Stein v. Kent State University Bd. of Trustees

• Decision Date: 18 February 1998
• Docket Number: No. 5:96CV2220.,5:96CV2220.
• Citation: 994 F.Supp. 898
• Parties: Ramona STEIN, Plaintiff, v. KENT STATE UNIVERSITY BOARD OF TRUSTEES, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

994 F.Supp. 898

Ramona STEIN, Plaintiff, v. KENT STATE UNIVERSITY BOARD OF TRUSTEES, et al., Defendants.

No. 5:96CV2220.

United States District Court, N.D. Ohio, Eastern Division.

February 18, 1998.

Robert Michael Terry, Akron, OH, Frances Dunseath, Akron, OH, for Ramona Stein, Plaintiff.

Sidney C. Foster, Jr., Brouse & McDowell, Akron, OH, Kimberly A. Kmentt, Robert F. Linton, Stephen J. Pruneski, Roderick, Myers & Linton, Akron, OH, for Defendants.

DECISION AND ORDER

GWIN, District Judge.

On October 31, 1997, defendants filed a motion to dismiss or for summary judgment in this gender discrimination action [Doc. 68]. Defendants also have filed many discovery-related motions and the plaintiff has renewed her motion for a preliminary injunction.¹ For the reasons below, the Court grants the defendants' motion to dismiss on counts 2, 4, 6, 7, 8 and 9 of the amended complaint and grants the defendants summary judgment on counts 1, 3, and 5. The Court denies other pending motions as moot.

I

In the fall of 1992, defendant Kent State University ("KSU") hired Plaintiff Dr. Ramona Stein as a non-tenured assistant professor of audiology. Plaintiff Stein makes claim against KSU and Dr. Peter B. Mueller, Director of the School of Speech Pathology and Audiology, Dean Thomas J. Barber (retired) of the College of Fine & Professional Arts, Dr. Irvin J. Gerling, Dr. Anthony J. Caruso, and Dr. John W. Hawks, professors in the School of Speech Pathology and Audiology. Stein's claims emanate from KSU's decision not to reappoint Stein.

In 1992, KSU appointed Dr. Stein to the university's School of Speech Pathology and Audiology ("Speech Pathology School"). The Speech Pathology School is part of the College of Fine and Professional Arts at KSU. Generally, KSU appoints untenured professors on nine-month contracts from August to May of each academic or school year. Stein had a nine-month appointment, but she did teach during the summer.

Assistant professors go through an annual review process at the school and college level to decide whether KSU should reappoint them for the upcoming academic year. Defendant Mueller recommended to the dean that plaintiff be reappointed for school years 1993-94 and 1994-95. However, he noted problems with Stein's teaching. The College adopted the school's recommendations.

In September 1994, the Speech Pathology School evaluated Plaintiff Stein for reappointment for the 1995-96 academic year. Two Speech Pathology School committees reviewed the plaintiff's suitability, the Ad Hoc Reappointment Committee and the FAC, and Defendant Mueller, as school director. The Ad Hoc reappointment committee in 1994 was split three to three on whether KSU should reappoint Stein.² By a vote of five to one, the FAC recommended that KSU not reappointed Stein. Following this, Defendant Mueller recommended against reappointing Stein to Dean Barber. In making these recommendations, the committees and Dr. Mueller raised concerns about Plaintiff Stein's teaching, research and collegiality.

In October 1994, the plaintiff appealed to the College Advisory Committee ("CAC"), which recommended that Stein be reappointed. Dean Barber adopted the recommendation and reappointed Stein, but cautioned that plaintiff needed to address issues of collegiality.

Later that month Plaintiff Stein and Gans filed ethical misconduct charges with the faculty senate against Professors Bonita Andreani Richard Klich, Pam Mitchell, Robert Pierce and Defendants Caruso, Gerling, Hawks and Mueller. Subsequently, on February 17, 1995, the Faculty Senate Ethics Committee did not find any ethical violations.

On December 2, 1994, in a filing with KSU's Office of Affirmative Action ("AA"), Stein charged Defendants Mueller, Gerling and Hawks with gender discrimination. After receiving a detailed list of complaints from Stein, Dean Barber investigated and determined that no gender discrimination had occurred. Eventually, AA withdrew its involvement in April 1995.

In March 1995, the professors charged by Stein and Gans met with the provost about the Ethics Committee report.

In May 1995, Plaintiff Stein charged Defendant Hawks with plagiarizing her course materials. An inquiry committee on scientific misconduct investigated, held a hearing and, by a unanimous vote, found no evidence of scientific misconduct.

In May 1995, Plaintiff Stein filed charges against KSU with the federal Equal Employment Opportunity Commission ("EEOC") centered on retaliation.

In September 1995, Defendant KSU evaluated Plaintiff Stein for reappointment for the 1996-97 school year. The School's Ad Hoc Reappointment Committee voted three to one against reappointment.³ The FAC voted six to zero against reappointment with one abstention.⁴ Plaintiff Stein then appealed to the College. The CAC voted eight to two against reappointment.⁵ Stein's appeals to the defendant's provost and president were unsuccessful.

In December 1995, Stein filed another EEOC charge against KSU for retaliation.

In October 1996, Plaintiff Stein sued after receiving a Right to Sue letter from the EEOC. She amended her complaint⁶ after receiving another EEOC Right to Sue letter on another charge.

The plaintiff makes the following claims in her amended complaint:

(1) Gender discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq;

(2) gender discrimination violating Ohio Revised Code §§ 4112.02(A) and 4112.99;

(3) retaliation under Title VII in subjecting plaintiff to a hostile work environment;

(4) retaliation by creating a hostile work environment and denying reappointment in two consecutive years after the plaintiff filed two EEOC charges violating Ohio Rev.Code § 4112.02;

(5) deprivation of the plaintiffs constitutional rights to free speech, freedom of association, and equal protection under 42 U.S.C. § 1983;

(6) conspiracy to violate the plaintiff's rights to equal protection under 42 U.S.C. § 1985(3);

(7) neglect to prevent conspiracy under 42 U.S.C. § 1986;

(8) state defamation claim; and

(9) violation of the plaintiff's rights to procedural due process under the Fifth and Fourteenth Amendments.

Stein sued individual defendants only in their official capacities.⁷

Stein sues for reinstatement, declaratory and injunctive relief, $750,000 in compensatory damages, $250,000 in future damages, punitive damages, and attorneys' fees and costs.

II

When deciding a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) the Court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and definitively determine whether the plaintiff is unable to prove any set of facts in support of her claim entitling her to relief. Andrews v. State of Ohio, 104 F.3d 803, 806 (6th Cir. 1997); In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993) (citations omitted).

The Court notes that defendants filed this motion to dismiss on October 31, 1997, well after defendants had filed answers to both the original complaint and the amended complaint.⁸ However, both answers did reserve the defense of failure to state a claim upon which relief could be granted. See Cleveland Indus. Square, Inc. v. White, 52 F.3d 324 (TABLE) (6th Cir.) (affirming district court's granting of motion to dismiss filed in October 1992 after parties had answered complaint in August 1992 raising a Rule 12(b)(6) defense), cert. denied, 516 U.S. 986, 116 S.Ct. 513, 133 L.Ed.2d 422 (1995).

While normally a party must file a Rule 12(b)(6) motion before filing an answer, or simultaneously with filing the responsive pleading, "courts have allowed untimely motions if the defense has been previously included in the answer." 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1361 (1990).

III

The Eleventh Amendment to the federal Constitution⁹ bars an action for retrospective relief against a state in federal court. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 103, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). This amendment also applies to litigation brought by citizens of the state being sued and by citizens of another state. Edelman, 415 U.S. at 662-63. Absent a state waiver or congressional override, a federal court is without jurisdiction to hear a claim against a state. Mackey v. Cleveland State University, 837 F.Supp. 1396, 1403 (N.D.Ohio 1993) (citations omitted).

This Court may hear a Title VII claim against a state in a federal court. See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (Eleventh Amendment does not bar an award of back pay since limited by enforcement provisions of § 5 of the Fourteenth Amendment). See also Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58-60, 116 S.Ct. 1114, 1125, 134 L.Ed.2d 252 (1996) (§ 5 of the Fourteenth Amendment allows Congress to abrogate immunity from suit guaranteed by Eleventh Amendment).

The State of Ohio has not waived its Eleventh Amendment immunity. A waiver is only found "where stated `by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.'" Mackey, 837 F.Supp. at 1403; Edelman, 415 U.S. at 673. A state maintains Eleventh Amendment immunity from suit in federal court though it has waived its immunity from liability and consented to be sued in its own courts. Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459, 465, 65 S.Ct. 347, 89 L.Ed. 389 (1945). The State of Ohio has waived its immunity from suit and consented to having its liability determined by the state Court of Claims. O.R.C. § 2743.02(A)(1). However, § 2743.02(A)(1) is not a waiver of immunity from suit in federal court. Johns v. Supreme Court of Ohio, 753 F.2d 524, 527 (6th Cir.1985), cert. denied, 474 U.S. 824, 106 S.Ct. 79, 88 L.Ed.2d 65 (1985); Harley v. Carman, 585...