Onyiah v. St. Cloud State Univ.

• Citation: 5 F.4th 926
• Decision Date: 22 July 2021
• Docket Number: No. 19-3162,19-3162
• Parties: Constance A. ONYIAH, Plaintiff - Appellant v. ST. CLOUD STATE UNIVERSITY ; Minnesota State Colleges and Universities; Peiyi Zhao, in her individual and official capacities; Daniel Gregory, in his individual and official capacities; Dale Buske, in his individual and official capacities; Melissa Hanszek-Brill, in her individual and official capacities; Ellyn Bartges, in her individual and official capacities, Defendants - Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

5 F.4th 926

Constance A. ONYIAH, Plaintiff - Appellant

v.ST. CLOUD STATE UNIVERSITY ; Minnesota State Colleges and Universities; Peiyi Zhao, in her individual and official capacities; Daniel Gregory, in his individual and official capacities; Dale Buske, in his individual and official capacities; Melissa Hanszek-Brill, in her individual and official capacities; Ellyn Bartges, in her individual and official capacities, Defendants - Appellees

No. 19-3162

United States Court of Appeals, Eighth Circuit.

Submitted: October 21, 2020

Filed: July 22, 2021

Rehearing and Rehearing En Banc Denied August 27, 2021

Jordan W. Anderson, Boris Parker, PARKER & WENNER, Minneapolis, MN, Kenechukwu C. Okoli, LAW OFFICES OF K.C. OKOLI, P.C., New York, NY, for Plaintiff - Appellant.

Joseph David Weiner, ATTORNEY GENERAL'S OFFICE, Saint Paul, MN, for Defendants - Appellees St. Cloud State University, Minnesota State Colleges and Universities, and Ellyn Bartges.

Elizabeth Catherine Kramer, ATTORNEY GENERAL'S OFFICE, Solicitor Division, Saint Paul, MN, Joseph David Weiner, ATTORNEY GENERAL'S OFFICE, Saint Paul, MN, for Defendants - Appellees Peiyi Zhao, Daniel Gregory, Dale Buske, and Melissa Hanszek-Brill.

Before COLLOTON, GRASZ, and STRAS, Circuit Judges.

GRASZ, Circuit Judge.

Dr. Leonard Onyiah,¹ a tenured professor, sued the Minnesota State Colleges and Universities (the "MSCU"), St. Cloud State University and Board of Trustees (the "University"), and five University employees. Invoking 42 U.S.C. §§ 1981 and 1983, Onyiah claimed various discrimination and retaliation counts. The district court² dismissed some claims on the pleadings, Fed. R. Civ. P. 12(b)(6), and the rest at summary judgment, Fed. R. Civ. P. 56(a). We affirm.

I. Background

Onyiah taught statistics at the University, most recently in the College of Science and Engineering's Department of Mathematics and Statistics. During times relevant to this appeal, Daniel Gregory served as the Dean of the College, Professors Dale Buske and then Peiyi Zhao served as Chair of the Department, Melissa Hanszek-Brill served as a faculty member, and Ellyn Bartges served as Equity and Affirmative Action Officer (collectively, the "individual appellees").

Onyiah's impetus to sue was based on a series of decisions made between 2013 and 2016 about faculty class schedules, resource allocation, and participation in certain programs. Onyiah, a Black man born in Nigeria, claimed the individual appellees made these adverse decisions against him because of his race and national origin. He also claimed the individual appellees retaliated against him for an earlier lawsuit against the University, Onyiah v. St. Cloud State University , 684 F.3d 711 (8th Cir. 2012), and for reporting a University employee's alleged discriminatory conduct.

Onyiah sued the MSCU, the University, and the individual appellees. Onyiah relevantly asserted various counts of discrimination and retaliation in violation of § 1981, which prohibits racial discrimination in making and enforcing contracts. See Ellis v. Houston , 742 F.3d 307, 318–19 (8th Cir. 2014) (explaining § 1981 offers protection against racial harassment and also allows for retaliation claims). Some confusion existed about whether he sued directly under § 1981 or under 42 U.S.C. § 1983. Id. (" Section 1983 provides a cause of action to any person deprived of a federal right by someone acting under color of law[,]" including rights under § 1981 ). In his prayer for relief, Onyiah sought compensatory and punitive damages, a permanent injunction to stop continued discrimination and retaliation against him, and attorney fees and costs.

Adopting the report and recommendation of the magistrate judge,³ the district court dismissed several of the counts, including the free-standing § 1981 retaliation claims, under Federal Rules of Civil Procedure 12(b)(6). The magistrate judge reasoned Onyiah could not maintain claims directly under § 1981 against the defendants, all of whom were state actors, because precedent dictated such claims be brought under § 1983. See Artis v. Francis Howell N. Band Booster Ass'n, Inc. , 161 F.3d 1178, 1181 (8th Cir. 1998). After the district court's Rule 12(b)(6) order, seven alleged violations of § 1981 remained against the individual appellees. These seven—two discrimination and five retaliation counts—were all brought under § 1983.

The district court awarded summary judgment to the individual appellees on those counts and dismissed the action with prejudice. Applying the McDonnell Douglas burden-shifting framework, the district court concluded Onyiah's retaliation counts failed as a matter of law because he failed to establish his prima facie case of retaliation. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ; see also Ellis , 742 F.3d at 319 (explaining that we analyze § 1981 retaliation claims under McDonnell Douglas ). And even if Onyiah had met his burden, the district court reasoned that he could not show the individual appellees’ legitimate, non-discriminatory reasons for taking the adverse actions were pretextual.⁴

II. Discussion

Onyiah appeals the Rule 12(b)(6) dismissal of his freestanding § 1981 retaliation claims and the summary judgment dismissal of his other § 1981 retaliation claims brought under § 1983.⁵ We discuss each in turn.

A.

Onyiah argues that the district court wrongly dismissed his freestanding § 1981 claims. We review de novo a district court's disposition of a motion to dismiss for failure to state a claim under Rule 12(b)(6).⁶ See McPherson v. Brennan , 888 F.3d 1002, 1003 (8th Cir. 2018).

The district court held Onyiah was barred from asserting § 1981 retaliation claims against state actors. See Artis , 161 F.3d at 1182 ("A federal action to enforce rights under § 1981 against a state actor may only be brought pursuant to § 1983."). Onyiah views the rule in Artis as dicta and says that case relied on a Supreme Court opinion, Jett v. Dallas Independent School District , 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), which he maintains was overruled when Congress amended § 1981 through the Civil Rights Act of 1991, Pub.L. 102-166, 105 Stat. 1071. Onyiah urges us to follow the approach adopted by our sister circuit, which held "that the amended ... § 1981 contains an implied cause of action against state actors, thereby overturning Jett ’s holding that ... § 1983 provides the exclusive federal remedy against state actors for the violation of rights under ... § 1981." Fed'n of Afr. Am. Contractors v. City of Oakland , 96 F.3d 1204, 1214 (9th Cir. 1996). Under our precedent, we cannot reach the same conclusion. See Flowers v. City of Minneapolis , 558 F.3d 794, 800 (8th Cir. 2009) ("[B]ecause [the plaintiff] may pursue a § 1981 claim against the City only through § 1983 ... the district court properly dismissed [the plaintiff's] claim against the City under § 1981.") (emphasis added); accord Campbell v. Forest Pres. Dist. of Cook Cnty. , 752 F.3d 665, 671 (7th Cir. 2014) ("We now join the overwhelming weight of authority and hold that Jett remains good law, and consequently, § 1983 remains the exclusive remedy for violations of § 1981 committed by state actors.").

Since Artis , we have repeatedly recognized the prohibition on freestanding § 1981 claims against state actors. See Jones v. McNeese , 746 F.3d 887, 896 (8th Cir. 2014) ; Flowers , 558 F.3d at 800 ; Lockridge v. Bd. of Trs. of U. of Ark. , 315 F.3d 1005, 1007 (8th Cir. 2003) (en banc). Onyiah suggests these statements were dicta. But this is not true of Flowers , where our holding depended on applying the rule prohibiting direct § 1981 claims against state actors. 558 F.3d at 800. Onyiah's argument is therefore foreclosed. See Mader v. United States , 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (noting the cardinal rule that a panel must follow a prior panel's holding). The district court correctly dismissed Onyiah's freestanding § 1981 claims.

B.

Next we consider Onyiah's efforts to revive the retaliation claims dismissed at summary judgment. We review the grant of summary judgment de novo, viewing the evidence in the light most favorable to Onyiah as the nonmoving party and drawing all reasonable inferences in his favor. See Williams v. UPS , 963 F.3d 803, 807 (8th Cir. 2020). Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Although we view the evidence and draw all reasonable inferences in favor of the nonmoving party, we do not credit ‘mere allegations, unsupported by specific facts or evidence.’ " Williams , 963 F.3d at 807 (quoting Thomas v. Corwin , 483 F.3d 516, 526–27 (8th Cir. 2007) (cleaned up)).

"We apply the ‘ McDonnell Douglas analytical framework to a retaliation claim under 42 U.S.C. § 1981.’ " Id. (quoting Kim v. Nash Finch Co. , 123 F.3d 1046, 1060 (8th Cir. 1997) ). When, as here, a plaintiff lacks direct evidence of retaliation, he must first make a prima facie case by showing: "(1) protected activity, (2) subsequent adverse employment action, and (3) a causal relationship between the two." Id. (quoting same). Assuming a plaintiff meets this burden, a defendant must show legitimate, non-retaliatory reasons for the challenged actions. Sayger v. Riceland Foods, Inc. , 735 F.3d 1025, 1031 (8th Cir. 2013). If a defendant does so, a plaintiff must "show by a preponderance of the evidence" that the "proffered reason was pretextual." Id.

The district court rejected Onyiah's claims for multiple reasons, including his failure to meet his burden on causation. "A causal relationship exists where ‘the desire to retaliate was the but for cause of the adverse action.’ " Williams , 963 F.3d at 807 (quoting Sayger , 735 F.3d at 1032 (cleaned up)). "We have previously held that, without more, an ‘interval of more than two months is too long to support...