United States District Court, S.D. Indiana, Indianapolis Division
SHINGAIRAI A. FERESU, Plaintiff,
THE TRUSTEES OF INDIANA UNIVERSITY, Defendant.
ENTRY ON DEFENDANT'S MOTION FOR JUDGMENT ON THE
William T. Lawrence, Judge.
cause is before the Court on the Motion for Judgment on the
Pleadings filed by the Defendant. Dkt. No. 14. The motion is
fully briefed, and the Court, being duly advised,
GRANTS the motion for the reasons set forth
Plaintiff, Shingairai Feresu, has brought claims against the
Trustees of Indiana University (“Indiana
University”). For the purposes of this Entry, the Court
accepts the following allegations as true.
Feresu is a United States citizen and Indiana resident,
although she currently lives in Pretoria, South Africa. She
was employed by Indiana University as a professor in the
Department of Epidemiology and Biostatistics in the School of
Public Health from 2010 until May 2014, when her employment
was terminated. She is currently employed by the University
of Pretoria in South Africa and has been since 2014. In 2014,
Ms. Feresu completed a “Personal Credentials
Verification Indemnity” form from the University of
Pretoria, seeking, among other things, authorization
“to obtain a minimum of 2 (two) reference checks,
” and to contact her then-current employer.
See Dkt. No. 18-1. In response to the statement,
“My current employer may be contacted, ” Ms.
Feresu responded, “No.” Id.
October 21, 2016, Ms. Feresu has been suspended from her
employment with the University of Pretoria for
“‘failing to declare and/or misrepresentation
[sic] the reasons for termination of your employment
relationship with your previous employer in the
USA.'” Dkt. No. 7 at 2 (no source cited in
original). She is currently involved in an administrative
proceeding with the University of Pretoria before the
Commission for Conciliation, Mediation, and Arbitration
(“CCMA”) in South Africa, which Ms. Feresu
describes as “similar in function to [the] EEOC.”
Dkt. No. 7. at 2. On December 6, 2016, the CCMA held a
hearing. At the hearing, the University of Pretoria informed
Ms. Feresu that it was awaiting the outcome of an earlier
lawsuit she had filed against Indiana University, Feresu
v. Trs. Ind. Univ., 1:14-cv-1227-TWP-MPB (“Ms.
Feresu's 2014 lawsuit”), in order to use
information from that lawsuit in its case before the CCMA.
Feresu alleges that the status of her current employment is
in jeopardy because of Indiana University's actions and
“anticipated actions.” Dkt. No. 6 at 2.
Specifically, she contends that “[t]here is leakage of
my employment information history at Indiana University and
information on the current case (No. 1:14-cv-01227-TWP-[MPB])
between Indiana University and University of Pretoria, a
foreign institution.” Dkt. No. 7 at 2. She alleges that
the information Indiana University has shared and/or might
share with the University of Pretoria is “malicious and
detrimental.” Dkt. No. 6 at 2. She further argues as
I have the prerogative of divulging information to potential
employers. I chose not to, (signed a form with that regard -
attached), and Indiana University elected to divulge my
information without my permission or consent. I view this
action as RETALIATION in light off [sic] my legal battles
with the Defendant.
Dkt. No. 18 at 2 (emphasis in original).
Court reads Ms. Feresu's complaint in this lawsuit to
allege a retaliation claim under Title VII. In Ms.
Feresu's 2014 lawsuit, she brought claims for race,
nationality, and sex discrimination against Indiana
University after it terminated her employment. Now, Ms.
Feresu alleges that Indiana University has further retaliated
against her by “the current leak an[d] misuse of [her]
employment information.” Dkt. No. 6 at 4. On May 5,
2017, Indiana University moved for judgment on the pleadings
under Federal Rule of Civil Procedure 12(c), arguing that the
Amended Complaint fails to state a cognizable claim against
reviewing a motion for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c), the Court applies the
same standard that is applied when reviewing a motion to
dismiss pursuant to Rule 12(b)(6). Pisciotta v. Old
Nat'l Bancorp., 499 F.3d 629, 633 (7th Cir. 2007)
(citing Guise v. BWM Mortg., LLC, 377 F.3d 795, 798
(7th Cir. 2004)). The Court “must accept all well pled
facts as true and draw all permissible inferences in favor of
the plaintiff.” Agnew v. Nat'l Collegiate
Athletic Ass'n, 683 F.3d 328, 334 (7th Cir. 2012).
For a claim to survive the motion for judgment on the
pleadings, it must provide the defendant with “fair
notice of what the . . . claim is and the grounds upon which
it rests.” Brooks v. Ross, 578 F.3d 574, 581
(7th Cir. 2009) (quoting Erickson v. Pardus, 551
U.S. 89, 93 (2007)) (omission in original). A complaint must
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face.” Agnew, 683 F.3d at 334 (citations
omitted). A complaint's factual allegations are plausible
if they “raise the right to relief above the
speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007).
“[p]leading a retaliation claim under Title VII
requires the plaintiff to allege that she engaged in
statutorily protected activity, ” and her employer
subjected her to an adverse employment action as a result.
Carlson v. CSX Transp., Inc., 758 F.3d 819, 828 (7th
Cir. 2014) (citations and internal quotation marks omitted).
Where, as here, the plaintiff is no longer employed, she
cannot be subject to a typical adverse employment action. The
Seventh Circuit, however, has found that “former
employees, insofar as they are complaining of retaliation
that impinges on their future employment prospects or
otherwise has a nexus to employment, do have the right to sue
their former employers.” Veprinsky v. Fluor Daniel,
Inc., 87 F.3d 881, 891 (7th Cir. 1996); see also
Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)
(holding that former employees may sue former employer for
Title VII retaliation). In Matthews v. Wisconsin Energy
Corp., the Seventh Circuit further explained that,
“in the context of negative employment references, we
have defined [adverse employment action] to mean, ‘the
dissemination of false reference information that a
prospective employer would view as material to its hiring
decision.'” 534 F.3d 547, 558 (7th Cir. 2008)
(quoting Szymanski v. Cty. of Cook, 468 F.3d 1027,
1029 (7th Cir. 2006)). Ms. Feresu's case is similar in
fact to the plaintiff's case in Matthews. ...