Kuligowski v. University of Toledo, et al

Filing 18

Memorandum Opinion and Order: The Court grants in part and denies in part Defendant Ziviski's 8 Motion to Dismiss. Parties to file Joint Status Report by 1/27/2025. Judge James R. Knepp II on 11/26/2024. (B,JL)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
CRAIG KULIGOWSKI,

CASE NO. 3:24 CV 626

Plaintiff,
v.

JUDGE JAMES R. KNEPP II

UNIVERSITY OF TOLEDO, et al.,
Defendants.

MEMORANDUM OPINION AND
ORDER

INTRODUCTION
Plaintiff Craig Kuligowski brings this suit pursuant to 42 U.S.C. § 1983, Title VII, Title
VI, and the Age Discrimination in Employment Act against the University of Toledo and
Bethany Ziviski.1 Against Ziviski, Plaintiff alleges procedural due process and equal protection
violations related to the January 2023 termination of his employment as a football coach at the
University. Jurisdiction is proper under 28 U.S.C. § 1331. Pending before the Court is Defendant
Ziviski’s Motion to Dismiss. (Doc. 8). Plaintiff opposed (Doc. 12), and Defendant replied (Doc.
16).
For the reasons set forth below, the Court grants in part and denies in part Defendant
Ziviski’s motion.

1. Plaintiff’s Complaint spells Ziviski’s last name “Zivisky.” See Doc. 1. The Court uses the
spelling Defendant’s counsel provides: Ziviski.

BACKGROUND
Plaintiff, a former University of Toledo football coach, alleges Defendants discriminated
against him on the basis of his age and race when he was fired and replaced with a younger,
black employee. See Doc. 1. Plaintiff is white and over the age of forty. Id. at ¶ 1.
Plaintiff asserts, in late summer 2022, the University of Toledo’s Athletic Director, Bryan
Blair, stated during a department-wide staff meeting his intention to hire more coaches who were
“representative” of the current student-athletes, meaning younger and black. Id. at ¶¶ 25–30. He
contends in fall 2022 the University “decided” he was not “representative” of the student-athletes
because he was white and older. Id. at ¶ 33.
Also in fall 2022, Plaintiff asserts the University “seized on an opportunity when a false
and frivolous report of sexual harassment was filed against” him, which an investigation did not
corroborate. Id. at ¶¶ 34–40. He states the complainant approached him on December 16, 2022
and the two had a conversation, during which Plaintiff “joked with the complainant that ‘if my
wife knew you were near me, she’d kill you.’” Id. at ¶¶ 41–42. Plaintiff alleges “[o]bviously, this
was not an actual threat, but a joke born of an uncomfortable situation.” Id. at ¶ 42. The
following day, “after baiting [Plaintiff] into talking to her[,]” the complainant filed a formal
complaint against him on December 17, 2022, alleging retaliation. Id. at ¶ 43. Plaintiff contends
a joke does not qualify as retaliation under the University’s definition. Id. at ¶¶ 44–45.
That same day, December 17, 2022, the University suspended Plaintiff and sent him
home from its upcoming postseason football game in Boca Raton, Florida. Id. at ¶ 46. Two days
later, Plaintiff was interviewed by the University’s Human Resources (“HR”) Department, after

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which two advocacy council members told him it was “nothing,” and he was “definitely not
getting fired or anything.” Id. at ¶ 49.
On December 22, 2022, HR found Plaintiff responsible for retaliation “without a
hearing.” Id. at ¶ 50. On December 28, 2022, the Athletic Director called Plaintiff and told him
he “would probably be fired or severely suspended[,] in clear contrast to what the advocacy
council members had said.” Id. at ¶ 51.
On January 14, 2023, the University, “through Defendant Zivisk[i], abruptly terminated
[Plaintiff] for cause[.]” Id. at ¶ 52. Ziviski, who was at the time the Interim Senior Associate
Vice President and Chief Human Resources Officer, signed Plaintiff’s termination letter. Id. at ¶
53. Plaintiff claims Ziviski “oversaw all terminations and hiring at the University and effectuated
the University’s practice of replacing older, white employees with younger, black employees.”
Id. at ¶ 54. Plaintiff asserts the University did not conduct a hearing prior to his firing, in
violation of its own policies and outlined at 34 C.F.R. § 106.45 and in Title IX regulations. Id. at
¶ 56. “Within a few months[,]” the University replaced Plaintiff with a younger, black employee.
Id. at ¶ 57.
Contract
Plaintiff’s employment contract – attached to his Complaint – contains the following
terms:
2.0

TERM
2.1
Length. This agreement is for two (2) years commencing January
24, 2020, subject to the conditions stated herein and terminating
January 23, 2022.
2.2

No Tenure. This agreement does not grant Coach a claim to tenure
in employment, nor do Coach’s service pursuant to this agreement
count in any way toward tenure at the University. This Agreement
does not grant any expectancy of employment or reemployment
except as expressly provided by the terms herein.
3

(Doc. 1-4, at 3). It further permitted the University to fire Plaintiff for cause or without cause. Id.
at 7–15. However, if the University fired Plaintiff without cause, the contract provided for
liquidated damages. Id. at 14–15.
Claims
Against Ziviski in her official capacity, Plaintiff brings two claims: a Fourteenth
Amendment procedural due process claim and a Fourteenth Amendment equal protection claim.
(Counts IV and VII). As to these claims, Plaintiff seeks: (1) a permanent injunction prohibiting
Ziviski “or any agent of the University from making or maintaining any notation on [Plaintiff]’s
employment record relating to the investigation of the complainant’s complaint at the University
and from taking any further action depriving him of his” constitutional rights to due process and
equal protection; and (2) a declaration that the adjudication related to his termination violated his
constitutional rights. (Doc. 1, at ¶¶ 118, 148).
Plaintiff also brings Fourteenth Amendment procedural due process and equal protection
claims against Ziviski in her individual capacity. (Counts V and VI). On these claims, he seeks
monetary damages. (Doc. 1, at ¶¶ 133, 141).
STANDARD OF REVIEW
Ziviski moves to dismiss Plaintiff’s complaint in part based on lack of subject matter
jurisdiction and in part based on failure to state a claim.
When deciding a motion to dismiss under Federal Civil Rule 12(b)(6), the Court tests a
complaint’s legal sufficiency. Although a complaint need not contain “detailed factual
allegations,” it requires more than “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, a
claim survives a motion to dismiss if it “contain[s] sufficient factual matter, accepted as true, to
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‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570). And “[a] claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir.
2009) (quoting Iqbal, 556 U.S. at 678).
A motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of
Civil Procedure 12(b)(1) may take the form of either a facial or a factual attack. United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). Facial attacks, such as those raised by Ziviski here,
challenge the sufficiency of the pleading itself. Id. In a facial attack, the Court must accept all
material allegations of the complaint as true and must construe the facts in favor of the
nonmoving party. Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 235–37 (1974)); see also
Robinson v. Gov’t of Malay., 269 F.3d 133, 140 (2d Cir. 2001) (holding all reasonable inferences
must be drawn in favor of the plaintiff when evaluating a facial attack on subject-matter
jurisdiction).
DISCUSSION
Ziviski presents six arguments in favor of dismissal. She contends: (1) Eleventh
Amendment sovereign immunity bars Plaintiff’s § 1983 claims for monetary damages against
Ziviski in her official capacity; (2) Plaintiff is not entitled to the injunctive and declaratory relief
he seeks; (3) Plaintiff’s equal protection claims fail because a “class-of-one” claim does not
apply in the context of public employment and Plaintiff has not adequately pled facts to support
a racial discrimination claim; (4) Plaintiff fails to state a claim for a violation of the due process
clause of the Fourteenth Amendment; (5) all of Plaintiff’s § 1983 claims fail to allege personal

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involvement by Ziviski in unconstitutional conduct; and (6) Ziviski is entitled to qualified
immunity on Plaintiff’s individual capacity claims.
For the reasons set forth below, the Court finds Plaintiff’s due process claim must be
dismissed, but his equal protection claim may proceed.
Official Capacity Claims
Monetary Damages
Ziviski first contends Eleventh Amendment Sovereign Immunity bars Plaintiff’s § 1983
claims for monetary damages against her in her official capacity. (Doc. 8, at 6). But as Plaintiff
points out (Doc. 12, at 14–15), and a review of the Complaint confirms, Plaintiff brings no such
claims. Rather, the Complaint only brings claims for declaratory and injunctive relief against
Ziviski in her official capacity, and claims for damages against Ziviski in her individual capacity.
See Doc. 1, at ¶¶ 118, 133, 141, 148. Ziviski’s motion to dismiss on this basis is denied as moot.
Declaratory and Injunctive Relief
Ziviski next contends because Plaintiff’s official capacity claims are not adequately pled,
he has not met his burden of showing entitlement to injunctive relief on Counts IV and VII.
(Doc. 8, at 7–8). She contends: “Because his claims are not likely to be successful, Plaintiff
cannot meet his burden of showing that he is entitled to injunctive relief[,]” citing caselaw
regarding preliminary injunctions. (Doc. 8, at 7) (citing Shepard & Assocs. v. Lokring Tech.,
LLC, 2022 U.S. Dist. LEXIS 19219, at *48 (N.D. Ohio)). But this case does not involve a
request for a preliminary injunction.
As Plaintiff points out in opposition, the Ex parte Young exception to sovereign immunity
allows federal courts to award injunctive and declaratory relief against state officials when the
relief is “designed to end a continuing violation of federal law.” Green v. Mansour, 474 U.S. 64,

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68 (1985); Ex parte Young, 209 U.S. 123, 159–60 (1908). “Put differently, Ex parte Young
applies only when a plaintiff targets an ongoing violation of federal law and seeks prospective
relief.” Mikel v. Quin, 58 F.4th 252, 256–57 (6th Cir. 2023) (internal quotations omitted).
In his Complaint, Plaintiff specifically seeks “a permanent injunction prohibiting
[Ziviski] or any agent of the University from making or maintaining any notation on [Plaintiff’s]
employment record relating to the investigation of the complainant’s complaint at the University
and from taking any further action depriving him of his constitutional right[s]” to equal
protection and due process and “declaratory relief in the form of a declaration that the
adjudication at issue in this case violated [Plaintiff]’s right[s] to” equal protection and due
process. (Doc. 1, at ¶¶ 118, 148). In opposition to Ziviski’s motion, Plaintiff cites Doe v.
Cummins, 662 F. App’x 437, 444 (6th Cir. 2016). In Doe, students sued university administrators
for allegedly mishandling sexual assault disciplinary proceedings. Id. at 443. They sought an
injunction “prohibiting the imposing of, or reporting of, any disciplinary actions” under the
student code of conduct. Id. at 444. The Sixth Circuit found such a request fit within the Ex parte
Young exception, explaining:
If successful, this claim would not require the court to grant any retroactive or
compensatory remedy. Rather, the individual defendants would merely be
compelled to remove the negative notation from appellants’ disciplinary records
that resulted from the allegedly unconstitutional disciplinary process. This is
nothing more than prospective remedial action. See Thomson v. Harmony, 65 F.3d
1314, 1321 (6th Cir. 1995) (holding that an injunction requesting the removal of
negative entries from a personnel record resulting from an alleged due-process
violation was not barred by the Eleventh Amendment); Flint v. Dennison, 488
F.3d 816, 825 (9th Cir. 2007) (finding negative entries in a student’s university
records stemming from an allegedly unconstitutional action presented a
continuing violation sufficient to trigger the Ex Parte Young exception).
Importantly, this relief imposes no monetary burden on the state itself, a factor
often dispositive when examining the availability of injunctive relief under the
Eleventh Amendment. See Edelman, 415 U.S. at 663–66, 94 S.Ct. 1347.
Accordingly, the Eleventh Amendment does not bar the injunctive relief at issue
here. See Thomson, 65 F.3d at 1321.
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Id. The Sixth Circuit observed a request for a declaratory judgment that individual defendants
violated the Constitution in the past would, “[s]tanding alone[,] . . . likely be barred given its
retroactive nature[,]” but found it was “permitted when it is ancillary to a prospective injunction
designed to remedy a continuing violation of federal law.” Id.
Although Ziviski asserts Plaintiff’s Complaint does not allege Ziviski or the University
maintain a “negative employment record[,]”, citing a newspaper article attached to the
Complaint, that same article states Plaintiff’s employment separation letter states he “‘committed
a significant and/or intentional violation’ of [the University’s] non-retaliation and standards of
conduct policies.” See Doc. 1-5. The Complaint, as set forth below, plausibly alleges these
findings were pretext for discrimination. The Court therefore finds the Complaint sufficiently
alleges – at the pleading stage – a claim for declaratory and injunctive relief under Ex parte
Young. As elucidated further below, the Court finds Plaintiff plausibly pled an equal protection
claim but not a due process claim. As such, Count IV (the declaratory judgment / injunctive
relief claim related to the alleged due process violation) will be dismissed and Count VII (the
declaratory judgment / injunctive relief claim related to the alleged equal protection violation)
may proceed.
Individual Capacity Claims
Equal Protection
Ziviski contends Plaintiff has not sufficiently alleged racially discriminatory intent to
support an equal protection claim.2 Specifically, she asserts Plaintiff fails to allege his
termination was based on his race rather than on his violation of University policies and that he
2. Ziviski further argues Plaintiff has not adequately pled a “class-of-one” equal protection
claim. (Doc. 8, at 9). Plaintiff’s response suggests he does not intend to bring such a claim, but
rather, brings a traditional equal protection race discrimination claim.
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has not pled the requisite background circumstances for a “reverse race discrimination” claim.
Independently, Ziviski also alleges the Complaint does not plead her personal involvement.
To state a claim under § 1983 based upon the Equal Protection Clause, a plaintiff must
allege a state actor intentionally discriminated against him because of membership in a protected
class or burdened a fundamental right. Midkiff v. Adams Cnty. Reg. Water Dist., 409 F.3d 758,
770 (6th Cir. 2005). For cause of action under § 1983, a plaintiff must plead two elements: “(1)
deprivation of a right secured by the Constitution or laws of the United States (2) caused by a
person acting under color of state law.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542
F.3d 529, 534 (6th Cir. 2008) (citing McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 463 (6th
Cir. 2006)). To sufficiently plead the second element, a plaintiff must allege “personal
involvement.” Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (citation omitted). To do so,
“a plaintiff must allege the official either actively participated in the alleged unconstitutional
conduct or implicitly authorized, approved[,] or knowingly acquiesced in the alleged
unconstitutional conduct of an offending subordinate.” Webb v. United States, 789 F.3d 647, 659
(6th Cir. 2015) (internal quotation and citation omitted); see also Iqbal, 556 U.S. at 676 (“a
plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution”).
Section 1983 race discrimination claims can be proven by direct evidence or pursuant to
the familiar McDonnell Douglas burden-shifting analysis applicable to Title VII discrimination
claims. See Weberg v. Franks, 229 F.3d 514, 522–23 (6th Cir. 2000). Under this framework,
a plaintiff must first set forth a prima facie case of discrimination. The burden
then shifts to the employer “to articulate some legitimate, nondiscriminatory
reason” for its actions. If the employer carries this burden, the plaintiff must then
prove by a preponderance of the evidence that the reasons offered by the
employer were a pretext for discrimination. The ultimate burden of persuasion
remains at all times with the plaintiff.
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Newman v. Fed. Express Corp., 266 F.3d 401, 405 (6th Cir. 2001) (internal citations omitted).
Generally speaking, a plaintiff alleging employment discrimination must make a four-part
showing in order to establish a prima facie case of discrimination: “(1) he is a member of a
protected class; (2) he was qualified for the job; (3) he suffered an adverse employment decision;
and (4) he was replaced by a person outside the protected class or treated differently than
similarly situated non-protected employees.” Id. at 406. Further, in the Sixth Circuit, where, as
here, a plaintiff alleges “reverse discrimination” – that is, he is a member of the majority
claiming discrimination – he bears the burden of “demonstrating that he was intentionally
discriminated against ‘despite his majority status.’” Murray v. Thistledown Racing Club, Inc.,
770 F.2d 63, 67 (6th Cir. 1985) (quoting Lanphear v. Prokop, 703 F.2d 1311, 1315
(D.C.Cir.1983)). The first prong of the prima face case in such instances is adapted to require the
plaintiff to prove “background circumstances [to] support the suspicion that the defendant is that
unusual employer who discriminates against the majority.” Sutherland v. Mich. Dep’t of
Treasury, 344 F.3d 603, 614 (6th Cir. 2003) (internal quotations omitted).3

3. Plaintiff argues the Sixth Circuit’s historical treatment of race discrimination claims from
white employees – requiring the additional showing of background circumstances for “reverse
race discrimination claims” – “is no longer good law[.]” (Doc. 12, at 18) (citing Students for Fair
Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181, 206 (2023)). But,
as recently as December 2023, the Sixth Circuit held the background circumstances element still
applies. See Ames v. Ohio Dep’t of Youth Servs., 87 F.4th 822, 825 (6th Cir. 2023) (citing
Arendale v. City of Memphis, 519 F.3d 587, 603 (6th Cir. 2008)). District courts are bound by
published opinions of the Sixth Circuit “unless an inconsistent decision of the United States
Supreme Court requires modification of the decision or [the Sixth Circuit] sitting en banc
overrules the prior decision.” United States v. Thomas-Mathews, 81 F.4th 530, 540 n.3 (6th Cir.
2023) (internal citations and quotation marks omitted). Even when intervening Supreme Court
authority has modified an area of law in some respects, a district court must be “extremely
careful” and should only depart from binding circuit precedent “where it is powerfully convinced
that the circuit will overrule itself at the next available opportunity.” Hollis v. Erdos, 480 F.
Supp. 3d 823, 832 (S.D. Ohio 2020) (internal citations and quotation marks omitted). Given that
the Sixth Circuit has applied the background circumstances element of the test after the Supreme
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This standard is an evidentiary one, however, and Plaintiff is not required to plead facts
establishing a prima facie case in order to state a claim for relief. See Keys v. Humana, Inc., 684
F.3d 605, 609 (6th Cir. 2012) (citing Swierkiewicz v. Sorema, 534 U.S. 506, 510–12 (2002));
Swierkiewicz, 534 U.S. at 510 (McDonnell Douglas “is an evidentiary standard, not a pleading
requirement” and “the prima facie case relates to the employee’s burden of presenting
evidence”). Rather, at this stage, Plaintiff must plead sufficient facts to satisfy the plausibility
standard. That is, he must allege sufficient “factual content” from which a Court, informed by its
“judicial experience and common sense,” could “draw the reasonable inference,” Iqbal, 556 U.S.
at 678, 679, that Ziviski discriminated against him based on his race.
The Court finds Plaintiff has plausibly alleged a § 1983 race discrimination claim against
Ziviski here, including the element of personal involvement. The Complaint three individuals
who were younger and black and who replaced older, white males (the new Athletic Director,
new Assistant Athletic Director, and General Counsel). (Doc. 1, at ¶¶ 25–28). And it describes
the Athletic Director’s statement of intention to “hire more coaches who were ‘representative’ of
the current student-athletes.” Id.at ¶ 29. The Complaint then asserts Ziviski she “oversaw all
terminations and hiring at the University and effectuated the University’s practice of replacing
older, white employees with younger, black employees.” (Doc. 1, at ¶ 54). It further asserts she
signed Plaintiff’s termination letter “after a rapid and unfair ‘investigation’ into alleged
retaliation”. Id. at ¶ 52.

Court case Plaintiff cites, the Court is not so “powerfully convinced” and finds it remains bound
by the Sixth Circuit’s test at this juncture. Although the Supreme Court has granted certiorari on
the issue, see Ames v. Ohio Dep’t of Youth Servs., No. 23-1039 (U.S. S. Ct. 2024), this Court
remains bound by published Sixth Circuit caselaw. See Howard v. Cherokee Health Sys., 2024
WL 4350330, at *5 (E.D. Tenn.) (“This precedent has been called into question, but the Court is
‘bound to apply this rule here.’”) (quoting Ames, 87 F.4th at 827 (Kethledge, J., concurring)).
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Although more factual elucidation would perhaps be preferable, the standard is that the
Complaint must state a plausible claim for relief. Plaintiff’s claims may go forward even if
“actual proof of [the] facts is improbable” or “a recovery is very remote and unlikely.” Twombly,
550 U.S. at 556. The Court finds the Complaint pleads enough facts suggesting Ziviski’s
awareness and ratification of a practice to discriminate against older, Caucasian employees
(including Plaintiff); that is, there are enough facts “to raise a reasonable expectation that
discovery will reveal evidence” of the necessary elements of Plaintiff’s claims. Id. It remains to
be seen whether Plaintiff can back up these allegations with evidence sufficient to overcome
summary judgment, much less prove them at trial. But he has alleged enough to overcome
dismissal under Rule 12(b)(6). And if discovery does not reveal evidence of race discrimination
or Ziviski’s personal involvement, she can move for summary judgment on that basis.
Due Process
In his Complaint, Plaintiff asserts Ziviski violated his due process rights by depriving him
of both a property interest and a liberty interest without due process. Specifically, he contends he
had “a property interest in his continued employment with the University” and “a liberty interest
in his reputation, name, honor, and integrity.” (Doc. 1, at ¶¶ 109–10). Ziviski contends Plaintiff
has not adequately alleged facts supporting either interest, and his due process claim must
therefore be dismissed.
To state a procedural due process claim for relief under § 1983, a plaintiff must plead
three elements: (1) he possessed a constitutionally protected interest, (2) he was deprived of that
interest, and (3) the State did not afford him adequate procedural rights prior to depriving him of
that interest. Gunasekera v. Irwin, 551 F.3d 461, 467 (6th Cir. 2009). “First, the court must
determine whether the interest at stake is a protected liberty or property right under the

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Fourteenth Amendment. Only after identifying such a right do we continue to consider whether
the deprivation of that interest contravened notions of due process.” Thomas v. Cohen, 304 F.3d
563, 576 (6th Cir. 2002).
Ziviski’s motion only expressly challenges whether Plaintiff adequately alleges facts
supporting a constitutionally-protected interest. See Doc. 8, at 10–13. Thus, although Plaintiff in
opposition (and Ziviski in reply) present arguments regarding the other elements of a due process
claim, the Court finds only the first element has been place at issue by Ziviski’s motion and the
Court thus focuses thereon.
Liberty Interest
Ziviski contends Plaintiff cannot identify a liberty interest and that, even if he could, his
failure to request a name-clearing hearing bars his constitutional claim based thereon. (Doc. 8, at
12–13). In response, Plaintiff “concedes dismissal without prejudice as to his due process claims
only insofar as they derive from his liberty interest.” (Doc. 12, at 23 n.3). He states he “has
requested a name-clearing hearing and will seek leave to amend his Complaint to re-bring his
liberty interest due process claim to the extent Defendants do not provide an adequate hearing.”
Id. In reply, Ziviski requests the Court dismiss the claim with prejudice. (Doc. 16, at 16–17).
Upon review, the Court finds dismissal without prejudice of this claim appropriate.
Property Interest
Next, Ziviski contends Plaintiff has not adequately alleged a property interest upon which
to base his due process claim. Ziviski asserts Complaint “does not contain factual content
sufficient to establish that Plaintiff possessed an expectation of continued employment with [the
University].” (Doc. 8, at 11). In opposition, Plaintiff states he “alleges a property interest
deriving from his continued employment and contract.” (Doc. 12, at 23).

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The due process clause protects only those purported property interests “to which one has
a legitimate claim of entitlement.” Waeschle v. Dragovic, 576 F.3d 539, 545 (6th Cir. 2009)
(internal quotation and citation omitted). These property interests are not creations of the
Fourteenth Amendment but are rather created by independent sources, including state law. Id.
Thus, to establish a property interest, a plaintiff “must point to some policy, law, or mutually
explicit understanding that both confers the benefit and limits the discretion of the state to
rescind the benefit.” West v. Kentucky Horse Racing Comm’n, 972 F.3d 881, 890 (6th Cir. 2020)
(quoting Med Corp., Inc. v. City of Lima, 296 F.3d 404, 410 (6th Cir. 2002)) (alteration adopted).
“[G]overnment employees have a cognizable property interest in their job if they have
tenure, are only removable for cause, or it can be legitimately implied that they have such
status.” Hasanaj v. Detroit Pub. Schs. Cmty. Dist., 35 F.4th 437, 448 (6th Cir. 2022); see also
Gregory v. Hunt, 24 F.3d 781, 785 (6th Cir. 1994) (“An at-will public employee does not have a
property interest in continued employment unless it can be shown that the employee had a
reasonable expectation that termination would be only for good cause.”).
Where a “claimed property right derives from contract,” that contract alone cannot serve
as the source of a cognizable property interest because “the availability of a state breach-ofcontract remedy defeats the due-process claim.” Kaminski v. Coulter, 865 F.3d 339, 348 (6th Cir.
2017); accord Ramsey v. Bd. of Educ. of Whitley Cnty., 844 F.2d 1268, 1273–74 (6th Cir. 1988)
(“a nontenured employee[ ] . . . has a property interest in employment for the duration of the
employment contract, but the deprivation of that finite interest can be compensated adequately
by an ordinary breach of contract action”); Ohio ex. re. Desmond v. City of Lundhurst, 2005 U.S.
Dist. LEXIS 57319, at *14 (N.D. Ohio) (“The Sixth Circuit made clear, therefore, that a
promised term of employment does not in itself create a property interest for purposes of

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predeprivation or post-deprivation hearings (i.e., due process concerns), even though it may
create an interest upon which to base an ordinary state-law breach of contract claim.”) (emphasis
in original) (citing Ramsey, 844 F.3d at 1274).
Citing paragraphs 23 to 25 of his Complaint, Plaintiff alleges he “was a term employee in
the middle of his contract when he was terminated.” (Doc. 12, at 23). These paragraphs provide:
23. The contract provides, in relevant part, that the University may terminate for
cause only for “significant violation of University rules.”
24. The University is incentivized to terminate for cause because if it terminates
without cause, it owes [Plaintiff] a year’s salary in liquidated damages.
25. In late Summer 2022, after approximately two years of employing [Plaintiff],
the University conducted a department-wide staff meeting in which the new
Athletic Director, Bryan Blair, introduced his new Assistant Athletic Director, Al
Tomlison, who is under the age of 40 and black and replaced an older, white
male.
(Doc. 1, at ¶¶ 23–25). As Ziviski points out in Reply, these paragraphs do not support Plaintiff’s
statement in his brief that he was a term employee in the middle of his contract.4 Indeed, the
contract states it is “for two (2) years commencing January 24, 2020, subject to the conditions
stated herein and terminating January 23, 2022.” (Doc. 1-4, at 3). Plaintiff further alleges in
opposition that his “contracted term of employment . . . was renewed to encompass the date of
his termination as implicitly conceded by Defendants” and that “Ziviski and the University
demonstrated an intention to continually employ [Plaintiff] having already extended [Plaintiff’s]
employment after the first contract expired.” (Doc. 12, at 23). Although a fair reading of the
Complaint certainly encompasses the allegation that the University continued to employ Plaintiff
beyond the term of his contract (and up to his termination in January 2023), the Court finds it

4. Moreover, Ziviski points out Plaintiff’s Complaint only asserts a property interest “in his
continued employment” (Doc. 1, at ¶ 109), and does not expressly cite the contract as the basis of
his property interest. (Doc. 16, at 17).
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contains no factual allegations to support that Plaintiff’s contract itself “was renewed” or that any
of its terms continued to apply.
In a footnote, Plaintiff requests, “[t]o the extent this Court finds [his] allegations of a
continued contract to be insufficient, . . . leave to amend to more clearly articulate that his
contract was renewed to continue through his termination date.” (Doc. 12, at 23 n.4). Ziviski
opposes, contending Plaintiff’s “vague” and “cursory” request to amend is insufficient. (Doc. 16,
at 21). The Court finds that even if the contract’s terms applied, they do not create a property
interest upon which Plaintiff can bring a § 1983 due process claim.5 First, the contract itself
expressly provides:
2.2 No Tenure. This agreement does not grant Coach a claim to tenure in
employment, nor do Coach’s services pursuant to this Agreement count in any
way toward tenure at the University. This Agreement does not grant any
expectancy of employment or reemployment except as provided by the terms
herein.
(Doc. 1-4, at 2). Next, Plaintiff argues “he had both an express promise of liquidated damages
absent termination for cause, and a ‘clearly implied promise of continued employment,’ given
that his employment continued.” (Doc. 12, at 23) (quoting Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 577 (1972). To the extent Plaintiff contends the liquidated damages provision of
his contract supports a property interest, he has not cited caselaw in support. Roth, upon which
Plaintiff relies, does not speak to such an argument, but rather holds that government
employment alone – absent anything “secur[ing] [an] interest in re-employment or create[ing]

5. For this reason, the Court denies Plaintiff’s cursory request to amend. See Graham v. Fearon,
721 F. App’x 429, 439 (6th Cir. 2018) (“Plaintiffs are not entitled to a directive from the district
court informing them of the deficiencies of the complaint and then an opportunity to cure those
deficiencies.”) (citation and quotation marks omitted) (finding no abuse of discretion when the
court denied the plaintiffs’ motion to amend “because Plaintiffs’ request was perfunctory and did
not point to any additional factual allegations that would cure the complaint”)
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any legitimate claim to it” – does not create a property interest for due process purposes. Roth,
408 U.S. at 578.
And the contract itself did not create “a reasonable expectation that termination would be
only for good cause” Gregory, 24 F.3d at 785, or “promise[] that he [would] only be terminated
for good cause.” Chilingirian, 882 F.2d at 203. Instead, it allowed for termination for cause or
without cause and with payment of liquidated damages. See Haywood v. Univ. of Pittsburgh,
2012 WL 591746, at *4 (W.D. Pa.) (“Because the employment contract could be terminated
without cause, plaintiff did not have a property interest arising from that contract and therefore
he was not entitled to procedural due process under the Fourteenth Amendment. Plaintiff’s harm
as alleged arises from a breach of contract.”) (finding no property interest established by a
contract that allowed for “for cause” termination or liquidated damages for a termination without
cause); Parsai v. Univ. of Toledo, 2024 WL 4349424, at *5 (N.D. Ohio) (“Because Parsai
worked under a one-year employment contract that, on its face, does not grant him any right to
tenure or to continuing employment after the elapse of the one-year period, his employment
cannot serve as the basis for a protected property interest sufficient to trigger procedural due
process protections.”) (citing Helm v. Eells, 642 F. App’x 558, 556 (6th Cir. 2016) (holding a
nontenured professor had no property right in continued employment absent a “clearly implied
promise of continued employment”)).
Nor does the Court find convincing Plaintiff’s circular argument that he had “a ‘clearly
implied promise of continued employment,’ given that his employment continued.” (Doc. 12, at
23) (quoting Roth, 408 U.S. 577). Plaintiff’s Complaint states no facts to support there was a
promise of continued employment separate from the contract or to suggest he had an implied
promise of continued employment. And the Sixth Circuit has held that even “[r]epeated contract

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renewals do not, by themselves, create a reasonable expectation of permanent employment.
Edinger v. Bd. of Regents of Morehead State Univ., 906 F.2d 1136, 1141 (6th Cir. 1990)
(“Indeed, if repeated renewals of a non-tenure contract were sufficient to create protected
property interests, virtually any public employee whose non-tenure contract has been renewed
successively could claim an entitlement to continued employment.”).
As such, the Court finds Plaintiff’s Complaint fails to allege facts plausibly supporting a
property interest in his continued employment upon which to base a due process claim. As such,
this aspect of Count IV is dismissed.
Qualified Immunity
Finally, Ziviski contends she is entitled to qualified immunity on Plaintiff’s claims
against her in her individual capacity. Her argument in this regard simply incorporates her other
arguments and states that Plaintiff had not alleged facts to establish a violation of a clearly
established constitutional right. See Doc. 8, at 15–16. She further reiterates the argument that
Plaintiff fails to plead Ziviski’s personal involvement.
The defense of qualified immunity shields government officials performing discretionary
functions where their “conduct does not violate clearly established statutory or constitutional
rights which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). This defense “can be raised at various stages of the litigation including at the pleading
stage in a motion to dismiss.” English v. Dyke, 23 F.3d 1086, 1089 (6th Cir. 1994).
However, although “insubstantial claims against government officials should be resolved
as early in the litigation as possible, preferably prior to discovery,” Johnson v. Moseley, 790 F.3d
649, 653 (6th Cir. 2015), the Sixth Circuit has “cautioned that ‘it is generally inappropriate for a
district court to grant a 12(b)(6) motion to dismiss on the basis of qualified immunity.’”

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Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016) (quoting Wesley v.
Campbell, 779 F.3d 421, 433 (6th Cir. 2015)). And it has recently repeated this sentiment. See
Saalim v. Walmart, Inc., 97 F.4th 995, 1003 (6th Cir. 2024); Moderwell v. Cuyahoga Cnty., 997
F.3d 653, 661 (6th Cir. 2021).

Thus, “[a]lthough an [official’s] entitlement to qualified immunity is a threshold question
to be resolved at the earliest possible point, that point is usually summary judgment and not
dismissal under Rule 12.” Wesley, 779 F.3d at 433–34 (internal marks and citations omitted).
The reason for this “general preference” is that: “[a]bsent any factual development beyond the
allegations in a complaint, a court cannot fairly tell whether a case is ‘obvious’ or ‘squarely
governed’ by precedent, which prevents [the court] from determining whether the facts of this
case parallel a prior decision or not” for purposes of determining whether a right is clearly
established. Guertin v. State, 912 F.3d 907, 917 (6th Cir. 2019) (quoting Evans-Marshall v. Bd.
of Educ. of Tipp City Exempted Vill. Sch. Dist., 428 F.3d 223, 235 (6th Cir. 2005)) (Sutton, J.,
concurring) (brackets omitted). Nonetheless, dismissal based on qualified immunity at the
pleadings stage may be appropriate under some circumstances. See, e.g., Kaminski v. Coulter,
865 F.3d 339, 344 (6th Cir. 2017).
As explained above, the Court finds Plaintiff has adequately alleged Ziviski’s personal
involvement in an alleged violation of the Equal Protection Clause at the pleading stage. And the
Court finds on the facts of this case that qualified immunity is a question better addressed on
summary judgment, after full development of the facts.
CONCLUSION
For the foregoing reasons, good cause appearing, it is
ORDERED that Defendant Bethany Ziviski’s Motion to Dismiss (Doc. 8) be, and the
same hereby is, GRANTED IN PART and DENIED IN PART. Counts VI and VII may proceed.
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Counts IV and V are dismissed with prejudice as to a due process claim based on a property
interest and without prejudice as to a due process claim based on a liberty interest.

s/ James R. Knepp II
UNITED STATES DISTRICT JUDGE
Dated: November 26, 2024

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