Meriwether v. Trs. of Shawnee State Univ.
| Decision Date | 05 September 2019 |
| Docket Number | Case No. 1:18-cv-753 |
| Parties | NICHOLAS K. MERIWETHER, Plaintiffs, v. THE TRUSTEES OF SHAWNEE STATE UNIVERSITY, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Litkovitz, M.J.
Plaintiff Nicholas K. Meriwether, a professor at Shawnee State University (Shawnee State), brings this action against members of the Board of Trustees of Shawnee State and several Shawnee State officials (Shawnee State defendants) alleging (1) violations of his federal civil rights under 42 U.S.C. § 1983, and (2) violations of his rights guaranteed by the Ohio Constitution and common law under the Court's supplemental jurisdiction, 28 U.S.C. § 1367. The Court granted Jane Doe and Sexuality and Gender Acceptance (SAGA) leave to intervene as defendants in the lawsuit. (Doc. 43). This matter is before the Court on the Shawnee State defendants' motion to dismiss the original complaint for failure to state a claim for relief (Doc. 22) and the Shawnee State defendants' motion to dismiss the first amended complaint1 (Doc. 36), plaintiff's opposing memorandum (Doc. 45). and the Shawnee State defendants' reply in support of the motion (Doc. 47). This matter is also before the Court on the intervenor-defendants' motion to dismiss the first amended complaint (Doc. 44), plaintiff's opposing memorandum (Doc. 46), and the intervenor-defendants' reply in support of the motion (Doc. 48).
Plaintiff makes the following factual allegations in the amended complaint. (Doc. 34). Plaintiff is a resident of Ohio and a professor at Shawnee State, a public university organized and existing under the laws of Ohio. (Id., ¶¶ 11, 12). He has been employed as a professor by Shawnee State since 1996, first as an assistant professor, then as an associate professor with a continuing contract which was the equivalent of tenure, and finally as a full professor. (Id., ¶¶ 93-95). He is a "professing evangelical Christian" and member of the Presbyterian Church of America with sincerely-held religious beliefs about gender, and he does not believe that an individual's gender can be changed after the moment of conception. Because of his sincerely-held religious beliefs, he objects to communicating what he believes to be "a University-mandated ideological message regarding gender identity that he does not believe" and which he believes "contradicts (and would force him to violate) his sincerely held religious beliefs." (Id., ¶¶ 86-92).
Defendants Francesca Hartop, Joseph Watson, Scott Williams, David Furbee, Sondra Hash, Robert Howarth, George White, and Wallace Edwards (Trustees) were at all times relevant to the complaint members of the Board of Trustees (Board) of Shawnee State. They are responsible for adopting and authorizing the University policies plaintiff challenges; they "have the responsibility for final policymaking authority for rules and regulations that govern the University, including the policies governing faculty members"; and they have the authority to change and enforce the policies challenged in this lawsuit. (Id., ¶¶ 11-15). Plaintiff sues each of the Trustees in their official capacity. (Id., ¶ 52).
since that date. In his current role, Bauer is the chief executive, educational, and administrative officer of Shawnee State charged with oversight of the University and direct oversight of defendants Pierce and Milliken. He authorized and implemented the policies plaintiff challenges in this lawsuit and has final policymaking authority concerning faculty members at Shawnee State. He also approved and ratified Shawnee State officials" application of the challenged policies to plaintiff in a discriminatory and retaliatory fashion. (Id., ¶¶ 19-31).
Defendant Roberta Milliken was at all relevant times the Acting Dean of the College of Arts and Sciences at Shawnee State, whose duties include oversight of plaintiff Meriwether and defendant Jennifer Pauley. Defendant Jennifer Pauley at all relevant times was the Chair of the Department of English and Humanities at Shawnee State, and her duties include overseeing plaintiff. (Id., ¶¶ 32-38). Defendant Tena Pierce was at all relevant times the Title IX2 Coordinator at Shawnee State whose duties include oversight of the university's Title IX office and compliance efforts. Her duties also include overseeing defendants Douglas Shoemaker and Malonda Johnson, both Deputy Title IX Coordinators at Shawnee State. Defendants Bauer, Milliken, Pauley, Pierce, Shoemaker, and Johnson implemented the policies plaintiff challenges in this lawsuit; each had the authority under the challenged policies to investigate, recommend, and impose disciplinary actions on faculty at Shawnee State; they are responsible for enforcing the policies and applying them to plaintiff; they have failed to recommend any changes to the policies or to the manner of enforcement so as to comply with constitutional mandates; and they have failed to stop Shawnee State officials from applying the policies to faculty, including plaintiff. (Id., ¶¶ 40-51).
Plaintiff challenges on their face and as applied policies which were adopted by the Trustee defendants and the Shawnee State Interim President and are binding on University officials. Plaintiff challenges portions of the "Nondiscrimination Sexual Harassment Policy" (Nondiscrimination Policy), which was approved by the Trustee defendants (Doc. 34, Exh. 1, Policy 5.01REV), and the policy for "Reporting & Investigating Sexual Assault, Sexual Misconduct & Other Forms of Discrimination" (Reporting Policy), which was approved by the Shawnee State President in October of 2016. (Doc. 34, Exh. 2, Policy 5.01:2). The Nondiscrimination Policy states that it "serves to ensure that there are University structures and processes in place that prohibit discrimination against any individual because of . . . gender identity. . . ." (Id., Exh. 1 at ¶ 1.2). The Reporting Policy states that the procedure "serves to implement the investigation and complaint provisions of Policy 5.01 . . . and to ensure that all discrimination complaints received by the University are reviewed and responded to promptly and in a fair and equitable manner." (Id., Exh. 2 at ¶ 1.1). If the Nondiscrimination Policy is violated, the University "will take steps, whether individual or systemic, to stop the alleged . . . discrimination, prevent its recurrence, eliminate any hostile environment, and remedy the discriminatory effects on the complainant and others, as appropriate." (Id., Exh. 2, ¶ 17.0). The Reporting Policy defines "Sex and Gender Based Discrimination" as including "[n]egative or adverse treatment based on . . . gender identity . . . [which] denies or limits the individual's ability to obtain the benefits of Shawnee State's programs or activities." (Id., Exh. 2, ¶ 18.3). The Reporting Policy defines "Gender Identity" as a "person's innermost concept of self as male or female or both or neither - how individuals perceive themselves and what they call themselves." (Id., Exh. 2, ¶ 18.4). It provides that "[o]ne's gender identity can be the same or different than the sex assigned at birth." (Id., Exh. 2, ¶ 18.4).
Plaintiff interprets these policies as leaving Shawnee State professors with two choices in how they refer to their students: (1) "eliminate all sex-based titles and all pronouns when speaking to all students," an option plaintiff describes as "impossible, impractical, and unreasonable given the way professors speak, particularly in classes that feature significant and frequent class discussion"; or (2) "use pronouns that refer to each student's gender identity," even though plaintiff alleges "that gender identity may change from day to day, may change based on which friends the student is with, or may change based on the student's mood, among other possibilities." (Id., ¶ 75).
The Reporting Policy provides that "[s]exual harassment can take two forms - quid pro quo or hostile environment." (Id., Exh. 2, ¶ 18.6.2). "[H]ostile environment in the educational context" encompasses "any situation in which there is harassing conduct that limits, interferes with or denies educational benefits or opportunities, from both a subjective (the complainant's) and an objective (reasonable person's) viewpoint." (Id., Exh. 2, ¶ 18.6.2.2). According to plaintiff, defendants use the definition of "hostile environment" provided in the Reporting Policy when assessing claims of gender identity discrimination, and the "determination of whether an environment is 'hostile' is based on the totality of the circumstances." (Id., ¶¶ 78, 79). The Reporting Policy provides that a full-time regular faculty member who violates Shawnee State's nondiscrimination policies is subject to discipline ranging from a "written warning" to immediate "termination" under the process provided in the collective bargaining agreement (CBA) between Shawnee State and the Shawnee Education Association (SEA/Union). (Id., ¶¶ 84, 85; Ex. 2, ¶ 16.2.1.1; Id., Exh. 4 at 110).
In August 2016, the Union President, Chip Poirot, informed faculty members that they could face disciplinary action by Shawnee State, including suspension or dismissal, if they"refused to use a [student's] requested name or pronouns." (Id., ¶¶ 106-09; Exh. 5 at 6-7). Plaintiff contacted defendant Milliken to obtain clarification on gender identity policies, and Milliken informed plaintiff that he must use a student's preferred pronoun regardless of the professor's convictions or views on the subject and a professor would be subject to administrative disciplinary procedures if he refused to use a pronoun that reflected "a student's self-asserted gender identity." (Id., ¶¶ 110-14). In response to plaintiff's inquiry as to whether ...
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