Hawthorne-Burdine v. Oakland University et al

Filing 44

OPINION AND ORDER GRANTING MEDICOLEGAL SERVICES LLCS MOTION TO DISMISS 25 AND GRANTING OAKLAND DEFENDANTSMOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT 35 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DOROTHY HAWTHORNE-BURDINE,
Case No. 16-cv-13118
Plaintiff,
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
OAKLAND UNIVERSITY, ET AL.,

UNITED STATES MAGISTRATE JUDGE
ANTHONY P. PATTI

Defendants.
/
OPINION AND ORDER GRANTING MEDICOLEGAL SERVICES LLC’S MOTION TO
DISMISS [25] AND GRANTING OAKLAND DEFENDANTS’ MOTION TO DISMISS
AND/OR FOR SUMMARY JUDGMENT [35]
I. INTRODUCTION
Dorothy Hawthorne-Burdine (“Plaintiff”) filed this case on August 29, 2016,
alleging discrimination by her past employer, Oakland University, and other
defendants including Medicolegal Services (“Medicolegal”), 30 individuallynamed defendants, and 100 John Does (collectively, “Oakland Defendants,”
excluding Medicolegal). See Dkt. Nos. 1, 12. This case is related to a prior
proceeding (hereinafter, the “2015 Case”), which was dismissed and its judgment
affirmed by the Sixth Circuit in November 2016. See Hawthorne-Burdine v.
Oakland Univ., 158 F. Supp. 3d 586 (E.D. Mich. 2016); Hawthorne-Burdine v.
Oakland Univ., No. 16-1103 (6th Cir. Nov. 3, 2016).

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This matter is before the Court on Medicolegal’s Motion to Dismiss [25] and
Oakland Defendants’ Renewed Motion to Dismiss and/or for Summary Judgment
[35]. Both motions are fully briefed and oral argument was held on February 13,
2016.
For the reasons discussed herein, Court will GRANT Medicolegal’s Motion
to Dismiss [25] and GRANT Oakland Defendants’ Renewed Motion to Dismiss
and/or for Summary Judgment [35].
II. BACKGROUND
A. Plaintiff’s Employment with Oakland University and Denial of Tenure
Facts related to Plaintiff’s employment with Oakland University, her
removal from the campus, and the denial of Plaintiff’s tenure application were
recited in the 2015 Case. Hawthorne-Burdine, 158 F. Supp. 3d at 591–96. As the
facts related to these issues are lengthy, and all occurred prior to September 2015,
the Court refers to the Background section of the order dismissing the 2015 Case
for the sake of brevity. See id.
B. The 2015 Case
On September 16, 2015, Plaintiff filed a complaint alleging discrimination
by her former employer, Oakland University, Medicolegal Services, 28
individually-named defendants, and 100 John Does. See Hawthorne-Burdine, 158
F. Supp. 3d at 586.
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In her Complaint in the 2015 Case, Plaintiff referenced to and quoted from
the three independent medical examination assessments that Oakland University
required her to undergo to be allowed to return to campus. Case No. 15-cv-13285,
Dkt. No. 4, pp. 33–34 (Pg. ID 89–90). Oakland Defendants included these
assessments as exhibits in their motion to dismiss and/for summary judgment to
respond to Plaintiff’s allegations. Compare id. (stating that all three assessments
cleared Plaintiff to return to work) with Hawthorne-Burdine, 158 F. Supp. 3d at
594 (providing that Dr. Wolf’s psychiatric examination reported that Plaintiff
“should be regarded as unfit to return to her teaching position at the present time”);
see also Hawthorne-Burdine, 158 F. Supp. 3d at 595 n.10 (“In her Complaint,
Plaintiff misattributed her own statements, quoted by Dr. Wolf in his psychiatric
report, as though they were Dr. Wolf’s examination findings.”). Defendants filed
the medical assessments on the public docket on October 29, 2015. Case No. 15cv-13285, Dkt. No. 12. Plaintiff filed a motion to strike the assessments on
November 9, 2015. Dkt. No. 18. The Court sealed the assessments on November
10, 2015, Dkt. No. 20, one day after the Court was notified the documents should
be placed under seal.
On December 8, 2015, Plaintiff filed “protected health information provided
by her private physician for ADA accommodation” on the docket without properly
sealing it. Case No. 15-cv-13285, Dkt. No. 30, p. 1 (Pg. ID 1845); Case No. 15-cv-3-

13285, p. 22 (Pg. ID 524) (noting Plaintiff’s health ailments would make traveling
to different campus to teach difficult). The Court ultimately struck the entire filing
as untimely on December 17, 2015. Case No. 15-cv-13285, Dkt. No. 32, pp. 2–3
(Pg. ID 1850–51) (“Plaintiff then filed two motions, Dkt. No. 30–31, seeking to
strike duplicative filings, Dkt. No. 26–27, and seal an exhibit she herself filed
without complying with Local Rule 5.3(a).”).
After full briefing and oral argument, the Court granted Defendants’ Motion
to Dismiss and/or Motion for Summary Judgment on January 27, 2016. See id.
Plaintiff filed a timely appeal. Case No. 15-cv-13285, Dkt. No. 38, p. 1 (Pg. ID
1904).
The Sixth Circuit affirmed the Court’s judgment on November 3, 2016 after
performing a de novo review. Case No. 15-cv-13285, Dkt. No. 40, p. 2 (Pg. ID
1908). In its Order, the Sixth Circuit held: (1) “Hawthorne-Burdine could not rebut
Oakland University’s proffered legitimate, nondiscriminatory reason for her
termination, and the district court did not err in dismissing her race discrimination
claim,” id. at 3–4 (Pg. ID 1909–10); (2) “The district court did not err in
dismissing Hawthorne-Burdine’s ADA and ADEA claims against Oakland
University because the university is entitled to sovereign immunity,” id. at 4 (Pg.
ID 1910); (3) “The district court did not err in dismissing Hawthorne-Burdine’s
claims against the individually named defendants because individuals who are not
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employers cannot be held personally liable under the ADA,” id.; (4) “The district
court did not err in dismissing the claims against the Oakland University Police
Department because it does not exist as an entity separate from the university
itself,” id.; (5) “The district court did not err in dismissing her claims against
Medicolegal because Hawthorne-Burdine did not allege that Medicolegal was her
employer,” id.; (6) “The district court did not err in declining to exercise
jurisdiction over Hawthorne-Burdine’s supplemental state-law claims because the
court properly dismissed her federal claims,” id.; (7) “[Hawthorne-Burdine] is not
entitled to relief on her judicial bias claim because ‘judicial rulings alone almost
never constitute valid basis for a bias or partiality recusal motion,’ ” id.; and (8) “a
district court does not abuse its discretion in failing to grant a party leave to amend
where such leave is not sought.” Id. at 4–5.
There is no evidence on the 2015 Case’s docket that Plaintiff appealed the
Sixth Circuit’s order affirming judgment to the United States Supreme Court.
C. The 2016 Case
After appealing the 2015 Case, but prior to the Sixth Circuit’s decision
affirming the Court’s judgment, Plaintiff filed this second proceeding (hereinafter,
the “2016 Case”) in August 2016. See Dkt. No. 1. Plaintiff filed a first Amended
Complaint on September 28, 2016, adding Defendants’ counsel from the 2015
Case, Daniel Bernard, as a new defendant and adding four additional claims. Dkt.
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No. 12. Plaintiff’s 2016 Amended Complaint includes 21 claims. Id. On October
31, 2016, the Court dismissed six of Plaintiff’s claims that had been dismissed with
prejudice in the 2015 Case. Dkt. No. 29, p. 6 (Pg. ID 804). The dismissed claims
alleged violations of the Americans with Disabilities Act (ADA), Title VII of the
Civil Rights Act (Title VII), and Age Discrimination in Employment Act (ADEA).
Id. Accordingly, fifteen of the claims brought in Plaintiff’s Amended Complaint
remain.
On October 25, 2016, Medicolegal filed a Motion to Dismiss, arguing that
Plaintiff’s claims are barred by res judicata and fail to state a claim upon which
relief can be granted. Dkt. No. 25. Oakland Defendants similarly filed a Motion to
Dismiss and/or for Summary Judgment based on the Amended Complaint on
November 22, 2016, Dkt. No. 33, which was stricken for utilizing an improper font
size, Dkt. No. 34. The Court granted Oakland Defendants an additional six days to
refile the brief in accordance with the Local Rules. Dkt. No. 34. Oakland
Defendants submitted a renewed motion, in compliance with the Local Rules, on
November 28, 2016. Dkt. No. 35.
III. LEGAL STANDARDS
A. FED. R. CIV. P. 12(b)(1)
When defendants seek to dismiss an action under Rules 12(b)(1) and
12(b)(6), the court is “bound to consider the 12(b)(1) motion first, since the Rule
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12(b)(6) challenge becomes moot if this court lacks subject matter jurisdiction.”
Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990).
Dismissals for lack of jurisdiction should generally be made without prejudice.
Ernst v. Rising, 427 F.3d 351, 367 (6th Cir. 2005).
Under a Rule 12(b)(1) motion, the plaintiff bears the burden of proving
jurisdiction in order to survive the motion. Id. Furthermore, on a Rule 12(b)(1)
motion, unlike a Rule 12(b)(6) motion, the court is empowered to resolve factual
disputes. Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986).
“Motions to dismiss for lack of subject matter jurisdiction fall into two
general categories: facial attacks and factual attacks.” United States v. Ritchie, 15
F.3d 592, 598 (6th Cir. 1994). Whereas a facial attack is a challenge to the
sufficiency of the pleading itself, a factual attack challenges the factual existence
of subject matter jurisdiction. Id. Where the motion makes a facial attack, the court
must construe the petition’s allegations in the light most favorable to the nonmoving party and take the material allegations as true. Id. Conversely, on a factual
attack, there is no presumption of truthfulness applied to factual allegations,
allowing the court to “weigh the evidence and satisfy itself as to the existence of its
power to hear the case.” Id.

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B. FED. R. CIV. P. 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint
for “failure to state a claim upon which relief can be granted.” To withstand a
motion to dismiss pursuant to Rule 12(b)(6), a complaint must comply with the
pleading requirements of Federal Rule of Civil Procedure 8(a). See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Rule 8(a)(2) requires “a short and plain statement
of the claim showing that the pleader is entitled to relief, in order to give the
defendant fair notice of what the ... claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks omitted)
(quoting FED. R. CIV. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957)). To
meet this standard, a complaint must contain sufficient factual matter, accepted as
true, to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
570; see also Iqbal, 556 U.S. at 678–80 (2009) (applying the plausibility standard
articulated in Twombly).
When considering a Rule 12(b)(6) motion to dismiss, the Court must
construe the complaint in a light most favorable to the plaintiff and accept all of
her factual allegations as true. Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir.
2008). However, the Court need not accept mere conclusory statements or legal
conclusions couched as factual allegations. See Iqbal, 556 U.S. at 678.

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In ruling on a motion to dismiss, the Court may consider “the Complaint and
any exhibits attached thereto, public records, items appearing in the record of the
case and exhibits attached to defendant’s motion to dismiss so long as they are
referred to in the Complaint and are central to the claims contained therein.”
Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). The
Court may also consider “documents incorporated into the complaint by reference,
and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
C. FED. R. CIV. P. 56
Federal Rule of Civil Procedure 12(d) provides that, “[i]f, on a motion under
Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary judgment
under Rule 56.” The parties “must be given a reasonable opportunity to present all
the material that is pertinent to the motion.” FED. R. CIV. P. 12(d). A motion for
summary judgment under Rule 56 can be filed “at any time until 30 days after the
close of all discovery.” FED. R. CIV. P. 56(b).
Federal Rule of Civil Procedure 56(c) “directs that summary judgment shall
be granted if ‘there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.’ ” Cehrs v. Ne. Ohio Alzheimer’s
Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998). The court must view the facts,
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and draw reasonable inferences from those facts, in the light most favorable to the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). No
genuine dispute 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 Elec.
Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Ultimately, the court
evaluates “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson, 477 U.S. at 251–52.
D. Standards Regarding Pro Se Complaints
Pro se complaints are held to “less stringent standards” than those drafted by
lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). “While a pro se party is
entitled to have her pleadings construed liberally, she will not be relieved of the
responsibility to comply with the basic rules of court.” Brown v. Woodward, 145
F.3d 1330 (6th Cir. 1998). See also McNeil v. United States, 508 U.S. 106, 113
(1993) (Supreme Court has “never suggested that procedural rules in ordinary civil
litigation should be interpreted so as to excuse mistakes by those who proceed
without counsel”); Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989) (collecting
cases where courts have required pro se litigants to adhere to basic pleading
requirements); Brock v. Hendershott, 840 F.2d 339, 342–43 (6th Cir. 1988) (court

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adopts rule that no special treatment was to be afforded ordinary civil litigants who
proceed pro se).
A court shall dismiss a case at any time if the court determines that the
action is: “(i) is frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B). A complaint is frivolous if “it lacks
an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989). A frivolous complaint may be “based on an indisputably meritless legal
theory,” rest on “clearly baseless” factual contentions, rely on “claims of
infringement of a legal interest which clearly does not exist,” or describe “fantastic
or delusional scenarios.” Id. at 327–28.
IV. DISCUSSION
In the 2016 Case, Plaintiff has pled five new state law claims (Count VII,
Count IX–XII) and ten new federal law claims (Count VIII, Counts XIII–XXI).
Plaintiff’s new claims are as follows: (1) Count VII: Bullard Plawecki, Employee
Right To Know (Act 397 OF 1978, M.C.L. § 423.501 et seq); (2) Count VIII:
Breach Of Collective Bargaining Agreement (CBA) (LMRA § 301(a), 1976; 29
U.S.C.A. § 185(a) (1976)); (3) Count IX: Wrongful Termination/Promissory
Estoppel (Restatement (Second) Of Contracts, § 90); (4) Count X: Fraud in the
Inducement (MCL 566.132; MSA 26.922); (5) Count XI: Defamation—
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Libel/Slander (M.C.L. 600.2911 et seq.);(6) Count XII: Intentional Infliction Of
Emotional Distress (“IIED”) (Restatement (Second) Of Torts § 46(1) (1965);
Worker’s Disability Compensation Act (WDCA); M.C.L. § 418.131(1); 1987 PA
28; MSA § 17.237(131)(1)); (7) Count XIII: Malicious Prosecution (Fifth
Amendment, 42 U.S.C. § 1983); (8) Count XIV: Right To Due Process Of Law: 42
U.S.C. § 1983 (Fifth And Fourteenth Amendment; Michigan Constitution Art. I
§ 7); (9) Count XV: Conspiracy (42 U.S.C. § 1985); (10) Count XVI: Freedom to
Associate; 42 U.S.C. § 1983 (First and Fourteenth Amendment); (11) Count XVII:
False Imprisonment (Fourth Amendment; 42 U.S.C. § 1983); (12) Count XVIII:
Failure To Prevent Violations And Civil Conspiracy (Fourth Amendment; 42
U.S.C. § 1986); (13) Count XIX: Invasion Of Privacy, Public Disclosure (Privacy
Act Of 1974, 5 U.S.C. § 552a (1982); Restatement (Second) Torts § 652(D)); (14)
Count XX: Invasion Of Privacy, Publicity Of Person In False Light (Privacy Act
Of 1974, 5 U.S.C. § 552a (1982); Restatement (Second) Torts § 652(E)); and (15)
Count XXI: Warrantless Search And Seizure (Fourth Amendment; 42 U.S.C.
§ 1983; Restatement (Second) Torts § 652A; Michigan Constitution, § 11).
The Court will first address Defendants’ arguments concerning res judicata,
with respect to Plaintiff’s ten new federal law claims (Count VIII, Counts XIII–
XXI).

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A. Claim Preclusion Bars Nine of Plaintiff’s New Federal Claims
Both motions raise the issue that this is the second case premised on the
same series of events, of which nearly all defendants were previously named.
Federal law does not grant parties the opportunity to relitigate matters where they
have previously received a dissatisfactory judgment.1 See Thomas v. Miller, 329 F.
App’x 623, 628 (6th Cir. 2009) (finding that a plaintiff “cannot have a second bite
at the apple” where the plaintiff previously used the defendants’ alleged
discrimination to bring suit under a different federal statute).
The preclusive effect of a prior adjudication is referred to as res judicata.
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984). Res
judicata can be broken down into two separate doctrines: claim preclusion and
issue preclusion. Id. “Issue preclusion refers to the effect of a judgment in
foreclosing relitigation of a matter that has been litigated and decided.” Id. “Claim
preclusion refers to the effect of a judgment in foreclosing litigation of a matter
that never has been litigated, because of a determination that it should have been
advanced in an earlier suit.” Id. Claim preclusion “serves to ‘avoid multiple suits
on identical entitlements or obligations between the same parties.’ ” BravoFernandez v. United States, 137 S. Ct. 352, 357 (2016) (quoting 18 C. Wright, A.
Miller, & E. Cooper, Federal Practice and Procedure § 4402, p. 9 (2d ed. 2002)).
1

Where a party believes there is a legal basis with which to challenge a district
court’s judgment, they may appeal that judgment to a federal appellate court.
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Although claim preclusion bars claims that could have been brought at the time of
the original case, it does not prevent new causes of action that ripened after the
filing of the original case. See Elder v. Twp. of Harrison, 489 F. App’x 934, 937
(6th Cir. 2012).
To establish claim preclusion, Defendants must show (1) “a final judgment
on the merits” in a prior action; (2) “a subsequent suit between the same parties or
their privies”; (3) an issue in the second lawsuit that should have been raised in the
first; and (4) that the claims in both lawsuits arise from the same series of
transactions. Wheeler v. Dayton Police Dep’t, 807 F.3d 764, 766 (6th Cir. 2015).
i.

Final Adjudication on the Merits

First, the Court finds that Defendants have demonstrated that there was a
final judgment on the merits in the 2015, where the Court granted summary
judgment to Defendants and dismissed Plaintiff’s federal claims with prejudice.2
This judgment was affirmed on de novo review by the Sixth Circuit.
“The grant of summary judgment most certainly constitutes a final
adjudication on the merits for purposes of claim preclusion.” Heike v. Cent.
Michigan Univ. Bd. of Trustees, 573 F. App’x 476, 480 (6th Cir. 2014).
Accordingly, there was a sufficiently final decision in the 2015 Case.

2

After dismissing all of Plaintiff’s federal claims with prejudice, the Court
declined to exercise supplemental jurisdiction over Plaintiff’s state law claims,
dismissing those without prejudice.
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ii.

Same Parties or Their Privies

Second, a “final judgment on the merits of an action bars the same parties
‘or their privies’ from relitigating claims that were or could have been raised in
that action.” Heike, 573 F. App’x at 481 (citing Federated Dep’t Stores, Inc. v.
Moitie, 452 U.S. 394, 398 (1981)).
In the 2015 Case, Plaintiff named the following defendants that she named
again in the 2016 Case: Oakland University, Medicolegal, Betty Youngblood,
Carly Schatzberg, Catherine Rush, Cheryl McPherson, Cheryl Michelle Piskulich,
Darlene Schott-Baer, Gary Moore, George Hynd, Glenn McIntosh, James Franklin;
James Lentini, Janine DeWitte, John Krauss, Kathleen Walsh Spencer, Kerri
Schuiling, Mark Gordon, Mark Schlussel, Melissa Stolicker, Michael Kramer,
Nancy Schmitz, Richard DeVore, Richard Flynn, Ronald Robinson, Samuel
Lucido, Sarah Newton, Scott Kunselman, Victor Zambardi, W. David Tull, and
Does 1–100. All defendants in the 2015 case were “sued in official and personal
capacity; and . . . jointly and severally.” Case No. 15-cv-13285, Dkt. No. 4, p. 1
(Pg. ID 57). Plaintiff named Oakland University as a defendant in every claim in
the 2015 Case, and brought Count IX, an ADA claim for hostile work environment
and harassment, against all other defendants. See Case No. 15-cv-13285, Dkt. No.
4-1, p. 5 (Pg. ID 111). As mentioned above, all federal claims in the 2015 Case

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against Defendants, both in their individual and official capacities, were dismissed
with prejudice.
Additionally, Plaintiff’s 2016 Case added two new defendants. Dkt. No. 12,
p. 1 (Pg. ID 263). Plaintiff now sues Defendant Beaghan, Oakland University’s
Vice President of Finance and Administration and a member of the Board of
Trustees, in his individual capacity. Id. at 6–7. Plaintiff is also now suing
Defendant Bernard, Oakland’s outside legal counsel, in his individual capacity. Id.
at 9. Plaintiff’s 2016 Case omitted prior claims against the Oakland University
Police Department, which does not exist as an entity separate from the university
itself.
“Principles of claim preclusion ‘do not always require one to have been a
party to a judgment in order to be bound by it.’ ” Heike, 573 F. App’x at 481
(quoting Richards v. Jefferson Cnty., 517 U.S. 793, 798 (1996)). Rather, “there is
an exception when . . . there is ‘privity’ between a party to the second case and a
party who is bound by an earlier judgment.” Id. The Sixth Circuit recognizes that
“[i]ndividuals sued in their official capacities stand in the shoes of the entity they
represent.” Id. (quoting Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003)).
The distinction between official capacity and individual capacity claims is
not ironclad. Fleming v. City of Detroit, No. 04-74081, 2006 WL 2559862, at *6
(E.D. Mich. Sept. 1, 2006). “Where there is a sufficient identity of interest between
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a government official and the governmental entity or where the inclusion of the
personal capacity claim amounts to nothing more than a pleading artifice, privity
may be found to exist regardless of the fact that the official has been sued in his
personal capacity.” Id.
For instance, the Fleming court determined that § 1983 claims brought
against a police chief in his individual capacity were barred by res judicata based
upon the dismissal of a prior § 1983 suit, despite the fact that the police chief was
not a party to the prior proceeding. 2006 WL 2559862, at *7. The Court quoted
Williams v. City of Allentown, 25 F. Supp. 2d 599 (E.D. Pa. 1998), where the
employee defendants had a sufficiently close relationship with prior defendants
that they were in privity:
Additionally, the personal capacity suits against these individuals are
also barred by res judicata as Bloom and Watson are in privity with
the prior defendants. Absent some other factor, an individual sued in
his or her personal capacity is not automatically in privity with a
government entity as is the case in an official capacity suit. However,
the Third Circuit has long recognized that privity is a legal
conclusion; the privity inquiry should be flexible enough to
acknowledge the realities of parties’ relationships. The court should
examine whether there is such an identity of interests between the first
and second party that the second should ever be deemed in privity
with the first. In this case, Bloom and Watson are being sued for their
actions relating to an event that the court previously ruled, for reasons
of qualified immunity, to be properly decided on summary judgment.
These two individuals have a sufficiently close relationship with prior
parties that they should be considered in privity with those former
parties. Any other holding would reward litigants who failed,
intentionally or not, to include all relevant parties in action and would
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permit two (or possibly many more) attempts to try the same cause of
action.
Id. at 604 (citations and quotations omitted); See also, e.g., Licari v. City of
Chicago, 298 F.3d 664, 667 (7th Cir. 2002) (determining that a finding of privity is
warranted where a plaintiff does not allege any action taken against him by the
new defendants—in either their official or individual capacities—that is separate
and distinct from any action taken by the government entity); Cohen v. Shea, 788
F. Supp. 66, 68 (D. Mass. 1992) (“a party cannot escape the rule of res judicata
through expansive pleading”).
Here, none of the counts in which Beaghan is listed as a defendant allege
any actions Beaghan personally took against Plaintiff that are separate and distinct
from actions taken by Oakland University. Similarly, the Complaint does not
describe how Beaghan was in any way personally involved in the deprivation of
Plaintiff’s rights.3 Plaintiff’s claims against Beaghan appear to be predicated solely
upon his role “oversee[ing] the University[’s] day-to-day financial operations, risk
management, and the University’s Police Department.” Dkt. No. 12, p. 7 (Pg. ID
269). Based on Plaintiff’s allegations against Beaghan, it is fair to say that Beaghan
had a sufficiently close relationship with prior defendants that he can be considered
to be in privity with the University. Accordingly, the inclusion of claims against

3

These counts do not mention Beaghan at all, apart from listing him as a
defendant in the header of each claim.
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Beaghan in his individual capacity amounts to nothing more than a pleading
artifice.
Similar to Beaghan, none of the counts in which Bernard is listed as a
defendant allege any actions Bernard personally took against Plaintiff, separate and
distinct from actions taken by Oakland University. The Complaint does not
describe how Bernard was in any way personally involved in the deprivation of
Plaintiff’s rights.4 Plaintiff’s claims against Bernard are tied to “his legal
representation for all other Defendants.” Dkt. No. 12, p. 9 (Pg. ID 271). Bernard’s
connection to the 2016 Case arises out of his role as private legal counsel Oakland
University hired in the 2015 Case. One of the exhibits attached to the 2016
Amended Complaint states that Bernard was the individual who placed Plaintiff’s
medical records on the docket without seal in the 2015 Case. See Dkt. No. 14-26,
p. 1 (Pg. ID 532). Since it is not clear that Bernard was in privity with Oakland
University and the repeat defendants prior to September 2015, the Court cannot say
at this point that he is in privity with the rest of the Defendants.
Accordingly, all Defendants, except Bernard, are found to be the same or in
privity with previous defendants in the 2015 Case.

4

These counts do not mention Bernard at all, apart from listing him as a
defendant in the header of each claim.
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iii.

Issues Actually Litigated or Issues that Should Have Been
Litigated

“One purpose of claim preclusion is to compel litigants to bring all related
claims in a single lawsuit.” Heike, 573 F. App’x at 482 (citing Wilkins v. Jakeway,
183 F.3d 528, 532 n. 4 (6th Cir. 1999)). Thus, this element of claim preclusion bars
not only claims already brought, but also claims that should have been brought in
the original action. Id. A plaintiff should have litigated a claim in her first suit if
the claim “arose from the same transaction, or series of transactions” as any claim
in the prior suit. Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 529 (6th Cir.
2006).
In Rawe, the Sixth Circuit determined that a plaintiff’s first and second
causes of action arose from the same transaction where the plaintiff’s allegations of
bad faith were based upon the defendant’s conduct that predated the plaintiff’s first
suit. Id. The plaintiff in Rawe brought suit for uninsured motorist benefits and then
brought a subsequent action against her insurer for bad faith that allegedly
occurred both before and after her initial uninsured motorist claim was adjudicated.
Id. The Sixth Circuit affirmed the district court’s dismissal of the plaintiff’s badfaith claims, concluding that plaintiffs cannot avoid the effects of claim preclusion
by merely repacking their grievances into alternative theories of recovery or by
seeking different remedies. Id. See also Heike, 573 F. App’x at 482.

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The nucleus of Plaintiff’s factual allegations in the 2015 Case was that a
student’s audio recording of one of Plaintiff’s lectures led to a campus committee
determining that Plaintiff posed a threat to campus safety. Hawthorne-Burdine,
158 F. Supp. 3d at 592–94. That committee then had Plaintiff removed from
campus by the campus police in September 2013. Id. Following her removal, the
university required Plaintiff to undergo medical examinations to retain full pay and
benefits. Id. The examinations were to determine if there was an underlying
medical condition causing what the university believed to be abnormal behavior.
Id. at 594–95. Plaintiff filed a grievance over her removal, and then arbitrated her
removal through her campus union. Id. at 595. The arbitrator sustained part of her
grievance, finding that although the committee deliberated in good faith, it should
have notified Plaintiff prior to removing her from campus. Id. While Plaintiff was
removed from campus, two separate tenure committees recommended that she be
denied tenure, citing her lack of recent publications and her failure to secure
funding. Id. at 595–96. Shortly after receiving a return to work letter in July 2014,
Plaintiff was denied tenure in August 2014, ending her employment with the
university. Id. She did not file a grievance concerning her tenure denial. Id.
Based on the facts above, Plaintiff alleged discrimination based on race, age,
and disability in the 2015 Case. She realleged those claims in the 2016 Case, in
addition to new claims that her constitutional and statutory rights were violated by
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those same acts. After reviewing the Amended Complaints in Plaintiff’s 2015 Case
and 2016 Case, the Court finds that there is a factual and evidentiary nexus
between the pleadings on all but one of Plaintiff’s new federal claims.
Plaintiff’s Count VIII: Breach Of Collective Bargaining Agreement (CBA)
claim is premised on allegations that Oakland University violated Plaintiff’s
collective bargaining agreement during her CBA by removing her from campus in
the fall 2013. Dkt. No. 12, pp. 54–57 (Pg. ID 316–19). Count VIII is premised on
the same series of transactions that the Court considered in the 2015 Case. Thus,
this claim should have been litigated in the 2015 Case.
Plaintiff’s Count XIII: Malicious Prosecution claim appears to allege that
defendants conspired and initiated an arbitration proceeding against Plaintiff that
she believes was resolved in her favor. Dkt. No. 12, p. 67–69 (Pg. ID 329–31).
Count XIII is premised on the same series of transactions that the Court considered
in the 2015 Case. The arbitration proceeding transpired entirely before the filing of
the 2015 Case. Thus, this claim should have been litigated in the 2015 Case.
Plaintiff’s Count XIV: Right To Due Process Of Law claim alleges that
defendants denied her due process and performed a warrantless search and seizure
by removing Plaintiff from campus in 2013 and “refusing to notify the appropriate
officials that Plaintiff had not committed any acts or omissions that constituted a
violation of the law.” Dkt. No. 12, p. 70 (Pg. ID 332). Count XIV is premised on
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the same series of transactions that the Court considered in the 2015 Case.
Plaintiff’s removal from campus took place in September 2013, before Plaintiff
filed the 2015 Case. Thus, this claim should have been litigated in the 2015 Case.
Plaintiff’s Count XV: Conspiracy claim alleges that defendants conspired to
have Plaintiff removed from campus in September 2013 and testified against her in
an arbitration proceeding that preceded the 2015 Case. Dkt. No. 12, pp. 71–72 (Pg.
ID 333–34). Count XV is premised on the same series of transactions that the
Court considered in the 2015 Case. Both Plaintiff’s removal from campus and the
arbitration proceedings took place before Plaintiff filed the 2015 Case. Thus, this
claim should have been litigated in the 2015 Case.
Plaintiff’s Count XVI: Freedom to Associate claim alleges that defendants
restricted Plaintiff’s freedom of association by having her removed from campus in
September 2013. Dkt. No. 12, pp. 72–74 (Pg. ID 334–36). Plaintiff’s claim ripened
prior to September 2015. Count XVI is premised on the same series of transactions
that the Court considered in the 2015 Case. Thus, this claim should have been
litigated in the 2015 Case.
Plaintiff’s Count XVII: False Imprisonment claim alleges defendants forced
Plaintiff to submit her body to independent medical examinations in 2013 and
2014 and removed her from campus in 2013. Dkt. No. 12, pp. 74–75 (Pg. ID 336–
37). Both Plaintiff’s medical examinations and her removal from campus
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transpired before she initiated the 2015 Case. Count XVII is premised on the same
series of transactions that the Court considered in the 2015 Case. Thus, this claim
should have been litigated in the 2015 Case.
Plaintiff’s Count XVIII: Failure To Prevent Violations And Civil
Conspiracy claim alleges defendants failed to prevent the conspiracy Plaintiff
alleged in Count XV. Dkt. No. 12, pp. 75–77 (Pg. 337–39). As mentioned above,
all acts related to Plaintiff’s conspiracy claim concluded before she initiated the
2015 Case and should have been litigated in the 2015 Case.
Plaintiff’s Count XX: Invasion Of Privacy, Publicity Of Person In False
Light claim alleges that campus police publicly removed Plaintiff from campus in
September 2013. Dkt. No. 12, p. 79 (Pg. ID 341). Plaintiff’s removal from campus
took place before she initiated the 2015 Case. Count XX is premised on the same
series of transactions that the Court considered in the 2015 Case. Thus, this claim
should have been litigated in the 2015 Case.
Plaintiff’s Count XXI: Warrantless Search And Seizure claim alleges that
defendants removed Plaintiff from campus, searched her office, and removed
papers from her office in September 2013. Dkt. No. 12, pp. 80–81 (Pg. ID 342–
43). Plaintiff’s removal from campus took place before she initiated the 2015 Case.
Count XXI is premised on the same series of transactions that the Court considered
in the 2015 Case. Thus, this claim should have been litigated in the 2015 Case.
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The only exception to the claims being based on transactions litigated in the
2015 Case is Plaintiff’s Count XIX: Invasion of Privacy, Public Disclosure claim.
Dkt. No. 12, pp. 77–79 (Pg. ID 339–41). In Count XIX, Plaintiff alleges that
defendants placed her medical reports on the Court’s docket without sealing them
and without her authorization in the 2015 Case. Id. As this claim accrued after
September 2015, it is not subject to claim preclusion.
Accordingly, Plaintiff should have brought nine of her ten new federal
claims in the 2015 Case, and she cannot now avoid the effect of claim preclusion
by simply asserting a different theory of recovery. Heike, 573 F. App’x at 482.
iv.

Arising from the Same Transaction

Finally, to constitute a bar under the doctrine of claim preclusion, there must
also be an “identity of the causes of action.” Westwood Chem. Co. v. Kulick, 656
F.2d 1224, 1227 (6th Cir. 1981). “Causes of action share an identity where the
facts and events creating the right of action and the evidence necessary to sustain
each claim are the same.” Heike, 573 F. App’x 476, 483 (citing Sanders
Confectionery Prod., Inc. v. Heller Fin., Inc., 973 F.2d 474, 484 (6th Cir. 1992)).
Courts are to examine the suits for factual overlap to see “if they are based on
substantially the same operative facts, regardless of the relief sought in each suit.”
United States v. Tohono O’Odham Nation, 563 U.S. 307, 317 (2011).

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Here, Plaintiff’s initial discrimination claims in the 2015 Case share an
identity to those asserted in the 2016 Case because all of her claims stem from the
same set of operative facts. The Sixth Circuit has found that the question is not
whether the old and new causes of action require satisfaction of identical statutory
elements, “but rather whether the same underlying factual evidence could support
and establish both the former and present causes of action.” Heike, 573 F. App’x at
483 (citing 2. H. Black, Law of Judgments § 726, p. 866 (1891)).
As described multiple times above, Plaintiff’s 2015 and 2016 Cases stem
from the same factual predicate. Plaintiff does not allege any new material facts in
her 2016 Case Amended Complaint. Had Plaintiff brought her new federal claims
along with her discrimination claims in the 2015 Case, she would have relied on
the same evidence in support of those claims. The 2015 Case relied on the factual
allegations and evidence regarding Plaintiff’s removal from campus, arbitration
proceedings, and denial of tenure, just as nine of the ten new federal allegations do
in the 2016 Case. During oral argument, Plaintiff herself conceded that her claims
are barred by res judicata.
Accordingly, all four elements of claim preclusion are satisfied for every
defendant except Bernard, on every new federal claim except Count XIX. Counts
Count VIII, Counts XIII–XVIII, and Counts XX–XXI are dismissed with
prejudice.
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B. The Court Denies Plaintiff’s Request that the Court Vacate Its Order in
the 2015 Case
During oral argument and in her response brief, Plaintiff argued that the
Court should vacate its prior opinion and order dismissing her claims in the 2015
Case. As mentioned above, this order has already been affirmed by the Sixth
Circuit.
Plaintiff cited to two appellate cases in support of her argument: Tingler v.
Marshall, 716 F.2d 1109 (6th Cir. 1983) and Ferdik v. Bonzelet, 963 F. 2d 1258
(9th Cir. 1992). Dkt. No. 31, p. 16 (Pg. ID 823). Both cases are readily
distinguishable.
In Tingler, the Sixth Circuit found that a district court’s sua sponte dismissal
of a plaintiff’s complaint on the merits, prior to service on defendant and without
opportunity to amend, was improper. 716 F.2d at 1111. Plaintiff’s complaint in the
2015 Case was not dismissed sua sponte, prior to service upon defendants. It was
dismissed after defendants had been served and moved for summary judgment.
Plaintiff was aware that she had the right to amend her complaint, because she had
already amended it once. See Case No. 15-cv-13285, Dkt. No. 4. Plaintiff also
utilized the opportunity to present her arguments orally at the motion hearing on
January 25, 2016. Because the Court did not sua sponte dismiss the 2015 Case,
Tingler is inapposite.

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Ferdik is similarly unpersuasive. In that case, the Ninth Circuit affirmed a
district court’s dismissal of a pro se litigant’s civil rights complaint for failure to
comply with the district court’s order, finding that dismissal was not an abuse of
discretion. Ferdik, 963 F.2d 1258. The plaintiff in Ferdik had filed a motion for
reconsideration, which the district court granted, vacating the earlier judgment and
allowing a second amended complaint to be filed before an appeal took place. Id.
at 1260. In the 2015 Case, Plaintiff did not seek leave to amend a second time, nor
did she file a motion for reconsideration of the Court’s order of dismissal.
Accordingly, Ferdik is inapplicable to both the 2015 and 2016 Cases.
When Plaintiff chose to appeal to the Sixth Circuit immediately after the
Court issued its opinion and order in the 2015 Case, she waived her right to seek
reconsideration or leave to amend her complaint for a second time. The Court will
not revisit its prior order of dismissal in the 2015 Case, which has already been
affirmed on appeal.

C. Plaintiff’s Invasion of Privacy Must Be Dismissed for Failure to State A
Claim
Only one of Plaintiff’s new federal claims is based off factual allegations
and evidence different from the 2015 Case, and ripened after Plaintiff filed her first
suit in September 2015. This claim is Count XIX: Invasion Of Privacy, Public
Disclosure, brought against Defendants Oakland University, Medicolegal, Daniel
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Bernard, and Cheryl Michelle Piskulich. Dkt. No. 12, pp. 77–79 (Pg. ID 339–41).
As recited above, Plaintiff alleges in this claim that defendants placed her medical
reports on the Court’s docket in the 2015 Case without sealing them and without
her authorization. Id.
On October 30, 2015, Plaintiff filed a Privacy Complaint against Oakland
University and Medicolegal Services with the U.S. Department of Health and
Human Services (DHHS) Office of Civil Rights (OCR) regarding the posting of
these records. Id. OCR’s letter acknowledging receipt of Plaintiff’s complaint
stated that “[t]his allegation could reflect a violation of 45 C.F.R. § 164.530(c),”
but OCR declined to initiate an investigation of the matter absent additional
allegations of noncompliance. Dkt. No. 14-27, p. 1 (Pg. ID 536).
Plaintiff cites the Privacy Act of 1974, 5 U.S.C. § 552a (1982) as providing
her standing to bring this claim. “The Privacy Act of 1974 regulates the collection,
maintenance, use, and dissemination of information concerning individuals,”
subjecting each agency that maintains a system of records to its requirements.
Cardamone v. Cohen, 241 F.3d 520, 524 (6th Cir. 2001). The Sixth Circuit has
held that the Privacy Act applies solely to federal agencies. Schmitt v. City of
Detroit, 395 F.3d 327, 331 (6th Cir. 2005) (“The fact that the Privacy Act contains
a section that defines the term ‘agency’ as including only those agencies that fall
under control the federal government, coupled with a legislative history that
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supports such a reading of its scope, forces us to conclude that . . . the Privacy Act
applies exclusively to federal agencies.”).
None of Plaintiff’s allegations regarding the posting of her medical records
during the 2015 Case state that a federal agency was involved in the posting. None
of the defendants listed in Plaintiff’s Invasion Of Privacy, Public Disclosure claim
are federal agencies. Accordingly, none of these defendants are subject to the
requirements of the Privacy Act. Plaintiff’s Count XIX is dismissed with prejudice.
D. The Court Declines to Exercise Supplemental Jurisdiction Over
Plaintiff’s State Law Claims
All of Plaintiff’s federal claims in the 2016 Case have been dismissed with
prejudice. The Court declines to exercise supplemental jurisdiction over her state
law claims because the Court has dismissed all claims over which it has original
jurisdiction. 28 U.S.C. § 1367(c)(3). Accordingly, the Court will dismiss Plaintiff’s
five new state law claims (Count VII, Count IX–XII) without prejudice.
V. CONCLUSION
For the reasons discussed, the Court HEREBY GRANTS Oakland
Defendants’ Renewed Motion to Dismiss and/or Motion for Summary Judgment
[35]. Additionally, the Court GRANTS Medicolegal’s Motion to Dismiss [25].
IT IS FURTHER ORDERED that Plaintiff’s ten new federal law claims
(Count VIII, Counts XIII–XXI) are DISMISSED WITH PREJUDICE.
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IT IS FURTHER ORDERED that Plaintiff’s five new state law claims
(Count VII, Counts IX–XII) are DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.

Dated:

February 14, 2017
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

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