Crawford v. Columbus State Community College et al
Filing
33
OPINION AND ORDER granting in part and denying in part 24 Motion to Dismiss for Failure to State a Claim; granting 25 Motion to Strike. Signed by Judge Algenon L. Marbley on 7/11/2016. (cw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
THOMAS CRAWFORD,
Plaintiff,
v.
COLUMBUS STATE COMMUNITY
COLLEGE, et al.
Defendants.
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Case No. 2:15-cv-2438
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp
OPINION & ORDER
Thomas Crawford, an adjunct lecturer of physics and engineering at Columbus State
Community College (“CSCC”), sued his employer and several of its high-ranking officials under
42 U.S.C. § 1983. Crawford alleged that those officials failed to promote him to a fulltime
tenure track position in retaliation for exercising his First-Amendment right to speech regarding
workplace grievances and his anti-abortion views, and also because of his advanced age, in
violation of the Equal Protection Clause of the Fourteenth Amendment. CSCC moved to dismiss
Crawford’s suit under Federal Rule of Civil Procedure 12(b)(6), arguing that he failed to state a
claim and that, in any event, the individual officials remain entitled to qualified immunity.
Having reviewed the parties’ briefing, the Court agrees with CSCC as to Crawford’s first claim,
which is not based on constitutionally protected speech. The Court agrees with Crawford,
however, as to his second and third claims, which both sufficiently state a cause of action upon
which relief can be granted. Accordingly, the Court GRANTS IN PART and DENIES IN
PART CSCC’s motion to dismiss (Doc. 24). The Court likewise GRANTS Crawford’s motion
to strike the exhibits that CSCC appended to its motion to dismiss (Doc. 25).
1
I. BACKGROUND
A. Factual Background 1
Thomas Crawford, aged seventy-two, has served as an adjunct lecturer in the Department
of Biological and Physical Sciences at CSCC since 2002. (Doc. 21, ¶¶ 1, 10). Roughly a decade
into his employment, Michael Hailu, the Dean of Crawford’s department (and a defendant here),
asked him to develop a “Fundamentals of Engineering” program. (Id. at ¶ 14). Crawford
developed the program, which CSCC subsequently offered as two separate courses.
(Id.).
Crawford taught those courses in addition to training other lecturers on how to teach them. (Id.).
During the spring of 2013, one of Crawford’s students approached him and mentioned
the idea of recommending Crawford for a fulltime position due to his “superior teaching and
tutoring.” (Id. at ¶ 15). The student prepared a “recommendation[]” letter for David Harrison,
the President of CSCC (and also a defendant in this case), which outlined the case for promoting
Crawford. (Id. at ¶¶ 15-17). The student’s letter also raised concerns over alleged cheating in
some physics classes and poor teaching within the department more generally. (Id. at ¶ 15).
Crawford, who had heard of another student’s concerns regarding alleged cheating within the
department, “did not dissuade” the student from lobbying school officials for a promotion or
from voicing these other concerns. (Id.). Later, this student asked Crawford for a copy of his
resume, which Crawford provided, and then asked Crawford to review his proposed letter to
President Harrison, which Crawford did. (Id. at ¶ 16). The student then created a petition to
accompany his letter and collected signatures from forty-two other students who also wished to
see Crawford promoted. (Id. at ¶ 17). The student submitted this petition and recommendation
letter to President Harrison and Dean Hailu sometime in November 2013. (Id.).
1
In adjudicating CSCC’s motion to dismiss, the Court accepts as true all of Crawford’s well-pleaded
factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); (see Third Am. Compl., Doc. 21).
2
Following receipt of the petition and letter, President Harrison met with the studentauthor. (Id. at ¶ 18). President Harrison then met with Dean Hailu and Lisa Schneider, the
Interim Dean of the College of Arts and Sciences (parent-college to Crawford’s department).
(Id. at ¶¶ 3, 19). Together, the three administrators concluded that Crawford “orchestrated” the
letter seeking his promotion to a fulltime position. (Id. at ¶ 19). After the administrators
received the petition and letter, Dean Hailu told Crawford, “Do you think this is a positive for
you? This is not a positive; this is a negative. This is not how we hire people.” (Id. at ¶ 24).
Some of Dean Hailu’s frustration may have stemmed from Crawford’s outspoken antiabortion views. (Id. at ¶¶ 20-24, 26-28). Over the years, Crawford had posted literature on
public bulletin boards around CSCC’s campus, “most [of which] dealt with religious statements
in opposition to abortion.” (Id. at ¶ 20). At one point, CSCC administrators began monitoring
Crawford’s postings, and in the spring of 2012, Dean Hailu “confronted” Crawford about his
activities “and ordered him to stop all postings on campus.” (Id. at ¶¶ 21-22). After that
warning, Crawford met with a human resources representative, “who informed him that the
bulletin boards where he was placing materials . . . were public and [that] anyone could post on
them.” (Id. at ¶ 23). Accordingly, Crawford “continued to post his religiously-oriented materials
on those bulletin boards,” which “he was informed were for public use.” (Id.).
In June 2014, roughly six months after receipt of the student petition and
recommendation letter, CSCC posted an opening for a fulltime tenure track position in the
Department of Biological and Physical Sciences, with an “Engineering-Physics Emphasis.”
(Id. at ¶ 29).
The posting sought a successful candidate who possessed “[a]n appropriate
combination of education, training, course work[,] and experience,” and it included minimum
and preferred qualifications which Crawford far surpassed. (Id. at ¶ 30).
3
Crawford, who holds advanced degrees in Nuclear and Mechanical Engineering, applied
for the position. (Id. at ¶¶ 10, 31). Crawford’s application included a seventeen-page letter and
resume. (Id. at ¶ 31). In his application letter, Crawford mentioned the student petition and
recommendation letter from the previous December. (Id.). When he applied for the fulltime
position, Crawford was seventy-one years old. (Id.).
Dean Hailu then convened a hiring committee to consider the applications that CSCC
received. (Id. at ¶ 33). Under the hiring process, committee members independently were to
score the objective qualifications of each applicant and then choose the five highest-ranking
applicants, based on the committee’s combined scores, for interviews. (Id.).
According to Crawford, Dean Hailu manipulated the hiring process with the agreement of
President Harrison and Dean Schneider. (Id. at ¶¶ 32, 35). Together, the three administrators
“concluded that [Crawford] would be denied the opportunity to be considered for the position”
due, in part, to the fact that he orchestrated the student petition and “place[d] anti-abortion
literature and objects around campus.” (Id. at ¶¶ 24, 27, 32). Crawford maintains that his
objective qualifications “placed him at the top of the applicant group,” but that “his application
was dropped” before CSCC officials conducted any interviews. (Id. at ¶ 33). Crawford alleges
that “[t]he scoring was manipulated to deny [him] an interview.” (Id.).
On August 20, 2014, the hiring committee interviewed a different applicant, Jeevan
Baretto, for the position. (Id. at ¶ 34). Professor Baretto, who was forty years younger than
Crawford, and who allegedly “possessed dramatically inferior qualifications,” was hired two
days later. (Id.). During the Winter Semester of 2015, Professor Baretto was out of the country
and unable to teach the courses he was assigned. (Id. at ¶ 36). Dean Hailu assigned a different
adjunct lecturer to teach Professor Baretto’s fulltime schedule until his return. (Id.).
4
B. Procedural Background
Crawford—who sought both the fulltime position and a temporary assignment to teach
those fulltime courses in Professor Baretto’s absence—felt slighted for being passed over in
favor of other candidates. According to Crawford, CSCC officials refused to promote him in
retaliation for the exercise of his First-Amendment right to free speech. (Id. at ¶¶ 37-47). That
speech allegedly consisted of the following: (1) orchestrating the student petition and letter of
recommendation, which referenced concerns over cheating and poor teaching practices within
the Biological and Physical Sciences Department, and referring back to those students’ concerns
in his own application letter; and (2) “[o]ver the years . . . post[ing] literature on public bulletin
boards around CSCC campus . . . . most[ly] deal[ing] with religious statements in opposition to
abortion.” (Id. at ¶¶ 20, 37-51). Crawford also contends that CSCC officials refused to promote
him due to his age. (Id. at ¶¶ 48-51).
Crawford filed suit under 42 U.S.C. § 1983 against CSCC, as well as Dean Hailu,
Dean Schneider, and President Harrison, each in their individual capacity. He subsequently
amended his complaint on several occasions—leaving the operative complaint as the Third
Amended Complaint from November 20, 2015, which raised the following three claims:
Count 1: a First-Amendment retaliation claim based on the student petition and letter of
recommendation (id. at ¶¶ 37-41);
Count 2: a First-Amendment retaliation claim based on Crawford’s “religiously-based
postings in public areas of CSCC campus” (id. at ¶¶ 42-47); and
Count 3: a Fourteenth Amendment age-discrimination claim based on CSCC’s decisions
to: (a) hire a younger candidate for the fulltime tenure-track position; and
(b) deny Crawford a temporary assignment to that position during the Winter
Semester of 2015 (id. at ¶¶ 48-51).
5
CSCC and the individually named defendants (Dean Michael Hailu, Dean Lisa
Schneider, and President David Harrison) moved to dismiss all of Crawford’s claims under
Rule 12(b)(6). (Doc 24). In doing so, CSCC attached several exhibits to its motion, prompting
another round of briefing from the parties over whether to strike those exhibits under Rule 12(f)
or to convert CSCC’s motion to dismiss into a motion for summary judgment under Rule 12(d).
(See Mot. to Strike, Doc. 25; Mem. in Opp’n, Doc. 28; Reply Br., Doc. 30). Both matters now
are ripe for review.
II. STANDARD OF REVIEW
The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). Under
modern federal pleading standards, a complaint must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint will
survive a motion to dismiss if the plaintiff alleges facts that “state a claim to relief that is
plausible on its face” and that, if accepted as true, are sufficient to “raise a right to relief above
the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); see also
Iqbal, 556 U.S. at 678. A complaint must thus “contain either direct or inferential allegations
respecting all material elements to sustain a recovery under some viable theory.” Eidson v. Tenn.
Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007).
In assessing the sufficiency and plausibility of a claim, courts “construe the complaint in
the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable
inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007).
Thus, dismissal is appropriate only if “it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to relief.” Guzman v. U.S. Dep’t of
Homeland Sec., 679 F.3d 425, 429 (6th Cir. 2012) (quotation omitted).
6
III. ANALYSIS
Crawford’s Section 1983 action raises two First-Amendment retaliation claims and a
separate age-discrimination claim under the Fourteenth Amendment. The Court will assess the
sufficiency of each claim in turn.
A. Crawford Fails to State a Claim Upon Which Relief May Be Granted Against CSCC.
At the outset, the Court must grant the defendants’ motion to dismiss all claims against
CSCC itself. Crawford named CSCC and three school administrators, acting in their individual
capacities, as defendants. (Doc. 21, ¶¶ 1-8). But the statute under which he brought this suit,
42 U.S.C. § 1983, does not authorize his claims against CSCC—a state community college.
See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (holding that § 1983, which
authorizes suit against any “person” acting under color of state law, does not apply to states or
state agencies); Hall v. Med. Coll. of Ohio at Toledo, 742 F.2d 299, 307, 310 (6th Cir. 1984)
(finding that Ohio’s “state colleges and universities” form “an arm of the state entitled to
immunity in federal court” under § 1983 as opposed to “political subdivision[s] of the state”);
Stevenson v. Owens State Cmty. Coll., 562 F. Supp. 2d 965, 968-70 (N.D. Ohio. 2008)
(extending Hall to Ohio’s community colleges and agreeing that those community colleges are
“entit[ies] of the state” that cannot be sued under § 1983).
B. Crawford Fails to State a Claim as to Count 1 Because the Relevant “Speech” Was Not
Constitutionally Protected.
Crawford may proceed under § 1983 with his claims against the remaining three
defendants
in
their
individual
capacities.
Nevertheless,
Count
1—which
alleges
First-Amendment retaliation based on the student petition and recommendation letter
(and Crawford’s later reference to them)—fails to state a claim upon which relief can be granted.
Crawford’s speech was not constitutionally protected.
7
Public employees, by virtue and necessity of their employment, “must accept certain
limitations on [their] freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). Government
employers, like their private-sector counterparts, “need a significant degree of control over their
employees’ words and actions,” for without it, “there would be little chance for the efficient
provision of public services.” Id. That said, public employees do not forfeit their constitutional
right to freedom of speech simply by entering government service. Id. at 417. Rather, public
employees retain the right, “in certain circumstances, to speak as a citizen addressing matters of
public concern.” Id. So long as public employees speak as citizens regarding matters of public
concern, “they must face only those speech restrictions that are necessary for their employers to
operate efficiently and effectively.” Id. at 419-20 (“[W]hile the First Amendment invests public
employees with certain rights, it does not empower them to ‘constitutionalize the employee
grievance.’” (quoting Connick v. Myers, 461 U.S. 138, 154 (1983))).
To balance these interests properly, as well as the public’s interest in receiving the wellinformed views of government employees, the Supreme Court has established a three-part test
for determining whether a public employee’s speech receives constitutional protection. Thus, a
public employee alleging First-Amendment retaliation must show the following: (1) that his
speech was made as a private citizen, rather than pursuant to his official duties; (2) that his
speech involved matters of public concern; and (3) that his interest as a citizen in speaking on the
matter outweighed the state’s interest, as an employer, in promoting the efficiency of the public
services it performs through its employees. Id. at 417-18; see also, e.g., Handy-Clay v. City of
Memphis, 695 F.3d 531, 540 (6th Cir. 2012); Westmoreland v. Sutherland, 662 F.3d 714, 718-19
(6th Cir. 2011). Dismissal under Rule 12(b)(6) is appropriate when a plaintiff fails to state facts
sufficient to make this required showing. Handy-Clay, 695 F.3d at 540-41.
8
Even accepting Crawford’s allegations as true, he failed to allege facts justifying an
inference that he spoke as a private citizen on matters of public concern when he tacitly endorsed
the student petition and recommendation letter and later referenced them in his own application.
1. Standing/Claims-Processing Rules
It is not clear that Crawford can rest his retaliation claim on the speech of another
person—namely, the student who drafted, circulated, and presented the petition and
recommendation letter to school administrators. As a general rule, a plaintiff may only assert his
own injury in fact and “cannot rest his claim to relief on the legal rights or interests of third
parties.” Warth v. Seldin, 422 U.S. 490, 499-500 (1975); Key v. Finks, No. 4:09-CV-00658 JLH,
2010 WL 3515720, at *6 (E.D. Ark. Sept. 1, 2010) (declining First-Amendment protection
where retaliation was alleged to be as a result of someone else’s speech).
Nevertheless,
assuming Crawford can rest his claim based on the student’s petition and recommendation—
through some form of association with the student and his protected speech, see Benison v. Ross,
765 F.3d 649, 658-59 (6th Cir. 2014), or by referencing/adopting the student’s speech in
Crawford’s own application—Crawford still failed to state a claim, as explained below.
2. Sufficiency of the First-Amendment Retaliation Claim
Crawford was not speaking as a “private citizen” on matters of “public concern” in either
the initial student petition and recommendation letter or in his later reference to those documents
within his own application. Drawing all reasonable inferences in Crawford’s favor, the petition
and recommendation formed a hybrid product—aimed squarely at two distinct purposes:
(1) securing a fulltime position for Crawford within the department; and (2) notifying school
administrators about allegations of cheating, poor teaching, and other concerns within the
department, including bad lab experiences. (Doc. 21, ¶¶ 15-16).
9
To the extent the “speech” at issue “recommend[ed] that [Crawford] be promoted to a
full-time position because of [his] superior teaching and tutoring,” (id. at ¶ 15)—it falls outside
the ambit of addressing matters of public concern. See Connick v. Myers, 461 U.S. 138, 147-49
(1983) (holding that “a federal court is not the appropriate forum in which to review the wisdom
of a personnel decision taken by a public agency” and that “one employee’s dissatisfaction” with
hiring or transfer decisions ordinarily does not give rise to a retaliation claim). Put simply,
“the First Amendment does not require a public office to be run as a roundtable for employee
complaints over internal office affairs,” including hiring and promotion decisions. Id. at 149;
see also, e.g., Ezekwo v. N.Y. City Health & Hosps. Corp., 940 F.2d 775, 781 (2d Cir. 1991)
(holding that doctor’s “prolific writings”—whose “primary aim was to protect her own
reputation and individual development as a doctor”—were not protected speech because they did
not touch on matters of public concern); Avgerinos v. Palmyra-Macedon Cent. Sch. Dist.,
690 F. Supp. 2d 115, 134 (W.D.N.Y. 2010) (“[T]he Court finds that plaintiff’s concerns related
to an internal District matter as opposed to a matter of public concern . . . . [P]laintiff’s
alleged complaints focused on his own personal employment application rather than general
complaints of the District’s employment practices.”); Blizer v. Potter, No. 03 CIV. 6124 (DLC),
2005 WL 1107064, at *15 (S.D.N.Y. May 6, 2005) (concluding that plaintiff was not speaking
“‘as a citizen upon matters of public concern,’ but only as an applicant on matters of personal
interest” when he included certain materials in his job application packet (quotation omitted)).
At bottom, where, as here, nothing about the “content, form, [or] context of a given statement”
suggests that it touches on “any matter of political, social, or other concern to the community,”
the statement cannot form the basis of a First-Amendment retaliation claim.
461 U.S. at 146-47; Westmoreland, 662 F.3d at 719.
10
See Connick,
And, to the extent the “speech” at issue “address[ed] student concerns about indifference
to cheating in some physics classes, poor teaching, and other [departmental] concerns,”
(Doc. 21, ¶ 15)—which, if viewed in a light most favorable to Crawford, could involve matters
of public concern—it falls outside the ambit of coming from a “private citizen.” See Garcetti,
547 U.S. at 421. As the Supreme Court has explained, “when public employees make statements
pursuant to their official duties, the employees are not speaking as citizens for First Amendment
purposes.” Id. Courts look to the “content and context” of the speech to determine whether it
was made in connection with an employee’s official duties, including “the impetus for [the]
speech, the speech’s audience, and its general subject matter.” Handy-Clay, 695 F.3d at 540
(quotation omitted).
Other considerations include “whether the statements were made to
individuals ‘up the chain of command,’ and whether the content of the speech is ‘nothing more
than the quintessential employee beef: [that] management has acted incompetently.’”
Id.
(citations omitted).
Here, the speech involved allegations of cheating and poor teaching within the
Department of Biological and Physical Sciences. These allegations, which could involve matters
of public concern, nevertheless were “directly related to [Crawford’s] job responsibilities and
thus, [his] speech was made in [his] capacity as an employee and not as a private citizen.”
See Handy-Clay, 695 F.3d at 541-42.
To be sure, the Court does not have a written job
description outlining Crawford’s duties as an adjunct lecturer; but “[s]peech by a public
employee made pursuant to ad hoc or de facto duties not appearing in any written job description
is nevertheless not protected if it owes its existence to [the speaker’s] professional
responsibilities.” Fox v. Traverse City Area Public Schs. Bd. of Educ., 605 F.3d 345, 348
(6th Cir. 2010) (quotation omitted).
11
Surely statements made (or adopted) by an educator—directly to his superiors—
regarding potential cheating or the quality of teaching fall within the “ad hoc” or “de facto”
responsibilities of that educator. See id. at 349 (determining that teacher’s complaints about
class size, made directly to school administrators, owed their existence to her professional
responsibilities).
The Sixth Circuit routinely finds that similar speech does not receive
constitutional protection because the speaker acted as an employee in voicing those concerns and
not as a “private citizen.” See, e.g., Handy-Clay, 695 F.3d at 541-42 (affirming dismissal of
First-Amendment retaliation claim from public records coordinator regarding “complaints about
obstacles interfering with her ability to produce records”); Weisbarth v. Geauga Park Dist.,
499 F.3d 538, 543-44 (6th Cir. 2007) (concluding that park ranger’s statements about morale and
performance issues were made pursuant to official duties, even though making such statements
was an ad hoc duty not described in the ranger’s official job description); Haynes v. City of
Circleville, 474 F.3d 357, 365 (6th Cir. 2007) (concluding that police officer’s memo to his
superior officer expressing discontent about financial cutbacks and changes to canine-training
program he directed was not protected speech); see also Davis v. McKinney, 518 F.3d 303, 313
(5th Cir. 2008) (collecting out-of-circuit cases).
Things might look differently if, for example, Crawford alleged that he raised his
concerns as stand-alone speech in “[s]worn testimony in judicial proceedings,” Lane v. Franks,
134 S. Ct. 2369, 2379 (2014); in a “letter to the editor,” Pickering v. Bd. of Educ. of Twp. High
Sch. Dist. 205, Will Cnty, Ill., 391 U.S. 563, 566 (1968); to “a number of individuals both inside
and outside [his] department,” Handy-Clay, 695 F.3d at 542; or to an “outside law enforcement
agency,” See v. City of Elyria, 502 F.3d 484, 493 (6th Cir. 2007). But Crawford made no such
allegations.
12
Instead, looking to the overall “content and context” of Crawford’s speech—the Third
Amended Complaint shows that he raised his concerns over alleged student cheating and poor
teacher quality in communications regarding his desire and qualifications for a promotion, sent
directly to those in his chain of command. Thus, the content of his speech “reflects nothing more
than ‘the quintessential employee beef: management has acted incompetently.’” See Haynes,
474 F.3d at 365 (quoting Barnes v. McDowell, 848 F.2d 725, 735 (6th Cir. 1988)). The First
Amendment does not protect this sort of everyday employee grievance, made pursuant to a
public employee’s duties—official, ad hoc, or otherwise. Id.
Because Crawford’s complaint, even liberally construed, does not allege sufficient facts
to infer that he spoke as a “private citizen” on “matters of public concern” in the student petition
and letter of recommendation, the Court need not reach the balancing test first outlined in
Pickering.
Garcetti, 547 U.S. at 418 (“The first [test] requires determining whether the
employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has
no First Amendment cause of action based on his or her employer’s reaction to the speech.”
(citation omitted)).
C. Qualified Immunity
Moreover, even if Crawford had stated a First-Amendment retaliation claim in Count 1
that was plausible on its face, that claim still fails because Dean Hailu, Dean Schneider, and
President Harrison remain cloaked in qualified immunity. Government officials performing
discretionary functions “are generally shielded from civil liability as long as their conduct ‘does
not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.’” Haynes, 474 F.3d at 362 (emphasis added) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)).
13
Crawford points to no case, from this Circuit or any other, in which a court found a
First-Amendment violation based on a public employer’s refusal to promote an employee who
referenced departmental performance issues, directly connected to that employee’s job duties, in
connection with the employee’s desire (and application) for a promotion.
Crawford thus
“is a fortiori unable to satisfy the second prong of the qualified-immunity analysis—that the
constitutional right was clearly established.” See id. at 365.
C. Crawford Has Stated a Claim on Which Relief Can Be Granted as to Count 2.
In contrast, Crawford has stated a claim upon which relief can be granted with respect to
Count 2, which is based on the public expression of his anti-abortion views.
1. Sufficiency of the First-Amendment Retaliation Claim
Crawford’s religiously based speech regarding abortion occurred through his role as a
private citizen—not as an employee. Indeed, the content and context of that speech has nothing
to do with his duties as an adjunct lecturer. The “impetus for [his] speech” (expressing his
religious/political views), “the setting of [his] speech” (public message boards), “the speech’s
audience” (the general public), and “its general subject matter” (abortion) all demonstrate that
Crawford acted while “speaking as a ‘citizen.’” See Handy-Clay, 695 F.3d at 540.
Crawford’s abortion-related speech likewise “touched on matters of public concern.”
Id. at 543. Anti-abortion views (or any views on abortion, for that matter) form quintessential
speech regarding “any matter of political, social, or other concern to the community.” See id.
(quotation omitted); see also Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 256
(6th Cir. 2006) (“Speech made to a public audience, outside the workplace, and involving
content largely unrelated to government employment indicates that the employee speaks as a
citizen, not as an employee, and speaks on a matter of public concern.”).
14
Finally, although in many cases “the [Pickering] balancing test cannot be performed on a
12(b)(6) motion” due to inadequate factual development, Perry v. McGinnis, 209 F.3d 597, 607
(6th Cir. 2000) (quotation omitted), this is not such a case.
The Court “cannot say that
[Crawford] will be unable to show that his interest in First Amendment expression outweighed
[CSCC’s] interest in the efficient operation of his workplace.” Ridpath v. Bd. of Governors
Marshall Univ., 447 F.3d 292, 318 (4th Cir. 2006) (denying university’s motion to dismiss).
Indeed, at this stage of the case, the Pickering balancing test heavily favors Crawford. Id. 2
In addition to pleading factual allegations sufficient to establish that he engaged in
constitutionally protected speech (which he has), Crawford must allege facts sufficient to show
that “an adverse action was taken against [him] that would deter a person of ordinary firmness
from continuing to engage in that [speech]” and that “the adverse action was motivated at least in
part by [his] protected conduct.” Handy-Clay, 695 F.3d at 539 (describing other elements of a
§ 1983 claim for First-Amendment retaliation). Crawford has alleged such facts.
2
Defendants attached several exhibits related to Crawford’s history of referencing other political matters,
including abortion and “Obamacare,” in videos and emails he sent to his students. (Mot. to Dismiss,
Doc. 24, Ex. 1). Defendants argue that these exhibits swing the “balancing” test from Pickering in their
favor. (Id. at PageID 264-66). Crawford opposed CSCC’s attempt to introduce factual material
extraneous to his complaint. (Mot. to Strike, Doc. 25).
Ordinarily, “when a party moves to dismiss an action under Fed. R. Civ. P. 12(b)(6), the court
may only consider the pleadings.” Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997). One
exception to this rule allows defendants to attach documents to a motion to dismiss when “they are
referred to in the plaintiff’s complaint and are central to [his] claim.” Weiner v. Klais & Co., 108 F.3d 86,
89 (6th Cir. 1997) (quotation omitted). This exception exists because “[o]therwise, a plaintiff with a
legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive
document upon which it relied.” Id.
Here, the relevant exhibits (Exhibits A and B) were not “referred to” in Crawford’s complaint,
nor are they “central” to his claim in Count 2. Accordingly, the Court will not invoke the permissive
exception described in Weiner but instead will GRANT Crawford’s motion to strike those exhibits
(Doc. 25). Moreover, while Exhibits C, D, and E—which relate to the student petition and
recommendation letter discussed above—were “referred to” in Crawford’s complaint and “central” to
Count 1, the Court did not consider or rely on those exhibits in granting Defendants’ motion to dismiss
that count. Accordingly, the Court likewise GRANTS Crawford’s motion to strike those exhibits.
15
As the en banc Sixth Circuit noted, examples of “adverse action” that would chill a
person of ordinary firmness from engaging in protected conduct “include discharge, demotions,
refusal to hire, nonrenewal of contracts, and failure to promote.”
Thaddeus-X v. Blatter,
175 F.3d 378, 396 (6th Cir. 1999) (en banc) (emphasis added); see also Rutan v. Republican
Party of Ill., 497 U.S. 62, 75 (1990) (“[P]romotions, transfers, and recalls after layoffs based on
political affiliation or support are an impermissible infringement on the First Amendment rights
of public employees.”); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007) (holding that
“denying an employee a promotion is an adverse employment action” for First-Amendment
purposes); Suppan v. Dadonna, 203 F.3d 228, 234-35 (3d Cir. 2000) (holding that failure to
promote constitutes an adverse action that would chill a person of ordinary firmness). Whether
CSCC’s decision to hire Professor Baretto instead of Crawford is viewed as a refusal to hire or a
failure to promote—it marks a classic example of an adverse employment action that would chill
a person of ordinary firmness from exercising his or her constitutional right to free speech.
And, as Crawford’s complaint adequately alleges, the adverse action was motivated at
least in part by his protected speech. According to the complaint, which the Court must accept
as true, Dean Schneider wrote to Jack Cooley, Senior Vice-President for Academic Affairs, on
December 20, 2013, and informed him that “if a full-time position were ‘ever to materialize,
Thomas Crawford may not be suitable for the position’ because he “places anti-abortion
literature and objects around campus.” (Doc. 21, ¶ 27). Dean Schneider followed up by noting
that the administration would “continue to monitor Dr. Crawford’s extra-curricular activities,”
and the complaint alleges that “Defendants Schneider and Hailu did monitor [Crawford’s]
activities of posting materials in public spaces on campus.” (Id. at ¶ 28). Just six months later,
that full-time position did “materialize,” but Crawford was passed over for it.
16
In most cases, “[a] defendant’s motivation for taking action against the plaintiff is . . . a
matter best suited for the jury.” Handy-Clay, 695 F.3d at 545 (quotation omitted). As such,
a plaintiff pleads sufficient factual allegations to withstand a motion to dismiss under
Rule 12(b)(6) where “there is enough evidence . . . to support the proposition that the defendants
knew of [the plaintiff’s] protected speech” and “the chronology of events supports an inference
of causation.” Id. at 545-46. Here, Crawford’s complaint satisfies both factors. The complaint
alleges that Dean Schneider and Dean Hailu knew of Crawford’s anti-abortion postings, and the
chronology of events (warning, then monitoring, followed by a refusal to hire/failure to promote)
supports an inference of causation.
The defendants do not seriously contest any of these points; instead, they simply contend
that Crawford’s allegations regarding his public postings on campus were too vague and
conclusory to satisfy the “heightened” pleading standards announced in Twombly and Iqbal.
(Doc. 24, PageID 264-66). The Court disagrees. Even after Twobly and Iqbal, plaintiffs need
only allege facts that “‘state a claim to relief that is plausible on its face’ and that, if accepted as
true, are sufficient to ‘raise a right to relief above the speculative level.’” See Handy-Clay,
695 F.3d at 538 (quoting Twombly, 550 U.S. at 555, 570). Crawford has satisfied this burden.
See Sensations Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008) (“Federal Rule of
Civil Procedure 8(a)(2) requires only a ‘short and plain statement of the claim showing that the
pleader is entitled to relief.’ 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 Erickson v. Pardus, 500 U.S. 89, 93 (2007))). Crawford was required to allege that he
placed anti-abortion postings around campus; he was not required to describe, in precise detail,
what each of those postings said or on which precise bulletin boards he posted them.
17
2. Qualified Immunity
As the discussion above demonstrates, the individual defendants are not entitled to
qualified immunity on Count 2 at this stage of the case. By August 2014, clearly established
federal law held that public employers could not take adverse actions against their employees for
exercising their right to speak on issues of public importance in circumstances closely analogous
to those alleged here. Pickering, 391 U.S. at 574 (“[I]n a case such as the present one, in which
the fact of employment is only tangentially and insubstantially involved in the subject matter of
the public communication made by a teacher, we conclude that it is necessary to regard the
teacher as the member of the general public he seeks to be.”); Scarbrough, 470 F.3d at 253, 263
(denying qualified immunity to school administrators who refused to reappoint county school
superintendent after he agreed to be “the featured speaker at a convention sponsored by a church
with a predominantly homosexual congregation”).
Make no mistake: “because Pickering and Connick require courts to balance competing
interests to determine if an employee’s speech is protected,” it might seem “unclear to a
reasonable official what the outcome of the balancing inquiry should be” in many cases.
Scarbrough, 470 F.3d at 263 (quotation omitted). This counsels in favor of affording officials
qualified immunity. Id. Nevertheless, “the greater the speech’s relationship to a matter of public
concern and the more minimal the effect on office efficiency the more likely a reasonable person
would be to understand that the employer’s actions violated the Constitution.” Id. And where,
as here, “the scene painted by the [operative] Complaint is crystal clear”—in that “the
Administrators retaliated against [an adjunct lecturer] for making protected statements that they
did not like”—it “would be difficult to fathom” a clearer constitutional violation. Ridpath,
447 F.3d at 321 (denying qualified immunity at motion-to-dismiss stage).
18
Crawford’s right to express himself was clearly established by August 2014, and thus, the
individual college administrators are not entitled to qualified immunity on Count 2 of the
Third Amended Complaint.
D. Crawford Has Stated a Claim on Which Relief Can Be Granted as to Count 3 Because
the Age Discrimination in Employment Act (“ADEA”) Does Not Provide the Exclusive
Federal Remedy for Age Discrimination in Employment.
Crawford also stated a claim upon which relief can be granted with respect to Count 3,
which alleged age discrimination in violation of the Equal Protection Clause of the Fourteenth
Amendment.
1. Sufficiency of the Age-Discrimination Claim Under the Fourteenth Amendment
The Equal Protection Clause provides that “no state shall . . . deny to any person within
its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. To state an
equal-protection claim, a plaintiff need only plead “that the government treated the plaintiff
‘disparately as compared to similarly situated persons and that such disparate treatment either
burdens a fundamental right, targets a suspect class, or has no rational basis.’” Ctr. for BioEthical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (emphasis added)
(quoting Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby Mich., 470 F.3d 286,
299 (6th Cir. 2006)). Although “age is not a suspect classification under the Equal Protection
Clause,” States may discriminate on the basis of age without violating the Fourteenth
Amendment only “if the age classification in question is rationally related to a legitimate state
interest.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000). Here, Crawford has alleged
sufficient facts to state an equal-protection claim based on age-discrimination—i.e., he
adequately pleaded that CSCC denied him the fulltime tenure track position in favor of a lessqualified (albeit younger) applicant for no rational basis. (Doc. 21, ¶¶ 29-36, 48-51).
19
2. Potential Preclusion Under the ADEA
The defendants do not contest the sufficiency of the allegations contained in Crawford’s
constitutional claim. Instead, they argue that the ADEA precludes his § 1983 equal-protection
claim altogether. (Doc. 24, PageID 267-68). Although Defendants find support in a number of
appellate decisions which hold that the ADEA does preclude age-discrimination claims under the
Fourteenth Amendment, the Sixth Circuit has never addressed this issue, and a recent opinion
from the Seventh Circuit persuasively held that the ADEA does not preclude such claims. In the
absence of binding authority from the Supreme Court or the Sixth Circuit, this Court will follow
the well-reasoned opinion in Levin v. Madigan, 692 F.3d 607 (7th Cir. 2012), in holding that the
ADEA does not foreclose Crawford’s constitutional age-discrimination claim.
The Supreme Court has held, on several occasions, that a detailed statutory scheme can
preclude claims brought under § 1983 that assert other statutory or constitutional violations.
See, e.g., Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20 (1981)
(precluding plaintiffs from bringing § 1983 actions based on violations of two federal maritime
statutes because both Acts “provide quite comprehensive enforcement mechanisms”); City of
Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 119 (2005) (precluding plaintiffs from
bringing § 1983 actions under the Telecommunications Act of 1996 because the statute provided
its own, more restrictive judicial remedy); Smith v. Robinson, 468 U.S. 992, 1009 (1984)
(holding that Congress intended the Education of the Handicapped Act “to be the exclusive
avenue through which a plaintiff may assert an equal protection claim to a publicly financed
special education”); Preiser v. Rodriquez, 411 U.S. 475, 477 (1973) (finding § 1983
constitutional claims for good-time prison credits foreclosed by federal habeas corpus statutes).
20
Despite these cases, the Supreme Court “does not ‘lightly conclude that Congress
intended to preclude reliance on § 1983 as a remedy’ for the deprivation of a federal right.”
Levin, 692 F.3d at 613 (quoting Smith, 468 U.S. at 1012). Indeed, the Court has rejected similar
§ 1983 preclusion arguments in several other cases, including those involving Title IV-D of the
Social Security Act, the Medicaid Act, the Department of Housing and Urban Development’s
generalized powers under its regulations and an amendment to the Fair Housing Act, and Title
IX of the Education Amendments of 1972. Id. (collecting cases).
Congressional intent forms the crux of any § 1983 preclusion analysis, and that intent can
be gleaned “from the language of the statute and legislative history, the statute’s context, the
nature and extent of the remedial scheme, and a comparison of the rights and protections
afforded by the statutory scheme versus a § 1983 claim.” Id. at 615 (citations omitted). Based
on these factors, and in the absence of a controlling decision from the Supreme Court, the circuit
courts have split over whether the ADEA precludes § 1983 actions that raise age-discrimination
claims under the Equal Protection Clause. Compare, e.g., Zombro v. Baltimore City Police
Dep’t, 868 F.3d 1364 (4th Cir. 1989) (finding that the ADEA precludes a § 1983 equalprotection claim), and Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051 (9th Cir. 1999)
(same), with Levin, 692 F.3d at 621-22 (“In light of our analysis of the ADEA and the relevant
case law, and given these divergent rights and protections, we conclude that the ADEA is not the
exclusive remedy for age discrimination in employment claims.”). District courts in circuits that
have not weighed in on this issue remain split as well. Compare, e.g., Shapiro v. N.Y. City Dep’t
of Educ., 561 F. Supp. 2d 413 (S.D.N.Y. 2008) (finding no preclusion), and Mustafa v. Neb.
Dep’t of Corr. Servs., 196 F. Supp. 2d 945 (D. Neb. 2002) (same), with Kelley v. White,
No. 5:10-cv-288, 2011 WL 4344180 (E.D. Ark. Sept. 15, 2011) (finding preclusion).
21
The Sixth Circuit has never determined whether the ADEA precludes § 1983 actions
alleging age discrimination under the Equal Protection Clause. The court has, however, held that
the ADEA precludes § 1983 actions alleging statutory violations of the ADEA itself, albeit in an
unpublished, and thus non-binding, decision from 1996. Janes v. Bardstown City Schs. Bd. of
Educ., 97 F.3d 1452, 1996 WL 536794, at *4 (6th Cir. 1996) (unpublished table decision)
(“Mrs. Janes may not bring her ADEA claim under § 1983. The detailed statutory remedy
created by the ADEA constitutes the exclusive means for enforcement of the Act.”). The Janes
decision, short as it was, makes sense because “the ADEA enacts a comprehensive statutory
scheme for enforcement of its own statutory rights, akin to Sea Clammers and Rancho Palos
Verdes.” Levin, 692 F.3d at 617 (emphasis added) (agreeing that the ADEA precludes § 1983
actions that allege violations of the ADEA itself). Thus, in Janes, the court found the plaintiff’s
§ 1983 claim (predicated on the ADEA itself) precluded by the ADEA because she failed to avail
herself of the administrative remedies provided by the statute. Janes, 1996 WL 536794, at *4.
Nevertheless, whether the ADEA precludes § 1983 actions alleging constitutional claims, like
Crawford’s, remains an open issue in this Circuit.
Given this lack of binding authority, coupled with a split of opinion between both the
other circuit courts and district courts that lack guidance from on-high, this Court opts to follow
the Seventh Circuit in Levin in holding that the ADEA does not preclude § 1983 actions alleging
constitutional violations. The Court agrees that a fair reading of the statutory text and legislative
history, coupled with a comparison of the rights and protections afforded under the ADEA and
the Constitution, all demonstrate that Congress did not intend for the ADEA to preclude § 1983
actions that seek to vindicate constitutional rights. Levin, 692 F.3d at 617-22.
22
Take, for example, the statutory text and legislative history of the ADEA as analyzed in
Levin. As the Seventh Circuit there concluded, “[n]othing in the text of the ADEA expressly
precludes a § 1983 claim or addresses constitutional rights. Nor does the legislative history
provide clear guidance on this issue.” Id. at 617-18 & n.3. (citations omitted). Rather than
foreclosing constitutional grievances altogether, “Congress’s silence on the issue tells [courts]
nothing about preclusion.”
Id. at 618.
And while the ADEA does “set[] forth a rather
comprehensive remedial scheme,” by “provid[ing] a private right of action, requir[ing] notice
and exhaustion of remedies, and limit[ing] the damages available under the Act,” this scheme
speaks solely “as to how Congress intended allegations of statutory age discrimination to
proceed.” Id. The ADEA does not, however, “purport to provide a remedy for violation of
federal constitutional rights,” and “no express language indicates that Congress intended to
foreclose relief under § 1983 for constitutional violations.” Id. (quotation omitted). Under these
circumstances, the Court cannot presume that Congress repealed by implication rights enshrined
in the Federal Constitution. Id. (“[T]he Supreme Court has emphasized on several occasions that
‘repeals by implication are not favored and will not be presumed unless the intention of the
legislature to repeal is clear and manifest.’” (quoting Hui v. Castaneda, 559 U.S. 163, 175
(2009))).
Take also, for example, a comparison of the rights and protections afforded under the
ADEA and the Constitution. As set forth in the Levin rationale, “the rights and protections
afforded by the ADEA and § 1983 equal protection claims diverge in a few significant ways,”
thus undercutting any argument in favor of preclusion. Id. at 621. First, an ADEA plaintiff may
sue only his employer, an employment agency, or a labor organization, see 29 U.S.C. § 623,
whereas a § 1983 plaintiff may sue any individual, “so long as that individual caused or
23
participated in the alleged deprivation of the plaintiff’s constitutional rights,” Levin, 692 F.3d at
621. Section 1983 plaintiffs may also sue municipal governments under limited circumstances.
Id. These “divergent rights” as to whom a plaintiff may sue “seriously affect a plaintiff’s choice
of defendants and his strategy for presenting a prima facie case.” Id. Second, the ADEA limits
or exempts claims by certain individuals, including elected officials and certain members of their
staff, appointees, law enforcement officers, and firefighters. See 29 U.S.C. §§ 623(j), 639(f).
And the ADEA prohibits claims by employees under the age of forty or those bringing reverse
age discrimination claims. See Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 593
(2004). Section 1983 Equal-Protection claims, in contrast, carry “no such limitations.” Levin,
692 F.3d at 621. Finally, and most relevant here, “state employees suing under the ADEA are
left without a damages remedy, as such claims are barred by Eleventh Amendment sovereign
immunity.” Id. (citing Kimel, 528 U.S. at 91-92). Thus, “[w]ithout the availability of a § 1983
claim, a state employee [like Crawford] who suffers age discrimination in the course of his
employment is left without a federal damages remedy,” while a similarly-situated municipal
employee would suffer no similar deprivation of his or her constitutional rights and remedies.
Id.; see also Mustafa, 196 F. Supp. 2d at 955 (“[T]he practical effect [of ADEA preclusion] is
elimination of all age discrimination claims made against state actors in federal court.”). In the
absence of congressional intent to that effect, this result seems particularly strange.
All told, in light of the statutory text and legislative history of the ADEA, as well as a
close comparison of the rights and protections afforded under the ADEA and the Fourteenth
Amendment, the Court agrees that “the ADEA is not the exclusive remedy for age discrimination
in employment claims.” Levin, 692 F.3d at 621. To the contrary, plaintiffs may continue to
bring § 1983 actions that allege unconstitutional age discrimination.
24
3. Qualified Immunity
The defendants’ qualified-immunity argument similarly lacks merit. 3 Defendants argue
that because there was no “clearly established law supporting Crawford’s attempt to assert an age
discrimination claim . . . under 42 U.S.C. § 1983, the individual defendants are also entitled to
qualified immunity.” (Doc. 24, PageID 268 (emphasis added)). This argument unnecessarily
conflates matters.
Qualified immunity depends on whether a particular right is clearly
established, not whether “a particular procedural vehicle (i.e., cause of action) is available.”
Levin, 692 F.3d at 622 (quotation omitted). The Supreme Court had clearly established the right
to be free from irrational age discrimination by the time of the officials’ alleged conduct. Id.
(citing Kimel, 528 U.S. at 83). Thus, “[w]hether or not the ADEA is the exclusive remedy for
plaintiffs suffering age discrimination in employment is irrelevant.” Id. Indeed, it would seem
“odd” to afford the officials qualified immunity in this case, where any legal uncertainty “arises
from the fact that Congress created a statutory remedy for age discrimination that is substantively
broader than the equal protection clause.”
Id. (quotation omitted).
Because Crawford’s
constitutional right to be free from irrational age discrimination was clearly established at the
time of the alleged injury, the individual defendants are not entitled to qualified immunity.
IV. CONCLUSION
For these reasons, the Court GRANTS IN PART and DENIES IN PART CSCC’s
motion to dismiss (Doc. 24). The Court likewise GRANTS Crawford’s motion to strike CSCC’s
appended exhibits (Doc. 25). Crawford’s suit may proceed against the individual defendants
(but not CSCC) as to Counts 2 and 3 from the Third Amended Complaint.
3
Beyond asserting that the ADEA precludes a § 1983 claim, the individual defendants do not challenge
the first prong of the qualified immunity analysis—i.e., whether the facts (as alleged) show that the
defendants violated Crawford’s constitutional right. Accordingly, the Court will only address the second
prong of the qualified immunity analysis—whether that right was “clearly established.”
25
IT IS SO ORDERED.
/s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: July 11, 2016
26
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