Morreim v. University of Tennessee et al
Filing
44
ORDER granting 32 Motion to Dismiss for Lack of Subject Matter Jurisdiction and for Failure to State a Claim. Signed by Judge S. Thomas Anderson on 10/17/13.(Anderson, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
ELIZABETH HAAVIK
MORREIM, J.D., Ph.D.,
)
)
)
Plaintiff,
)
)
v.
)
No. 12-2891-STA-dkv
)
THE UNIVERSITY OF TENNESSEE; )
THE UNIVERSITY OF TENNESSEE
)
HEALTH SCIENCE CENTER;
)
THE UNIVERSITY OF TENNESSEE
)
COLLEGE OF MEDICINE; GUY
)
REED, M.D. (Individually and in his
)
Official Capacity); POLLY
)
HOFFMAN, Ph.D., (Individually and in )
her Official Capacity); DAVID
)
STERN, M.D., (Individually and in his
)
Official Capacity); CHERYL
)
SCHEID, Ph.D., (Individually and in
)
her Official Capacity); STEVE
)
SCHWAB, M.D. (Individually and in his )
Official Capacity), JOSEPH
)
DiPIETRO, D.V.M, M.S. (Individually )
and in his Official Capacity),
)
)
Defendants.
)
______________________________________________________________________________
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
______________________________________________________________________________
Before the Court is Defendants’ Motion to Dismiss for Lack of Subject Jurisdiction and for
Failure to State a Claim (D.E. # 32) filed on March 4, 2013. The Court previously granted Plaintiff
Elizabeth Haavik Morreim, J.D., Ph.D. a two-month extension of time in which to respond to
Defendants’ Motion while the parties pursued settlement negotiations. Plaintiff responded in
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opposition (D.E. # 38) on May 30, 2013, and Defendants have filed a reply brief (D.E. # 43).
Defendants’ Motion is now ready for disposition. For the reasons set forth below, the Motion is
GRANTED.
BACKGROUND
I. The Amended Complaint
For purposes of Defendants’ Rule 12(b) Motion, the Court accepts as true the following
factual allegations from Plaintiff’ Amended Complaint (D.E. # 22). Plaintiff was at all relevant
times employed by the University of Tennessee (“UT”)1 as a tenured, full professor and member of
the faculty in good standing. (Am. Compl. ¶ 1.) Dr. Morreim joined the UT faculty on July 1, 1984.
(Id. ¶ 13.) Dr. Morreim’s fields of teaching and scholarship are philosophical bioethics and health
law. (Id. ¶ 14.) Dr. Morreim was hired, tenured, and promoted to teach primarily in the Department
of Pediatrics with additional participation in the Department of Internal Medicine and other
departments throughout UT. (Id. ¶ 15.) Over the twenty-eight (28) years of Dr. Morreim’s service
to UT, she has provided teaching services for such departments as Pediatrics, Internal Medicine,
Orthopedics, Pathology, Psychiatry, Preventive Medicine, and Surgery. (Id. ¶ 16.)
Dr. Morreim was awarded tenure at UT, effective July 1, 1990, in the (then-existing)
Department of Human Values and Ethics (“HVE”). (Id. ¶ 17.) The award of tenure protects “base
salary” at UT, (Faculty Handbook § 4.7.2(4)); “base” salary is distinguished from supplemental
1
The University of Tennessee, the University of Tennessee Health Science Center, and
the University of Tennessee College of Medicine are all named as Defendants in this action. For
the sake of clarity and simplicity, the Court will refer to these parties collectively as “UT.”
2
compensation such as pay for directing a program. (Id. ¶ 18.)2 By implication, so long as a faculty
member is tenured at UT, the institution must pay the entire amount of that faculty member’s base
salary. (Id. ¶ 19.) One hundred percent (100%) of Dr. Morreim’s salary is base salary; therefore,
UT is obligated to pay 100% of Dr. Morreim’s salary, so long as she is tenured. (Id. ¶ 20.) Dr.
Morreim was promoted to (full) Professor at UT, effective July 1, 1993, in the (then-existing)
Department of HVE. (Id. ¶ 21.)
For twenty-four (24) consecutive years, Dr. Morreim’s annual evaluations were
“outstanding” or “exceeds expectations,” the highest possible rating under UT’s evaluation system.
(Id. ¶ 22.) Dr. Morreim has been, and continues to be, a highly effective teacher and scholar,
authoring two books and over 140 book chapters and articles in journals of law, medicine, and
bioethics. (Id. ¶ 23.) Dr. Morreim’s legal scholarship has been cited by numerous courts, including
state supreme courts and various federal courts. (Id. ¶ 24.) Her works have been cited in numerous
appellate briefs, including briefs to the Supreme Court of the United States. (Id.)
A. Reassignment to the Department of Internal Medicine
In February 2009, Dr. Steve Schwab who was then Dean at UT proposed to the UT Board
of Trustees that the entire Department of HVE be discontinued, stating to the Trustees that the
Department had “minimal funded research programs” and “limited teaching of medical students,”
and that the long-term effects of eliminating the ethics department were “anticipated to be minimal.”
(Id. ¶ 25.) In a May 2009 meeting, Dr. Schwab informed members of the Department of HVE that
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Plaintiff’s allegations about tenure and the legal effect of a faculty member receiving
tenure are arguably conclusions of law in this case. The Court simply recites these allegations
here to provide a complete and accurate rendition of Plaintiff’s claim for relief in the Amended
Complaint.
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in a “consolidation” move, the Department would be dissolved and its members would be placed
in the Department of Internal Medicine, chaired by Dr. Guy Reed. (Id. ¶ 26.) In the same May 2009
meeting, upon direct questioning by Dr. Terry Ackerman, who was serving as the chair of the
Department of HVE, Dr. Schwab assured HVE members that they could continue to provide
teaching services throughout the UT College of Medicine. (Id. ¶ 27.) In the transition from HVE
into Internal Medicine, UT preserved the HVE department’s financial code—E07-3985; financially,
the three (3) members of HVE thus remain a “unit” within UT, much like a division within a
department. (Id. ¶ 28.)
On July 31, 2009, Dr. Morreim met with Dr. Reed at his request and in the presence of Dr.
Polly Hofmann, the associate dean, to discuss goals for the forthcoming academic year. (Id. ¶ 29.)
Dr. Reed demanded that Dr. Morreim find a way to pay for at least 25% of her base salary at UT
through extramural grants or other consulting activity. (Id.) Dr. Morreim advised Dr. Reed that this
expectation was not appropriate because (a) grant money was virtually nonexistent for her scholarly
fields, and more importantly, (b) since 100% of Dr. Morreim’s salary is base salary, UT could not
require Dr. Morreim to seek other sources to pay the salary that UT alone owed her. (Id. ¶ 30.)
Although Dr. Morreim maintains that, as a tenured full professor, she is under no obligation
whatsoever to secure outside salary support, during a meeting with Dr. Reed on October 26, 2009,
she nevertheless offered several ideas that could potentially lead to outside salary support. (Id. ¶
33.) All of these suggestions were flatly rejected by Dr. Reed. (Id.)
Dr. Morreim additionally advised Dr. Reed (and subsequently other administrators) that the
putative grant funding for “bioethics” research is almost entirely for social science research. (Id.
¶ 31.) A brief, unusual exception appeared in 2009, as part of the ARRA federal stimulus funding,
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which went to approximately 4 or 5 areas of philosophical bioethics research; however, none of
those grant-funded research topics fell within Dr. Morreim’s areas of expertise and research focus.
(Id.) To further support the fact that grant money in her field was virtually nonexistent, Dr. Morreim
provided three (3) letters for UT administrators in 2011, attesting that research grant funding was
almost completely nonexistent for scholarly legal research and for philosophical bioethics research
and that it would be entirely inappropriate to demand that faculty in these fields find outside funds
to pay their own salaries. (Id. ¶ 32.) These letters came from (a) the Dean of the UT School of Law,
(b) the Dean of the University of Memphis School of Law, and (c) the head of the UT philosophy
department. (Id.)
B. Dr. Morreim’s First “Unsatisfactory” Annual Evaluation
During these initial meetings in July and October 2009 and in subsequent meetings, Dr. Reed
also identified teaching expectations that would have effectively precluded Dr. Morreim from
continuing her extensive teaching activities in the Department of Pediatrics—the department for
which she had been hired, tenured, and promoted to offer her primary teaching services. (Id. ¶ 34.)
On October 14, 2010, Dr. Reed issued to Dr. Morreim an “unsatisfactory” evaluation for the 20092010 academic year, based solely on his own unilaterally-issued and largely unlawful demands
rather than on “agreed-upon,” “mutually established” goals required by the Faculty Handbook. (Id.
¶ 35.) Dr. Reed’s evaluation also included a remediation plan developed solely and unilaterally by
Dr. Reed. (Id.) His remediation plan, which was identical to his previous list of demands, ran
directly contrary to Faculty Handbook § 4.16.3, which states that the “the Chair and the tenured
faculty member must develop a written plan” of remediation. (Id.) (emphasis in original).
On October 29, 2010, Dr. Morreim initiated a grievance appeal of her first “unsatisfactory”
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rating, presenting the appeal in accordance with Faculty Handbook § 7.2 to Dr. J. Lacey Smith, who
served as the Interim Dean at that time. (Id. ¶ 36.) On December 2, 2010, Dr. Smith upheld the
negative evaluation without explanation, purportedly because he was waiting on legal advice from
“our legal folks.” (Id.) On December 7, 2010, Dr. Morreim sent her appeal to Dr. Cheryl Scheid,
Vice-Chancellor for Academic Affairs, per Faculty Handbook § 7.2. (Id. ¶ 37.) On January 11,
2011, Dr. Scheid denied the appeal based largely on recitals regarding the department chair’s
authority to assign faculty workloads under Faculty Handbook § 4.4.1. (Id.) Contrary to Dr.
Scheid’s reasoning, nowhere does the Faculty Handbook permit “work/workload assignment” to
figure into a Chair’s annual evaluation. (Id.)
On January 26, 2011, Dr. Morreim sent the grievance appeal to Chancellor Dr. Schwab. (Id.
¶ 38.) He responded on March 1, 2011, stating that “[o]verturning a chair’s evaluation requires a
compelling procedural or factual discrepancy” and finding no such compelling reason in Dr.
Morreim’s case. (Id.) On March 11, 2011, Dr. Morreim appealed to UT President Joseph DiPietro
in Knoxville, Tennessee. (Id. ¶ 39.) Six and a half months later, on September 29, 2011, Dr.
DiPietro declined to overturn the negative evaluation. (Id.) He cited a sentence-fragment from the
definition of “unsatisfactory” in the Faculty Handbook § 8.2(1)(b): “failure to perform satisfactorily
the duties or responsibilities of the faculty position” – and stated that this “makes no reference to
mutually established goals.” (Id.) He further cited the department chair’s authority to make work
assignments and assign effort allocation. (Id.)
C. Dr. Morreim’s Second “Unsatisfactory” Annual Evaluation
After a second annual meeting with Plaintiff on August 11, 2011, Dr. Guy Reed issued Dr.
Morreim an “unsatisfactory” evaluation dated August 19, 2011 for the 2010-2011 academic year.
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(Id. ¶ 40.) Just as before, the evaluation was based solely on Dr. Reed’s unilaterally-issued and
largely unlawful demands rather than on the “agreed-upon,” “mutually established” goals required
by the Faculty Handbook. (Id.) Dr. Reed also based the evaluation on a review of scholarship
dating back to 2007, contrary to Handbook requirements that each evaluation focus exclusively on
the specific year at hand. (Id.) Dr. Reed’s evaluation again included a remediation plan developed
solely and unilaterally by Dr. Reed. (Id.) The remediation plan was identical to Dr. Reed’s previous
list of demands and was again issued in direct contravention to Faculty Handbook § 4.16.3, which
states that the “the Chair and the tenured faculty member must develop a written plan” of
remediation (emphasis added). (Id.)
According to the pleadings, Dr. Reed’s second “unsatisfactory” evaluation also contained
incorrect factual assertions. (Id. ¶ 41.) For instance, it stated that a “review of PubMed shows 1
paper (Am J Bioeth) since 2008” and “only 2 papers” in the “Web of Knowledge” database since
2007. (Id.) He added that Web of Knowledge is “a citation database with multi-disciplinary
coverage of over 10,000 high-impact journals in the sciences, social sciences, and arts and
humanities.” (Id.) However, in fact, (a) PubMed (an exclusively medicine/science-focused
database) shows three (3) Morreim publications after 2008, not just one (1), and five (5) Morreim
publications from 2008 and later (not counting a 2012 publication that would not have shown in
2011); (b) Web of Knowledge’s “Arts and Humanities” journal list is comprised almost exclusively
of science journals; and, (c) in any case, it is inappropriate to evaluate the quality and quantity of
scholarship in health law and philosophical bioethics according to whether the author’s work
appears in science databases such as PubMed and Web of Knowledge. (Id.)
On September 6, 2011, Dr. Morreim appealed the second “unsatisfactory” evaluation to
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(recently installed) Dean Dr. David Stern. (Id. ¶ 43.) He failed to respond within the 30-day period
required under Faculty Handbook § 7.2. (Id.) Belatedly and following Dr. Morreim’s next-step
appeal to Dr. Scheid, Dr. Stern sent an email on October 18, 2011, stating that he would have denied
the appeal and citing Dr. DiPietro’s letter of September 29, 2011. (Id.) On October 11, 2011, Dr.
Morreim appealed the second “unsatisfactory” evaluation to Dr. Scheid. (Id. ¶ 44.)
D. The Cumulative Performance Review
In October 2011, after two (2) “unsatisfactory” evaluations within a five-year period and
pursuant to Faculty Handbook § 4.16.4, Dean Dr. Stern convened a “Cumulative Performance
Review” (CPR) committee. (Id. ¶ 45.) Per Faculty Handbook § 4.16.4, a CPR committee is
required to undertake a “comprehensive, formal, cumulative performance review” to determine
whether or not a faculty member “satisfies” or “fails to satisfy expectations for rank.” (Id. ¶ 46.) For
the rank of Professor, the CPR committee is instructed to use the expectations for rank provided in
Faculty Handbook § 6.1.4. (Id.) In her communication to the committee at the outset of its
deliberations, Dr. Hofmann expressly charged its members with following these specific Handbook
provisions. (Id.)
During the process of convening the CPR committee, Dr. Stern attempted improperly to
influence the committee’s composition and thereby its outcome, first by vetoing a Faculty Senate
nominee—a J.D./M.D. who, as the only other J.D.-degreed professor in the College of Medicine,
was uniquely qualified to properly evaluate Dr. Morreim’s legal scholarship—and additionally by
attempting to insert a basic science Ph.D. professor who had no expertise whatsoever in either legal
scholarship or in philosophical bioethics. (Id. ¶ 47.) In a meeting and in a document provided to
Dr. Stern on October 18, 2011, Dr. Morreim requested that the CPR committee be constituted
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properly in accordance with Faculty Handbook § 4.16.4. (Id. ¶ 48.) He subsequently withdrew his
insertion of the basic science Ph.D. professor but maintained his veto of the J.D./M.D. member. (Id.)
During a meeting with Dr. Scheid on November 3, 2011, regarding the appeal of her second
“unsatisfactory” evaluation, Dr. Morreim and Dr. Scheid mutually agreed to suspend the appeal,
pending the report of the CPR committee. (Id. ¶ 49.) Notwithstanding Dr. Stern’s attempts to
manipulate the CPR committee’s membership and thereby influence its findings, the CPR committee
relayed to Dr. Stern on January 17, 2012, its unanimous and unequivocal finding that Dr. Morreim
“satisfies expectations for rank” in every respect. (Id. ¶ 50.) At no point did UT, its administrators,
or officers inform Dr. Morreim about the uniformly favorable findings of the CPR committee. (Id.
¶ 51.) Dr. Morreim did not learn about the findings until seven (7) months later on August 9, 2012,
when she inspected her personnel files at the office of Dr. Scheid. (Id.)
With full knowledge that the CPR committee unanimously found that Dr. Morreim satisfied
all expectations for rank, Dr. Stern directed Dr. Scheid on May 24, 2012, to initiate proceedings to
revoke Dr. Morreim’s tenure, stating that his primary concern was to enforce the “authority of the
Chair.” (Id. ¶ 52.) Dr. Morreim did not learn of this directive until months later, and only because
she had taken the initiative to inspect her own personnel file on August 9, 2012. (Id.) Although the
CPR committee correctly focused on Dr. Morreim’s “cumulative,” “comprehensive” performance
as required by Faculty Handbook § 4.16.4 and § 6.1.4, and as captured in the express charge given
to them by Dr. Hofmann, Dr. Stern ignored the CPR committee’s findings because in his opinion
the committee should have focused solely on Dr. Reed’s demands and findings during the two years
of Dr. Morreim’s membership in the Internal Medicine Department. (Id. ¶ 53.) In other words, Dr.
Stern criticized the CPR committee for adhering to handbook requirements instead of following Dr.
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Stern’s preference and violating handbook requirements to accomplish his objective. (Id.)
At a meeting on August 17, 2012, and in a follow-up letter dated August 21, 2012, Dr.
Morreim asked Dr. Scheid to reactivate the October 11, 2011, grievance appeal for the second
“unsatisfactory” rating that, by mutual agreement, had been “on the shelf” since their meeting of
November 3, 2011, pending the report of the CPR committee. (Id. ¶ 54.) Although Dr. Scheid could
have used the CPR committee’s favorable finding as an opportunity to overturn that negative
evaluation as early as January 2012—thereby preempting Dr. Stern’s May 25, 2012 decision to seek
tenure revocation—she chose not to do so. (Id.) Following Dr. Morreim’s August 21, 2012 letter,
which clearly pointed out the unlawful demands and false statements in Dr. Reed’s second
evaluation, Dr. Scheid again chose, this time by prolonged silence, not to overturn the
“unsatisfactory” rating. (Id.)
D. Dr. Strong’s 2011 Raise
Effective July 1, 2011, Dr. Carson Strong, Plaintiff’s colleague from the former Department
of HVE, received a salary increase of $15,242, to reach a total salary of $120,078. (Id. ¶ 42.) Dr.
Strong’s activities and accomplishments were equal to and no greater than Dr. Morreim’s activities
and accomplishments during the 2010-2011 year and previously. (Id.) Dr. Morreim received only
UT’s system-wide 3% salary increase, compared to Dr. Strong’s nearly 15% increase. (Id.)
E. Plaintiff’s Causes of Action
According to the Amended Complaint, UT and its officers and administrators have made it
clear that they intend to revoke Dr. Morreim’s tenure. (Id. ¶ 55.) Defendants plan to revoke her
tenure, take her job, and thereby take her property without due process. (Id.) Plaintiff alleges that
these are ongoing violations of federal statutory and federal constitutional laws and that these federal
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statutory and federal constitutional rights are clearly established and are known by reasonable
persons. (Id.) According to the Amended Complaint, from October 2009 on, Dr. Morreim expressly
and directly informed each and every individual Defendant regarding the potential 14th Amendment
implications of their conduct in this matter. (Id.) Dr. Morreim first informed Drs. Reed and
Hofmann on October 26, 2009, via a one-page summary explaining that tenure is property, that UT
officials are state actors, and that the Faculty Handbook is designed to protect due process rights in
this setting. (Id.) She provided the same one-page handout to both parties on subsequent occasions
and likewise provided this same information in every letter of grievance appeal to each and every
other individual Defendant. Thus, all individual Defendants have been made personally and
specifically aware of the potential constitutional implications of their conduct. (Id.)
Given that Dr. Stern clearly seeks to revoke Dr. Morreim’s tenure, the Faculty Handbook
requires additional steps such as seeking a vote from tenured faculty in the relevant department, a
Faculty Senate Grievance Committee proceeding, and a Faculty Senate Tribunal. (Id. ¶ 56.)
However, all these additional procedures, like the CPR committee, are purely advisory, see Faculty
Handbook 8.3.1(2); 8.3.1(5)(b); 8.3.1(10). (Id.) Thus, UT’s internal hearing procedures are
inherently defective as they afford no effective mechanism for protecting the substantive and
procedural due process rights of Dr. Morreim. (Id.) According to the Amended Complaint, given
that Dr. Stern has already chosen to ignore the CPR findings and that he and all Defendants have
chosen to ignore Faculty Handbook requirements at numerous junctures, it is highly unlikely that
faculty votes would influence or dissuade him or the other officials from engaging in unlawful acts.
(Id.) According to Plaintiff then, Defendants have already evidenced an ongoing intent to violate
her federal statutory and federal constitutional rights, and the procedural protections in place at UT,
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as administered, are a “sham,” as they do not provide the level of protection mandated by the United
States Constitution. (Id.)
UT, its administration, and officers have made it clear that they are determined to remove
Dr. Morreim’s tenure by any means necessary. (Id. ¶ 57.) They have insisted that the “authority of
the Chair” takes precedence over all else—notwithstanding clear evidence that Dr. Reed’s demands
are unlawful and inappropriate and that his evaluations are peppered with false statements. (Id.)
Upon information and belief, UT administrators have also decided to effect an alternative strategy
to ensure that Dr. Morreim is stripped of tenure without due process. (Id. ¶ 58.) Instead of
attempting to prove, by clear and convincing evidence, that Dr. Morreim’s performance is so poor
that “just cause” supports revoking tenure, they apparently plan a far simpler, more devious
alternative route toward their determined goal. (Id.) According to the Amended Complaint, at or
about the time Dr. Carson Strong is to retire in December 2012, the “unit” of which Dr. Morreim
is a member, will quite likely be “discontinued” per Faculty Handbook Appendix I. (Id.) In other
words, if the Defendants fail in their efforts to strip Dr. Morreim of tenure based upon “just cause,”
or if they simply embrace an easier course of action requiring fewer procedural steps, Defendants
now plan a subterfuge and pretext of dismantling the “unit” to achieve the same end of terminating
Dr. Morreim. (Id.)
Based on these fact pleadings, the Amended Complaint alleges that Defendants are liable for
violations of Plaintiff’s constitutional rights under 42 U.S.C. § 1983, specifically Plaintiff’s
constitutional property interest in her tenured position with UT, her procedural due process rights,
her substantive due process rights, her equal protection rights, and her First Amendment free speech
rights. Plaintiff seeks prospective injunctive relief, declaratory relief, and money damages under
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§ 1983. Plaintiff further alleges that Defendants have discriminated against her on the basis of her
sex in violation of the Tennessee Human Rights Act (“THRA”). Finally, the Amended Complaint
alleges counts under state law for defamation, breach of contract, breach of the covenant of good
faith and fair dealing, unlawful inducement to breach contract, and tortious interference with
contract.
II. Defendants’ Motion to Dismiss
In their Motion to Dismiss, Defendants seeks dismissal of all of Plaintiff’s claims for lack
of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and
for failure to state a claim pursuant to Rule 12(b)(6). First, Defendants contend that Plaintiff’s
federal claims for violations of her constitutional rights are not ripe. Plaintiff has merely alleged that
Defendants “intend to revoke her tenure” and “plan to revoke her tenure,” occurrences that only
“might happen in the future.” Defs.’ Mem. in Support 7, 10. According to Defendants, Plaintiff
continues to be a full professor of the UT faculty, and her claims are nothing more than hypothetical
at this point. Therefore, the Court should dismiss Plaintiff’s § 1983 claims for ripeness.
Second, Defendants argue that the UT Defendants are entitled to sovereign immunity under
the Eleventh Amendment as to all of Plaintiff’s claims under federal law and state law. For the same
reasons, Plaintiff’s claims against the individual Defendants in their official capacities are also
barred. Third, Defendants argue that the Amended Complaint fails to state a claim against
Defendants Dr. Hofmann, Dr. DiPietro, Dr. Smith, Dr. Schwab, and Dr. Scheid in their individual
capacities. The pleadings did not allege that any of these Defendants took any actions in their
individual capacities to deprive Plaintiff of any constitutional right.
Fourth, with respect to Plaintiff’s remaining § 1983 claims against other Defendants in their
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individual capacities, Defendants argue that the Amended Complaint fails to state a claim for
violations of Plaintiff’s procedural due process rights. A defendant’s failure to follow state-created
procedures does not implicate constitutional rights unless the state’s procedures do not meet the
constitutional minimum. In this case, Defendants contend that Plaintiff’s facial challenge to the
procedures set out in the UT Faculty Handbook should fail. Fifth, the Amended Complaint also fails
to state any claim for violations of Plaintiff’s substantive due process rights, her equal protection
rights, or her right to free speech. The Amended Complaint alleges no violation of any fundamental
right to support Plaintiff’s substantive due process challenge. Furthermore, the pleadings allege no
facts to support Plaintiff’s equal protection claim and fail to allege that Plaintiff spoke in her
capacity as a private citizen on any matter of public concern. In the alternative, Defendants argue
that the individual Defendants are entitled to qualified immunity for Plaintiff’s § 1983 claims against
them in their individual capacities.
Finally, Defendants argue that Plaintiff’s claims under state law are subject to dismissal. The
Amended Complaint fails to allege any facts to support Plaintiff’s THRA aiding and abetting claim
against any individual Defendant. Plaintiff has failed to state a claim for defamation because the
Amended Complaint does not allege the exact defamatory statement, the publication of the
defamatory statement, or any other communication other than statements between fellow employees,
which cannot constitute defamation. Plaintiff’s contract claim is without merit because Plaintiff has
not alleged the existence of a contract to which any individual Defendant is a party. As for
Plaintiff’s contractual interference claims, the Amended Complaint does not allege any facts to show
that Plaintiff’s contract with UT has been breached, an essential element of any interference claim.
Therefore, all of Plaintiff’s state law claims against the individual Defendants should be dismissed
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for failure to state a claim.
A. Plaintiff’s Arguments
Plaintiff has responded in opposition to Defendants’ Motion.
Plaintiff begins by
withdrawing all of her claims against the UT Defendants as well as her § 1983 claims for money
damages against the individual Defendants in their official capacities. Further, Plaintiff concedes
her claims against the individual Defendants for breach of contract, breach of the covenant of good
faith and fair dealing, and defamation. As for the merits of her remaining claims, Plaintiff responds
that all of her remaining claims are ripe. Plaintiff contends that Dr. Reed’s demand that Plaintiff
raise at least 25% of her salary through grants has already damaged her tenure and constitutes a
“preliminary step in Defendants’ plan to formally revoke [her] tenure.” Pl.’s Mem. in Resp. 3.
Plaintiff also contends that should the Court dismiss her claims on ripeness grounds, she will suffer
irreparable damage to her professional reputation.
Next Plaintiff responds that she has properly pleaded her § 1983 claims for prospective
injunctive relief against the individual Defendants in their official capacities. Plaintiff argues that
her Amended Complaint states a claim to enjoin Defendants to retract her two negative evaluations,
to cease efforts to revoke her tenure, to reassign her to another supervisor besides Dr. Reed, and to
develop a mutually agreeable process for evaluating Plaintiff’s teaching and scholarship. Plaintiff
argues this kind of prospective injunctive relief is available against the individual Defendants under
§ 1983.
With respect to the her claims for money damages against the individual Defendants in their
individual capacities, Plaintiff argues that her Amended Complaint plausibly alleges that the
individual Defendants have violated her constitutional rights. Plaintiff has a protected property
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interest in her full salary and continued employment at UT and is therefore entitled to due process
before Defendants can deprive her of her property. According to Plaintiff, the Amended Complaint
states a claim for the deprivation of this property interest without due process.3 Plaintiff also
challenges the adequacy of the procedures UT has adopted to protect her tenure rights. Based on
these allegations, Plaintiff asserts that she has stated a claim for violation of her procedural and
substantive due process rights. The Amended Complaint states a claim for retaliation in violation
of the First Amendment as well. Plaintiff argues that she complained about violations of UT Faculty
Handbook procedures and appealed both of her unsatisfactory performance reviews. Plaintiff
contends that this speech was undertaken in her capacity as a concerned citizen and related to
matters of public interest. As for her equal protection claim, Plaintiff has alleged that as the only
female member of HVE department, Defendants singled her out for a reduction in salary and loss
of tenure.
Next Plaintiff argues that none of the individual Defendants are entitled to qualified
immunity. Plaintiff states that since October 2009, she has provided written notice to each
Defendant of the constitutional implications of their respective actions. As a result, these
Defendants had reasonable notice that their acts violated Plaintiff’s constitutional rights. Plaintiff
argues in the alternative that the Court should allow Plaintiff to engage in discovery on the issue of
qualified immunity and withhold its ruling on the issue until that discovery is completed.
3
Plaintiff argues specifically that Dr. Reed’s decision to require Plaintiff to raise 25% of
her base salary through grants was made without notice or a hearing and thus constitutes “a
constructive taking.” Dr. Reed also failed to follow UT Faculty Handbook requirements by
developing a remediation plan for Plaintiff without her input. According to Plaintiff, Dr. Stern
has ignored UT Faculty Handbook procedures as part of the ongoing plan to terminate Plaintiff’s
tenure.
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Plaintiff further argues that she has pleaded factual support for her remaining claims against
the individual Defendants in their individual capacities. While conceding that § 1983 does not
create respondeat superior liability or liability for failure to act, Plaintiff maintains that she has
pleaded sufficient facts against each individual Defendant to state a claim against them on the
remaining counts under the THRA and the unlawful inducement to breach and contract interference
claims. Plaintiff has alleged that Defendants discriminated against her on the basis of her sex in
violation of the THRA by giving her poor performance reviews, attempting to strip her of tenure,
and threatening to reduce her salary. Defendants have also acted to induce the breach of and
tortiously interfere with Plaintiff’s tenure contract and guarantee of her full salary from UT. For
these reasons Plaintiff argues that Defendants’ Motion to Dismiss should be denied.
B. Defendants’ Reply
In reply Defendants reiterate their arguments that the Court should dismiss Plaintiff’s § 1983
claims for ripeness. Even if the Court holds that the claims are ripe, Defendants contend that
Plaintiff has failed to state them. Defendants attack Plaintiff’s procedural due process claim by
arguing that no taking has actually occurred. Plaintiff has not alleged that her salary has been
reduced. Furthermore, Dr. Reed’s demand that Plaintiff seek outside grants and funding to make-up
25% of her salary occurred in October 2009 and is thus time-barred. Defendants add that the
procedures at issue are based on the Tennessee Uniform Administrative Procedure Act and that other
courts have held that the TUAPA satisfies constitutional minimum protections. Concerning
Plaintiff’s First Amendment retaliation claim, Defendants assert that Plaintiff’s complaints about
her performance reviews and violations of the UT Faculty Handbook did not touch matters of public
concern. Defendants also contend that Plaintiff has not alleged that she has suffered any damages
17
as a result of Defendants’ retaliatory acts. As for Plaintiff’s equal protection claim, Defendants
argue that Plaintiff has not pleaded any facts to show that she was similarly situated to her male
counterpart who received a raise in 2011. Nor does the Amended Complaint identify which
individual Defendant was responsible for the violation of her equal protection rights.
Furthermore, Defendants argue that the Court should dismiss all of Plaintiff’s § 1983 claims
against the individual Defendants because § 1983 does not create respondeat superior liability or
liability for failure to act. The only supervisor named in the pleadings is Dr. Reed, Plaintiff’s
department chair and immediate supervisor. On this basis alone, Plaintiff has failed to state a claim
against all of the other individual Defendants. Moreover, Defendants continue to argue that they
are entitled to qualified immunity on all of Plaintiff’s § 1983 claims. With respect to Plaintiff’s
claims under state law, the Amended Complaint fails to allege who aided and abetted the retaliation
against Plaintiff or how they did so. The Amended Complaint also fails to allege the breach of any
contract, which is an essential element of Plaintiff’s claims for inducement to breach and tortious
interference. Therefore, Defendants argue that all of Plaintiff’s remaining claims are subject to
dismissal.
STANDARD OF REVIEW
A defendant may move to dismiss a claim “for failure to state a claim upon which relief can
be granted” under Federal Rule of Civil Procedure 12(b)(6). When considering a Rule 12(b)(6)
motion, the Court must treat all of the well-pleaded allegations of the complaint as true and construe
all of the allegations in the light most favorable to the non-moving party.4 However, legal
4
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Saylor v. Parker Seal Co., 975 F.2d 252,
254 (6th Cir. 1992).
18
conclusions or unwarranted factual inferences need not be accepted as true.5 “To avoid dismissal
under Rule 12(b)(6), a complaint must contain either direct or inferential allegations with respect
to all material elements of the claim.”6
Under Rule 8 of the Federal Rules of Civil Procedure, a complaint need only contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.”7 Although this
standard does not require “detailed factual allegations,” it does require more than “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action.”8 In order to survive
a motion to dismiss, the plaintiff must allege facts that, if accepted as true, are sufficient “to raise
a right to relief above the speculative level” and to “state a claim to relief that is plausible on its
face.”9 “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.”10
ANALYSIS
I. Plaintiff’s Conceded Claims
In her response to Defendants’ Motion to Dismiss, Plaintiff concedes all of her claims against
UT and withdraws all of her claims under § 1983 against the individual Defendants in their official
5
Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).
6
Wittstock v. Mark a Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003).
7
Fed. R. Civ. P. 8(a)(2).
8
Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). See also Reilly v. Vadlamudi, 680 F.3d 617, 622 (6th Cir. 2012) (quoting
Twombly, 550 U.S. at 555).
9
Twombly, 550 U.S. at 555, 570.
10
Iqbal, 556 U.S. at 678.
19
capacities for money damages. Plaintiff maintains that she has pleaded § 1983 claims against the
individual Defendants in their official capacities for prospective injunctive relief. Plaintiff has also
conceded her claims for breach of contract, breach of the covenant of good faith and fair dealing,
and defamation against the individual Defendants in their individual capacities. “The plaintiff
remains the master of its complaint, and when it says that it is not bringing a [particular] claim, we
should take it at its word.”11 Therefore, Defendants’ Motion to Dismiss is GRANTED as to these
claims.
The only contested claims remaining then are the following: § 1983 claims for prospective
injunctive and declaratory relief against the individual Defendants in their official capacities; § 1983
claims for money damages against the individual Defendants in their individual capacities; THRA
claim against the individual Defendants in their individual capacities; and unlawful inducement to
breach contract and tortious interference with contract claims against the individual Defendants in
their individual capacities. The Court will analyze each of the remaining claims in turn.
II. Ripeness
Defendants argue at the outset that Plaintiff’s request for an injunction “preserving Dr.
Morreim’s tenure” and “enjoining Defendants from pursuing any and all further efforts to revoke
or otherwise imperil Dr. Morreim’s academic tenure” is not yet ripe. Specifically, the Amended
Complaint alleges that Plaintiff continues to be a full professor and that no tenure termination
proceedings have begun. Defendants argue without elaboration that Plaintiff’s claims for “other
creative, unprecedented injunctive remedies” are not ripe. Plaintiff responds that her federal claims
11
NicSand, Inc. v. 3M Co., 507 F.3d 442, 458 (6th Cir. 2007).
20
are ripe because an “injury to the status of her tenure has already occurred.”12 The injury consists
of Dr. Reed’s demand that Plaintiff raise at least 25% of her annual salary from outside sources.
Plaintiff argues that Defendants’ actions “amount to a constructive taking and fundamental
redefinition” of her tenure and as practical matter represent “a preliminary step in Defendants’ plan
to formally revoke [Plaintiff’s] tenure.”13 Plaintiff adds that she “will suffer irreparable harm to her
reputation and career for which there is no adequate remedy at law.”14 Therefore, her federal claims
are ripe.
The ripeness of a Plaintiff’s claims to establish a “concrete case or controversy” is a
threshold question.15 “The ripeness doctrine serves to avoid premature adjudication of legal
questions and to prevent courts from entangling themselves in abstract debates that may turn out
differently in different settings.”16 Ripeness is essentially “a question of timing” and advises
“against resolving a case that is anchored in future events that may not occur as anticipated, or at
all.”17 The ripeness doctrine “is drawn both from Article III limitations on judicial power and from
prudential reasons for refusing to exercise jurisdiction.”18 A claim is ripe where (1) there is a
12
Pl.’s Resp. in Opp’n 3 (emphasis in original).
13
Id.
14
Id. at 4.
15
Thomas v. Union Carbide Agr. Products Co., 473 U.S. 568, 579 (1985).
16
Warshak v. United States, 532 F.3d 521, 525 (6th Cir. 2008) (en banc) (quoting Nat’l
Park Hospitality Ass’n v. Dept. of Interior, 538 U.S. 803, 807 (2003) (internal brackets and
ellipsis omitted)).
17
Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 284 (6th Cir. 1997).
18
Warshak, 532 F.3d at 525 (quoting Nat’l Park Hospitality Ass’n, 538 U.S. at 808).
21
likelihood that the harm alleged by the plaintiff will come to pass; (2) the factual record is
sufficiently developed to produce a fair adjudication of the merits of the parties’ respective claims;
and (3) hardship to the parties exists if judicial relief is denied at this stage in the proceedings.19 A
claim is not “fit” for judicial review when there is no certainty whether the challenged conduct will
occur in the future.20 Furthermore, a constitutional claim is not ripe when it presents “difficult legal
questions before they arise and before the courts know how they will arise.”21
Applying these principles to the case at bar, the Court holds that Plaintiff’s constitutional
claims based on the possible termination of her tenure are not yet ripe. Such claims are not wellsuited for judicial review because Plaintiff continues to hold her tenured position. Even accepting
the factual allegations of the Amended Complaint as true, Defendants have only initiated
“proceedings to revoke Dr. Morreim’s tenure . . . .”22 Plaintiff has not alleged that Defendants will
certainly strip Plaintiff of her tenure in the future.23 Plaintiff concedes as much in her brief where
19
Berry v. Schmitt, 688 F.3d 290, 298 (6th Cir. 2012); see also Lawrence v. Welch, 531
F.3d 364, 373–74 (6th Cir. 2008) (holding that the first inquiry is whether the claim “is fit for
judicial decision”) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967) (ellipsis and
internal brackets omitted) (Sutton, J., concurring). The Sixth Circuit has explained that Judge
Sutton’s concurrence in Lawrence represented the holding in that case on the ripeness issue.
Berry, 688 F.3d at 301 n.3 (“Judge Bertelsman’s opinion was not the majority opinion with
regard to the Lawrence attorney’s request for prospective relief. Judge Sutton’s concurrence was
joined by Judge Rogers, giving that opinion controlling weight with regard to the [ripeness of
the] prospective relief.”) (internal citations omitted).
20
Warshak, 532 F.3d at 526 (citing Tex. v. United States, 523 U.S. 296, 300 (1998)
(holding that a claim is not ripe where it depends on “contingent future events that may not occur
as anticipated, or indeed may not occur at all”).
21
Id. (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 894 (1990)).
22
Am. Compl. ¶ 52.
23
Warshak, 532 F.3d at 526.
22
she describes the events that led up to her filing suit only as “a preliminary step in Defendants’ plan
to formally revoke” her tenure.24 Plaintiff argues that Defendants’ actions evidence their “intent to
ignore Due Process procedures in the future.”25 The allegations of the Amended Complaint are also
revealing in this regard. Plaintiff has alleged that Defendants “have made it clear that they intend
to revoke” Plaintiff’s tenure and “have moved clearly and steadily toward a violation of Dr.
Morreim’s constitutional rights.”26 Based on this record, the Court concludes that Plaintiff’s
constitutional claims under § 1983 for the loss of her tenure are not ripe. Furthermore, Plaintiff’s
tenure claim presents “difficult legal questions before they arise and before the courts know how
they will arise.”27 Plaintiff argues that Defendants’ actions have or will violate the Due Process
Clause, the Equal Protection Clause, and the First Amendment, claims which typically involve a fact
intensive and searching legal analysis. Therefore, any claim based on the revocation of Plaintiff’s
tenure is dismissed pursuant to Rule 12(b)(1) on ripeness grounds and without prejudice to re-file
the claim in a subsequent pleading.28
To the extent that Plaintiff’s Amended Complaint can be construed to allege ripe
constitutional claims, the Court considers the merits of pleadings separately for each cause of action.
III. Constitutional Claims
24
Pl.’s Resp. in Opp’n 10 (emphasis added).
25
Id. (emphasis added).
26
Am. Compl. ¶ 55 (emphasis added).
27
Warshak, 532 F.3d at 526.
28
Peters v. Fair, 427 F.3d 1035, 1038 (6th Cir. 2005) (holding that dismissal without
prejudice was required where the district court concluded that a § 1983 claim was not ripe); see
also Gies v. Flack, No. C-3-96-61, 1996 WL 1671234 (S.D. Ohio Apr. 24, 1996).
23
To state a claim for the deprivation of a constitutional right under 42 U.S.C. § 1983, a
plaintiff must allege (1) that the defendant acted under color of state law and (2) that the defendant’s
conduct deprived the plaintiff of rights secured by the Constitution.29 “Section 1983 is not the
source of any substantive right, but merely provides a method for vindicating federal rights
elsewhere conferred.”30 “It is not enough for a complaint under § 1983 to contain mere conclusory
allegations of unconstitutional conduct by persons acting under color of state law. Some factual basis
for such claims must be set forth in the pleadings.”31 Plaintiff has asserted four separate theories of
recovery for violations of § 1983: denial of her Fourteenth Amendment procedural and substantive
due process rights; violation of her equal protection rights; and retaliation in violation of her First
Amendment free speech rights. The Court will analyze each of Plaintiffs’ theories in turn.
A. Procedural Due Process
The Due Process Clause of the Fourteenth Amendment prohibits states from depriving “any
person of life, liberty, or property, without due process of law.”32 With respect to procedural due
process, the deprivation by state action of a constitutionally protected interest in “life, liberty, or
property” is not in itself unconstitutional; what is unconstitutional is the deprivation of such an
29
Fritz v. Charter Tp. Of Comstock, 592 F.3d 718, 722 (6th Cir. 2010); Wittstock, 330
F.3d at 902.
30
Smith v. Shelby Cnty., 721 F. Supp. 2d 712, 723 (W.D. Tenn. 2010); Humes v. Gilless,
154 F. Supp. 2d 1353, 1357 (W.D. Tenn. 2001) (citing Graham v. Connor, 490 U.S. 386, 393–94
(1989)).
31
Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir. 1986).
32
U.S. Const. amend. XIV, § 1.
24
interest without due process of law.33 In other words, a constitutional claim under § 1983 is not
complete when the deprivation occurs; it is complete only when the state fails to provide due
process.34 “When reviewing a procedural due process claim, [a court] must determine whether a
protected liberty or property right is at stake and, if so, what process is due.”35 Plaintiff must prove
three elements: (1) she had a life, liberty, or property interest protected by the Due Process Clause
of the Fourteenth Amendment; (2) that Defendants deprived her of her protected interest; and (3)
that Defendants did not afford her adequate procedural rights before depriving her of this protected
interest.36
It is well-settled that a tenured college professor at a public institution has a
constitutionally-protected property interest in her teaching post and cannot be deprived of her tenure
without due process of law.37 Consequently, “[p]rofessors with tenure . . . may not be discharged
without receiving a hearing in which they are informed of the grounds for their dismissal and given
the opportunity to challenge the sufficiency of those grounds.”38
To the extent that Plaintiff’s procedural due process claim is based on the actions Defendants
have already taken against her, the Court holds that the Amended Complaint fails to state such a
33
Parratt v. Taylor, 451 U.S. 527, 537 (1981); Carey v. Piphus, 435 U.S. 247, 259
(1978) (“Procedural due process rules are meant to protect persons not from the deprivation, but
from the mistaken or unjustified deprivation of life, liberty, or property”).
34
Zinermon v. Burch, 494 U.S. 113, 125–26 (1990).
35
Handy–Clay v. City of Memphis, Tenn., 695 F.3d 531, 546 (6th Cir. 2012).
36
Wedgewood Ltd. P’ship I v. Twp. Of Liberty, Ohio, 610 F.3d 340, 349–50 (6th Cir.
2010).
37
Johnston–Taylor v. Gannon, 907 F.2d 1577, 1581 (6th Cir. 1990) (citing Bd. of
Regents v. Roth, 408 U.S. 564, 576 (1972)).
38
Id. (citing Whitsel v. Se. Local Sch. Dist., 484 F.2d 1222, 1228 (6th Cir. 1973)).
25
claim under Rule 12(b)(6). The Amended Complaint alleges that Defendants have already taken a
series of actions against Plaintiff in violation of her procedural due process rights, making these
actions ripe for judicial review. First, based on the arguments in her response brief, Plaintiff seems
to assert a claim based on Dr. Reed’s “demand that Dr. Morreim pay for at least 25% of her base
salary through extramural grants or other consulting activity.”39 Plaintiff contends that this demand
constitutes a “constructive taking and fundamental redefinition” of her tenure rights and a denial of
procedural due process. The Court holds that this claim fails because Plaintiff has not alleged how
Defendants deprived her of a protected interest, an essential element of her procedural due process
claim. The Amended Complaint alleges that Plaintiff continues to hold tenure and receive her full
salary.40 Morever, Plaintiff has cited no authority in support of her theory that Dr. Reed’s demand
in and of itself amounts to a “constructive taking” much less a “fundamental redefinition” of her
tenure.41 While it is true that Dr. Reed’s demand has allegedly resulted in two poor evaluations as
well as the review of Plaintiff’s tenure, the Court holds that Dr. Reed’s demand does not constitute
the deprivation of a protected interest. Therefore, the Amended Complaint fails to state a procedural
due process claim as to this issue.
39
Pl.’s Resp. in Opp’n 10.
40
Am. Compl. ¶ 1(“Dr. Morreim was at all relevant times employed by the University of
Tennessee as a tenured, full professor and member of the faculty in good standing.”).
41
Plaintiff’s theory of constructive taking apparently borrows the concept from the law of
eminent domain. Amen v. City of Dearborn, 718 F.2d 789, 796 (6th Cir. 1983) (“While the mere
decline in property values does not, per se, constitute a taking requiring compensation,
governmental action short of acquisition may constitute a constructive taking if its effects are so
complete as to deprive the owner of all or most of his interest in the subject matter.”) (citations
omitted)). Plaintiff has cited (and the Court has found) no authority applying the concept of
constructive taking in the context of academic tenure.
26
Second, Plaintiff’s brief can be read to assert a procedural due process claim for Defendants’
alleged failure to follow certain procedures set forth in the UT Faculty Handbook. Specifically,
Plaintiff argues that Dr. Reed failed to work with Plaintiff to develop “mutually established” goals
for her performance and then issued two unsatisfactory evaluations when Plaintiff failed to meet the
goals in the 2009-2010 and 2010-2011 academic years, all in violation of § 4.16.3 of the Faculty
Handbook. Dr. Reed then developed a remediation plan for Plaintiff without obtaining her
agreement on the terms of the plan. Plaintiff further contends that Dr. Stern ignored the conclusions
of the Cumulative Performance Review committee, even though the committee scrupulously
followed the requirements of the Faculty Handbook. Accepting these allegations as true, the Court
holds that the Amended Complaint fails to state a cognizable constitutional claim based on alleged
violations of the Faculty Handbook. The Sixth Circuit has held that a state college or university’s
failure to follow its own faculty rules and procedures does not state a procedural due process claim.42
“Violation of a state’s formal procedure . . . does not in and of itself implicate constitutional due
process concerns.”43 As such, the Amended Complaint fails to state a procedural due process claim
for Defendants’ failure to follow handbook policy.
Finally, Plaintiff argues that Defendants’ tenure termination procedures are inherently
defective and fail to meet constitutional due process standards. Plaintiff contends that the handbook
procedures are merely “advisory.” Both parties have attached relevant excerpts of the Faculty
42
Anderson v. Ohio State Univ., 26 F. App’x 412, 414 (6th Cir. 2001); Purisch v. Tenn.
Tech. Univ., 76 F.3d 1414, 1423 (6th Cir. 1996); Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir.
1993).
43
Purisch, 76 F.3d at 1423.
27
Handbook to their briefs.44 Plaintiff cites § 8.3.1 of the Faculty Handbook entitled “Termination
Procedure for Category A - Adequate Cause: Unsatisfactory Performance in Teaching, Research or
Service” and claims that “the supposed procedural protections in place at UT, as administered, are
a sham . . . .”45 Upon review of § 8.3.1, however, the Court finds that the only “advisory” step of
the procedures concerns the report and vote of the tenured faculty.46 Under paragraph 2 of § 8.3.1,
the tenured faculty of the department will review the faculty member’s performance in teaching,
research and service; prepare a report for the department chairperson; and then vote on the question
of whether termination proceedings should be initiated. The Handbook provides that “[t]he faculty
vote shall be advisory to the Chair” but also states that the Chair should report the faculty vote to
the Dean when the Chair makes his or her recommendation about initiating the termination
proceedings. The Faculty Handbook goes on to create additional procedures, including a faculty
member’s right to elect between a hearing under the Tennessee Uniform Administrative Procedures
44
Ex. A, Defs.’ Mem. in Support (D.E. # 32-2); Ex. 1, Pl.’s Resp. in Opp’n (D.E. # 38-1).
As Plaintiff correctly argues, the Court can consider the exhibits without converting Defendants’
Rule 12(b) Motion to a motion for summary judgment. The Faculty Handbook is referenced
extensively in the Amended Complaint. Erie Cnty., Ohio v. Morton Salt, Inc., 702 F.3d 860, 863
(6th Cir. 2012).
45
Pl.’s Resp. in Opp’n 12. The Court construes Plaintiff’s argument as a facial challenge
to the procedures, even though Plaintiff makes passing reference to the procedures “as
administered.” To the extent that Plaintiff is asserting an as-applied challenge to the sufficiency
of the tenure termination proceedings, the Court holds that the challenge is not ripe because the
Amended Complaint does not allege that all of the proceedings in § 8.3.1have actually taken
place.
46
Faculty Handbook § 8.3.5 further states that once the Dean recommends tenure
termination to the UT Chief Academic Officer (“the CAO”) and the CAO determines that
termination proceedings should be initiated, the CAO should next meet with the faculty member
to discuss the situation. If the CAO cannot resolve the issue with the faculty member, the CAO
must ask the Faculty Senate Grievance committee to make a recommendation. Faculty
Handbook § 8.3.5(c). This committee’s recommendation is also advisory to the CAO. Id.
28
Act (with the right of judicial review) or a hearing before a tribunal.
Despite Plaintiff’s
characterization of the process, none of these procedures appear to be “advisory.” Based on the
allegations of the Amended Complaint, § 8.3.1 of the Faculty Handbook, and Plaintiff’s briefing of
the issue, the Court concludes that Plaintiff has failed to state a facial procedural due process claim
concerning the procedures in the Faculty Handbook. Therefore, Defendants’ Motion to Dismiss
Plaintiff’s procedural due process claim for lack of subject matter jurisdiction and failure to state
a claim is GRANTED.
B. Substantive Due Process
Defendants next seek dismissal of Plaintiff’s substantive due process claim. The “ephemeral
concept” of substantive due process protects “specific fundamental rights of individual freedom and
liberty from deprivation at the hands of arbitrary and capricious government action.”47 While
“substantive due process rights are created only by the Constitution,”48 substantive due process
safeguards only those rights “deeply rooted in this Nation’s history and tradition” and “implicit in
the concept of ordered liberty such that neither liberty nor justice would exist if they were
sacrificed.”49 Substantive due process claims fall into two basic categories: (1) claims asserting the
denial of a right, privilege, or immunity secured by the U.S. Constitution or federal statute;50 or (2)
47
Gutzwiller v. Fenik, 860 F.2d 1317, 1328 (6th Cir. 1988).
48
Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229 (1985) (Powell, J., concurring).
49
United States v. Windsor, 133 S. Ct. 2675, 2714–15, 186 L. Ed. 2d 808 (2013) (Alito,
J., dissenting) (quoting Wash. v. Glucksberg, 521 U.S. 702, 720–721 (1997) (internal quotation
marks omitted)).
50
Parratt, 451 U.S. at 532 (1981) overruled on other grounds, Daniels v. Williams, 474
U.S. 327, 329 (1986).
29
official conduct that “shocks the conscience” of the court.51 In the realm of academia, “courts may
override a decision under substantive due process only if that decision is such a substantial departure
from accepted academic norms as to demonstrate that the person or committee responsible did not
actually exercise professional judgment.”52 The Sixth Circuit has held that there is no substantive
due process right “to remain in a position of public employment free from arbitrary action.”53 Even
so, an adverse tenure decision based on a protected characteristic such as race or gender “constitutes
an arbitrary and capricious deprivation of the individual’s liberty interest in not being terminated
from governmental employment for a constitutionally impermissible purpose.”54
The Court holds that the Amended Complaint fails to state a ripe substantive due process
claim. The only allegation to support Plaintiff’s substantive due process claim is as follows: “Dr.
Morreim is entitled to equal protection and substantive due process under the United States
Constitution. The Defendants’ actions violated Dr. Morreim’s equal protection and substantive due
process rights.”55 Defendants argue that the pleadings have not identified a fundamental right
protected by substantive due process; therefore, no such claim appears on the face of the pleadings.
Plaintiff responds that her substantive due process claim is based on Defendants’ arbitrary and
51
Herrera v. Collins, 506 U.S. 390, 435–36 (1993) (quoting Rochin v. Calif., 342 U.S.
165, 172 (1952)).
52
Gutzwiller, 860 F.2d at 1328 (citing Ewing, 474 U.S. at 214)).
53
Hopkins v. Canton City Bd. of Educ., 477 F. App’x 349, 365–66 (6th Cir. 2012) (citing
Bell v. Ohio State Univ., 351 F.3d 240, 251 (6th Cir. 2003)).
54
Mertik v. Blalock, 983 F.2d 1353, 1367–68 (6th Cir. 1993) (citing Gutzwiller, 860 F.2d
at 1329).
55
Am. Compl. ¶ 78.
30
capricious violations of the Faculty Handbook.56 Insofar as the Amended Complaint merely alleges
that Defendants have acted arbitrarily and capriciously to deprive Plaintiff of governmental
employment, Plaintiff has failed to plead a cognizable substantive due process claim. Therefore,
Defendants’ Motion is GRANTED on such a claim.
Although neither party has raised the issue, the Sixth Circuit held that Gutzwiler, a case cited
by Plaintiff in support of her substantive due process argument, “recognizes a narrow substantive
due process right to protection against losing one’s job because of an independent constitutional
violation, such as an equal protection violation.”57 As more fully discussed below, Plaintiff argues
that Defendants have violated her equal protection rights by singling her out on the basis of her
gender to revoke her tenure. The Amended Complaint alleges that “Dr. Morreim was discriminated
against and retaliated against in violation of the Equal Protection Clause.”58 In her response to
Defendants’ Rule 12(b) Motion, Plaintiff also argues that the following allegation supporting her
THRA claim supports her equal protection claim as well: “Defendants discriminated against Dr.
Morreim on the basis of her sex by subjecting her to negative evaluations attempting to strip her of
tenure; and subjecting her to discrimination in terms of pay . . . .”59
To the extent that Plaintiff alleges an independent substantive due process claim based on
56
Pl.’s Resp. in Opp’n 13 (“Such violations of the University’s own procedural
regulations constitute a deprivation of Dr. Morreim’s substantive due process rights, and as such,
Dr. Morreim has adequately pleaded her substantive due process claim.”) (citing Gutzwiler;
Brenna v. S. Colo. St. Coll., 589 F.2d 475, 477 (10th Cir. 1978); Bignall v. N. Idaho Coll., 538
F.2d 243, 248–49 (9th Cir. 1976).
57
Hopkins, 477 F. App’x at 365–66.
58
Am. Compl. ¶ 80.
59
Id. ¶ 87. The Amended Complaint further alleges that one of Plaintiff’s male
counterparts, Dr. Carson Strong, received a larger bonus than Plaintiff in 2011. Id. ¶ 42.
31
the alleged denial of her equal protection rights, the Court holds that such a claim is not ripe. It is
possible for Plaintiff to state a substantive due process claim based on a violation of the Equal
Protection Clause. However, the Sixth Circuit has recognized only a “narrow substantive due
process right” against “losing one’s job because of” an equal protection violation.60 Plaintiff has not
alleged that Defendants have dismissed her from her tenured position. Thus, Plaintiff has not
alleged that Defendants have harmed her “liberty interest in not being terminated from governmental
employment for a constitutionally impermissible purpose.”61 In short, a limited substantive due
process claim predicated on Plaintiff’s termination on account of her gender is not yet ripe.
Defendants’ Rule 12(b)(1) Motion is GRANTED as to this issue and without prejudice to re-file
the claim in a subsequent pleading.
Therefore, Defendants’ Motion to Dismiss Plaintiff’s
substantive due process claim for lack of subject matter jurisdiction and failure to state a claim is
GRANTED.
C. Equal Protection Claim
Defendants next contend that the Amended Complaint fails to state an equal protection
claim. The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny
to any person within its jurisdiction the equal protection of the laws.”62 “The Equal Protection
Clause prohibits discrimination by government which either burdens a fundamental right, targets
a suspect class, or intentionally treats one differently than others similarly situated without any
60
Id. (emphasis added).
61
Mertik, 983 F.2d at 1367–68 (citing Gutzwiller, 860 F.2d at 1329) (emphasis added).
62
U.S. Const. amend XIV, § 1.
32
rational basis for the difference.”63 In order to state an equal protection claim, Plaintiff must
plausibly plead that Defendants treated 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.”64 As previously discussed, the Amended Complaint alleges broadly that
“Dr. Morreim was discriminated against and retaliated against in violation of the Equal Protection
Clause.”65 In her memorandum, Plaintiff asserts that Defendants have treated Dr. Carson Strong and
Dr. Terry Ackerman more favorably than Plaintiff because they are males. Plaintiff is arguably
pursuing a “suspect class” or “class-of-one” equal protection claim. For the reasons that follow, the
Court holds that the Amended Complaint fails to state either claim.
The Court first holds that the Amended Complaint fails to state a “class-of-one” equal
protection claim. No such claim is available in the context of public employment.66 The Supreme
Court has explained that “ratifying a class-of-one theory of equal protection in the context of public
employment would impermissibly constitutionalize the employee grievance.”67 Public employees
seeking review of personnel decisions have “a variety of protections,” just not the Equal Protection
Clause.68 Simply put, “federal court is not the appropriate forum in which to review the multitude
63
Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 681–82 (6th Cir. 2011)
(Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005)).
64
Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011).
65
Am. Compl. ¶ 80.
66
Engquist v. Or. Dep’t of Agr., 553 U.S. 591, 609 (2008).
67
Id. (quotation omitted).
68
Id.
33
of personnel decisions that are made daily by public agencies.”69 Therefore, to the extent that the
Amended Complaint pleads a “class-of-one” equal protection claim, Defendants’ Motion to Dismiss
is GRANTED on the issue pursuant to Rule 12(b)(6).
The Court further holds that Plaintiff has failed to plead an equal protection claim for
gender-based discrimination due to her poor evaluations and the tenure review proceedings. The
Equal Protection Clause prohibits official state action discriminating against individuals on the basis
of sex.70 In fact, disparate treatment is the “threshold element of an equal protection claim.”71 “In
making an equal protection challenge, the plaintiff must demonstrate that a discrimination of some
substance has occurred which has not occurred against other individuals who were similarly
situated.”72 The Sixth Circuit has held that a plaintiff fails to plead an equal protection claim for
gender discrimination where the pleadings simply allege that the plaintiff is a woman but fail to
allege that the defendant acted with a discriminatory purpose or that similarly situated males
received more favorable treatment.73 Here Plaintiff has only alleged that she is a woman and that
Defendants have taken certain actions to put Plaintiff’s tenure in jeopardy. The Amended Complaint
69
Id. (citation omitted).
70
Coal. to Defend Affirmative Action v. Granholm, 473 F.3d 237, 248 (6th Cir. 2006)
(citing United States v. Va., 518 U.S. 515 (1996)).
71
Ctr. for Bio-Ethical Reform, 648 F.3d at 379.
72
Hall v. Callahan, 727 F.3d 450 (6th Cir. 2013) (citing City of Cleburne, Tex. v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985)).
73
Rondigo, 641 F.3d at 682 (“Plaintiffs’ mere allegations that Dolores Michaels is a
woman and Rondigo is a woman-owned business do not make out a claim for gender-based
discrimination targeting them as members of a suspect class.”); Brooks v. Knapp, 221 F. App’x
402, 408–409 (6th Cir. 2007) (“The complaint, however, does not sufficiently allege that
Officers Knapp, Drumb, and Vanderbilt, in their individual capacity, acted in a discriminatory
manner toward Mrs. Hernandez, for any reason.”).
34
does not allege that Defendants have done so on the basis of Plaintiff’s gender.
Moreover, the Amended Complaint does not allege that Defendants treated other faculty
members differently in performing their annual evaluations or by initiating a review of tenure, much
less that the other faculty members were similarly situated to Plaintiff. The Sixth Circuit has held
that “bare allegations that other [employees], even all other [employees], were treated differently
is insufficient to establish an equal protection violation unless the plaintiff shows that these other
applicants were similarly situated to the plaintiff.”74 As a result, the Amended Complaint does not
adequately plead disparate treatment, the “threshold element” of the claim. Therefore, Defendants’
Motion to Dismiss is GRANTED as to Plaintiff’s equal protection claim.
The Court finds Plaintiff’s argument in response to Defendants’ Rule 12(b) Motion to be
unconvincing. Plaintiff contends that “Defendants have not subjected Dr. Carson and Dr. Ackerman
to the same unlawful acts to which Dr. Morreim has been subjected, due to the fact that Dr. Carson
and Dr. Ackerman are males.”75 The problem lies in the fact that Plaintiff has not actually made this
allegation in the Amended Complaint.76 In Count III of the Amended Complaint Plaintiff asserts
that “Defendants discriminated against Dr. Morreim on the basis of her sex by subjecting her to
negative evaluations attempting to strip her of tenure; and subjecting her to discrimination in terms
of pay . . . .” (id. ¶ 87). However, these well-pleaded allegations are specifically alleged in support
Plaintiff’s THRA claim, not her § 1983 claim. Count II of the Amended Complaint, which sets forth
74
Schellenberg v. Twp. of Bingham, 436 F. App’x 587, 592 (6th Cir. 2011).
75
Pl.’s Resp. in Opp’n 15.
76
Plaintiff does request leave to amend her pleadings in the event the Court finds her
“allegations are not sufficiently definite to state a claim under any one of Plaintiff’s causes of
actions . . . .” Id. at 20. The Court addresses Plaintiff’s request to amend below.
35
Plaintiff’s § 1983 claims for damages including her equal protection claim, refers to Plaintiff’s
“property interest in her job” (id. ¶ 76) and asserts that Plaintiff “cannot be terminated, stripped of
tenure, demoted, made to fund her own position, stripped of her status, or otherwise adversely
diminished in her position” without due process (id. ¶ 77). Count II never refers to discrimination
on the basis of gender or the more favorable treatment allegedly received by Dr. Ackerman or Dr.
Strong. In fact, Count II never refers to disparities in pay between Plaintiff and Dr. Strong and never
mentions Dr. Ackerman at all.77 Therefore, the Amended Complaint fails to state an equal protection
claim based on Plaintiff’s gender. Defendants’ Motion to Dismiss Plaintiff’s equal protection claim
for lack of subject matter jurisdiction and failure to state a claim is GRANTED.
D. First Amendment Retaliation
Defendants also seek dismissal of Plaintiff’s First Amendment retaliation claim. According
to the pleadings, Plaintiff’s free speech claim is based on her “report that [UT] faculty members
were violating her rights; [her complaint] about unlawful actions by [UT] in general; and [her
complaint] about unlawful actions by [UT] directed specifically toward her.”78 In her memorandum,
Plaintiff specifies that her protected speech included complaints about “Defendants’ repeated
violations of the provisions contained in the Faculty Handbook, and in retaliation for filing appeals
of the two (2) unsatisfactory evaluations issued by Dr. Reed in which Dr. Morreim reported the
77
According to the pleadings, Dr. Carson received a larger bonus than Plaintiff in 2011
(Am. Compl. ¶ 42). Count II incorporates this allegation by reference (id. ¶ 73), and Plaintiff
argues that this pleading supports her equal protection claim. Even though Count II incorporates
the underlying factual allegation, Count II never mentions a bonus or pay disparity and never
alleges that the disparity was based on Plaintiff’s gender. See Rondigo, 641 F.3d at 682.
78
Am. Compl. ¶ 79.
36
unlawful and unconstitutional actions of Defendants that were directed towards her.”79 Plaintiff adds
in her brief that she made these complaints as a concerned citizen and for the purpose of bringing
to light public corruption and discrimination. Plaintiff contends that Defendants have “damaged
[her] tenure and have steadily moved toward formal revocation of her tenure.”80 Defendants argue
that Plaintiff’s speech does not touch a matter of public concern because Plaintiff made complaints
about her job assignment and performance evaluation in her capacity as a private citizen.
Furthermore, damage to Plaintiff’s tenure does not constitute an adverse action.
The Sixth Circuit has held that retaliation for the exercise of constitutional rights is itself a
violation of the Constitution.81 In order to state a § 1983 claim that a government official retaliated
against a plaintiff in violation of the First Amendment, the plaintiff must allege the following
elements: (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.82 Whether a public employee’s speech is protected in a First Amendment retaliation case
is a question of law.83 In order to establish that her speech was protected, Plaintiff must first show
that the speech touched on a matter of public concern.84 Next Plaintiff must show that under the
79
Pl.’s Resp. in Opp’n 14.
80
Id.
81
Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir. 1999).
82
Fritz, 592 F.3d at 723; Dye v. Office of the Racing Comm’n, 702 F.3d 286, 294 (6th
Cir. 2012).
83
Dixon v. Univ. of Toledo, 702 F.3d 269, 274 (6th Cir. 2012).
84
Id.; Connick v. Myers, 461 U.S. 138, 142 (1983)
37
Pickering balancing test, her “free speech interests outweigh the efficiency interests of the
government as employer.”85 Finally, Plaintiff must show that the speech was made in her capacity
as a private citizen, not pursuant to her official duties as a UT faculty member.86 In short, Plaintiff
“must satisfy each of these requirements: the Connick ‘matter of public concern’ requirement, the
Pickering ‘balancing’ requirement and the Garcetti ‘pursuant to’ requirement.”87
The Court holds that the Amended Complaint fails to state a ripe First Amendment
retaliation claim. For the reasons already discussed, any claim based on the possible revocation of
Plaintiff’s tenure is not yet ripe. Although the ripeness doctrine “is somewhat relaxed in the First
Amendment context,”88 Plaintiff must still show that Defendants will revoke her tenure and do so
on the basis of her complaints about her evaluations and the tenure review process. As previously
explained, there is no certainty in this case that Defendants will actually revoke Plaintiff’s tenure.89
At the time she filed her Amended Complaint, Plaintiff could only allege that Defendants “have
steadily moved toward formal revocation of her tenure.”90 In other words, Plaintiff continues to hold
tenure and receive her full salary. Furthermore, a First Amendment retaliation claim based on
Plaintiff’s prospective loss of tenure would present “difficult legal questions before they arise and
85
Dixon, 702 F.3d at 274; Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
86
Dixon, 702 F.3d at 274; Garcetti v. Ceballos, 547 U.S. 410 (2006).
87
Evans–Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 624 F.3d 332,
338 (6th Cir. 2010).
88
Lawrence v. Welch, 531 F.3d 364, 374 (6th Cir. 2008) (noting that First Amendment
retaliation claims have a “relaxed” ripeness standard).
89
90
Warshak, 532 F.3d at 526.
Pl.’s Resp. in Opp’n 14.
38
before the courts know how they will arise.”91 As the Supreme Court has noted, “[b]ecause of the
enormous variety of fact situations in which critical statements by public employees may be thought
by their superiors to furnish grounds for [retaliation], we do not deem it either appropriate or feasible
to lay down a general standard against which all such statements may be judged.”92 First
Amendment retaliation claims are inherently fact-driven and context-based. In this case the Court
would need to tackle difficult legal questions before they have actually arisen. Therefore, the Court
holds that a claim based on the possible denial of Plaintiff’s tenure is not yet “fit” for judicial review
and should be dismissed without prejudice under Rule 12(b)(1).
To the extent that the Amended Complaint can be read to allege a ripe First Amendment
retaliation claim for Plaintiff’s poor evaluations and the initiation of tenure review proceedings, the
Court holds that the pleadings fail to state such a claim. Assuming without deciding that these acts
constitute adverse actions,93 Plaintiff has alleged no facts to show that her adverse actions were
motivated in any way by her complaints to administration. In the First Amendment context, Plaintiff
must “point to specific, nonconclusory allegations reasonably linking her speech to employer
discipline.”94 The Sixth Circuit has affirmed the dismissal of a First Amendment retaliation claim
where the pleadings failed to “sufficiently allege that [the protected] conduct motivated [the adverse
91
Warshak, 532 F.3d at 526.
92
Connick, 461 U.S. at 154 (quoting Pickering, 391 U.S. at 569).
93
In order to satisfy the pleading standard for this element, Plaintiff must simply allege
an employment action which “would chill or silence a person of ordinary firmness from future
First Amendment activities.” Dye, 702 F.3d at 303. For purposes of its analysis, the Court
assumes that the negative performance reviews and the initiation of tenure review would meet
this standard.
94
Rodgers v. Banks, 344 F.3d 587, 602 (6th Cir. 2003).
39
action].”95 Therefore, dismissal of this claim is warranted for this reason alone.
Moreover, the Court holds that Plaintiff’s internal complaints about “Defendants’ repeated
violations of the provisions contained in the Faculty Handbook” and her “filing appeals of the two
(2) unsatisfactory evaluations issued by Dr. Reed” are not protected speech. The Amended
Complaint alleges that in response to her poor evaluations and tenure review proceedings, Plaintiff
“expressly and directly informed each and every individual Defendant regarding the potential 14th
Amendment implications of their conduct . . . .”96 Plaintiff has filed with her memorandum her
communications with administration raising her Fourteenth Amendment concerns.97 According to
these exhibits, Plaintiff invoked the possibility of due process violations with several administrators
prior to filing suit. For example, in a letter dated September 6, 2011, Plaintiff explained to Dr. Stern
that violations of the Faculty Handbook “will implicate the Fourteenth Amendment.”98 In all, the
exhibits show that Plaintiff mentioned the possibility of Fourteenth Amendment violations 24 times
in three separate letters addressed to Dr. Smith, Dr. Stern, and Dr. Scheid.99
Viewing the allegations of the Amended Complaint in the light most favorable to Plaintiff,
the Court holds that her internal complaints do not raise a “public concern.” Plaintiff’s letters never
95
Unger v. City of Mentor, 387 F. App’x 589, 594 (6th Cir. 2010) (affirming dismissal of
a § 1983 First Amendment retaliation claim for failing to plead causation).
96
Am. Compl. ¶ 55.
97
Pl.’s Resp. in Opp’n, ex. 2 (D.E. # 38-2). Just as with the Faculty Handbook, the Court
can consider Plaintiff’s letters without converting the Rule 12(b) Motion to a motion for
summary judgment. The Amended Complaint refers to Plaintiff’s protected speech as the basis
for her First Amendment claim. Morton Salt, 702 F.3d at 863.
98
Pl.’s Resp. in Opp’n, ex. 2 (Page ID # 362).
99
Id. (Page ID # 347–49, 354–57, 370, 387).
40
raise any complaint about public corruption or discrimination.100 Rather Plaintiff has only alleged
the possibility of constitutional violations in the event administration failed to afford her due
process. The Court construes this allegation as a “purely personal” internal employee grievance,
which does not constitute a public concern.101
Otherwise, a public employee could
“constitutionalize” any personnel matter by invoking the Due Process Clause in the course of a
personnel dispute.102 Defendants’ handling of Plaintiff’s evaluations and the review of her tenure
cannot “be fairly considered as relating to any matter of political, social, or other concern to the
community”103 or as topics “of legitimate news interest.”104 As a result, the Amended Complaint
fails to state a First Amendment claim based on this speech. Defendants’ Motion to Dismiss is
GRANTED on this issue pursuant to Rule 12(b)(6). Therefore, Defendants’ Motion to Dismiss
Plaintiff’s First Amendment retaliation claim for lack of subject matter jurisdiction and failure to
state a claim is GRANTED.
III.
Plaintiff’s Claims Under Tennessee Law
Plaintiff has alleged a series of other claims pursuant to Tennessee statute and common law.
Where the Court has original jurisdiction over a claim, the Court may exercise its supplemental
100
Whitney v. City of Milan, 677 F.3d 292, 297 (6th Cir. 2012) (“Allegations of public
corruption and discrimination are, therefore, inherently of public concern.”).
101
Van Compernolle v. City of Zeeland, 241 F. App’x 244, 250 (6th Cir. 2007); see also
Golembiewski v. Logie, 516 F. App’x 476, 477 (6th Cir. 2013).
102
Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct. 2488, 2497 (2011) (“It is precisely to
avoid this intrusion into internal governmental affairs that this Court has held that, while the
First Amendment invests public employees with certain rights, it does not empower them to
constitutionalize the employee grievance.”) (internal quotation marks omitted)).
103
Connick, 461 U.S. at 146.
104
City of San Diego, Cal. v. Roe, 543 U.S. 77, 83–84 (2004).
41
jurisdiction over Plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.105 The Court is vested
with the further discretion to decline to exercise supplemental jurisdiction under certain
circumstances.106 This includes an instance when “the district court has dismissed all claims over
which it has original jurisdiction.”107 Generally, if a federal claim is dismissed before trial, the state
claim should be dismissed as well.108 The Court has held that Plaintiff has failed to state ripe § 1983
claims against any Defendant. Having dismissed the claims over which it has original jurisdiction,
the Court declines to exercise its supplemental jurisdiction to hear Plaintiff’s remaining state law
claims. Therefore, the THRA and contract claims are dismissed without prejudice to re-file.
IV. Request to Amend the Pleadings
Having dismissed all of Plaintiff’s claims, the Court need not consider whether the Amended
Complaint states a claim against any of the individual Defendants in their individual capacities or
whether the individual Defendants are entitled to qualified immunity. At the conclusion of her
response brief, Plaintiff states, “should the Court find Plaintiff’s allegations are not sufficiently
definite to state a claim under any one of Plaintiff’s causes of actions, Plaintiff requests the Court
to allow Plaintiff leave to amend her Complaint to provide[] a more definite statement.”109 Under
the Federal Rules of Civil Procedure, a party may amend its pleading with the opposing party’s
105
28 U.S.C. § 1367(a).
106
28 U.S.C. § 1367(c).
107
28 U.S.C. § 1367(c)(1) & (3).
108
Taylor v. First of Am. Bank-Wayne, 973 F.2d 1284, 1287 (6th Cir. 1992).
109
Pl.’s Resp. in Opp’n 20.
42
written consent or the court’s leave.110 “Leave to amend a complaint should be freely given when
justice so requires after a responsive pleading has been filed.”111 A district court abuses its
discretion by denying a plaintiff leave to amend her complaint without any reason or justification.112
However, it is not an abuse of discretion to deny leave to amend without further explanation where
“the plaintiff has already amended once and then subsequently fails to file a proper motion justifying
another amendment.”113 Furthermore, the default rule in this Circuit provides that “if a party does
not file a motion to amend or a proposed amended complaint in the district court, it is not an abuse
of discretion for the district court to dismiss the claims with prejudice.”114
The Court finds that Plaintiff’s request for leave to amend is not well-taken. Plaintiff has
already amended her pleadings once as a matter of course under Rule 15(a). Plaintiff has not
supported her request to amend a second time with a properly filed motion or a proposed amended
complaint, setting forth exactly what allegations she would add to her pleadings.115 Had Plaintiff
filed a motion for leave to amend, the Court could have considered the request before ruling on the
merits of Defendants’ Motion to Dismiss the First Amended Complaint. Instead Plaintiff has made
110
Fed. R. Civ. P. 15(a)(2).
111
Mellentine v. Ameriquest Mortg. Co., 515 F. App’x 419, 425 (6th Cir. 2013) (citing
Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962)).
112
Foman, 371 U.S. at 182.
113
Mellentine, 515 F. App’x at 425 (citing Pulte Homes, Inc. v. Laborers Int’l Union of
N. Am., 648 F.3d 295, 305 (6th Cir. 2011)).
114
Ohio Police & Fire Pension Fund v. Standard & Poor’s Fin. Servs. LLC, 700 F.3d
829, 844 (6th Cir. 2012) (citation and internal quotation marks omitted).
115
See Fed. R. Civ. P. 7(b)(1) (requiring that a request for court order be made by written
motion and state with particularity the grounds for seeking the order).
43
only a bare request to amend in the last sentence on the last page of her brief. In essence, Plaintiff
has sought an advisory opinion from the Court informing her of the deficiencies of the First
Amended Complaint and then an opportunity to cure the defects.116 The Court declines to follow
such a course. What is more, several of Plaintiff’s claims are not yet ripe, and the Court dismisses
them without prejudice to re-file the claims in a subsequent pleading. Therefore, Plaintiff’s request
to amend is DENIED.
CONCLUSION
The Court holds that Plaintiff’s constitutional claims under § 1983 based on the possible loss
of her tenure are not yet ripe pursuant to Rule 12(b)(1) and are dismissed without prejudice. The
Amended Complaint fails to state Plaintiff’s other constitutional claims based on poor evaluations
and the conduct of the tenure review process. Those claims are dismissed with prejudice pursuant
to Rule 12(b)(6). The Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining
claims under Tennessee law and dismisses them without prejudice. The Court further denies
Plaintiff’s request to file a second amended pleading. Therefore, Defendants’ Motion to Dismiss
pursuant to Rule 12(b)(1) and 12(b)(6) is GRANTED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: October 16, 2013.
116
Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 459 (6th Cir. 2013); see also Begala v.
PNC Bank, Ohio, Nat’l Ass’n, 214 F.3d 776 (6th Cir. 2000).
44
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