Zimmerman v. University of Utah

Filing 149

MEMORANDUM DECISION AND ORDER: The 121 Defendants' Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. Specifically, the court orders as follows: 1) Pursuant to Dr. Zimmerman's withdrawal, Dr. Zimmerman� 39;s fifth cause of action under the Rehab Act is DISMISSED WITH PREJUDICE in its entirety. 2) The court GRANTS summary judgment IN FAVOR OF THE UNIVERSITY on Dr. Zimmerman's second cause of action under 42 U.S.C. Section 1983. 3) Dr. Zimmerman CAN STILL MAINTAIN HER SECOND CAUSE OF ACTION AGAINST DR. MCMAHON IN HIS OFFICIAL CAPACITY under 42 U.S.C. Section 1983 - but only to the extent she seeks prospective injunctive relief. 4) In all other respects, the defendants' motion is DENIED. Signed by Judge Jill N. Parrish on 7/17/18. (dla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JUDITH PINBOROUGH ZIMMERMAN,
Ph.D.,
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
THE UNIVERSITY OF UTAH and
WILLIAM McMAHON, PH.D., in his official
and individual capacities,
Defendants.

Case No. 2:13-cv-01131
District Judge Jill N. Parrish

Before the court is a Motion for Summary Judgment (ECF No. 121), filed by defendants
University of Utah and William McMahon on April 26, 2018. For the reasons below, that motion
is granted in part and denied in part.
I.

PROCEDURAL BACKGROUND

When the instant motion was filed, plaintiff Judith Zimmerman’s operative complaint
identified six causes of action: (1) violation of the Utah Protection of Public Employees Act
(“UPPEA”) against the University; (2) deprivation of Dr. Zimmerman’s liberty interest in
violation of 42 U.S.C. § 1983 against the University and Dr. McMahon; (3) deprivation of Dr.
Zimmerman’s liberty interest in violation of the Utah Constitution against the University; (4)
deprivation of Dr. Zimmerman’s right to free speech in violation of the Utah Constitution against
the University; (5) violation of the Rehabilitation Act (“Rehab Act”) against the University; (6)
and discrimination on the basis of religion in violation of Title VII of the Civil Rights Act of
1964 against the University. The defendant’s motion urges the court to grant summary judgment
on each of Dr. Zimmerman’s claims.

The day after the defendants filed their motion, Dr. Zimmerman filed a Motion to Strike
Defendants’ Motion for Summary Judgment (ECF No. 124). The court granted that motion in
part and struck portions of the instant motion. See ECF No. 136. However, the court required Dr.
Zimmerman to respond to the following issues: (1) whether the University and Dr. McMahon in
his official capacity are persons for purposes of § 1983; (2) whether the University is immune
under the Eleventh Amendment from claims under the Utah Constitution and the UPPEA; (3)
whether Dr. Zimmerman can sustain her Rehab Act claim; (4) whether compensatory and
punitive damages are available under the Rehab Act; and (5) whether Dr. Zimmerman filed a
timely undertaking. Id. at 11.
Two days later, the parties filed a notice with the court indicating that the defendants
were waiving Eleventh-Amendment immunity with respect to the claims arising under the Utah
Constitution and under the UPPEA. ECF No. 137 at 2. The notice also indicated that the
defendants withdrew their argument that Dr. Zimmerman failed to file an undertaking. Id. Then,
in Dr. Zimmerman’s response, Dr. Zimmerman consented to dismissal of her Rehab Act claim
and conceded that the University is not a person subject to liability under § 1983. ECF No. 140 at
2.
Consequently, the only issue left for the court to decide on the instant motion is whether
Dr. McMahon is subject to liability in his official capacity under § 1983.
II.

LEGAL STANDARD

Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The movant bears the initial burden of demonstrating the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has
met this burden, the burden then shifts to the nonmoving party to “set forth specific facts
2

showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). To do this, the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986).
When the nonmoving party bears the burden of proof at trial on a dispositive issue, that
party must go “beyond the pleadings” and “designate specific facts” so as to “make a showing
sufficient to establish the existence of an essential element to that party’s case.” Celotex, 477
U.S. at 322. “The plain language of Rule 56(c) mandates the entry of judgment . . . against a
party who fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.” Id. Thus,
summary judgment is not a “disfavored procedural shortcut” but rather “an integral part of the
Federal Rules as a whole” that is designed “to secure the just, speedy and inexpensive
determination of every action.” Id. at 327.
III.

DISCUSSION

Dr. Zimmerman’s second cause of action alleges deprivation of her liberty interest in
violation of § 1983. That statute provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of
any rights, privileges, or immunities secured by the Constitution and the laws,
shall be liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .
42 U.S.C. § 1983. However, a suit against Dr. McMahon in his official capacity is not a suit
against Dr. McMahon personally; rather, it is a suit against his office. See Brandon v. Holt, 469
U.S. 464, 471 (1985). Consequently, the defendants argue that a suit against Dr. McMahon in his
official capacity is not a suit against a person as required by § 1983. See ECF No. 121 at 22.

3

Dr. Zimmerman responds that Dr. McMahon, when sued for injunctive relief, is a person
under § 1983. See ECF No. 140 at 2 (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
n.10 (1989) (“Of course a state official in his or her official capacity, when sued for injunctive
relief, would be a person under § 1983 because official-capacity actions for prospective relief are
not treated as actions against the State.”) (citation omitted)). The Supreme Court first
pronounced this exception in Ex parte Young, 209 U.S. 123 (1908).
Under Ex parte Young, a state officer may be enjoined from “taking any steps toward the
enforcement of an unconstitutional enactment, to the injury of the complainant.” Id. at 159. This
permits federal courts “to vindicate federal rights and hold state officials responsible to ‘the
supreme authority of the United States.’” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 105 (1984) (quoting Ex parte Young, 209 U.S. at 160). “In determining whether the Ex parte
Young doctrine avoids an Eleventh Amendment bar to suit, a court need only conduct a
‘straightforward inquiry’ into whether the complaint alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective.” Verizon Maryland, Inc. v. Pub. Serv.
Comm’n of Maryland, 535 U.S. 635, 636 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261, 296 (1997)).
Here, Dr. Zimmerman alleges an ongoing constitutional violation in the form of her
continued exclusion from employment with the University. Normally, reinstatement is the
appropriate remedy in a wrongful discharge case under § 1983. See Jackson v. City of
Albuquerque, 890 F.2d 225, 233–34 (10th Cir. 1989) (listing cases). But Dr. Zimmerman does
not seek reinstatement specifically. Rather, with respect to her § 1983 claim, she seeks
“injunctive relief, pursuant to 42 U.S.C. § 1983 et seq., including but not limited to: back pay
and lost benefits, front pay, and attorneys’ fees and costs.” ECF No. 120 at 19. And in her prayer

4

for relief, she seeks “return of the HIPAA and FERPA data, the return of her CDC grant and
access to all materials in connection therewith, and staff correction of data errors.” Id. at 24. She
also seeks “such other further and additional relief the Court deems just and proper.” Id.
Of course, back pay, lost benefits, attorneys’ fees, and costs are not injunctive relief. And
Dr. Zimmerman’s requests for the return of HIPPA and FERPA data, for the return of her CDC
grant, and for correction of data errors are requests for retrospective relief. Cf. Idaho v. Coeur
d’Alene Tribe of Idaho, 521 U.S. at 303 (“The second condition for applying Young is that relief
be prospective, not retrospective, a bar to future violations of federal law, not recompense for
past mistakes.”). However, Dr. Zimmerman can still maintain a claim against Dr. McMahon in
his official capacity for reinstatement (and perhaps front pay, in the unlikely event that
reinstatement is not the appropriate remedy). See Starrett v. Wadley, 876 F.2d 808, 824 (10th
Cir. 1989) (“Although front pay sometimes is appropriate when reinstatement is not possible, it
is not a mandatory remedy.”).
IV.

ORDER

For the reasons above, the defendants’ motion is GRANTED IN PART AND DENIED
IN PART. Specifically, the court orders as follows:
1. Pursuant to Dr. Zimmerman’s withdrawal, Dr. Zimmerman’s fifth cause of action
under the Rehab Act is DISMISSED WITH PREJUDICE in its entirety.
2.

The court GRANTS summary judgment IN FAVOR OF THE UNIVERSITY on
Dr. Zimmerman’s second cause of action under 42 U.S.C. § 1983.

3. Dr. Zimmerman CAN STILL MAINTAIN HER SECOND CAUSE OF ACTION
AGAINST DR. MCMAHON IN HIS OFFICIAL CAPACITY under 42 U.S.C. §
1983—but only to the extent she seeks prospective injunctive relief.
4. In all other respects, the defendants’ motion is DENIED.
5

Signed July 17, 2018
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

6