Omachonu, Florence v. Board of Regents of the University of Wisconsin System et al

Filing 23

OPINION and ORDER denying as moot 9 Motion to Dismiss; granting in part and denying in part 18 Motion to Dismiss. Signed by District Judge William M. Conley on 7/24/2015. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

FLORENCE E. OMACHONU,
Plaintiff,

OPINION & ORDER

v.
15-cv-69-wmc
DENNIS J. SHIELDS,
ELIZABETH A. THROOP
and ALISON B. BUNTE
Defendants.

In this suit brought under 42 U.S.C. §§ 1981 and 1983, plaintiff Florence E.
Omachonu asserts claims of discrimination on the basis of race and national origin
against defendants Dennis J. Shields, Elizabeth A. Throop, and Alison B. Bunte, all of
whom held positions of authority at the University of Wisconsin-Platteville and allegedly
participated in decisions to deny Dr. Omachonu tenure and terminate her employment.
Currently before the court is defendants’ renewed motion to dismiss.1

First, the

defendants seek dismissal of all 42 U.S.C. § 1981 claims based on the premise that
§ 1983 provides the exclusive remedy for the violations alleged. Additionally, defendant
Alison Bunte contends that:

(1) plaintiff’s amended complaint fails to allege facts

establishing her personal involvement in the alleged discrimination; and (2) she is
entitled to qualified immunity in any event.

1

Defendants initially filed a motion to dismiss (dkt. #9), in response to which plaintiff filed an
amended complaint (dkt. #12). Defendants then filed a renewed motion to dismiss, representing
that their initial motion and brief were applicable to the amended complaint as well. (Dkt. #18.)
Thus, the original motion to dismiss requires no further discussion and will be denied as moot.

For reasons more fully explained below, the court will grant defendants’ motion to
dismiss plaintiff’s § 1981 claims because that section provides no separate remedy for
conduct by state actors independent of the remedies provided by § 1983. However, the
court will deny the motion to dismiss with respect to the claims against Bunte. At this
stage in the proceedings, plaintiff must only sufficiently state a cause of action and
“allege—not prove—the deprivation of a constitutional right.” Tamayo v. Blagojevich, 526
F.3d 1074, 1090 (7th Cir. 2008).

Whatever factual hurdles still await plaintiff, her

amended complaint satisfies this lower bar.

ALLEGATIONS OF FACT2
I.

The Parties
Plaintiff Florence E. Omachonu, Ed. D., was hired as an assistant professor in the

School of Education at the University of Wisconsin-Platteville in December of 2007,
where she taught until May of 2014.

Omachonu is a native of Nigeria and African

American by race.
Throughout this same period to the present, defendant Dennis Shields was and is
the Chancellor and chief executive of the University of Wisconsin-Platteville. Chancellor
Shields is responsible for screening candidates for promotion and tenure, as well as
making recommendations on tenure to the Board of Regents.

2

For purposes of this decision, the court accepts, as it must, all of the well-pled factual allegations
in the amended complaint as true, drawing all inferences in Dr. Omachonu’s favor. Killingsworth v.
HSBC Bank Nev. N.A., 507 F.3d 614, 618 (7th Cir. 2007).

2

Since June of 2012, defendant Elizabeth Throop has been the Dean of the College
of Liberal Arts and Education at the University of Wisconsin-Platteville. Dean Throop is
responsible for the administration of the College of Liberal Arts.
Through July of 2011, defendant Alison Bunte was the Director of the School of
Education at the University of Wisconsin-Platteville. As Director, she was responsible
for staffing and course scheduling.

II.

Dr. Omachonu’s Employment and Alleged Discrimination by Bunte
In 2010, the former Dean of the College of Liberal Arts and Education at the

University of Wisconsin-Platteville, Mittie Van Herder, wrote to the Vice Chancellor and
Provost to recommend that then Assistant Professor Omachonu be retained for the 20112012 academic year, on the conditions that she continue her progress towards a doctoral
degree and achieve progress in specific areas of teaching effectiveness.
In June of 2010, School of Education Director Bunte wrote to Omachonu about
concerns raised in student evaluations “regarding the clarity of [her] instruction.”
Omachonu alleges that Bunte only reviewed disgruntled students’ evaluations, and that
she then compared these negative evaluation scores against the scores given to faculty
members who were not similarly situated.
Sometime after the June 2010 memo, Bunte assigned Omachonu to teach a larger
number of classes; Omachonu alleges her workload was not comparable to the number of
classes Bunte assigned to other, similarly situated faculty members. Bunte also allegedly
changed Omachonu’s schedule and responsibilities at different times without her input,
3

while treating other, similarly situated faculty members differently. Around this same
time, Omachonu first raised concerns that Bunte was discriminating against her.
Omachonu met with other university administrators, but the issues were apparently not
resolved successfully. Sometime in 2010 or early 2011, Bunte stepped down from her
director position.3
In February of 2011, the new Director of the School of Education, Karen Stinson,
wrote to Omachonu (1) affirming “her progress towards tenure”; (2) commending “her
past efforts”; and (3) noting that “she must complete her doctorate before 2012 (her
tenure year).”

(Am. Compl. (dkt. #12) ¶ 28).

Stinson also advised Omachonu to

“review her syllabus to ensure greater clarity for students” and “continue to improve her
teaching skills.” (Id.) In April of 2011, Chancellor Shields unconditionally reappointed
Omachonu for the 2012-2013 academic year.
In early 2012, Omachonu received her doctoral degree in education. After the
completion of her doctorate, Chancellor Shields again unconditionally reappointed
Omachonu in April of 2012 for the 2013-2014 academic year.

III.

Denial of Tenure and Subsequent Termination of Employment
In January of 2013, the tenured faculty of the School of Education and Director

Karen Stinson recommended unanimously that Omachonu receive tenure and voted to
promote her to associate professor.

Despite their recommendation, Dean Elizabeth

Throop wrote a letter to Chancellor Dennis Shields in March of 2013 to recommend

3

Bunte allegedly retired fully from the University of Wisconsin-Platteville in July of 2011.

4

against granting Omachonu tenure and a promotion. Dean Throop’s recommendation
was allegedly based on the “allegations” made by then Director Bunte in 2010 “following
[her] selective review of student evaluations.” (Am. Compl. (dkt. #12) ¶ 34.) According
to plaintiff, basing a tenure recommendation and promotion on student evaluations is “in
direct contravention of the criteria for decisions relating to renewal appointments and
recommending tenure in Wis. Admin. Code § UWS 3.06(1)(b),” and does not compare
to the manner in which tenure recommendations have been made for similarly situated
faculty members. (Id. at ¶ 35).
Nevertheless, Chancellor Shields informed Omachonu by letter dated April 16,
2013, that he would not recommend her for tenure. Omachonu appealed that decision,
but Chancellor Shields reaffirmed his refusal to recommend Omachonu for tenure to the
Board of Regents in a letter dated June 19, 2013. At that time, Chancellor Shields also
informed Omachonu that her tenure-track appointment would “terminate as of May
2014 and that she would not be retained for the 2014-2015 academic year.” (Id. at
¶ 39).
Based on the above, Dr. Omachonu alleges that Chancellor Shields, former
Director Bunte and Dean Throop all engaged in willful, unlawful discrimination against
her on the basis of race and national origin, causing her substantial harm. Specifically,
Omachonu alleges that as a direct and proximate cause of the defendants’ actions, she
suffered lost wages, lost benefits, physical and emotional distress, loss of reputation,
injury to career, and loss of future earning capacity.

5

OPINION
I. § 1981 Claims
Defendants first move to dismiss Omachonu’s § 1981 racial discrimination claims.
Section 1981 grants equal rights under the law to all and forbids race discrimination,
stating that “[a]ll persons within the jurisdiction of the United States shall have the same
right . . . and . . . the full and equal benefit of all laws and proceedings . . . as is enjoyed
by white citizens.” 42 U.S.C. § 1981(a). Defendants do not maintain that the alleged
facts do not implicate plaintiff’s rights under § 1981, but rather that § 1983 provides the
exclusive remedy for any alleged violations of § 1981 rights by state actors.
As defendants point out, the Supreme Court addressed this issue in the damages
context in Jett v. Dallas Independent School District, 491 U.S. 701 (1989). In Jett, a school
fired a white football coach due to conflicts over policies in combination with the
composition of the school changing from predominantly white to predominantly black.
Jett, 491 U.S. at 705-06. The coach claimed that the school fired him because of his race,
contending that the school wanted to replace him with a black coach. Id. at 706. Among
other claims, he sought to hold the school district liable under § 1981 based on a theory
of respondeat superior. The Fifth Circuit Court of Appeals rejected that theory, holding
that respondeat superior was not a viable theory of liability with respect to § 1981 claims
against local governmental bodies. Id. at 712.
The Supreme Court affirmed the Fifth Circuit’s holding after a thorough analysis
of the surrounding legislative history.

The Court concluded that although it had

previously found an implied damages remedy existed in § 1 of the Civil Rights Act of

6

1866 to effectuate § 1981’s guarantee of rights in the context of private actors, it had no
power to do so in the context of state actors, because “Congress has established its own
remedial scheme” in § 1983. Id. at 731. Accordingly, the Court held that “Congress
intended that the explicit remedial provisions of § 1983 be controlling in the context of
damages actions brought against state actors alleging violation of the rights declared in
§ 1981.” Id. Thus, because § 1983 does not allow for a theory of respondeat superior, Jett
had to “show that the violation of his ‘right to make contracts’ protected by § 1981 was
caused by a custom or policy within the meaning of Monell [v. Dep’t of Social Servs. of N.Y.,
436 U.S. 658 (1978)] and subsequent cases.” Jett, 491 U.S. at 735-36.
While Jett dealt specifically with damages actions, the Seventh Circuit found that
§ 1981 does not create a private right of action against state actors generally in Campbell
v. Forest Preserve District of Cook County, Illinois, 752 F.3d 665 (7th Cir. 2014).

In

Campbell, the Forest Preserve District of Cook County, a state actor, fired the plaintiff.
Campbell, 752 F.3d at 666. Campbell claimed that he was fired because of his race in
violation of both § 1981 and § 1983.

Id.

Apparently conceding that the statute of

limitations in Illinois barred his § 1983 claims, Campbell sought leave to maintain a
claim under § 1981, believing these claims to be timely.

Id. at 666-67.

The court

rejected his attempts, holding that § 1981 “does not create a private right of action
against state actors.” Id. at 671. As a result, Campbell’s complaint “fail[ed] to state a
claim upon which relief can be granted.” Id. In so holding, the Seventh Circuit also
explicitly reaffirmed that § 1983 provides the exclusive remedy for a state actor’s
violations of § 1981. Id.; accord Ball v. City of Indianapolis, 760 F.3d 636 (7th Cir. 2014)
7

(holding that § 1983 is the sole avenue of relief against a state actor); McCormick v. Miami
Univ., 693 F.3d 654 (6th Cir. 2012) (stating that under Jett, § 1981 cannot be used to
sue a state actor in his or her official or individual capacity); Pittman v. Or., Emp’t Dep’t,
509 F.3d 1065, 1071-72 (9th Cir. 2007) (stating that although the Eleventh
Amendment does not bar prospective injunctive relief, the holding in Jett bars any cause
of action against state actors under § 1981). Moreover, the court in Campbell did not
distinguish between damages and injunctive relief; its holding appears to foreclose all
federal remedies under § 1981. See Campbell, 752 F.3d at 671; see also Goldberg v. 401 N.
Wabash Venture LLC, 755 F.3d 456, 467 (7th Cir. 2014) (noting that “the prohibitions
in 42 U.S.C. § 1981 are enforced against state actors by suits under section 1983,
because section 1981 does not provide remedies against state actors for violation of its
prohibitions”); De v. City of Chi., 912 F. Supp. 2d 709, 725 (N.D. Ill. 2012) (“The
Seventh Circuit has interpreted Jett to stand for the proposition that § 1983 is the
exclusive means of enforcing the rights secured by § 1981 against state actors, and that §
1983 is the exclusive means of bringing suit under § 1981.”).
While a finding that § 1981 does not extend a private right of action against state
actors says nothing about the viability of plaintiff’s discrimination claims under § 1983,
the holdings in Campbell and Jett do mean that she cannot maintain a separate § 1981
claim against the defendants here.

While § 1981 creates rights, § 1983 provides the

remedy for violation of those rights. See McGovern v. City of Philadelphia, 554 F.3d 114,
116 (3d Cir. 2009) (quoting Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 384 (1918))
(noting that a “right is a well[-]founded or acknowledged claim; a remedy is the means
8

employed to enforce a right or redress an injury”); De, 912 F. Supp. 2d at 726; Sledge v.
Dist. of Columbia, 869 F. Supp. 2d 140, 143-45 (D.D.C. 2012). Even after the 1991
amendments, Congress neither explicitly created a § 1981 remedy nor expressed an
intent to overrule Jett. Sledge, 869 F. Supp. 2d at 144-45. Thus, while § 1981 creates
rights, it did not create a remedy, except against private actors. See Campbell, 752 F.3d at
670-71. Thus, § 1983 remains the only vehicle for enforcement for violations of § 1981
by state actors. Id.
In her reply, Omachonu acknowledges that monetary damages against government
officials sued in their official capacities are only available under § 1983 (Pl.’s Reply (dkt.
#19) 3), but she nevertheless argues that she may still seek injunctive relief from state
officers under § 1981, since the Eleventh Amendment does not bar such suits.

In

support, plaintiff points to Agrawal v. Montemagno, 574 F. App’x 570 (6th Cir. 2014),
which permitted a § 1981 claim for injunctive relief to go forward because the defendants
were named in their official capacities and the Eleventh Amendment does not bar such
suits. Id. at 578. As does this court above, Agrawal cites McCormick, in which the Sixth
Circuit found that the Eleventh Amendment does not preclude suits against individual
officials sued in their official capacity for “prospective injunctive relief.” McCormick, 693
F.3d at 661-62; see also Ex parte Young, 209 U.S. 123 (1908) (finding that prospective
equitable relief is available against state officials when they engage in violations of federal
law); Elliot v. Hinds, 786 F.2d 298, 301-02 (7th Cir. 1986) (stating that prospective relief
falls outside of the prohibitions of the Eleventh Amendment). Contrary to plaintiff’s
suggestion, however, McCormick also: (1) concluded that “Jett bars a § 1981 claim against
9

an individual state actor sued in his or her individual capacity” and (2) reaffirmed that “a
plaintiff cannot use § 1981 to sue a state actor in his or her official capacity.” McCormick,
693 F.3d at 660-61. In contrast, Agrawal does not address this question at all. In the
end, while the Agrawal court relies on McCormick’s reasoning about the Eleventh
Amendment preclusion of suits against individual officials for injunctive relief, a
straightforward proposition, it does not speak to the lack of any remedy under § 1981 for
suits against individual state officials.
That question was resolved by Jett and Campbell, at least for purposes of this court,
which is bound by both decisions. As a result, while the Eleventh Amendment does not
bar the plaintiff’s separate § 1981 claims, Jett and the subsequent Seventh Circuit
decisions interpreting Jett do. Therefore, the exclusive remedy for Omachonu’s claims of
discrimination is § 1983, and all independent § 1981 claims will be dismissed for failure to
state a claim upon which relief can be granted.

II. Defendant Bunte
Defendants also move to dismiss the claims against Alison Bunte altogether,
arguing that:

(1) Bunte was not personally involved in the denial of tenure or

termination; and (2) Bunte is entitled to qualified immunity. The court will address each
argument in turn.

10

A. Bunte’s Personal Involvement and “Cat’s Paw” Theory of Liability
Any damages suit under § 1983 “requires that a defendant be personally involved
in the alleged constitutional deprivation.” Matz v. Klotka, 769 F.3d 517, 528 (7th Cir.
2014).

Given that Bunte had been gone for some three years when Dean Throop

recommended against granting Omachonu tenure and Chancellor Shields accordingly
refused to recommend her, plaintiff does not claim that Bunte herself took those adverse
employment actions against her. Rather, plaintiff’s theory is that Bunte, despite her long
absence, was still personally involved in the adverse actions she identifies under the socalled “cat’s paw” theory of liability.
Cat’s paw liability may be imposed when a plaintiff can show that “an employee
with discriminatory animus provided factual information or other input that may have
affected the adverse employment action” taken by another. Smith v. Bray, 681 F.3d 888,
897 (7th Cir. 2012) (quoting Alexander v. Wis. Dep’t of Health & Family Servs., 263 F.3d
673, 684 (7th Cir. 2001)). To be liable under this theory, a defendant must act in a way
that is (1) motivated by discriminatory animus, (2) “intended . . . to cause an adverse
employment action,” and (3) the proximate cause of the adverse employment action.
Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011) (emphasis removed).
The proximate cause requirement follows common-law tort principles, asking
whether the discriminatory acts by the supervisor were a “causal factor” in the ultimate
adverse employment action. Smith, 681 F.3d at 900. There must be some proof of a
“causal nexus” between the discriminatory act and the adverse employment action. See
Fleishman v. Continental Cas. Co., 698 F.3d 598, 605-06 (7th Cir. 2012) (citing Geier v.
11

Medtronic, Inc., 99 F.3d 238, 242 (7th Cir. 1996)). This requirement is satisfied by proof
that the actor who ultimately makes the decision about the adverse employment action
relied on facts given to him or her by the biased supervisor. See Staub, 562 U.S. at 421.
In Johnson v. Koppers, Inc., 726 F.3d 910 (7th Cir. 2013), for example, the plaintiff’s coworker allegedly filed a false report claiming that Johnson had called him racial and
gender-based slurs, which resulted in the employer, Koppers Inc., suspending her. Id. at
913. When Johnson later got into a physical altercation with the co-worker, Koppers
terminated her employment. Id. at 913-14. Johnson sued under the cat’s paw theory,
arguing that her co-worker harbored discriminatory animus against her because of her
race and gender.

Id. at 914-15.

The Seventh Circuit noted that in order to show

proximate cause, Johnson had to show that the co-worker’s allegedly false report was the
“proximate cause” of her termination.

Id. at 915.

Because she was not terminated

directly due to the allegedly false story, but rather due to the intervening altercation, the
court concluded that Johnson could not establish the proximate cause to prove her
discrimination claim. Id.
Keeping these principles in mind, the court turns to the question of whether
Omachonu has pled sufficient facts to establish Bunte’s personal involvement in the
denial of tenure via cat’s paw liability, particularly whether her involvement is too remote
to be causal. At the motion to dismiss stage, Omachonu need only plead facts that, if
true, would establish the three elements of a cat’s paw theory of liability with respect to
Bunte. Considering all of the alleged facts in plaintiff’s amended complaint in the light
most favorable to the plaintiff, there is sufficient circumstantial evidence to infer that
12

Bunte’s discriminatory animus may have motivated her action sufficiently to satisfy the
first element of the cat’s paw theory for pleading purposes. Plaintiff pled that Bunte (1)
limited her evaluation to take only negative student reviews into account, (2) overloaded
plaintiff with classes, and (3) repeatedly changed plaintiff’s teaching schedule, all under
circumstances evincing discriminatory animus. (Am. Compl. (dkt. #12) ¶¶ 21-25). Of
course, this assumes that plaintiff can ultimately prove that all of these actions were, as
pled, due to Bunte’s animus towards plaintiff’s race and national origin.
The second element of a cat’s paw theory -- intent to cause an adverse
employment action -- is also adequately pled. Bunte’s alleged discriminatory acts and
negative evaluation of Omachonu in 2010 allow for the reasonable inference of a general
intent to harm Omachonu’s career, even if Bunte did not specifically intend for her
actions to cause the 2013 denial of tenure and subsequent termination of employment.
See Alexander, 263 F.3d at 684 (quoting Eiland v. Trinity Hosp., 150 F.3d 747, 752 n.1
(7th Cir. 1998)) (stating that summary judgment would be improper if the plaintiff can
show that the employee with discriminatory animus provided “factual information or
other input that may have affected the adverse employment action”).
In order to satisfy the final element of the cat’s paw theory of liability, Bunte’s
negative evaluation and discriminatory acts, as pled, must be sufficiently connected to
the harm Omachonu suffered in order to establish proximate cause. See Johnson, 726 F.3d
at 915; Jajeh v. Cnty. of Cook, 678 F.3d 560, 572 (7th Cir. 2012). In the case at hand, at
least as pled, the denial of tenure and termination of her employment purportedly flowed
directly from Bunte’s negative 2010 allegations.
13

Specifically, Dean Throop allegedly

based her March 12, 2013, letter recommending against plaintiff’s tenure and promotion
on Bunte’s assertions from 2010. (Am. Compl. (dkt. #12) ¶ 34.)
Quite understandably, Bunte’s primary challenge to this element is one of
remoteness in time: she contends that her allegedly discriminatory actions in 2010 and
the termination and denial of tenure in 2013 are too temporally remote to be a
proximate cause. On summary judgment, or perhaps at trial, this three-year gap may well
prove a decisive defect in plaintiff’s theory, but defendants’ emphasis on timing is
premature at the notice pleading stage.
As an initial matter, defendants cite no case suggesting that there is any sort of
bright-line, “three-year time bar” for proving causation as a matter of law, particularly
under a cat’s paw theory of liability. Furthermore, the cat’s paw doctrine incorporates
principles of common law proximate cause; the “key question is whether the nondecision-maker’s actions were a ‘causal factor’ . . . in the termination decision.” Smith,
681 F.3d at 900. Based on the facts as pled, Bunte’s 2010 letter was the primary, if not
sole, cause of the 2013 discriminatory actions against plaintiff, which suffices to allege
proximate cause. See Staub, 562 U.S. at 419 (“Proximate cause requires only ‘some direct
relation between the injury asserted and the injurious conduct alleged,’ and excludes only
those ‘link[s] that are too remote, purely contingent, or indirect.’”) (quoting Hemi Grp.,
LLC v. City of N.Y., 559 U.S. 1, 9 (2010)).
However unlikely Omachonu’s allegations may ultimately prove to be, there is
nothing in this limited record to permit, much less compel, an inference that other
intervening events were the proximate cause of plaintiff’s denial of tenure and
14

termination.

Cf. Johnson, 726 F.3d at 915 (intervening physical altercation between

plaintiff and co-worker, not earlier false report, was proximate cause of plaintiff’s
termination). At the Rule 12(b)(6) stage, the court cannot speculate as to what other
facts bearing on causation might be behind the complaint.
Obviously, the substantial gap in time between the actions allegedly intended to
cause an adverse employment action and the action itself “might lessen [the] evidentiary
punch [of those actions], but the passage of time does not make them inadmissible.”
Perez v. Thorntons, Inc., 731 F.3d 699, 710 (7th Cir. 2013) (reversing grant of summary
judgment for the defendant based in part on “remarks, which were made about a year
before [plaintiff’s] termination”). On summary judgment, defendants may well be able
to introduce evidence that other, intervening events were the proximate cause of
Omachonu’s tenure denial and termination, or at least that Bunte’s alleged actions were
not.

Without the benefit of that record, however, the court cannot assume that

Omachonu will be unable to prove causation based solely on the passage of time.
Accordingly, this question is better decided on summary judgment or at trial. See, e.g.,
Smith, 681 F.3d at 899-900 (causation under cat’s paw liability theory analyzed at
summary judgment); Howe v. Sears, Roebuck & Co., 990 F. Supp. 2d. 913, 926 (W.D. Wis.
2014) (whether plaintiff’s protected activity was causally connected to her later
termination analyzed on summary judgment); Bostwick v. Watertown Unified Sch. Dist., No.
13-C-1036, 2015 WL 520701, at *7 (E.D. Wis. Feb. 9, 2015) (same).
Because plaintiff alleges facts that permit the court to infer a causal nexus between
Bunte’s allegedly discriminatory acts and Omachonu’s termination -- albeit a nexus
15

vulnerable to challenge at summary judgment due to the passage of significant time
between the two -- she has sufficiently pled the third element of the cat’s paw theory of
liability to survive a motion to dismiss. The court will, therefore, deny the motion to
dismiss for lack of personal involvement.
B. Qualified Immunity
In the alternative, defendants argue that the court should dismiss Bunte because
she is entitled to qualified immunity. Specifically, defendants argue that Bunte’s alleged
actions do not constitute a clear violation of Dr. Omachanu’s constitutional rights.
Qualified immunity is an affirmative defense that requires the defendant to show the
objective reasonableness of his or her conduct. Harlow v. Fitzgerald, 457 U.S. 800, 818-19
(1982). Its purpose is to shield government officials from liability (and thereby make
them comfortable acting in the public interest) when their conduct does not violate a
“clearly established statutory or constitutional rights of which a reasonable person would
have known.” Id. at 818. The test is objective and asks whether the government official
“knew or reasonably should have known that the action . . . would violate the
constitutional rights of the [plaintiff].” Id. at 815.
An immunity defense is usually very fact-intensive, generally making dismissal at
the pleading stage inappropriate. Indeed, a plaintiff is not “required initially to plead
factual allegations that anticipate and overcome a defense of qualified immunity.”
Alvarado v. Litscher, 267 F.3d 648, 651-52 (7th Cir. 2001) (quoting Jacobs v. City of Chi.,
215 F.3d 758, 765 n.3 (7th Cir. 2000)). This makes Rule 12(b)(6) “a mismatch for
immunity and almost always a bad ground for dismissal.” Id. at 652 (quoting Jacobs, 215
16

F.3d at 775(Easterbrook, J., concurring)).

If the unlawfulness of the government

official’s conduct as pled is not clearly established, however, then the government official
could be entitled to qualified immunity, even if the defense is asserted at the pleading
stage. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
In this case, plaintiff’s claims are based on a clearly established right to be free
from discrimination in employment based on race and national origin. See McDonald v.
Santa Fe Trail Transp. Co., 427 U.S. 273, 278-79 (1976) (citing Title VII of the Civil
Rights Act of 1964). In addition to § 1981 and § 1983, many other federal statutes and
cases speak to this right. Assuming Omachonu’s allegations to be true, as the court must
at this stage, Bunte’s conduct in particular would be clearly unlawful. Bunte is alleged to
have made statements about Omachonu and made her circumstances more difficult for
discriminatory reasons, and the court has concluded it is reasonable to infer she intended
negative effects to result from those acts. Because a reasonable state employee would
have known that discrimination based on a person’s race or national origin violates a
right clearly established in the Constitution and several federal statutes, defendant
cannot currently satisfy the objective requirement of the immunity defense. At this stage
of the proceedings, Omachonu need only “allege -- not prove -- the deprivation of a
constitutional right.” Tamayo, 526 F.3d at 1090.
While it may later become apparent that Bunte’s negative evaluation and the
assignment of a heavy teaching schedule to Omachonu in 2010 were not motivated by
discriminatory animus or intended to cause any kind of long-term, adverse employment
action, or that they were not a proximate cause of plaintiff’s denial of tenure and
17

termination some years later, the court must assume the truth of the specific allegations
to the contrary in evaluating Omachonu’s claims against Bunte at the motion to dismiss
stage.

Therefore, she will not be dismissed from the suit at this time on qualified

immunity grounds.
III. Leave to Amend
Finally, defendants request that Dr. Omachonu’s § 1981 claims be dismissed with
prejudice.4 Dr. Omachonu has not explicitly requested leave to amend her complaint in
the event that the court grants the motion to dismiss in whole or in part, but the court
nevertheless briefly considers whether dismissal without prejudice may be appropriate at
this stage.
Courts should freely grant leave to amend pleadings when justice so requires. Fed.
R. Civ. P. 15(a)(2). However, the right to amend is not absolute and “is appropriately
denied when . . . the amendment would be futile.” Brunt v. Serv. Emps. Int’l Union, 284
F.3d 715, 720 (7th Cir. 2002); see also Foman v. Davis, 371 U.S. 178, 182 (1962). An
amendment would be futile if it would not survive a motion to dismiss or if the claims are
inadequate. Brunt, 284 F.3d at 720-21; see also Gandhi v. Sitara Capital Mgmt., LLC, 721
F.3d 865, 868-69 (7th Cir. 2013).
Here, the court concludes that it would be futile for Dr. Omachonu to amend her
§ 1981 claims, because it is clear as a matter of law that the sole remedy for claims
against a state actor for § 1981 violations is § 1983. Since there are no new factual

4

They also request that the court dismiss the claims against Bunte with prejudice, but because the
court has not dismissed Bunte from this suit, that request will necessarily be denied.

18

allegations she could add that would change that conclusion, amendment of the § 1981
claims would be futile. Those claims will, therefore, be dismissed with prejudice.

ORDER
IT IS ORDERED that:
1) Defendants’ original motion to dismiss (dkt. #9) is DENIED as moot.
2) Defendants’ renewed motion to dismiss (dkt. #18) is GRANTED IN PART
AND DENIED IN PART as set forth above.
3) Plaintiff’s § 1981 claims are hereby DISMISSED with prejudice.
Entered this 24th day of July, 2015.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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