Thompson v. The Ohio State University et al
Filing
40
ORDER granting in part and denying in part 29 Defendants' Motion to Dismiss. Signed by Judge Gregory L Frost on 1/6/14. (sem1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TRACY THOMPSON,
Case No. 2:12-cv-1087
JUDGE GREGORY L. FROST
Magistrate Judge Deavers
Plaintiff,
v.
THE OHIO STATE UNIVERSITY, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendants’ motion to dismiss Plaintiff’s amended
complaint under Fed. R. Civ. P. 12(b)(6) (ECF No. 29), Plaintiff’s memorandum in opposition
(ECF No. 33), and Defendants’ reply in support (ECF No. 34). Defendants seek dismissal on the
ground that Plaintiff’s substantive allegations fail to state a relief upon which relief can be
granted; alternatively, the individual defendants seek dismissal of the claims against them on the
ground of qualified immunity.
For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN
PART Defendants’ motion. The Court dismisses Count II of Plaintiff’s amended complaint,
alleging a 42 U.S.C. § 1983 claim based on substantive due process. Count I (First Amendment
retaliation), Count III (equal protection), and Count IV (Title VI of the Civil Rights Act) survive
dismissal on the pleadings and may go forward.
I.
Plaintiff Tracy Thompson brings this action against Defendants The Ohio State
University (“OSU” or “the University”) and three individuals, alleging claims under 42 U.S.C. §
1983 and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. Plaintiff’s amended
1
complaint alleges the following facts, which the Court treats as true for purposes of determining
whether Plaintiff states a valid claim for relief. See Bower v. Federal Express Corp., 96 F.3d
200, 203 (6th Cir. 1996).
In the fall of 2009, Plaintiff enrolled in the Master’s in Health Administration Program at
OSU’s College of Public Health. Of the approximately 31 students in the Master’s program,
Plaintiff was the only African-American. When she enrolled, Plaintiff anticipated that she would
graduate with her Master’s degree in the spring of 2011.
During the winter 2010 quarter, Plaintiff took a Health Care Operations course taught by
Defendant Sharon Schweikhart, Ph.D., who is white. During her time in Dr. Schweikart’s class,
Plaintiff began to feel as though Dr. Schweikhart disliked her and singled her out for
mistreatment. For example, when Plaintiff failed a midterm examination and asked Dr.
Schweikhart how she could improve her performance in the class, Dr. Schweikhart responded by
saying simply that Plaintiff should “figure it out.” Other students in the class noticed Dr.
Schweikhart’s behavior toward Plaintiff. Classmates told Plaintiff that Dr. Schweikhart “hates
[Thompson’s] guts” and that they felt Dr. Schweikhart’s treatment of Plaintiff was inappropriate.
During the fall 2010 quarter, Plaintiff took a Health Care Information Systems course,
also taught by Dr. Schweikhart. During that quarter, Plaintiff submitted a paper in which she
utilized a particular informal citation style that Dr. Schweikhart instructed the class to use.
Despite the paper being cited in the manner she instructed, Dr. Schweikhart complained to
OSU’s Committee of Academic Misconduct, accusing Plaintiff of plagiarism. Despite the fact
that other students in the class used the same citation style, Dr. Schweikhart did not accuse any
of the white students of plagiarism. Plaintiff was the third student whom Dr. Schweikhart
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referred for academic misconduct during her 20 years as an OSU professor. Of the three
students Dr. Schweikhart has ever referred for academic misconduct, all were African-American.
In January 2011, Thompson complained to OSU’s Office of Student Advocacy and
Office of Human Resources about Dr. Schweikhart. Specifically, Plaintiff complained that Dr.
Schweikhart was discriminating against her on the basis of race. Plaintiff made similar
complaints of race discrimination to other departments within the University. The University did
not investigate Plaintiff’s complaints of race discrimination.
The plagiarism charge against Plaintiff went to a hearing before OSU’s Committee of
Academic Misconduct. Plaintiff was not permitted to discuss or present evidence of the fact that
other students in the class used the same citation style Plaintiff had used on the paper in question.
Following the hearing, the Committee found Plaintiff guilty of plagiarism. As a sanction, the
Committee gave Plaintiff a failing grade in the Health Care Information Systems course and
suspended Plaintiff for the following spring and summer quarters. The conditions of Plaintiff’s
suspension stated—
A student who has been dismissed or suspended from the university shall be
denied all privileges afforded a student and shall be required to vacate campus at a
time determined by the hearing officer or panel. In addition, after vacating
campus property, a suspended or dismissed student may not enter upon campus
and/or other university property at any time, for any purpose, in the absence of
express written permission from the vice president for student affairs or his/her
designee. To seek such permission, a suspended or dismissed student must file a
written petition to the vice president for student affairs for entrance to the campus
for a limited, specified purpose or to have the terms of his condition modified or
reduced.
Plaintiff unsuccessfully appealed the Committee’s decision and sanction. Because the
suspension did not take effect until the spring quarter, Plaintiff was allowed to complete the
winter quarter that was ongoing at the time the Committee handed down its decision.
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While she was suspended, Plaintiff inquired of various faculty members in her program at
OSU for guidance on how she should proceed towards her degree once her suspension was lifted.
When Plaintiff’s communications were ignored, Plaintiff communicated in writing to Dr.
Javaune Adams-Gaston, the Vice President for Student Life,1 and Dr. Stanley Lemeshow, Dean
of the College of Public Health. Plaintiff asked Drs. Gaston and Lemeshow for a meeting to
discuss Plaintiff’s continued pursuit of her degree. Plaintiff’s letter mentioned her concerns
about racial discrimination and Plaintiff’s desire to continue in the Master’s program without
being subjected to further discriminatory treatment. Plaintiff did not receive a response.
Plaintiff’s suspension meant that her graduation from the Master’s program would be
delayed by one year. Even though the suspension covered only two quarters, the only remaining
class that Plaintiff needed to complete her degree was offered only during the spring quarter.
Because Plaintiff’s suspension became effective during spring quarter, Plaintiff had to wait until
the following spring to take the course and complete her degree requirements.
At the time of Plaintiff’s suspension, Plaintiff was enrolled in a “Six-Sigma” course at the
University’s College of Business. The course was a six credit hour class that spanned from
winter quarter through the first half of the spring quarter. Thus, due to the terms of the
suspension, Plaintiff would have been unable to complete the Six-Sigma course. Plaintiff
therefore met with Dr. Adams-Gaston to ask whether she could obtain permission to complete
the six-sigma course notwithstanding the suspension. According to Plaintiff, Dr. Adams-Gaston
told her it was acceptable for Plaintiff to complete the Six-Sigma course so long as it was also
acceptable to the professor. At Plaintiff’s request, the Six-Sigma professor agreed to allow
Plaintiff to complete the course.
1
Plaintiff’s amended complaint alleges that the Vice President for Student Life at OSU is also known as
the Vice-President for Student Affairs.
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In order to complete her work in the Six-Sigma course, it was necessary for Plaintiff to
go on campus on a number of occasions. On each of these occasions, Plaintiff obtained
permission from Dr. Adams-Gaston to be on campus. Plaintiff ultimately completed the course
and then completed the rest of her suspension.
Not long after Plaintiff’s suspension period ended, Plaintiff learned that she was being
charged with two new violations of the University Student Conduct Policy. Specifically,
Plaintiff was charged with “dishonest conduct” and “failure to comply with sanctions.”
Defendant Ann Salimbene, Ph.D., was the individual responsible for filing the misconduct
charges against Plaintiff. According to Plaintiff, Dr. Salimbene is a friend and colleague of Dr.
Schweikhart.
The gravamen of the misconduct charges against Plaintiff was that she did not receive
proper permission to enter upon campus to complete the Six-Sigma course. According to the
charges, Dr. Adams-Gaston lacked the authority to permit Plaintiff to complete the Six-Sigma
course and that Plaintiff should have known that Dr. Adams-Gaston lacked such authority. It
was Plaintiff’s position that Dr. Adams-Gaston was the specific person from whom she had to
obtain permission to enter campus under the terms of the suspension.
The charges against Plaintiff proceeded to a hearing before the University Conduct
Board. Dr. Salimbene argued in favor of disciplining Plaintiff. Following the hearing, the
Conduct Board found in favor of Plaintiff on the dishonest conduct charge. The Conduct Board,
however, found that Plaintiff failed to comply with a sanction. As a result of its finding, the
Conduct Board suspended Plaintiff from the University from March 9, 2012 through August 12,
2012.
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Plaintiff appealed the ruling. Defendant Gretchen Metzlaars, Ph.D., the Senior Associate
Vice President in the Office of the Vice President for Student Life, presided over Plaintiff’s
appeal. Dr. Metzlaars denied Plaintiff’s appeal, finding that “all circumstances were considered
during your judicial process and that the disciplinary process was appropriate.” Dr. Metzlaars
accordingly upheld the sanction issued by the Conduct Board. Because of the suspension,
Plaintiff’s graduation from the Master’s program was delayed for another year.
Plaintiff commenced this action, naming OSU, Dr. Schweikhart, Dr. Salimbene, and Dr.
Metzlaars as Defendants. In her amended complaint, Plaintiff alleges claims under 42 U.S.C. §
1983 for First Amendment retaliation (against Dr. Salimbene), violation of substantive due
process (against Drs. Salimbene and Metzlaars), and race discrimination (against Drs.
Schweikhart and Salimbene). (ECF No. 23 at PageID# 99-101.) Plaintiff also alleges a claim
against the University for race discrimination in violation of Title VI of the Civil Rights Act of
1964, 42 U.S.C. § 2000d et seq. (Id. at PageID# 101-02.) Defendants move to dismiss the
amended complaint in its entirety under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon
which relief can be granted. (ECF No. 29.) Alternatively, individual Defendants Salimbene,
Metzlaars, and Schweikhart move for dismissal of the claims against them on qualified immunity
grounds.
II.
Defendants move for dismissal of this action under Fed. R. Civ. P. 12(b)(6) for failure to
state a claim upon which the Court can grant relief. When ruling upon a Rule 12(b)(6) motion,
the Court is required to accept the well pleaded factual allegations contained in the pleading as
true, construe them in the light most favorable to the non-moving party, and determine whether
the factual allegations present any plausible claim. See Bell Atl. Corp. v. Twombly, 550 U.S.
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554, 570 (2007). The Supreme Court has explained, however, that “the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. Consequently,
“[d]etermining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Id. at 679.
A complaint must present “enough facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. To be considered plausible, a claim must be more than merely
conceivable. Twombly, 550 U.S. at 556; Ass’n of Cleveland Fire Fighters v. City of Cleveland,
Ohio, 502 F.3d 545, 548 (6th Cir. 2007). “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.” Iqbal, 556 U.S. at 678. The factual allegations of a pleading
“must be enough to raise a right of relief above the speculative level . . . .” Twombly, 550 U.S. at
555. See also Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008).
III.
In Counts I, II, and III of the amended complaint, Plaintiff alleges separate claims under
42 U.S.C. § 1983 against the individual Defendants. Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
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Thus, in order to assert valid § 1983 claims, Plaintiff must show that Defendants, while
acting under color of state law, deprived her of a right secured by the Federal Constitution or
laws of the United States. See Alkire v. Irving, 330 F.3d 802, 813 (6th Cir. 2003).
In their motion to dismiss the § 1983 claims, the individual Defendants do not challenge
the allegation that they acted under color of state law. Rather, they argue that Plaintiff has failed
to allege a cognizable violation of a constitutional right. Alternatively, the individual Defendants
claim that the doctrine of qualified immunity shields them from § 1983 liability.
A. First Amendment Retaliation
In Count I of her amended complaint, Plaintiff alleges that Defendant Salimbene
retaliated against her in violation of Plaintiff’s rights under the First Amendment to the United
States Constitution. Plaintiff alleges that her complaints about perceived race discrimination at
OSU were protected expressions under the First Amendment and that Dr. Salimbene brought
student misconduct charges against Plaintiff in retaliation for Plaintiff’s complaints. Plaintiff
also contends that Dr. Salimbene brought these charges against Plaintiff even though she knew
they were bogus.
To survive dismissal, a plaintiff pleading a First Amendment retaliation claim must allege
that (1) the plaintiff engaged in constitutionally protected conduct; (2) an adverse action was
taken against the plaintiff that would deter a person of ordinary firmness from continuing to
engage in that conduct; and (3) the adverse action was motivated at least in part by the plaintiff's
protected conduct. Wurzelbacher v. Jones-Kelly, 675 F.3d 580, 583 (6th Cir. 2012). Dr.
Salimbene concedes, for purposes of the motion to dismiss, that Plaintiff’s complaints about race
discrimination satisfy the first element. (Defs.’ Mot., ECF No. 29 at PageID# 117.) Dr.
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Salembene argues, however, that Plaintiff “fails to plead facts” in support of the second and third
elements.
As to the second element, Dr. Salimbene contends: “Plaintiff identifies Dr. Salimbene’s
conduct charge against her as the adverse retaliatory action, but she fails to plead that the alleged
adverse action caused her to suffer an injury that would likely chill a person of ordinary firmness
from continuing to engage in that activity.” The Court disagrees. The amended complaint
alleges that Dr. Salimbene filed charges against Plaintiff, alleging that Plaintiff violated the
University Student Conduct Policy. (Am. Compl. ¶ 53, ECF No. 23.) Those charges ultimately
led to Plaintiff’s suspension from the University and a resulting one-year delay in Plaintiff’s
graduation from the Master’s program in Health Administration. (Id. at ¶¶ 63, 69.) To the extent
Dr. Salimbene alleges that the filing of charges is not enough of an adverse action to chill a
person of ordinary firmness, the Court is unpersuaded. Whether an alleged adverse action is
sufficient to deter a person of ordinary firmness from engaging in protected conduct is generally
a question of fact. Wurzelbacher, 675 F.3d at 583-84 (citing Bell v. Johnson, 308 F.3d 594, 603
(6th Cir. 2002)).
As to the third element, Dr. Salimbene contends that “Plaintiff pleads no facts in support
of the retaliation claim’s causation element.” (ECF No. 29 at PageID# 118.) She complains that
Plaintiff merely makes the conclusory allegation that Dr. Salimbene brought charges against
Plaintiff in retaliation for Plaintiff’s race discrimination complaints against Dr. Schweikhart. Dr.
Salimbene further argues that Plaintiff fails to plead that Dr. Salimbene knew of the complaints
against Dr. Schweikhart. (Id.) Thus, Dr. Salimbene argues that Plaintiff has failed to make any
connection between Plaintiff’s speech and the adverse action, rendering her incapable of stating a
claim for First Amendment retaliation. (Id.)
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The Court is not persuaded by Dr. Salimbene’s argument. The amended complaint
alleges the following—
“Dr. Salimbene was motivated to pursue these charges against Thompson due to
Thompson’s race, and in retaliation for Thompson’s allegations of race discrimination
against Salimbene’s colleague and friend, Dr. Schweikhart.” (Am. Compl., ¶ 55.)
“Dr. Salimbene brought these charges against Thompson . . . with a retaliatory motive
due to Thompson’s complaints about race discrimination, which angered and upset
Salimbene and caused her to retaliate against Thompson.” (Id. at ¶ 56.)
These are not conclusory or threadbare recitals. As to Dr. Salimbene’s motivation, the
Court is puzzled as to what more Plaintiff was required to plead. Moreover, “[a] defendant’s
motivation for taking action against the plaintiff is usually a matter best suited for the jury.”
Paige v. Coyner, 614 F.3d 273, 282 (6th Cir. 2010).
Dr. Salimbene’s argument with regard to whether Plaintiff has adequately pleaded Dr.
Salimbene’s knowledge of Plaintiff’s protected activity is equally unpersuasive. What Dr.
Salimbene seems to be looking for is the rote allegation that “Salimbene knew of Plaintiff’s race
discrimination complaints.” But the Court fails to see why this is necessary. A plaintiff is not
required to plead particular facts with specific reference to elements of a cause of action; a
plaintiff need only plead factual matter that makes a plausible claim for relief. See Twombly, 550
U.S. at 570. Plaintiff has done that here with her allegations about Dr. Salimbene’s motivation
and her anger at Plaintiff’s complaints levied against Dr. Schweikhart. Dr. Salimbene’s
knowledge of Plaintiff’s protected activity is implicit in these allegations. Indeed, Dr. Salimbene
could not be motivated or angered by Plaintiff’s activity if she did not know about it. Thus,
while the amended complaint does not plead the magic words “Dr. Salimbene knew,” it pleads
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enough facts from which to infer Dr. Salibene’s knowledge of the protected activity. See Iqbal,
556 U.S. at 678 (“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.”).
Defendants cite Espinal v. Goord, 554 F.3d 216, 229-30 (2d Cir. 2009), for the
proposition that a plaintiff must allege that the defendants were aware of the protected activity in
order to state a claim for retaliation. But Espinal does not say that. In that case, which was
before the court of appeals on an appeal from a summary judgment the court found a genuine
issue of material fact as to whether a defendant was aware of protected activity. Id. at 230. In
doing so, the court of appeals reversed the district court’s decision finding no evidence that the
defendant knew of the plaintiff’s protected activity. Espinal does not stand for any proposition
relating to the pleading requirements for a First Amendment retaliation claim to avoid dismissal
under Fed. R. Civ. P. 12(b)(6).
Defendants also cite McLaughlin v. Pezzolla, No. 06-cv-376, 2010 U.S. Dist. LEXIS 232
(N.D.N.Y. Jan. 4, 2010), for the same proposition. But it is dubious, at best, to conclude that
McLaughlin sets forth any rule regarding sufficient allegations in a complaint. The passage
relied on by Defendants states: “Without allegations regarding the individual Defendants'
knowledge of the protected speech, Plaintiff has not sufficiently plead a claim of retaliation and
summary judgment will be granted as to those Defendants.” Id. at *37 (emphasis added). The
court then proceeded to analyze whether the record contained evidence from which a reasonable
factfinder could conclude that the defendants knew about the plaintiff’s protected activity. Id. at
*37-40. Given its emphasis on evidence in the record on a motion for summary judgment,
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McLaughlin is weak authority, at best, for what the pleading requirements are for a plaintiff to
overcome a motion to dismiss a First Amendment retaliation claim.
Plaintiff’s amended complaint states a claim for First Amendment retaliation against Dr.
Salimbene.
B. Qualified Immunity for First Amendment Retaliation
Having rejected Defendant Salimbene’s argument that Plaintiff fails to state a claim for
First Amendment retaliation, the Court proceeds to Dr. Salimbene’s alternative argument that she
is entitled to qualified immunity from liability. The doctrine of qualified immunity operates
under certain circumstances to shield from civil liability governmental officials who are
performing official duties. Sinick v. Summit, 76 F. App’x 675, 679 (6th Cir. 2003). The
affirmative defense shields government officials from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
In addressing the potential applicability of qualified immunity, courts use a two-step
analysis. First, the Court must look at “whether, considering the allegations in a light most
favorable to the injured party, a constitutional right has been violated”; second, the Court must
determine “whether that right was clearly established” at the time of the incident in question.
Campbell v. City of Springboro, Ohio, 700 F.3d 779, 786 (6th Cir. 2012) (citing Saucier v. Katz,
533 U.S. 194, 201 (2001)); Simmonds v. Genessee Cnty., 682 F.3d 438, 443-44 (6th Cir. 2012).
The Court need not consider these steps in order; it may consider either step first. Pearson v.
Callahan, 555 U.S. 223, 236 (2009). The relevant inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable official that his or her conduct
was unlawful in the situation he or she confronted. Saucier, 533 U.S. at 202.
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Although qualified immunity is typically addressed at the summary judgment stage of the
case, a court may consider the defense on a motion to dismiss brought under Fed. R Civ. P.
12(b)(6). Hardy v. Jefferson Cmty. College, 260 F.3d 671, 677 (6th Cir. 2001). The court will
grant the motion if the plaintiff’s complaint fails to allege the violation of a clearly established
constitutional right. Id.
Defendants argue that Plaintiff has failed to allege that Dr. Salimbene violated a clearly
established constitutional right to be free from First Amendment retaliation. Though Defendants
concede that “certain speech is protected and that retaliatory action based on that speech violates
a constitutional right,” Defendants nevertheless argue that there was no “clearly established law”
that would have put Dr. Salimbene on notice that the “mere filing of a conduct charge” would be
an adverse action for First Amendment retaliation purposes. (Defs.’ Mot., ECF No. 29 at
PageID# 120.)
The Court is not persuaded by Defendants’ argument. It is not necessarily true that the
exact factual circumstances alleged in a given case must have been found to be a constitutional
violation before a right can be “clearly established” for purposes of a qualified immunity
analysis. The United States Supreme Court has recognized that “officials can still be on notice
that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer,
536 U.S. 730, 741 (2002). “When a general constitutional principle ‘is not tied to particularized
facts,’ the principle ‘can clearly establish law applicable in the future to different sets of detailed
facts.’” Sample v. Bailey, 409 F.3d 689, 699 (6th Cir. 2005) (quoting Harris v. Coweta County,
406 F.3d 1307, 2005 U.S. App. LEXIS 6721, 2005 WL 901889, at *8 (11th Cir. Apr. 20, 2005)).
The determinative issue is whether the officer had “fair warning that his conduct deprived [the
plaintiff] of a constitutional right.” Hope, 536 U.S. at 740 (internal quotation omitted).
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In this case, Plaintiff alleges that Dr. Salimbene initiated student misconduct charges
against Plaintiff in retaliation for Plaintiff’s allegations of race discrimination against Dr.
Salimbene’s colleague and friend, Dr. Schweikhart. (Am. Compl. ¶ 55.) Plaintiff further alleges
that Dr. Salimbene initiated these charges knowing that there was “no rational or reasonable
basis for the charges she pursued against [Plaintiff].” (Id.)
When viewed in the light most favorable to Plaintiff, the amended complaint alleges that
Dr. Salimbene retaliated against Plaintiff for exercising her First Amendment right to complain
about perceived race discrimination by Dr. Schweikhart in the Master’s program. In the context
of a retaliation claim, the focus of the qualified immunity analysis is on the retaliatory intent of
the defendant. See Bloch v. Ribar, 156 F.3d 673, 682 (6th Cir. 1998) (collecting cases from
other circuits). For purposes of assessing Dr. Salimbene’s claim of qualified immunity, it is
clearly established that a public official’s retaliation against an individual for exercising First
Amendment rights violates 42 U.S.C. § 1983. Id.; see also AbdulSalaam v. Franklin Cnty. Bd. of
Comm’rs, 637 F. Supp. 2d 561, 584-85 (S.D. Ohio 2009) (denying qualified immunity in First
Amendment retaliation case; public official should have known that fabricating evidence against
plaintiff in retaliation for complaining about a children’s services agency investigation violated
clearly established First Amendment rights). Accordingly, the Court finds that Dr. Salimbene is
not entitled to a Rule 12(b)(6) dismissal based on qualified immunity.
C. Substantive Due Process
In Count II, Plaintiff alleges a § 1983 claim against Defendants Salimbine and Metzlaars
based on violation of her substantive due process rights under the Fourteenth Amendment to the
United States Constitution. Plaintiff bases this claim upon the second suspension levied against
her, which resulted in a year long delay in Plaintiff’s graduation from the Master’s program. The
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gravamen of the substantive due process claim is that (1) Dr. Salimbene pursued “improper
charges” and “advocated for the improper discipline” and (2) Dr. Metzlaars “reviewed, affirmed,
and imposed the baseless, indefensible, and absurd sanction” of suspension against Plaintiff.
(Am. Compl. ¶ 80.)
The legal basis of Plaintiff’s substantive due process claim is “the right to be free of
‘arbitrary and capricious’ action by government actors.” Bowers v. City of Flint, 325 F.3d 758,
763 (6th Cir. 2003) (quoting Pearson v. City of Grand Blanc, 961 F.2d 1211, 1217 (6th Cir.
1992)). As the Sixth Circuit has held, the “arbitrary and capricious” standard set forth in
Pearson “is simply another formulation of, but is no less stringent than, the more traditional
‘shocks the conscience’ standard” enunciated by the Supreme Court. Id. (citing Sacramento v.
Lewis, 523 U.S. 833, 847 (1998)). Thus, Plaintiff’s § 1983 claim based on substantive due
process can escape Rule 12(b)(6) dismissal only if the allegations in the amended complaint state
a cognizable claim that the actions of Dr. Salimbene and Dr. Metzlaars shock the conscience in
the constitutional sense.
As an initial matter, the Court analyzes the substantive due process claim under the
assumption that the pursuit of charges and the imposition of the suspension against Plaintiff were
not motivated by either First Amendment retaliation or race discrimination. This is because
claims of First Amendment retaliation and race discrimination are protected by other parts of the
Constitution, obviating the need to resort to the substantive due process doctrine. “Where a
particular Amendment provides an explicit source of constitutional protection against a particular
sort of government behavior, that Amendment, not the more generalized notion of ‘substantive
due process,’ must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266,
273 (1994) (internal quotation omitted). Here, any claims that Defendants pursued punishment
15
against Plaintiff in retaliation for her complaints or for racially discriminatory reasons are more
appropriate resolved through vindication of rights under the First Amendment and the Equal
Protection Clause, respectively. See id.
To establish that the conduct complained of in this case is “conscience shocking,”
therefore implicating substantive due process principles, Plaintiff alleges that Dr. Salimbene filed
charges against her for violating the terms of Plaintiff’s suspension, knowing that there was no
rational basis for those charges. (Pl.’s Opp’n, ECF No. 33 at PageID# 146.) With this allegation
against Dr. Salimbene, Plaintiff is attempting to invoke the rule “that in a non-custodial setting,”
a plaintiff may establish § 1983 liability for violations of substantive due process when “the
governmental actor either intentionally injured the plaintiff or acted arbitrarily in the
constitutional sense.” Upsher v. Grosse Pointe Pub. Sch. Sys., 285 F.3d 448, 453 (6th Cir.
2002); see also Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Edn., 542 F.3d 529, 538 (6th Cir.
2008). But even assuming this rule is applicable to the university discipline setting (and Plaintiff
cites no case for the proposition that it does), Plaintiff fails to state a valid substantive due
process claim for relief against Dr. Salimbene. The allegations in Plaintiff’s amended complaint
establish only that Dr. Salimbene initiated the student misconduct charges against Plaintiff; Dr.
Salimbene did not impose the allegedly arbitrary suspension against Plaintiff. It was the
University Conduct Board that issued the ruling against Plaintiff. Accordingly, the harm of
which Plaintiff complains—even if the suspension can be characterized as harm in the
constitutional sense—was not imposed by Dr. Salimbene.
Nor can Plaintiff state a claim for a substantive due process violation against Dr.
Metzlaars, who affirmed on appeal the punishment levied by the University Conduct Board.
(Am. Compl. ¶¶ 65-66.) As against Dr. Metzlaars, the viability of Plaintiff’s substantive due
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process claim depends upon whether the punishment levied against Plaintiff can be deemed
arbitrary or conscience-shocking under constitutional standards. “In the context of school
discipline, a substantive due process claim will succeed only in the ‘rare case’ when there is ‘no
rational relationship between the punishment and the offense.’” Seal v. Morgan, 229 F.3d 567,
575 (6th Cir. 2000) (quoting Rosa R. v. Connelly, 889 F.2d 435, 439 (2d Cir. 1989)).
Plaintiff argues that Dr. Metzlaars’ affirmance of the multi-quarter suspension shocks the
conscience as an “arbitrary and capricious punishment” because it was an unduly harsh penalty
for Plaintiff “honestly relying on the terms of the suspension as presented to her and on the
permission of the vice-president of student affairs of the University.” (Pl.’s Opp’n, ECF No. 33
at PageID# 147-48.) But in order to prevail on this theory of liability, Plaintiff would need to
have this Court override the factual determinations and judgment of the University Conduct
Board, which deemed Plaintiff to have violated the terms of her first suspension, and of Dr.
Metzlaars, who upheld the Board’s conclusion. “It is not the role of the federal courts to set
aside decisions of school administrators which the court may view as lacking a basis in wisdom
or compassion.” Wood v. Strickland, 420 U.S. 308, 326 (1975).
Moreover, Plaintiff does not state a claim based on her punishment being “arbitrary and
capricious” when compared with the misconduct offense that Dr. Metzlaars upheld. A multiquarter suspension levied for violating the terms of a previously-imposed suspension does not
shock the conscience in the constutitional sense. It is not disproportionate on its face for the
University to impose a second suspension on an individual found to have violated the terms of a
first suspension.
For these reasons, the Court dismisses Count II of Plaintiff’s Complaint for failure to
state a valid claim for § 1983 relief based on substantive due process. Because the Court finds
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Plaintiff has failed to state a cognizable constitutional violation based on substantive due process,
the Court need not examine whether Drs. Salimbene or Metzlaars are entitled to the protection of
qualified immunity as to Count II.
D. Equal Protection
In Count III of the amended complaint, Plaintiff alleges a § 1983 race discrimination and
retaliation claim against Defendants Schweikhart and Salimbene. As against both of these
Defendants, Plaintiff alleges that they denied her equal protection under the law by
discriminating against her on the basis of race. (Am. Compl. ¶ 86.) In addition, Plaintiff alleges
that Dr. Salimbene retaliated against Plaintiff for making race discrimination complaints against
Dr. Schweikhart. (Id. ¶ 87.)
To state a claim under § 1983 based upon the Equal Protection Clause, a plaintiff must
allege that a state actor intentionally discriminated against the plaintiff 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); Purisch v. Tenn. Tech. Univ., 76 F.3d 1414, 1424 (6th Cir. 1996).
Plaintiff has done just that in her amended complaint: she alleges that Defendants discriminated
against her on the basis of race, treating her differently than her white classmates with regard to
the report of perceived misconduct. Plaintiff also alleges that Dr. Salimbene pursued charges
against Plaintiff not only based on race but in retaliation for Plaintiff having complained of race
discrimination perpetrated by Dr. Schweikhart.
Despite Plaintiff’s allegations fitting within the parameters of what must be pleaded for a
valid Equal Protection claim under § 1983, Defendants argue that Plaintiff has failed to plead a
prima facie case of race discrimination under the framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), which applies to employment discrimination cases under federal
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law and which the Sixth Circuit has applied to race discrimination claims brought under 42
U.S.C. § 1981. See Bell, 351 F.3d at 252-53. Specifically, Defendants contend that Plaintiff
does not identify a similarly situated white classmate treated differently from her. (Defs.’ Mot.,
ECF No. 29 at PageID# 124.) Insisting that “[s]ome facts are necessary” to support Plaintiff’s
claim, Defendants argue that the amended complaint’s failure to identify a similarly situated
individual outside of Plaintiff’s protected class must result in dismissal of her equal protection
claim. (Id.)
Defendants argument is unpersuasive. A race discrimination plaintiff need not plead
facts that constitute a prima facie case under the framework of McDonnell Douglas in order to
survive a motion to dismiss. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002); see also
Serrano v. Cintas Corp., 699 F.3d 884, 888 (6th Cir. 2012) (noting that Swierkiewicz remains
good law even after Twombly). So long as a complaint provides an adequate factual basis for a
race discrimination claim, the plaintiff has satisfied the pleading requirements. Id. See also
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (“Specific facts are not necessary; the statement need
only “give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.”) (quoting Twombly, 550 U.S. at 555; internal quotations omitted). Plaintiff’s amended
complaint alleges enough to escape Rule 12(b)(6) dismissal in this case. Plaintiff has alleged
that—
Dr. Schweikhart levied charges of plagiarism against only Plaintiff even though white
students in her class utilized the same citation format that formed the basis of the
plagiarism accusation (Am. Compl. ¶ 21);
During her career, Dr. Schweikhart had referred three students for academic
misconduct charges, all of whom were African-American, despite the fact that she
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had taught more than ten times as many white students as African-American students
(id. ¶¶ 25-29);
Dr. Salimbene was angered and upset at the race discrimination charges that Plaintiff
brought against her colleague and friend, Dr. Schweikhart (id. ¶ 55);
Dr. Salimbene knew the misconduct charges against Plaintiff were unfounded and
brought them in retaliation for Plaintiff’s allegations of race discrimination (id. ¶ 56).
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 she has alleged
enough to overcome dismissal under Rule 12(b)(6).
E. Qualified Immunity from Race Discrimination Allegations
Alternatively, Defendants Schweikhart and Salimbene argue that they are entitled to
qualified immunity from § 1983 liability based on race discrimination. Defendants say that it
was not “clearly established” that reporting Plaintiff for misconduct was an “adverse action” for
purposes of an equal protection analysis. In the Court’s view, however, the proper inquiry at this
stage is the alleged discriminatory intent of the state actor. “If any ‘right’ under federal law is
‘clearly established,’ it is the constitutional right to be free from racial discrimination.” Williams
v. Richland Cnty. Children Servs., 489 F. App’x 848, 854 (6th Cir. 2012). Defendants cannot
seriously argue that a reasonable university official would not have known that taking
disciplinary action against a student based on racial animus was a violation of the student’s rights
to equal protection under the law.
As another basis for qualified immunity, Plaintiff argues that “there was no indication
that Plaintiff was treated differently than any similarly situated graduate students or that either
Dr. Schweikhart or Salimbene had knowledge of Plaintiff allegedly filing race discrimination
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complaints.” (Defs.’ Mot., ECF No. 29 at PageID# 126.) But these are factual issues not
appropriate for determination at the pleading stage, much less on the basis of qualified immunity.
Plaintiff has alleged disparate treatment vis-à-vis white graduate students and has alleged Dr.
Salimbene’s knowledge of Plaintiff’s complaint of race discrimination against Dr. Schweikhart.
Plaintiff’s allegations overcome Rule 12(b)(6) dismissal on qualified immunity grounds.
IV.
Count VI of Plaintiff’s amended complaint alleges a claim against Defendant OSU for
race discrimination in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et
seq. Title VI generally provides that “[n]o person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial assistance.”
42 U.S.C. § 2000d.
To state a Title VI claim against OSU, Plaintiff must plead intentional discrimination.
See Alexander v. Sandoval, 532 U.S. 275, 280 (2001). Defendants argue that Plaintiff fails in
this regard because she (1) pleads only conclusory allegations with regard to the University’s
conduct, (2) inappropriately attempts to impute discriminatory intent to the University through
her allegations against the individual Defendants, and (3) fails to plead facts that rise to the level
of discriminatory intent as it relates to allegations that the University failed to investigate
Plaintiff’s discrimination complaint against Dr. Schweikhart. None of these rationales, however,
supports dismissal of Plaintiff’s Title VI claim at the pleading stage.
As to the first argument regarding conclusory allegations, it is true that a plaintiff must
plead facts that establish discriminatory intent. Pocono Mtn. Charter Sch. v. Pocono Mtn. Sch.
Dist., 442 F. App’x 681, 688 (3d Cir. 2011) (citing Alexander v. Choate, 469 U.S. 287, 293-94
21
(1985)). But the Court disagrees that the allegations in the amended complaint are “conclusory.”
Plaintiff alleges that the OSU “actively participated” in intentionally discriminatory conduct
because the University’s Committee of Academic Misconduct and University Conduct Board
were motivated by discriminatory animus in their “official action” taken against Plaintiff. (Am.
Compl. ¶¶ 91-92.) It remains to be seen whether Plaintiff can prove this weighty allegation
against the University. Plaintiff has, however, alleged the requisite discriminatory intent
required for a Title VI claim.
The Court is equally unpersuaded by Defendants’ second and third arguments for
dismissal. It is true that there is no vicarious liability under Title VI, meaning that OSU cannot
be held liable for discrimination solely based on the conduct of the individual Defendants. See
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286-88 (1998); see also Goonewardena v.
New York, 475 F. Supp. 2d 310, 328 (S.D.N.Y. 2007).2 But the allegations in the amended
complaint do not establish that Plaintiff is trying to hold the University liable for the allegedly
discriminatory actions of Drs. Schweikhart and Salimbene in and of themselves. Plaintiff alleges
that OSU was deliberately indifferent to Plaintiff’s complaints of race discrimination by not only
failing to properly investigate them but also by actively taking steps to cover up discrimination.3
(Am. Compl. ¶¶ 24, 31, 93.) With these allegations, Plaintiff has pleaded the requisite
discriminatory intent to survive dismissal of her Title VI claim.
2
Although this case involves a Title VI claim, this Court applies the law set forth in Gebser, which
involved Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (“Title IX”). The Supreme
Court acknowledged in Gebser that the Title VI and Title IX statutes parallel one another. Gebser, 524
U.S. at 286 (recognizing that Title VI and Title IX parallel one another except that Title VI prohibits race
discrimination while Title IX prohibits sex discrimination).
3
Based on the Supreme Court’s acknowledgment that deliberate indifference is sufficient to establish a
claim of intentional discrimination under Title IX, and the fact that Title IX treatment has generally been
based on the standards set forth for the enforcement of Title VI, the “deliberate indifference” standard
would presumably apply to Title VI cases. Vidovic v. Mentor City Sch. Dist., 921 F. Supp. 2d 775, 796
n.10 (N.D. Ohio 2013) (citing Davis v. Monroe Cnty. Bd. of Edn., 526 U.S. 629, 642 (1999) and Cannon
v. University of Chicago, 441 U.S. 677, 694-695 (1979)).
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V.
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART
Defendants’ motion to dismiss and/or for qualified immunity. (ECF No. 29.) The Court
DISMISSES COUNT II of Plaintiff’s amended complaint, alleging § 1983 liability based on
substantive due process and DISMISSES Defendant Metzlaars as a party to this action. The
Court DENIES Defendants’ motion with respect to Counts I, III, and IV of the amended
complaint. Plaintiff’s action may proceed on her claims based on First Amendment retaliation,
equal protection, and Title VI of the Civil Rights Act.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE
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