Li v. Jiang et al

Filing 15

Memorandum of Opinion and Order For the reasons set forth herein, the Court grants in part and denies in part Defendants' Motion for Judgment on the Pleadings, ECF No. [4.] The Court grants Li's Motion to Supplement Complaint Ins tanter, ECF No. 10 . Accordingly, Li's Title VII claim against Jiang is dismissed with prejudice; all state law claims against YSU and Jiang are dismissed without prejudice; Li's section 1983 claims against YSU and Jiang in her offici al capacity are dismissed with prejudice; Jiang is not entitled to qualified immunity on Li's section 1983 claim against Jiang in her individual capacity; and to the extent Li asserts independent legal claims of respondeat superior and punitive damages, these claims are dismissed. The case will proceed solely on Li's Title VII claim against YSU and Li's section 1983 claim against Jiang in her individual capacity. Judge Benita Y. Pearson on 8/13/2014. Related document(s) 4 , 10 . (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DR. MIN LI,
Plaintiff,
v.
DR. QI JIANG, et al.,
Defendants.

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CASE NO. 4:13cv2435

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Regarding ECF Nos. 4; 10]

Pending before the Court is the Motion for Judgment on the Pleadings filed by
Defendants Dr. Qi Jiang (“Jiang”) and Youngstown State University (“YSU”) (collectively,
“Defendants”). ECF No. 4. Also pending is Plaintiff Dr. Min Li’s Motion to Supplement
Complaint Instanter. ECF No. 10. The Court has been advised, having reviewed the record, the
parties’ briefs, and the applicable law. For the reasons that follow, the Court grants Defendants’
motion in part, denies it in part, and grants Li’s motion.
I. Background1
YSU hired Li in 2008 as a tenure track assistant professor in the Department of
Sociology, Anthropology and Gerontology. ECF No. 1-1 at 3, ¶10. Li became eligible for tenure
review in February 2012. Id. at ¶13. She satisfied all prerequisites necessary to become a
tenured faculty member. Id. at ¶12.
On September 12, 2012, Li presented herself to the faculty for tenure review. Id. at 4,
¶14. All faculty voted in favor of her receiving tenure. Id. Defendant Jiang, the Chair of the

1

The background facts are taken from Li’s Complaint. In a motion for judgment on the
pleadings, the Court presumes all well-pleaded allegations to be true. See Tucker v.
Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008).

(4:13cv2435)
Sociology, Anthropology and Gerontology Department, congratulated Li on receiving a
unanimous vote for tenure on her first review. Id.
Both Jiang and Li are Chinese. ECF No. 11 at 13. On September 14, 2012, Jiang sent an
email through her YSU email account which purportedly expressed certain of her racial and
political beliefs. ECF No. 1-1 at 5, ¶15. Li received the email and describes it as follows:
The basic gist of the email involves historical tension between the Chinese and the
Japanese dating back to World War II. It described the Japanese using the
pejorative term, “xiao reben,” which translates to “little runts.” Dr. Jiang
described herself as hating the “little runts” from “deep in her bones.” The email
urged the recipients to not “buy any Japanese products from [then] on.” The
email further described more diplomatic means as a “useless fart.”

Id. Jiang asked Li to forward the email to others in the Chinese Community. Id. at ¶16. Li
declined to do so. Id. at ¶17.
Subsequently, Jiang referred to Li as a “betrayer” and began berating her. Id. at ¶18. “On
September 21, 2012 and continuing into the days thereafter,” Jiang emailed YSU Dean Shearle
Furnish “three pages of broad and false allegations about Dr. Li’s job performance, work, and
ethics.” Id. at ¶19. Jiang accused Li of being a substandard and unethical professor. Id. In
December 2012, YSU denied Li’s tenure application pursuant to Jiang’s recommendation. Id. at
¶20. In April 2013, YSU informed Li that the denial of tenure was final. Id. at 5, ¶22. YSU
offered her a one-year non-tenure track position. Id.
Li filed a lawsuit in the Mahoning County Common Pleas Court, asserting claims against
Defendants for discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§2000e, et seq., and Chapter 4112 of the Ohio Revised Code; for violations of the right to

2

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freedom of speech and association under 42 U.S.C. § 1983; and defamation.2 Id. at 5-6. Li also
alleges that YSU is liable based on the theory of respondeat superior and seeks punitive damages.
Id. at 7. Defendants removed the case to the instant Court, ECF No. 1, then filed a motion for
judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).
II. Legal Standard
A motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) is reviewed
under the same standard applicable to a motion to dismiss under Rule 12(b)(6). Tucker v.
Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008). The Court must construe the
complaint in the light most favorable to the non-moving party, accept all factual allegations as
true, and make reasonable inferences in favor of the non-moving party. Total Benefits Planning
Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008); In re
Sofamor Danek Group, Inc., 123 F.3d 394, 400 (6th Cir. 1997). The complaint must “give the
defendant fair notice of what the claim is and the grounds upon which it rests.” Nader v.
Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 93
(2007)). A motion brought pursuant to Rule 12(c) is appropriately granted “when no material
issue of fact exists and the party making the motion is entitled to judgment as a matter of law.”
JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 582 (6th Cir. 2007) (quoting Paskvan v.
City of Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991)).

2

Li also asserted claims against “John Does, Jane Does, and/or Entity Does One through
10 Inclusive.” ECF No. 1-1 at 1.
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III. Discussion
A. Title VII Discrimination Claim
1. Exhaustion of Remedies
Defendants contend that Li failed to exhaust her administrative remedies because she did
not obtain a right to sue letter from the Equal Employment Opportunities Commission (“EEOC”)
prior to bringing the Title VII claims. ECF No. 4 at 5. Li admits that at the time she filed her
complaint and at the time Defendants filed their motion she did not have a right to sue letter.
ECF No. 11 at 8. Li, however, states that she pleaded in her complaint that an EEOC
investigation had been initiated, and that she has since that time received her right to sue letter.
Id. See also ECF No. 10 (Li’s motion to supplement complaint instanter with her EEOC right to
sue letter).3
Generally, before filing a lawsuit alleging a Title VII claim, a plaintiff must file a charge
with the EEOC and obtain a right to sue letter. See Amini v. Oberlin College, 259 F.3d 493, 498
(6th Cir. 2001). A plaintiff’s failure to obtain a right to sue letter prior to filing a lawsuit can be
cured by obtaining the letter after a lawsuit is filed but before a court enters judgment dismissing
the action, as long as the defendants are not prejudiced. See Parry v. Mohawk Motors of
Michigan, Inc., 236 F.3d 299, 310 (6th Cir. 2000) (explaining that a right to sue letter is not a
jurisdictional defect necessitating dismissal, but a condition precedent that may be cured). In the
instant case, the Court has not entered judgment. And despite Defendants urging the Court not to

3

Li filed a motion for a two-week extension of time to respond to Defendant’s motion,
stating that she expected a right to sue letter to be forthcoming. ECF No. 8. The Court granted
the motion. ECF No. 9.
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permit Li to cure her pleading, Defendants do not describe how they would be prejudiced. See
ECF No. 14 at 1-5. Accordingly, the Court will permit Li to cure her complaint because she
obtained her right to sue letter prior to the Court entering judgment and Defendants have not
explained how they would be prejudiced. See Parry, 236 F.3d at 310.
In their reply brief, Defendants cite to a letter Li’s counsel sent to the EEOC, dated
September 24, 2013. See ECF Nos. 12-1 at 5;14 at 2-3. Defendants argue that the letter belies
Li’s assertion in her complaint, filed on September 23, 2013, that “[a]n investigation with the
EEOC was instituted by letter on September 23, 2013 and is pending.” Id. (citing ECF No. 1-1 at
5, ¶23). Although it appears as though the letter to the EEOC was dated one day after the
complaint was filed, the letter contemplates contemporaneous filing of letter and complaint. See
ECF No. 12-1 at 5 (“We are including a complaint to be filed with the Mahoning County Court
of Common Pleas. Due to statutory requirement, we are also bringing an EEOC claim
contemporan[e]ous to it.”). The Court finds the arguable one-day discrepancy an insufficient
reason to dismiss Li’s Title VII claims.
Defendants also argue that Li’s September 2013 letter sent to the EEOC was not a charge
because it was unverified. ECF No 14 at 4. They refer to a second, verified version Li submitted
to the EEOC on November 22, 2013. Id. They contend that this second, verified version does
not cure the initial unverified version. Id. Defendants rely on Williams v. CSX Transp. Co., Inc.,
643 F.3d 502 (6th Cir. 2011) in support of their argument. They assert that Williams permits a
pro se litigant to cure an unverified filing with a later-filed, verified version, but indicate that Li
was not acting pro se at the time of her initial filing. ECF No. 14 at 4.
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In Williams, the Sixth Circuit stated,
although the district court was correct that this filing was not initially verified, the
district court overlooked a pertinent federal regulation: “A charge may be
amended to cure technical defects or omissions, including failure to verify the
charge....” 29 C.F.R. § 1601.12(b). The statute is silent on whether a filing may
be amended to cure technical defects, and the EEOC’s interpretation is reasonable
under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104
S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Edelman v. Lynchburg College, 535 U.S.
106, 110, 114, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002) (giving Chevron
deference to this same regulation). Williams signed her second EEOC filing, the
“Charge of Discrimination” (discussed in more detail below), under penalty of
perjury and, thus, verified it. For the technical purpose of verification, we
conclude that Williams’s second filing amended—and verified—her first filing.
This result is only fair in light of the fact that nowhere did the “Charge
Information Form” suggest that Williams needed to sign it under penalty of
perjury, and Williams was proceeding pro se at the time.
Id. at 509. Although the Court in Williams explained that the plaintiff was proceeding pro se
when she filed her first, unverified charge, the regulation the Court relied on does not contain
such a requirement. See 29 C.F.R. § 1601.12(b).4 The Williams Court, moreover, did not
expressly premise its holding on the fact that the plaintiff was pro se at the relevant time, and did

4

29 C.F.R. § 1601.12(b) reads,

Notwithstanding the provisions of paragraph (a) of this section, a charge is
sufficient when the Commission receives from the person making the charge a
written statement sufficiently precise to identify the parties, and to describe
generally the action or practices complained of. A charge may be amended to
cure technical defects or omissions, including failure to verify the charge, or to
clarify and amplify allegations made therein. Such amendments and amendments
alleging additional acts which constitute unlawful employment practices related to
or growing out of the subject matter of the original charge will relate back to the
date the charge was first received. A charge that has been so amended shall not be
required to be redeferred.
Id. (Emphasis added)
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not read such a requirement into 29 C.F.R. § 1601.12(b).
The Court finds that Li’s second verified filing cured her first, unverified filing. As a
result, the Court finds that Li exhausted her administrative remedies relevant to her Title VII
claims.
2. Type of Discrimination Alleged
Defendants next argue that Li’s Title VII claims are subject to dismissal because they fail
to allege discrimination on the basis of race, color, religion, national origin, or sex. ECF No. 4 at
10. Li alleges that she was unlawfully discriminated against on the basis of “race, ethnicity,
political belief, and/or expression of First Amendment Right to free speech, silence, or
association.” ECF No. 1-1 at 5, ¶25. Li argues that, because of her Chinese origin, she was
singled out by Jiang, also of Chinese origin, to disseminate the email containing incendiary
references about Japanese people to others in the Chinese community. Id. at 4, ¶15. Li’s
complaint describes “historical tension between the Chinese and the Japanese dating back to
World War II.” Id. at 4, ¶15. When Li declined to disseminate the email, Jiang referred to Li as
a “betrayer.” Id. at 4, ¶¶16-18. Li also asserts that there is no record of Jiang asking nonChinese individuals to forward the email. ECF No. 11 at 13.
Defendants argue that Li is impermissibly expanding the scope of her allegations of
discrimination to include matters not covered under Title VII—political beliefs or First
Amendment rights. ECF No. 14 at 7. Defendants contend Li does so “by arguing that her
allegations of unlawful discrimination on the basis of ‘political belief, and/or expression of First
Amendment Right to free speech, silence, or association’ are offshoots of her allegations of
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unlawful discrimination on the basis of national origin.” Id. In support of their argument,
Defendants rely on Stroud v. Delta Air Lines, Inc., 544 F.2d 892 (5th Cir. 1977).
In Stroud, the Fifth Circuit held that flight attendants could not maintain a Title VII claim
for sex discrimination based on allegations that the airline refused to hire married women. Id. at
891. The court found that married women were discriminated against on the basis of their
marital status, not sex, and thus could not bring a Title VII claim for sex discrimination. Id. at
893-94. The Shroud court explained that there were no male flight attendants at Delta with
which to compare treatment, and cited distinguishing case law that permitted a Title VII sex
discrimination claim when an airline refused to hire or retain married female flight attendants but
did hire or retain married male flight attendants. Id. at 894.
In the instant case, Li alleges that Jiang singled her out because of her Chinese origin and
asked her to forward the email to others of Chinese origin. ECF No. 1-1 at 4, ¶15. Li contends
that Jiang did not ask non-Chinese individuals to disseminate the email. ECF No. 11 at 13.
Therefore, unlike the plaintiffs in Shroud, Li aptly describes allegations of discrimination based
on an actionable trait—race or national origin. Any other aspects of Li’s discrimination claim
Defendants believe are outside the scope of Title VII may be revisited at a later time based on a
more established record.
3. Proper Parties and Claims
The parties agree that Li may not sue Jiang under Title VII. See ECF Nos. 4 at 6; 11 at 1.
Li states that she is suing YSU under Title VII and Jiang under Chapter 4112. ECF No. 11 at 1.
Li’s Title VII claim, therefore, will only proceed against YSU.
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B. State Law Claims— Chapter 4112 and Defamation
1. YSU and Jiang in her Official Capacity
Defendants argue that the Court lacks jurisdiction over Li’s state law claims against YSU
and Jiang in her official capacity on the basis of sovereign immunity pursuant to the Eleventh
Amendment. ECF No. 4 at 6. They contend that, as a state entity (YSU) or actor (Jiang),
Defendants may be sued only in the Ohio Court of Claims, absent waiver of immunity pursuant
to Ohio Revised Code § 2743.02. Id. at 6-7. Li does not dispute Defendants’ statement of the
law. Instead, she argues that Defendants waived immunity when they removed the case to
federal court. ECF No. 11 at 11.
R.C. § 2743.02(A)(1) provides that the “state hereby waives its immunity from liability, .
. . and consents to be sued [] in the court of claims created in this chapter[.]” R.C. §
2743.03(A)(1) creates the Court of Claims, and provides that the Court of Claims has “exclusive,
original jurisdiction of all civil actions against the state permitted by the waiver of immunity
contained in section 2743.02 of the Revised Code[.]” The jurisdiction of the Court of Claims
extends to state instrumentalities per R.C. § 2743.01(A). See Collins v. Univ. of Cincinnati, 444
N.E.2d 459, 461 (Ohio Ct. App. 1981). State universities, like YSU, have been held to be
instrumentalities of the state. Id.; see also Conner v. Wright State Univ., 2013 WL 6835270, at
*3 n.1 (Ohio Ct. App. Dec. 24, 2013); Childs v. Koosed, 928 F.2d 949, at *4 (6th Cir. 1991)
(table opinion). Thus, absent waiver, the Court lacks jurisdiction over Li’s state law claims.
In support of her argument that Defendants waived immunity when they removed the case
to the instant court, Li relies on Lapidus v. Bd. of Regents of the Univ. Sys. of Georgia, 535 U.S.
9

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613 (2002). In Lapidus, the United States Supreme Court found that the State of Georgia waived
its Eleventh Amendment immunity when it removed the case to federal court. The plaintiff in
Lapidus sued the Georgia University System in state court, alleging that the defendants inserted
allegations of sexual harassment into his personnel files in violation of Georgia law and federal
law. Id. at 616. The Georgia state legislature, via statute, had waived immunity for claims
brought in state court. Id. The university removed the case to federal court and then sought
dismissal based on immunity—it argued that, although it could be sued in state court, it enjoyed
immunity in federal court. Id. at 616-17. The Supreme Court held that because the university
would have been subject to suit in state court, it could not simply remove the case to federal court
and dismiss the action. The Court found that to hold otherwise would defeat one of the purposes
of immunity— “to avoid inconsistency, anomaly, and unfairness, and not . . . selective use of
‘immunity’ to achieve litigation advantages.” Id. at 620.
Lapides is readily distinguishable from the instant case. In Lapides, the state was using
immunity to achieve a litigation advantage. Knowing it did not enjoy immunity in state court,
Georgia removed the action to federal court to assert immunity. In contrast, Defendants here
were immune in the state court in which this action was originally filed. Thus, they achieve no
litigative advantage in removing the action to federal court. The outcome is the same whether
the instant case is litigated in the Mahoning County Common Pleas Court or the instant
Court—the Ohio Court of Claims has exclusive jurisdiction over Li’s state law claims against
YSU and Jiang in her official capacity. See also Dantz v. Am. Apple Group, LLC, 123 Fed.
App’x. 702, 706-07 (6th Cir. 2005) (table) (holding Lapides did not apply to non-immunity cases
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and stating, “[e]ven if Lapides did apply, the potentially unfair litigation tactics the Court was
concerned with in Lapides are not present in this case. There is no evidence that an Ohio state
court would have treated this case any differently than the federal court would have.”).
Accordingly, the Court dismisses the state law claims asserted against YSU and Jiang in
her official capacity because it lacks jurisdiction over these claims. See McCormick v. Miami
Univ., 2011 WL 1740018, at *18 (S.D.Ohio May 5, 2011) (Chapter 4112 claims against
university officials sued in their official capacity barred in federal court by Eleventh Amendment
immunity, citing Turker v. Ohio Dep’t of Rehab. and Corr., 157 F.3d 453, 457 (6th Cir. 1998)).
2. Jiang in Her Individual Capacity
Defendants also assert that the Court lacks jurisdiction over claims against Jiang in her
individual capacity. They argue that, pursuant to R.C. §§ 9.86 and 2743.02(F), the Ohio Court of
Claims must first determine whether Jiang is entitled to personal immunity. ECF No. 4 at 8-9.
R.C. § 9.86 provides, in relevant part,
no officer or employee shall be liable in any civil action that arises under the law
of this state for damage or injury caused in the performance of his duties, unless
the officer’s or employee’s actions were manifestly outside the scope of his
employment or official responsibilities, or unless the officer or employee acted
with malicious purpose, in bad faith, or in a wanton or reckless manner.

R.C. § 2743.02(F) states,
A civil action against an officer or employee ... that alleges that the officer’s or
employee’s conduct was manifestly outside the scope of the officer’s or
employee’s employment or official responsibilities, or that the officer or employee
acted with malicious purpose, in bad faith, or in a wanton or reckless manner shall
first be filed against the state in the court of claims, which has exclusive, original
jurisdiction to determine, initially, whether the officer or employee is entitled to
personal immunity under section 9.86 of the Revised Code . . .
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Accordingly, the Court lacks jurisdiction over Li’s state law claims against Jiang in her
individual capacity. See McCormick, 2011 WL 1740018, at *18 (“Ohio law requires that, as a
condition precedent to asserting a cause of action against a state employee in his individual
capacity, the Court of Claims must first determine that the employee is not entitled to the
immunity provided for in Revised Code section 9.86[,]” quoting Haynes v. Marshall, 887 F.2d
700, 705 (6th Cir. 1989)). Li’s state law claims against Jiang in her individual capacity are
dismissed.
C. 42 U.S.C. § 1983 Claims
1. YSU and Jiang in Her Official Capacity
Defendants assert that Li’s section 1983 claims against YSU and Jiang in her official
capacity must be dismissed because YSU is not a “person” within the meaning of section 1983.
ECF No. 4 at 10. They also argue that Eleventh Amendment immunity bars the claims. Id. Li
argues that Defendants waived immunity when they removed the case to federal court and that
YSU may be liable under the Monell doctrine. ECF No. 11 at 14.
Section 1983 provides that “[e]very person who . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983.
“[N]either a State nor its officials acting in their official capacities are ‘persons’ under § 1983.”
Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Section 1983 claims may not be
brought against instrumentalities of a state, such as state universities. See Russell v. Univ. of
Toledo, 537 F.3d 596, 610 (6th Cir. 2008). Li’s claims against YSU and Jiang in her official
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capacity are, therefore, dismissed.5
Li also fails to identify legal authority establishing that the doctrine of municipal liability
established in Monell v. Dept. of Social Servs., 436 U.S. 658 (1978) attaches to YSU. Case law
suggests that Monell liability does not attach to YSU. See Stack v. Karnes, 750 F.Supp.2d 892,
896-97 (S.D.Ohio 2010) (considering the history of Monell liability as applied to municipalities
and local governments and identifying the difference between local governments and “arm[s] of
the state.”). Additionally, Li’s complaint fails to allege a policy, custom, or any trace of a Monell
theory of liability. As a result, Li’s purported section 1983 claim against YSU under a Monell
theory of liability is dismissed.
2. Jiang in Her Individual Capacity— Qualified Immunity
Defendants argue that Jiang is entitled to qualified immunity on Li’s section 1983 claims
against Jiang in her individual capacity. ECF No. 4 at 11. Defendants assert that Li has failed to
show that the right in question was “clearly established” as required to defeat a qualified
immunity defense. ECF No. 4 at 12.
The qualified immunity defense “shields governmental officials performing discretionary
functions [] insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Cochran v. Gilliam, 656 F.3d 300, 306
(6th Cir. 2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). An official may be
held liable if her action was not “objectively reasonable in light of the legal rules that were

5

Moreover, for the reasons explained, supra, the Eleventh Amendment bars Li’s section
1983 claims and removal did not constitute a waiver of immunity.
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‘clearly established’ at the time it was taken.” Id. (quoting Anderson v. Creighton, 483 U.S. 635,
639 (1987)).
In order to show that a right is clearly established, a plaintiff must “point[] to either
‘controlling authority’ or ‘a robust consensus of cases of persuasive authority’” establishing the
existence of the particular right at issue. Hidden Village LLC v. City of Lakewood, 734 F.3d 519,
529 (6th Cir. 2013) (quoting Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2084 (2011)). The inquiry
“must be undertaken in light of the specific context of the case.” Clemente v. Vaslo, 679 F.3d
482, 490 (6th Cir. 2012). The unlawfulness of the action “can be apparent from direct holdings,
from specific examples described as prohibited, or from the general reasoning that a court
employs.” Yoder v. Univ. of Louisville, 526 Fed. App’x 537, 545 (6th Cir. 2013)(table) (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)). If officials of “reasonable competence could
disagree” about the lawfulness of an action, the defendant is entitled to qualified immunity. Id. at
544-45 (quoting Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003)).
Defendants admit that it is clearly established that a public employer may not take an
adverse action against a public employee who has spoken on a matter of public concern when her
interest in speaking publicly outweighs the employer’s right to promote efficiency in the
workplace. ECF No. 4 at 13. Defendants argue, however, that “there is no allegation that Jiang
retaliated against Li for anything that [Li] spoke or otherwise communicated.” Id. Defendants
further submit that Li does not allege that Jiang “compelled” her to do anything—only that Jiang
“asked” Li to forward the email message and “urged” Li not to buy Japanese products. Id. at 1314. Therefore, Defendants maintain, Li has not described acts that would fall under the category
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of “compelled speech.” Id. at 13-15.
Li does not respond to Defendants’ arguments regarding compelled speech. Instead, Li
cites the Supreme Court decision Elrod v. Burns, 427 U.S. 347 (1976), which she describes as
announcing “that the politically-motivated discharge of a government employee violates the First
Amendment unless the government employee’s job is a policy making decision.” ECF No. 11 at
15. Li asserts, “[t]hat should satisfy the burden that the defendants posit is on Dr. Li ‘to point to
decisions of the United States Supreme Court [] in which a [First] Amendment violation was
found in the context at issue here.’” Id.
In Elrod, Branti v. Finkel, 445 U.S. 507 (1980) and Rutan v. Republican Party, 497 U.S.
62 (1990), the Supreme Court established the boundaries of “political patronage” cases—when
political affiliation is inappropriately considered in an adverse employment action. Id. at 65, 79.
Elrod, Branti and Rutan involved plaintiffs who suffered adverse employment actions because
they belonged to a different political party than their superiors. See Elrod, 427 U.S. at 350-351
(Republican sheriff replaced by a Democrat, who then conditioned continuing employment on
employees’ affiliation with the Democratic Party); Branti, 445 U.S. at 509-510 (newly appointed
public defender, a Democrat, sent termination notices to only those assistants who were members
of the Republican Party); Rutan, 497 U.S. at 65-67 (Republican governor instituted a hiring
freeze absent express permission; only members of the Republican party were the beneficiaries of
the governor’s express permission).
Defendants argue that “[t]he present case does not involve a patronage dismissal.” ECF
No. 14 at 10. To the extent Defendants’ argument is based on the word “dismissal,” other
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employment decisions, such as “promotion, transfer, recall, and hiring” are also subject to the
rule articulated in the political patronage cases. See Rutan, 497 U.S. at 79. Defendants also
submit that “[p]olitical party affiliation is not involved” in the instant case. ECF No. 14 at 10.
The Sixth Circuit, however, has stated,
Although Branti concerned membership in different political parties, the
underlying rationale has been understood by this circuit to apply to any political
difference; thus, political affiliation is not limited to membership in a political
party and includes commonality of political purpose and support of political
candidacy. McCloud v. Testa, 97 F.3d 1536, 1548 (6th Cir. 1996) (“dicta and
holdings in our own circuit strongly and nearly without exception support the
concept of applying the ban on patronage employment practices to
non-ideological factions within the same party”).
Smith v. Sushka, 117 F.3d 965, 970 n.6 (6th Cir. 1997). The email sent by Jiang described
opinions and acts that could reasonably be said to constitute a political purpose. The fact that, at
this early stage in the litigation, a cognizable political party affiliation is not evident does not
render the political patronage cases inapplicable.
Defendants also assert that the Elrod line of cases is inapplicable because there was no
“quid pro quo”—in other words, Jiang did not force Li to disseminate the email as a condition of
Jiang’s support. ECF No. 14 at 10. However, “there is no requirement that dismissed employees
prove that they [] have been coerced into changing, either actually or ostensibly, their political
allegiance.” Branti, 445 U.S. at 517; see also O’Hare Truck Service, Inc. v. City of Northlake,
518 U.S. 712, 721 (1996) (city tow truck operator declined to make a contribution to mayor’s reelection campaign and was taken off the city tow list; “[w]e see nothing to distinguish this from
the coercion exercised in our other unconstitutional conditions cases[,]” citing Keyishian v. Bd.
of Regents of Univ. of State of N.Y., 385 U.S. 589 (1967); Perry v. Sindermann, 408 U.S. 593
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(1972)).
Finally, Defendants argue that Jiang lacked authority to terminate Li’s employment
because Li’s tenure denial was “subject to multiple levels of review before the YSU president
made the final tenure decision.” ECF No. 14 at 10. This argument is unavailing. Li alleges that
Jiang recommended against Li’s tenure and sent “three pages of broad and false allegations about
Dr. Li’s job performance, work, and ethics” to the Dean. ECF No. 1-1 at 4. Thus, Li has alleged
that Jiang encouraged and participated in the adverse employment action. See Lupo v. Voinovich,
235 F.Supp.2d 782, 797 (S.D.Oh. 2002) (individual section 1983 liability may be imposed when
there is evidence indicating the individual “encouraged, participated in, implicitly authorized or
knowingly acquiesced in any of the allegedly unconstitutional conduct.”). Because Li has
pointed to “‘controlling authority’ or ‘a robust consensus of cases of persuasive authority’”
establishing the existence of the particular right at issue, Jiang is not entitled to qualified
immunity. See Hidden Village, 734 F.3d at 529.
D. Plausibility of Li’s Complaint
Defendants argue that Li’s claims are implausible and, therefore, do not meet the standard
for plausibility set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). ECF No. 4 at 15-16. They cite Sam Han v. Univ. of Dayton, 541
Fed.App’x 622 (6th Cir. 2013), in support. ECF No. 7 (Notice of Filing Supplemental
Authority). In Sam Han, an Asian-American male was hired by the University of Dayton in a
non-tenured position. 541 Fed.App’x at 625. Despite positive reviews, the Promotion, Retention
and Tenure Committee did not renew his contract. Id. He sued, claiming the decision was a
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result of race and gender discrimination. Id.
The Sixth Circuit affirmed the district court’s dismissal of his complaint because the
“complaint does not plead sufficient facts to state claims of race and gender discrimination that
are plausible on its face.” Id. at 626. That Court stated that the plaintiff “provides no facts that
would allow a court to infer that the adverse employment action at issue was a result of his race
or gender.” Id. It explained that it “is not required to accept inferences drawn by Plaintiff if
those inferences are unsupported by the facts alleged in the complaint.” Id. at 627.
In the instant case, unlike in Sam Han, Li has pleaded factual allegations that would allow
a court to infer that the adverse employment action was a result of discrimination based on
national origin or the right of free association. See Twombly, 550 U.S. at 556; Iqbal, 556 U.S. at
678. Li alleges that Jiang singled her out because of her Chinese origin and requested she
forward an inflammatory email to others in the Chinese community. When Li did not do so, Li
alleges that Jiang: berated her; made verbal and written communications to the Dean that
included false accusations about Li; recommended Li not be granted tenure (despite Jiang
previously congratulating Li on the unanimous faculty vote to award tenure); and that Li was
thereafter denied tenure. See ECF No. 1-1. Li’s claims are plausible under the Twombly/Iqbal
standard, and survive Defendants’ motion.
E. Claims for Respondeat Superior and Punitive Damages
Li asserts claims for respondeat superior and punitive damages. ECF No. 1-1 at 7-8.
Defendants argue that these are not viable independent legal claims, but, respectively, a legal
doctrine that rests on an underlying theory of wrongdoing and a remedy. ECF No. 4 at 17. Li, in
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opposition, agrees with Defendants’ characterization. ECF No. 11 at 16. Accordingly, to the
extent the complaint purports to assert independent legal claims for respondeat superior and
punitive damages, these claims are dismissed.
IV. Conclusion
For the reasons explained above, the Court grants in part and denies in part Defendants’
Motion for Judgment on the Pleadings, ECF No. 4. The Court grants Li’s Motion to Supplement
Complaint Instanter, ECF No. 10.
Accordingly:
•

Li’s Title VII claim against Jiang is dismissed with prejudice.

•

All state law claims against YSU and Jiang are dismissed without prejudice.

•

Li’s section 1983 claims against YSU and Jiang in her official capacity are
dismissed with prejudice.

•

Jiang is not entitled to qualified immunity on Li’s section 1983 claim against
Jiang in her individual capacity.

•

To the extent Li asserts independent legal claims of respondeat superior and
punitive damages, these claims are dismissed.

The case will proceed solely on Li’s Title VII claim against YSU and Li’s section 1983
claim against Jiang in her individual capacity.
IT IS SO ORDERED.

August 13, 2014
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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