Charlton-Perkins v. Univ. of Cincinnati

• Decision Date: 03 June 2022
• Docket Number: 21-3840
• Citation: 35 F.4th 1053
• Parties: Mark CHARLTON-PERKINS, Plaintiff-Appellant, v. UNIVERSITY OF CINCINNATI; Kenneth Petren and George Uetz, in their official and individual capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

35 F.4th 1053

Mark CHARLTON-PERKINS, Plaintiff-Appellant,

v.UNIVERSITY OF CINCINNATI; Kenneth Petren and George Uetz, in their official and individual capacities, Defendants-Appellees.

No. 21-3840

United States Court of Appeals, Sixth Circuit.

Argued: May 16, 2022

Decided and Filed: June 3, 2022

ARGUED: Marc D. Mezibov, MEZIBOV BUTLER, Cincinnati, Ohio, for Appellant. Evan T. Priestle, TAFT STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, for Appellees. ON BRIEF: Marc D. Mezibov, Brian J. Butler, MEZIBOV BUTLER, Cincinnati, Ohio, for Appellant. Evan T. Priestle, Brian G. Dershaw, TAFT STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, for Appellees.

Before: SILER, BUSH, and MURPHY, Circuit Judges.

JOHN K. BUSH, Circuit Judge.

Appellant Mark Charlton-Perkins, a male research scientist, applied for a professorship at the University of Cincinnati ("UC") in late 2017. Yet after UC determined him the most-qualified candidate for the position, or so he alleges, it refused to hire him on account of his gender. Adding insult to injury, UC then discriminatorily canceled the job search itself, ensuring that Charlton-Perkins could never fill the position. In response, he filed the present lawsuit. But the district court dismissed his complaint for lack of subject-matter jurisdiction. Because nobody ever filled the canceled position, it reasoned, Charlton-Perkins's claims never ripened into an adverse employment action, and thus he suffered no concrete injury cognizable in federal court. We now reverse. Charlton-Perkins has plausibly alleged a ripe employment-discrimination claim, so his suit may proceed.

I.

The amended complaint alleges as follows. Around September 2017, UC's Department of Biological Sciences ("the Department") determined that it needed to appoint an additional researcher to its faculty as an assistant professor. To that end, a search committee was formed, consisting of four faculty members and one non-voting graduate student. Dr. Elke Buschbeck, a professor in the Department, served as the search committee's chair. The committee advertised the Department's new position and met with the relevant officials to ensure that the search process complied with established equal-employment policies.

Sixty-two candidates applied. The search committee winnowed the list down to seven candidates who were rated "strong," along with ten other candidates who were rated "particularly strong." And that list was further refined to just nine candidates. Those candidates were then invited to interview with members of the search committee via Skype.

One of the candidates so selected was Dr. Mark Charlton-Perkins. Charlton-Perkins is a research scientist, male, and U.S. citizen currently employed by the University of Cambridge in the United Kingdom.

After the search committee assembled its list of top candidates, Dr. Buschbeck realized a potential conflict of interest: she had collaborated with Charlton-Perkins on various projects several years in the past. Dr. Buschbeck alerted members of the search committee about that previous relationship. She also consulted with Marilyn Kershaw—the Director of the Office of Diversity and Access and the Superintendent of Graduate Student Recruitment at UC's McMicken College of Arts and Sciences—to determine whether there was, or might be the appearance of, a conflict of interest. Dr. Kershaw assured Dr. Buschbeck that there was not. Thus, Charlton-Perkins's candidacy continued.

Dr. George Uetz, chair of the Department, then authorized the search committee to invite five finalists for on-campus interviews. One of the candidates, a female, declined the invitation. So only the top four candidates were interviewed in person: Charlton-Perkins, another male candidate, and two female candidates. After the interviews and faculty feedback, the search committee ranked the top four. Further discussion eliminated the other male candidate, leaving only Charlton-Perkins and the two female candidates in the competition.

The committee took its final vote on those three candidates on February 23, 2018. Charlton-Perkins was rated the favorite by a vote of three to one. That fact was significant. As was specified in a collective-bargaining agreement ("CBA") between the faculty and UC, "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." "Accordingly, the search committee was vested with the authority to determine the candidate to be selected for the position."¹

On February 26, 2018, Dr. Buschbeck met with Dr. Uetz to inform him of the vote, and thus that the committee recommended that Charlton-Perkins be hired. Dr. Buschbeck also informed Dr. Uetz that the two female candidates had tied in the rankings. For the first time, however, Dr. Uetz told Dr. Buschbeck that Kenneth Petren—dean of the College of Arts and Sciences—had decided to hire two candidates for the position, rather than just the one originally contemplated.

On March 4, 2018, Dr. Uetz explained to the search committee that Dean Petren believed the most appropriate course of action was "to focus on the women candidates first." He also conveyed that Petren "fe[lt] that he might make a case to hire two strong women candidates." After receiving that message, Dr. Buschbeck responded on March 5, 2018, that "[p]utting two lower ranked candidates up first is not only against the recommendation of the committee but also plain discrimination." Yet Uetz and Petren were apparently unmoved. For later that same day, Dr. Uetz emailed Dr. Buschbeck explaining that "your advise [sic ] and discussion of the candidates’ strengths and weaknesses, along with my own judgment and extensive discussions with the dean, has [sic ] guided the choice of actions." His email also asked Dr. Buschbeck to "understand how difficult this decision has been for me," but that "the dean and I have agreed with the ultimate hiring choices we have made."

Three days later, Dean Petren met with Dr. Buschbeck and announced that the search had been tainted by her past collaboration with Charlton-Perkins. Dr. Buschbeck responded by reminding Dean Petren that her past relationship with Charlton-Perkins had been disclosed to, and vetted by, Dr. Kershaw, who had given Dr. Buschbeck approval to proceed with the search. Nevertheless, on March 13, 2018, Dean Petren informed the faculty that he believed an "equitable search" was impossible under the circumstances, and thus that he "was cancelling the search in its entirety."

Charlton-Perkins filed this lawsuit in response in March 2020. He alleges that UC, a federally funded institution, failed to hire him "solely on account of his gender." He also alleges that Dean Petren and Dr. Uetz's actions "in not hiring [him] and cancelling the search were committed intentionally, purposefully, maliciously, and in conscious and deliberate disregard for [his] right to not be subjected to gender discrimination." Against UC, therefore, Charlton-Perkins asserts a failure-to-hire claim under Title IX, 20 U.S.C. § 1681. As a remedy, he seeks compensatory damages for the past violation and either instatement into the position or front pay as well. And against Uetz and Petren, he asserts under 42 U.S.C. § 1983 that the pair violated his clearly established equal-protection rights against gender discrimination.

In response, defendants moved to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. In their view, sovereign immunity shields UC from the § 1983 action against Uetz and Petren in their official capacities, qualified immunity shields the pair in their personal capacities, Charlton-Perkins alleges no adverse employment action under Title IX or § 1983, and, relatedly, his suit is not yet ripe. That last point was so, they said, because nobody was ever hired for the position, and "[i]t makes no sense that Plaintiff's failure-to-hire claims could be ripe without any hire at all."

Relying on that latter argument, the district court dismissed the complaint. See Charlton-Perkins v. Univ. of Cincinnati , No. 1:20-cv-179, 2021 WL 3737910, at *6 (S.D. Ohio Aug. 24, 2021). It understood "the issue" here as "whether Dr. Charlton-Perkins’[s] claims are ripe when the search for the position was cancelled and the position never filled." Id. at *4. And, reasoning from that premise, the district court believed that Charlton-Perkins had failed to show ripeness. In its view, his claims "are not concrete," but instead "dependent on a future event— Defendants hiring a female candidate instead of him." Id. Until such a hiring occurred, it said, Charlton-Perkins suffered no "discrete harm." Id. And thus the district court dismissed the case for lack of subject-matter jurisdiction. Id. at *6.

This timely appeal followed. After examining our appellate jurisdiction and standard of review, we turn to why the district court's judgment must be reversed.

II.

The district court's decision dismissing Charlton-Perkins's complaint for lack of jurisdiction was a final decision. See Gelboim v. Bank of Am. Corp. , 574 U.S. 405, 408–09, 135 S.Ct. 897, 190 L.Ed.2d 789 (2015). We therefore have appellate jurisdiction under 28 U.S.C. § 1291.

III.

Defendants assert that even taking Charlton-Perkins's allegations as true, they do not establish Article III jurisdiction. This is a so-called "facial attack" on jurisdiction, which "merely [tests] the sufficiency of the pleading." Gentek Bldg. Prods., Inc. 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) ). We thus take the well-pleaded allegations as true, view them in the light most favorable to Charlton-Perkins, and ask whether they amount to a ripe case or controversy. Id. ; United States v. Ritchie , 15 F.3d 592, 598 (6th Cir. 1994). And we review de novo the district...