Siegler v. The Ohio State University, et al

Filing 98

OPINION AND ORDER: Defendants' motion to dismiss 46 is GRANTED IN PART and DENIEND WITHOUT PREJUDICE IN PART. The Attorney General of the United States may intervene for presentation of evidence, where applicable, and for argument on the question of constitutionality, by 12/02/2011. The Court hereby establishes a deadline of 12/16/2011, for the filing of any motions to dismiss pursuant to Fed. R. Civ. P. 12. Signed by Magistrate Judge Mark R. Abel on 09/26/2011. (sr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
:

Sara E. Siegler,

:

Plaintiff
v.

Civil Action 2:11-cv-170

:

The Ohio State University, et al.,
Defendants.

:

Magistrate Judge Abel

:

OPINION AND ORDER
On May 23, 2011, the Magistrate Judge issued an initial screening Report
and Recommendation on this matter, pursuant to 28 U.S.C. §1915(e)(2). (Doc. 10.)
On June 6, 2011, Plaintiff filed objections to this initial screening. (Doc. 23.) On
June 13, 2011, Defendants filed objections as well. (Doc. 27.) Upon the parties’
consent, this case was then referred to the Magistrate Judge for all further
proceedings. (Doc. 42.) Defendants subsequently refiled their objections as a
motion to dismiss. (Doc. 46.)
This matter is before the Court on Defendant’s July 8, 2011 motion to
dismiss.1 The initial screening recommended the dismissal of all of Plaintiff’s
claims, except for claims under 42 U.S.C. §1983 for retaliation for exercise of First
Amendment rights against Defendants Daniel C. Rohrer, Laurie Ann Johnson,

The factual averments in Plaintiff’s complaint are summarized at length in
the initial screening Report and Recommendation of May 23, 2011. (Doc. 10.)
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Katrina Muska Duff, and Olga Esquivel-Gonzalez, and for an uncompensated
taking in violation of the Fifth Amendment against Defendant Leona B. Ayers. In
the motion to dismiss at bar, the remaining defendants argue that these claims
should be dismissed pursuant to Fed. Rs. Civ. P. 12(b)(1) and (6).2
First Amendment retaliation. The United States Supreme Court has
recently clarified the law with respect to what a plaintiff must plead in order to
survive a Rule 12(b)(6) motion. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955 (2007). The United States Court of Appeals for the Sixth Circuit has
explained:
The Court stated that “a plaintiff’s obligation to provide the grounds of
his entitlement to relief requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.”
[Twombly] at 1964-65 (citations and quotation marks omitted).
Additionally, the Court emphasized that even though a complaint need
not contain “detailed” factual allegations, its “[f]actual allegations
must be enough to raise a right to relief above the speculative level on
the assumption that all the allegations in the complaint are true.” Id.
(internal citation and quotation marks omitted).

Ass’n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th
Cir. 2007). The claims must be plausible and not merely conceivable. Twombly,
127 S. Ct. at 1974.
To prove a claim of retaliation in violation of the First Amendment, an
employee must establish:

The Court adopted the initial screening with respect to all other defendants
in its Order of September 16, 2011. (Doc. 90.) Movants here are the only remaining
defendants in this action.
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(1) that the plaintiff was engaged in a constitutionally protected
activity; (2) that the defendant’s adverse action caused the plaintiff to
suffer an injury that would likely chill a person of ordinary firmness
from continuing to engage in that activity; and (3) that the adverse
action was motivated at least in part as a response to the exercise of
the plaintiff’s constitutional rights.

Farmer v. Cleveland Public Power, 295 F.3d 593, 599 (6th Cir. 2002); see also Lucas
v. Monroe County, 203 F.3d 964, 973 (6th Cir. 2000).
Plaintiff was formerly employed as a Clinical Research Data Coordinator by
former defendant The Ohio State University, in its Cancer and Leukemia Group B
(CALGB) program at the Pathology Coordinating Office (“PCO”). In her complaint
and accompanying “whistleblower narratives”, Plaintiff stated that CALGB used a
standardized database system called RIMS, promoted by the National Institutes for
Health. However, she alleged, Versions 1 and 2 of RIMS were of very limited use,
requiring PCO employees to maintain data in ordinary spreadsheets as well.
Plaintiff alleged that she made several reports or complaints that RIMS was not
properly functional or being used as intended. Finally, on September 22, 2008,
Plaintiff sent an email to Laurie A. Johnson (“Johnson”), the OSU Pathology
Director of Operations, and Dr. Scott Jewell, Plaintiff’s superior, advising them that
she and her colleagues were not able to properly utilize RIMS and were forced to
still keep records by spreadsheet. However, on October 14, 2008 meeting with the
National Cancer Institute, a funding agency, Dr. Jewell listed utilization of RIMS
as one of the center’s specific objectives and future plans. Plaintiff then contacted
RIMS software developers at Duke University, advising them that OSU was not

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making proper use of RIMS.
Plaintiff received a written reprimand from Defendant Daniel C. Rohrer
(“Rohrer”), the PCO Data Manager, in April 2008 for sending an email to coworkers
complaining that they were wasting her time and failing to properly perform their
jobs, and met several times with Johnson and Rohrer subsequently concerning her
work performance. In October 2008, Plaintiff learned that co-workers had
complained about her to Johnson, and she approached Defendant Katrina Muska
Duff (“Duff”), the human resources consultant for the OSU Department of
Pathology, to inquire about the substance of the complaints. Later that month, she
received two further written reprimands. On November 3, 2008, Plaintiff met with
Duff in her office concerning complaints about her. Duff sent Plaintiff a follow-up
email informing her that a request for corrective action was forthcoming, but that
the Pathology Department would permit her to resign in lieu of termination.
In her complaint, Plaintiff stated that she felt that her job was being
threatened because of having revealed PCO’s failure to utilize RIMS. In December
2008, she sent an OSU Whistleblower Report Form to the OSU Office of Research.
However, on December 19, 2008, Plaintiff was placed on administrative leave by
Johnson and Rohrer. Finally, on February 25, 2009, Plaintiff participated in a
telephone conference call with Rohrer, former defendants Michelle Geiman and
Stephanie Berland, and Defendant Olga Esquivel-Gonzalez (“Gonzalez”), a manager
in OSU’s Office of Human Resources, in which Rohrer advised her that her
employment was being terminated.
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According to Plaintiff’s complaint, she was terminated in retaliation for
having reported misuse of, or failure to use, the CALGB RIMS system. Plaintiff
asserts that this makes her a whistleblower for purposes of state and federal
statutes, and that it gives rise to an actionable claim for First Amendment
retaliation. However, “when a public employee speaks not as a citizen upon matters
of public concern, but instead as an employee upon matters only of personal
interest, absent the most unusual circumstances, a federal court is not the
appropriate forum in which to review the wisdom of a personnel decision taken by a
public agency allegedly in reaction to the employee’s behavior.” Connick v. Myers,
461 U.S. 138, 147 (1983). A government employee retains her First Amendment
right to comment on matters of public concern without fear of reprisal from the
government as employer. Dambrot v. Central Michigan University, 55 F.3d 1177,
1185 (6th Cir. 1995), citing Connick, supra. However, the threshold question is
whether the employee’s speech may be fairly characterized as constituting speech
on a matter of public concern. Id., quoting Matulin v. Village of Lodi, 862 F.2d 609,
612 (6th Cir. 1988). “[C]omplaining about your boss and coworkers is not protected
by the First Amendment just because you work for the government... [C]omplaining
about the poor management of... [a] university is not a matter of public concern
when those complaints are directed only to other government employees and
concern the employee’s supervisors and coworkers.” Feterle v. Chowdhury, 148
Fed.Appx. 524, 533 (6th Cir. 2005). Criticism of one’s colleagues and department is
not of itself constitutionally protected speech. Id.
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Here Plaintiff characterizes, or seems to characterize, her complaints
concerning RIMS as exposure of wrongdoing. However, it is not clear exactly what
wrong it is that Plaintiff is supposed to have exposed. Her complaint alleged that
she brought it to the attention of her superiors that RIMS functioned poorly and
could not be used, and that she contacted the developers of RIMS to advise them
that OSU was not making proper use of their software. Plaintiff also mentioned
that Dr. Jewell had at one point made reference to the use of RIMS as a goal for
CALGB. Her allegations, even if they were all accepted as true, would not
demonstrate any kind of fraud upon the public sufficient to give rise to a claim that
a plaintiff had “blown the whistle” on governmental wrongdoing rather than simply
complained about internal mismanagement.
Furthermore, Plaintiff’s complaint does not offer more than conclusory
allegations that she suspected that her termination was really in retaliation for her
exposure of problems with RIMS, rather than the result of the numerous written
and verbal reprimands which, according to her complaint, she received for
quarreling with her coworkers. The complaint pleads only vague suspicion that
Plaintiff’s termination must have been due to her speech concerning RIMS.
However, a complaint will not “suffice if it tenders ‘naked assertion[s] devoid of
further factual enhancement.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009),
quoting Twombly, 550 U.S. at 555, 557 (citations omitted). Plaintiff does not
suggest the existence of any facts which, if she could prove they were true, would
demonstrate “that the adverse action was motivated at least in part as a response to
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the exercise of the plaintiff’s constitutional rights”, rather than merely an unfair,
unwarranted, or unjustified employment decision. Consequently, Plaintiff has
failed to state a claim for First Amendment retaliation upon which relief can be
granted.
Fifth Amendment taking. In her complaint, Plaintiff alleged that she
“proposed an idea for a research proposal to Dr. Jewell with the assistance of Mr.
Rohrer in a private meeting held between the three.” She alleged that she
repeatedly submitted her ideas, which concerned new techniques for the use of
specimens in lymphoma research, by email to Jewell and Rohrer, and that they
responded with suggestions and comments. Siegler, who asserts that she produced
her ideas on her own time rather than at work, apparently did not create a formal
research product based upon this proposal prior to her termination. However,
Defendant Dr. Leona Ayers (“Ayers”), another researcher in the OSU Department of
Pathology, allegedly plagiarized Plaintiff’s research material and included it in a
presentation at a conference in South Africa in September 2010.
The Fifth and Fourteenth Amendments to the United States Constitution
prohibit the taking of private property for public use without just compensation.
The initial screening Report and Recommendation previously identified that
Plaintiff, in making these allegations against Ayers, sought to bring a claim under
42 U.S.C. §1983, the statute creating a private right of action for violation of civil
rights. Soon after filing her complaint, Plaintiff filed a “Notice of Constitutional
Question” and a motion to certify this constitutional question. In her notice, she
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reiterated her allegations that Dr. Ayers had plagiarized her research, and stated:
Although OSU has claimed ownership of Siegler’s research from 2008,
which includes, but is not limited to the lymphoma research proposal
that Siegler wrote in her spare time off of work, under the federal
Bayh-Dole Act, which constitutes an[] Act of Congress, Siegler
questions the constitutionality of the federal Bayh-Dole Act, which
grants universities ownership of intellectual property developed via
the use of federal funds... [and] O.R.C. § 3345.14, which constitutes
Ohio’s work product statute...
(Doc. 6 at 3.) The Court later denied Plaintiff’s requests that it serve her Notice of
Constitutional Question upon the United States and Ohio Attorneys General,
stating:
Plaintiff’s complaint, construed most broadly, can be taken to imply
that employees of Ohio State University took her intellectual property
and misappropriated it for their own use (or for the University’s use)
without giving her credit. Plaintiff’s request that the Court declare
these statutes unconstitutional under the Fifth Amendment is founded
not upon an assertion by Ohio State University or a finding by a court
that Plaintiff did not own certain property, but upon Plaintiff’s
anticipation that Defendants would, if challenged, invoke these
statutes to justify their position. This is a hypothetical injury. Since
no one has actually invoked O.R.C. §3345.14 or the Bayh-Dole Act
against her, Plaintiff has no standing to attack them.
(Doc. 79 at 2, quoting Siegler v. The Ohio State University, Case No. 2:10-cv-172,
Doc. 79 at 9-10.) It further noted that “Plaintiff does not have standing to challenge
the constitutionality of statutes which no defendant has invoked against her. The
Court will accordingly not certify any such challenge”. (Id.)
In Defendants’ motion to dismiss, they now argue that Plaintiff fails to allege
that she was deprived of any property of hers without due process of law:
Notwithstanding the question of whether Siegler’s “proposal” is
original in any way whatsoever, or even remotely rises to the level of
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viable research with any academic and/or monetary value at all, O.R.C.
§3345.14 provides that all rights to inventions, discoveries, and
patents resulting from a state university research facility becomes the
property of that university. Additionally, the “Bayh-Dole Act”, 35
U.S.C. § 201 et seq. gives universities control of intellectual property
arising from federally funded research.
(Doc. 46 at 15-16.) Defendants argue that, under the Fifth Amendment, a
government is not required to compensate an owner for property lawfully acquired
under the exercise of government authority other than eminent domain, and that
Plaintiff would therefore not have been deprived of her intellectual property
without due process of law.
As Defendants have, in fact, invoked O.R.C. §3345.14 and the Bayh-Dole Act
to argue that whatever taking they might have imposed upon Plaintiff was legal,
Plaintiff does have standing to challenge the constitutionality of these statutes.
Pursuant to Fed. R. Civ. P. 5.1(b) and (c), the Court must notify the Attorney
General of the United States that the constitutionality of a federal statute has been
called into question, and permit him sixty days to intervene in this action.3
The Court accordingly will not adjudge at this time the question of whether
Plaintiff’s allegations against Dr. Leona Ayers for an unconstitutional taking of
property state a claim upon which relief can be granted, and Defendants’ motion to
dismiss in this respect will be denied without prejudice.
Conclusions. For the reasons set forth herein, Defendants’ motion to dismiss

The Court need not certify this question to the Ohio Attorney General, as
the State of Ohio is already a party to this action. Fed. R. Civ. P. 5.1(a)(1)(B).
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(Doc. 46) is GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART.
Plaintiff’s claims against Defendants Laurie Ann Johnson, Daniel C. Rohrer,
Katrina Muska Duff, and Olga Esquivel-Gonzalez are dismissed with prejudice
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can
be granted.
Furthermore, pursuant to Fed. R. Civ. Pro. 5.1(b) and 28 U.S.C. §2403(b), the
Court hereby CERTIFIES to the Attorney General of the United States that the
constitutionality of the Bayh-Dole Act, 35 U.S.C. § 201 et seq. under the Fifth
Amendment to the United States Constitution has been drawn into question. The
Attorney General of the United States may intervene for presentation of evidence,
where applicable, and for argument on the question of constitutionality, by Friday,
December 2, 2011. Plaintiff is required to abide by her obligations under Fed. R.
Civ. P. 5.1(a)(2).
The Clerk of Court is DIRECTED to serve a copy of this Order upon the
Attorney General of the United States, United States Department of Justice, 950
Pennsylvania Avenue, NW, Washington, DC 20530-0001, and upon the United
States Attorney for the Southern District of Ohio.
The Court hereby establishes a deadline of Friday, December 16, 2011, for
the filing of any motions to dismiss pursuant to Fed. R. Civ. P. 12. The Court will
thereafter establish a revised case management schedule.
s/Mark R. Abel
United States Magistrate Judge

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