Dibbern v. University of Michigan et al

Filing 36

OPINION AND ORDER granting 32 Motion to Extend; denying 25 Motion to Dismiss. 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.,

Honorable Sean F. Cox

Defendants.
_________________________________/

OPINION AND ORDER
This case is, at its core, a sexual harassment case. Plaintiff Jennifer Dibbern (“Plaintiff” or
“Dibbern”) alleges that, while she was a graduate student at the University of Michigan (“U-M”),
she was subjected to severe and pervasive sexual harassment and discrimination by her male peers,
as well as by university faculty and employees, that deprived her of the full benefit of the educational
experience. Plaintiff also alleges that the University and its faculty retaliated against her in various
ways, including by dismissing her from her graduate program, in response to her reports of sexual
harassment and discrimination in the Engineering department.
Defendants deny all of Plaintiff’s allegations. Defendants further contend that all counts
against Defendant Goldman and Green as individuals should be dismissed because they were not
properly served in their individual capacities.
This matter is before this Court on Defendant’s Motion to Dismiss Plaintiff’s Second
Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6) (Doc. #25),
and Plaintiff’s Motion to Extend Time to Serve Summons and Complaint on Defendants Green and
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Goldman (Doc. #32). These motions have been fully briefed by the parties. For the reasons set forth
herein, this Court DENIES Defendants’ Motion to Dismiss Counts I, II, III, V, VI, VII, and VIII of
Plaintiff’s Second Amended Complaint at Law, and GRANTS Plaintiff’s Motion to Extend Time
to Serve Summons and Complaint on Defendants Green and Goldman.
FACTUAL ALLEGATIONS
Plaintiff Jennifer Dibbern joined the University of Michigan’s Department of Material
Science and Engineering in the fall of 2007. Plaintiff’s entering Ph.D. class included five women
out of a total of approximately 25 students. (Pl.’s Compl. at ¶ 34).
Immediately, Plaintiff was subjected to sexual harassment at the hands of her engineering
PhD colleagues, who were mostly male. Specifically, Plaintiff 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.”

•

[On Plaintiff’s having been admitted to MIT]: “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.”

•

“Let’s be honest, the girls in engineering aren’t real girls – no guy would look at them that
way so we need more real girls to study with, date – something to look at in class. Real girls.
There’s something wrong with the engineering girls.”

(Pl.’s Compl. at ¶¶ 36-37).
Plaintiff’s colleagues regularly told her that they masturbated with her in mind and planned
to call her at climax. (Pl.’s Compl. at ¶ 39).
Plaintiff notified her Department Advisor, Defendant Tresa Pollock (“Pollock”) about the
harassment and inappropriate sexual comments as early as November 2007. (Pl.’s Compl. at ¶ 41).

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Pollock told Plaintiff that “boys can be like that” and also told Plaintiff to stay focused on her work.
(Pl.’s Compl. at ¶ 41). Plaintiff maintains that Pollock offered no help and took no action to alleviate
the harassment Plaintiff was experiencing.
Into the winter semester of 2008, Plaintiff continued to suffer harassment and taunting at the
hands of her colleagues. (Pl.’s Compl. at ¶ 44)(For a detailed list of more sexually harassing
comments made to Plaintiff, see Pl.’s Compl. at p. 12, fn 14). Plaintiff claims that the inappropriate
comments turned to violence when, while at a tea shop in March 2008, a fellow student slapped her
in the face twice when she refused to give the student her drink. (Pl.’s Compl. at ¶ 45). In April
2008, while studying in the engineering lounge, the same student who slapped Plaintiff at the tea
shop threatened to rape Plaintiff, and went into detail about “how the rape would occur.” (Pl.’s
Compl. at ¶ 46). Plaintiff notified her parents, who then notified the University Sexual Assault
Prevention and Awareness (“SAPAC”) crisis line. (Pl.’s Compl. at ¶ 46).
Plaintiff reported the rape threat to the university’s Counseling and Psychological Services
(“CAPS”). CAPS provided Plaintiff with a letter allowing her to reschedule two of her final exams.
(Pl.’s Compl. at ¶ 48). Plaintiff also reported the incident to Pollock, who said “these things
sometimes happen. We have to get over it and get back to the lab. Don’t let this ever happen again.
It’s important that we be in lab. We don’t always get along with everyone.” (Pl.’s Compl. at ¶ 49).
Plaintiff claims the harassment continued when a fellow engineering student began stalking
her in the summer of 2008. This student called Plaintiff late at night and waited for her after classes.
Plaintiff maintains the stalking continued well into the fall of 2008. (Pl.’s Compl. at ¶ 57). In
December 2008, the student confronted Plaintiff in her lab and would not leave. The student
“forcibly pulled [Plaintiff] against his body, squeezing her to the point that it caused her pain.” (Pl.’s
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Compl. at ¶ 58). Plaintiff did not immediately report this incident to campus police or other law
enforcement, waiting until February 2009 to report her stalker. (Pl.’s Compl. at ¶ 70).
In January 2009, Plaintiff reported to the University of Institutional Equity the harassment,
discrimination and stalking she was experiencing. During this phone call, she spoke with Associate
Vice Provost for Academic and Faculty Affairs Anthony Walesby, who is also the university’s Title
IX coordinator. (Pl.’s Compl. at ¶ 60). Walesby responded that he needed “concrete proof” and
commented that “people assume women false report this kind of stuff.” (Pl.’s Compl. at ¶ 62).
Walesby also told Plaintiff that “the truth is, there are some women who are overly sensitive . . . and
who can’t take a joke and feel offended.” (Pl.’s Compl. at ¶ 66). Plaintiff felt that Mr. Walesby was
ineffective and offered her no means of recourse. (Pl.’s Compl. at ¶ 67).
On December 23, 2009, Defendant Pollock informed Plaintiff that she was “terminating
[Plaintiff’s] appointment” for the following semester due to Plaintiff’s “lack of commitment” to her
degree. (Pl.’s Compl. at ¶ 71). Pollock claimed Plaintiff lacked commitment to her degree due to
Plaintiff’s two-week leave in April 2008 (after Plaintiff was threatened with rape), incomplete grades
in coursework, and her retention of a research job in a different department. (Pl.’s Compl. at ¶ 71).
In January 2010, Plaintiff again notified the University about the sexual harassment she
experienced by making reports to other University departments and offices, including to Rackham
Graduate School officials and the Center for the Education of Women. (Pl.’s Compl. at ¶ 73). Also
at that time, Plaintiff sought emergency funds from Rackham Graduate School so that she could
continue her research despite her appointment being terminated by Pollock. However, Plaintiff
claims that after she “disclosed [to Rackham] her experiences of harassment within the [engineering]
program, Rackham . . . did not permit her to apply for emergency funding.” (Pl.’s Compl. at ¶ 75).
4

In January 2010, Plaintiff also disclosed the sexual harassment she experienced in the
engineering department to Defendant Professor Rachel Goldman (“Goldman”). (Pl.’s Compl. at ¶
74). In February 2010, Goldman took Plaintiff into her research group. Plaintiff alleges that she
progressed successfully with this research as well as her academics. (Pl.’s Compl. at ¶ 77).
Yet, the harassment continued. Plaintiff claims that another male researcher in Goldman’s
group would “constantly touch, hug, tickle, poke, prod, and give “respirator kisses” to [Plaintiff]
without her consent.” (Pl.’s Compl. at ¶ 80). Plaintiff also claims this student made inappropriate
comments about Plaintiff’s appearance, including what she was wearing, and made jokes and
references about other female students, what they were wearing, and commented on whether he
thought they were attractive. (Pl.’s Compl. at ¶ 81).
In April 2011, Goldman called Plaintiff, notified her that she had just left a Student Relations
Advisory Council meeting, (Pl.’s Compl. at ¶ 83), and asked Plaintiff if she had heard of Title IX
and related investigations at Harvard and Yale. Goldman then said, “OCR was investigating the –
I guess you’d call them perpetrators . . . I might have to report you whether you want me to or not.”
(Pl.’s Compl. at ¶ 83).
Also around that time in spring 2011, Goldman began questioning Plaintiff’s commitment
to the graduate program and the amount of time Plaintiff spent in the lab, noting, “I know you have
that SAPAC thing.” (Pl.’s Compl. at ¶ 84). Plaintiff maintains she became active in SAPAC as a
means of making herself and other women feel safer at the university. (Pl.’s Compl. at ¶ 84). For
fear of losing Goldman as an advisor, Plaintiff immediately quit SAPAC and ceased her efforts to
implement sexual harassment training within the College of Engineering. (Pl.’s Compl. at ¶ 85).
Plaintiff did, however, increase her involvement with the Graduate Employees Organization.
5

Plaintiff claims that, in April 2011, a prospective female graduate engineering student denied
an offer to join the department because of the unwanted and harassing behavior toward female
students that she saw while visiting the university. (Pl.’s Compl. at ¶ 89). Plaintiff also alleges that,
at an awards dinner, one engineering professor expressed his disbelief of that student’s story and
called her allegations “ludicrous.” (Pl.’s Compl. at ¶ 90).
On August 30, 2011, Goldman notified Plaintiff that she had revoked Plaintiff’s funding and
would no longer serve as Plaintiff’s advisor. At that time, Goldman told Plaintiff “[w]hen you first
came to me, when I took you on, I tried to give you a chance because of what you said, but I don’t
believe you.” (Pl.’s Compl. at ¶ 96-97). Plaintiff sought help from Rackham Graduate School
employee Darlene Ray-Johnson, who informed Plaintiff that she must withdraw from the term.
(Pl.’s Compl. at ¶ 101).
In December 2011, Plaintiff met with Materials Science and Engineering Department Chair
Peter Green (“Green”), at which time Defendant Green informed Plaintiff that she was being
“discontinued” from her program and was being offered a Master’s Degree in Materials Science and
Engineering. (Pl.’s Compl. at ¶ 108). Plaintiff was informed that there would be no opportunity to
appeal this decision. (Pl.’s Compl. at ¶ 108).
Finally, Plaintiff complains that her reputation was “maligned” in U-M’s newspaper, the
Michigan Daily. (Pl.’s Compl. at ¶ 110). Graduate student assistant Eric Zech, with whom Plaintiff
had worked under Defendant Goldman, wrote an “accusatory op-ed piece which cited only facts that
Professor Goldman would know with respect to [Plaintiff’s] academic performance.” (Pl.’s Compl.
at ¶ 111). Plaintiff alleges that this article was sanctioned by Professor Goldman. (Pl.’s Compl. at
¶ 113).
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On February 13, 2012, Plaintiff met with University of Michigan Provost Philip Hanlon
“concerning her experience within the College of Engineering”, the sexual and gender-based
harassment she suffered as a female graduate student. (Pl.’s Compl. at ¶ 115). In March 2012,
University officials offered Plaintiff an OCR hearing; this was only after Plaintiff had retained legal
counsel. (Pl.’s Compl. at ¶ 115).
Plaintiff maintains that she was wrongfully dismissed from her PhD program after years of
experiencing sexual and gender-based harassment, about which she complained to numerous
University officials and faculty, and in response to which the University took absolutely no helpful
action. (Pl.’s Compl. at ¶ 118-119).
Plaintiff filed her original Complaint on December 21, 2012.

(Doc. #1).

Plaintiff

subsequently filed her First Amended Complaint on January 25, 2013. (Doc. #8). Defendants
moved to dismiss that complaint, (Doc. #12), but Plaintiff and Defendants stipulated a dismissal of
that motion and this Court granted Plaintiff leave to file a Second Amended Complaint, (Doc. #22),
which Plaintiff filed on June 7, 2013. (Doc. #23). Plaintiff’s Second Amended Complaint alleges
the following counts:
•

Count I: Title IX Sex Discrimination and Sexually Hostile Educational Environment, against
U-M and U-M Board of Regents;

•

Count II: Title IX Retaliation for Reporting, Opposing, and Attempting to Remedy a
Sexually Hostile Environment in the College of Engineering, against U-M and U-M Board
of Regents;

•

Count III: Equal Protection - 42 U.S.C. § 1983, against the Individual Defendants in their
Individual and Official Capacities;

•

Count IV: Due Process Violations - 42 U.S.C. § 1983, against the Individual Defendants in
their Individual and Official Capacities;

7

•

Count V: First Amendment Freedom of Speech Retaliation - 42 U.S.C. § 1983, against the
Individual Defendants in their Individual and Official Capacities;

•

Count VI: Michigan Elliot-Larson Civil Rights Act (“ELCRA”) Discrimination/Disparate Treatment/Hostile Environment, against All Defendants;

•

Count VII: ELCRA - Sex Discrimination/Disparate Impact, against All Defendants;

•

Count VIII: ELCRA Retaliation, against all Defendants, and

•

Count IX: Invasion of Privacy, against all Individual Defendants.

Sex

Defendants now move to dismiss Counts I, II, III, V, VI, VII and VIII of Plaintiff’s Second
Amended Complaint at Law. Count IV (due process) and Count IX (invasion of privacy) are not
challenged here. Defendants Goldman and Green also move to dismiss all counts against them in
their individual capacities on the basis that they have not yet been properly served.
STANDARD OF REVIEW
When deciding a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure for failure to state a claim, this Court must construe the complaint in the light most
favorable to the plaintiff and must accept all the factual allegations contained in the complaint as
true. Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). In order to survive a Rule 12(b)(6)
motion to dismiss, Plaintiff’s complaint need contain only “enough facts to state a claim for relief
that is plausible on its face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“Determining whether a complaint states a plausible claim for relief will . . . be a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
ANALYSIS
I.

Should This Court Dismiss The Counts Against Defendants Goldman and Green In
8

Their Individual Capacities For Insufficient Service of Process?
Defendants Goldman and Green argue that all counts against them in their individual
capacities should be dismissed because, although they were served in their official capacity, they
have not been properly served in their individual capacities. (Defs.’ Br. at 19). Defendants’
counsel, Megan Norris, accepted service for all individual Defendants in their official capacities
only. (Defs.’ Br. at 19, fn 10). Plaintiff attempted personal service of the First Amended Complaint
on Defendants Goldman and Green through the Office of General Counsel at the University of
Michigan. (See Certificates of Service for Defs. Goldman and Green, Doc. #7 and Doc. #14).
Personal service on an individual is not effectuated by service upon a defendant’s place of work or
business, however, and Plaintiff conceded at oral argument that Goldman and Green have not been
properly personally served. See Thompson v. Kerr, 555 F.Supp.1090, 1093 (S.D. Ohio 1982); see
also Dibbern Hrg. Trans. at 18:8-13. Defendants also point out that “serving individuals in their
official capacities does not suffice to bring them before the court in their individual capacities.”
Ecclesiastical Order of the Ism of Am v. Chasin, 845 F.2d 113, 116 (6th Cir. 1998).
Plaintiff claims Defendants waived the defense of insufficient service of process by not
raising it in their first responsive pleading or motion. (Pl.’s Resp. at 19); (see also Pl.’s Resp. at Ex.
H). Alternatively, in their Motion to Extend Time, Plaintiff requests additional time to effectuate
personal service on Defendants Goldman and Green because Plaintiff claims she has shown good
cause for the failure. (Pl.’s Mo. at 3). Defendants responded at oral argument that they have not
waived this defense because this is the first time that individual capacity Defendants Goldman and
Green have moved this Court for relief.
Federal Rule of Civil Procedure 4(e) sets forth the ways in which an individual may be served
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with process:
An individual . . . may be served in a judicial district of the United States by:
(1)

following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district court is
located or where service is made; or

(2)

doing any of the following:
(A)

delivering a copy of the summons and of the complaint to the
individual personally;

(B)

leaving a copy of each at the individual’s dwelling or usual
place of abode with someone of suitable age and discretion
who resides there; or

(C)

delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e).
Federal Rule of Civil Procedure 4(m) provides that
[i]f a Defendant is not served within 120 days after the complaint is filed, the court
. . . must dismiss the action without prejudice against that defendant or order that
service be made within a specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m)(emphasis added).
This Court finds that Plaintiff has shown good cause for the delay in serving Defendants
Goldman and Green. Plaintiff did, indeed, attempt to personally serve these Defendants in a timely
fashion, although such service was a nullity due to Plaintiff’s erroneous belief that she could
personally serve Defendants through the U-M’s general counsel. Further, Defendants’ counsel seems
to agree that Plaintiff’s error was likely made in good faith. See Dibbern Trans. at 24-25 (wherein
Defendants’ counsel Megan Norris states that “Mr. Blanchard is an honest man and a fine man” and

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“I think [Mr. Blanchard] probably thought [Defendants Goldman and Green] had [been personally
served] when he asserted that to me.”
Therefore, pursuant to the Federal Rules of Civil Procedure that govern this action, this Court
DENIES Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(5) and GRANTS
Plaintiff’s Motion to Extend Time to Serve Summons and Complaint Upon Defendants Goldman
and Green in their Individual Capacities. This Court further orders that Plaintiff effectuate personal
service on Defendants Goldman and Green within sixty (60) days of the issuance of this Opinion and
Order.
II.

Should This Court Dismiss Any Of The Counts In Plaintiffs’ Second Amended
Complaint Pursuant To Federal Rule Of Civil Procedure 12(b)(6)?
Defendants have moved this Court to dismiss Counts I, II, III, V, VI, VII, and VIII of

Plaintiff’s Second Amended Complaint for various reasons. This Court will address each count, and
the arguments pertinent thereto, individually.
Count I: Title IX sexual discrimination & sexually hostile educational environment,
against U-M and Regents of U-M
Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance ...” 20 U.S.C. § 1681(a). The parties do
not dispute that Title IX applies to U-M.
Generally, to establish liability under Title IX, a recipient of federal funds must: 1) have
discriminated based on gender; 2) have notice or knowledge of the discrimination, and 3) the
response to the discrimination “must amount to deliberate indifference to discrimination.” Gebser
v. Lago Vista Independent School Dist., 524 U.S. 274, 290 (1989).
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Deliberate indifference to known acts of harassment may amount to an intentional violation
of Title IX, capable of supporting a private damages action, when the harasser is a student rather than
a teacher. Davis v. Monroe County Bd. Of Educ., 526 U.S. 629, 643 (1999). The Davis court
established three prima facie elements for a Title IX claim based specifically on student-to-student
harassment:
(1) the sexual harassment was so severe, pervasive, and objectively offensive that it
could be said to deprive the plaintiff of access to the educational opportunities or
benefits provided by the school,
(2) the funding recipient had actual knowledge of the sexual harassment, and
(3) the funding recipient was deliberately indifferent to the harassment.
Soper v. Hoben, 195 F.3d 845, 854 (6th Cir.1999)(summarizing Davis's holding). The [federal fund]
recipient must merely respond to known peer harassment in a manner that is not clearly
unreasonable. Davis, 526 U.S. at 648.
A.

Are Plaintiff’s Title IX claims time-barred?

First, Defendants argue that most of Plaintiff’s claims are time-barred. Defendants point out
that, for the purpose of Section 1983, Title IX, and equal protection claims, federal courts apply the
state statute of limitations applicable to personal injury actions. Lillard v. Shelby County Board of
Ed., 76 F.3d 716, 729 (6th Cir. 1996). In Michigan, the statute of limitations on personal injury
actions is three years. Id. Given that Plaintiff filed her original complaint on December, 21, 2012,
Defendants argue that Plaintiff cannot rely on any events that took place prior to December 21, 2009.
(See Doc. #1). Defendants urge that, “where there is no actionable event within the statute of
limitations, claims cannot survive.” (See Defs.’ Br. at 8-10).
Plaintiff argues that the continuing violations doctrine renders her Title IX claims timely.
12

In support, Plaintiff cites a Title VII case1, which states that “a hostile work environment claim is
comprised of a series of separate acts that collectively constitute one ‘unlawful employment practice’
. . . . providing that an act contributing to the claim occurs within the filing period, the entire time
period of the hostile environment may be considered by a court for the purposes of determining
liability.” National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)(internal citations
omitted).
Defendants attempt to rebut this claim by pointing to different language in Morgan, where
the United States Supreme Court stated that “discrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in timely filed charges.” Morgan, 536 U.S. at 113.
Defendants attack Plaintiff’s claim by arguing that Plaintiff did not allege any act of sexual
harassment against her within the limitations period, i.e. after December 21, 2009.
First, this assertion is simply not accurate. Plaintiff details a series of episodes that took
place during the winter 2010 term, well within the statute of limitations period, wherein her male lab
partner would “constantly touch, hug, tickle, poke, prod . . . [Plaintiff], without her consent.” (Pl.’s
Compl. at ¶ 80). “In addition, this student regularly made comments about Ms. Dibbern’s
appearance, including what she was wearing and not wearing.” (Pl.’s Compl. at ¶ 81). This pattern
of conduct by Ms. Dibbern’s colleague, assumed to be factually true for the purposes of this motion,
occurred within the three year limitations period and appears to be consistent with the hostile
environment that Plaintiff claims to have experienced at U-M starting in 2007.
Plaintiff also claims that U-M committed acts of deliberate indifference within the statute of
1

“A Title IX hostile education environment claim is governed by traditional Title VII
hostile environment jurisprudence.” Papelino v. Albany College of Pharmacy, 633 F.3d 81, 89
(2d Cir. 2011).
13

limitations period. Here, Plaintiff has alleged that she reported sexual harassment to Defendant
Goldman, the Director of the Rackham Office of Graduate Student Success and current ombudsman,
and the Center for the Education of Women in January 2010. (Pl.’s Compl. at ¶ 74). Yet, she
maintains that the “University of Michigan employees and faculty members failed to understand
what to do with Ms. Dibbern’s report or how to offer her assistance” and, instead, “merely directed
Ms. Dibbern back to her Department.” (Pl.’s Compl. at ¶ 76). Moreover, Plaintiff alleges that she
suffered additional acts of harassment after making reports to University faculty and employees.
(Pl.’s Compl. at ¶ 80).
This Court agrees with Plaintiff’s contention that, in determining whether Plaintiff has plead
a plausible Title IX hostile environment claim, the continued deliberate indifference of the
University within the limitations period permits this Court to consider events that, although they took
place outside the limitations period, are helpful in establishing liability. See Morgan, 536 U.S. at
117. Many of Plaintiff’s allegations of harassment and abuse took place prior to December 21, 2009,
although, as mentioned, the harassment allegedly continued well into the statutory period. Plaintiff
has alleged at least one timely act of sexual harassment that occurred within the limitations period
that is similar to earlier acts of harassment and discrimination. Plaintiff also alleges that the
University never took any action in response to her numerous reports of sexual harassment, including
in regards to complaints within the limitations period. This Court finds that Plaintiff’s Title IX claim
is not time barred.
B.

Title IX and “Mandated Sexual/Gender-Based Harassment Training”

Defendants also assert that “[t]o the extent Plaintiff implies Title IX and ELCRA require the
University to conduct trainings on sexual/gender based harassment, they hold no such mandate.”
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(Defs.’ Br. at 13). Plaintiff responds that this argument is “irrelevant at this stage of the
proceedings” because Plaintiff “makes no direct claim purely based on a lack of training or improper
policies,” and only references lack of training and improper policies as “evidence of hostile
environment and gender discrimination violations.” (Pl.’s Resp. at 16).
Plaintiff does not state a cause of action that depends on the mandatory or advisory nature
of the Department of Education’s suggestions. Thus, this issue need not be resolved for purposes
of this motion and is relevant only insofar as it supports Plaintiff’s allegations of U-M’s “deliberate
indifference” to known sexual harassment. Based on the foregoing, this Court DENIES Defendant’s
Motion to Dismiss Count I of Plaintiff’s Second Amended Complaint.
Count II: Title IX Retaliation v. U-M, Regents of U-M
Title IX retaliation claims are analyzed under the same legal framework as Title VII
retaliation claims. Nelson v. Christian Brothers University, 226 Fed. App’x. 448, 454 (6th Cir.
2007)(“Generally, courts have looked to Title VII, 42 U.S.C. §§ 2000e, as an analog for the legal
standards in both Title IX discrimination and retaliation claims.”).
Plaintiff has the burden of proving a prima facie case of retaliation, including that 1) plaintiff
engaged in protected activity; 2) defendant knew plaintiff engaged in protected activity; 3) plaintiff
was subjected to a materially adverse action, and 4) a causal connection exists between the protected
activity and adverse action. Wade v. Knoxville Utilities Bd., 259 F.3d 452, 463 (6th Cir. 2001).
Again, Defendants primarily attack this count by arguing that it is time barred. Defendants
assert that the only protected activities Plaintiff performed are the November 2007 and Summer 2009
complaints of sexual harassment to Defendant Pollock, which fall outside of the limitations period,
and that Plaintiff has not plead any facts showing these complaints were causally connected to any
15

future adverse action. (Def.’s Br. at 16).
Plaintiff maintains that she engaged in protected activity after 2009 – namely, that she
reported sexual harassment to advisors, teaching faculty and other university officials both inside and
outside the engineering department, that she became heavily involved with the University Sexual
Assault Prevention and Awareness Center (“SAPAC”), that she drafted a sexual assault training
policy, that she advocated for sexual assault and sexual harassment training for graduate students
through the graduate employee union, and complained about stalking by a male engineering
colleague.2 (Pl.’s Resp. at 5).
Plaintiff further responds that her retaliation claims are timely because they are based on
adverse actions taken against her within the limitations period. (Pl.’s Resp. at 4). Plaintiff alleges
that the following retaliatory acts were taken against her: 1) Professor Pollock terminated Plaintiff’s
research appointment on December 23, 2009; 2) Rackham School for Graduate Studies denied her
emergency funding in January 2010; 3) Professor Goldman periodically discriminated against her
in 2010-2011; 4) Professor Goldman revoked Plaintiff’s funding and demanded that Plaintiff
withdraw from her program, and 5) Department Chair Green and Rackham Graduate School officials
discontinued Plaintiff from the materials science PhD program. (Pl.’s Resp. at 5).

2

Defendants argue that this report of stalking does not constitute a “protected activity”
because, in making the complaint to Campus Safety, Plaintiff did not allege specific
discriminatory acts. (Defs.’ Br. at 17). In support, Defendants cite to one of this Court’s prior
decisions, Porubsky v. Macomb Comm. College, 2012 WL 2803765 at *10-11 (E.D. Mich. July
10, 2012) (Cox, J.)(where Plaintiff’s Title IX retaliation claim failed because, when he notified
Defendant that he was “being treated differently than other students,” he never actually stated
that he was being discriminated on based upon his gender.) Id. Plaintiff never addresses this
argument in her response brief. However, even if this Court rejects Plaintiff’s stalking complaint
as a protected activity, she still alleges other protected activities that can satisfy the first prong of
the Wade test, such as reports of sexual harassment made to faculty members.
16

A claim accrues on the date when the plaintiff knew, or through reasonable diligence should
have known, of an injury giving rise to her cause of action. Collard v. Kentucky Bd. Of Nursing, 896
F.2d 179, 184 (6th Cir. 1990). In the context of a retaliation claim, a plaintiff alleges injury by the
retaliatory act itself. A plaintiff does not have an actionable retaliation claim until he or she suffers
a “materially adverse action” that is causally connected to his or her protected activity. See Wade,
259 F.3d at 463 (setting forth the elements of a Title IX retaliation claim).
Here, Plaintiff did not have a viable Title IX retaliation claim against any Defendant until the
first alleged retaliatory act took place, i.e. Defendant Pollock’s termination of Plaintiff’s research
appointment on December 23, 2009. This occurred within the statute of limitations period, which
dates back to December 21, 2009. In fact, all of Plaintiff’s allegedly retaliatory acts occurred within
the three year statute of limitations period. Whether or not the protected activity took place within
the statute of limitations period does not appear to be relevant to the issue of timeliness of a
retaliation claim. Therefore, Plaintiff’s Title IX retaliation claim is not time barred on this basis.
Defendants further argue that even if Plaintiff did engage in a protected activity during the
limitations period, she either cannot show a causal connection between that activity and any
retaliatory action, or too much time passed between the activity and the retaliation so as to
completely negate causation. (Defs.’ Br. at 17).
“Temporal proximity alone cannot establish a causal connection. However, temporal
proximity always plays a role in establishing a causal connection; its significance depends on the
context.” Fuhr v. Hazel Park School District, 710 F.3d 668, 676 (6th Cir. 2013). The court went
on to discuss the temporal element in detail:
Where an adverse employment action occurs very close in time after an employer
17

learns of a protected activity, such temporal proximity between the events is
significant enough to constitute evidence of a causal connection for the purposes of
satisfying a prima facie case of retaliation. But where some time elapses between
when the employer learns of a protected activity and the subsequent adverse
employment action, the employee must couple temporal proximity with other
evidence of retaliatory conduct to establish causality.
Fuhr, supra, citing Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir.2008) (internal
citation omitted).
In Fuhr, the court held that a time gap of at least two years was “fatal to an attempt to
establish causal connection . . . .” 710 F.3d at 676, citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.
268, 273–74 (2001) (holding that an adverse “[a]ction taken (as here) 20 months later suggests, by
itself, no causality at all”); Dixon v. Gonzales, 481 F.3d 324, 334 (6th Cir. 2007)(noting that the
plaintiff was unable to “point to any authority holding that a causal connection exists where there
has been a gap of multiple years . . . between the protected activity and the adverse employment
action”).
Plaintiff alleged that she reported harassment to Pollock in November 2007 and Summer
2008 - but Pollock did not terminate her appointment until late December 2009. (See Pl.’s Compl.
at ¶¶ 41, 49, and ¶¶ 71, 72). More than one year, and possibly two years, had passed between the
protected activity (Plaintiff’s report of harassment to Pollock) and the first alleged retaliatory act
(Pollock’s termination of Plaintiff’s research appointment). The Sixth Circuit in Fuhr has recently
held that an excessively lengthy gap in time can destroy the possibility of causation. Other courts
in this circuit have held that “where some time has elapsed between when the employer learns of the
protected activity and the adverse employment action, the employee must produce other evidence,
in addition to the temporal proximity, in order to establish causation.” Condiff v. Hart Cty. Sch.

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Dist., 770 F.Supp.2d 876, 884 (W.D. Ky. 2011)(citing Leidner v. Napolitano, 2010 WL 5300533
at *22 (E.D.Ky. 2010)).
To establish causation in a Title IX retaliation case, the time gap between the protected
activity and the retaliatory act cannot be years in length. When the temporal proximity is less than
that, however, a plaintiff can introduce evidence of other circumstances that create the inference of
retaliatory motive.
Plaintiff alleges that, in addition to the overt acts of retaliation taken against her, Defendant
Pollock’s retaliatory motive is evidenced by the comments she made in response to Plaintiff’s reports
of sexual harassment. (See Pl.’s Compl. at ¶ 49)(In response to a sexual harassment complaint,
Pollock allegedly said to Plaintiff “these things sometimes happen. We have to get over it and get
back to the lab. Don’t let this ever happen again. It’s important that we be in lab. We don’t always
get along with everyone.”).
Plaintiff also argues that Goldman’s retaliatory motive is also evidenced by comments and
actions toward her. Prior to becoming Goldman’s advisee, Plaintiff complained to Goldman about
sexual harassment by her peers in the Engineering Department. (Pl.’s Compl. at ¶ 74). Plaintiff
alleges that in April 2011, Goldman instructed Plaintiff to stop being involved with non-academic
activities, stating “I know you have that SAPAC thing.” (Pl.’s Compl. at ¶ 83-84). Plaintiff also
alleged that Goldman attended a Student Relations Advisory council meeting where Title IX
requirements were discussed, and afterwards called Plaintiff to ask her whether she heard about Title
IX investigations at other universities.

Defendant Goldman also allegedly said “OCR was

investigating the — I guess you’d call them perpetrators . . . I might have to report you whether you
want me to or not.” (Pl.’s Compl. at ¶ 83). Plaintiff alleges that Defendant Goldman retaliated
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against her when Goldman terminated Plaintiff’s appointment in August 2011, despite Plaintiff
“successfully progressing in her program.” (Pl.’s Resp. at 7).
Plaintiff has plead a plausible claim of Title IX retaliation against Defendants. The facts as
alleged, and taken as true for purposes of this motion, support the claim that Goldman and/or Pollock
retaliated against Plaintiff based on her claims of sexual harassment and discrimination within the
Engineering department at U-M.
Therefore, this Court DENIES Defendants’ Motion to Dismiss Count II of Plaintiff’s Second
Amended Complaint.
Count III: Equal Protection, Section 1983 claims against Coleman, Pollock, Goldman
and Green in their Individual Capacities and Official Capacities
To bring a claim under 42 U.S.C. § 1983 for denial of equal protection, a plaintiff must prove
the existence of purposeful discrimination. See Batson v. Kentucky, 476 U.S. 79, 93 (1986). A
plaintiff must demonstrate that they “receiv[ed] different treatment from that received by other
individuals similarly situated.” Kuhar v. Greensburg–Salem School Dist., 616 F.2d 676, 677 n. 1
(3d Cir.1980). To prove sexual discrimination, a plaintiff must also show that any disparate
treatment was based upon her gender. Bohen v. City of East Chicago, 799 F.2d 1180, 1186–87 (7th
Cir.1986).
Defendants argue that Plaintiff’s equal protection claim should be dismissed because it is
time barred, and because Plaintiff has not met her pleading burden of establishing a plausible claim
for relief. Specifically, Defendants argue that Plaintiff has provided no facts supporting this count,
other than the conclusory statement that “[w]omen, including Plaintiff, were treated different in the
College of Engineering than her male peers.” (Defs.’ Br. at 11, n.5). Defendants also reiterate their

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argument that “the continuing violations doctrine does not apply to discrete acts outside the
limitations period.” (Defs.’ Br. at 11, n.5)
Plaintiff responds that her equal protection claim is “supported by dozens of pages of detailed
factual allegations that [plaintiff] was viewed differently and held to different standards than her
male peers.” (Pl.’s Resp. at 19). At oral argument, Plaintiff stated that some of these supporting
factual allegations could be found in paragraphs 86 through 109 of her Complaint.
Plaintiff’s claim is not time-barred because she has alleged that she suffered acts of
purposeful gender-based discrimination within the limitations period. (Pl.’s Resp. at 5). Further,
this Court finds that Plaintiff’s factual allegations, when all inferences are taken in a light most
favorable to the her, support a plausible equal protection claim under Section 1983. Therefore, this
Court DENIES Defendant’s Motion to Dismiss Count III of Plaintiff’s Second Amended Complaint.
Count V: First Amendment Free Speech Retaliation, Section 1983 claims against
Coleman, Pollock, Goldman and Green in their Individual Capacities and Official
Capacities
“In the absence of a specific showing of constitutionally valid reasons to regulate their
speech, students are entitled to freedom of expression of their views.” Zwick v. Regents of University
of Mich., 2008 WL 1902031 at *9, citing Tinker v. Des Moines Indep. Community Sch. Dist., 393
U.S. 503, 511 (1969).
To plead a prima facie case of free speech retaliation, Plaintiff must show that (1) that the
plaintiff was engaged in a constitutionally protected activity; (2) that the defendant's adverse action
caused the plaintiff to suffer an injury that would likely chill a person of ordinary firmness from
continuing to engage in that activity, and (3) that the adverse action was motivated at least in part
as a response to the exercise of the plaintiff's constitutional rights. Paige v. Coyner, 614 F.3d 273,
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277 (6th Cir. 2010), citing Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir.1998).
Defendants argue this claim is time barred because all actionable events occurred prior to
December 21, 2009. For the reasons set forth under the analysis for Count II, Plaintiff’s retaliation
claims are not time-barred, as all alleged acts of retaliation against Plaintiff occurred within the
limitations period.
Defendants also argue that even if Plaintiff engaged in protected activity, she fails to show
any causal connection between her protected activity and an adverse action. Plaintiff must provide
facts linking the speech in question to the Defendants’ retaliatory action against her. Zwick, 2008
WL 1902031 at *9. As mentioned in the discussion of Count II, a multi year gap between the
protected activity and the retaliatory conduct may totally negate a claim of causation. See Fuhr, 710
F.3d at 676.
Plaintiff undoubtedly engaged in protected speech activities - namely, all of the reports of
sexual harassment and discrimination made to Pollock, Goldman, and other University faculty and
employees, as well as her involvement in SAPAC. The second element of free speech retaliation,
whether the “defendant's adverse action caused the plaintiff to suffer an injury that would likely chill
a person of ordinary firmness from continuing to engage in that activity” is not in dispute here.
In regards to the third element, Plaintiff has come forth with facts sufficient to support her
theory that the retaliatory acts taken against her were motivated, “at least in part, as a response to”
the exercise of her free speech right. See Zwick, 2008 WL 1902031 at *9; see also Discussion of
factual allegations involving Defendants Pollock and Goldman, supra at 19-20. Therefore, this
Court DENIES Defendants’ Motion to Dismiss Count V of Plaintiff’s Second Amended Complaint.

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Count VI: ELCRA sex discrimination/disparate treatment/hostile environment against
all Defendants
ELCRA “demands that ‘[a]n educational institution shall not . . . discriminate against an
individual in the full utilization of or benefit from the institution, or the services, activities, or
programs provided by the institution because of religion, race, color, national origin, or sex.’” Zwick,
2008 WL 1902031 at *10, citing M.C.L. § 37.2402.
Plaintiff’s Count VI is, by and large, the Michigan state law corollary to Plaintiff’s Title IX
hostile environment claim. Plaintiff advances the same theory, Defendants make the same
arguments for dismissal, and Plaintiff raises the same counter-arguments as found in the discussion
of Plaintiff’s Title IX hostile environment claim found in Count I. Therefore, for the reasons set
forth therein, this Court DENIES Defendants’ Motion to Dismiss Count VI of Plaintiff’s Second
Amended Complaint at Law.
Count VII: ELCRA sex discrimination/disparate impact against all Defendants
“The disparate impact discrimination theory evolved from Title VII of the Civil Rights Act
and has been incorporated into the Michigan Civil Rights Act.” Jones v. Pepsi–Cola Metro. Bottling
Co., Inc., 871 F.Supp. 305, 308 n. 4 (E.D.Mich.1994) (citing Squire v. Gen. Motors Corp., 436
N.W.2d 739, 741–42 (Mich.Ct.App.1989)). Thus, when “analyzing claims under Elliott–Larson,
Michigan courts apply federal substantive law developed in Title VII cases.” Jones, 871 F.Supp. at
308 n. 4 (citing Squire, 436 N.W.2d at 741–42); see also Ayers v. Multiband Field Svcs., Inc., 2013
WL 5244918 at *3 (E.D. Mich. 2013).
To establish a prima facie case of disparate impact discrimination under ELCRA, a plaintiff
must show that she was a member of a protected class and that “a facially neutral employment

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practice burden[ed] a protected class of persons more harshly than others.” Roberson v Occupational
Health Centers of America, Inc., 220 Mich.App 322, 329-330 (1996).
Plaintiff alleges that “Defendants’ dispute resolution policy has the impact of discouraging
reporting and allowing perpetrators to enjoy the benefits of the university while the victims are
silenced.” This argument is premised on the notion that “[w]omen are much more frequent victims
of sexual harassment and assault . . . .” (Pl.’s Resp. at 18).
Defendants argue that Plaintiff’s disparate impact claim fails because her pleading is generic
and conclusory, and is therefore not entitled to any presumption of truth. See Ashcroft v. Iqbal, 556
U.S. 662, 681 (2009).

Defendants further attack Plaintiff’s reliance on the Department of

Education’s “Dear Colleague” letter, which suggests, but does not mandate, that universities like
Defendant U-M implement certain training and procedures to prevent sexual harassment and
violence. (See Pl.’s Resp. at Ex. 11).
Plaintiff directs this Court to paragraphs 17 through 25 in support of her disparate impact
claim. There, Plaintiff alleges that the conflict resolution process at the University of Michigan was
contrary to the requirements of Title IX, and that it provided women with no way to “address the
permissive culture of sexual hostility toward female students in the College of Engineering.” (Pl.’s
Compl. at ¶ 24). Plaintiff argues that this policy disproportionately impacts women at U-M.
This Court finds that these paragraphs contain factual allegations which, when all inferences
are taken in a light most favorable to the Plaintiff, support a plausible claim for relief under ELCRA.
Therefore, this Court DENIES Defendant’s Motion to Dismiss Count VII of Plaintiff’s Second
Amended Complaint.

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Count VIII: ELCRA retaliation against all Defendants
“Michigan courts also apply the Title VII framework” to ELCRA retaliation claims as well
as Title IX retaliation claims. Garg v. Macomb Cty. Comm. Mental Health Services, 472 Mich. 263,
284 (2005).
To establish a prima facie case of retaliation in violation of ELCRA, a plaintiff must show:
(1) that he engaged in a protected activity; (2) that this was known by the defendant; (3) that the
defendant took an employment action adverse to the plaintiff, and (4) that there was a causal
connection between the protected activity and the adverse employment action. DeFlaviis v. Lord
& Taylor, Inc., 223 Mich.App. 432, 436 (1997).
“To establish causation for claims of retaliation under ELCRA, the plaintiff must show that
[her] participation in activity protected by the ELCRA was a ‘significant factor’ in the employer's
adverse employment action, not just that there was a causal link between the two.” Rymal v.
Baergen, 262 Mich.App. 274, 303 (2004).
Defendants argue that Plaintiff’s ELCRA retaliation claim fails for the same reasons as the
Title IX retaliation claim. (See Count II, supra p. 15-20). Defendants argue that Plaintiff did not
engage in any “protected conduct” within the statute of limitations, and even if she did, she does not
allege that any retaliatory act is causally connected to any timely protected activity.
Defendants claim that Michigan courts do not recognize the continuing violations doctrine
for claims brought under ELCRA. (Defs.’ Br. at 9)(citing Garg v. Macomb Cty. Comm. Mental
Health Services, 472 Mich. 263, 284 (2005)). In Garg, the plaintiff filed a grievance against her
employer in June 1987 and was subsequently denied promotions because of it. Plaintiff filed a
complaint against her employer in July 1995, alleging that the employer violated ELCRA by
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retaliating against her commission of a protected activity.
There, defendant successfully argued that plaintiff could not sue her former employer based
on any promotion denials that occurred earlier than three years before the filing of the complaint3,
even though plaintiff argued that promotion denials after July 1992 were “continuing violations” of
the earlier retaliatory acts. The Garg court rejected that theory, overturning a prior state court case
on point4, and held that “a person must file a claim under the Civil Rights Act within three years of
the date his or her cause of action accrues, as required by § 5805(10).10. That is, “three years” means
three years. An employee is not permitted to bring a lawsuit for employment acts that accrue beyond
this period, because the Legislature has determined that such claims should not be permitted.” Id.
at 285.
Plaintiff responds that Defendants’ interpretation of Garg overstates its holding. Whether
or not Defendant correctly interprets Garg, the present case is distinguishable and, thus, Garg
inapplicable. In Garg, the plaintiff filed suit based on retaliatory acts that were, on their face, barred
by the statute of limitations. Here, Plaintiff bases her claim of ELCRA retaliation based on
retaliatory acts that occurred within the statute of limitations period, beginning with Defendant
Pollock’s termination of Plaintiff’s research appointment on December 23, 2009. In sum, Garg does
not render Plaintiff’s claims untimely. Therefore, based on the foregoing, this Court DENIES
Defendants’ Motion to Dismiss Count VIII of Plaintiff’s Second Amended Complaint.

3

The statute of limitations on ELCRA claims in Michigan is three years, which is the
statute of limitations applicable to personal injury actions in Michigan.
4

The Garg court overruled Sumner v. Goodyear Tire & Rubber Co., 427 Mich. 505, 398
N.W.2d 368 (1986).
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CONCLUSION & ORDER
For the reasons set forth above, this Court DENIES Defendant’s Motion to Dismiss
Plaintiff’s Second Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(5) and
12(b)(6) (Doc. #25), and GRANTS Plaintiff’s Motion to Extend Time to Serve Summons and
Complaint on Defendants Green and Goldman (Doc. #32). Plaintiff has sixty (60) days from the
issuance of this Order to effectuate personal service on Defendants Goldman and Green.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: November 18, 2013
I hereby certify that a copy of the foregoing document was served upon counsel of record on
November 18, 2013, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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