Charlton-Perkins v. Univ. of Cincinnati
| Decision Date | 24 August 2021 |
| Docket Number | 1:20-cv-179 |
| Parties | MARK CHARLTON-PERKINS, Plaintiff, v. UNIVERSITY OF CINCINNATI, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
ORDER: (1) GRANTING MOTION TO DISMISS (Doc. 9); and (2) DISMISSING CASE WITHOUT PREJUDICE
This civil case is before the Court on Defendants University of Cincinnati, Kenneth Petron, and George Uetz's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Doc. 9), and the parties responsive memoranda (Docs. 10, 11).[1]
Plaintiff Mark Charlton-Perkins, Ph.D. is a United States citizen employed with the University of Cambridge in the United Kingdom. (Doc. 1 at ¶ 1).
In September 2017, Defendant University of Cincinnati's Department of Biological Sciences determined it needed to appoint an Assistant Professor. (Id. at ¶ 14). A committee, consisting of four faculty members and one non-voting graduate student, was placed in charge of the search to fill the position. (Id.) Dr. Elke Buschbeck was appointed chair of the committee. (Id.)
The search committee was established in accordance with a Collective Bargaining Agreement between the “AAUP ” on behalf of the faculty, and UC. (Id. at ¶ 19). According to Dr. Charlton-Perkins, the CBA “provided, in pertinent part, that ‘the appointment of a Faculty Member to an Academic Unit shall normally be based on a recommendation initiated within and approved by the Faculty of that Academic Unit using procedures developed within that Academic Unit.'” (Id.)[2]
The search committee then established the procedures to fill the position to ensure compliance with equal employment policies. (Id. at ¶ 15). The search committee received 62 applications. (Id. at ¶ 16). The applications were refined down to nine candidates based on ratings, and those candidates were invited to participate in Skype interviews. (Id.)
Dr. Charlton-Perkins was one of those candidates. (Id. at ¶ 17). Dr. Charlton-Perkins and committee-chair Dr. Buschbeck had collaborated on projects in the past. (Id. ¶ 17). Dr. Buschbeck disclosed the relationship to the committee and Dr. Marylin Kershaw, Director of the Office of Diversity and Access and the Superintendent of Graduate Student Recruitment of the McMicken College of Arts and Sciences. (Id.) Dr. Kershaw assured Dr. Buschbeck there was no conflict of interest and she could proceed with interviewing Dr. Charlton-Perkins. (Id.)
Defendant Dr. Uetz then authorized the committee to invite five finalists for on-campus interviews. (Id. at ¶ 18). Three of the five finalists were female; however, one declined the invitation to interview. (Id.) Two were male, including Dr. Charlton-Perkins. (Id.) After the four interviews, the search committee ranked the candidates. The four candidates were narrowed to three, Dr. Charlton-Perkins and two females. (Id.)
On February 23, 2018, the committee took a final vote, during which Dr. Charlton-Perkins was rated the favorite by a vote of three to one. (Id. at ¶ 19). Following the vote, Dr. Buschbeck informed Dr. Uetz of the committee's recommendation to hire Dr. Charlton-Perkins and that the other two female candidates were equally ranked second. (Id. at ¶ 20). At that meeting, Dr. Uetz informed Dr. Buschbeck that Defendant Dean Petron had decided to hire not only one, but two candidates. (Id.)
On March 4, 2018, Dr. Uetz also explained to the committee that Dean Petron recommended that the committee focus on the female candidates first and that Dean Petron felt he could make a case to hire the two female candidates. (Id. at ¶ 21). Dr. Buschbeck responded that “putting the two lower ranked candidates up first is not only against the recommendation of the committee but also plain discrimination.” (Id.)
On March 8, 2018, Dean Petron informed Dr. Buschbeck that the search was tainted by her past relationship with Dr. Charlton-Perkins. (Id. at ¶ 22). Dr. Buschbeck told Dean Petron that the relationship was both disclosed and that she was approved by Dr. Kershaw to continue the search. (Id.) On March 13, 2018, Dean Petron cancelled the search, thinking it was not possible for the committee to complete an equitable search. (Id.) There is no allegation that the position was ever re-posted or filled.
As pled, Dr. Charlton-Perkins asserts two claims: (1) discrimination in violation of Title IX against UC, (id. at ¶¶ 28-29); and (2) gender-based discrimination in violation of the Equal Protection Clause against Dr. Uetz and Dean Petron, (id. at ¶¶ 30-31). Defendants move to dismiss the complaint in its entirety. (Doc. 9).
Defendants move to dismiss under both Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Under Federal Rule of Civil Procedure (12)(b)(1), a court may dismiss a case for lack of subject matter jurisdiction. The doctrine of ripeness is a jurisdictional limitation on federal courts. Golf Vill. N., LLC v. City of Powell, Ohio, 338 F.Supp.3d 700, 705 (S.D. Ohio 2018). Where a defendant raises the issue of lack of subject matter jurisdiction under Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion to dismiss. Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990).
“Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction generally come in two varieties: a facial attack or a factual attack.” Gentek Bldg. Prods. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007) (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). “A facial attack on the subject-matter jurisdiction alleged in the complaint questions merely the sufficiency of the pleading.” Id. “When reviewing a facial attack, a district court takes the allegations in the complaint as true, ” and construes them in the light most favorable to the nonmoving party, a safeguard similar to that employed under Federal Rule of Civil Procedure 12(b)(6). Id.; see also United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). “If those allegations establish federal claims, jurisdiction exists.” Gentek Bldg. Prods., 491 F.3d at 330. A factual attack is a challenge to the factual existence of subject matter jurisdiction. Ritchie, 15 F.3d at 598. “When a Rule 12(b)(1) motion attacks the factual basis for jurisdiction, the district court must weigh the evidence and the plaintiff has the burden of proving that the court has jurisdiction over the subject matter.” Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005).
In their motion, Defendants consider Dr. Charlton-Perkins' allegations as true for purposes of jurisdiction. (Doc. 9). Thus, Defendants assert a facial attack.
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) operates to test the sufficiency of the complaint and permits dismissal of a complaint for “failure to state a claim upon which relief can be granted.” To show grounds for relief, Fed.R.Civ.P. 8(a) requires that the complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
While Fed.R.Civ.P. 8 “does not require ‘detailed factual allegations, '…it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). Pleadings offering mere “‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (citing Twombly, 550 U.S. at 555). In fact, in determining a motion to dismiss, “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation'[.]” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265 (1986)). Further, “[f]actual allegations must be enough to raise a right to relief above the speculative level[.]” Id.
Accordingly, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678. A claim is plausible where “plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Plausibility “is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief,' “ and the Complaint shall be dismissed. Id. (citing Fed.R.Civ.P. 8(a) (2)).
Defendants contend that both of Dr. Charlton-Perkins' claims should be dismissed because the claims are not ripe. As discussed, the Court agrees.
“The Constitution does not extend the ‘judicial power' to any legal question, wherever and however presented.” Warshak v. United States, 532 F.3d 521, 525 (6th Cir. 2008). Rather, “Article III…limits the jurisdiction of federal courts to consideration of actual cases and controversies, and federal courts are not permitted to render advisory opinions.” Arnett v. Myers, 281 F.3d 552, 562 (6th Cir. 2002). When a claim is brought too early, it is considered unripe for adjudication. Warshak, 532 F.3d at 525.
“A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.'” Texas v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co. 473 U.S. 568, 580-581 (1985)). “The ripeness doctrine serves to ‘avoid[ ]…premature adjudication' of legal...
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