Dibbern v. University of Michigan et al

Filing 138

OPINION and ORDER Granting in Part and Denying in Part re 115 MOTION for Summary Judgment. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Jennifer Dibbern,
Plaintiff,
v.

Case No. 12-15632

University of Michigan, et al.

Sean F. Cox
United States District Court Judge

Defendants.
_______________________________/
OPINION & ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
After she was dismissed from a graduate engineering program at the University of
Michigan, Plaintiff filed this action against the University, its President, its Board of Regents,
and three engineering professors. Plaintiff’s Second Amended Complaint asserts nine separate
counts against Defendants but Plaintiff recently voluntarily dismissed Count IX. The matter is
before the Court on Defendants’ Motion for Summary Judgment. The parties have extensively
briefed the issues and the Court heard oral argument on May 12, 2016. As explained below, the
Court shall GRANT THE MOTION IN PART AND DENY IT IN PART. The Court shall
GRANT the motion to the extent that the Court shall grant summary judgment in favor of
Defendants with respect to Counts I, III, IV, VI, VII. The Court shall also grant summary
judgment in favor of Defendants as to the portions of Plaintiff’s retaliation counts (Counts II, V,
and VIII) that are based upon Defendant Pollock’s termination of Plaintiff’s research position and
ceasing to be her advisor. The motion is DENIED as to the remaining portions of Counts II, V,

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and VIII.
BACKGROUND
Plaintiff Jennifer Dibbern (“Plaintiff” or “Dibbern”) filed this action against Defendants
on December 21, 2012, based on federal-question jurisdiction. Plaintiff asserts claims against the
following Defendants: 1) the University of Michigan (“the University”); 2) The Board of Regents
of the University of Michigan (“the Board of Regents”); 3) Mary Sue Coleman (“Coleman”); 4)
Rachel Goldman; 5) Tresa Pollock; and 6) Peter Green.
Plaintiff’s Claims
The operative complaint is Plaintiff’s “Second Amended Complaint” (D.E. No. 23),
which asserts the following claims:
•

Count I: “Title IX, Sex Discrimination and Sexually Hostile Educational Environment,”
asserted against the University and the Board of Regents;

•

Count II: “Title IX: Retaliation for Reporting, Opposing, and Attempting to Remedy a
Sexually Hostile Environment in the College of Engineering,” asserted against the
University and the Board of Regents;

•

Count III: “Equal Protection: 42 U.S.C. § 1983”, asserted against the “Individual
Defendants in their official capacity” pursuant to Ex Parte Young;

•

Count IV: “Due Process Violations: 42 U.S.C. § 1983”, asserted against all Defendants;

•

Count V: “First Amendment Freedom of Speech Retaliation: 42 USC 1983”, asserted
against the “Individual Defendants in their individual capacity” and against them in their
official capacity pursuant to Ex Parte Young;

•

Count VI: “Michigan State Law Elliott-Larsen Civil Rights Act: Sex
Discrimination/Disparate Treatment/Hostile Work Environment,” asserted against all
Defendants;

•

Count VII: “ELCRA Sex Discrimination/Disparate Impact,” asserted against all
Defendants;

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•

Count VIII: “ELCRA Retaliation,” asserted against all Defendants; and

•

Count IX: “Invasion of Privacy,” asserted against the Individual Defendants

Plaintiff recently agreed, however, to dismiss Count IX. (See Docket Entry No. 128). As such,
there are eight counts that remain in this action.
Following the close of discovery, Defendants filed a Motion for Summary Judgment.
(D.E. No. 115).
This Court’s practice guidelines, which are expressly included in the Scheduling Order
issued in this case, provide, consistent with Fed. R. Civ. P. 56 (c) and (e), that:
a. The moving party’s papers shall include a separate document entitled
Statement of Material Facts Not in Dispute. The statement shall list in separately
numbered paragraphs concise statements of each undisputed material fact,
supported by appropriate citations to the record. . .
b. In response, the opposing party shall file a separate document entitled CounterStatement of Disputed Facts. The counter-statement shall list in separately
numbered paragraphs following the order or the movant’s statement, whether each
of the facts asserted by the moving party is admitted or denied and shall also be
supported by appropriate citations to the record. The Counter-Statement shall also
include, in a separate section, a list of each issue of material fact as to which it is
contended there is a genuine issue for trial.
c. All material facts as set forth in the Statement of Material Facts Not in Dispute
shall be deemed admitted unless controverted in the Counter-Statement of
Disputed Facts.
(Docket Entry No. 30 at 2-3).
In compliance with this Court’s guidelines, in support of their Motions for Summary
Judgment, Defendants filed a “Statement of Material Facts Not In Dispute” (Docket Entry No.
113) (“Defs.’ Stmt.). In response to that submission, Plaintiff filed a “Counter-Statement of
Disputed Facts” (D.E. No. 121) (Pl.’s Stmt.”).
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The following material facts are gleaned from the evidence submitted by the parties,
viewed in the light most favorable to Plaintiff, the non-moving party.
Plaintiff’s claims stem from the time period during which she was a graduate student at
the University of Michigan (“the University”). Defendant Coleman was the University’s
President. The remaining individual Defendants (Pollock, Goldman, and Green) were professors
at the University in the College of Engineering during the relevant time periods.
Plaintiff graduated from MIT with a Bachelor of Science and Engineering degree in
materials and metallurgy in 2007. (Pl.’s Dep. at 73).
Plaintiff’s Enrollment and MSE’s Ph.D Requirements
In the fall of 2007, Plaintiff enrolled as a graduate student in the Materials Science and
Engineering (“MSE”) program in the College of Engineering (“COE”) at the University. (Defs.’
Stmt. & Pl.’s Stmt. at ¶ 1).
Plaintiff received a copy of the MSE Resource Guide, on September 10, 2009, which
contained information about the expectations of the Ph.D program. (See Pl.’s Dep. at 137; Exs.
11 & 12 to Defs.’ Motion).
Although Plaintiff was in the Ph.D program, she was not a Ph.D “candidate,” as she was
first required to complete various steps, including taking qualifying exams referred to as
“preliminaries.” (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 3). Specifically, “students seeking Ph.D
candidacy must successfully pass the Oral Exam within two years of their initial enrollment in
the MSE department” and students must also complete the written exam within two years of
initial enrollment. (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 4).
Plaintiff did not schedule or take her preliminary exams during her four and a half years
4

in the Ph.D program at the University and she never prepared a dissertation proposal. (Defs.’
Stmt. & Pl.’s Stmt. at ¶ 6). Plaintiff cannot identify any other student in the MSE who spent four
and a half years in the program and did not complete their preliminary examinations. (Pl.’s Dep.
at 270; Defs.’ Stmt. & Pl.’s Stmt. at ¶ 7).
2007
Professor Tresa Pollack (“Pollack”) was Plaintiff’s first advisor in the program. (Pl.’s
Stmt. at ¶ 156).
Shortly after Plaintiff arrived on campus in the fall of 2007, she began working in
Pollock’s laboratory and was funded by Pollock. (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 1). Plaintiff
had a “50% appointment” with Professor Pollock, which is a full-time appointment consisting of
half classes, half research until classes are completed and then is 100% research, and provided
Plaintiff with full tuition, health insurance, and a stipend. (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 9).
Plaintiff was aware that she was expected to work 20 hours per week in the lab for her 50%
appointment. (Defs.’ Ex. 24).
Plaintiff claims that, shortly after she began as a student at the University in 2007, she
experienced demeaning comments being made about female engineers by male students. “For
instance, soon after she began, Dibbern was told by her student colleagues: ‘real women
aren’t engineers,’ ‘engineering women are different—they’re not normal . . . they aren’t like real
girls. Not normal at all. Even if they are around, no one considers them women,’ among others.
(323-24). ‘You had it easy because you’re a woman in science. You have to admit it. You’re less
qualified but still able to get in just because you’re a girl. (324). A second student stated: ‘Let’s
be honest, the girls in engineering aren’t real girls—no guy would look at them that way so we
5

need more real girls to study with, date—something to look at in class. Real girls. There’s
something wrong with the engineering girls.’ (326).” (Pl.’s Stmt. at 33 n.6) (citing Pl.’s Dep. Tr.;
see also Defs.’ Ex. 151 at Dibbern001508).
Plaintiff testified that she spoke to Pollock about her concerns in November of 2007.
(Pl.’s Dep. at 189-90). Plaintiff testified:
Q.
A.

Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

And what did you tell her?
I described that – she asked how things were going in the program and
how was I liking it, and I said that I wanted to meet with her because I was
encountering challenges and I wanted her support and I explained to her
some of what I was experiencing.
What did you tell her?
I told her that there were men in the program who were making very
inappropriate comments.
Did you say what the comments were?
I believe I gave her an example.
What example do you think you gave her?
I don’t recall.
What else did you tell her?
I explained that I was finding this very difficult and was asking for her
help.
What help did you want?
I was asking for advice.
Okay.
How to move forward. I wanted the behavior to stop but I wanted her to
help in whatever way she could.
Did you name who the people were?
Not that I recall right now.
Did you tell her that they weren’t in her lab?
I said they were men in the department. I don’t believe she asked or I
specified further.

(Pl.’s Dep. at 190-91).
2008
In the winter term of 2008, one of the classes Plaintiff took, “ANTHRARC 254” an
1

Defs.’ Ex. 15 is a timeline prepared by Plaintiff. (Pl.’s Dep. at 51-53).
6

Anthropology class regarding Aztecs, Mayans, and Incas, was outside of the College of
Engineering. (Des.’ Ex. 22).
The MSE Resource Guide states that one of the requirements for MSE graduate students
is that they take “two courses (cognates) outside of the [Material Science and Engineering] dept.
These cognate courses (each of two hours minimum) must be in a technical area, and are usually
satisfied at the graduate level (400 level courses can also satisfy cognate requirements.)” (Pl.’s
Ex. 7 at 37).
Plaintiff alleges that she was threatened with rape twice, once in April of 2008 and again
in the summer of 2008.
Plaintiff alleges that in April of 2008, two male students threatened to rape her during a
conversation. (Defs.’ Stmt. at 20; Pl.’s Stmt. at 20). Plaintiff contacted both the University’s
Sexual Assault Prevention and Awareness Center (“SAPAC”), and Rachel Crutchfield from the
University’s Counseling and Psychological Services (“CAPS”) regarding this matter. (Defs.’
Stmt. & Pl.’s Stmt. at ¶ 21).
All communications with both SAPAC and CAPS are confidential unless the student
authorizes release of the information. (Id. at 22). Plaintiff sought Crutchfield’s assistance in
getting two of her final exams postponed. Plaintiff asked that Crutchfield “be vague” about the
personal reasons why Plaintiff needed to postpone her exams, and Crutchfield did so. (Defs.’
Stmt. & Pl.’s Stmt. at ¶ 24). Plaintiff admits that she never told those two professors, Amit
Ghosh or Max Stein, that she had been harassed or threatened. (Id. at ¶ 26).
Plaintiff was allowed to reschedule her exams and, a few days after the incident, left Ann
Arbor and returned to Iowa, where she stayed with her parents for a few weeks. (Defs.’ Stmt. &

7

Pl.’s Stmt. at ¶ 27-28). Plaintiff did not tell Pollock that she was taking time off. (Id. at ¶ 29).
Plaintiff returned to Ann Arbor in May of 2008, at which time Crutchfield provided
Plaintiff with information regarding the University’s “zero tolerance” policy regarding sexual
harassment, the policy set forth in the University’s Standard Practice Guide, the Office of
Institutional Equity, and various other avenues for reporting sexual harassment. (Defs.’ Stmt. &
Pl.’s Stmt. at ¶ 30; see also Defs. Ex. 20).
Plaintiff admits that Pollock had several conversations with her about not spending
sufficient time in the lab working on research. (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 32). On May 15,
2008, Pollock sent Plaintiff an email, stating:
Once again for weeks I have been expecting to see you in the laboratory, but have
not, in spite of leaving notes on your desk. I must admit that I am disappointed
that you have rarely been in the Gerstacker Building since your arrival at UM and
that you have not yet engaged in your research. I will remind you that the terms of
your GSRA appointment commit you to 20 hours of research per week during the
academic year and full time attention to your research in the summer.
I realize that students often have complicated personal issues to deal with.
However, you have given me no indication of any unusual circumstances. I need
you to let me know whether you plan to be here this summer as soon as possible.
As you know, we have commitments to our research sponsors and I need to know
whether you are planning to continue with your research.
(Defs.’ Ex. 23). In response to that email, Plaintiff stated, “I sincerely apologize for my absence
from the lab and for not speaking with you earlier. It will not happen again.” (Id.).
2008
Plaintiff testified that a student named Denis slapped her on one occasion in 2008. (Pl.’s
Stmt. at ¶ 155; Pl.’s Dep. at 337-338).
Plaintiff testified that on May 19, 2008, she told Pollock that the harassment had gotten
worse and that “the men harassing me had threatened to rape me” but that Pollock cut Plaintiff
8

off mid-sentence and said, “Jennifer, these things sometimes happen. We just have to get over it,
and get back to life.” (Pl.’s Dep. at 198-99; Pl.’s Afft. at ¶ 9). In responding to the pending
motion, however, Plaintiff now states that “[a]t the May 19, 2008 meeting, [she] followed the
advice of CAPS and SAPAC and once again told Pollock about her ongoing harassment and the
types of comments her harassers were making but was cut off before she could discuss the rape
threats.” (Pl.’s Stmt. at ¶ 36).
Plaintiff testified that on one other occasion in 2008, sometime after the May 19, 2008
meeting, she discussed an alternate schedule with Pollock because Plaintiff did not want to be
alone in lab at night. (Pl.’s Dep. at 230-31).
Plaintiff alleges that she was threatened with rape by students in her study group in the
summer of 2008, and directs the Court to pages 338 to 341 of her deposition transcript wherein
she described the rape threat. (Pl.’s Dep. at 338-41).
During the first week of the Fall 2008 term, in September of 2008, Pollock emailed
Plaintiff to schedule a research meeting. Plaintiff responded, “This week is a bit hectic for me
with the start of the term. Would there be a time next week that would be convenient for you?”
(Defs.’ Ex. 28). Pollock expressed dismay that Plaintiff could not spare 30 minutes for the
research meeting, but accommodated Plaintiff. (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 42). Pollock also
told Plaintiff that “[i]n addition to a discussion of your research, I would like you to prepare a
detailed research plan (goals, activities, timing) for this semester.” (Id.).
2009
During the 2009 Winter Semester, Plaintiff continued to take courses outside MSE,
taking a course on Environmental Sustainability and a 200-level Spanish course. (Defs.’ Stmt. &

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Pl.’s Stmt. at ¶ 43; see also Defs.’ Ex. 22).
In January of 2009, Plaintiff reported to the University’s Campus Security that a student
named Norman Meznarich was stalking her and that she was considering whether she wanted to
file a police report. (See Defs.’ Sealed Ex. 25; see also Pl.’s Dep. at 66). At that time, Plaintiff
reported to the University’s Department of Campus Safety that a student that she had been
friends with since August of 2007, Meznarich, had confessed his love for her in the fall semester
of 2008 even though she had a boyfriend. She reported that since that time, he had behaved
slightly inappropriately by continuing to ask her out, call her, and leave her gifts, even after she
asked him not to do that. Plaintiff reported to Campus Safety that, on one occasion, Meznarich
showed up at the building where Plaintiff had been working and grabbed Plaintiff by the arm and
starting hugging her, but she was able to get away from him. Plaintiff reported that he had since
continued to call and email her, even after she asked him not to contact her. The report states
that Plaintiff “advised she wanted to file a police report for stalking and assault but wanted to
talk things over with her parents before contact with Meznarich was made” and that “No contact
with Meznarich has been made at this point at the request of Dibbern.” (Id.).
DPS provided Plaintiff with a victim’s rights form, directing her to a variety of available
University resources, including the Office of Student Conflict Resolution (“OSCR”) and the
Office of Institutional Equity (“OIE”). (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 45). At Plaintiff’s request,
DPS did not contact Meznarich. (Id. at ¶ 46).
Plaintiff did not tell Pollock about the stalking by Meznarich. (Id. at ¶ 47). Although
Plaintiff still encountered Meznarich, because he was a student in the department, she did not
experience any incidents concerning him after her report to the DPS. (Pl.’s Dep. at 235).

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Plaintiff testified that in the summer of 2009, Pollock advised her and her fellow students
that Pollock had accepted a position at the University of California, Santa Barbara (“UC”), and
would be leaving the University. (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 57; Pl.’s Dep. at 228-229).
Pollock stated that her goal was to be fully transitioned to UC by the end of the year. (Id. at 230).
Pollock then met with students, one-on-one, to discuss how the change would impact
each of her students and their future plans, including Plaintiff. (Id. at 229-30; see also Def.’s Ex.
152 at Dibbern001509). Pollock discussed that an option would be for Plaintiff to finish her
degree at UC and offered to fly Plaintiff out to visit UC. (Pl.’s Dep. at 230). That is, Pollock
offered to have Plaintiff transferred to UC and remain Pollock’s graduate student. At this time,
Pollock already knew that Plaintiff had previously complained about student-on-student
harassment. (Pl.’s Dep. at 236).
In the fall of 2009, Plaintiff told Pollock that she did not want to go with her to UC and
told Pollock that she wanted to just complete a masters degree. (Defs.’ Stmt. & Pl.’s Stmt. at ¶
58). Pollock told Plaintiff that she would be happy to write Plaintiff a letter of recommendation.
(Pl.’s Dep. at 237; Defs.’ Ex. 15 at Dibbern001509). Pollock and Plaintiff then put together a
plan for Plaintiff to complete her masters degree at the University by April of 2010. (Id.; Pl.’s
Dep. at 237-38). At that time, Pollock was willing to fund Plaintiff during the winter 2010 term.
(Defs.’ Stmt. & Pl.’s Stmt. at ¶ 60).
During the Fall 2009 Term, Plaintiff took a course of International Environmental Policy
& Law in the School of Natural Resources, and studied for and took the Law School Admission
Test (“LSAT”). (Def.’s Stmt. & Pl.’s Stmt. at ¶ 61).

2

Defs.’ Ex. 15 is a timeline prepared by Plaintiff. (Pl.’s Dep. at 51-53).
11

As of December 2009, Plaintiff had not scheduled the preliminary exams necessary to
obtain a Ph.D., nor did she complete a master’s degree by April 2010. (Def.’s Stmt. & Pl.’s
Stmt. at ¶ 69).
In December 2009, Pollock again emailed Plaintiff about her lack of research progress.
(Def.’s Stmt. & Pl.’s Stmt. at ¶ 62). Plaintiff responded that she had been coming into the lab
less frequently because she had been studying for the LSAT. (Id. at ¶ 63). Pollock then
responded with the following:
Jennifer,
I hope things go well on your LSAT. However, I should let you know that I am
concerned about you finishing a MS degree. You will need to invest substantially
more effort in your research next semester than you have in any semester past to
finish oxidation, creep and compression experiments, accompanying analysis and
writing of your thesis. There will only be enough funding to cover you through
winter semester. The six semesters of support that we have provided should be
more than enough to finish a MS degree. I will be here through Jan 8 and back
again Jan 27th so you can set up a meeting with me whenever you wish.
(Defs.’ Ex. 31).
Despite Pollock having expressed the above concerns, Plaintiff applied for and obtained a
10 hour/week temporary job for the Winter Term with a University of Michigan Law School
professor. (Def.’s Stmt. & Pl.’s Stmt. at ¶ 65; Defs.’ Ex. 32; Defs. Ex. 32). Plaintiff did not
inform Pollock that she intended to work in the Law School at the same time she was being paid
to be engaged in full-time research in MSE. (Def.’s Stmt.& Pl.’s Stmt. at at ¶ 66).
But Pollock learned about it through a colleague at the University who sent her an email.
On December 22, 2009, Plaintiff received an e-mail from Pollock. (Defs.’ Ex. 32). Pollock
began the exchange with Plaintiff by forwarding an email that had been sent to her by a colleague
at the University, advising Pollock about another potential appointment Plaintiff may be taking
12

on and asking Pollock if she were aware of that appointment. In the message sent to Plaintiff,
Pollock stated:
Dear Jennifer,
I am extremely disappointed to see that you are seeking an alternate appointment
after our discussion last week about what will be required for you to finish your
MS degree. Unfortunately I will not be able to provide any support for you next
semester.
Please consider this a formal request for you to return all materials and supplies
relevant to your research. Please leave them on your desk before the end of the
year.
Good luck with your SNRE appointment and with your law school applications.
Sincerely
Tresa
(Defs.’ Ex. 32 at Dibbern000867-68). Plaintiff responded to the e-mail on December 22, 2009,
stating:
Professor Pollock,
I just called your office in the hopes that we might talk. I feel there has been a
misunderstanding. When I sought this appointment, I only looked to it as a way to
supplement my income through activities that would take place in my free time. I
considered carefully my commitments to research next term and felt that this
would not conflict or interfere. If, however, you feel that I should not participate,
given the research load, in any additional activities next term, I would be more
than happy to withdraw my application from SNRE. My research with you is my
priority above everything else. I would really appreciate the chance to discuss this
with you. I am available by phone at [phone]. Is there a time and number
which it would be most convenient for me to reach you?
(Id.).
The next day, on December 23, 2009, Pollock sent Plaintiff another email (Defs.’ Ex. 33)
that stated:

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Jennifer,
I see that I have missed calls from you; I am vacationing with family for the next
few days.
I think I should explain my decision to you in more detail.
First, we always expect research MS degrees to take no more than 4 semesters
plus one summer. You have had an extra summer plus an extra semester already.
You have spent less time in the laboratory than any student I have ever supported
in my 20 years as an academic. You have been enrolled in a large number of nonMSE courses and according to recent emails were too busy with law courses to
meet with me. In spite of all of that I was willing to support you for one semester
with your promise of investing far more time than you previously have on
research. The fact that you accepted a 25% appointment from another dept
without even discussing this with me indicates that you are not serious about
finishing your research. I cannot justify supporting you full time with funds from
Boeing when you are spending most of your time on other things. I am very sorry
to arrive at this conclusion.
Tresa
(Defs.’ Ex. 33).
On December 26, 2009, Pollock forwarded the December 22, 2009 email exchange
between her and Plaintiff to a colleague, Professor Rachel Goldman, and copying Peter Green
and Renee Hilgendorf, stating:
Rachel,
FYI, I am forwarding a copy of a message I sent to Jennifer Dibbern to you so that
the graduate committee is informed of the situation with this student. I have
decided not [to] support Jennifer Dibbern for another semester of research MS.
She is far from completing the research requirements, even though she has had
five semesters and two summers of support. Last semester she was busy with law
classes and studying for the LSAT. She has spent less time on her research than
any student I have ever supported. Finally (the last straw), I discovered last week
that she has recently accepted a 25% appointment with SNRE (see message
below), without consulting me and in spite of another recent frank discussion with
her about how hard she would need to work to complete the requirements for a
research MS. Unfortunately I can no longer justify supporting her full time on a
research project from Boeing. In spite of how long she has been here, I don’t even
think she has enough credits for a coursework MS; she will need to figure out
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what to do next.
Thanks,
Tresa
(Defs.’ Ex. 34).
2010
In January of 2010, Plaintiff sought a new advisor, in an attempt to revive her Ph.D
program. (Defs.’ Ex. 15 & Pl.’s Stmt. at ¶ 157).
At the beginning of the Winter 2010 semester, Plaintiff contacted Professor Peter Green
(“Green”), Chair of the MSE Department, regarding her need for a new advisor. (Def.’s Stmt. &
Pl.’s Stmt. at ¶ 70). Green referred Plaintiff to Professor Rachel Goldman (“Goldman”), Chair of
the Graduate Program. Plaintiff did not mention any harassment to Green and Green was not
aware of any alleged sexual harassment until this lawsuit was filed.
Plaintiff met with Goldman in January 2010 to discuss potential advisors and Plaintiff did
not discuss any harassment at that meeting. (Def.’s Stmt. & Pl.’s Stmt. at ¶ 71-75). Goldman
took Plaintiff on after being advised by Plaintiff that Plaintiff had previously reported harassment
to Pollock. (Id.).
In a meeting with Goldman and Renee Hilgendorf, MSE’s graduate program coordinator,
in mid-February of 2010, in response to a question regarding the withdrawals on her transcript,
Plaintiff referenced harassment that had occurred during her first two years in the program.
(Def.’s Stmt. & Pl.’s Stmt. at ¶ 75; Pl.’s Dep. at 289-290; Defs. Ex. 15). Plaintiff testified as
follows concerning that meeting:
Q.
A.

Okay. What do you remember telling Dr. Goldman and Renee
Hilgendorf? What do you remember saying about the harassment?
I remember saying that there were men in the department and asked if they
15

Q.
A.

were faculty or students, and I clarified for them that they were students
who since I had arrived had been harassing me, that they had threatened to
rape me, and that even after that I continued and I’d been assaulted in my
office by the stalker.
Do you remember telling them anything else about the harassment in that
meeting?
I remember that I explained to them why I had the Ws and the leave,
because right before the exams was when they had described in detail.
And I said that they had described in detail and – how they would rape me
and that it would take place at the department, colloquia and a number of
other ways.
They asked if I had told Dr. Pollock, and I said that I had. I said
that I reached out to her on multiple occasions. I – they asked if I reached
out to anyone else, and I said that I had talked with folks at SAPAC and
CAPS to do safety planning, that it was required that I move.
I know that Renee expressed that she was horrified, she said,
because she had a daughter, and they said so these were students in the
department, and I said, yes, these are students in the department. They said
in our department, and I said, yes, in our department.

(Pl.’s Dep. at 289-90).3 Plaintiff did not tell Goldman or Hilgendorf the names of the students
who had harassed her. (Pl.’s Dep. at 290-300; Goldman’s Dep. at 91, 96-97, 101-02, 114-15;
Hilgendorf’s Dep. at 26-28).
Following the meeting with Goldman and Hilgendorf, Plaintiff’s funding was secured for
the entire winter 2010 semester. (Def.’s Stmt. & Pl.’s Stmt. at ¶ 80).
After that meeting, Plaintiff never told Goldman, Hilgendorf, or anyone else at the
University that she experienced any further harassment. (Def.’s Stmt. & Pl.’s Stmt. at ¶ 79).
Plaintiff began working in Goldman’s lab around late February of 2010. (Defs.’ Ex. 15 at
2). In the “Summary of Key Facts” section of her response (Pl.’s Br. at 3), Plaintiff states that
she was subjected to unwelcome conduct in the lab that was of a sexual nature and directs the

3

Both Goldman and Hilgendorf testified that while Plaintiff stated she had been harassed,
Plaintiff did not tell them the harassment was sexual in nature or provide any details.
16

Court to pages 349-50 of her deposition, wherein she described having been subjected to
“respirator kisses” from Michael Warren as follows:
A.

Q.
A.
Q.
A.
Q.
A.

Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

Sure. So molecular epitaxy is equipment that operates – this is somewhat
necessary – operates at high vacuum, and so when you – if something
breaks in the machine, part of the reason why it takes a while to fix things,
because you have to vent the system and then clean it out. But a lot of
what – it’s a self-contained environment, so a lot of what goes on in there
is it’s okay when you’re working in there normally to not have respirators
on, but when you’re cleaning it, you have to wear a bunny suit and a
respirator.
Okay.
And so we’d be wearing a bunny suit, which is – are you familiar with
what that is?
Yes.
– and then a respirator that we had fitted to filter particulates.
Okay.
And so he would – it’s like – it took different forms. He’d come up from
behind you and, like, try to reach around, and he would try to push his
respirator into your respirator.
So you’d be sort of mask to mask –
Uh-hu.
– is that correct?
Mask to mask or he would do masks to cheek or he would try to like, grab
your head and, like, force you mask to mask.
And what would you do when he did this?
It happened numerous times. Some of the responses I gave were no, like,
don’t do that, stop it, knock it off, what do you think you’re doing.
And this continued throughout winter 2010?
Yeah.
Did anybody else see it?
It’s possible.

(Pl.’s Dep. at 349-50). Thus, Plaintiff does not know if Goldman ever saw that conduct. (Id. at
350-51). Plaintiff did not complain to anyone in the College of Engineering about Warren. (Id.).
In August of 2010, Plaintiff discussed with Goldman and Hilgendorf, via e-mail, the need
to file a petition so that Plaintiff could avoid being placed on academic probation because she
had not achieved candidacy within three calendar years after first enrolling in the doctoral

17

program at the University. (Defs.’ Ex. 37). In that e-mail, Plaintiff noted that her plan was to
take her preliminary exams in the Spring of 2011. (Id.).
In the Fall of 2010, Plaintiff began volunteering for SAPAC. (Pl.’s Stmt. at ¶ 55; Pl.’s
Dep. at 262). Plaintiff told Goldman that she was volunteering for SAPAC. (Pl.’s Dep. at 262).
Plaintiff testified that Goldman responded okay at first but after that Goldman referenced
SAPAC at times during conversations: “It would be in conversations where we would discuss
meeting on a weekend and, unlike other students in the group who would have outside activities,
like traveling, sports teams, et cetera, she would say I know you have that SAPAC thing in kind
of a negative tone.” (Pl.’s Dep. at 263).
In the fall of 2010, Plaintiff received two outstanding student instructor awards, in
connection with a course taught by George Winarski, a lecturer in MSE. (Pl.’s Dep. at 433-435).
Plaintiff testified that one of those awards was an award from the COE for best student
instructor. (Id. at 435-36). Goldman presented Plaintiff with one of those awards at a ceremony.
(Pl.’s Stmt. at ¶ 91; Goldman Dep. at 155).
There was no post-doctoral student in Goldman’s lab after the Fall 2010 semester.
At some point after October of 2010, Plaintiff met with Holly Rider-Milkovich of
SAPAC to discuss a training program about sexual assault prevention for the College of
Engineering that Plaintiff wished to help develop. (Rider-Milkovich Dep. at 14-16). At some
point, Rider-Milkovich and Plaintiff presented their ideas to “a number of administrators,” names
she could not recall, to present their ideas. (Id. at 24-25). The program they had worked on,
however, was not implemented because there was another effort under way in the College of
Engineering, called “Expect Respect Program.” (Id. at 25-26). Plaintiff has not presented any

18

evidence to show that Pollock, Goldman, or Green, were ever aware of those efforts.
2011
Plaintiff did not take her preliminary exams in the Spring of 2011 or the Fall term of
2011. (Defs.’s Stmt. & Pl.’s Stmt. at ¶ 90; Pl.’s Dep. at 342-43).
Goldman testified that in early 2011 she began getting concerned with Plaintiff’s
performance in the lab. (Goldman Dep. at 190-194).
During this time period, it is undisputed that Plaintiff had some conflicts with other
students in Goldman’s lab, Eric and Emily. (See, e.g. Pl.’s Ex. 14 & Def.’s Ex. 38). An email
exchange regarding some conflicts occurred on April 11, 2011. Goldman testified that she sent
that email after “many months of complaints by the other students about what was going on in
the lab.” (Goldman Dep. at 162).
Plaintiff states that the nomination and election process for GEO Officers was occurring
around this same time. (Pl.’s Stmt. at ¶ 92).
Plaintiff became Treasurer of the GEO on April 14, 2011. (Pl.’s Affidavit at ¶ 14). None
of the other students in Goldman’s research lab were involved in union organizing activities. (Id.
at 16).
Plaintiff asserts that she and Goldman “spoke on several occasions about the union
organizing efforts and she expressed her belief that graduate students were being fooled or
tricked by the union in some way.” (Pl.’s Affidavit at ¶ 19).
In the Spring of 2011, Goldman expressed to Plaintiff that “she believed unionization
would interfere with student/mentor relationships.” Plaintiff’s Affidavit states that “[t]his
specific conversation occurred on a Saturday morning when she had asked me to come in early

19

for a work-related discussion that ended up being an hour long meeting solely about the union’s
efforts and my feelings about it.” (Pl.’s Affidavit at ¶ 20).
On July 19, 2011, Goldman sent an email to Michael Atzmon regarding a Geo forum that
had been held. (Pl.’s Ex. 35). Goldman asked if any “MSE students” had expressed concerns, to
which he replied “[t]he only question by an MSE student I recognized (Jennifer Dibbern) was
about expected long term gains, to which GEO gave the standard answer that unionized workers
have higher pay.” (Id.).
Plaintiff’s Affidavit states that at a meeting that occurred on August 5, 2011, “that was
supposed to be about research in her office, [Goldman] told me about a student she had heard of
who was involved in the union effort and expressed her disbelief that the student could be so
stupid to be involved. She then directly questioned me about whether I or any members of her
group were sympathetic to or involved in the union efforts. She additionally expressed that she
thought the union would destroy higher education as we knew it and that if the union got its way
our top tier graduate program would be destroyed.” (Pl.’s Aff. at ¶ 22). Plaintiff’s Affidavit
further states:
22.

She also told me that she had spoke to a student in the department who
was vocally anti-union about the upcoming MERC meeting on Monday.
She referenced conversations she had with a friend in the general counsel’s
office about the meeting and the union efforts generally. While I was
sitting in her relatively small office, she began to pull details about the
MERC hearing up on her relatively large computer screen. As she looked,
she directly asked me if I knew who the union officers were. Although I
was treasurer of GEO at that time, I did not answer her. As I left her office
she said she was going to go online and try to find out who the officers
were.

(Pl.’s Aff. at ¶ 23).
On August 8, 2011, Goldman sent Plaintiff an email that began by stating: “I am
20

concerned about your focus and would like you to start making detailed plans for each day using
the biweekly goals sheet. Please let me know if you have access to a copy of it or if you would
like me to send it to you. I would like to see a filled out version of it by the end of the day on
Tuesday.” (Defs.’ Ex. 42). Goldman’s email then listed concerns with the progress of an
abstract that Plaintiff was working on, her research progress, and her communications with her
lab colleagues. The email ending with Goldman stating: “With the planning using the biweekly
goals sheet, I am hoping to help you accelerate your progress . . . I realize you have many other
things going on but an increase in your focus on research is urgently needed. This will probably
require you to decrease your involvement in non-research related activities.” (Id.).
Plaintiff testified that she had conversations with Goldman after that email, wherein
Plaintiff asked Goldman what she meant by non-research activities. (Pl.’s Dep. at 382-83).
Plaintiff testified that in one such conversation, Plaintiff asked Goldman if she was “talking
about GEO, and she said, look, Jennifer, you need to fill out your goals sheet.”
(Pl.’s Dep. at 382-384).
Plaintiff’s Affidavit states that after a MERC meeting August4 8, 2011, many of her
conversations with “Goldman began to focus on my extracurricular activities. When I asked for
clarification about what she meant because I had stopped essentially all activities except for
GEO, she told me, ‘I don’t need to spell it out for you.’” (Pl.’s Aff. at ¶ 25).
Other students working in Goldman’s lab participated in non-research activities. For
example, Eric Zech testified that he played club soccer and that involved practices three or four

4

Plaintiff’s Affidavit states the meeting was on the “8th” without specifying the month and
year. But its appears from Plaintiff’s Stmt. that this meeting was the meeting on August 8, 2011.
(See Pl.’s Stmt. at ¶ 98).
21

times a week and a game or two on the weekends. (Zech Dep. at 43). Zech testified that
Goldman never asked him to scale back any of his extracurricular activities. (Id. at 69). Plaintiff
claims that Goldman treated her differently than other students, like Zech. (Pl.’s Dep. at 267).
But Plaintiff also testified that she was not aware of the amount of time that other students spent
in the lab or their progress in the degree programs. (Pl.’s Dep. at 267-270).
Plaintiff testified that she stopped volunteering at SAPAC in the winter of 2011 term.
(Pl.’s Dep. at 374). Plaintiff testified that she “tried to further reduce hours, commitment,
wearing buttons, anything that was associated with SAPAC in response to what Professor
Goldman was saying.” (Id. at 374). Plaintiff testified, however, that Goldman did not tell her to
stop participating in SAPAC:
Q.
A.
...
Q.
A.

All right. Dr. Goldman never told you specifically you have to stop
participating in SAPAC, did she?
Again, Dr. Goldman and I had conversations about the comments that I
mentioned to you which conveyed an attitude to me.
Ms. Dibbern, I’m not asking who conveyed what to you. I’m asking did
Dr. Goldman tell you stop participating in SAPAC?
In those words, not that I recall.

(Pl.’s Dep. at 375).
On August 9, 2011, Goldman sent Plaintiff an email expressing that she was unhappy
with Plaintiff’s communication with lab mates, and stating that “[m]oving forward, to facilitate
communication with other group members, especially during the weekday/daytime hours, please
do your research activities in the laboratories or common areas such as offices.” (Defs.’ Ex. 43
& 44). The next day Goldman sent Plaintiff another email asking her to “confirm that you have
received this message and that you understand the issues and plan for moving forward.” (Defs.’
Ex. 47). Plaintiff replied that same day, stating “Professor Goldman, I received your email and
22

understand that you would like me to be more readily accessible by conducting research activities
during daytime/weekday hours in the laboratories or common area like the offices.” (Id.).
On August 13, 2011, Goldman sent Plaintiff an email stating: “This letter is a follow-up
to multiple e-mail exchanges and personal conversations in my office. These discussions have
led me to realize that there are some serious issues which need to be documented. Of particular
concern is your level of commitment to doing thesis research in my group, as evidenced by your
limited progress and your limited demonstration of interest in meaningful communication with
the graduate students in my group. At this point, I cannot commit to research funds beyond the
Fall term 2011 unless some extraordinary changes occur.” (Defs.’ Ex. 49). Plaintiff responded,
“I am confirming that I received this email.” (Id.).
In an email to Plaintiff on August 25, 2011, Goldman asked Plaintiff if there were any
updates to her abstract. (Defs.’ Ex. 50). When Plaintiff had not responded by the next day,
Goldman again asked her to respond. Plaintiff responded, discussing the abstract, on August 26,
2011. Goldman replied a few hours later stating, “this abstract seems to be almost identical to
the old one, please indicate what has changed.” (Id.). On August 29, 2011 – three days later –
Goldman sent another email to Plaintiff stating “I have not heard from you. Please respond.”
(Id.).
On August 30, 2011, a week before the start of the Fall term, Goldman sent Plaintiff an
email stating: “As I mentioned in our discussion earlier today, more than 2 weeks have passed
since I wrote the message below, and there [has] been insufficient changes to your demonstrated
level of commitment to doing thesis research in my group to warrant continuation. Therefore, I
will not be able to commit research funds beyond the Fall 2011 term.” (Defs.’ Ex. 52).

23

During his deposition, Green testified that he had some misgivings about how Goldman
handled her termination of Plaintiff from her research group, explaining that Goldman had not
done “anything wrong per se, but the optics of it looked bad” the way Goldman had Plaintiff
leave the group abruptly. (Green Dep. at 71-72). Green explained: “We aren’t in the habit of
saying good-bye in the middle of the semester, I’m not going to support you anymore. I mean, it
does happen, but usually the students are able to find a new advisor and the funding continues, so
somebody picks it up one way or another. And that’s what that was about, I didn’t like the way it
was done.” (Id.).
On September 12, 2011, Plaintiff began a part-time job with the American Federation of
Teachers Michigan union (“AFT”). (Pl.’s Stmt. at ¶ 109; Defs.’ Ex. 53).
On September 16, 2011, Goldman sent Plaintiff an email, on which she copied Green and
Hilgendorf. That email was actually an email thread of the August 9, 2011 thread, that left off
with Plaintiff saying she agreed to the plan. Goldman’s September 16, 2011 addition to that
email thread stated:
Jennifer: More than a month ago, we discussed your participation in the lab,
including your agreement to perform research activities in the laboratories or
office areas during normal “working” hours. You also agreed to let us know (both
myself and those you work with) when you will not be in the lab due to another
commitment related to your GSI mentorship or other activities. These two
expectations are typical for graduate students doing research in experimental
research groups.
We have not reached a cross-road wherein it seems that I am no longer able to
provide you with research mentorship. Please let me know how you would like to
proceed.
For example, perhaps you would rather make a request to have a more substantial
GSI mentorship position?
(Defs.’ Ex. 54).

24

Having received no response from Plaintiff, on September 22, 2011, Goldman sent
Plaintiff an outline of a path to a master’s degree and informed Plaintiff that if she still wanted to
pursue a Ph.D., she would need to find a new advisor. (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 111;
Defs.’ Ex. 55).
On September 26, 2011, Plaintiff and her mother met with Darlene Ray-Johnson and
discussed the leave-of-absence policy and information regarding tuition funding. (Defs.’ Stmt. &
Pl.’s Stmt. at ¶ 113).
That same day, Plaintiff and her mother had an impromptu meeting with Green and
advised him that Goldman was trying to remove Plaintiff from her research group. Green
discussed Plaintiff searching for a new advisor and dropping Goldman’s research class. Neither
Plaintiff nor her mother referenced any sexual harassment during that meeting. (Defs.’ Stmt. &
Pl.’s Stmt. at ¶ 114-116).
On September 27, 2011, Goldman sent Plaintiff a detailed email summarizing the events
of the past few years and informing Plaintiff that because her dissertation research would no
longer be supervised by her, Plaintiff would have to drop Goldman’s section of the research
class. Goldman advised that if Plaintiff was able to locate a new advisor, she could switch to
another section. Goldman confirmed that although she no longer had a research appointment,
Plaintiff would continue to be paid the same amount with a stipend for benefits, asked Plaintiff to
respond with her plans, and offered to discuss the matter. (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 117119). Goldman concluded the email by stating: “Please respond to this message indicating that
you understand the options, and please let us know your plans for this semester (i.e., will you
find a new dissertation advisor or take the tuition-free stipend approach?) You are certainly free

25

to discuss this matter with me, Professor Green, or Associate Dean Gallimore but I am afraid my
decision here is final.” (Defs.’ Ex. 58).
On September 28, 2011, Plaintiff confirmed that she received Goldman’s message. She
also stated that she was “in the process of seeking out additional information, so, I cannot
respond to you with a decision. I want to clarify issues around what it means to be enrolled for
only 1 unit, how that may influence whether I remain in good standing as a graduate student, and
whether it would impede my path to a degree.” (Defs.’ Ex. 59). Hilgendorf, who had been
copied on the email thread, responded the next day that she wanted to clarify a few things:
The continuous enrollment policy was implemented a year ago, last fall 2010
term. Also, enrollment of 1 credit is sufficient to maintain Ph.D student status, it
does not determine “good standing” as you indicate in your e-mail below. Good
academic standing is determined by making satisfactory progress toward
completion of degree requirements, demonstrating the ability to succeed in the
degree program and having a cumulative grade point average of 5.00 (B) or better.
Rackham’s Academic Policies can be found here if you are seeking more
information: http://www.rackham.umich.edu/policies/academic policies/
Let me know if I can help with anything else.
(Defs.’ Ex. 59).
On October 13, 2011, Goldman emailed Plaintiff with information regarding the source
of Plaintiff’s funding, reiterating information about Plaintiff’s ability to obtain her master’s
degree or search for a new advisor (including that the department would assist in the search),
again advising that Plaintiff would need to transfer her research course registration, and asking
that Plaintiff return her notebooks and other lab items. (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 122).
On October 18, 2011, after Plaintiff had not responded after five days, Goldman sent
Plaintiff another email. (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 123).

26

On November 17, 2011, Plaintiff began working for the AFT as a full-time employee.
(Defs.’ Ex. 62).
Although Plaintiff was not doing research in any lab, was not working as a teaching
assistant, and in fact had taken an outside full-time job, Plaintiff continued to receive funding for
the Fall 2001 term. (Defs.’ Stmt. & Pl.’s Stmt. at 125).
Plaintiff contends that a “secret” meeting took place on December 1, 2011, that Goldman
attended along with Jeffrey Frumkin of the Academic Human Resource Office. (See Pl.’s Stmt.
at 196-198). Frumkin testified:
Q.
A.
Q.
A.
Q.
A.

Q.
A.
Q.
A.

Do you ever recall having a conversation with Professor Goldman
regarding her opinion of the organizing campaign?
Yes.
When was that?
That would have been at the December meeting.
What did she tell you about her opinion of the organizing campaign?
In general, she said that she didn’t think GSRAs, it was appropriate for
GSRAs to organize. She also said that there was – it was one of the items
that she listed as taking time away from Jennifer Dibbern’s studies.
What other items, if you recall, what other items did she list?
With respect to her studies?
Yes.
There was a reference to another academic class and reference to her
involvement or work with SAPAC, which is a sexual assault and
prevention organization that I believe is a part of the Student Life
organization of the University.

(Frumkin Dep. at 39-40). Green testified that he was aware of a December 1, 2011 meeting
before it occurred but that he did not attend it. (Green Dep. at 185). Green further appears to
have testified that someone at that December 1, 2011 meeting decided to terminate Plaintiff from
the program. (Id. at 188).
On December 2, 2011, Elizabeth Wagner, Office of the Associate Dean for Research and
Graduate Education sent an email to Denise Edmund, and copying several people including
27

Hilgendorf, Green, and Ray-Johnson, stating: “Will you please discontinue Ms. Jennifer Dibbern
[student number], Materials Science and Engineering, from the Ph.D program effective today?”
(Pl.’s Ex. 41). Edmund responded that same day that Plaintiff had been discontinued from the
program that day. (Id.).
On December 13, 2011, the last day of classes for the semester, Plaintiff requested that
she be transferred into Green’s research section to receive a grade in MSE 990.5 (Defs.’ Stmt. at
¶ 126; Pl.’s Stmt. at ¶ 126). Plaintiff testified that she told Green that Goldman had told her that
if she did not find another advisor that Green would grade her research units. Green told Plaintiff
that he did not know anything about what she was talking about. Plaintiff testified that she
offered to show Green an email from Goldman about the issue but Green did not want to see it.
Plaintiff testified that Green told her that he could not grade Plaintiff’s research class because he
had not seen her do any research work. (Pl.’s Dep. at 302-03).
Green told Plaintiff that it was too late to change sections on the last day of classes and
that he could not give Plaintiff a grade in MSE 990 when Plaintiff had not been doing research
and he had not seen her do work. (Id.; Green Dep. at 167, 192-93).
Defendants’ Motion asserts that Green made the decision to recommend that Plaintiff be
dismissed from the program. (See Defs.’ Stmt. at ¶ 128). But as Plaintiff notes in her Statement,
there is conflicting evidence as to who made the decision to dismiss Plaintiff from the program
and when it was made. Green’s testimony includes:

5

Green explained that 990 class was akin to an independent study class with Goldman and
doing research in Goldman’s group. (Green Dep. at 72-73). Thus, once Plaintiff was no longer
doing research with Goldman, the only way she could complete the course would be to reregister for the class with a new advisor, who would oversee her research. (Id. at 72-74).
28

Q.
A.
....
Q.
A.
Q.
A.

....
Q.
A.
....
Q.
A.
Q.
A.
Q.
A.

You were involved in kicking Ms. Dibbern out of the Engineering Ph.D
program, right?
Yes, ultimately as a department chair, I had to write a letter. . .
So you weren’t part of any committee to recommend academic dismissal
to Rackham?
I didn’t make the decision and I wasn’t at a meeting where the decision
was made.
Well somebody asked you to communicate that to Rackham or to her or –
I’m the department chair, so by definition it’s my responsibility. And at the
time I was absolutely convinced and totally in agreement that this is what
made sense. There is no other way to look at it. I had no other way of
looking at it, period. It was a very honorable decision. At least in my
mind. And I can’t see any other ways you could have looked at it.
Is it possible that it was already decided that she was going to be dismissed
by the 9th of November?
I don’t know.
Well, there was a meeting on December 1st, but you don’t know what the
topic was, right?
I wasn’t part of that meeting, that’s right, I don’t know what was discussed
in detail.
Somebody else – you weren’t part of that and somebody else, you suspect,
at least, somebody else decided to dismiss her from the program?
Well, that would be the conclusion.
And that was on December 2nd and Ms. Dibbern wasn’t provided any
notice of this at the time at all, was she?
I don’t know. I don’t know.

(Green Dep. at 29, 159,178).
On December 16, 2011, Plaintiff brought five GEO representatives with her to a meeting
with Green, Hilgendorf, Student Advocacy Manager Angie Farreerhi and Project Manager for
COE Research and Graduate Education Elizabeth Wagner. At that meeting, Plaintiff was
advised that it had been recommended that Rackham discontinue Plaintiff from the Ph.D
program because of lack of research progress. (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 129-30). Plaintiff
testified that it was a tense meeting and that Green told her “he was discontinuing me from the

29

program, that his decision was final and there would be no discussion or meetings further about
it.” (Pl.’s Dep. at 310).
On December 16, 2011, Green sent Plaintiff a letter that stated: “I regret to inform you
that due to your lack of progress on your thesis research, we are recommending that the Rackham
Graduate School discontinue your enrollment in the Materials Science and Engineering Program.
As we discussed in our meeting in September, and again today, you have enough credits to leave
the program with a Master’s degree in Materials Science and Engineering.” (Defs.’ Ex. 65). The
letter advised Plaintiff to contact University officials by December 20, 2011 if Plaintiff wished to
obtain a master’s degree. The letter also informed Plaintiff “If you wish to appeal this decision,
please contact Ms. Darlene Ray-Johnson at Rackham Graduate School.” (Id.).
During her March 18, 2014 deposition, Plaintiff testified that she could not recall if she
discussed the appeals process with Darlene Ray-Johnson. (Pl.’s Dep. at 410-11).
In any event, Plaintiff did not file an appeal of her dismissal. (Defs.’ Stmt. & Pl.’s Stmt.
at ¶ 133).
On or about January 18, 2012, Plaintiff held a news conference regarding her dismissal,
where she was accompanied by GEO leader Samantha Montgomery. In that news conference,
Plaintiff proclaimed “she was . . . unjustly fired from her position on Aug. 30 for talking openly
about her support for GSRA unionization” but did not refer to sexual harassment or retaliation
related to reporting allegations of sexual harassment. (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 151; Defs.’
Ex. 77).
On February 3, 2012, Goldman forwarded an e-mail to Zech, with a subject line of GSRA
Campaign & Student Intimidation. (Ex. 20 to Pl.’s Br.). The e-mail Goldman forwarded was

30

from a professor in the University’s School of Social Work and it appears to suggest some kind
of public response from students and references “I think the best possible respondents are
students (the students who are/were in Rachel’s group), whose letter was very powerful.” (Id.).
On February 9, 2012, the Michigan Daily published a letter to the editor written by Eric
Zech, a student that Plaintiff had worked with in Goldman’s lab. (Pl.’s Ex. 20). It was titled,
“Letter to the Editor: Jennifer Dibbern’s claims are factually inaccurate” and it began by stating:
“My name is Eric Zech, and I’m a GSRA working in Engineering Prof. Goldman’s research
group at the University. I am writing this letter in response to the current issue regarding Jennifer
Dibbern and her claim that she was wrongfully terminated from her position as GSRA based on
unionization efforts.” Zech’s letter stated, among other things, that “[t]he allegations Ms.
Dibbern is making against the University and Goldman are completely false and should not be
passed along as fact. It’s wrong that she is making false claims and is gaining support from many
people based on no factual evidence.” (Id.). It ended by saying: “I am writing this letter on my
own accord to help inform you or the facts, because I believe in standing up for the truth. Thank
you for taking time to read this letter and I sincerely hope it helps shed truth on the situation.”
(Id.).
In response to communications that Plaintiff had with a University Regent, Provost Philip
Hanlon arranged a meeting with Plaintiff. On February 13, 2012, Plaintiff met with Provost
Hanlon, Associate General Counsel Christine Gerdes, outside counsel David Fink, SAPAC
Director Holly Rider-Milkovich, two representatives from the GEO and a representative from the
AFT. At the outset of the meeting, Plaintiff stated that: 1) she did not want the University to
pursue any investigation; and 2) she would not participate in an investigation if one were started.

31

During the meeting, Plaintiff described three incidents of harassment from the 2007-2008
academic year. (Defs.’ Stmt. & Pl.’s Stmt. at ¶¶ 135-138).
Plaintiff admits that, during the February 13, 2012 meeting, she did not discuss any
incidents that occurred after December 2009, did not disclose the names of the pre-limitations
alleged harassers, and did not provide any specifics regarding the alleged harassment. When
asked what Plaintiff envisioned as “next steps”, Plaintiff stated that she would send an email with
suggestions, but neither Plaintiff nor her union representatives ever did so. (Defs.’ Stmt. & Pl.’s
Stmt. at ¶¶ 139-140).
Following the meeting, Plaintiff received a letter from OSCR providing information
about available resources and University procedures. The letter attached the Survivors of Sexual
Assault Handbook, the Statement of Student Rights and Responsibilities, the sexual harassment
procedure. Plaintiff did not file a complaint after receiving this information. (Defs.’ Stmt. &
Pl.’s Stmt. at ¶¶ 141-143).
On May 3, 2012, Kathleen Donohoe, Associate Director, HR Strategy, Planning and
Policy emailed Plaintiff and requested a meeting to investigate the allegations. Plaintiff, through
her attorney, declined. (Defs.’ Stmt. & Pl.’s Stmt. at ¶¶ 144-45).
Plaintiff filed this lawsuit on December 21, 2012. In addition, on June 18, 2013,
Plaintiff’s counsel filed a complaint with the U.S. Department of Education. The Department of
Education rejected Plaintiff’s complaint because the allegations were untimely. (Defs.’ Stmt. &
Pl.’s Stmt. at ¶¶ 146-148).
STANDARD OF DECISION
Summary judgment will be granted where there exists no genuine issue of material fact.

32

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact
exists where “the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party.” Matsushita Elect. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252.
The Court “must view the evidence, all facts, and any inferences that may be drawn from
the facts in the light most favorable to the non-moving party.” Skousen v. Brighton High Sch.,
305 F.3d 520, 526 (6th Cir. 2002). “The court’s duty to view the facts in the light most favorable
to the nonmovant does not require or permit the court to accept mere allegations that are not
supported by factual evidence.” Chappell v. City of Cleveland, 585 F.3d 901, 906 (6th Cir. 2009).
“This is so because the nonmovant, in response to a properly made and supported motion for
summary judgment, cannot rely merely on allegations but must set out specific facts showing a
genuine issue for trial.” Id.
ANALYSIS
I.

Statute-Of-Limitations Challenges to Pre-December 21, 2009 Claims Asserted In
Counts I, III, VI, and VII.
In this action, Plaintiff asserts claims under: 1) Title IX (Counts I & II); 2) § 1983

(Counts III, IV, & V); and 3) Michigan’s ELCRA (Counts VI, VII & VIII). It is undisputed that a
three-year statute of limitation applies to each of those claims in this action and this Court has
previously stated so. 11/18/13 Opinion & Order at 12; see also Mich. Comp. Laws §
600.5805(10); Garg v. Macomb Cnty. Mental Health Svs., 472 Mich. 263, 284 (2005). Federal
law governs when the statute of limitations begins to run. Generally, the statute limitations
33

begins to run when the plaintiff knew or through the exercise of reasonable diligence should have
known of the injury that forms the basis of her action. Sharpe v. Cureton, 319 F.3d 259, 255 (6th
Cir. 2003).
Plaintiff filed this action on December 21, 2012. In the pending motion, Defendants
contend that events occurring prior to December 21, 2009, are therefore outside of the limitations
period.
Defendants ask the Court to dismiss all “pre-December 21, 2009 claims” asserted in
Count I, Count III, Count VI, and Count VII. (Defs.’ Br. at 5). Defendants’ motion asserts that
the continuing violations doctrine does not apply to state-law claims or to Title IX claims.
Defendants state that the other four remaining Counts (Counts II, IV, V, and VIII) do not assert
claims based on pre-December 21, 2009 events. (Id. at n.1). Thus, Defendants do not make
statute-of-limitations arguments as to those counts.
A.

Count VI

Defendants assert that because Michigan law does not recognize the continuing violations
doctrine, any claims of sexual discrimination or harassment that are based on events that are
alleged to have occurred prior to December 21, 2009 are time-barred. They note that the only
alleged sexual harassment that Plaintiff has alleged after that date is Plaintiff having received
“respirator kisses” from Michigan Warren.
In her response brief, Plaintiff acknowledges that the “Michigan Supreme Court rejected
the doctrine of ‘continuing violations’ with respect to ELCRA.” (Pl.’s Br. at 33 n.6).
Plaintiff then argues that “Michael Warren’s ‘respirator kisses’ is actionable conduct
within the three-year limitations period.” (Pl.’s Br. at 31). Plaintiff does not identify any other

34

alleged sexual harassment that occurred after December 21, 2009. But Defendants do not argue
that a claim based on the respirator kisses is time-barred. Rather, they argue that conduct is not
actionable for other reasons that will be addressed later.
The Court concludes that Plaintiff cannot pursue Count VI claims based on any alleged
actions that occurred prior to December 21, 2009.
B.

Count VII

In Count VII, Plaintiff asserts that the “University’s maintenance of non-compliant
policies” has “a disparate impact on female students” in violation of Michigan’s ELCRA.
(Compl. at 41).
Defendants contend that claim, which is also subject to a three-year statute of limitation,
is time-barred:
The policies at issue were in place from the time of Plaintiff’s arrival at the
University through August 2011. It is not clear that Plaintiff ever read the policies,
but she alleges that she had communications with the University regarding the
complaint process in January 2009 and concluded she “had no real or effective
recourse” at that time (Dkt#23, ¶67). Plaintiff does not allege that any new noncompliant policy was adopted within the limitations period. Since the act of
adopting a policy that had a disparate impact took place prior to December 21,
2009, and Plaintiff was aware of her dissatisfaction with the policy as of January
2009, Count VII is barred by the statute of limitations.
(Defs.’ Br. at 5-6).
In response, Plaintiff argues that her disparate impact claim under the ELCRA is not
time-barred “the policy’s impact was felt after December 21, 2009 and into the limitations
period” and “it is the continued existence of the discriminatory policy that is important. Every
time Plaintiff was harassed while the discriminatory policy was in effect, including the postDecember 21, 2009 “respirator kisses” incident, Plaintiff was injured anew.” (Pl.’s Br. at 26).

35

The Court agrees that argument must be rejected for the reason concisely explained by
Defendants:
Plaintiff argues that her ELCRA disparate impact claim (Count VII) is timely
because “the policy’s impact was felt” after 12/21/09. It is undisputed that the
“continuing violations” doctrine does not apply to state law claims. Plaintiff must
show an unlawful act within the limitations period. Plaintiff’s disparate impact
claim turns on the legality of the policy, and no new non-compliant policy was
adopted during the limitations period, nor was the policy ever applied to Plaintiff
during the limitations period, as Plaintiff never pursued a complaint under the old
(or new) policy.
(Defs.’ Reply Br. at 2). The Court shall dismiss Count VII as time-barred.6
C.

Counts I and Count III (To The Extent It Also Alleges Hostile Educational
Environment In Violation Of Title IX).

Defendants note that the continuing violations doctrine does not apply to claims involving
discrete acts, including claims of discrimination and retaliation. (Defs.’ Br. at 7) (citing National
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 112 (2002)).
Defendants then state that what remains for consideration by the Court here is whether
the continuing violations doctrine applies to Plaintiff’s federal claims for hostile work
environment, which appear7 to be brought under Count I and Count III. Defendants contend that
the continuing violations doctrine should not be applied because the Sixth Circuit has never
extended the doctrine to Title IX claims. (Defs.’ Br. at 7-8). They further assert that even if the
doctrine were applied, it still would not render events occurring prior to December 21, 2009

6

Given that ruling, this Court need not address Defendants’ alternative arguments as to
why this claim fails, such as Plaintiff’s failure to support her claim with a relevant statistical
analysis.
7

As discussed at the May 12, 2016 hearing, despite its title, Plaintiff’s “Equal Protection
Count” is actually a duplicate claim that Plaintiff was subjected to a hostile educational
environment in violation of Title IX.
36

timely under the circumstances presented here. (Defs.’ Br. at 8-10).
Plaintiff, on the other hand, contends that the continuing violations doctrine should be
applied to her Title IX claims (Pl.’s Br. at x and 32-33). But Plaintiff herself notes that the Sixth
Circuit has not ever extended the doctrine to Title IX claims (Pl.’s Br. at 33 n.6).
The Sixth Circuit has explained that “Courts have been extremely reluctant to apply” the
continuing violations doctrine “outside of the context of Title VII.” LRL Properties v. Portage
Metro Housing Auth., 55 F.3d 1097, 1105 n.3 (6th Cir. 1995). There are no Title VII claims in
this action and the Sixth Circuit has never before applied the continuing violations doctrine to
Title IX claims. This Court concludes that the continuing violations doctrine does not apply and,
therefore, any Title IX claims asserted in Counts I or III that are based upon pre-December 21,
2009 incidents are time-barred.
II.

Challenges To Plaintiff’s Student-On-Student Sexual Harassment Claims (Counts I
and VI)
Defendants challenge Plaintiff’s sexual harassment claims on several grounds.

Defendants note that in Counts I and VI Plaintiff alleges that she was discriminated against on
the basis of her sex in violation of Title IX and Michigan’s ELCRA because she experienced
sexual harassment that created a hostile educational environment.
Student-on-student harassment – which is the form of harassment alleged by Plaintiff –
can create cause of action under Title IX “in certain limited circumstances.” Davis v. Monroe
Cnty. Bd. of Educ., 526 U.S. 629, 643 (1999). Both parties agree that in order to establish a case
of student-on-student harassment under Title IX, the plaintiff must demonstrate: 1) that 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 school;
37

2) that the funding recipient had actual knowledge of the sexual harassment; and 3) that the
funding recipient was deliberately indifferent to the harassment. (Defs.’ Br. at 10 & Pl.’s Br. at
30) (citing Soper v. Hoben, 195 F.3d 845, 854 (6th Cir. 1999)).
Plaintiff acknowledges that the “requirements of Plaintiff’s claim under ELCRA are
substantially similar.” (Pl.’s Br. at 30). That is, Plaintiff must prove: 1) that she belonged to a
protected group; 2) that she was subjected to communication or conduct on the basis of sex; 3)
that she was subjected to unwelcome sexual conduct or communication; 4) that the unwelcome
sexual conduct or communication was intended to or in fact did substantially interfere with
plaintiff’s educational opportunities or created an intimidating, hostile, or offensive educational
environment; and 5) respondeat superior. Henderson v. Walled Lake Consol. Schools, 469 F.3d
479, 489 (6th Cir. 2006).
Defendants contend that they are entitled to summary judgment with respect to these two
counts on several bases: 1) Plaintiff cannot establish a hostile environment during the relevant
period (Defs.’ Br. at 11-12); 2) Plaintiff cannot establish that the University had notice of
harassment which would allow the University to act (Id. at 12-15); 3) Plaintiff cannot establish
that the University was deliberately indifferent or failed to take adequate remedial action (Id. at
15-20); and 4) there is no basis for imposing liability against the individual Defendants with
respect to these two counts (Id. at 20-22).
The Court shall dismiss Counts I and VI because Plaintiff cannot establish that she
suffered severe and pervasive harassment after December 21, 2009.
The standard is an objective one – whether the alleged sexual harassment was so severe,
pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the

38

educational opportunities or benefits provided by the school.
The only post-December 21, 2009 conduct of an alleged sexual nature that Plaintiff
identifies is Plaintiff having experienced Michael Warren’s “respirator kisses.” In the “Summary
of Key Facts” section of her response (Pl.’s Br. at 3), Plaintiff states that she was subjected to
unwelcome conduct in the lab that was of a sexual nature and directs the Court to pages 349-50
of her deposition, wherein she described the “respirator kisses” from Michael Warren as follows:
A.

Q.
A.
Q.
A.
Q.
A.

Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

Sure. So molecular epitaxy is equipment that operates – this is somewhat
necessary – operates at high vacuum, and so when you – if something
breaks in the machine, part of the reason why it takes a while to fix things,
because you have to vent the system and then clean it out. But a lot of
what – it’s a self-contained environment, so a lot of what goes on in there
is it’s okay when you’re working in there normally to not have respirators
on, but when you’re cleaning it, you have to wear a bunny suit and a
respirator.
Okay.
And so we’d be wearing a bunny suit, which is – are you familiar with
what that is?
Yes.
– and then a respirator that we had fitted to filter particulates.
Okay.
And so he would – it’s like – it took different forms. He’d come up from
behind you and, like, try to reach around, and he would try to push his
respirator into your respirator.
So you’d be sort of mask to mask –
Uh-hu.
– is that correct?
Mask to mask or he would do masks to cheek or he would try to like, grab
your head and, like, force you mask to mask.
And what would you do when he did this?
It happened numerous times. Some of the responses I gave were no, like,
don’t do that, stop it, knock it off, what do you think you’re doing.
And this continued throughout winter 2010?
Yeah.
Did anybody else see it?
It’s possible.

(Pl.’s Dep. at 349-50). Plaintiff testified that she does not know if Dr. Pollock or Dr. Goldman

39

ever saw that conduct.
Although not included in Plaintiff’s brief, the Court notes that Plaintiff also testified that,
on one occasion, Dr. Goldman held a group meeting in a small space and Michael Warren sat in
the seat next to Plaintiff, and started to put his head on Plaintiff’s shoulder, but Plaintiff pushed
him off. (Pl.’s Dep. at 351). Plaintiff also testified that, on one occasion after November of
2009, she was walking down the hall when she passed two students, John and Denis. Plaintiff
testified that Denis “said bat shit crazy, and John said yeah and laughed.” (Pl.’s Dep. at 243-44).
The Court concludes that the conduct alleged by Plaintiff after December 21, 2009 is not
sufficiently severe or pervasive enough to support a claim. The Court shall grant summary
judgment in Defendants’ favor with respect to Counts I and VI. 8
III.

Challenges To Plaintiff’s Retaliation Claims (Counts II, V, and VIII)
In Counts II and VIII, Plaintiff alleges that she was retaliated against after having engaged

in protected activity under Title IX9 and the ELCRA. In Count V, Plaintiff asserts a First
Amendment retaliation claim.
At the summary judgment stage, a plaintiff must adduce either direct or circumstantial
evidence to prevail on a retaliation claim. Here, however, Plaintiff has not come forward with
any direct10 evidence of retaliation. Rather, she seeks to proceed under the circumstantial

8

Given this ruling, the Court need not analyze Defendants’ additional challenges to these

counts.
9

The parties agree that a “claim of retaliation under Title IX should be analyzed using the
same legal framework as Title VI retaliation claims. (See Pl.’s Br. at 11).
10

Plaintiff’s brief does not assert that any direct evidence of retaliation exists. During oral
argument, Plaintiff’s Counsel attempted to characterize Frumkin’s deposition testimony as
40

evidence approach.
“Retaliation claims supported by circumstantial evidence are examined using the
burden-shifting framework” established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Fuhr v.
Hazel Park Sch. Dist., 710 F.3d 668, 675 (6th Cir. 2013).
Once a plaintiff establishes such a prima facie case, the burden then shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for the adverse action. If the
defendant articulates such a reason, then the Plaintiff has the burden of showing that the
articulated reason is in reality a pretext to mask discrimination. Id. At that point, the burden
again shifts to the plaintiff to demonstrate that the defendant’s proffered reason represents a mere
pretext for unlawful discrimination. Id.
A plaintiff can refute the legitimate, nondiscriminatory reason that a defendant offers to
justify an adverse action by showing that the proffered reason: 1) had no basis in fact; 2) did not
actually motivate the defendant’s challenged conduct; or 3) was insufficient to warrant the
challenged conduct. Wexler v. White Fine Furniture, 317 F.3d 564, 576 (6th Cir. 2003).
Where, as here, a case is at the summary judgment stage, a plaintiff seeking to prove
illegal retaliation via indirect evidence must submit sufficient evidence from which a reasonable
jury could conclude that the defendant’s legitimate, nondiscriminatory reasons for its actions are
a pretext for unlawful discrimination. Vincent v. Brewer, 514 F.3d 489, 494 (6th Cir. 2007).

“direct evidence” of retaliation. “Direct evidence is evidence that proves the existence of a fact
without requiring any inferences.” Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544,
548 (6th Cir. 2004). While Frumkin’s testimony may be considered circumstantial evidence of
retaliation, it is not direct evidence.
41

The parties agree as to the general standards for determining whether a plaintiff can
establish a prima facie case of retaliation under Title IX and the ELCRA. (Defs.’ Br. at 25-26;
Pl.’s Br. at 10-11). To establish a prima face case of retaliation, Plaintiff must show: 1) that she
engaged in protected activity; 2) that was known by a defendant; 3) that she suffered a materially
adverse educational action; and 4) there is a causal connection between the protected activity and
the adverse action. (Id.). It is also undisputed that for purposes of Plaintiff’s retaliation claim
under Title IX, Plaintiff must establish “but for” causation. For purposes of her retaliation claim
under the ELCRA Plaintiff must show the protected activity was a “significant factor.” (Id.).
The parties likewise agree that to establish a prima facie First Amendment retaliation
claim, Plaintiff must demonstrate that: 1) she engaged in “constitutionally protected conduct;” 2)
Defendant took an adverse action against her that would deter an ordinary person from
continuing to engage in that conduct; 3) the protected conduct was a substantial or motivating
factor in the adverse action. (Defs.’ Br. at 39; Pl.’s Br. at 11).
In Counts II, V, and VIII of Plaintiff’s Second Amended Complaint, Plaintiff alleged that
she suffered a number of adverse actions, including: 1) being dropped by her first academic
advisor, Pollock, on December 23, 2009; 2) being dropped by her second advisor, Goldman; 3)
being terminated from the program; 4) being “publicly denigrated by other graduate students who
were acting, based on information and belief, at the aid and encouragement of engineering
faculty;” and 5) having “educational information publicly disclosed and shared in a violation of
federal law, common law privacy rights, and with the direct and foreseeable purpose of inflicting
emotional distress.” (Compl. at 35-36, 39, & 43).
In response to this Court’s April 29, 2016, Order, Plaintiff clarified for the Court which

42

adverse actions she intends to pursue if her retaliation claims proceed to trial: 1) Pollock having
terminated Plaintiff’s research position on December 23, 2009; 2) Goldman having terminated
Plaintiff’s research position; 3) Plaintiff’s dismissal from the Ph.D. program in December of
2011; and 4) the alleged “smear campaign,” being publicly denigrated by other graduate students,
who were acting upon encouragement of engineering faculty. (See Docket Entry Nos. 134 &
136).
A.

Pollock Terminating Plaintiff’s Research Position On December 23, 2009

At the May 12, 2016 hearing, Plaintiff’s Counsel acknowledged11 that the only protected
activity that could support a retaliation claim concerning Pollock terminating Plaintiff’s research
position was Plaintiff’s reports of sexual harassment to Pollock.
According to Plaintiff’s testimony, Plaintiff made a rather vague report about harassment
to Pollock in November of 2007. In addition, Plaintiff testified that in May of 2008, she told
Pollock that the harassment had gotten worse and that “the men harassing me had threatened to
rape me” but that Pollock cut Plaintiff off mid-sentence and said, “Jennifer, these things
sometimes happen. We just have to get over it, and get back to life.” (Pl.’s Dep. at 198-99; Pl.’s
Aff. at ¶ 9). In responding to the pending motion, Plaintiff now states that “[a]t the May 19, 2008
meeting, [she] followed the advice of CAPS and SAPAC and once again told Pollock about her

11

Even if Plaintiff had not so acknowledged, the Court notes that the January 2009 report
of stalking to campus police cannot constitute protected activity as to this claim because there is
no evidence that Pollock was ever aware of that report. Moreover, the Court fails to see how
Plaintiff’s stalking report to Campus Security could be considered protected activity under either
the ELCRA or Title IX. Plaintiff did not make a complaint of an ELCRA violation, nor did she
complain about sex discrimination under Title IX. Rather, Plaintiff expressed that she may want
to make a police report about alleged criminal conduct, stalking and assault. Finally, Plaintiff’s
alleged work with SAPAC and the union could not constitute protected activity as to this adverse
action because that conduct occurred years after this adverse action.
43

ongoing harassment and the types of comments her harassers were making but was cut off before
she could discuss the rape threats.” (Pl.’s Stmt. at ¶ 36). Thus, construing the facts in the light
most favorable to Plaintiff, Pollock did not take seriously or “blew off” Plaintiff’s reports of
sexual harassment by other students.
Notably, however, after the reports of harassment to Pollock, in the summer of 2009,
Pollock offered to take Plaintiff with her to UC so that Plaintiff could continue on as her student.
When Plaintiff declined Pollock’s offer, Pollock then offered to write Plaintiff a letter of
recommendation.
And Plaintiff did not terminate Plaintiff’s research funding until December 23, 2009 –
more than a year and a half after Plaintiff made her second and last complaint about sexual
harassment to Pollock. Plaintiff cannot establish a causal connection by that extended temporal
proximity and Plaintiff has not directed the Court to any other evidence that could establish a
causal connection between Plaintiff having reported harassment to Pollock in November
2007/May 2008 and Plaintiff having terminated Plaintiff’s research position in December 23,
2009.
The Court concludes that Plaintiff cannot establish a prima facie case of retaliation as to
Pollock’s termination of Plaintiff’s research position. The Court will therefore grant summary
judgment in favor of Defendants as to those portions of Plaintiff’s retaliation counts that assert a
claim based on Pollock having terminated Plaintiff’s research position.
B.

“Smear Campaign” (Being Publicly Denigrated By Other Students, Who
Were Acting Upon Encouragement Of Engineering Faculty)

Although Plaintiff’s Second Amended Complaint asserted retaliation claims based upon
the alleged adverse action of a “smear campaign” (ie., being publicly denigrated by other
44

graduate students, who were acting upon encouragement of engineering faculty), Defendants’
Motion for Summary Judgment did not include any challenges specific to that claim, or analysis
as to that claim.
Plaintiff’s papers make clear that she still intends to pursue retaliation claims based upon
that alleged adverse action.
Defendants have not established that they are entitled to summary judgment with respect
to those portions of Plaintiff’s retaliation counts that assert a claim based upon this alleged
adverse action.
C.

Goldman Terminating Plaintiff’s Research Position And Plaintiff’s Dismissal
From The University’s Ph.D Program

Defendants do not dispute that Plaintiff’s alleged complaints about student-on-student
harassment made to Pollock, Goldman, and Hilgendorf constitute protected activity for purposes
of Plaintiff’s retaliation claims under the ELCRA and Title IX.
Defendants also concede that Plaintiff’s efforts to change the University’s antiharassment policy constitutes activity protected by the First Amendment. (Defs.’ Reply Br. at
10).
But Plaintiff also contends that her conduct and speech in connection with union
organizing is protected conduct with respect to her First Amendment Retaliation claim. In their
Reply Brief, “Defendants deny that Plaintiff has adequately pled that she was retaliated against
for general union activities (See Dkt#23, ¶¶32, 132, 155).” (Defs.’ Reply Br. at 10).
The Court disagrees, as Plaintiff’s First Amendment Retaliation Count itself includes the
following allegation:
155.

Retaliatory actions were motivated in all or in part by Plaintiff’s speech
45

to address and remedy systemic failures to comply with state and federal
law, including but not limited to, Plaintiff’s actions to report and address
individual harassment, Plaintiff’s actions to organize graduate student
instructors and graduate student research assistants to negotiate
collectively on the terms and conditions of employment, and Plaintiff’s
advocacy to promote training and other policy changes designed to bring
the University within compliance with state and federal law.
(Compl. at ¶ 55) (emphasis added). Accordingly, for purposes of Plaintiff’s First Amendment
Retaliation Count, the Court concludes that her protected activity includes Plaintiff’s advocating
for victims of sexual assault through SAPAC, her efforts to change the University’s antiharassment policy, and her union-organizing activity.
The Court concludes that, construing the evidence in the light most favorable to Plaintiff,
it appears12 that Plaintiff can establish a prima facie case of retaliation as to the adverse actions of
having been terminated from her research position with Goldman in August/September of 2011
and having been dismissed from the University’s Ph.D program in December of 2011.
Construing the evidence in the light most favorable to Plaintiff, Plaintiff has sufficient evidence
to show a causal connection between her protected activity and Goldman’s decision to terminate
her research position and recommend her dismissal from the program. For example, Goldman

12

At the May 12, 2011 hearing, Counsel for Defendants made an argument that was not
included in their Motion for Summary Judgment – that Plaintiff cannot pursue a First
Amendment retaliation claim based on her union-organizing activity at issue in this case because
such conduct should not be considered a matter of public concern. The Court recognizes that
there are certain nuances in the law as to first amendment retaliation claims when the plaintiff is
a public employee. See Devlin v. Kalm, 531 F. A’ppx 697, 704 (6th Cir. 2013); City of Elyria,
502 F.3d 484, 492 (6th Cir. 2007). But because this challenge was not included in Defendants’
motion, neither party briefed the issue. As such, the Court declines to make any rulings on the
issue in connection with the pending motion.

46

knew of Plaintiff’s union-organizing activity and expressed disapproval of the union on several
occasions. Goldman’s warning letters to Plaintiff are very close in time to events concerning
Plaintiff’s union-organizing activity. Goldman told Plaintiff to stop her activities outside of
research, but did not tell others to do that. And Goldman referenced Plaintiff’s union-organizing
activities and SAPAC work in a meeting wherein some kind of decision to terminate Plaintiff
from the program was made.
The Court further concludes that much of this same type of evidence could also be used
to show that Defendants’ stated reasons for these adverse actions (poor lab performance and
failure to make sufficient progress toward her degree) are a pretext for illegal retaliation.
Accordingly, Defendants have not established that they are entitled to summary judgment
as those portions of Plaintiff’s retaliation counts that are based upon the adverse actions of
having been terminated from her research position with Goldman and having been dismissed
from the Ph.D program.
VI.

Challenges To Plaintiff’s Remaining Constitutional Claims (Counts III & IV)
Defendants’ motion also challenges both of Plaintiff’s remaining Constitutional claims

(Counts III and IV).
A.

Equal Protection Claim (Counts III)

In Count III, Plaintiff asserts an “Equal Protection” claim under 42 U.S.C. § 1983. On
page 31 of their brief, Defendants note that in Count III, Plaintiff does not contain any specific
allegation of sex discrimination. Rather, Count III alleges that “Plaintiff is a female and a former
graduate student and employee of the University, a state institution bound by the Constitution to
provide equal protection of the laws.” (Compl. at 36). It then alleges that “[t]he conduct of
47

students and faculty condoned and fostered by the University was intentional and was sufficiently
severe or pervasive as to interfere unreasonably in Plaintiffs’ educational activities.” (Id.). Thus,
Defendants understandably treated this count as a duplicate of her Title IX hostile work
environment claim. As discussed in prior sections of this Opinion & Order, to the extent this
count is a duplicate of count based on student-on-student sexual harassment, Defendants are
entitled to summary judgment.
Out of caution, Defendants also assert that to the extent that Count III is purporting to
assert a traditional equal protection claim (ie., that the University violated Plaintiff’s right to
equal protection by treating a similarly-situated male student better), the claim also fails. (Defs.’
Br. at 31-32).
The Court agrees.
Both parties agree that to prove an equal protection violation, Plaintiff must prove the
same elements as required for a disparate treatment claim under Title VII. (Defs.’ s Br. at 31;
Pl.’s Br. at 37). That is, Plaintiff must show that she was treated differently than similarlysituated male graduate students/research employees. Dixon v. University of Toledo, 702 F.3d
269, 278-79 (6th Cir. 2012); Singfield v. Akron Metro. Housing Auth., 389 F.3d 555, 566-67 (6th
Cir. 2004).
Here, Plaintiff’s equal protection claim fails because Plaintiff does not: 1) allege that
males complaining of harassment were treated differently; 2) allege that males with comparable
lab performance (e.g., lack of research progress, failure to respond to e-mails on a timely basis)
were treated differently; or 3) allege that males who had not become Ph.D, candidates after four
and a half years were treated differently. Nor has Plaintiff presented the Court with any such

48

evidence in response to Defendants’ properly-supported Motion for Summary Judgment. As
result, Defendants are entitled to summary judgment with respect to Count III. Bell v. Ohio State
Univ., 351 F.3d 240, 252 (6th Cir. 2003).
B.

Due Process Claim (Count IV)

In Count IV, Plaintiff asserts a due process violation claim under 28 U.S.C. § 1983.
Plaintiff contends that “[t]he actions of Defendants in dismissing Plaintiff from the COE violated
Plaintiff’s due process rights under the Fourteenth Amendment to the United States Constitution.
U.S. Const. amend. XIV.” (Pl.’s Br. at 21).
Although not specified in her Complaint, it appears from Plaintiff’s brief that she asserts
both a substantive and procedural due process claim. (Id. at 21-22).
1.

Substantive Due Process

In her brief, Plaintiff acknowledges that the “Sixth Circuit has held that a student has no
substantive due process right in continued enrollment at a public university, absent an equal
protection violation.” (Pl.’s Br. at 22) (citing Bell, 351 F.3d at 251). “[I]f this Court dismisses
Plaintiff’s Equal Protection claim (Count III), Plaintiff concedes that any substantive component
to her due process claim necessarily fails.” (Id.).
As explained above, the Court concludes that Plaintiff’s Equal Protection claim fails. As
a result, Defendants are entitled to summary judgment with respect to that portion of Count IV
that asserts a substantive due process claim. Bell, supra; Rogers v. Tennessee Bd. of Regents,
273 F. App’x 458, 463 (6th Cir. 2008); McGee v. Schoolcraft Cmty. College, 167 F. App’x 429,
436-37 (6th Cir. 2006).

49

2.

Procedural Due Process

The Court must then consider whether Plaintiff can proceed with that portion of Count IV
that asserts a procedural due process claim. As explained by the Sixth Circuit in McGee:
Prevailing on a procedural due process claim requires first establishing the
existence of a constitutionally protected life, liberty or property interest. Bd. of
Regents v. Roth, 408 U.S. 564, 569–70, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
The fact that Plaintiff has not demonstrated such an interest in the context of her
substantive due process claim does not necessarily doom her procedural claim as
well. Although establishing a protectable interest is a common element of both
kinds of due process claims, “[t]he interests protected by substantive due process
are of course much narrower than those protected by procedural due process.” Bell
v. Ohio State University, 351 F.3d 240, 249–50 (6th Cir. 2003). The issue of
whether a student’s interest in continued enrollment at a post-secondary
institution is protected by procedural due process has not been resolved.
McGee, 167 F. App’x at 437 (emphasis added). The Sixth Circuit explained that was because
courts often avoid the issue by assuming for the sake of argument that such an interest exists.
See, e.g., Bd. of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 84–85, 98 S.Ct. 948, 55
L.Ed.2d 124 (1978); Bell, 351 F.3d at 249.” Id. The Sixth Circuit then followed that same
approach in McGee and assumed, without deciding, that such an interest exists. The court then
affirmed the district court’s grant of summary judgment as the facts construed in Plaintiff’s favor
did not establish a violation of due process. Id.
This Court has previously noted that “neither the Sixth Circuit Court of Appeals nor the
Supreme Court of the United States has recognized a protected interest in continuing education.”
Porubsky v. Macomb Comty. College, 2012 WL 2803765 at * 11 (E.D. Mich. 2012).
Given the lack of authority13 supporting a student’s interest in continued enrollment at a

13

In addition, given the lack of authority on that issue, the individual Defendants would
also be entitled to qualified immunity as to the Due Process Count because Plaintiff cannot
50

post-secondary institution as being protected by procedural due process, the Court concludes that
Defendants are entitled to summary judgment as to Plaintiff’s procedural due process claim.
Moreover, even if this Court were to assume without deciding that such a right exists,
Defendants would still be entitled to summary judgment on this claim. Plaintiff herself concedes
that demonstrating a procedural due process claim in the context of a academic dismissal “is a
tall order” (Pl.’s Br. at 23) and Defendants’ brief sets forth a persuasive argument as to why this
claim would also fail on the merits if a protected interest existed. (Defs.’ Br. at 36-38).
CONCLUSION & ORDER
For the reasons set forth above, IT IS ORDERED that Defendants’ Motion for Summary
Judgment is GRANTED IN PART AND DENIED IN PART.
The motion is GRANTED to the extent that the Court grants summary judgment in favor
of Defendants with respect to Counts I, III, IV, VI, VII. The Court also grants summary
judgment in favor of Defendants as to the portions of Plaintiff’s retaliation counts (Counts II, V,
and VIII) that are based upon Defendant Pollock’s termination of Plaintiff’s research position and
ceasing to be her advisor. The motion is DENIED as to the remaining portions of Counts II, V,
and VIII.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: May 18, 2016

establish she had a “clearly established” constitutional right to continued enrollment at the
University. See Varlesi v. Wayne State Univ., 909 F. Supp.2d 827, 861 (E.D. Mich. 2012).
51

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Jennifer Dibbern,
Plaintiff,
v.

Case No. 12-15632

University of Michigan, et al.

Sean F. Cox
United States District Court Judge

Defendants.
_______________________________/
PROOF OF SERVICE
I hereby certify that a copy of the foregoing document was served upon counsel of record
on May 18, 2016, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

52