United States District Court, N.D. Indiana, South Bend Division
DR. G. DAVID MOSS, PH.D., Plaintiff,
THE UNIVERSITY OF NOTRE DAME DU LAC, and ERIN HOFFMAN-HARDING, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, Defendants.
OPINION AND ORDER
T. MOODY JUDGE UNITED STATES DISTRICT COURT.
action plaintiff Dr. G. David Moss, Ph.D.
(“Moss”) alleges that The University of Notre
Dame Du Lac, acting through its employee, Erin Hoffman
Hardingdenied him a promotion and demoted him on
the basis of his race and as unlawful retaliation in
violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq.
(“Title VII”), and in addition violating the
First and Fourteenth Amendments enforceable via 42 U.S.C.
§ 1983. UND has moved to dismiss the bulk of Moss's
complaint (all except Count I) pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failing to state a claim upon
which relief can be granted.
court applies this standard to the motion: With the
complaint's well-pleaded factual allegations accepted as
true, dismissal for failure to state a claim pursuant to Rule
12(b)(6) is appropriate when those facts are not enough to
make a right to relief plausible, meaning more than
speculative. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 556 (2007); Vinson v. Vermilion Cty., Illinois,
776 F.3d 924, 928 (7th Cir. 2015). To avoid dismissal, the
complaint's factual content must allow the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged. Iqbal, 556 U.S. at 678. The
court notes, however, that the basis of UND's attack on
Moss's complaint is not so much based on the facts he
alleges as it is on the legal theories he invokes.
the complaint's allegations most briefly, Moss, an
African-American male whom Notre Dame employed for over a
decade as an Assistant Vice President of Student Affairs, was
denied a promotion, demoted, and threatened with termination
after he publicly spoke out against incidents of racial
harassment on campus directed against an African-American
student organization named “Call to Action.” The
incidents and Moss's reaction to them received
significant publicity in the community, causing Notre Dame
embarrassment. Moss also alleges that Notre Dame's campus
is open to the public and has stores, restaurants, a church
which is Indiana's second-largest tourist attraction, a
post office, a police force, a fire department, a health
center public roads, and more, which features and services
make Notre Dame equivalent to a “company town” as
in Marsh v. Alabama, 326 U.S. 501 (1946).
complaint contains five counts. Count I alleges that
UND's adverse employment actions violated Title VII on
the basis of Moss's race. Count II alleges that UND's
adverse employment actions constituted unlawful retaliation
in violation of Title VII. Count III alleges that UND's
actions violated Moss's First Amendment right to free
speech in violation of 42 U.S.C. § 1983. Count IV
alleges that UND's actions violated Moss's First
Amendment right to free association in violation of 42 U.S.C.
§ 1983. Last, Count V alleges that UND's actions
deterred Moss's First Amendment rights of free speech and
free association in violation of 42 U.S.C. §
1983. UND has moved to dismiss the retaliation
claim in Count II as being beyond the scope of the charge
filed with the Equal Employment Opportunity Commission
(“EEOC”), and because Moss did not allege that he
engaged in statutorily-protected activity. UND has moved to
dismiss Moss's § 1983 claims in Counts II, IV and V
because it is a private actor not acting under color of state
law, and because Moss's speech was work-related and so
not a constitutional activity protected by §
II - Retaliation
Moss filed his charge with the EEOC, he did not check the box
for “retaliation, ” only that for discrimination
on the basis of race. (DE # 12-1 at 1.) The so-called
“scope-of-the-charge” rule prohibits plaintiffs
from bringing claims in federal court that were not included
in their EEOC charge, because doing so frustrates the
EEOC's role to investigate and settle claims, and
deprives the charged party of notice. Alexander v.
Gardner-Denver Co., 415 U.S. 36, 47 (1974). However,
claims which are “like or reasonably related to”
the allegations in the charge and would be expected to grow
out of the EEOC's investigation of the allegations in the
charge are not beyond the scope, and may be litigated.
Vela v. Village of Sauk Village, 218 F.3d 661, 664
(7th Cir. 2000); Cheek v. Western and Southern Life Ins.
Co., 31 F.3d 497, 500 (7th Cir. 1994).
response to UND's motion, Moss argues that, although he
did not check the box for retaliation or mention his
demotion, he did not understand the significance of failing
to do so because he is not a lawyer. Instead, in the
“particulars” section of his charge he gave a
“brief but detailed . . . description of his tenure
with Notre Dame, the titles he held over the course of his
fourteen year tenure with the University, the name and
position of his then supervisor, Defendant Erin
Hoffman-Harding, and indicated that he felt he had been
passed over for a promotion in favor of a less qualified
white candidate on the basis of racial discrimination from
the period of June 2012 to August 2012.” (DE # 14 at
4.) He then argues that given the publicity surrounding the
harassment incidents at UND and of his reaction to them, and
the fact that all of the events were closely related in
“time, people and substance, ” it was reasonable
for him to assume that the EEOC's investigation of the
events would encompass everything and that his charge was
sufficient to give UND formal notice of a problem that
included retaliation. (Id. at 5.)
compares his charge to that in Kristufek v. Hussmann
Foodservice Co., 985 F.2d 364 (7th Cir. 1993), where
plaintiff Kristufek alleged age discrimination but not
retaliation in his EEOC charge, and the Court of Appeals
affirmed the district court's decision not to dismiss the
retaliation charge as beyond the scope. Kristufek had been
told by his supervisor, Mosteller, to fire an older employee,
McPherson, but refused to do so, telling Mosteller that doing
so would be age discrimination. Kristufek, 985 F.2d
at 367. Kristufek himself was then fired a short time later.
Both Kristufek and McPherson filed charges and brought suit.
The Court of Appeals explained:
After Kristufek argued McPherson's case before Mosteller
on the basis of age discrimination, he suffered retaliation.
Kristufek testified that to mention age discrimination to
Mosteller only infuriated him. These charges, his and hers,
were all related in time and substance and both focused on
Mosteller's conduct as president of Hussmann. Mosteller,
the company president, McPherson, his executive secretary,
and Kristufek, the personnel officer of Hussmann, were the
people directly involved in the charges, all part of the
company's inner circle. That should have been enough even
in a perfunctory investigation of the charges to have
revealed the retaliation aspect as part of the whole.
Kristufek's retaliation charge grew out of
McPherson's age problem.
Id. at 368. Observing that cases dealing with the
scope-of-the-charge rule are narrowly based on their facts
and “not easy to reconcile, ” the court
[I]n the present case, the factual relationship of the age
and discrimination charges of the parties is so related and
intertwined in time, people, and substance that to ignore
that relationship for a strict and technical application of
the rule would subvert the liberal remedial purposes of the
Act. [Employer] Hussmann had formal notice of a problem
though not complete notice, but that should have been enough.
Id. at 368-69. Notably, however, the Court of
Appeals said that its decision was “a close call . . .
based on these particular facts Kristufek's EEOC filing
limited to age discrimination without mention of his
retaliatory allegation was enough.” Id. at
present case, Moss's characterization of his EEOC
charge's particulars as “brief but detailed”
implying that he did enough to give notice of retaliation
stretches things too far. The paragraph in the charge that
Moss refers to states:
I am a black employee hired by the University of Notre Dame
in the Fall of 1998 as a Special Assistant to the Vice
President of Student Affairs. I held the position of
Assistant Vice President of Student Affairs from 1999 until
2010. From 2010 until 2012, I became Assistant Vice President
for Student Affairs for Student Services. I applied for the
Associate Vice President for Student Affairs in June 2012. My
supervisor is Erin Hoffman-Harding, Student Affairs Vice
President, White. I was denied the position, which was a
lateral promotion. Dr. ...