Herman v. Ohio Univ.

• Decision Date: 22 November 2019
• Docket Number: Case No. 2:19-cv-201
• Parties: Tess Herman, Plaintiff, v. Ohio University, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

Tess Herman, Plaintiff, v. Ohio University, et al., Defendants.

Case No. 2:19-cv-201

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

November 22, 2019

JUDGE SARAH D. MORRISON

Magistrate Judge Vascura

OPINION & ORDER

Defendant/Cross-Claim Plaintiff Yusuf Kalyango ("Kalyango") asserts eight cross-claims against Defendant/Cross-Claim Defendant Ohio University ("University"). The University moves to dismiss (ECF No. 30) each count pursuant to Fed. Rs. Civ. P. 12(b)(1) and 12(b)(6). Being fully advised, the Court GRANTS the motion.

For ease of analysis, the Court incorporates the factual background set forth in the Court's November 22, 2019 Opinion & Order (ECF No. 57) by reference herein.

I. STANDARD OF REVIEW

Before a court may determine whether a plaintiff has failed to state a claim upon which relief may be granted, it must first decide whether it has subject matter jurisdiction. Mitchell v. BMI Fed. Credit Union, 374 F. Supp. 3d 664, 666-67 (S.D. Ohio 2019) (citation omitted). Rule 12(b)(1) provides that the defendant may file a motion to dismiss based on a "lack of jurisdiction over the subject matter." Fed. R. Civ. P. 12(b)(1). The standard of review of a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction depends on whether the defendant makes a facial or factual challenge to subject matter jurisdiction. Wayside Church v. Van Buren County, 847 F.3d 812, 816-17 (6th Cir. 2017). Only the former is present here. A facial attack "questions merely 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)), and requires the district court to "take[] the allegations in the complaint as true." Id.

A claim survives a motion to dismiss pursuant to Rule 12(b)(6) if it "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all of the complaint's allegations are true." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal citations omitted). The Court must also "construe the complaint in the light most favorable to the plaintiff." Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). In doing so, however, a plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."); see also Ass'n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). "[A] naked assertion . . . gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility . . . ." Twombly, 550 U.S. at 557. Thus, "something beyond the mere possibility of [relief] must be alleged, lest a plaintiff with a largely groundless claim be allowed to take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value." Id. at 557-58 (internal citations omitted).

II. ANALYSIS

Kalyango asserts claims against the University for violation of the Due Process Clause (Count One); violation of the Equal Protection Clause (Count Eight); race and national origin discrimination under 42 U.S.C. § 1981 (Count Nine); race, national origin and gender discrimination under Ohio Revised Code Chapter 4112 (Count Ten); retaliation under Chapter 4112 (Count Eleven); breach of contract (Counts Twelve and Thirteen); sex discrimination under 20 U.S.C. § 1681, Title IX (Count Fourteen), and "injunctive relief" (Count Fifteen).

In summary, the University urges dismissal of the federal counts on immunity grounds, dismissal of the state counts on jurisdictional grounds and dismissal of the "injunctive" count for failure to state a claim upon which relief may be granted. (ECF No. 30.) Kalyango responds that the Eleventh Amendment does not bar the claims here because he seeks prospective relief and characterizes his Title IX count as premised upon an "erroneous outcome" theory such that dismissal should be denied. (ECF No. 39.) For analytical fluidity, the Court groups the claims into those asserting federal violations and those asserting state violations.

A. Counts One, Eight and Nine

Count One is Kalyango's contention that the University violated his Due Process rights under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 with respect to the de-tenuring process and the sexual harassment investigation ("Investigation"). Regarding de-tenuring, Kalyango claims the University will provide him with "no opportunity for cross-examination, no protection against retaliation, and no meaningful process of confidentiality." (ECF No. 19 ¶ 74.)¹ As to the Investigation, Kalyango asserts the University failed to complete it in a timely andconfidential manner which resulted in him losing $35,000 in annual supplemental income. (ECF No. ¶ ¶ 72-73, 83-84.)

Count Eight asserts that the University discriminated against Kalyango on the basis of his race and gender when completing the Investigation in violation the Equal Protection Clause of the Fourteenth Amendment pursuant to § 1983.

Count Nine claims that the University intentionally discriminated against Kalyango on the basis of his race and national origin in violation of § 1981.

The University asserts the Eleventh Amendment insulates it from liability as to all three claims. (ECF No. 30.)

Eleventh Amendment immunity "bars all suits, whether for injunctive, declaratory or monetary relief, against the state and its departments, by citizens of another state, foreigners or its own citizens." Doe v. Miami Univ., 247 F. Supp. 3d 875, 883 (S.D. Ohio 2017) (quotation omitted). As a public university in the State of Ohio, Ohio University qualifies as an arm of the state and is immune from suit under the Eleventh Amendment. Id. Kalyango offers no rebuttal to this conclusion. Consequently, the Court GRANTS the University's Motion to Dismiss Counts One, Eight and Nine under Fed. Rs. Civ. P. 12(b)(6) and 12(b)(1).

B. Counts Ten, Eleven, Twelve and Thirteen

In Count Ten, Kalyango asserts that the University illegally discriminated against him on the basis of his race, national origin and gender in violation of Ohio Revised Code Chapter 4112 when placing him on paid leave following the Investigation. Count Eleven alleges that the University unlawfully retaliated against Kalyango under Chapter 4112 for participating in the Investigation by charging him with "further false and frivolous allegations of wrongful conduct." (ECF No. 19 ¶ 147.) Counts Twelve and Thirteen assert breach of contract claims. TheUniversity asserts only the Ohio Court of Claims has jurisdiction over all of these counts. Kalyango offers no opposition to this contention.

The University is correct. R.C. 2743.02(A)(1) provides: "[t]he state hereby waives its immunity from liability, . . . and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits between private parties. . . ." That section "confirms that Ohio has not consented to state law damages actions against the State of Ohio . . . outside of its own courts." Jones v. Hamilton Cty. Sheriff, 838 F.3d 782, 786 (6th Cir. 2016). In addition, Ohio has not waived or abrogated its Eleventh Amendment Immunity by enacting Chapter 4112. See Dendinger v. Ohio, 207 F. App'x 521, 529 (6th Cir. 2006); see also Bialczak v. Ohio Dep't of Taxation, No. 99-3841, 2000 U.S. App. LEXIS 33963, at *6-7 (6th Cir. Dec. 22, 2000) ("Ohio Revised Code § 4112.99 authorizes suit against the State of Ohio as an employer in its Court of Claims, but the statute does not waive the State's Eleventh Amendment immunity from suit in federal court."). Consequently, the Court GRANTS the University's Motion to Dismiss Counts Ten, Eleven, Twelve and Thirteen under Fed. R. Civ. P. 12(b)(1).

C. Count Fourteen

Count Fourteen, the final claim at issue, is for reverse gender discrimination under Title IX regarding the Investigation. (ECF No. 19 ¶ ¶ 162-175.) Particularly, Kalyango proceeds under an erroneous-outcome theory of liability, asserting that the University failed to provide him with the requisite due process and fairness protections while extending those same protections to female participants in sexual misconduct investigations. (ECF No. 39 at 13.) The University did so, he alleges, based solely upon his gender. (ECF No. 19 ¶ 167.) The University replies that this claim should be dismissed because Kalyango's First Amended Cross-Claim contains mereconclusory allegations that are insufficient to plead an erroneous outcome count. (ECF No. 47 at 3.)

Title IX of the Education Amendments of 1972 is a federal statute designed to prevent sexual discrimination and harassment in educational institutions receiving federal funding. Doe v. Ohio State Univ., 239 F. Supp. 3d 1048, 1065 (S.D. Ohio 2017). Title IX states: "[n]o 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 educational program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). "Title IX bars the imposition of university discipline where gender is a motivating factor in the decision to discipline." Yusuf v. Vassar College, 35 F.3d 709, 715 (2d Cir. ...