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Moss v. University of Notre Dame Du Lac

United States District Court, N.D. Indiana, South Bend Division

September 27, 2016

DR. G. DAVID MOSS, PH.D., Plaintiff,
v.
THE UNIVERSITY OF NOTRE DAME DU LAC, and ERIN HOFFMAN-HARDING, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, Defendants.

          OPINION AND ORDER

          JAMES T. MOODY JUDGE UNITED STATES DISTRICT COURT.

         In this action plaintiff Dr. G. David Moss, Ph.D. (“Moss”) alleges that The University of Notre Dame Du Lac, acting through its employee, Erin Hoffman Harding[1]denied 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.

         The 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.

         Describing 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).

         Moss's 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.[2] 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 § 1983.[3]

         Count II - Retaliation

         When 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).

         In 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.)

         Moss 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 concluded:

[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 368.

         In the 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. ...

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