Heike et al v. Central Michigan University Board of Trustees, et al

Filing 27

OPINION and ORDER Construing Defendant's Motion to Dismiss as a Motion for Judgment on the Pleadings, Cancelling Hearing, Granting 18 MOTION to Dismiss, Dismissing 20 MOTION to Stay Proceedings as Moot and Dismissing Plaintiff Heike's Claims with Prejudice. Signed by District Judge Thomas L. Ludington. (NHol)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
BROOKE ELIZABETH HEIKE and
BETHANY L. BROWN,
Plaintiffs,
Case Number 10-11373-BC
Honorable Thomas L. Ludington

v.
CENTRAL MICHIGAN UNIVERSITY
BOARD OF TRUSTEES and CENTRAL
MICHIGAN UNIVERSITY,
Defendants.
______________________________________ /

OPINION AND ORDER CONSTRUING DEFENDANTS’ MOTION TO DISMISS AS A
MOTION FOR JUDGMENT ON THE PLEADINGS, CANCELING HEARING,
GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS,
DISMISSING PLAINTIFFS’ MOTION TO STAY PROCEEDINGS AS MOOT AND
DISMISSING PLAINTIFF HEIKE’S CLAIMS
On April 7, 2010, Plaintiffs Brooke Heike (“Heike”) and Beth Brown (“Brown”)
(collectively, “Plaintiffs”), filed a complaint against Defendants Central Michigan University Board
of Trustees (the “Board of Trustees”) and Central Michigan University (“CMU”) (collectively,
“Defendants”) in the United States District Court for the Eastern District of Michigan which was
assigned to the Honorable Denise Page Hood. Plaintiffs’ complaint alleges claims under Title VI
of the 1964 Civil Rights Act, Title IV of the Educational Amendments Act of 1972, and the Equal
Protection Clause of the Fourteenth Amendment. Plaintiffs allege they were discriminated against
based on their race and sexual preference when their athletic scholarships were not renewed. Judge
Hood issued an order for Plaintiffs to show cause why the case should not be dismissed for failure
to prosecute on August 17, 2010 because the filing fee had not been paid and service of process had

not been made on the Board of Trustees and CMU.1 Summons were issued on September 1, 2010,
and Defendants filed an answer to the complaint with affirmative defenses on September 23, 2010
[Dkt. #12]. An amended answer was filed on October 13, 2010 [Dkt. #14]. On October 22, 2010,
Defendants filed a motion to reassign the case [Dkt. #15] to this Court as a companion case. An
order was entered reassigning the case to the Northern Division on November 8, 2010 [Dkt. #17].
Now before the Court is Defendants’ motion to dismiss Plaintiff Heike’s claims [Dkt. #18]
pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants generally allege that claim and
issue preclusion bar Heike’s claims. Because Defendants’ motion to dismiss was filed after their
responsive pleadings were filed, the motion should be addressed as one for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c) or as one for summary judgment
pursuant to Rule 56 rather than as one for dismissal pursuant to Rule 12(b)(6). In the instant case,
the matters referenced in the parties’ briefs that are outside of the pleadings are matters of public
record, and construing the motion as one for judgment on the pleadings under Rule 12(c) is
appropriate.
Heike filed an untimely response to Defendants’ motion on April 13, 2011 [Dkt. #24]. In her
response, Heike alleges that res judicata and collateral estoppel are inapplicable because the parties
to the instant action are not the same as in Heike v. Guevara, et al., Case Number 09-10427, (“Heike
I”) and the causes of action and necessary proofs of the instant case are different. Defendants filed
a reply [Dkt. #24] on April 18, 2011.
The Court has reviewed the parties’ submissions and finds that the facts and the law have

1

Defendants contend that the only proper defendant to this case is Central Michigan
University Board of Trustees and Defendants’ papers reference a single defendant. However,
Defendant Central Michigan University has not yet been dismissed from the suit.
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been sufficiently set forth in the motion papers. The Court concludes that oral argument will not aid
in the disposition of the motion. Accordingly, it is ORDERED that the motion be decided on the
papers submitted. E.D. Mich. LR 7.1(e)(2). For the reasons provided below, the Court will grant
Defendants’ motion for judgment on the pleadings.
I.
A.

Facts2

The Plaintiffs

Plaintiff Brooke Heike is a female individual of Caucasian and Native American descent.
Heike attended Romeo High School in Romeo, Michigan, from September 2002 through June 2006.
While attending Romeo High School, Heike played on the girls’ basketball team. The team had a
record of one win and seventeen losses Heike’s freshman year, yet the team won the league
championship Heike’s senior year. Heike won a “Most Valuable Player” (“MVP”) award and was
co-captain of the team her senior year. Heike was also named MVP of the Mid-American
Conference (“MAC”) Blue All-League Team, member of the first tier MAC All-Conference team,
member of the first tier All Metro East team, member of the second tier All Metro East team, and
received honorable mention on the All-State team. Several colleges and universities recruited Heike
to join their women’s basketball programs and offered her athletic scholarships, including CMU and
several other National Collegiate Athletic Associations (“NCAA”) Division I schools.
Heike generally alleges that CMU and its representatives promised Heike that if she enrolled
at CMU and joined its women’s basketball team, she would receive a college education at CMU and
that an athletic scholarship would pay for tuition, room and board, and other expenses during the
four years that it would take Heike to earn her degree at CMU. Specifically, Heike alleges that
2

The Facts are taken from Plaintiffs’ complaint, which references Exhibits as sources for the
factual allegations. Plaintiffs did not, however, include any exhibits with their complaint.
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then-CMU Head Coach Eileen Kleinfelter stated to Heike during recruitment, “I can’t guarantee
how much playing time you’ll receive, but I can guarantee you an education.” Heike alleges that
she accepted CMU’s offer and declined other offers based on these representations.
On November 3, 2005, then-Athletics Director Herb Deromedi sent Heike a letter, offering
her an “athletic grant for the 2006-07 academic year,” covering in-state tuition/fees, room and board,
and a book loan. The letter stated that renewal of the athletic grant for subsequent years was
“subject to the conditions listed on the MAC and National Letters of Intent,” which Heike was
required to sign. Heike signed the related letters of intent.
Plaintiff Bethany Brown is a female individual of Caucasian descent. Brown attended Grand
Ledge High School, in Grand Ledge, Michigan, from September 2003 through June 2007. While
attending high school, Brown played on the girls’ basketball team. Brown won Class A All-State
Honorable Mention during both her junior and senior years, Class A All-Area by the Lansing State
Journal and First Team All Conference during her junior and senior years, and was voted “Most
Valuable Player” and team captain for both her junior and senior years. Several colleges and
universities recruited Brown to join their women’s basketball programs and offered her athletic
scholarships, including CMU, Northern Illinois, Niagara, Lehigh, Akron (Ohio), and Saginaw Valley
State University.
Brown generally contends that CMU and its representatives promised Brown that if she
enrolled at CMU and joined its women’s basketball team, she would receive a college education at
CMU and that an athletic scholarship would pay for tuition, room and board, and other expenses
during the four years that it would take Brown to earn her degree at CMU. Specifically, Brown
alleges that she inquired what would happen if then-CMU Head Coach Eileen Kleinfelter realized

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Brown was not as talented as expected. Brown alleges that Coach Kleinfelter stated in response,
“That will be my problem but your scholarship is safe.” One July 17, 2006, then-Coach Kleinfelter
send Brown an email stating “We are offering you a full ride scholarship and now that you have
given us a verbal commitment, our word is good as gold.”
On November 6, 2006, then-Athletics Director Dave Heeke (“AD Heeke”) sent Brown
correspondence offering her an “athletic grant” covering in-state tuition, fees, room, board and book
loan.) AD Heeke’s letter states that renewal of the athletic grant (hereinafter referred to as
“scholarship”) for subsequent years was “subject to the conditions listed on the MAC and National
Letters of Intent.” Brown alleges that CMU, through its authorized representatives, made
representations to Brown before and after November 2, 2006 that she would receive the “athletic
grant” for all four years of her education. Brown alleges that, based on these representations, she
declined other offers she received and accepted the offer from CMU. Brown signed the MAC and
National Letters of Intent which AD Heeke had included with his November 2, 2006 letter.
B.

Plaintiffs’ Experience at CMU

Heike matriculated at Central Michigan University in September 2006 and was a member
of the women’s basketball team for the 2006-07 and 2007-08 seasons. In the 2005-06 season under
Coach Kleinfelter, the CMU women’s basketball team had won sixteen games and lost twelve
games. In April 2007, at the close of the 2006-07 season, CMU announced that Coach Guevara
would replace Coach Kleinfelter. Coach Guevara had previously been the head coach of the
women’s basketball team at the University of Michigan and an assistant coach at Auburn University.
Subsequently, during the 2007-08 season, the team won six games and lost twenty-three games.
In April 2007, before Coach Guevara had witnessed Heike practice, Heike alleges that she

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met with Coach Guevara, who told Heike that she did not want Heike to wear make-up. In May
2007, Brown alleges that she met with Coach Guevara, who told Brown that she “wasn’t that big”
and that she looked pretty. Despite the alleged discriminatory and harassing actions taken against
them that will be further discussed below, Plaintiffs allege that they continued to work hard and were
never told that their skills or abilities were lacking.
Plaintiffs allege that Coach Guevara subjected them to unwelcome harassment and discipline
throughout the 2007-08 season, including by repeatedly telling Plaintiffs that they were not her
“type” of person. Plaintiffs allege that Coach Guevara’s comments led them to believe that they
were not Coach Guevara’s “type” of person because Plaintiffs identified as heterosexual and wore
make-up. Plaintiffs believed that Coach Guevara found this to be “an unacceptable heterosexual
behavior.” Plaintiffs allege that Coach Guevara repeatedly attempted to force them to transfer to
another college or university. This included Coach Guevara allegedly directing Assistant Coach Bill
Ferrara to tell Heike that she should transfer to Saginaw Valley State University.
Plaintiffs allege that Coach Guevara stated to them, in front of other players and assistant
coaches, “Your only role on this team is to keep the grade point average up and challenge the players
that will play in games.” Plaintiffs alleges that at a practice on December 14, 2007, Coach Guevara
stated to Heike, in front of the entire team, “Just because you never play doesn’t mean you don’t
have to work hard.” After Heike responded, “I work hard all the time and never get to play? Why
wouldn’t I work hard now?” Coach Guevara then kicked Heike out of practice. Heike was upset and
could not eat and vomited profusely. Heike was examined by a medical doctor, who instructed by
note that Heike not attend practice on December 15, 2007, because of her illness. Despite receiving
the doctor’s note as to Heike’s illness, Coach Guevara told the assistant coaches and team members

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that she had kicked Heike out of practice for another day. Immediately following this incident,
Heike requested additional assistance with her work-outs and training. Heike alleges that she never
received additional assistance, but such assistance was provided to the other players whom Coach
Guevara retained on the team.
Brown alleges she was similarly subjected to wrongful treatment and harassment by Coach
Guevara and the assistant coaches, including comments that she wore her pants too tight, that she
wore too much make-up, that she did not need to style her hair, and that she was too “girly-girl.”
Coach Guevara also allegedly made insulting and demeaning comments regarding Brown in front
of other coaches and players, including a comment that “every once in a while, even a blind quirrel
finds a nut” after Brown completed a successful practice. Brown alleges that she was not assigned
to have weekly meetings with an assistant coach to discuss improving her playing skills, but was
instead assigned to have weekly meetings with Ethan Gelfand, a video coordinator for CMU.
On December 19, 2007, Heike was advised by her doctor that her medical conditions were
triggered by significant emotional stress. Despite this, Heike continued to work hard. Prior to a
tournament at Northwestern University, Assistant Coach Ferrara advised Heike that she was going
to be considered as a possible starter player or the first player off the bench; Heike was selected as
the first player off the bench. After the tournament, on the bus ride back to CMU, Heike told Coach
Guevara that she wanted to watch the film of the game because it was the longest time that she had
been able to play in a game. Coach Guevara directed Heike to Assistant Coach Kathy McGee, with
whom Heike made an appointment to view the film of the game. However, Assistant Coach McGee
did not arrive at the appointed time, and Heike never viewed the film.
During the 2007-08 women’s basketball season, CMU won only six games and lost twenty

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three. Plaintiffs allege that Coach Guevara did not provide them with any notice in writing as to
their alleged performance deficiencies or that either Plaintiff did not meet the team’s expectations.
Coach Guevara also did not implement a program to assist either Heike or Brown with their alleged
deficiencies nor did she communicate that either Plaintiffs’ scholarship retention was in jeopardy.
On March 13, 2008, Heike alleges that Coach Guevara told Heike that she was not her
“type,” that she was eliminating Heike from the team, and that Heike would be losing her athletic
scholarship. Heike alleges that Coach Guevara did not provide Heike with any additional reasons
for eliminating her from the team. Later, Coach Guevara told the team that Heike had been removed
from the team because Heike was “unhappy,” and not because of any deficiency on the part of Heike
or anything related to Heike’s ability or capacity to improve her skills.
Brown alleges that she was also called into Coach Guevara’s office on March 13, 2008 and
told that her athletic scholarship would not be renewed because she was not Coach Guevara’s
“type.” Brown similarly alleges that Coach Guevara did not provide Brown with any additional
reasons for not renewing her scholarship. Instead, Coach Guevara told Brown that she was a team
leader through her positive attitude, effort, work ethic and her commitment to team goals. Coach
Guevara likewise told the women’s basketball team that Brown was “unhappy,” and that Brown had
decided not to come back to play for CMU. Coach Guevara did not disclose to Brown or the team
that Brown’s scholarship had been taken away because of any deficiency on Brown’s part or
anything related to her ability to improve her skills.
Despite Heike being a member of the women’s basketball team for two full seasons and
Brown being a member of the women’s basketball team for one full season, Coach Guevara refused
to allow Plaintiffs to attend the concluding banquet held at the end of the 2007-08 season. Plaintiffs

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allege that this caused them further embarrassment.
Plaintiffs allege that they were treated differently by CMU than other athletes of a different
race and gender, particularly student-athletes on its male basketball team. Marcus Van, for example,
who is an African-American male, and who was not dismissed from the CMU men’s basketball team
nor was his scholarship revoked even though he violated CMU’s rules and pled guilty to a criminal
charge of conspiracy to steal and unlawful use of a credit card.
On March 18, 2008, in a meeting in her office with Brown and Brown’s father, Mike Brown,
CMU Associate Athletics Director Marcy Weston advised Brown and her father that, “We have
agonized over this and what we’re doing may not be right but we have decided to let the coach do
this one time.” On March 27, 2008, Patricia Pickler (“Pickler”), the Assistant Director of the Office
of Scholarships and Financial Aid, sent Heike a letter advising that her athletic scholarship and
financial aid would not be renewed for the 2008-09 academic year, based on the recommendation
of the Athletics Department. Brown received a similar letter from Pickler that same day.
On March 31, 2008, Brown’s father wrote to Pickler by email, which was copied to Coach
Guevara and Director of Athletics Heeke, stating:
In your letter to Bethany dated March 27, 2008 you referenced the non-renewal as
being “in accordance with the NCAA constitution, and the conference and
institutional regulations that apply.” Will you please provide copies of the “NCAA
Constitution, and the conference and institutional regulations that apply” as you
referred to in your letter. If you cannot send copies please provide me with the
applicable sections.
A series of emails ensued between Mr. Brown, Pickler, and Senior Associate Athletics Direct Derek
Van Der Merwe (“Van Der Merwe”) regarding the NCAA manual, the conference and institutional
regulations that applied, and the policies in CMU’s Student Athletics Handbook. Mr. Brown
requested further clarification for the decision to revoke Brown’s financial aid and an explanation
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of the expectations, if any, Coach Guevara had of his daughter’s performance. Mr. Brown also asked
Van Der Merwe to provide the date or dates that Brown was notified that her performance was not
meeting Coach Guevara’s expectations as well as any improvement plan to help Brown master skills
or address deficiencies. Brown alleges that neither she nor her father received any of the requested
information.
On April 7, 2008, Heike submitted a written request for a hearing and set forth the reasons
why she believed CMU had unfairly deprived her of her scholarship and education. In essence,
Heike’s letter contends that Coach Guevara wanted Heike to quit the team because Heike was not
her “type,” that Coach Guevara “should have to go through the normal process and time period to
build the ‘type’ of team she wants,” and that Heike’s abilities and efforts were not deficient as
compared to the other players on the team. On April 9, 2008, Brown also submitted a written request
for a hearing and set forth the reasons why she believed CMU had unfairly deprived her of her
scholarship and education.
On June 5, 2008, Pickler advised Heike and Coach Guevara in writing that an appeal hearing
was scheduled for June 11, 2008. Pickler’s letter advised that:
The purpose of this appeal hearing is to determine if the action to not renew Ms. Heike’s
athletics aid for the 2008-2009 academic year was a substantial injustice. If the
committee decides that it was more likely than not that Coach Guevara’s decision was
reasonable, it will uphold the decision. If it decides that it was more likely than not that
her decision was unreasonable, it will ask that Ms. Heike’s athletics aid be reinstated.
An attachment to the letter described certain procedures that would be followed at the hearing. In
particular, the procedures provided that Heike would be able to make a closing statement and to ask
questions of Coach Guevara and witnesses. Heike alleges that the correspondence did not indicate
why the issue was described as whether she was subjected to a “substantial injustice” or from what

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source this standard was derived. Heike also alleges she was not informed as to what constituted a
“reasonable” or “unreasonable” decision.
Another attachment to the letter was entitled “Brooke Heike Statement, prepared by Sue
Guevara, April 24, 2008.” In this statement, Coach Guevara stated that Heike “consistently
struggle[d] to understand key basketball concepts. This was reinforced by the secondary role she
played in all basketball practice activities.” Coach Guevara further wrote, “What is most
disconcerting is that Brooke never appeared to strike for success,” that “[e]ven though Brooke was
failing to meet these expectations, she did not seek additional help or assistance,” and “[s]he
appeared to be very satisfied with her deficiencies.”
In comparison, Coach Guevara wrote, “[a] number of those members of the team who were
underachieving throughout the year demanded additional time from coaches to help them with the
process of improvement. These individuals continue to be members of the team.” Coach Guevara
further wrote that Heike was “kicked out of practice” on both December 14 and 15, 2007, “for lack
of effort, poor body language, and bad attitude overall . . . this stemmed from her consistently
missing sprint times and not grasping basic concepts essential to the completion of conditioning
drills.”
Heike alleges that she was never provided with any written explanation of her alleged
deficiencies, that she was never told by Coach Guevara why she did not meet the expectations of
players on the team, and that Coach Guevara never implemented a program to assist her with her
alleged deficiencies. Heike further alleges that Coach Guevara never told Heike that her athletic
grant was in jeopardy. Coach Guevara also did not explain that the reasons that Heike’s scholarship
was not renewed was because she did not meet the conditions listed on the MAC and National

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Letters of Intent.
On June 11, 2008, Heike appeared before the appeals committee at the CMU Office of
Scholarship and Financial Aid for a hearing, which took approximately two hours. The appeals
committee members were Pickler; Kevin Love, a CMU professor of management; and Julia
Sherlock, CMU Director of Career Services. Prior to the hearing, Heike alleges that she asked some
of her team members to appear as witnesses on her behalf, but Heike was told by them that Coach
Guevara had instructed them that they were not allowed to testify on Heike’s behalf. Heike alleges
that Pickler did not permit Heike to make an opening statement or to question witnesses, that Pickler
argued on behalf of Coach Guevara, that Pickler rejected Heike’s evidence as not relevant, that
Pickler tried to intimidate Heike through verbal abuse directed at Heike’s father, and that Pickler
repeatedly interrupted Heike when she asked questions.
In the complaint, Heike highlights the following aspects of the hearing, which Heike asserts
conflict with Coach Guevara’s written statement dated April 24, 2008: that Coach Guevara
confirmed that she had not provided Heike with any written explanation of her alleged deficiencies,
that Coach Guevara had not implemented a program to assist Heike with her alleged deficiencies,
that Heike had come to Coach Guevara’s office to ask for assistance, and that other players had
missed sprints or had been asked to leave practice, yet retained their scholarships. Coach Guevara
affirmed that she had never taken away a player’s athletic scholarship before, but that players on
teams she had previously coached had transferred to other schools after she advised them that they
would not receive playing time. Coach Guevara could not provide examples of Heike’s deficiencies.
Heike alleges that she provided statistics from the 2007-08 season to the appeals committee,
which Heike contends demonstrated that other retained players did not produce results, but received

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greater playing time than Heike . Assistant Coach Bill Ferrara testified that the entire team needed
to improve, that Heike was frustrated with being singled out for disparate treatment, and that Heike’s
skills improved over the season. Brown also testified at the hearing, stating that she too received
a statement written by Coach Guevara only after she requested an appeal of the revocation of her
scholarship. Brown alleges that her letter was nearly identical to Heike’s but also advised Brown
that she was a “joy to have on the team” and could remain a player on the team without a
scholarship. Brown testified that neither she nor Heike received any individualized assistance to
remedy any deficiencies and that they were not warned that their scholarships were in jeopardy.
Heike alleges that she “made clear to the Appeals Committee that she believed she was being
singled out for disparate, discriminatory treatment and abusive wrongful sexual harassment because
of her race and color and because of her heterosexuality, and that she has suffered because of
defendants’ wrongful treatment of her.”
Heike alleges that the Appeals Committee did not consider whether Heike had suffered a
substantial injustice or whether Coach Guevara’s decision was reasonable but instead “rubberstamped” the decision to not renew Heike’s athletic scholarship and dismiss her from the team.
Brown alleges that her appeal was not adequately considered but was similarly “rubber-stamped.”
Plaintiffs allege that in doing so, CMU treated them differently than other similarly-situated student
athletes with equivalent or less satisfactory athletic performance who were treated more favorably
because of their race or color. More specifically, a member of the men’s basketball team, Marcus
Van, was dismissed from the men’s team for unspecified circumstances but reinstated soon
thereafter despite violating the CMU Student-Athlete Handbook and NCAA Letter of Intent. Van’s
scholarship was not revoked.

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Finally, Plaintiffs allege that neither AD Heeke, who began his employment as CMU’s
Athletic Director on January 16, 2006, nor CMU investigated the reasons for Coach Guevara’s firing
by the University of Michigan in 2003 or whether Coach Guevara had forced players who were not
her “type” to leave the team at that school and had poor interpersonal relationships with her players.
Six players left the University of Michigan’s women’s basketball team during the seven seasons that
Coach Guevara coached the team. Plaintiffs allege that those players have stated that poor
communication on the part of Coach Guevara or Coach Guevara’s invasions into their personal lives
were the reasons for their leaving.
C.

Procedural History of Heike v. Guevara, et al.

The factual allegations in Heike I pertaining to Plaintiff Heike are nearly identical to those
set forth in her immediate complaint. Heike’s complaint in Heike I alleged the following claims:
(1) violations by all Defendants of procedural and substantive due process pursuant to the Fourteenth
Amendment to the U.S. Constitution, based on alleged flaws in the process used to determine that
Heike’s athletic scholarship should not be renewed for the following year; (2) violations of the Equal
Protection Clause to the U.S. Constitution by all Defendants based on allegations that the decision
was made to not renew Heike’s athletic scholarship because of her gender and status or identity as
a heterosexual; (3) breach of contract or implied contract against the Board of Trustees because
Heike’s athletic scholarship was not renewed for the two additional years that it would take her to
complete her college education; (4) defamation by all Defendants based on allegedly false
statements that were made by individuals during the process of deciding not to renew Heike’s
athletic scholarship that allegedly prevented Heike from having her scholarship reinstated or
receiving a scholarship from another school; (5) tortious interference with a contract or

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advantageous business relationship or expectancy against Coach Guevara, Heeke, and Pickler for
allegedly interfering with Heike’s relationship with CMU; (6) intentional infliction of emotional
distress by all Defendants; (7) violations of certain provisions of the Michigan Elliot-Larsen Civil
Rights Act (“ELCRA”), Mich. Comp. Laws §§ 37.2101, et seq., by all Defendants based on
allegations of discrimination because of Heike’s “race and color,” and “heterosexual preference”;
(8) negligent hiring of Coach Guevara against the Board of Trustees and AD Heeke based on the
alleged lack of research into Coach Guevara’s background; and (9) negligent supervision of Coach
Guevara against the Board of Trustees and AD Heeke based on Coach Guevara’s conduct towards
Heike.
On September 2, 2009, the Court granted in part Defendants’ motion to dismiss [09-10427
Dkt. # 30]. The Court dismissed all of Heike’s claims against the Board of Trustees, a public
university that is an arm of the State of Michigan, on the basis of sovereign immunity and because
the Board of Trustees is not a “person” for the purposes of § 1983. As noted above, Heike’s claims
against the Board of Trustees had included equal protection violations, due process violations,
breach of contract, ELCRA violations, negligent hiring, and negligent supervision. The Court also
dismissed all of Heike’s claims against Coach Guevara, AD Heeke, and Pickler in their official
capacities on the basis of sovereign immunity to the extent that the claims sought monetary damages
or retrospective relief. Heike’s federal claims against Coach Guevara, AD Heeke, and Pickler were
not barred by sovereign immunity to the extent that she sought prospective injunctive relief. Even
though lawsuits for monetary damages or retrospective relief against state officials acting in their
official capacity are suits against the state and are thus barred in federal court by the Eleventh
Amendment, Edelman v. Jordan, 415 U.S. 651, 663 (1974), a state official sued in his or her official

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capacity for prospective equitable relief “is generally not regarded as ‘the state’ for purposes of the
Eleventh Amendment and the case may proceed in federal court.” MacDonald v. Vill. of Northport
Mich., 164 F.3d 964, 970 (6th Cir. 1999). The Court directed the parties to submit supplemental
briefing as to Heike’s negligent hiring and supervision claims against AD Heeke, and Heike’s
defamation claims against Coach Guevara, AD Heeke, and Pickler.
After the parties filed supplemental briefing, the Court granted in part and denied in part the
remainder of Defendants’ motion to dismiss on November 6, 2009. [09-10427 Dkt. # 34]. The Court
dismissed Heike’s claims of negligent hiring and negligent supervision against AD Heeke and
Heike’s defamation claims against AD Heeke and Pickler. The Court rejected Coach Guevara’s
arguments that Coach Guevara’s alleged defamatory statements are absolutely privileged or
non-actionable statements of opinion. Nonetheless, the Court concluded that Heike had not
sufficiently pleaded special damages to support her defamation claim against Coach Guevara, and
granted Heike leave to amend the complaint. On November 13, 2009, Heike filed an amended
complaint and on February 9, 2010, the Court granted Coach Guevara’s motion to dismiss Heike’s
defamation claim, primarily because Heike consented to Coach Guevara’s expression of her
evaluation when Heike requested an appeals committee hearing. [09-10427 Dkt. # 59].
Finally, on May 3, 2010, the Court granted Defendants’ motion for summary judgment [0910427 Dkt. #77] as to Heike’s remaining federal claims based on violations of procedural and
substantive due process and equal protection pursuant to § 1983 against Defendants in their
individual capacities and in their official capacities for injunctive relief. More specifically, the Court
found that as to Heike’s race-based equal protection claims, she had not demonstrated that others
who were similarly situated but not members of the protected class were treated more favorably or

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that Defendants’ legitimate non-discriminatory reasons for not renewing Heike’s scholarship were
pretext. The Court granted summary judgment on Heike’s sexual preference equal protection claims
because there was not enough to “demonstrat[e] that the challenged government action was
motivated by animus or ill-will.” Heike’s substantive due process claim was summarily dismissed
because there was no suggestion that, at the time she was awarded her scholarship, there was a
presumption of automatic renewal in order to demonstrate a protected property interest. Finally, the
Court dismissed Heike’s procedural due process claims because, even assuming a constitutionally
protected property interest, Heike had not raised genuine issues of material facts as to whether she
had an opportunity to be heard on Coach Guevara’s decision not to renew her scholarship.
Moreover, Heike had not advanced evidence to suggest that the outcome of the appeals hearing was
predetermined or that she did not have a fair opportunity to present her side of the story. The Court
declined to exercise jurisdiction over Heike’s remaining state law claims for tortious interference
with a contract or advantageous business relationship or expectancy, intentional infliction of
emotional distress, and violations of certain provisions of the Michigan ELCRA.
II.

Standard of Review

“A Rule 12(c) motion for judgment on the pleadings for failure to state a claim upon which
relief can be granted is nearly identical to that employed under a Rule 12(b)(6) motion to dismiss.”
Kottmyer v. Maas, 436 F.3d 684, 689 (6th Cir. 2006) (citations omitted). When a court is presented
with a Rule 12(b)(6) or 12(c) motion, “it may consider the [c]omplaint and any exhibits attached
thereto, public records, items appearing in the record of the case and exhibits attached to the
defendant’s motion to dismiss, so long as they are referred to in the [c]omplaint and are central to
the claims contained therein.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir.

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2008); see also Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999) (stating that “[t]here
are exceptions to th[e] general rule” that “matters outside the pleadings may not be considered in
ruling on a 12(b)(6) motion to dismiss” and that “[c]ourts may . . . consider public records, matters
of which a court may take judicial notice, and letter decisions of governmental agencies.”). A court
“must construe the complaint in the light most favorable to the plaintiff, accept all of the complaint’s
factual allegations as true, and draw all reasonable inferences in favor of the plaintiff.” 528 F.3d at
430. (citation and internal quotations omitted). Yet, to survive such a motion, a plaintiff’s complaint
“must contain either direct or inferential allegations respecting all the material elements [of the
claim] to sustain a recovery under some viable legal theory.” First Am. Title Co. v. Devaugh, 480
F.3d 438, 444 (6th Cir. 2007) (internal quotation omitted). “Conclusory allegations or legal
conclusions masquerading as factual allegations will not suffice.” Eidson v. Tenn. Dep’t of
Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007). See also Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949-50 (2009); Twombly v. Bell, 550 U.S. 544, 555 (2007) (explaining that a complaint must
contain something more than a statement of facts that merely creates speculation or suspicion of a
legally cognizable cause of action). A Rule 12(c) motion “is granted when no material issue of fact
exists and the party making the motion is entitled to judgment as a matter of law.” Paskvan v. City
of Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991).
III.
A.

Analysis

Claim Preclusion

Res judicata, i.e., the preclusive effect of a judgment, encompasses two distinct doctrines:
claim preclusion and issue preclusion. Taylor v. Sturgell, 553 U.S. 880, 891-93 (2008). Claim
preclusion “forecloses ‘successive litigation of the very same claim, whether or not relitigation of

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the claim raises the same issues as the earlier suit.’ ” Id. (quoting New Hampshire v. Maine, 532 U.S.
742, 748 (2001)); see also Dodrill v. Ludt, 764 F.2d 442, 443 (6th Cir. 1985). When a previous
judgment upon which the defendant bases a res judicata argument was issued by a federal court on
a federal question, it is necessary to look to federal law to determine the judgment’s preclusive
effect. Hamilton’s Bogarts, Inc., v. Michigan, 501 F.3d 644, 650 (6th Cir. 2007). “Res judicata
applies when (1) there is a final decision on the merits of the first action by a court of competent
jurisdiction; (2) the second action involves the same parties, or their privies, as the first; (3) the
second action raises an issue actually litigated or which should have been litigated in the first action;
and (4) there is identity of claims.” Walker v. General Tel. Co., 25 F. App’x 332, 336 (6th Cir.
2001); see Sanders Confectionery Prod., Inc. v. Heller Fin., Inc., 973 F.2d 474, 480 (6th Cir.1992).
Defendants contend that Heike’s claims against them are barred by res judicata because all
four elements are met: the Court’s order in Heike I granting in part and denying in part Defendants’
motion to dismiss and the Court’s order granting Defendants’ motion for summary judgment were
an adjudication on the merits of the claims which involved the same parties or their privities, the
resolved issues were actually litigated or should have been litigated, and the instant complaint is
nearly identical to the complaint in Heike I.
1.

Final Decision on the Merits

Defendants emphasize that the Court made not only one, but two final decisions on the merits
in the first action. More specifically, the Court’s May 3, 2010 order granting Defendants’ motion
for summary judgment, which dismissed the remaining official-capacity and individual-capacity
claims against Defendants’ privities with prejudice (i.e., AD Heeke, Coach Guevara, and Pickler),
was a final decision on the merits. [09-10427 Dkt. #78]. The § 1983 claims against the individual

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Defendants in their official capacity survived Defendants’ motion to dismiss in Heike I to the extent
Heike sought prospective relief. In regard to such claims, the Court recognized the officials were
“persons” within the meaning of § 1983, and they were not entitled to Eleventh Amendment
immunity. See Heike, 654 F. Supp. 2d 658, 668-72 (E.D. Mich. 2009). Defendants’ contend that the
official-capacity claims under § 1983 merely represented another way for Heike to plead her
discrimination action against the Board of Trustees and, accordingly the Court permitted her to
proceed . See Graham, Kentucky v. Graham, 473 U.S. 159, 165 (1985). An order granting summary
judgment under Federal Rule of Civil Procedure 56 is a “final decision on the merits” for purposes
of res judicata. Nathan v. Rowan, 651 F.2d 1223, 1226 (6th Cir. 1981). In short, Defendants contend
that because there was a later final decision on the merits in Heike I in regard to the Board of
Trustees and its privities when summary judgment of the official-capacity claims was granted, no
further analysis in this regard is necessary.
Defendants also note that the September 2, 2009 order dismissing the Board of Trustees was
a separate final decision on the merits for purposes of res judicata. In moving for the dismissal of
the Board of Trustees in Heike I, Defendants argued that the Board of Trustees, as an “arm of the
state,” was not a “person” within the meaning of 42 U.S.C. § 1983, and that the claims against the
Board of Trustees should be dismissed pursuant to Rule12(b)(6) for Heike’s failure to state a claim
upon which relief can be granted. The Court agreed. See Heike, 654 F. Supp. 2d at 672. Typically,
a dismissal for failure to state a claim is a decision on the merits. See Rogers v. Stratton Indus., Inc.,
798 F.2d 913,917 (6th Cir. 1986). Thus, the September 2, 2009 Order was also a final decision on
the merits for purposes of res judicata.
Furthermore, Defendants emphasize that it is immaterial that the September 2, 2009 order

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granting in part and denying in part Defendants’ motion to dismiss concluded that the claims against
the Board of Trustees were barred by the Eleventh Amendment and should be dismissed on the basis
of sovereign immunity. Under the Federal Rules of Civil Procedure, involuntary dismissal based on
“lack of jurisdiction” is not an adjudication on the merits. See Fed R. Civ. P.41(b). While some
courts have concluded that Eleventh Amendment immunity divests federal courts of “subject-matter
jurisdiction,” the Sixth Circuit has noted significant differences between a defense based on lack of
subject matter jurisdiction and a defense based on sovereign immunity, see Nair v. Oakland County
Community Mental Health Authority, 443 F.3d 469, 474 (6th Cir. 2006) (holding that a defense
based on Eleventh Amendment immunity “is not coextensive with the limitations on judicial power
in Article III”), and other courts have concluded that a prior dismissal based on Eleventh
Amendment immunity may have res judicata effect on a subsequent lawsuit, see Adams v. Bosco,
No. 98-CV-8737(RO), 1999 WL 165691, at *1, n.1 (S.D.N.Y. March 25, 1999) (recognizing that
“the case law has some divergence on whether a dismissal for sovereign immunity under the
Eleventh Amendment constitutes a final judgment on the merits” and that “there is some support for
the proposition that ‘[a] dismissal based on sovereign immunity is a decision on the merits, as it
determines that a party has no cause of action or substantive right to recover.’ ”) (citing Bloomquist
v. Brady, 894 F. Supp. 108, 116 (W.D.N.Y. 1995); see also Cox v. Mississippi Dept. of Corrections,
No. 4:06CV102-SA-EMB, 2008 WL 2563356 (D. Miss. June 26, 2008).
Moreover, Defendants note that–whether or not the portion of the Court’s September 2, 2009
order dismissing the Board of Trustees on sovereign immunity grounds is a final decision on the
merits–the Court’s conclusion that Heike did not state a claim against the Board of Trustees because
the Board of Trustees was not a “person” within the meaning of § 1983 is a final decision on the

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merits. The Sixth Circuit has held that federal courts have discretion to address the sovereign
immunity defense and the merits of a case in whichever order they prefer. Nair, 443 F.3d at 477.
Consequently, this Court properly reached the merits of Heike’s § 1983 claims against the Board
of Trustees in resolving Defendants’ motion to dismiss in Heike I.
In Nair, the plaintiff, a medical director at a county health organization, brought § 1983
claims and whistleblower claims against the organization after his employment was terminated. 443
F.3d at 472-73. The trial court granted summary judgment to the organization on the merits,
notwithstanding the organization’s argument that Eleventh Amendment sovereign immunity barred
the suit. Id. at 473. In affirming the decision, the Sixth Circuit recognized that claims barred by the
Eleventh Amendment were not the same as claims barred by lack of subject matter jurisdiction:
“[w]hile the Eleventh Amendment is jurisdictional in the sense that it is a limitation
on the federal court’s judicial power,” the defense “is not coextensive with the
limitations on judicial power in Article III.” Unlike subject-matter jurisdiction, a
State may waive Eleventh Amendment immunity through its own conduct: by
legislation, by removing an action to federal court, or by “appearing without
objection and defending on the merits” . . . . . Unlike subject matter jurisdiction,
federal courts have no obligation to raise an Eleventh Amendment issue on their
own, even though they may do so if they wish. And unlike subject-matter jurisdiction
“the entity asserting Eleventh Amendment Immunity has the burden to show that it
is entitled to immunity.”
Id. at 474 (citations omitted). Because of these differences, the Court held that, unlike claims over
which a trial court has no subject matter jurisdiction, when the state defendant raises the Eleventh
Amendment defense as an alternative argument, the trial court may resolve the merits of the
underlying action before reaching issues regarding sovereign immunity. Id. at 474-77. In relevant
part, the Court held:
Under these circumstances and under any circumstances in which the State (or the
United States) declines to raise sovereign immunity as a threshold defense, we
conclude that the federal courts have discretion to address the sovereign-immunity
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defense and the merits in whichever order they prefer. To our knowledge, no court
of appeals to consider this question has held to the contrary, and several have
explicitly or implicitly embraced this approach.
Id. at 477 (citations omitted).
Defendants emphasize that the Board of Trustees presented both the sovereign immunity
defense and the argument that the Board of Trustees was not a “person” as two separate and
independent grounds for dismissing Plaintiffs claims in Heike I. [09-10427 Dkt. #24]. Heike
addressed each argument in her papers and the Court stated that:
whether [the] CMU [Board of Trustees] or the individual Defendants in their official
capacities are “persons” within the meaning of § 1983 is a separate issue from
whether Defendants have waived their sovereign immunity. Even if sovereign
immunity had been waived, [the] CMU [Board of Trustees] and the individual
Defendants in their official capacities would not be amenable to a suit for monetary
damages under § 1983 because they are not “persons” within the meaning of the
statute.
Thus, even if Plaintiff’s federal and state law claims against the individual
Defendants in their official capacities and [the] CMU [Board of Trustees] could not
be dismissed on the basis of sovereign immunity, the claims could be dismissed
based on the fact that the Defendants are not “persons” within the meaning of §
1983, except to the extent that Plaintiff's federal claims seek prospective injunctive
relief.
Heike, 654 F. Supp. 2d at 672 (emphasis added).
Heike, however, contends that the Court’s prior orders in Heike I do not serve as final
decisions on the merits of the claims against the Board of Trustees. Heike argues that the Court’s
determination that the Board of Trustees could not be a “person” under § 1983 is not an adjudication
on the merits but is instead simply the recognition that the Board of Trustees is entitled to sovereign
immunity. According to Heike, the doctrine of sovereign immunity merely removes subject matter
jurisdiction in lawsuits against the government, unless the government consents to the suit. Beamon
v. Brown, 125 F.3d 965, 967 (6th Cir. 1997); United Liberty Life Ins. Co. v. Ryan, 985 F.2d 1320,
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1325 (6th Cir. 1993) (citing United States v. Mitchell, 463 U.S. 206, 212 (1983)). Heike contends
that sovereign immunity must be addressed before a court addresses the merits of any claims. See,
e.g., Angel v. Kentucky, 314 F.3d 262, 265 (6th Cir. 2002) (“We must therefore address the
jurisdictional [Eleventh Amendment] question that clearly exists, even though it was not addressed
by the court below.”); Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Engler, 304 F.3d
616, 618 (6th Cir. 2002) (“jurisdictional issues,” including an Eleventh Amendment defense, must
“be addressed prior to reaching the merits”); Rossborough Mfg. Co. v. Trimble, 301 F.3d 482, 489
(6th Cir. 2002) (“As a threshold matter, we must determine whether the Treasurer and the
Administrator are entitled to Eleventh Amendment immunity.”); Johnson v. Univ. of Cincinnati, 215
F.3d 561, 570 (6th Cir. 2000) (“We first address Defendants’ Eleventh Amendment immunity
defense because this defense raises a question of federal jurisdiction.”); Wells v. Brown, 891 F.2d
591, 592-93 (6th Cir. 1989) (“We are required to decide [the Eleventh Amendment] issue before we
decide the merits”).
Moreover, Heike argues that when a court dismisses a claim for lack of subject matter
jurisdiction, res judicata does not act as a bar to a subsequent claim based on the same alleged
wrongs. Holloway v. Brush, 220 F.3d 767, 778 (6th Cir. 2000) (“The basic rule that dismissal for
lack of subject matter jurisdiction does not preclude a second action on the same claim is well
settled”). Thus, the Court decided in Heike I that, based on sovereign immunity, the Court lacked
subject matter jurisdiction over the Board of Trustees which cannot now preclude a different action
against the same defendant for which the Court does have subject matter jurisdiction. Heike also
asserts that because Title VI and Title IX cases can only be brought against institutions and not
individuals, whether or not the Board of Trustees was a “person” capable of being sued under § 1983

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cannot be determinative of Heike’s claims under Title VI and Title IX. Because there was no
decision on the merits of the claims against the Board of Trustees that Heike brings in the instant
action, Heike contends that Defendants have not established an essential element of res judicata.
Defendants reply that Heike is incorrect in contending that the Court’s September 2, 2009,
finding the Board of Trustees not subject to suit under § 1983 “is a recognition that, because of
sovereign immunity, a state is not a person capable of being sued under Section 1983.” (Pl.’s Resp.
to Def.s’ Mot. to Dismiss at 11.) In coming to this conclusion, Defendants emphasize that Heike
ignores that the Court held in Heike I that dismissal of the Board of Trustees was appropriate under
Rule 12(b)(6) both because of sovereign immunity and because the Board of Trustees is not a person
within the meaning of § 1983. Heike does not address the latter portion of this holding. Defendants
also highlight that Heike does not recognize the Court’s May 3, 2010 order granting summary
judgment as a final adjudication on the merits, which dismissed her remaining claims against the
individual defendants in their official capacities.
The appellate court made clear in Nair that the jurisdictional component of sovereign
immunity is not equivalent to subject-matter jurisdiction in that a Court cannot raise the issue of
sovereign immunity sua sponte but is instead a defense available for which the entity asserting the
immunity has the burden of proof. Indeed, the only utility of categorizing sovereign immunity as
“jurisdictional” appears to be to preserve the rule that it may be raised at any time. See, e.g., State
Highway Commission of Missouri v. Volpe, 479 F.2d 1009 (8th Cir. 1973); Michigan Head Start
Directors Ass’n v. Butz, 397 F. Supp. 1124, 1134 (W.D. Mich. 1975). Instead, sovereign immunity
is better characterized as a bar to the issuance of a remedy to a plaintiff.
Aside from dismissing the Board of Trustee based on sovereign immunity, the Court also

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explicitly stated that the claims were being separately dismissed because the Board of Trustees was
not a “person” for the purposes of § 1983. The claims against the individual defendants in their
official capacities were similarly dismissed on the merits. As will be discussed below, the individual
defendants in their official capacities are privities of Defendants in the instant case. Because the
Court’s adjudication of the claims against the defendants in Heike I was based on Rule 12(b)(6) and
Rule 56, as well as the Board of Trustee’s sovereign immunity, the Court’s prior orders serve as a
“final adjudication on the merits” for the purposes of res judicata.
2.

Same Parties or Their Privities

Defendants also contend that the second element of res judicata is met in this case. It is
undisputed that the plaintiff at issue in this motion, Heike, is the same individual who brought the
previous action. Furthermore, the Board of Trustees was named as a defendant in Heike I.
Defendants believe that Heike purposefully identified CMU as a separate defendant, jointly
and severally with the Board of Trustees, in the present lawsuit. Defendants contend this was done
to avoid dismissal of the present action for including the same parties as the previous action.
However, under Michigan law the Board of Trustees of the University is the University. Mich.
Comp. Laws § 390.551 and Mich. Const. 1963, art. 8 sec. 6 state that CMU shall be governed by
a “board of control,” whose members are appointed by the Governor. Further, § 390.555 defines
the board as a body politic and corporate, and gives the board the authority to “sue and be sued.” See
also Paquin v. Northern Michigan University, 79 Mich. App. 605, 608-610 (1977). As a result, any
claim against the Board of Trustees is, in effect, a suit against CMU itself. Defendants contend that
Heike cannot avoid the application of res judicata simply by naming “Central Michigan University”
as if it were a separate legal entity capable of being sued. Furthermore, even if CMU were a separate

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legal entity capable of being sued, Defendants argue it would clearly be in privity with the Board
of Trustees.
In addition, the Board of Trustees is in privity with its officials, Dave Heeke, Sue Guevara,
and Patricia Pickler, who were all sued in their “official capacities” in the previous case. [09-10427
Dkt. #1 ¶¶ 6-8]. More specifically, Coach Guevara was sued in her official capacity as head coach
of the women’s basketball program, AD Heeke was sued in his official capacity as the chief
administrator and executive of the Athletics Department, and Pickler was sued in her official
capacity as Assistant Director of the Office of Scholarships and Financial Aid. Heike’s complaint
in Heike I alleged that the individual defendants, by virtue of their positions, were policy-making
and decision-making officials for the Board of Trustees. [09-10427 Dkt. #1 ¶¶ 6-8].
“A government official sued in his or her official capacity is considered to be in privity with
the government,” such that “a judgment for or against an official will preclude a subsequent action
on the same claim by or against . . . [an] agency of the same government.” Crawford v. Charbot,
202 F.R.D. 223, 227 (W.D. Mich. 1998) (quoting Moore’s Federal Practice 3d § 131.40[3][e][ii]);
see also Pittman v. Michigan Corrs. Org., 123 F. App’x 637, 640 (6th Cir. 2005). Furthermore,
official-capacity suits “generally represent only another way of pleading an action against an entity
of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985). Defendants argue
that because both actions involve the same parties and/or the privities of the Board of Trustees, this
element for res judicata is satisfied.
Heike responds that the pending action does not involve the same parties or privities as the
prior action. First, Heike contends that the individual defendants in Heike I who were sued in their
official capacities are the privities of the Board of Trustees but the individual defendants, in their

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individual capacities, are not the privities of the Board of Trustees. The Sixth Circuit has held that
[T]he rule of differing capacities provides that “[a] party appearing in an action in
one capacity, individual or representative, is not thereby bound by or entitled to the
benefits of the rules of res judicata in a subsequent action in which he appears in
another capacity.” Restatement Second of Judgments § 36(2) (1982). The rule of
differing capacities generally operates to allow a subsequent individual capacity suit
against a governmental official even where a prior suit alleged an official capacity
claim against the same official. See Wilkins [v. Jakeway], 183 F.3d at 534-35
(recognizing the distinction between individual and official capacity claims and
applying the rule of differing capacities-albeit without explicitly referring to the
rule); see also Warnock v. Pecos County, 116 F.3d 776 (5th Cir.1997) (holding that
a prior suit against a municipality does not bar a later suit against local officials in
their individual capacity); Conner v. Reinhard, 847 F.2d 384, 395 (7th Cir.) (holding
that a prior suit against a municipality does not bar a subsequent suit against officials
individually because official capacity and personal capacity suits involve different
legal theories and defenses), cert. denied, 488 U.S. 856, 109 S. Ct. 147, 102 L.Ed.2d
118 (1988); Headley v. Bacon, 828 F.2d 1272, 1277-79 (8th Cir.1987)
(distinguishing privity between principal and agent from privity between a
governmental entity and officials sued in their individual capacities). See also
Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 188 (5th Cir.1990) (“Res
judicata does not apply when the parties appear in one action in a representative
capacity and in a subsequent action in an individual capacity.”).
Mitchell v. Chapman, 343 F.3d 811, 823 (6th Cir. 2003). Heike argues that because the individual
defendants in Heike I were also sued in their individual capacities they cannot stand as privities for
the Board of Trustees. Heike further contends that the Court’s decision dismissing the Board of
Trustees based on sovereign immunity resulted in the suit being maintained against the individual
defendants solely in their individual capacities.
Heike’s response, however, ignores the fact that the Board of Trustees was a defendant to
the prior suit. Heike also does not acknowledge that the individual defendants were also sued in
their official capacities and not solely in their individual capacities. The rule of “differing capacities”
does not apply to the instant case. Heike is not seeking to pursue a second lawsuit against individual
defendants in one capacity after first pursuing claims against them in a different capacity. As a

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result, the individual defendants in Heike I who were sued in their official capacity at CMU are in
privity with CMU and the Board of Trustees. Because “a judgment for or against an official will
preclude a subsequent action on the same claim by or against . . . [an] agency of the same
government,” Crawford, 202 F.R.D. at 227; see also Pittman, 123 F. App’x at 640, and because the
instant case alleges claims against parties or their privities that are present in both suits, this element
of res judicata is satisfied.
3.

Issues Actually Litigated or Issues that Should Have Been Litigated

Lastly, Defendants contend that the third and fourth elements of res judicata have been met
in this case, and discuss the elements together. For the sake of clarity, the elements have been
separated in this opinion. The third element recognizes that having failed to recover on one theory,
a litigant cannot attempt to relitigate the same claim under a different theory of recovery. Poe v.
John Deere Co., 695 F.2d 1103, 1105 (8th Cir. 1982); see also Restatement (Second) of Judgments
§ 25 (providing that res judicata applies “even though the plaintiff is prepared in the second action
. . . [t]o present evidence or grounds or theories of the case not presented in the first action, or . . .
[t]o seek remedies . . . not demanded in the first action.”). In other words, the third element of res
judicata is met when the second action raises an issue which “should have been litigated” in the first
action. Walker, 25 F. App’x at 336.
To determine whether a claim “should have been litigated” in an earlier action, the Sixth
Circuit has stated that “[w]here the two causes of action arise from the ‘same transaction, or series
of transactions,’ a plaintiff should have litigated both causes in the first action and may not litigate
the second issue later.” Holder v. City of Cleveland, 287 F. App’x 468, 471 (6th Cir. 2008) (citing
Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 529 (6th Cir. 2006). In Holder, the plaintiff, a city

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employee, brought an action against the city under the Federal Equal Pay Act, and summary
judgment was granted in favor of the city. The employee then brought a second action against the
city alleging race and gender discrimination under Title VII and 42 U.S.C. § 1981. Id. at 469-70. In
affirming dismissal of the second action on grounds of res judicata, the Sixth Circuit held that both
suits arose from the same facts–disparate pay–and that it was only the legal theory of the plaintiff’s
claims that differed. Id. at 471 (recognizing that both claims involved the same employment, the
same supervisor, and the same circumstances). While the plaintiff argued that she did not have her
Equal Employment Opportunity Commission right-to-sue letter at the time she initially filed the first
suit, the Court concluded that res judicata nonetheless barred the subsequent action because the
plaintiff “sat on her rights” when she failed to later amend her complaint to add her race
discrimination claims. Id.
Defendants contend that Heike similarly should have raised Title VI and Title IX claims
against the Board of Trustees in the first action if she thought they were viable causes of action.
Instead, Heike “sat on her rights.” Heike’s Title VI and Title IX claims involve the same set of
circumstances surrounding Heike’s experience on CMU’s women’s basketball team, over the same
period of time during the 2007-08 season, and against the same or similar defendants, with only
Heike’s legal theories changing. Defendants emphasize that Heike’s alleged Title VI and Title IX
claims would have arisen before the first action was filed, and could have been brought before the
Court at any time. Heike also stated in a supplemental brief in Heike I that she intended to seek
leave to amend her complaint to assert a claim under Title IX, but never did so. Additionally,
Defendants assert that Heike’s Title VI claim is indistinguishable from her § 1983 claim against
CMU alleging violations of the Equal Protection Clause of the Fourteenth Amendment based on

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race. According to Defendants, Heike’s voluntarily choosing not to amend her complaint in Heike
I to add these claims illustrates that she should have asserted the claims in the first action.
In other words, Heike chose to assert various claims against the Board of Trustees and its
officials in their official capacity, including discrimination claims under 42 U.S.C. § 1983, and
sought both monetary damages and prospective relief in Heike I. Heike chose not to assert her Title
VI and Title IX claims against CMU even though those claims were based on the “same transaction,
or series of transactions.” Heike’s § 1983 claims against the Board of Trustees were then dismissed,
at least in part, because she failed to state a claim. At that point, Heike was aware that her
discrimination claims against the Board of Trustees could not be asserted under § 1983 to the extent
she sought monetary relief. However, rather than amend her complaint to add the Title VI and Title
IX claims, Heike chose to continue to litigate her discrimination claims against CMU by proceeding
against its employees in their official capacities. As Defendants previously stated, official-capacity
suits merely represent “another way of pleading an action against an entity of which an officer is an
agent.” Graham, 473 U.S. at 165. Defendants believe that it was only after it began to appear that
this Court was on the cusp of granting summary judgment of the official capacity claims that Heike
began to rethink this strategy and the instant case presents a text-book example of when res judicata
should apply.
Heike responds that she could not have brought the instant claims in Heike I, because at the
time she could have raised these claims, the Board of Trustees was no longer a party to the Heike
I lawsuit. Heike contends that addition of the claims would not have been a simple matter of
amending the complaint. Instead, additional claims would have to have been added by Heike and
a new plaintiff, Brown, against a defendant who was no longer a party to the lawsuit. The Title VI

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and Title IX claims could not have been asserted against the individual defendants who were the
only defendants to the Heike I lawsuit after the Board of Trustees was dismissed based on sovereign
immunity. Such a pleading is not an “amendment” of an existing complaint; it is a completely
different lawsuit according to Heike, so she proceeded to file a different lawsuit while the Heike I
suit was pending against the individual defendants for claims under § 1983 and state law. Although
Heike indicated in a supplemental pleading in the Heike I case that she intended to amend her
complaint to add these claims, Heike believed there was no basis for an amendment upon further
investigation. This necessitated the filing of a separate action.
Heike asserts that if she had sought to amend the complaint to add her Title VI and Title IX
claims against the Board of Trustees, the individual defendants would have opposed such an
amendment as unnecessarily complicating the suit, and insisted that Heike bring those claims against
the Board of Trustees in a separate action. Furthermore, Heike emphasizes that only claims under
§ 1983 against the individuals in their “official capacities” for prospective injunctive relief survived
dismissal in accordance with Ex Parte Young. Heike does not explain how being precluded from
pursuing a monetary remedy against the individual defendants in their official capacity is legally
significant to the analysis.
Heike contends that Defendants’ speculation as to why she filed a second lawsuit is untrue.
Heike beleives that a motion for leave to amend the complaint in Heike I to assert the claims brought
in the instant action would most likely have been denied by the Court because of her delay in
including the additional legal theories in the case. As a result, Heike requests that the Court deny
Defendants’ motion for judgment on the pleadings because they have not established this element
in order to invoke res judicata.

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Defendants argue in their reply that the prior adjudication still acts as a bar even though
Heike is seeking monetary relief in this case. Res judicata extinguishes a claim by the plaintiff
against the defendant even though the plaintiff is seeking remedies or forms of relief not demanded
in the first action. See Huck on Behalf of Sea Air Shuttle Corp. v. Dawson, 106 F.3d 45, 49-50 (3rd
Cir. 1997) (quoting Restatement (Second) of Judgments, § 25). In Huck, the Court rejected the
argument that res judicata did not apply because the plaintiff sought monetary damages in the
subsequent litigation in contrast to the injunctive relief that he sought in the prior action. Id. (stating
that such an argument was “without merit” and “contrary to the law”).
Furthermore, Defendants disagree with Heike’s argument that she could not have asserted
the Title VI and Title IX claims in Heike I because at the time she could have raised those claims
the Board of Trustees was no longer a party. Defendants emphasize that there was nothing
preventing Heike from asserting her Title VI and Title IX claims in her original complaint because
the claims are based on the same facts as her § 1983 claims. Heike’s Title VI and Title IX claims
clearly accrued before she filed her original complaint in Heike I, and whether Heike could have
successfully amended her complaint is irrelevant.
Heike could have unquestionably made all of the same allegations and claims she makes in
the current lawsuit in the earlier lawsuit. That Heike elected to wait until after the Board of Trustees
was dismissed based on sovereign immunity is inapposite. Here, the two causes of action arise from
the “same transaction, or series of transactions,” and Heike should have litigated both causes in the
first action. Holder, 287 F. App’x at 471 (6th Cir. 2008). There is nothing before the Court to
suggest that Heike was somehow precluded from asserting her Title VI and Title IX claims, and
Heike herself makes this very clear by pleading nearly identical facts to those contained in the Heike

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I complaint. Heike cannot now litigate new legal theories predicated on the same facts as those in
the first lawsuit. Accordingly, the third element of res judicata has been satisfied.
4.

Identity of Claims

For the fourth element to be satisfied, “there must be an identity of the causes of action that
is, an identity of the facts creating the right of action and of the evidence necessary to sustain each
action.” Westwood Chemical Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981). A cursory review
of the complaint filed in Heike I shows that it involves nearly identical allegations as those asserted
in the instant complaint and the operative facts in the instant complaint mirror those from the
complaint in Heike I. In particular, Defendants note that paragraphs 4, 5, 9-25, 28-30, 32, 34-35,
37-38, 41-43, 45-54, 56-57, 59, 61-95, 98-100, 101-107, 108-111, 112, and 120-121 from the
complaint in Heike I are either identical or virtually identical to paragraphs 4, 6, 9-25, 41-43, 44,
47-48, 50-51, 55-57, 64-73,83-84,88, 104-138, 140-142, 145-151, 153-156, 158, and 176-177,
respectively, from the complaint in the present action. Defendants argue that there is plainly an
“identity of claims,” and all four elements of res judicata have thus been met. As a result,
Defendants request that Heike’s claims against the Board of Trustees and CMU be dismissed.
Heike submits that in order to have an identity of claims, there must be an identity of the
evidence necessary to sustain each action and not just an identity of facts. In the immediate case,
Heike asserts claims under Title VI and Title IX which involve different burdens of proof and
proffers of evidence than the claims in Heike I. Heike does not provide any legal authority for this
contention. Defendants assert in their reply that Heike cannot avoid the preclusive effects of res
judicata by couching her current claims under legal theories with different elements where the facts
underlying the claims are identical. See Restatement (Second) of Judgments § 25.

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“Identity of claims” does not require there to be identical elements under the law or that the
evidence required to prove the claims at issue be identical. Instead, identity of claims mean “an
identity of the facts and events creating the right of action and of the evidence necessary to sustain
each action.” Sanders Confectionery Prods., Inc. v. Heller Fin., Inc., 973 F.2d 474, 484 (6th
Cir.1992); see also Browning v. Levy, 283 F.3d 761, 773-74 (6th Cir. 2002) (finding that an identity
of claims is satisfied if the claims arose out of the same transaction or series of transactions, or if the
claims arose out of the same core of operative facts). Here, both actions concern Heike’s nonrenewal of her scholarship and dismissal from the women’s basketball team. Both actions are based
on the same core set of facts. There are no new material facts in the instant complaint. Instead, Heike
simply seeks to argue a different theory for recovery. Because the claims in the instant case arose
out of the same transactions or series of transactions, which is evidenced by Heike including
identical factual allegations in both complaints, the fourth requirement of identity of claims is
satisfied in order to invoke the doctrine of res judicata. Accordingly, Defendants’ motion for
judgment on the pleadings will be granted and Heike’s claims will be dismissed from the instant suit.

B.

Collateral Estoppel

Collateral estoppel, or issue preclusion, “bars ‘successive litigation of an issue of fact or law
actually litigated and resolved in a valid court determination essential to the prior judgment,’ even
if the issue recurs in the context of a different claim.” Id. (quoting New Hampshire, 532 U.S. at
748-49). Issue preclusion bars relitigation of an issue when: (1) the identical issue was raised and
actually litigated in a prior proceeding; (2) the determination of the issue was necessary to the
outcome of the prior proceeding; (3) the prior proceeding resulted in a final judgment on the merits;

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and (4) the party against whom issue preclusion is sought had a full and fair opportunity to litigate
the issue in the prior proceeding. Aircraft Braking Sys. Corp. v. Local 856, Int’l Union, United Auto.,
Aerospace and Agric. Implement Workers, UAW, 97 F.3d 155, 161 (6th Cir. 1996). Defendants
argue that Heike’s claims are barred by collateral estoppel in addition to res judicata, which will be
discussed below.
More specifically, Defendants contend that the Court’s May 3, 2010 order granting summary
judgment to the individual defendants in Heike I resolved, among other things, all remaining issues
related to Heike’s § 1983 Equal Protection claims. In the order, the Court determined that there was
no genuine issue of material fact that any of the individual Defendants, in either their official and
individual capacities, discriminated against Heike based on her race or sexual preference. That
determination was necessary to resolving the motion for summary judgment, resulted in a final
judgment on the merits, and afforded Heike a full and fair opportunity to litigate the exact same
discrimination issue presented in the immediate case.
In other words, Defendants assert that the precise issue of whether Heike suffered any type
of discrimination at CMU arising out of her experience on the women’s basketball team, including
the decision to not renew her scholarship, has already been litigated and thus collateral estoppel bars
relitigation of these issues. Chakan v. City of Detroit, 998 F. Supp. 779, 783-84 (1998) (holding that
collateral estoppel barred an employee from asserting claims for race discrimination under Title VII
against his municipal employer in federal court, where a previous state court action found in favor
of the employer on the employee’s race claims under Michigan’s Elliott-Larsen Civil Rights Act).
Defendants request that Heike be dismissed as a party to the instant case as a result.
As an initial matter, Heike contends that there was no adjudication of any matter as to the

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Board of Trustees because it was dismissed from Heike I based on a lack of subject matter
jurisdiction. Because there was no litigation of any issues, there cannot now be “relitigation” of any
matter as to the Board of Trustees. Furthermore, as Heike previously argued, because the individual
defendants in their individual capacities are not privities of the Board of Trustees, and the instant
case cannot be considered relitigating the same issues. Both of these arguments ignore the separate
ruling that the Board of Trustees was not a “person” for purposes of suit under § 1983 and that the
individual defendants were sued in their official, not solely individual, capacities.
Moreover, Heike contends that collateral estoppel is inapplicable because the precise issues
raised in the instant case were not raised and actually litigated in Heike I. The elements of Heike’s
causes of action under Titles VI and IX against the university differ significantly from that of her
claim that the individual defendants deprived her of her rights to due process and equal protection.
Heike submits that a Title VI claim is more akin to a First Amendment retaliation claim or a
disparate impact discrimination claim than it is to a claim alleging deprivation of Fourteenth
Amendment rights brought under § 1983. Likewise, a Title IX case involves an allegation that a
school–not an individual–failed to take corrective action or investigate claims or a deliberate
indifference by the school to the actions of which a plaintiff complains. This, too, differs
significantly from the claim that Heike brought in Heike I that the individual defendants deprived
her of her Fourteenth Amendment rights by their actions. Thus, defendants cannot demonstrate that
the precise issue raised in the case at bar was actually litigated in Heike I.
Dismissal based on collateral estoppel would be inappropriate in the instant case because the
precise issue raised in the present case was not raised and actually litigated in Heike I. An issue for
the purposes of collateral estoppel is

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a single, certain and material point arising out of the allegations and contentions of
the parties. It may concern only the existence or nonexistence of certain facts, or it
may concern the legal significance of those facts. If the issues are merely evidentiary,
they need only deal with the same past events to be considered identical. However,
if they concern the legal significance of those facts, the legal standards to be applied
must also be identical; different legal standards as applied to the same set of facts
create different issues.
Overseas Motors, Inc. v. Import Motors Ltd., 375 F. Supp. 499, 518 n.66a (E.D. Mich. 1974)
(emphasis added) (citations and internal quotation marks omitted), aff’d 519 F.2d 119 (6th Cir.
1975). Heike’s argument regarding identity of claims as it pertains to res judicata is helpful on this
point. To succeed on a Title VI claim, a plaintiff must prove that: (1) the plaintiff was engaged in
activity protected by Title VI; (2) this exercise of protected rights was known to the defendants; (3)
the defendants thereafter took a materially adverse action against the plaintiff; and (4) there was a
causal connection between the protected activity and the materially adverse action. Title VI requires
only that a plaintiff prove disparate impact in the application of federal funds. Jennings v. Alexander,
715 F.2d 1036, 1041 (6th Cir. 1983), rev’d sub nom. Alexander v. Choate, 469 U.S. 287 (1985).
The Sixth Circuit has stated that, for there to be liability under Title IX, a plaintiff must
establish that: (1) the sexual harassment was so severe, pervasive, and objectively offensive that it
could be said to deprive the plaintiff of access to the educational opportunities or benefits provided
by the funding recipient; (2) the funding recipient had actual knowledge of the sexual harassment;
and (3) the funding recipient was deliberately indifferent to the harassment. Soper v. Hoben, 195
F.3d 845, 854 (6th Cir. 1999). Under the Office for Civil Rights Title IX Guidelines, a school
“should take immediate and appropriate steps to investigate and otherwise determine what occurred
and take steps reasonably calculated to end any harassment, eliminate a hostile environment if one
has been created, and prevent harassment from occurring again.” Sexual Harassment Guidance:

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Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg.
12,034, 12,042 (March 13, 1997).
Even where particular activities and particular defendants are subject to both Title IX and
Equal Protection Clause claims, the standards for establishing liability are different. For example,
a Title IX plaintiff can establish liability by showing that a single school administrator with authority
to take corrective action responded to harassment with deliberate indifference. Gebser v. Lago Vista
Indep. School Dist., 524 U.S. 274, 290 (1998). Yet a plaintiff stating a similar claim under § 1983
for violation of the Equal Protection Clause by a school or other governmental entity must show that
the harassment was the result of governmental custom, policy, or practice. Fitzgerald v. Barnstable
Sch. Comm., 555 U.S. 246 (2009) (citing Monell v. New York City Dept. of Social Servs., 436 U.S.
658, 694 (1978)).
An Equal Protection claim requires a plaintiff to demonstrate that a defendant treated the
plaintiff differently and adversely compared to those who are similarly-situated to the plaintiff, and
that this disparate treatment burdens a fundamental right, targets a suspect class, or has no rational
basis. Club Italia Soccer & Sports Organization, Inc. v. Charter Tp. of Shelby, 470 F.3d 286, 298
(6th Cir. 2006). There is no such requirement for claims under either Title VI or Title IX. Likewise,
under Title VI or Title IX, there is no requirement that the plaintiff establish animus or ill-will, or
that the government action lacked a rational basis under a class-of-one theory pursuant to
Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
The legal standards in the instant case are not identical to those applied in Heike I. The
similarity of the claims as both seeking a remedy for sexual orientation, race, and gender
discrimination is insufficient to bar Heike’s claims based on collateral estoppel. Defendants have

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thus not satisfied the first element for dismissal based on collateral estoppel because the precise
issue in the present case was not raised and actually litigated in the prior proceeding.
IV.

Conclusion

Accordingly, it is ORDERED that Defendants’ motion to dismiss [Dkt. #18] is
CONSTRUED as a motion for judgment on the pleadings.
It is further ORDERED that the hearing scheduled for May 11, 2011, is CANCELED.
It is further ORDERED that Defendants’ motion for judgment on the pleadings [Dkt. #18]
is GRANTED.
It is further ORDERED that Plaintiff Heike’s claims are DISMISSED WITH
PREJUDICE.
It is further ORDERED that Plaintiffs’ motion to stay proceedings [Dkt. #20] is DENIED
AS MOOT.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: July 1, 2011
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on July 1, 2011.
s/Michael Williams
Relief Case Manager

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