Mckeny v. Middleton et al

Filing 48

ORDER granting in part and deferring in part 26 Motion for Judgment on the Pleadings. Signed by Judge James L. Graham on 9/16/16. (jlg6)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Timothy Scott McKeny, Ph.D.,
Plaintiff,

Case No: 2:14-cv-2659

v.

Judge Graham

Dean Renee Middleton, et al.,
Defendants.
Opinion and Order
Plaintiff Timothy Scott McKeny, a former assistant professor at Ohio University, brings this
action under federal and state law alleging that he was discriminated against on the basis of his
sexual orientation when he was denied tenure by the University. The complaint names Ohio
University, President Roderick McDavis, Provost Pam Benoit and Dean Renee Middleton as
defendants. The individual defendants are sued in their official and individual and capacities. The
complaint asserts numerous state law claims, including for breach of contract, discrimination in
violation of Ohio Revised Code § 4112.02, civil conspiracy and infliction of emotional distress. The
complaint also asserts a claim for discrimination in violation of Title VII of the Civil Rights Act of
1964, as well as a claim under 42 U.S.C. § 1983 for discrimination in violation of the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution.
This matter is before the court on defendants’ motion for partial judgment on the pleadings
under Federal Rule of Civil Procedure 12(c). The standard applied to motions for judgment on the
pleadings is the same standard applicable to motions to dismiss under Rule 12(b)(6). See Warrior
Sports, Inc. v. National Collegiate Athletic Ass’n, 623 F.3d 281, 284 (6th Cir. 2010). “For purposes
of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of
the opposing party must be taken as true, and the motion may be granted only if the moving party is
nevertheless clearly entitled to judgment.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577,
582 (6th Cir. 2007) (internal citation and quotation marks omitted).
State Law Claims. Defendants argue that Ohio University is immune under the Eleventh
Amendment from liability as to plaintiff’s state law claims. See Grinter v. Knight, 532 F.3d 567, 572
(6th Cir. 2008) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989)). In response,
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Plaintiff concedes that he “is not attempting to bring any state law action against Defendant Ohio
University.” (Doc. #28 at PAGEID 799).
Defendants next argue that the individual defendants are immune against the state law claims
because plaintiff pursued a cause of action against them in the Ohio Court of Claims based on the
same allegations raised here.

Ohio law provides for a conditional waiver of state sovereign

immunity when the Ohio Court of Claims determines that the “act or omission was manifestly
outside the scope of the officer’s or employee’s office or employment or that the officer or
employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner.” Ohio Rev.
Code § 2743.02(A)(1). See also McCormick v. Miami Univ., 693 F.3d 654, 665 (6th Cir. 2012)
(holding that a federal court must dismiss state law claims against state employees unless the Court
of Claims determines that the employees are not entitled to immunity).
The Ohio Court of Claims has rendered an adjudication of plaintiff’s claim, holding that “the
evidence is clear and unambiguous that Dean Middleton, Provost Benoit, and President McDavis
were acting within the scope of their employment in their decisions to deny Plaintiff tenure.
Consequently, they are entitled to civil immunity [under O.R.C. § 2743.02].” (Doc. #41-1 at
PAGEID 2682).
Plaintiff does not dispute that the individual defendants are immune from liability as to his
state law claims.
Title VII Claim. The individual defendants argue that they cannot not be held personally
liable under Title VII, which applies to “an employer.” See 42 U.S.C. § 2000e-2(a); see also Griffin
v. Finkbeiner, 689 F.3d 584, 600 (6th Cir. 2012) (“An individual cannot be held personally liable for
violations of Title VII.”). In response, plaintiff concedes that the “Title VII claim does not apply to
the Individual Defendants.” (Doc. #28 at PAGEID 806).
Next, defendants argue that plaintiff failed to exhaust his administrative remedies to the
extent he is alleging discrimination based upon either gender discrimination or gender stereotyping.
See Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 731-32 (6th Cir. 2006) (discussing the
exhaustion requirement). The complaint contains allegations that plaintiff was “openly gay” and
maintained an appearance and had mannerisms that did not conform to traditional notions of what
is appropriate for a man. In the Charge of Discrimination filed with the Equal Employment
Opportunity Commission, plaintiff checked the box for a claim of “sex” discrimination, but the
substance of what he alleged in the Charge was discrimination based upon his sexual orientation, as
opposed to either traditional gender discrimination or discrimination based upon his failure to
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conform to gender stereotypes. Defendants cite a case distinguishing a sexual orientation claim
from a claim alleging discrimination based upon gender stereotyping. See Vickers v. Fairfield Med.
Ctr., 453 F.3d 757, 763-64 (6th Cir. 2006) (discussing Dawson v. Bumble & Bumble, 398 F.3d 211,
218 (2d Cir. 2005) and noting “the faulty logic in viewing what is, in reality, a claim of discrimination
based on sexual orientation as a claim of sex stereotyping”).
In response, plaintiff agrees that the essence of his claim is one for discrimination based
upon his sexual orientation. But he emphasizes that an aspect of his claim (and a means of proving
it) will be how the individual defendants perceived his non-conformity with gender stereotypes to be
an indication of his sexual orientation.
The court finds that there is no genuine disagreement between the parties here. Plaintiff
clearly exhausted his administrative remedies regarding his claim for sexual orientation. (Doc. #1417). And plaintiff views his allegations of gender non-conformity not as a stand-alone Title VII
claim, as in Vickers, but as supporting his sexual orientation claim. Further, there is no dispute that
plaintiff is not asserting a traditional gender discrimination claim.
Defendants additionally argue that the Title VII claim fails because the claim is time-barred
and because sexual orientation is not a protected category. These same issues have been raised in
defendants’ recent motion for summary judgment and have been given a more thorough treatment
in the parties’ briefs relating to that motion. 1 The court will defer addressing these two issues until it
rules on the motion for summary judgment.
Section 1983 Claims. As with the Title VII claim, defendants’ motion for judgment on the
pleadings argues that the § 1983 claims fail because they are time-barred and because sexual
orientation is not a protected category. The court will defer addressing these issues and will consider
them in connection with the motion for summary judgment.

With respect to the statute of limitations argument, the parties’ summary judgment briefs cite
evidence (extrinsic to the complaint and answer) that they feel is relevant to whether the denial of
tenure by the various defendants should be considered to be an unbroken series of negative
decisions, see Delaware State Coll. v. Ricks, 449 U.S. 250, 262 (1980), or viewed as a process that
began anew when the Ohio University Faculty Senate Committee on Tenure and Promotion took
action, after Dean Middleton’s and Provost Benoit’s initial denials of tenure application, that caused
Dean Middleton and Provost Benoit to consider the tenure application for a second time.
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With respect to sexual orientation as a protected category, the parties cite continuing case law
developments in the wake of Obergefell v. Hodges, __ U.S. __, 135 S. Ct. 2584 (2015).
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Finally, defendants argue that plaintiff, in opting to pursue a claim based on the same
conduct in the Ohio Court of Claims, waived his § 1983 claims against the individual defendants in
their individual capacities. The court agrees, as binding Sixth Circuit precedent squarely holds that
the filing of a claim in the Ohio Court of Claims constitutes a waiver of the right to file a federal
cause of action under § 1983 against individual defendants based on the same conduct. Leaman v.
Ohio Dep’t of Mental Retardation & Development Disabilities, 825 F.2d 946, 951-52 (6th Cir. 1987)
(en banc); Thomson v. Harmony, 65 F.3d 1314, 1318-19 (6th Cir. 1995); Turker v. Ohio Dep’t of
Rehab. & Corr., 157 F.3d 453, 458 (6th Cir. 1998) (holding in a § 1983 action that “[b]ecause we are
bound to follow both Leaman and Thomson, we agree with the district court’s finding that Turker
waived any monetary claims against the defendants in federal court when she filed her action in the
Court of Claims”).
Conclusion. Accordingly, defendants’ motion for partial judgment on the pleadings (doc.
#26) is granted in part. The motion is granted as to all of plaintiff’s state law claims, Title VII claims
against the individual defendants and § 1983 claims against the individual defendants in their
individual capacities. The court defers consideration of the remainder of defendants’ arguments
until it resolves the pending motion for summary judgment.

s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
DATE: September 16, 2016

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