Walker v. University of Tennessee Health Science Center

Filing 14

REPORT AND RECOMMENDATIONS re 7 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by University of Tennessee Health Science Center ( Objections to R&R due by 5/2/2014), ORDER re 11 MOTION for Hearing re 7 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Jerrica L. Walker. Signed by Magistrate Judge Charmiane G. Claxton on 4/18/2014. (Claxton, Charmiane)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

JERRICA L. WALKER,
Plaintiff,
Case 2:13-cv-2337-SHM-cgc
v.
THE UNIVERSITY OF TENNESSEE
HEALTH SCIENCE CENTER,
Defendant.

REPORT AND RECOMMENDATION ON
DEFENDANT=S RULE 12(b)(6) MOTION TO DISMISS COMPLAINT
ORDER DENYING PLAINTIFF=S MOTION FOR HEARING

Before the Court is Defendant The University of Tennessee=s (AUT@) Rule 12(b)(6) Motion
to Dismiss Complaint (Docket Entry AD.E.@ #7) and Plaintiff=s ARequest of Hearing of Motions
Under Local Rule 7.2(D) of Defendant=s Motion to Dismiss and to Stay Discovery@ (hereinafter,
AMotion for Hearing@). (D.E. #11). All pretrial matters in this non-prisoner pro se case have
been referred to the Magistrate Judge for management pursuant to a standing order dated April 29,
2013. For the reasons set forth herein, it is RECOMMENDED that Defendant=s Rule 12(b)(6)
Motion to Dismiss be DENIED and it is ORDERED that Plaintiff=s Motion for Hearing be
DENIED.

I. Proposed Findings of Fact
On May 23, 2013, Plaintiff Jerrica L. Walker (AWalker@), filed a pro se complaint under

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Titles IV and VI of the Civil Rights Act of 1964 and under Title IX of the Education Amendments
of 1972 (D.E. #1) against Defendant UT, alleging discrimination on the basis of sex and race,
together with a Motion for Leave to Proceed In Forma Pauperis (D.E. #2). The Court granted
such motion by order dated May 28, 2013 (D.E. #3). Defendant then filed its Rule 12(b)(6)
Motion to Dismiss (D.E. #7) and accompanying Memorandum (D.E. #7-1) on October 7, 2013 to
which Plaintiff responded on October 28, 2013 (D.E. #9). Defendant filed a Reply on November
8, 2013 (D.E. #10). On November 11, 2013, Plaintiff filed a Motion for Hearing (D.E. #11).
Walker alleges that Athis is an action for legal and equitable relief to redress race and
gender discrimination and unlawful retaliation against the plaintiff.@ (Pro Se Compl., D.E. #1, &
1). In her complaint, Walker states that she Ais an African-American female citizen of the United
States and a resident of the State of Tennessee.@ (Pro Se Compl., D.E. #1, & 2). Plaintiff
complains that after she was dismissed from UT=s College of Dentistry due to three (3) failing
grades, Aher appeal was not allowed to be heard.@ (Pro Se Compl., D.E. #1, && 19, 21).
More specifically, Plaintiff alleges that Aa similarly situated white female . . . received the
same letter grades of deficiencies and was also recommended for dismissal, however, her appeal
was allowed to be heard and she was afforded continuation.@ (Pro Se Compl., D.E. #1, & 21). It
is further alleged that Aanother African American female . . . whom had near or close to the same
credit hour deficiencies as [the white female] was not afforded to be heard as well even though she
met the criteria for her appeal to be heard. Therefore, it is indication that race discrimination
occurred.@ (Pro Se Compl., D.E. #1, & 22). In addition, Walker asserts that Aa white male
student . . . was caught forging an instructor=s signature on a major project sheet for class . . . [and]
[a]ccording to the Centerscope Handbook, this action is grounds for dismissal.

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However, [that

student] was allowed to continue his education. (Pro Se Compl., D.E. #1, & 26). Walker also
states that Aa black male student . . . failed to pass the required National Board Exam Part 1 on
more than one occasion . . . [but] the University created a >special student status= and afforded
[him] the opportunity to continue.@ (Pro Se Compl., D.E. #1, & 27). Plaintiff further claims that
during a meeting with the Dean of Academic Affairs, she was informed of a Awhite female who
was allowed to repeat her [third] year of dental school [three] times.@ (Pro Se Compl., D.E. #1, &
28). Finally, Plaintiff contends that a Ablack male student . . . made multiple Ds in December
2011 . . . [and] was allowed to take National Board Exams whereas Walker was not.@ (Pro Se
Compl., D.E. #1, & 29). That same student Awas given exemption from certain courses that was
not afforded to Walker.@ (Pro Se Compl., D.E. #1, & 29a). On June 18, 2012, Walker filed a
complaint with the U.S. Department of Education Office of Civil Rights (AOCR@). (Pro Se
Compl., D.E. #1, & 24; Ex. to Pro Se Compl., D.E. #1-1, p. 1). OCR=s investigative findings are
attached and incorporated by reference to the Plaintiff=s complaint. (Ex. to Pro Se Compl., D.E.
#1-1).

II. Proposed Conclusions of Law
A. The Rule 12(b)(6) Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a claim may be
dismissed for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6).
In assessing a motion to dismiss under Rule 12(b)(6), the court must construe the complaint in the
light most favorable to plaintiff and accept all well-pled factual allegations as true. League of
United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). A plaintiff can support

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a claim Aby showing any set of facts consistent with the allegations in the complaint.@ Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). This standard requires more than bare
assertions of legal conclusions. Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 361 (6th Cir.
2001). A[A] formulaic recitation of the elements of a cause of action will not do.@ Twombly, 550
U.S. at 555. Any claim for relief must contain Aa short and plain statement of the claim showing
that the pleader is entitled to relief.@ Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Fed. R.
Civ. P. 8(a)(2)). ASpecific 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.=@ Id. (citing Twombly, 550
U.S. at 555).
Nonetheless, a complaint must contain sufficient facts to Astate a claim to relief that is
plausible on its face@ in order to survive a motion to dismiss. Twombly, 550 U.S. at 570. AThe
plausibility standard is not akin to a >probability requirement,= but it asks for more than a sheer
possibility that defendant has acted unlawfully.@ Ashcroft v. Iqbal, 556 US. 662, 678 (2009)
(citing Twombly, 550 U.S. at 556). AThreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.@ Id. (citing Twombly, 550 U.S. at 555).
A plaintiff with no facts and Aarmed with nothing more than conclusions@ cannot Aunlock the doors
of discovery.@ Id. at 678B79. On a motion to dismiss, a court is generally limited to the
complaint and exhibits attached thereto, but it may also consider Apublic records, items appearing
in the record of the case, and exhibits attached to defendant=s motion to dismiss so long as they are
referred to in the complaint and are central to the claims contained therein.@ Erie County, Ohio v.
Morton Salt, Inc., 702 F.3d 860, 863 (6th Cir. 2012) (quoting Bassett v. Nat=l Coll. Athletic Ass=n,
528 F.3d 426, 430 (6th Cir. 2008)).

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Pleadings and documents filed by pro se litigants are to be "liberally construed,@ and a "pro
se complaint, however inartfully pleaded, must be held to a less stringent standard than formal
pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). However, "the lenient treatment generally accorded to pro se
litigants has limits." Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing Jourdan v.
Jabe, 951 F.2d 108, 110 (6th Cir. 1991)). The basic pleading essentials are not abrogated in pro
se cases. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). A pro se complaint must still
"contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face." Barnett v. Luttrell, 414 Fed. Appx. 784, 786 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at
678) (internal quotations and emphasis omitted).

District courts "have no obligation to act as

counsel or paralegal" to pro se litigants. Pliler v. Ford, 542 U.S. 225, 231 (2004). They are also
not "required to create" a pro se litigant's claim for him. Payne v. Secretary of Treasury, 73 Fed.
Appx. 836, 837 (6th Cir. 2003).
B. Titles VI and IX Discrimination Claims
Plaintiff asserts her claims under Title VI of the Civil Rights Act of 1964 and Title IX of
the Education Amendments of 1972. (Pro Se Compl., D.E. #1, & 1). Title VI provides:
No person in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.
42 U.S.C. ' 2000d; see also 34 C.F.R. Part 100 (Title VI regulations). Likewise, Title IX
provides:
No person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance.
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20 U.S.C. ' 1681(a); see also 34 C.F.R. Part 106 (Title IX regulations).
In assessing a plaintiff=s Title IX discrimination and retaliation claims, courts employ the
same legal framework used in Title VII claims. 1 See Thomas v. Meharry Med. College, No.
3:12-00929, 2014 U.S. Dist. LEXIS 22226, at *17 (M.D. Tenn., Feb. 20, 2014) (citing Fuhr v.
Hazel Park Sch. Dist., 710 F.3d 668, 673 (6th Cir. 2013)); see also Nelson v. Christian Bros. Univ.,
226 Fed. Appx. 448, 454 (6th Cir. 2007) (AGenerally, courts have looked to Title VII, 42 U.S.C. '
2000e, as an analog for the legal standards in both Title IX discrimination and retaliation claims.@).
ATitle VI and Title VII cases employ the same analytical framework.@ Gabriel v. Albany College
of Pharm. & Health Sciences, No. 2:12-cv-14, 2013 U.S. Dist. LEXIS 116001, at *16 (D. Vt.,
Aug. 16, 2013).
Defendant argues that Plaintiff=s Titles VI and IX claims must be dismissed because her
complaint fails to allege facts that would constitute direct discrimination or facts sufficient to
support a prima facie case of discrimination. Without direct evidence, Defendant would have
Plaintiff plead that: (1) she is a member of a protected class; (2) she suffered an adverse action at
the hands of the defendant in pursuit of her education; (3) she was qualified to continue in pursuit
of her education; and (4) she was treated differently from similarly situated students who are not
members of the protected class. 2 In applying such standard, Defendant asserts that Plaintiff has
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Under Title VII jurisprudence, plaintiffs may make their showing of discriminatory
intent for disparate-treatment claims either through direct or circumstantial evidence. See
Serrano v. Cintas Corp., 699 F.3d 884, 892 (6th Cir. 2012) (citing Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 511B12 (2002)); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973) (stating that Ato advance a disparate treatment claim, a plaintiff must show that the
employer has a discriminatory motive, which may be shown by direct evidence or through
inference based on a prima facie showing of discrimination@).
2

Bell v. Ohio State University, 351 F.3d 240, 253 (6th Cir. 2003) (modifying the prima
facie case for employment discrimination under McDonnell Douglas which requires plaintiffs to
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Afailed to allege facts indicating she can satisfy her burden to meet either the third prong or the
fourth prong of the prima facie test, and these failures on her part provide two separate and
independent bases for dismissing the case.@ (Def.=s Mem. in Supp. Mot. Dismiss, D.E. #7-1, p. 9).
While it is true that absent direct evidence of discrimination, a plaintiff must prove her case
circumstantially under the framework set forth in McDonnell Douglas, Athe prima facie case under
McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement@ and is therefore
inappropriate in evaluating a motion to dismiss. Swierkiewicz, 534 U.S. at 510. In Swierkiewicz,
the United States Supreme Court expressly held that Aan employment discrimination complaint
need not include such facts and instead must contain only Aa short and plain statement of the claim
showing that the pleader is entitled to relief.@ Id. at 508; see also Fed. R. Civ. P. 8(a)(2). Indeed,
the Supreme Court reversed the Second Circuit=s affirmation of a dismissal that had required Aa
plaintiff in an employment discrimination complaint to allege facts constituting a prima facie case
of discrimination under the framework set forth by . . . McDonnell Douglas.@ Swierkiewicz, 534
U.S. at 509.

put on proof that: (1) plaintiff is a member of a protected class; (2) plaintiff was qualified for the
job; (3) plaintiff suffered an adverse employment decision; and (4) plaintiff was replaced by a
person outside the protected class or treated differently than similarly situated non-protected
employees for application in the academic context).
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The Sixth Circuit has recognized that even after Twombly and Iqbal, Swierkiewicz remains
good law and continues to apply it. See Serrano, 699 F.3d at 897 (citing Keys v. Humana, Inc.,
684 F.3d 605, 609 (6th Cir. 2012)). Moreover, the Sixth Circuit has followed the Second and
Ninth Circuits in applying Swierkiewicz to claims of discrimination arising outside of the
employment context. See Muslim Cmty. Ass=n of Ann Arbor & Vicinity v. Pittsfield Charter Twp.,
947 F. Supp. 2d 752, 765 (E.D. Mich. 2013) (citing Lindsay v. Yates, 498 F.3d 434, 439 (6th Cir.
2007)); see also Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 72 (2d Cir. 2006) (AThe
Swierkiewicz holding applies with equal force to any claim . . . that the McDonnell Douglas
framework covers.@); Edwards v. Marin Park, Inc., 356 F.3d 1058, 1062 (9th Cir. 2004) (AWhile
Swierkiewicz arose in the context of employment discrimination, its reasoning applies to any claim
to which the McDonnell Douglas framework is applicable.@). The Court must then, by analogy,
review the complaint in the instant case under Rule 8(a).
In Swierkiewicz, the Supreme Court held that a discrimination complaint Aeasily satisfie[d]
the requirements of Rule 8(a) because it [gave] respondent fair notice of the basis for petitioner=s
claims@ by Aalleg[ing] that he had been terminated on account of his national origin[,] . . .
detail[ing] the events leading to his termination, provid[ing] relevant dates, and includ[ing] the
ages and nationalities of at least some of the relevant persons involved with his termination.@
Swierkiewicz, 534 U.S. at 514. Likewise, here, Plaintiff has alleged that she was dismissed on the
basis of sex and/or race by stating that she is an African-American female; detailed the events
leading to her dismissal; provided relevant dates; and included not only the sex and race of
students allegedly given preferential treatment, but their names as well.

Given the liberal

pleading requirement at this stage of the litigation, the Court finds that Plaintiff=s complaint
provides sufficient factual allegations to state a claim for relief that is plausible on its face and that
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is enough to survive Defendant=s Motion to Dismiss. As noted in Swierkiewicz, Rule 8(a)
establishes a pleading standard without regard to whether the claim will succeed on the merits and
Aindeed it may appear on the face of the pleadings that recovery is very remote and unlikely but
that this not the test.@ Id. at 515 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). AClaims
lacking merit may be dealt with through summary judgment under Rule 56.@ Id. at 514.

As a final matter, Plaintiff has requested a hearing on Defendant=s Motion to Dismiss Adue
to the complexity of this case and the Defendant=s failure to address concerns regarding unfair
treatment, discrimination and retaliation as well [as] to address their cover-up action that led up to
the faculty=s subjective >professional= judgment that played a part in her May 2012 dismissal from
the College of Dentistry.@ (Mot. for Hearing, D.E. #11, p. 1). Because a motion to dismiss is
resolved by looking to the face of the complaint and the allegations contained therein, the Court
finds Plaintiff=s request for hearing unnecessary in its determination of the same.

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III. Conclusion
For the reasons set forth herein, it is recommended that Defendant=s Rule 12(b)(6) Motion
to Dismiss Complaint be DENIED and Plaintiff=s Motion for Hearing be DENIED.
Signed this 18th day of April, 2014.

s/ Charmiane G. Claxton
CHARMIANE G. CLAXTON
UNITED STATES MAGISTRATE JUDGE
ANY OBJECTIONS OR EXCEPTIONS TO THIS REPORT MUST BE FILED WITHIN
FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THE REPORT.
28 U.S.C. ' 636(b)(1)(C). FAILURE TO FILE THEM WITHIN FOURTEEN (14) DAYS
MAY CONSTITUTE A WAIVER OF OBJECTIONS, EXCEPTIONS, AND ANY
FURTHER APPEAL.

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