Benison et al v. Ross et al
Filing
26
OPINION and ORDER granting 16 MOTION for Summary Judgment and dismissing 1 Complaint. Signed by District Judge Thomas L. Ludington. (SGam)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
KATHLEEN C. BENISON and
CHRISTOPHER BENISON,
Plaintiffs,
Case No. 12-cv-15226
v
Honorable Thomas L. Ludington
GEORGE ROSS, E. GARY SHAPIRO, IAN R.
DAVISON,
Defendants.
__________________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Plaintiffs Kathleen and Christopher Benison brought a § 1983 action against three Central
Michigan University officials claiming that the school unlawfully retaliated against them for
exercising their First Amendment rights.
On August 12, 2013, Defendants filed a motion for summary judgment. Because
Plaintiffs Kathleen Benison and Christopher Benison have not established a prima facie case for
First Amendment retaliation, the Court will grant Defendants’ motion for summary judgment.
I
Plaintiffs’ case stems from Christopher Benison’s participation in CMU’s Academic
Senate in December 2011. Mr. Benison, then a student at CMU, co-sponsored a motion for a no
confidence vote in President George Ross and Provost E. Gary Shapiro. The no confidence vote
passed in the Senate and was ultimately endorsed by 19 university departments.
Plaintiffs allege that they suffered several harmful consequences in retaliation for Mr.
Benison’s role in the no confidence vote. In particular, Mr. Benison claims his transcript was
withheld from him, and Kathleen Benison, formerly a professor of Geology at CMU, claims that
she was denied a promotion and forced to return compensation paid to her in retaliation for her
husband’s no confidence vote.
A
Central Michigan University hired Dr. Kathleen Benison in 1997 as an Assistant
Professor in the Department of Geology. Dr. Benison was promoted to Associate Professor in
2003 and tenured Professor in 2008. Pls.’s Resp., Ex. 4. During her employment, Dr. Benison
received multiple National Science Foundation grants, published in over thirty publications, and
received several university awards, including the Excellence in Teaching Award, the Provost’s
Award for Outstanding Research and Creative Activity, and the President’s Award for
Outstanding Research and Creative Activity. Resp. Ex. 2.
Despite her teaching and research awards, Dr. Sven Morgan, the Chair of the Earth and
Science Department, believed that Dr. Benison was not fulfilling her service obligations in 2010.
Defs.’ Mot. Summ. J. Ex. 3 at 3. Dr. Morgan stated: “[I]n my view, Dr. Benison was not
contributing leadership to Department service activities, which caused junior faculty members,
who had not yet achieved tenure or who were still Associate Professors to do extra service
activities.” Id. Dr. Morgan identified one example in particular: Dr. Morgan had asked Dr.
Benison and another senior faculty member to complete the WEAVE assessment plan for
CMU’s online system in September 2010. Id. at 2-3. When Dr. Benison refused, Dr. Morgan
reminded her that the EAS Department bylaws require professors to demonstrate “high quality
leadership in service activities” to receive further promotion, including salary supplements. Id. at
3.
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About that same time in fall 2010, Dr. Benison applied for sabbatical leave, which was
approved for the Spring 2012 semester. Resp. Ex. 8. Provost Shapiro informed Dr. Benison that
she would be required “[t]o return to CMU for at least one academic year following the leave or
to refund the salary and benefits paid by CMU during the leave.” Id. On January 13, 2011, Dr.
Benison signed the “Agreement to be Signed by Recipient of Leave of Absence with
Compensation”, in which Dr. Benison agreed to “return to [CMU] . . . for one full contractual
period following the termination of my leave or to refund the compensation paid to me by CMU
for the period of my leave.” Resp. Ex. 10.
During the 2011 Fall Semester, CMU relieved Dr. Benison from all her teaching
assignments for the semester so that she could focus on research. Mot. Summ. J. Ex. 3. Even
though Dr. Benison was not teaching, Dr. Morgan believed that Dr. Benison was not meeting her
service requirements for the semester based on two events. First, Dr. Benison refused to serve as
the faculty advisor for the CMU Geology Club. Mot. Summ. J. Ex. 32. Second, Dr. Benison
asked whether she should attend the EAS Department’s retreat, which all tenure track faculty are
expected to attend. Mot. Summ. J. Ex. 33. Dr. Morgan alerted Dean Davison to his concerns, and
Dean Davison reminded Dr. Benison that she was still expected to participate in service activities
during the 2011 Fall Semester. Mot. Summ. J. Ex. 34.
B
Plaintiff Christopher Benison is Dr. Benison’s husband and was a student at CMU. Mr.
Benison participated in the creation of a new student organization called Students for Faculty and
was a member of the Academic Senate. Compl. ¶ 11.
As a member of the Academic Senate, Mr. Benison and another student submitted a
motion of “no confidence” against CMU President George Ross and Provost E. Gary Shapiro.
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Resp. Ex. 11. The motion asserted that President Ross and Provost Shapiro “have engaged in
communication practices that undermine transparency and accountability; have effectively
interfered with the practice of shared governance; and thus have eroded mutual trust among the
administration, faculty, and students.” Id. The Academic Senate passed the motion on December
6, 2011.
The CMU Board of Trustees addressed the vote of “no confidence” at a meeting two days
later. Some of the CMU Deans, including Dean Ian R. Davison, presented a letter supporting
President Ross and Vice President Shapiro at the meeting:
In view of the narrow no-confidence vote at the Academic Senate on Tuesday,
December 6th, 2011, we, the undersigned Deans of the seven academic colleges,
believe it is important to communicate immediately, and as forcefully as possible,
the following to the Board of Trustees of Central Michigan University. President
George E. Ross and Provost and Executive Vice President Dr. E. Gary Shapiro
have our complete confidence and support . . . We are all honored to work with
individuals of such high caliber and any effort to undermine their leadership at
CMU is detrimental to the future of this institution.
Resp. Ex. 16.
C
Dr. Benison’s sabbatical began on January 9, 2012. Although she was not required to, Dr.
Benison continued to perform some of her usual duties as a professor such as supervising
research students and representing CMU at professional meetings. Compl. ¶ 16.
A few days into the sabbatical semester, Dr. Benison applied for a promotional salary
supplement available to professors who apply and meet certain criteria. Resp. Ex. 17. The
Faculty Association Agreement governs the process by which faculty apply for promotions. The
application process includes several stages: first, the applicant’s academic department will judge
the extent to which the applicant has fulfilled the requirements for promotion. Mot. Summ. J. Ex.
12 at 10. Next, the department’s recommendation is forwarded to the college dean, who will
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make an independent review and recommendation on the application. Id. at 11. Then, the
Provost, with input from the President, will review the application and render an independent
recommendation on the application. Id. at 12. Finally, the Provost’s recommendation is
forwarded to the Board of Trustees, who approve of or disagree with the recommendations. Id. at
12.
Dr. Benison began the application process on January 16, 2012, by submitting her
twenty-seven page application to the EAS Department. Resp. Ex. 17. At the EAS Department
faculty meeting on January 27, 2012, eight of nine faculty members voted that Dr. Benison had
not fulfilled her service obligations, which is one of the criteria for promotion. Resp. Ex. 18. The
majority opinion stated Dr. Benison had not contributed high quality leadership; instead, Dr.
Benison had engaged in “short-term, time limited commitments.” Mot. Summ. J. Ex. 20. The
faculty then voted six to three against Dr. Benison’s application for a salary supplement. Resp.
Ex. 18.
After the EAS Department voted against her application for a salary increase, Dr.
Benison began the appeals process outlined in the Faculty Association Agreement. Dr. Benison
submitted her appeal paperwork to Dean Davison, who was tasked with reviewing the EAS
Department’s recommendation. In addition to submitting a nine-page letter outlining her
disagreements with the EAS Department’s conclusions, Dr. Benison also procured a faculty
advocate to represent her during the appeal. Mot. Summ. J. Ex. 21 & 22.
On April 12, 2012, Dean Davison issued his recommendation that Dr. Benison’s
application for a salary increase should be denied. Specifically, Dean Davison found “no
compelling evidence to support overturning the negative recommendation of the department . . .
.” Mot. Summ. J. Ex. 25 at 3.
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After Dean Davison issued his negative recommendation, Dr. Benison requested an inperson meeting with him to “address errors of fact” in his recommendation. After the meeting,
Dean Davison affirmed his previous recommendation to deny the salary increase on May 7,
2012. Mot. Summ. J., Ex. 28. Dean Davison’s recommendation explains:
Despite the representations made by Dr. Benison as well as her advocate (a
faculty member from another department) to my advisory committee, and Dr.
Benison’s long rebuttal to the department recommendation (which is in my
opinion consistent with the department’s criticism regarding an avoidance of
onerous but critical service and a focus on those activities that require short-term
or limited time commitments), I find no compelling evidence to support
overturning the negative recommendation of the department . . . .
Id.
Dr. Benison appealed Dean Davison’s recommendation to Provost Shapiro, who was
tasked with reviewing Dr. Benison’s application and making a decision on whether to grant or
deny the salary increase. Dr. Benison submitted a three-page appeal of Dean Davison’s
recommendation on May 14, 2012, one week after Dean Davison affirmed his recommendation.
Provost Shapiro confirmed that he received her appeal in an e-mail dated May 15, 2012. MSJ Ex.
30.
Two days after submitting her appeal, Dr. Benison told a colleague that she and her
husband had “decided to move to WV” so that she could take a job at the West Virginia
University. MSJ Ex. 29. By May 17, 2012, Dr. Benison had given a verbal commitment to work
at WVU in the fall of 2012. MSJ Ex. 37.
Dr. Benison tendered her letter of resignation on June 6, 2012. MSJ Ex. 40. At that time,
Provost Shapiro had not yet made a final determination on whether to grant or deny Dr.
Benison’s application for a salary increase. Provost Shapiro ultimately considered the issue moot
because Dr. Benison resigned. Mot. Summ. J., Ex. 11 at 85.
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D
On June 21, 2012, Dean Davison informed Dr. Benison that she had breached her
obligations under her 2012 Sabbatical Agreement by resigning. Dean Davison reminded Dr.
Benison that “[s]abbaticals are awarded contingent on the faculty member’s agreement to return
to their regular assignment for at least one year (12 months).” Mot. Summ. J. Ex. 45. Dean
Davison stated that the total compensation owed to the university was $58,662.25, which
included Dr. Benison’s salary and benefits from the Spring 2012 semester. This total did not,
however, include a Spring 2012 tuition waiver for her husband valued at $4,296.00. Mot. Summ.
J. Ex. 46.
When Dr. Benison refused to make payment arrangements, CMU filed a lawsuit in state
court to recover $62, 958.25 (the amount of Dr. Benison’s compensation for the spring semester
plus the value of her husband’s tuition waiver). Resp. 18. CMU also placed a hold on
Christopher Benison’s academic transcript. Id. at 28.
II
A motion for summary judgment should be granted if the “movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving party has the initial burden of identifying where to look
in the record for evidence “which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the
opposing party who must “set out specific facts showing a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted). The Court must view the
evidence and draw all reasonable inferences in favor of the non-movant and determine “whether
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the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Id. at 251-52.
III
Section 1983 provides a cause of action against any person who, acting under color of
state law, abridges rights created by the Constitution and laws of the United States. 42 U.S.C. §
1983; Neuens v. City of Columbus, 303 F.3d 667, 670 (6th Cir. 2002).
To establish a prima facie claim of First Amendment retaliation, Plaintiffs must
demonstrate that: (1) they engaged in constitutionally protected speech or conduct; (2) an
adverse action was taken against them that would deter a person of ordinary firmness from
continuing to engage in that conduct; and (3) there is a causal connection between elements one
and two—that is, the adverse action was motivated at least in part by their protected conduct.
Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 255 (6th Cir. 2006) (citing Thaddeus–
X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc)).
If Plaintiffs establish that their protected conduct was a motivating factor behind the
adverse action, the burden shifts to Defendants to show they would have taken the same action in
the absence of the protected activity. Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir. 1999)
(citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)). If Defendants
can make that showing, they are entitled to summary judgment. Thaddeus-X at 399.
A
As to the first element, the parties do not dispute that the Plaintiffs engaged in
constitutionally protected speech and conduct. Mr. Benison’s motion for a no confidence vote in
the Academic Senate is constitutionally protected speech. See Mihalick v. Cavanaugh, 26 F.
Supp. 2d 391, 396 (D. Conn. 1998) (holding a no confidence vote is entitled to protection under
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First Amendment); Gardetto v. Mason, 100 F.3d 803, 813 (10th Cir. 1996) (efforts to obtain no
confidence vote is conduct protected under First Amendment).
Dr. Benison, in turn, has set out a cognizable claim for retaliation by association. Dr.
Benison alleges Defendants retaliated against her because of her husband’s protected activity.
See Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011) (holding that an employee
whose employment was terminated after his fiancée, a co-employee, filed a complaint with the
EEOC had standing to pursue a Title VII retaliation claim). Accordingly, Dr. Benison may
maintain a third-party retaliation claim on the basis of her husband’s protected activity and has
therefore met the first element of her prima facie case.
B
As to the second element, Plaintiffs must show that they were subject to an adverse
action, which is an action that would “deter a person of ordinary firmness from continuing to
engage in that conduct.” Mezibov v. Allen, 411 F.3d 712, 717 (6th Cir. 2005) (citing ThaddeusX).
The third element of a First Amendment retaliation claim “requires the plaintiff to prove
a causal connection between the protected conduct and the adverse action. When assessing
motive in the context of a summary judgment motion, bare allegations of malice do not suffice to
establish a constitutional claim.” Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 399-400
(6th Cir. 2010) (internal quotations and citations omitted). A plaintiff must demonstrate that his
or her protected speech was a substantial or motivating factor in the adverse action taken by
defendant by pointing to specific, nonconclusory evidence reasonably linking his speech to the
adverse action. Vereecke at 399; Rodgers v. Banks, 344 F.3d 587, 602 (6th Cir. 2003). The Sixth
Circuit has interpreted this inquiry to mean that a substantial or motivating factor is “essentially
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but-for cause—without which the action being challenged simply would not have been taken.”
Vereecke at 400 (quoting Leonard v. Robinson, 477 F.3d 247, 355 (6th Cir. 2007).
The Sixth Circuit has cautioned that a plaintiff’s burden in demonstrating causation is not
“trivial” and that “the analysis of motive in retaliation claims utilizes a shifting burden that may
mean early dismissal.” Thaddeus-X at 399. If a plaintiff establishes a prima facie case of First
Amendment retaliation, the burden shifts to the defendant to show that he had a valid,
nonretaliatory reason for taking the adverse action. Vereecke at 401. “Once the plaintiff has met
his burden of establishing that his protected conduct was a motivating factor behind any harm,
the burden of production shifts to the defendant. If the defendant can show that he would have
taken the same action in the absence of the protected activity, he is entitled to prevail on
summary judgment.” Id. (quoting Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007)).
i
Dr. Benison claims she was subject to three adverse actions that were motivated by her
protected conduct: (1) she was denied a promotional salary increase, (2) CMU brought a suit to
recover her sabbatical salary in state court, and (3) she suffered a constructive discharge from her
job at CMU.
Dr. Benison’s first alleged adverse action—that she was denied a promotional salary
increase—is more appropriately subdivided into three separate acts. These three acts—(1) the
departmental vote against her application, (2) the delays in reviewing her application, and (3) the
breaches of the Faculty Association Agreement—form the foundation of her claim that she was
denied a promotional salary increase. Each action will be addressed individually to determine if
it is was an adverse action motivated by Mr. Benison’s no confidence vote.
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The term “adverse action” arose in the employment context and has traditionally referred
to actions such as “discharge, demotions, refusal to hire, nonrenewal of contracts, and failure to
promote.” Thaddeus-X at 396. The Sixth Circuit has held, however, that any action that would
deter a person of ordinary firmness from exercising protected conduct will suffice. Id. Moreover,
because “there is no justification for harassing people for exercising their constitutional rights,”
the deterrent effect of the adverse action need not be great to be actionable. Id. at 397. “The
plaintiff’s evidentiary burden is merely to establish the factual basis for his claim that the
retaliatory acts amounted to more than a de minimis injury.” Bell v. Johnson, 308 F.3d 594, 606
(6th Cir. 2002).
a
At the departmental level, Dr. Benison claims she suffered an adverse action when the
EAS Department voted against recommending her application for salary increase. A denial of a
promotion is an adverse employment action, and therefore Dr. Benison has established the
second element of her prima facie case regarding this claim. Lulaj v. Wackenhut Corp., 512 F.3d
760, 765 (6th Cir. 2008).
Dr. Benison has provided evidence that the departmental vote was motivated by her
husband’s no confidence vote, thereby meeting the third element of her prima facie case. Dr.
Benison asserts that her colleagues Dr. Leigh Orf and Dr. Sven Morgan “led the charge” in the
departmental meeting because they were angry about her husband’s no confidence vote. Mot.
Summ. J. Ex. 1 at 61. She alleges that Dr. Orf, an academic senator who was present at the noconfidence vote, persuaded other EAS Department members to vote against Dr. Benison’s salary
increase. Dr. Benison states she overheard Dr. Orf repeatedly state that “he was going to teach
[Dr. Benison] a lesson” after the no confidence vote; she also claims he made “negative” remarks
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during the departmental meeting. Mot. Summ. J. Ex. 1 at 40; Ex. 14 at 20. In addition, she claims
that Dr. Morgan also told her several times that he was going to “teach her a lesson.” Mot.
Summ. J. Ex. 1 at 45. These statements, taken together, are sufficient to create a triable issue as
to whether the EAS Department’s negative recommendation was motivated by the no confidence
vote.
Although Dr. Benison has established a prima facie case for retaliation based on the EAS
Department’s negative recommendation, the Defendants have shown that there was a valid, nonretaliatory justification for recommending that her salary application be denied. In the
departmental vote, the professors explained that their recommendation to deny Dr. Benison’s
salary application was based on her inadequate service record:
Dr. Benison’s service to the Department is lacking . . . Dr. Benison does
demonstrate leadership to her profession but she does not contribute high quality
leadership to Department service activities. The Department view is that Dr.
Benison does contribute to service activities but these are mostly short-term, time
limited commitments. The Department encourages Dr. Benison to take a more
active role in the larger time commitment service activities, especially given the
fact that Dr. Benison has had the lightest teaching load of any faculty member
during the review period.
Mot. Summ. J. Ex. 20.
Dr. Benison had been repeatedly warned that her service record could cause problems
when she applied for a salary increase. Dr. Benison admits that as early as 2010, one year before
the no confidence vote, Dr. Morgan had told her that she was not providing adequate service to
the department. Mot. Summ. J. Ex. 1 at 174. When Dr. Benison stated that she was unable to
complete the WEAVE assessment on behalf of the department, Dr. Morgan warned her that he
would vote against her promotion in 2012. Id. at 60. In fact, Dr. Benison acknowledges that Dr.
Morgan’s statement that “he was going to teach her a lesson” was related to his perception that
she was not meeting the service requirements. Resp. Ex. 21 at 59. Moreover, Dr. Morgan
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explained that his vote to not recommend Dr. Benison’s application was based on her lack of
leadership in service activities:
The Chair [Sven Morgan] agrees with the Department evaluation and does not
support Dr. Benison’s application for promotion. Dr. Benison is an excellent
teacher and researcher but she has not contributed leadership to Department
service activities. In fact, her actions have led to a negative morale in the
department because junior faculty members have to do extra service activities to
make up for the lack of service by our full professors. Dr. Benison was asked and
refused to take charge of our assessment activities even when she has had the
lightest teaching load of any faculty member over the review period and when she
knew she was going to have sabbatical and teaching buyouts for the entire
following year (this academic year) . . . Dr. Benison has also refused to take on
advising duties even though the Chair has asked for help over a two-year period.
Mot. Summ. J. Ex. 20.
Dr. Benison does not refute the Department’s nonretaliatory reason for voting against her
salary increase. On the contrary, Dr. Benison admitted in e-mails that the vote against her salary
increase “stems from me refusing to do [the WEAVE] assessment by myself . . .” and that the
“denial was due only to the WEAVE assessment that I declined doing . . . .” Mot. Summ. J. Ex.
17 at 1; Mot. Summ. J. Ex. 16 at 2. Defendants have produced evidence that the EAS
Department’s vote was based on Dr. Benison’s service record. Because the EAS Department had
a nonretaliatory reason for voting against her salary increase, this claim does not survive
summary judgment.
b
At the review level, Dr. Benison claims she suffered an adverse action when Dean
Davison and Provost Shapiro deliberately delayed the review of her salary increase application.
According to the terms of the Faculty Association Agreement, Dean Davison is obligated to
review the EAS Department’s recommendation and render an independent judgment on the
application. Dean Davison ultimately recommended denial of Dr. Benison’s salary application
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because of her service record on April 2, 2012—one day after the deadline for filing his
recommendation with the Office of the Provost. Mot. Summ. J. Ex. 23 at 3.
Dr. Benison claims that Provost Shapiro also purposely delayed reviewing her salary
application, hoping that she would quit. She points to a May 29, 2012 e-mail exchange: after
Faculty Personnel Services Director Matthew Serra states that the Benison residence had been
sold, Provost Shapiro replies that “[t]he news just gets better and better.” Mot. Summ. J. Ex. 39.
Serra then suggests that “we hold out as long as possible before drafting a response on her
promotion application to see if it is rendered moot by an official announcement of her
resignation,” which Provost Shapiro agreed with. Id. Dr. Benison claims that this e-mail
exchange, in addition to Dean Davison’s tardy recommendation, illustrate that she suffered an
adverse action when Dean Davison and Provost Shapiro deliberately delayed her salary increase
application.
Missed deadlines and six e-mails discussing the possibility of delaying Dr. Benison’s
application review provide little evidence that a person of ordinary firmness would have been
deterred. Indeed, “certain threats or deprivations are so de minimis that they do not rise to the
level of being constitutional violations . . . .” Thaddeus-X at 398. The delays in reviewing Dr.
Benison’s application were inconsequential: even though Dean Davison missed the deadline by
one day, Provost Shapiro still took the application under review. After Dean Davison submitted
his late recommendation, he met with Dr. Benison to “address errors of fact,” as permitted by the
Faculty Association Agreement. Dean Davison then affirmed his negative recommendation to
Provost Shapiro on May 7, 2012. Despite the missed deadline, Dr. Benison was still able to voice
her concerns to Dean Davison and to have her salary application reviewed by Provost Shapiro.
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Therefore, the harm caused by Dean Davison’s missed deadline is so de minimis that it does not
rise to a constitutional violation.
Moreover, Provost Shapiro’s allegedly deliberate delay in reviewing Dr. Benison’s
application is not an adverse action. As set forth in his e-mail exchange with Matthew Serra,
Provost Shapiro had learned that Dr. Benison had publicly stated that she was taking a position at
West Virginia University. Mot. Summ. J. Ex. 39. In fact, Dr. Benison accepted employment at
West Virginia University on May 17, 2012, just 72 hours after submitting her application to
Provost Shapiro. Mot. Summ. J. Ex. 30, 37. That Provost Shapiro decided to delay review of her
application twelve days later had no effect on Dr. Benison’s application: because Dr. Benison
accepted employment at WVU, “[i]t made moot the point of whether she’d get a professor salary
adjustment. She wasn’t going to be here.” Mot. Summ. J. Ex. 11 at 85. As evidenced by her
acceptance of employment at West Virginia University, Dr. Benison had already decided to
leave CMU by the time Shapiro delayed reviewing her salary application. Therefore, the harm
suffered by Dr. Benison would not deter a person of ordinary firmness, and the delayed review is
not an adverse action.
Dr. Benison has not established that she suffered an adverse action when the review of
her application was delayed, and therefore cannot rely on the claim to establish a prima facie
case.
c
Dr. Benison also claims she suffered an adverse action when Dean Davison and Provost
Shapiro breached the terms of the Faculty Association Agreement by exchanging e-mails about
Dr. Benison’s application without her knowledge. The Faculty Association Agreement provides
that “[a]ll evidence not submitted by the bargaining unit member and used in making
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recommendations concerning reappointment, tenure, or promotion, shall be shared with the
bargaining unit member . . . .” Resp. Ex. 6 at 30. Dr. Benison claims Dean Davison and Provost
Shapiro violated this clause by circulating a series of four e-mails discussing Dr. Benison’s
service record on May 16, 2012. Resp. Ex.27. These e-mails were not available to Dr. Benison
during the application-review process; she learned of them months later. Resp. 24-25. Dr.
Benison claims that by not informing her of these e-mails, Dean Davison and Provost Shapiro
breached the terms of the Faculty Association Agreement.
The breach of the Faculty Association Agreement, however, is not an adverse action
because it would not deter a person of ordinary firmness from engaging in protected conduct. Dr.
Benison claims she was harmed because she never had the opportunity to respond to the
allegations in the e-mails. But Provost Shapiro never rendered a final decision on Dr. Benison’s
application, and therefore he never relied on her colleagues’ concerns about her service record.
Moreover, Dr. Benison publicly accepted employment at West Virginia University only one day
after the e-mails circulated among Dean Davison, Provost Shapiro, and the others. Although Dr.
Benison did not have a chance to rebut the claims in the e-mails, the harm she suffered is de
minimis because Provost Shapiro never actually relied on the information in the e-mails to make
a decision regarding Dr. Benison’s application. Therefore, with respect to this claim, Dr. Benison
has not satisfied the second element of her First Amendment retaliation claim.
d
Dr. Benison has not established a prima facie case of First Amendment retaliation based
on the circumstances surrounding the recommendations that her application for a salary increase
be denied. Although Dr. Benison suffered an adverse action when the EAS Department voted to
not recommend her application, Defendants have asserted valid, nonretaliatory reasons for the
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vote. Regarding Dr. Benison’s other two alleged adverse actions—the delays in the review
process and the breach of the Faculty Association Agreement—these actions are not adverse
actions because they would not chill a person of ordinary firmness from engaging in protected
conduct. Therefore, Dr. Benison has not established a prima facie case in regard to these claims.
ii
Next, Dr. Benison asserts that she suffered an adverse action when CMU attempted to
recover the compensation it paid her during her 2012 Sabbatical. Filing a lawsuit against a
person would “chill a person of ordinary firmness” and is an adverse action that meets the second
element of her prima facie case. See Munroe v. PartsBase, Inc., 2008 WL 4998777, at *3 (S.D.
Fla. Nov. 20, 2008).
Dr. Benison has not, however, met the third element of her prima facie case: producing
evidence that the protected conduct was a motivating factor in bringing the lawsuit in state court.
Because direct evidence of retaliation is rare, courts generally look to two factors to determine
whether a causal connection exists: temporal proximity and disparate treatment of similarly
situated individuals. Vereecke at 401. Dr. Benison does not present any direct evidence that the
no confidence vote was a motivating factor in bringing the state-court lawsuit, and therefore she
relies on circumstantial evidence.
In analyzing whether temporal proximity creates an inference of causation, courts look to
the totality of the circumstances to determine whether a retaliatory motive could be drawn.
Vereecke at 400. “[T]he more time that elapses between the protected activity and the adverse
employment action, the more the plaintiff must supplement her claim with ‘other evidence of
retaliatory conduct to establish causality.’” Id. (citing Mickey v. Zeidler Tool & Die Co., 516
F.3d 516, 524-45 (6th Cir. 2008)).
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Here, temporal proximity does not support an inference of retaliation. CMU attempted to
recover Dr. Benison’s sabbatical compensation after she resigned in June 2012, more than six
months after her husband’s no confidence vote. A six-month time period between the protected
conduct and the adverse action is insufficient, on its own, to show causation. See Cooper v. City
of N. Olmstead, 795 F.2d 1265, 1272 (6th Cir. 1986) (“The mere fact that Cooper was discharged
four months after filing a discrimination claim is insufficient to support an interference [sic] of
retaliation.”); Powell-Kirby v. Spectrum Health, 920 F. Supp. 2d 803, 807 (W.D. Mich. 2013) (a
suspension that occurred one month after the plaintiff engaged in protected speech required
additional evidence of retaliation); Spencer v. City of Cattlesburg, Ky, 2011 WL 1430237, at *12
(E.D. Kentucky April 14, 2011) (employee terminated two and a half months after engaging in
protected speech had not proven a retaliatory motive based on temporal proximity alone); cf.
Mickey v. Zeidler Tool & Die Co., 516 F.3d 516 (6th Cir. 2008) (fact that employee was fired the
same day he filed a complaint with the EEOC could sufficiently support an inference of
retaliation).
To bolster her claim that there was a causal connection between the no confidence vote
and the filing of the lawsuit in state court, Dr. Benison attempts to show that she was treated
differently from similarly-situated professors; that is, CMU did not force them to repay their
sabbatical compensation after they left. Dr. Benison relies primarily on evidence that four other
professors left CMU after their sabbaticals, and CMU did not force the departing professors to
return their salaries or pursue lawsuits against them.
Disparate treatment of similarly situated employees can give rise to an inference of
retaliation, but
the plaintiff must show that the ‘comparables’ are similarly-situated in all
respects. . . . Thus, to be deemed ‘similarly-situated,’ the individuals with whom
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the plaintiff seeks to compare his/her treatment must have dealt with the same
supervisor, have been subject to the same standards, and engaged in the same
conduct without such differentiating or mitigating circumstances that would
distinguish their conduct or the employer’s treatment of them for it.
Gray v. Toshiba Am. Consumer Prods., 263 F.3d 595, 599 (6th Cir. 2001) (quoting Mitchell v.
Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)) (internal citation omitted). A plaintiff and the
similarly situated employee need not be “comparable” in “every single aspect of their
employment”. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998).
Rather, a plaintiff must show that “all of the relevant aspects” of his employment situation were
nearly identical. Ercegovich at 352.
Dr. Benison argues that she was treated differently than four other professors who did not
return to CMU after taking a sabbatical, and therefore she has established retaliatory intent.
These four professors, however, are not so similarly situated so as to give rise to an inference of
retaliation.
The first professor, Professor Hanessian, is not similarly situated because she did not
have “the same supervisor” as Dr. Benison. Professor Hanessian worked for CMU’s Department
of Art, and her waiver was approved by a Department Chair, a Dean, and a Provost that are all
different from those in Dr. Benison’s case. Mot. Summ. J. Ex. 52. Because Professor Hanessian
did not work with the same supervisors, she is not similarly situated to Dr. Benison. Therefore,
Dr. Benison cannot rely on Dr. Hanessian’s situation to establish retaliatory intent.
Professor Jeon, the second professor Dr. Benison references, is not similarly situated
because he engaged in conduct that has distinguishing circumstances. Professor Jeon returned to
his native South Korea after his sabbatical ended, and CMU requested that he return his
sabbatical salary. CMU officials declined to pursue a suit against Professor Jeon because of the
difficulty in enforcing a judgment against a person in a foreign country. Mot. Summ. J. Ex. 52.
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CMU officials stated that they would have “better options . . . to recover some of the money” if
Professor Jeon ever returned to the United States. Id. The circumstances surrounding CMU’s
attempt to recover Professor Jeon’s sabbatical salary are thus distinguishable from CMU’s
attempts to recover Dr. Benison’s sabbatical salary, and therefore Professor Jeon and Dr.
Benison are not similarly situated.
The third professor referenced left in 2009 at the end of her sabbatical. That professor,
however, had converted her sabbatical into medical leave after suffering from a severe illness.
Mot. Summ. J. Ex. 52. This 2009 professor was not similarly situated as Plaintiff because she
was on medical leave when she left the university.
Finally, Dr. Benison relies on a professor who did not return after sabbatical in 2013.
This professor requested a waiver of the repayment obligation because she had returned to her
native country to receive medical care. Mot. Summ. J. Ex. 52. In contrast, Dr. Benison never
sought a waiver for repayment of her sabbatical compensation; instead of applying for a waiver,
Dr. Benison assumed that Provost Shapiro would waive the repayment requirement: “I knew that
there was a clause in the faculty association contract that said discretion of the provost, this could
be waived. And I kind of assumed that because of—because I was being forced out that it would
be waived and that they would just let me go.” Resp. Ex. 21 at 8. Because she did not request a
waiver of the repayment requirement, Dr. Benison is not similarly situated with the 2013
professor. Because not one of the four professors referenced is similarly situated to Dr. Benison,
she cannot rely on them to establish retaliatory intent.
Neither the temporal proximity of the lawsuit nor the experiences of similarly situated
professors permits the inference that the lawsuit filed against Dr. Benison was motivated, even in
part, by a desire to retaliate for her husband’s no confidence vote. Therefore, she has not
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established a prima facie case of First Amendment retaliation based on the lawsuit CMU filed in
state court.
Furthermore, even if Dr. Benison had established a prima facie case based on the statecourt lawsuit, CMU had a nonretaliatory motive for bringing the lawsuit. Dr. Benison resigned
on June 6, 2012, thereby ending her employment at CMU. Mot. Summ. J. Ex. 40. A couple
weeks later, on June 21, 2012, Dean Davison sent a letter to Dr. Benison that stated she would be
required to pay back her sabbatical compensation pursuant to her contractual obligation, which
required her to return to CMU for one full year after taking her sabbatical. Mot. Summ. J. Ex. 45.
Dr. Benison allegedly breached the sabbatical agreement by resigning, and therefore Defendants
pursued a breach of contract action in state court. An alleged breach of contract is a
nonretaliatory motive for bringing a lawsuit, and Dr. Benison has not shown that the breach of
contract claim lacks a reasonable basis in fact or law. Therefore, Dr. Benison’s claim that
Defendants filed the lawsuit to retaliate against her protected conduct does not survive summary
judgment.
iii
In her final adverse action allegation, Dr. Benison claims CMU forced her resignation
and thus constructively discharged her on June 6, 2012. She claims that after the denial of her
promotional pay increase and receiving threats that she would not be promoted, she was forced
to look at other opportunities outside of CMU. In April 2012, Dr. Benison “recognize[d] that I
was being forced out . . . I was never going to be treated fairly at CMU again despite the fact that
I had always done well there. And that’s when we became more serious about leaving.” Resp.
Ex. 21 at 110.
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In particular, Dr. Benison claims that she was not being “fairly treated” within her
department. Resp. Ex. 21 at 112. Following the departmental vote to deny her salary increase,
Dr. Benison claims that the working environment became a “hostile, hostile situation” because
she was the “black sheep” and “not spoken to in the department.” Id. at 65.
After Dean Davison recommended denying her salary increase, Dr. Benison began to
“feel like actions were taken against me to force me to leave.” Resp. Ex. 21 at 208-209.
Specifically, Dr. Benison stated that “[s]eeing the dean’s decision made it clear to me that I
wasn’t being treated fairly and that it wasn’t just a couple people in my department, that it was a
bigger issue than that.” Id. at 111.
Generally, a plaintiff does not suffer an adverse action when he or she submits a
voluntary resignation letter. Woodmore v. Farmington Hills Police Dept., 2011 WL 2144522, at
*4 (E.D. Mich. May 31, 2011). A plaintiff who resigns may nevertheless establish an adverse
employment action by demonstrating that he or she was constructively discharged. Avery v.
Summit Health, Inc., 2013 WL 1278488, at *6 (E.D. Mich. Mar. 26, 2013).
“To constitute a constructive discharge, the employer must deliberately create intolerable
working conditions, as perceived by a reasonable person, with the intention of forcing the
employee to quit and the employee must actually quit.” Moore v. KUKA Welding Sys. & Robot
Corp., 171 F.3d 1073, 1080 (6th Cir. 1999). “To determine if there is a constructive discharge,
both the employer’s intent and the employee’s objective feelings must be examined.” Id. “Intent
can be shown by demonstrating quitting was a forseeable consequence of the employer’s
actions.” Id. Furthermore, the Sixth Circuit has held that the following factors are also relevant:
Whether a reasonable person would have [felt] compelled to resign depends on
the facts of each case, but we consider the following factors relevant, singly or in
combination: (1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work; (5) reassignment
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to work under a younger supervisor; (6) badgering, harassment, or humiliation by
the employer calculated to encourage the employee’s resignation; or (7) offers of
early retirement or continued employment on terms less favorable than the
employee’s former status.
Logan v. Denny’s, 259 F.3d 558, 569 (6th Cir. 2001).
In contrast, criticism in performance reviews does not constitute objectively intolerable
conditions. Agnew v. BASF Corp., 286 F.3d 307, 310 (6th Cir. 2002). Even where a poor
performance review indicates that the employee has little hope of future advancement, that
evidence is insufficient to create a jury case of constructive discharge. Caslin v. General Electric
Co., 696 F.2d 45, 46 (6th Cir. 1982).
Here, Dr. Benison was not demoted. She enjoyed the same job with the same benefits
until the day she quit. Dr. Benison claims that the working conditions within her department
were hostile; however, that some of Dr. Benson’s colleagues refused to speak to her is
inadequate to create a triable factual dispute about the existence of an adverse employment
action. See Willey v. Slater, 20 F. App’x 404, 405 (6th Cir. 2001) (co-worker ostracism and
“openly negative and hostile” attitude by supervisor insufficient); MacKenzie v. City and County
of Denver, 414 F.3d 1266, 1279 (10th Cir. 2005) (“[M]ere passive treatment does not constitute
an adverse employment action.”).
Although her service record has been criticized by the EAS Department and Dean
Davison, these criticisms do not establish that she was constructively discharged. Dr. Benison
had been repeatedly warned by Dr. Morgan and Dean Davison that her service record would
weaken her application for a salary increase. After Dr. Benison turned down Dr. Morgan’s
request for her to complete the WEAVE assessment in 2009, Dr. Morgan stated that her refusal
“did not demonstrate leadership in service duties,” which is one of the criteria considered in the
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promotional salary application process. Mot. Summ. J. Ex. 3 at 2. Dean Davison had also sent
Dr. Benison a warning in 2011 that she was not meeting her service obligations:
[Y]ou are in an active employment status and have been relieved from any
teaching responsibilities so that you may devote a greater proportion of your time
to research. This does not remove your obligations to perform service to the
department, college and university, including student advising in the Geology
Club and actively participating in departmental meetings and committees . . . It is
also important to be clear that the requirement to be actively engaged in service is
non-negotiable and applies to all members of faculty . . . Please also keep in mind
that failure to meet your service obligations, regardless of whether you teach or
not, would likely result in a formal “complaint” against you in regard to basic
work expectations/responsibilities.”
Mot. Summ. J. Ex. 35.
Criticizing an employee’s job performance is insufficient to establish constructive
discharge. Plautz v. Potter, 156 Fed. App’x. 812, 818 (6th Cir. 2005); see also Bielert v.
Northern Ohio Properties, 863 F.2d 47 (6th Cir. 1998) (“An employer does not constructively
discharge an employee simply by advising him that he must be productive in order to retain his
new job.”). Therefore, the fact that the EAS Department and Dean Davison criticized Dr.
Benison’s service record is not sufficient to establish that she was constructively discharged.
Finally, Dr. Benison claims that she was being forced out when Dean Davison denied her
appeal for a salary promotion. At the time Dr. Benison resigned, Provost Shapiro had not yet
rendered a final decision on Dr. Benison’s application; rather, Dr. Benison resigned in
anticipation that her application would be denied. As the Sixth Circuit has observed, “[a]n
employee who quits a job in apprehension that conditions may deteriorate later is not
constructively discharged.” Agnew v. BASF Corp., 286 F.3d 307, 310 (6th Cir. 2002). “Instead,
the employee is obliged not to assume the worst, and not to jump to conclusions too fast.” Id.
(internal quotation marks and citations omitted). That Dr. Benison believed Provost Shapiro
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would ultimately reject her appeal for a salary increase does not support a finding that she was
constructively discharged.
Dr. Benison has not demonstrated the necessary elements for constructive discharge. She
has not presented proof of intolerable working conditions deliberately created by her employer
nor has she shown that any such conditions were designed with the intention to force her to quit.
Because Dr. Benison has not established that she was constructively discharged, she has not
satisfied the second element of her prima facie case for First Amendment speech retaliation.
iv
In summary, not one of Dr. Benison’s claims survives summary judgment. With respect
to her claim that CMU officials retaliated against her during the review of her application for
salary increase, Defendants have provided a valid, nonretaliatory justification for the EAS
Department’s negative vote. Furthermore, Dr. Benison has not shown that the delays in
reviewing her appeals or the breach of the Faculty Association Agreement are adverse actions
that rise to the level of constitutional violations
As to Dr. Benison’s claim that CMU retaliated against her by filing a breach of contract
lawsuit in state court, Dr. Benison has not shown that the lawsuit was motivated by Mr.
Benison’s no confidence vote. Moreover, Defendants have set forth nonretaliatory justifications
for bringing the lawsuit.
Finally, Dr. Benison’s claim for constructive discharge does not survive summary
judgment because she has not provided evidence of intolerable working conditions designed with
the intent that she resign, and therefore she has not established that she suffered an adverse
action.
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Because Dr. Benison has not provided any triable issues of fact regarding her claims for
First Amendment retaliation, the Court GRANTS Defendants’ motion for summary judgment
with respect to Dr. Benison’s claims.
C
Mr. Christopher Benison claims he suffered an adverse action when CMU put a hold on
his academic transcript, which he needs to complete his degree in elementary education. Placing
a hold on a transcript “would chill a person of ordinary firmness,” and Mr. Benison has
sufficiently established that he has suffered an adverse action. Scarbrough v. Morgan County Bd.
of Educ., 470 F.3d 250, 255 (6th Cir. 2006).
Mr. Benison has not, however, established that his protected conduct was a motivating
factor in placing a hold on his transcript. Mr. Benison has not provided any direct evidence of
retaliatory intent, and the circumstantial evidence presented is insufficient to create an inference
of retaliatory intent. CMU placed a hold on Mr. Benison’s transcript more than six months after
he submitted the motion for a vote of no confidence; this six-month time period is not “extremely
close” and therefore Mr. Benison cannot rely on temporal proximity alone to establish retaliatory
intent. Vereecke at 400. Mr. Benison states that he was treated differently from other students
who had holds placed on their transcripts because he was “the first person to have an academic
hold placed on a transcript because CMU reversed a tuition remission.” Resp. 24. Yet Mr.
Benison does not provide any evidence to support this allegation. This type of bare allegation of
malice, without supporting evidence, is insufficient to establish an inference of retaliatory
conduct. Therefore, Mr. Benison has not shown that his no confidence vote was a motivating
factor in CMU’s decision to place a hold on his transcript.
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Moreover, even if Mr. Benison had sufficiently shown that his no confidence vote was a
motivating factor, Defendants provided a nonretaliatory reason for placing a hold on his
transcript.
As a benefit to employees, CMU provides a tuition waiver program for certain
employees and their family members. Defs.’s Reply Ex. 63 at 2. Mr. Benison had been the
recipient of one of these waivers while Dr. Benison was on sabbatical in Spring 2012. When Dr.
Benison resigned, CMU claims she forfeited her compensation and benefits, including her
husband’s tuition waiver. Defendants argue that when CMU revoked Mr. Benison’ tuition
waiver, he became liable for tuition in the amount of $4,296.00. Mot. Summ. J. Ex. 11 at 107;
Ex. 46 at 2. Mr. Benison did not pay that tuition, and therefore the CMU Registrar placed a hold
on his transcript. Mot. Summ. J. Ex. 11 at 108. CMU placed a hold on Mr. Benison’s transcript
because it asserted that he owed them tuition, which is a valid, nonretaliatory motive.
Mr. Benison has not presented evidence sufficient to raise a genuine issue of material fact
in support of the third element of his claim—causation—and therefore summary judgment in
favor of Defendants is appropriate.
IV
Neither Dr. Benison nor Mr. Benison has established a prima facie case for First
Amendment retaliation based on Mr. Benison’s no confidence vote.
Accordingly, it is ORDERED that Defendants’ motion for summary judgment (ECF No.
16) is GRANTED and Plaintiff’s Complaint (ECF No. 1) is DISMISSED WITH
PREJUDICE.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: October 23, 2013
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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 October 23, 2013.
s/Tracy A. Jacobs
TRACY A. JACOBS
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