit determined that even though the plaintiffs
framed their suit as one for prospective injunctive relief, it was a disguised attempt to
recover money damages from states, and was thus barred by the Eleventh Amendment.
Id. at 949-51. While the court specifically discussed retroactive monetary relief, it also
stated that “the Supreme Court and [the Sixth Circuit] does not bar only retroactive
monetary relief, but rather all retroactive relief.” S & M Brands, Inc. v. Cooper, 527 F.3d
500, 509 (6th Cir. 2008) (emphasis in original).
Here, Defendants similarly argue that Cecil is attempting to disguise his request
for retrospective injunction relief as one for prospective injunctive relief. (Doc. # 31 at 2).
A cursory look at Cecil’s amended Complaint confirms that his suit is largely one for
retrospective relief. Each of the counts asserted in Cecil’s amended Complaint discuss
past actions taken by KCTCS, Dr. Zylka, and John Roes 1 through 5, which allegedly
violated Plaintiff’s rights. See, e.g., (Doc. # 11 ¶ 43) (“Defendants failed to provide Plaintiff
with the basic due process protections that Defendants [are] required to provide
employees accused of sexual misconduct”); (Id. ¶ 64) (“Plaintiff was subjected to an
erroneous outcome by Defendants with respect to the investigation and discipline issued
against him in this matter, in violation of Title IX”); (Id. ¶ 76) (“Defendants breached the
Contract by terminating Plaintiff’s employment and failing to be bound by the policies and
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 7 of 21 - Page ID#: 332
procedures expressly set forth in the Contract”). Further, most of the relief requested is
not prospective in nature. For example, Plaintiff requests that the court
[D]eclare that: (i) the outcome and findings made by Defendants relating to
allegations set forth by his accuser(s) be reversed; (ii) Plaintiff’s reputation
be restored; (iii) Plaintiff’s disciplinary record be expunged or sealed; (iv)
any record of Plaintiff’s termination from Big Sandy and/or KCTCS be
removed from his personnel file; (v) any record of his accuser(s)’ complaint
against Plaintiff be permanently destroyed; (vi) Plaintiff by reinstated to the
position as a faculty member at Big Sandy; (vii) KCTCS’s rules, regulations,
and guidelines relating to the adjudication of allegations of sexual
misconduct are unconstitutional as applied.
(Id. ¶ 100). Many of these requests ask the Court to redress actions that have already
occurred. Any attempt by Plaintiff to re-frame his suit as one only concerned with
prospective injunctive relief in his Response to the Motion to Dismiss is disingenuous. To
the extent that Plaintiff attempts to enjoin KCTCS from enforcing Title IX rules,
regulations, and guidelines “as applied,” he is again requesting retrospective relief, as his
request is based on how those rules, regulations, and guidelines were applied to him
specifically, instead of mounting a facial challenge to their broader constitutionality.
However, Plaintiff makes a single request that falls under the category of
prospective relief—reinstatement of his professor position at Big Sandy. “[C]laims for
reinstatement are prospective in nature and appropriate subjects for Ex parte Young
actions.” Carten v. Kent State Univ., 282 F.3d 391, 396 (6th Cir. 2002). Determining
whether Ex parte Young applies “does not involve an analysis of the merits of a plaintiff’s
Dubuc v. Mich. Bd. of Law Exam’rs, 342 F.3d 610, 616 (6th Cir. 2003).
Therefore, the Eleventh Amendment bars all of Cecil’s claims against KCTCS, but not his
claim for reinstatement leveled against Dr. Zylka and John Roes 1 through 5 in their
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 8 of 21 - Page ID#: 333
Official Capacity Claims Against Dr. Zylka and John Roes 1 through 5
Although the Eleventh Amendment does not bar Cecil’s claim for reinstatement
against Dr. Zylka and John Roes 1 through 5, he has otherwise failed to state a claim
upon which relief can be granted. It is unclear precisely what causes of action Cecil brings
as a means of achieving reinstatement, but it appears that he asserts the following claims
for injunctive relief against the individual Defendants in their official capacities: (1)
violation of the Fourteenth Amendment Due Process Clause, (2) deliberate indifference
to violations of his constitutional rights, (3) discrimination in violation of Title IX, and (4)
discrimination in violation of Title VII of the Civil Rights Act and the Kentucky Human
Rights Act. (Doc. # 30 at 8, 15, 17, and 19). Each of these claims will be discussed in
Claim under 42 U.S.C. § 1983
Cecil alleges that the individual Defendants violated the Due Process Clause of
the Fourteenth Amendment, and brings suit under 42 U.S.C. §§ 1983, 1985, and 1988 to
redress this injury. (Doc. # 11 ¶¶ 28-47). Plaintiff’s claims under the Due Process Clause
through § 1983 fails because while his position as a non-tenured professor at KCTCS
may be properly considered a property interest, § 1983 is not the proper avenue to
redress his injury.
The Due Process Clause of the Fourteenth Amendment prohibits a State from
“depriv[ing] any person of life, liberty, or property, without due process of law.” U.S.
CONST. amend. XIV. Title 42 U.S.C. § 1983 provides plaintiffs an avenue to vindicate a
violation of federal rights, including those conferred by the Due Process Clause of the
Fourteenth Amendment. See Harris v. City of Akron, 20 F.3d 1396, 1401 (6th Cir. 1994).
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 9 of 21 - Page ID#: 334
The statute provides that “every person who, under color of any statute . . . subjects . . .
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. Section 1983 “creates no substantive rights, but merely
provides remedies for deprivations of rights established elsewhere.” Flint ex rel. Flint v.
Ky. Dep’t of Corr., 270 F.3d 340, 351 (6th Cir. 2001).
To maintain a § 1983 action based on a violation of procedural due process, Cecil
must show he has a legitimate claim of entitlement to a property interest—here, his
employment with KCTCS. R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 435
(6th Cir. 2005). “In the context of university employment, the Supreme Court has held
that ‘rules and understandings, promulgated and fostered by state officials’ can form the
foundation of a protected property interest.” Gunasekera v. Irwin, 551 F.3d 461, 467 (6th
Cir. 2009) (quoting Perry v. Sindermann, 408 U.S. 593, 602-03 (1972)). A property
interest’s “dimensions are defined by existing rules or understandings that stem from an
independent source such as state law.” Bd. of Regents of State Colls. v. Roth, 408 U.S.
564, 577 (1972). The Sixth Circuit has determined that there is no “property interest in
the receipt of a benefit when the state’s decision to award or withhold the benefit is wholly
discretionary,” and therefore a plaintiff “must point to some policy, law, or mutually explicit
understanding that both confers the benefits and limits the discretion of the [State] to
rescind the benefit.” Med. Corp., Inc. v. City of Lima, 296 F.3d 404, 409-410 (6th Cir.
Here, Plaintiff Cecil asserts that “[u]nder both federal and state law, [he] had a
constitutionally protected property and liberty interest in his employment with KCTCS.”
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 10 of 21 - Page ID#: 335
(Doc. # 11 ¶ 35). In his Response to Defendants’ Motion to Dismiss, he clarifies that he
had “a property interest in performing the remainder of his contract” as he was contracted
to work for KCTCS for the entire academic year, and instead was terminated prior to the
end of his contract. (Doc. # 30 at 10). However, unfortunately for Cecil, under Sixth
Circuit precedent, “[w]hen a person is hired for a fixed period of time . . . and that person
is dismissed prematurely, no federal cause of action lies under section 1983 to redress
what is best characterized as an ordinary breach of contract.” Ramsey v. Bd. of Educ.,
844 F.2d 1268, 1273 (6th Cir. 1988). As explained in Ramsey:
[A] nontenured employee’s property interest in continued employment is
created and defined by the employee’s contract. The employee has a
property interest for the duration of the employment contract, but the
deprivation of that finite interest can be compensated adequately by an
ordinary breach of contract action.
Id. at 1274. See also Sharp v. Lindsey, 285 F.3d 479, 487-89 (6th Cir. 2002) (holding
that although an employee had a property interest in his employment, because it was
governed by an employment contract, requiring him to file a breach of contract suit to
redress his injury “does no violence to the concept of due process of law”); Cf. Carroll v.
Knox Cnty. Bd. of Ed., Nos. 3:07-cv-345, 3:08-cv-73, 2010 WL 2507046, at *11 (E.D.
Tenn. June 17, 2010) (holding that where a “teacher has a fixed-term interest in the
supervisory position created solely by contract, Section 1983 does not provide an
appropriate remedy for the deprivation of such property interest” and instead, “the
appropriate remedy is to file a breach of contract claim under state law”).
Cecil’s contract dispute with KCTCS could easily be resolved through an ordinary
contract action. It would not be difficult to calculate the finite amount KCTCS failed to pay
Cecil due to his contract termination, as the contract clearly provides that Cecil is to be
paid $3,028.33 per month, through June 30, 2019. (Doc. # 11-2). Therefore, because
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 11 of 21 - Page ID#: 336
Cecil relies only on his contract with KCTCS to establish a protected property interest, his
injury cannot be redressed through § 1983 and instead must be redressed through an
ordinary contract action in state court.
So far as Cecil alleges that he was deprived of a liberty interest, this claim is also
not well-taken. A “person’s reputation, good name, honor, and integrity are among the
liberty interests protected by the due process clause of the [F]ourteenth [A]mendment.”
Quinn v. Shirley, 293 F.3d 315, 319 (6th Cir. 2002). In order to establish that he was
deprived of a liberty interest, Cecil must show that KCTCS made stigmatizing statements
in conjunction with his termination that were made public. Id. at 320. Cecil makes no
such allegation to this effect in his Complaint. (See Doc. # 11).
Therefore, the § 1983 claim asserted by Cecil against the individual Defendants in
their official capacities is not the proper vehicle through which to redress his alleged injury,
and is therefore dismissed.
Claim under 42 U.S.C. § 1985
Cecil further brings a claim for violation of 42 U.S.C. § 1985, which prevents
persons from engaging in a conspiracy to interfere with civil rights. The claim is listed in
Count I of Cecil’s amended Complaint, (Doc. # 11 at 7), but Cecil sets forth no factual
allegations, or even conclusory statements, establishing a conspiracy between the
Defendants. For this reason, Cecil fails to plead sufficient factual allegations to state a
claim under § 1985. This claim is therefore dismissed against the individual Defendants
in any official or individual capacity.
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 12 of 21 - Page ID#: 337
Claim under 42 U.S.C. § 1988
Cecil additionally asserts a claim under 42 U.S.C. § 1988, which provides the Court
the power to grant fees in actions proceeding under § 1983 and § 1985, among others.
However, to succeed in alleging a claim under § 1988, a plaintiff must be the prevailing
party. 42 U.S.C. § 1988(b); Radvansky v. City of Olmsted Falls, 496 F.3d 609, 619 (6th
Cir. 2007) (noting that § 1988 “requires that a plaintiff receive at least some relief on the
merits of his claim before he can be said to prevail”). Because both Plaintiff’s § 1983
claim and § 1985 claim have been dismissed, he is unable to demonstrate that he is the
prevailing party in either a § 1983 or § 1985 action and therefore cannot recover fees
under § 1988. Thus, Plaintiff’s claim under § 1988 is dismissed.
Next, Plaintiff asserts a deliberate indifference claim against KCTCS, Zylka, and
John Roes 1 through 5, alleging that Defendants were deliberately indifferent to the
violation of Cecil’s constitutional rights. (Doc. # 11 at 10). Confusingly, Plaintiff asserts
in his Response to Defendants’ Motion to Dismiss that “Defendant  erred in construing
Count II as a Title IX – Deliberate Indifference claim as opposed to a § 1983 Deliberate
Indifference Claim.” (Doc. # 30 at 15). In support of this point, Plaintiff cites the deliberate
indifference standard in the context of failure-to-train claims and Eighth Amendment
(Id. at 15-16).
That standard requires that defendants “know of and
disregard and excessive risk to inmate health or safety.” Flint ex rel. Flint v. Ky. Dep’t
of Corrs., 270 F.3d 340, 352 (6th Cir. 2001). Plaintiff cites no support for his proposition
that this standard applies in the context in this case, and instead attempts to analogize
his claim to one under the Eighth Amendment, which prohibits the government from
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 13 of 21 - Page ID#: 338
imposing cruel and unusual punishment. While there is a deliberate indifference cause
of action under § 1983 covering the health and safety of inmates or pre-trial detainees,
which can be brought under both the Eighth and Fourteenth Amendments, see Griffith v.
Franklin Cnty., 975 F.3d 554, 567 (6th Cir. 2020), this Court has found no authority which
broadens the scope of deliberate indifference to the extent requested by Plaintiff. It is not
the Court’s responsibility to develop a plaintiff’s assertions into cognizable claims,
especially where a plaintiff baselessly declares the existence of a cause of action without
precedential support. Therefore, Plaintiff’s deliberate indifference claim is dismissed.
Discrimination in Violation of Title IX
Cecil further alleges that Dr. Zylka and John Roes 1 through 5 discriminated
against him in violation of Title IX, 20 U.S.C. § 1681, et seq., by “wrongfully subject[ing]”
him to a “disciplinary process marred by procedural flaws and sexual bias against males.”
(Doc. # 11 ¶ 62). Title IX provides that “[n]o person in the United States shall, on the
basis of sex, be excluded from participation in, be denied the benefits of, or be subjected
to discrimination under any education program or activity receiving federal financial
assistance.” 20 U.S.C § 1681(a). Plaintiff alleges an “erroneous outcome” claim, relying
on the decision in Doe v. Oberlin College, 963 F.3d 580, 586 (6th Cir. 2020). (Doc. # 11
¶ 64). Under this theory, a plaintiff must illustrate that “a university reached ‘an erroneous
outcome in a student’s disciplinary proceeding because of the student’s sex.’” Id. (quoting
Doe v. Baum, 903 F.3d 575, 585 (6th Cir. 2018)). Even assuming without deciding that
this same theory can be utilized by professors at universities that receive federal funds,
Cecil’s claim fails.
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 14 of 21 - Page ID#: 339
In order to state a cognizable erroneous outcome claim, “‘a plaintiff must plead
facts sufficient to (1) cast some articulable doubt on the accuracy of the disciplinary
proceeding’s outcome, and (2) demonstrate a particularized causal connection’ between
the flawed outcome and sex discrimination.” Id. The Court will assume without deciding
that Cecil has casted doubt on the disciplinary proceeding’s outcome due to his inability
to cross-examine his accusers, and therefore meets the first element of an erroneous
outcome claim. See Baum, 903 F.3d at 585-86.
Cecil argues that his “specific allegations of multiple procedural regularities” or
“patterns of decision-making” are sufficient to raise a plausible inference of sex
discrimination under Oberlin. (Doc. # 30 at 17-18). However, unlike in Oberlin, where
the plaintiff showed that the college’s routine disciplinary policies were not applied in his
case, Cecil does not explain how KCTCS’s investigation or hearing into his conduct were
inconsistent with its stated policies and procedures. 963 F.3d at 586-87. Further, in
Oberlin, the Sixth Circuit also found that the hearing panel failed to account for Doe’s
accuser’s inconsistent statements, and that the College’s campus climate report reported
that in every single case where a hearing was held, the accused was found responsible
on at least one charge. Id. at 587. So far as Cecil is attempting to show that KCTCS’s
“patterns of decision-making” are discriminatory, his claim likewise fails. Unlike in Oberlin,
where the plaintiff pointed to the campus climate report to support his claim, Cecil’s
conclusory statements are entirely speculative.
A more detailed look at the allegations in this case compared to those in Oberlin
reveals why Cecil’s claim is woefully deficient. Cecil’s amended Complaint points to no
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 15 of 21 - Page ID#: 340
KCTCS policies that were inconsistently applied to him, and instead makes only
conclusory statements to support his Title IX claim. Namely, that:
Plaintiff was wrongfully subjected to a KCTCS’ disciplinary process marred
by procedural flaws and sexual bias against males.
[I]n virtually all cases involving a Title IX complaint at KCTCS, the accused
is male and the accusing students are female.
KCTCS is susceptible to internal and external pressures including efforts by
those who wish to change the so called “campus rape culture” at the
expense of the individual rights of the accused male. KCTCS has embraced
this view, which results in bias in the administration of the disciplinary
process and destroys the presumption of innocence that Plaintiff and
similarly situated males are entitled to.
[M]ale students in sexual misconduct cases at KCTCS are discriminated
against on the basis of their sex. Males are presumed guilty, forced to meet
a burden of proof that is inconsistent with the College policies, and credibility
determinations are made against males.
(Doc. # 11 ¶ 62, 63, 67, 72). Unfortunately for Cecil, “external pressure alone is not
enough to state a claim that the university acted with bias in this particular case.” Baum,
903 F.3d at 586. Instead, Cecil must provide “other circumstantial evidence of bias in
[his] specific proceeding.” Id. This standard is again replicated in Oberlin—"[w]hat Doe
must show here, rather, is simply that he alleged facts supporting an inference of sex bias
in his particular proceeding.” 963 F.4d at 586. None of Cecil’s allegations in his Title IX
claim are specific to him. In fact, almost all of his allegations discuss “males” and “male
students” with no particular connection to his disciplinary proceeding, or even procedures
used generally by KCTCS. As was noted in Iqbal, “mere conclusory statements, do not
suffice.” 556 U.S. at 678-79. Therefore, Cecil’s Title IX claim is dismissed.
Discrimination in Violation of Title VII and the Kentucky Human
Title VII broadly prohibits employment discrimination based on a person’s race,
color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). Cecil’s amended
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 16 of 21 - Page ID#: 341
Complaint alleges the elements of prima facie case of discrimination under Title VII by
asserting he was a member of a protected class, subject to an adverse employment
action, was qualified to maintain his position, and replaced by someone outside of the
protected class. See Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 303 (6th Cir.
2016). Because the Kentucky Civil Rights Act (“KCRA”) mirrors Title VII, “discrimination
claims brought under the KCRA are analyzed the same way as those brought under Title
VII.” Beatty v. Frito-Lay, Inc., 429 F.Supp.3d 342, 347 (E.D. Ky. 2019) (citing Smith v.
Leggett Wire Co., 220 F.3d 752, 758 (6th Cir. 2000)). Therefore, if the claim under Title
VII fails, so does the claim under the KCRA.
Unfortunately for Cecil, the substance of his Title VII and KCRA claim “offers
nothing but legal conclusions and a recital of the elements of a gender discrimination
claim.” Bargo v. Goodwill Indus. of Ky., Inc., 969 F.Supp.2d 819, 825 (E.D. Ky. 2013).
Instead of offering any factual basis to support his discrimination claim, Cecil simply states
that “Defendants discriminated against Plaintiff due to his gender, in deciding to
terminate Plaintiff’s employment.” (Doc. # 11 ¶ 82). While a plaintiff “need not present
‘detailed factual allegations,’” he “must allege sufficient ‘factual content’ from which a
court, informed by its ‘judicial experience and common sense,’ could ‘draw the reasonable
inference’” that discrimination occurred. Keys v. Humana, Inc., 684 F.3d 605, 610 (6th
Cir. 2012) (quoting Iqbal, 556 U.S. at 678)). A complaint’s allegations must include more
than “threadbare recitals of a cause of action’s elements, supported by mere conclusory
statements.” Iqbal, 566 U.S. at 678.
While Cecil attempts to correct his pleading mistake in his Response to
Defendants’ Motion to Dismiss by pointing out that he has “describe[d] a number of
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 17 of 21 - Page ID#: 342
procedural irregularities during the investigation,” and that Defendants were under
significant pressure to comply with a 2011 Dear Colleague Letter from the Department of
Education, he does not establish how these conclusory allegations establish a plausible
inference of gender discrimination. (Doc. # 30 at 19-20). Because Plaintiff fails to create
any inference of a causal connection between his adverse employment action and
discrimination based on his gender, his Title VII and KCRA claims are dismissed.
Accordingly, Plaintiffs only remaining claims are those for monetary damages
asserted against Dr. Zylka and John Roes 1 through 5 in their individual capacities.
Individual Capacity Claims
In his brief opposing Defendants’ Motion to Dismiss, Plaintiff states that he brings
damage claims against Zylka and John Roes 1 through 5 in their individual capacities.
(Doc. # 30 at 9). Although the Eleventh Amendment prohibits official-capacity claims for
damages against state officials, Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989);
Barton, 293 F.3d at 948, it does not prevent plaintiffs from asserting damages claims
against state officials in their individual capacity, Rodgers v. Banks, 344 F.3d 587, 594
(6th Cir. 2003). However, Cecil’s amended Complaint asserts no factual allegations
against Zylka or John Roes 1 through 5 in their individual capacities. In fact, his amended
Complaint states the opposite—“at all relevant times [the individual Defendants were]
employed and acting in the course of [their] employment.” (Doc. # 11 ¶ 8). This allegation
necessarily forecloses Cecil’s argument that his remaining claims are asserted against
the individual Defendants in their individual capacities.
Cecil instead argues that he has named “Dr. Zylka and John [R]oes, as separate
and distinct defendants, and they are thus individually named.” (Doc. # 30 at 19). But, a
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 18 of 21 - Page ID#: 343
reading of the amended Complaint does not make this clear. As discussed above, Cecil’s
amended Complaint alleges that at all times the individual Defendants were acting in their
official capacities and there are few if any context clues in the amended Complaint that
put the individual Defendants on notice that they were being sued individually. For
example, although Plaintiff states at the beginning of his amended Complaint that he is
seeking damages, his prayer for relief lists only injunctive relief and attorney’s fees. (Doc.
# 11 at 2, 18-19). Cecil ostensibly recognizes this flaw in his pleading as he requests
“leave to file his Second Amended Complaint to cure the perceived defect.”
However, in the nearly eleven months since Defendants filed their Motion to Dismiss,
Plaintiff has not moved the Court for leave to file a second amended Complaint.
Even if Cecil appropriately re-styled his above claims against the individual
Defendants in their individual capacities, his claims would still not be able to proceed. For
example, there is no individual liability under: (1) Title IX, Bose v. Bea, 947 F.3d 983, 989
(6th Cir. 2020), or (2) Title VII or the Kentucky Civil Rights Act, Wathen v. Gen. Elec. Co.,
115 F.3d 400, 405 (6th Cir. 1997). Further, as to Plaintiff’s Due Process claim, as
determined above he cannot obtain injunctive relief against the individual Defendants in
either their official or individual capacity.
Cecil also brings state-law claims against Zylka and John Roes 1 through 5 for: (1)
breach of contract, (2) breach of common law duty of fundamental fairness, (3)
negligence, and (4) intentional infliction of emotional distress. (Doc. # 11 ¶¶ 74-78, 84100).
Having dismissed Plaintiff’s federal claims, the Court declines to exercise
supplemental jurisdiction over Plaintiff’s state-law claims.
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 19 of 21 - Page ID#: 344
Under 28 U.S.C. § 1367, a district court may decline to exercise supplemental
jurisdiction over claims if it “has dismissed all claims over which it has original jurisdiction.”
Because of this, it is within the Court’s discretion to determine whether to adjudicate the
remaining claims. Brooks v. Rothe, 577 F.3d 701, 809 (6th Cir. 2009). Here, the Court
declines to exercise supplemental jurisdiction over Cecil’s remaining state law claims, and
therefore dismisses his claims against the individual Defendants in their individual
capacity due to a lack of subject-matter jurisdiction.
Cecil’s last two counts alleged in his amended Complaint request a declaratory
judgment in his favor. (Doc. # 11 ¶¶ 96-105). Cecil requests pursuant to 28 U.S.C. §
2201 (the Declaratory Judgment Act) that the Court reverse the findings by KCTCS,
restore Cecil’s reputation, seal his disciplinary file, remove any record of his termination
from his personnel file, permanently destroy his accusers’ complaints, reinstate him as a
faculty member, and declare KCTCS regulations as to adjudication of sexual misconduct
unconstitutional as applied. (Id. ¶ 100). Cecil additionally requests that the Court declare
that he had a valid and enforceable employment contract with KCTCS. (Id. ¶ 102).
The Declaratory Judgment Act (“the Act”) allows the Court “[i]n a case of actual
controversy within its jurisdiction” to “declare the rights and other legal relations of any
interested party seeking such declaration.” 28 U.S.C. § 2201(a). Whether to grant this
type of relief is discretionary. Aetna Cas. & Sur. Co. v. Sunshine Corp., 74 F.3d 685, 687
(6th Cir. 1996). However, in a similar fashion to the aforementioned law on immunity, a
request for a declaratory judgment may be barred by the Eleventh Amendment if the
requested relief is solely retroactive. Doe v. Cummins, 662 F. App’x 437, 444 (6th Cir.
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 20 of 21 - Page ID#: 345
Dec. 6, 2016); Brown v. Strickland, No. 2:10-cv-166, 2010 WL 2629878, at *4 (S.D. Ohio
June 28, 2010) (“[A] declaratory judgment against state officials declaring that they
violated federal law in the past constitutes retrospective relief.”). But, retrospective relief
“is permitted when it is ancillary to a prospective injunction designed to remedy a
continuing violation of federal law.” Cummins, 662 F. App’x at 444; see also Banas v.
Dempsey, 742 F.2d 277, 288 (6th Cir. 1984) (“[t]o escape the bar of the Eleventh
Amendment, an order against state officials must be both ‘prospective’ and ancillary to a
Young injunction ordering state officials to comply with federal law.”).
Unfortunately for Cecil, there is no continuing violation of federal law laid out in his
request for declaratory relief, except for the request for reinstatement. Regardless, Banas
bars him from seeking a declaratory judgment without the issuing of an ex Parte Young
injunction, which as discussed above, is not appropriate in this case. The nature of his
request underscores this point. All of the language used in Cecil’s declaratory judgment
counts is couched in past-tense. Even in his Response to Defendants’ Motion to Dismiss
Cecil makes clear that his request is for retrospective relief—“Cecil is requesting a
declaratory judgment declaring that the outcome and findings made by Defendants
relating to the allegations set forth by his accusers be reversed.” Therefore, Cecil’s
request for a declaratory judgment is dismissed.
For the reasons articulated herein, IT IS ORDERED as follows:
Defendants’ Motion to Dismiss (Doc. # 25) is GRANTED;
Plaintiff’s Amended Complaint (Doc. # 11) is dismissed as detailed below:
Plaintiff’s claims against KCTCS are dismissed with prejudice;
Case: 7:20-cv-00006-DLB Doc #: 33 Filed: 09/09/21 Page: 21 of 21 - Page ID#: 346
Plaintiff’s federal claims against Dr. Zylka and John Roes 1 through
5 in both their official and individual capacities are dismissed with
Plaintiff’s state law causes of action, namely, breach of contract,
breach of common law duty of fundamental fairness, negligence, and
intentional infliction of emotional distress, are dismissed without
A Judgment shall be filed contemporaneously herewith.
This 9th day of September, 2021.
M:\DATA\ORDERS\PikeCivil\2020\20-06 Cecil v. Ky Cmty Tech Coll MOO.docx
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?