holding that § 1983 claims against agents of the state in their official capacity are not cognizable
How later courts described this case
- holding that § 1983 claims against agents of the state in their official capacity are not cognizable
- applying an identical legal standard, a First Amendment retaliation claim in the public employment context
- finding speech was pursuant to official duties where employee was “obligated” to participate in an investigation about employee morale and performance was an ad hoc duty
- affirming District Court’s determination that “Plaintiffs were not entitled to an advisory opinion from the Court informing them of the deficiencies of the complaint and then an opportunity to cure those deficiencies.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TIFFANY KESSLING, DDS,
Plaintiff,
:
v.
Case No. 2:20-cv-1719
Judge Sarah D. Morrison
Magistrate Judge Chelsey M.
OHIO STATE UNIVERSITY, et
Vascura
al.,
:
Defendants.
OPINION AND ORDER
This matter is before the Court on two motions. First, Defendant Ohio State
University filed a Motion for Summary Judgment on behalf of all defendants (ECF
No. 51), to which Plaintiff Tiffany Kessling responded1 (ECF No. 61), and the
University replied (ECF No. 68). Kessling then moved to strike new arguments
raised in the University’s reply and requested leave to file a sur-reply. (ECF No. 69.)
The University responded to that motion (ECF No. 70), and Kessling has replied
(ECF No. 71). Both motions are now ripe for consideration.
For the reasons set forth below, the Plaintiff’s Motion to Strike is DENIED
and the Defendants’ Motion for Summary Judgment is GRANTED IN PART and
DENIED IN PART.
1 Dr. Kessling requested oral argument in her response. Because the Court
does not believe additional argument would be helpful, that request is DENIED.
I. STATEMENT OF ESSENTIAL FACTS
The factual record in this case is voluminous, encompassing more than 200
pages of argument from the attorneys and over 5,000 pages of discovery, including
14 depositions and 75 exhibits. While the briefs themselves are very repetitive, Dr.
Kessling asserts that she experienced a “campaign” of retaliation and
discrimination that included 20 distinct adverse employment actions before she was
constructively discharged. On the other hand, OSU tells the story of a doctor who
did not get along with her colleagues and was habitually behind in obtaining
requisite professional certifications before she voluntarily left the University for a
higher paying job.
There are multiple people involved in this case, either as an individual
defendant or as a witness. Those people include:
Name Status Role
Patrick Lloyd Defendant Dean of the College of Dentistry and Kessling’s
indirect supervisor.
Matthew Old Defendant Medical Director of Head and Neck Cancer
Service Line, which includes the Maxillofacial
Prosthodontic Clinic, within the James Clinic at
the Wexner Medical Center.
Meade Van Defendant A maxillofacial prosthodontist at the College of
Putten Dentistry.
Tina Sowers Defendant Service Line Administrator for the Maxillofacial
Prosthodontic Clinic at the James Clinic.
Peter Larson Defendant Chief of Clinical Services at the College of
Dentistry.
2
Lisa Lang Witness Kessling’s direct supervisor at the College of
Dentistry.
Sasha Witness A maxillofacial prosthodontist at the College of
Valentin Dentistry.
Daniel Cortes Witness A general prosthodontist at the College of
Dentistry.
Sarah Coyan Witness Service Line and scheduling administrator at
the James.
Kristi Hoge Witness Investigator for OSU’s Human Resources
Department.
Dr. Kessling is a maxillofacial prosthodontist employed by the University’s
College of Dentistry2 from July 2014 until December 2019. Prior to her appointment
as a full-time faculty member, the University provided Kessling with a fellowship
grant to obtain more training in her specialty. (Lloyd Dep., ECF No. 43-1, PAGEID
# 2866; Kessling Personnel File, ECF No. 51-1, PAGEID # 5097.) Upon completion
of her fellowship, Kessling was appointed as associated faculty with an initial base
salary of $105,000. (Kessling Personnel File, ECF No. 51-1, PAGEID # 5094.)
However, after Drs. Lloyd and Van Putten advocated for a greater starting salary,
her initial base salary was increased to $160,000. (Kessling Personnel File, ECF No.
51-1, PAGEID # 5076.) She was reappointed annually to that associated faculty
position and was offered a clinical-track faculty position in 2018.
2 OSU is a governmental unit of the State of Ohio.
3
Although she was not eligible for annual merit-based raises, Kessling
received annual salary increases of 1.7% in 2015, 1.75% in 2016, 1.6% in 2017, and
2% in 2018. (Kessling Personnel File, ECF No. 51-1, PAGEID # 5073–74, 5083;
Lang Dep., ECF No. 45-3, PAGEID # 3910–13.) Kessling’s final annual salary at
OSU was $171,600.
Two other maxillofacial prosthodontists were employed by the College of
Dentistry during Kessling’s employment—Dr. Van Putten and Dr. Valentin. Van
Putten was a tenured faculty member with over 30 years at the University. Among
other things, as tenured faculty, Van Putten was eligible for merit-based raises and
during Kessling’s employment, Van Putten received annual salary increases of 1.5%
in 2015, 1.8% in 2016, 1.9% in 2017, and 2.2% in 2018. (Van Putten Personnel File,
ECF No. 51-3, PAGEID # 5138–40, 5164; Lang Dep., ECF No. 45-3, PAGEID #
3911–13.) His base salary at the time of Kessling’s resignation was $282,688.
Valentin was appointed as clinical-track faculty in February 2018 with a base
salary of $180,000. (Valentin Personnel File, ECF No. 51-2.) Valentin did not
receive any raises during Kessling’s employment but was eligible for merit-based
raises as clinical faculty.
All three maxillofacial prosthodontists split their time between the College
and the James. The allocation of each maxillofacial prosthodontist’s duties was
determined, at least in part, by the terms of their respective contracts and the
College’s service level agreement with the James. (Kessling Personnel File, ECF No.
51-1, PAGEID # 5109; Valentin Contract, ECF No. 51-21; Service Level Agreement,
4
ECF No. 51-22.) Any changes to the allocation of work had to be approved by Dr.
Lloyd and officials at the James. (Sowers Dep., ECF No. 42-2, PAGEID # 2304–06.)
Within the College, the day-to-day distribution of the maxillofacial
prosthodontists’ clinical and teaching responsibilities was determined by Drs. Lang
and Lloyd. (Lang Dep., ECF No. 45-2, PAGEID # 3830–32.) Within the James, the
distribution of clinical, lab, and administrative duties were laid out in scheduling
templates that were administered by scheduling teams. (Sowers Dep., ECF No. 42-
2, PAGEID # 2202, 2353–55; Coyan Dep., ECF No. 37-2. PAGEID # 760–62.)
According to Dr. Kessling, the process of creating scheduling templates was
overseen by Tina Sowers. (Kessling Decl., ECF No. 61-2, PAGEID # 6025.) The
maxillofacial prosthodontists were involved in setting their own templates
according to patient care and clinical needs. (Sowers Dep., ECF No. 42-2, PAGEID #
2354–55.)
The maxillofacial prosthodontists were required to maintain credentials at
both the College and the James. Relevant here, credentialling at the James
required board certification or a valid waiver of that requirement. When first hired,
Kessling and Valentin were each given initial five-year waivers. Van Putten was
grandfathered out of the board certification requirement. (Larsen Dep., ECF No. 40-
2, PAGEID # 1522, 1533–34.)
Kessling’s complaints about her treatment at the University.
As Kessling tells it, over the entire five years that she was at the University,
she “experienced a pattern of sex and pregnancy discrimination and retaliation.”
5
(Resp., PAGEID # 5828.) She complains that her mistreatment started from the
beginning with her starting salary and that it “worsened over the course of time”
after she took her second and third pregnancy and maternity leave in 2016 and
2018 and after her participation in two internal investigations in 2018. (Id. at
5829.)
On March 2, 2018, Kessling was interviewed as part of an investigation into a
nurse’s complaint of workplace violence and sex discrimination by Dr. Van Putten.
During her interview, Kessling complained to Ms. Hoge that Van Putten pressured
her to take a shorter maternity leave and that he requested that a man or woman of
non-childbearing age be hired as the third maxillofacial prosthodontist (the position
for which Dr. Valentin was ultimately hired). (Hoge Dep., ECF No. 46-3, PAGEID #
4492–95.) During that interview, Kessling also complained about sex-based pay
disparities.
On November 19, 2018, she was interviewed related to a faculty member’s
complaint of pregnancy discrimination by Dr. Lloyd. OSU disputes that she made
any complaints of her own at that time, but Dr. Kessling says that she reiterated
her concerns about pay disparities and complained that Lloyd retaliated against her
for her participation in the earlier investigation. (Kessling Dep., ECF No. 39-1,
PAGEID # 1349–53; Hoge Dep., ECF No. 46-8, PAGEID # 4773–80.)
Kessling’s 2018–19 contract.
From June to August 2018, Kessling was on her third maternity leave.
(Kessling Dep., ECF No. 38-1, PAGEID # 965.) During her leave, Kessling was
6
offered a new contract that included an appointment to clinical-track faculty, which
would have made her eligible for merit-based raises, provided for four-year (rather
than annual) contract-renewal periods, and provided her with greater leave accrual.
(Kessling Personnel File, ECF No. 51-1, PAGEID # 5109; Lang Dep., ECF No. 45-3,
PAGEID # 3910–13.) The new contract also allocated Kessling’s duties as 40% at
the James and 60% at the College.
Dr. Kessling objected to some of the terms in the new contract3 but she was
not offered an alternative contract. (Kessling Decl., ECF No. 61-2, PAGEID # 6017.)
Nevertheless, she continued working at OSU beyond the expiration of her 2018
contract. It is unclear from the record what her official status was after the
expiration of her previous contract.
Kessling applies for a new job and resigns from the University.
In July 2019, Kessling was invited to apply for a position with the Veterans
Health Administration. In response, Kessling did apply but she says that she had
no intention of leaving OSU prior to being solicited for the VA job. (Kessling Dep.,
ECF No. 38-3, PAGEID # 1118–21.) When the VA offered Kessling a position that
paid roughly $30,000 more per year than she was paid by OSU, she accepted the
3 Kessling contends that the allocation set forth in the new contract was a
reduction in her duties at the James. However, her prior contract did not include a
fixed allocation of her time—though a service level agreement between the James
and the University had allocated 80% of her time to the James and, since 2015, she
had consistently spent 80% of her time at the James. (Service Level Agreement,
ECF No. 51-22.)
7
offer and resigned from OSU effective December 2, 2019. (Kessling Dep., ECF No.
38-3, PAGEID # 1118.)
II. MOTION FOR LEAVE TO FILE SUR-REPLY
A district court has the discretion to deny leave to file a sur-reply where the
opposing party’s reply did not raise new legal arguments or introduce new evidence.
Modesty v. Shockley, 434 Fed.Appx. 469, 472 (6th Cir.2011) (citing Seay v. Tenn.
Valley Auth., 339 F.3d 454, 481–82 (6th Cir.2003)). Despite Kessling’s arguments to
the contrary, Defendants’ reply brief did not raise new arguments. Instead, it
expounded on arguments raised in the motion for summary judgment or served as
counterpoints to arguments raised by Kessling in her response—that is the purpose
of a reply brief.
Plaintiff’s Motion to Strike and for Leave to File Sur-reply is DENIED.
III. MOTION FOR SUMMARY JUDGMENT
A. Overview of the Claims
Kessling sued the University for unlawful retaliation and sex discrimination
under both Title VII (Count I) and Title IX (Count II). She also brought parallel
claims against five people, in their individual and official capacities, pursuant to 42
U.S.C. § 1983 for First Amendment retaliation and for equal protection violations
under the Fourteenth Amendment (Count III).
For each of Dr. Kessling’s claims she alleges that she suffered the following
20 adverse actions:
(1) Dr. Lloyd threatened to withdraw Dr. Kessling’s academic appointment;
8
(2) Drs. Lloyd and Larsen restricted Dr. Kessling’s clinical privileges to
extract teeth;
(3) Ms. Sowers and Dr. Van Putten denied Dr. Kessling additional time
that she requested in the James Clinic;
(4) Dr. Kessling’s time at the James Clinic was cut from four days to two;
(5) Dr. Kessling was reassigned to less favorable duties within the College;
(6) OSU did not renew Dr. Kessling’s contract and she was instead offered
a less favorable contract;
(7) Defendants did not assist Dr. Kessling with obtaining her board
certification;
(8) Dr. Van Putten was disrespectful to Dr. Kessling;
(9) Dr. Lloyd encouraged Dr. Van Putten to make false allegations about
Dr. Kessling’s competency;
(10) Ms. Sowers collected false information about Dr. Kessling;
(11) Ms. Sowers and Dr. Old demanded that she be removed from the James
Clinic;
(12) Ms. Sowers and Dr. Old imposed an arbitrary deadline for her to obtain
her laser credentials and failed to give her help;
(13) Ms. Sowers and Dr. Old accused her of misusing a laser on a patient;
(14) Ms. Sowers imposed a punitive scheduling template on her;
(15) Ms. Sowers and Dr. Old attacked her productivity and sought to revoke
accommodations given to her for breastfeeding and childcare;
(16) Ms. Sowers and Dr. Old attacked her for mentioning her legal rights in
the workplace:
(17) Ms. Sowers and Dr. Old threatened to refer her to the professionalism
committee;
(18) Ms. Sowers accused her of dishonesty and unprofessionalism;
(19) Dr. Van Putten downgraded his assessment of Dr. Kessling’s clinical
skills in her credentialing application and delayed her recertification to
perform laser procedures; and
(20) Dr. Larsen interfered with Dr. Kessling’s credentialing renewal.
(Resp., PAGEID # 5860–95.)
For her retaliation claims only, Kessling argues that all twenty actions, when
considered in aggregate, constituted retaliatory harassment. In addition, for her
discrimination claims, Dr. Kessling alleges that she was subject to a pay disparity
between she and Van Putten from the time she first arrived at the University and
that Van Putten was given more favorable treatment than her in various ways.
9
(ECF No. 1, ¶¶ 15, 16.) Finally, she claims that these actions collectively resulted in
her constructive discharge.
The Court will address Dr. Kessling’s claims in the order in which she
brought them—first analyzing her Title VII claim, then her Title IX claim, and
finishing with her claims under § 1983.
B. Standard of Review
Summary judgment is appropriate when “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). The movant has the burden of establishing there are no genuine
issues of material fact, which may be achieved by demonstrating the nonmoving
party lacks evidence to support an essential element of its claim. Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co.,
12 F.3d 1382, 1388–89 (6th Cir. 1993). The burden then shifts to the nonmoving
party to “set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P.
56). When evaluating a motion for summary judgment, the evidence must be viewed
in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970).
A genuine issue exists if the nonmoving party can present “significant
probative evidence” to show that “there is [more than] some metaphysical doubt as
to the material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339–40 (6th Cir.
1993). In other words, “the evidence is such that a reasonable jury could return a
10
verdict for the non-moving party.” Anderson, 477 U.S. at 248; see also Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (concluding that
summary judgment is appropriate when the evidence could not lead the trier of fact
to find for the non-moving party).
C. Title VII Claim
It is illegal for an employer to discriminate based on sex or pregnancy status.
“[I]t is now well settled that a claim of discrimination on the basis of pregnancy
must be analyzed in the same manner as any other sex discrimination claim
brought pursuant to Title VII.” Boyd v. Harding Academy, 88 F.3d 410, 413 (6th
Cir. 1996). Additionally, Title VII prohibits employers from retaliating against an
employee that engages in activities protected under the statute. U.S.C. § 2000e–
3(a); see also Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 555
U.S. 271 (2009) (speaking out about discrimination during an internal investigation
is protected under Title VII).
When the retaliatory or discriminatory conditions are so intolerable that a
reasonable person would resign, Title VII offers a separate cause of action for
constructive discharge. Green v. Brennan, 578 U.S. 547, 559–60 (2016) (clarifying
that a constructive discharge is a distinct claim under Title VII, not a theory of
liability); see also Pennsylvania State Police v. Suders, 542 U.S. 129, 147 (2004)
(“‘Unless conditions are beyond ordinary discrimination, a complaining employee is
expected to remain on the job while seeking redress.’”) (quoting Perry v. Harris
Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997)).
11
The analytical frameworks for Dr. Kessling’s retaliation and discrimination
claims against the University overlap so the Court will discuss those claims
together before addressing her constructive discharge claim. The Court will then
conclude its Title VII analysis by addressing OSU’s Faragher/Ellerth defense.
1. Retaliation and Discrimination Claims
A plaintiff can prove unlawful discrimination or retaliation using either
direct or circumstantial evidence. Dr. Kessling has direct evidence of retaliation, but
she does not have direct evidence of discrimination so the starting point for
analyzing that claim is the burden shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), as modified by Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248 (1981).
Both claims require her to demonstrate that an adverse employment action
was taken against her, so the Court will start with whether or not Dr. Kessling
experienced any adverse employment actions. See Weigel v. Baptist Hosp. of E.
Tennessee, 302 F.3d 367, 381–82 (6th Cir. 2002).
a. Adverse Employment Actions
To constitute an adverse action for purposes of a discrimination claim, the
action must be a materially adverse change to the terms and conditions of
employment, “such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in
benefits.” Regan v. Faurecia Auto. Seating, Inc., 679 F.3d 475, 481 (6th Cir. 2012).
12
In contrast, a retaliatory adverse action is any action “that might well have
dissuaded a reasonable worker from making or supporting a claim of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 70 (2006)
(internal citation and quotation omitted). Because an adverse employment action
can occur without a change to the terms and conditions of employment, it
encompasses more conduct than a discriminatory adverse action—it is any action
that would deter a reasonable employee from engaging in protected conduct under
the circumstances. Id. For example, “[a]lmost every job category involves some
responsibilities and duties that are less desirable than others,” and reassignment to
such duties could have a deterrent effect on a reasonable employee without
materially altering the terms of her employment. Id. While an employee’s protected
activities do not “immunize that employee from petty slights or minor annoyances
that often take place at work,” Id. at 68, a plaintiff’s unique circumstances “could
show that the adverse action was more disruptive than a mere inconvenience or a
mere alteration of job responsibilities.” Threat v. City of Cleveland, 6 F.4th 672, 679
(6th Cir. 2021) (internal quotations omitted). “[T]he significance of any given act of
retaliation will often depend upon the particular circumstances. Context matters.”
Burlington, 548 U.S. at 69.
For both types of claims, the Court applies an objective test—the conduct
“should be judged from the perspective of a reasonable person in the plaintiff’s
position, considering all the circumstances.” Id. at 71.
13
Defendants dispute that Dr. Kessling experienced any adverse actions but
pay disparities that are not de minimis are adverse employment actions. See
Szeinbach v. Ohio State Univ., 493 F. App’x 690, 694 (6th Cir. 2012); see also White
v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 795–96 (6th Cir.2004). Her
remaining 20 alleged adverse actions require more analysis, so the Court will
address them in order.
Adverse Action #1—Dr. Lloyd threatened to withdraw Dr. Kessling’s
academic appointment.
Shortly after Kessling’s interview in Ms. Hoge’s first investigation, Kessling
met with Drs. Lang and Lloyd. (Kessling Dep., ECF No. 38-2, PAGEID # 1078–79.)
According to Kessling, Dr. Lloyd told her that he was disappointed with the amount
of information that she had shared in her interview, that she had not respected a
senior faculty member, that her employment was contingent on her academic
appointment, and that he could and would revoke that appointment if she failed to
adhere to his directives. (Kessling Decl., ECF No. 61-2, PAGEID # 6006–07.) Dr.
Lloyd denies making any such statement, but Dr. Lang confirmed he said
something to that effect. (Lang Dep., 45-1, PAGEID # 3757–59.)
For purposes of a discrimination claim, actions that are not implemented or
are immediately rescinded are not adverse employment actions. See Scott v.
Metropolitan Health Corp., 234 Fed.Appx. 341, 348 (6th Cir. 2007) (finding that an
action that was rescinded and remedied after two months was not an adverse
action) (citing Mitchell v. Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir.2004).)
14
Where, as here, Dr. Lloyd’s threat to withdraw Kessling’s academic appointment
was not implemented, she has not suffered an adverse action for her discrimination
claim.
In contrast, for purposes of a retaliation claim, “threats alone can constitute
an adverse action if the threat is capable of deterring a person of ordinary firmness
from engaging in protected conduct.” Kubala v. Smith, 984 F.3d 1132, 1140 (6th Cir.
2021) (quoting Hill v. Lappin, 630 F.3d 468, 474 (6th Cir. 2010)). In particular, “a
credible threat to the nature and existence of one’s ongoing employment is of a
similar character to the other recognized forms of adverse action—termination,
refusal to hire, etc.” Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 728 (6th Cir.
2010) (applying an identical legal standard, a First Amendment retaliation claim in
the public employment context). Dr. Lloyd’s threats are an adverse action for
purposes of Kessling’s retaliation claim.
Adverse Action #2—Drs. Lloyd and Larsen restricted Dr. Kessling’s
clinical privileges to extract teeth.
In the same meeting that Dr. Lloyd threatened Kessling’s academic
appointment, he also directed her to stop performing tooth extractions and
restricted her privileges to do so. (Kessling Dep., ECF No. 39-1, PAGEID # 1351–
56.) Before then, Dr. Kessling’s responsibilities included occasionally performing
uncomplicated tooth extractions. The wholesale restriction of Dr. Kessling’s ability
to perform procedures that fell within her job responsibilities was a material
15
adverse change to the terms and conditions of Dr. Kessling’s employment. As such,
this is an adverse action for both her discrimination and her retaliation claims.
Adverse Action #3—Ms. Sowers and Dr. Van Putten denied Dr.
Kessling additional time that she requested in the James Clinic.
Dr. Kessling complains that Ms. Sowers and Dr. Van Putten refused to
increase her assignment at the James from four days per week to five. (Resp.,
PAGEID # 5858–60.) This not a change or disruption to her employment. There is
no evidence that Dr. Kessling was ever assigned to five days at the James or that
she had any reasonable expectation to a fifth day. This is not an adverse action.
Adverse Action #4—Dr. Kessling’s time at the James Clinic was cut
from four days to two.
In August 2018, the University reallocated Dr. Kessling’s time at the James
from four days a week to two. (Resp., PAGEID # 5860–64.)
A reallocation of preexisting duties is not a material change to the terms and
conditions of employment to be an adverse action for a discrimination claim. See
Policastro v. Nw. Airlines, Inc., 297 F.3d 535 (6th Cir. 2002) (finding that
reassignment full-time to a less convenient duty that comprised 30 to 40% of an
employee’s prior assignment was not an adverse action). However, a reallocation
may constitute an adverse action for a retaliation claim if it has a negative effect on
an employee’s professional advancement or results in a loss of prestige. See
Freeman v. Potter, 200 F. App’x 439, 444–45 (6th Cir. 2006). A loss of prestige alone
may amount to a retaliatory adverse action where the new position has less
16
responsibilities, requires less training or qualifications, or lacks other unique
characteristics. Id.
Here, the reallocation of Dr. Kessling’s time between the College and the
James is not an adverse action for either discrimination or retaliation. Kessling had
split her time between the College and the James from the outset of her
employment at OSU. She was not guaranteed any fixed allocation of days at the
James in her contract. There is no evidence that the reallocation had any impact on
Dr. Kessling’s professional advancement or prestige—her job duties remained the
same (though at a slightly different balance) and she was required to have the same
training and qualifications for both assignments. In fact, the two-day assignment
was only temporary, OSU added a third day at the James for Dr. Kessling after she
complained.
Adverse Action #5—Dr. Kessling was reassigned to less favorable
duties within the College.
Around the same time as the reallocation of her time at the James, Dr.
Kessling claims that she was assigned less favorable duties within the College—
instead of overseeing the graduate prosthodontic clinic, Dr. Lloyd assigned her to
the pre-doctoral student clinic. (Resp., PAGEID # 5864–65.)
This new assignment was not a material change to the terms and conditions
of her employment, but a jury could find that it would deter a reasonable employee
from engaging in protected conduct based on Dr. Lloyd’s own belief that
assignments at the graduate clinic were better than the duties at the student clinic.
17
(Lloyd Depo., ECF No. 43-4, PAGEID # 3120 (“it’s a plum to get assigned to the grad
clinic.”).) This action is not adverse for purposes of Dr. Kessling’s discrimination
claim but it is for purposes of her retaliation claim.
Adverse Action #6—OSU did not renew Dr. Kessling’s contract and
she was instead offered a less favorable contract.
While the non-renewal of an employment contract and the offer of a less
favorable contract may constitute an adverse action, there is no indication that
either occurred here.
Dr. Kessling first alleges that her contract was not renewed, but this is not
supported by the record. Her previous employment contract was set to expire on
August 31, 2018, yet she continued working through December 2019 without
interruption. (Kessling Personnel File, ECF No. 51-1, PAGEID # 5073.) She stopped
working because she resigned. Dr. Kessling fails to explain how this could have
occurred if her contract had not been renewed and acknowledges that she had never
been required to sign anything to effectuate her other contract renewals. (Resp.,
PAGEID # 5918.)
She also complains that she was offered a “less favorable” contract in 2018.
Her primary complaint is that the offered contract was “less favorable” than her
previous contract because it included a term that reduced her time at the James.
However, her prior contracts did not guarantee her any amount of time at the
James. (See, e.g., Kessling Personnel File, ECF No. 51-1, PAGEID # 5097–98.)
18
The objective evidence is that the offered contract had more protection and
benefits for Dr. Kessling, including an appointment to the more prestigious clinical-
track faculty appointment.4 It had a four-year term instead of the one-year term of
her contracts as associated faculty. The new contract also would have made her
eligible for merit-based raises. Despite her contentions to the contrary, objectively,
Dr. Kessling was not offered a “less favorable” contract than her previous contracts.5
Dr. Kessling next argues that the new contract offered to her was “less
favorable” than the contracts of Drs. Valentin and Cortes. While this argument
bleeds into another element of her prima facie case (the requirement that she be
treated differently than similarly situated comparators), it fails here because Drs.
Valentin and Cortes are not appropriate comparators to make her offered contract
“less favorable.”
Dr. Kessling provides no evidence about why Dr. Cortes’s contract terms have
any bearing on the terms of the contract provided to her. As to Dr. Valentin, while
she had been at the University for less time than Dr. Kessling, she was a clinical-
track faculty member for her entire tenure at OSU. Dr. Valentin was hired
4 There are three types of contracts for faculty at the College—associated-
track, clinical-track, and tenure-track. (Lang Dep., ECF No. 45-3, PAGEID # 3910–
13.) Each track came with different benefits, responsibilities, and expectations.
(Lang Dep., ECF No. 45-1, PAGEID # 3717–18.)
5 The opportunity to convert to clinical-track faculty was not unique to Dr.
Kessling. At the same time, OSU offered all other full-time associated faculty in the
College of Dentistry the opportunity to transition to clinical-track faculty. (Lang
Dep., ECF No. 45-3, PAGEID # 3910–13.)
19
following a nationwide search and had more training and experience than Dr.
Kessling had when she was initially hired. (Valentin Personnel File, ECF No. 51-2;
Lloyd Depo., ECF No. 43-3, PAGEID # 3015.) And, unlike Dr. Kessling, OSU did not
fund Dr. Valentin’s fellowship. These critical differences render Kessling and
Valentin incomparable—or, at a minimum, account for any differences in their pay
or contracts.
A reasonable jury could not find the contract offered by OSU, which offer was
made without interruption to her continued employment under the same terms that
she had previously, constituted an adverse action.
Adverse Action #7—Defendants did not assist Dr. Kessling with
obtaining her board certification.
There is no evidence that OSU had any obligation to assist Dr. Kessling in
obtaining board certification. By her own testimony, she understood that it was her
responsibility to get board certified. (Kessling Dep., ECF No. 38-1, PAGEID # 980.)
Moreover, her allegation that OSU offered no assistance is unsupported by the
record—Dr. Kessling acknowledged that she was allowed to identify and treat a
board qualifying patient at the College in early 2019, despite a University policy
that reserved such patients for graduate students. (Kessling Dep., ECF No. 38-1,
PAGEID # 1004–07.) She was also granted an additional waiver after she failed to
obtain board certification during the term of her initial 5-year waiver and she had
no disruption in her employment. This is not an adverse action.
20
Adverse Action #8—Dr. Van Putten was disrespectful to Dr. Kessling.
Kessling next complains that Van Putten repeatedly refused to speak to her,
discarded some of her personal items and equipment, and put patients on her
schedule without consulting her. (Resp., PAGEID # 5868–69.) This conduct, while
boorish and rude, does not rise to an adverse action. As the Sixth Circuit has said:
We speak of material adversity because we believe it is important to
separate significant from trivial harms. Title VII, we have said, does
not set forth “a general civility code for the American workplace.” An
employee’s decision to report discriminatory behavior cannot immunize
that employee from those petty slights or minor annoyances that often
take place at work and that all employees experience. The
antiretaliation provision seeks to prevent employer interference with
“unfettered access” to Title VII’s remedial mechanisms. It does so by
prohibiting employer actions that are likely “to deter victims of
discrimination from complaining to the EEOC,” the courts, and their
employers. And normally petty slights, minor annoyances, and simply
lack of good manners will not create such deterrence.
Szeinbach, 493 F. App’x at 693 (quoting Burlington, 548 U.S. at 67–69).
Adverse Action #9—Dr. Lloyd encouraged Dr. Van Putten to make
false allegations about Dr. Kessling’s competency.
Adverse Action #10—Ms. Sowers collected false information about
Dr. Kessling.
Adverse Action #11— Ms. Sowers and Dr. Old demanded that she be
removed from the James Clinic.
Adverse Action #12—Ms. Sowers and Dr. Old imposed an arbitrary
deadline for Kessling to obtain her laser credentials and failed to
give her help.
Adverse Action #13—Ms. Sowers and Dr. Old accused Dr. Kessling of
misusing a laser on a patient.
Adverse Action #15—Ms. Sowers and Dr. Old attacked Dr. Kessling’s
productivity and sought to revoke accommodations given to Dr.
Kessling for breastfeeding and childcare.
Adverse Action #16—Ms. Sowers and Dr. Old attacked Dr. Kessling
for mentioning her legal rights in the workplace.
Adverse Action #17—Ms. Sowers and Dr. Old threatened to refer Dr.
Kessling to the professionalism committee.
21
Adverse Action #18—Ms. Sowers accused Dr. Kessling of dishonesty
and unprofessionalism.
The Court combines adverse actions 9 through 13 and 15 through 18 because
none is an adverse action for either discrimination or retaliation. False allegations,
attacks, and threats fall into the category of “petty slights or minor annoyances that
often take place at work” but that are not materially adverse when there is no
evidence that those allegations resulted in any change in the terms of employment.
Burlington, at 68. And, while threats may be an adverse action for purposes of a
retaliation claim, the threats that Kessling alleges here are not the type that are
actionable—not only were Sowers and Old not her supervisors, Kessling provides no
evidence that she was ever referred to the professionalism committee, that any false
information was put in her personnel file, that there were any threats to the nature
and existence of her on-going employment, or that she was even aware of many of
these conversations prior to discovery in this lawsuit.
As for Dr. Kessling’s claim that Dr. Lloyd “encouraged” Dr. Van Putten to
make false allegations, there is nothing in what she overheard that could
reasonably be interpreted as Dr. Lloyd encouraging Van Putten to make false
allegations. (See Kessling Dep., ECF No. 38-1, PAGEID # 958 (“[Dr. Lloyd]
requested [that] Dr. Van Putten gather information on [Dr. Kessling] and give it
directly to him.”).)
22
Adverse Action #14—Ms. Sowers imposed a punitive scheduling
template on Dr. Kessling.
Kessling says that in January 2019, after she was put back to three days at
the James, Sowers imposed a new and punitive scheduling template for her
assignments at the James. (Resp., PAGEID # 5881–88.)
A maxillofacial prosthodontist’s scheduling template had four types of
appointments: dental clearances, laser cases, intraoral prosthetic cases, and
extraoral (or “facial”) prosthetic cases. (Sowers Dep., ECF No. 42-2, PAGEID #
2298–2302.) According to Kessling, her new January 2019 template was an adverse
action because, among other things, her template had too many dental clearance
slots and not enough time allocated to each slot. (Resp., PAGEID # 5883–86.)
Because there were more dental clearance slots than dental clearance patients, the
template resulted in excessive vacancies, which impacted her productivity. And
because there was not enough time to complete each dental clearance appointment,
the template resulted in overcrowding her at times, which put her at risk for
violating the standard of care for her patients.
Dr. Kessling has not demonstrated that her new template was more than a
temporary inconvenience due to shifting operations or matters of personal
preference. For example, while she claims that she had more dental clearances than
her prior templates and the templates of Drs. Valentin and Van Putten, there is no
evidence that these appointments were less prestigious or more arduous than other
types of appointments, that she was assigned more total appointments than the
23
other maxillofacial prosthodontists, or that she was given less time to complete her
dental clearance appointments than her colleagues. In fact, Dr. Kessling refused to
take more than one new facial case per week and OSU tried to accommodate that
refusal. (Kessling Email, ECF No. 51-15, PAGEID # 5380.)
The other problem with Dr. Kessling’s complaints about the template is that
she was not able to perform all of the same types of appointments as her colleagues
for the four months that she did not have her laser certification—her template was
changed again when she obtained the certification. (Kessling Decl., ECF No. 61-2,
PAGEID # 6028.) This and her self-imposed limitation on facial cases limited the
type of appointments (other than dental clearances) that could be on Kessling’s
template during the four months it was in place. This is not an adverse action.
Adverse Action #19—Dr. Van Putten downgraded his assessment of
Dr. Kessling’s clinical skills in her credentialing application and
delayed her recertification to perform laser procedures.
Generally, performance evaluations that have no negative effect on wages or
professional advancement are not retaliatory adverse actions. See, e.g., Halfacre v.
Home Depot, U.S.A., Inc., 221 F. App’x 424, 433 (6th Cir. 2007). Dr. Kessling has not
demonstrated that Dr. Van Putten’s performance evaluation had any negative effect
on her salary or professional advancement. Further, Dr. Van Putten did sign off on
her laser credentialing and she was then able to perform laser procedures. As such,
these actions did not constitute an adverse action.
24
Adverse Action #20—Dr. Larsen interfered with Dr. Kessling’s
credentialing renewal.
To maintain her credentials at the James, Dr. Kessling had to be board
certified or have a valid waiver of the certification requirement. In 2018, Dr.
Kessling needed to apply for a second waiver because her initial 5-year waiver was
about to expire and she was not board certified. (Kessling Dep., ECF No. 38-1,
PAGEID # 976.). Although she requested a three-year waiver, the credentialing
board initially approved only a six-month waiver; following another application, the
board approved an additional twelve-month waiver. While Dr. Kessling was able to
continue practicing under her waivers, she complains that Dr. Larsen interfered
with her attempts to secure the additional waivers. (Resp., PAGEID # 5897–60.)
There is no dispute that Dr. Larsen initially recommended that Dr. Kessling’s
waiver request be denied before reversing course and recommending approval of her
request. (Id.)
Intermediate and inconsequential recommendations—particularly in an
academic setting—are not adverse actions. See Benison v. Ross, 765 F.3d 649, 659
(6th Cir. 2014); see also Kubik v. Cent. Mich. Univ. Bd. of Trustees, 717 F. App’x
577, 583 (6th Cir. 2017) (explaining that, generally, actions that are quickly
rescinded or does not cause harm do not constitute adverse actions) (collecting
cases). Accordingly, this is not an adverse action.
25
b. Direct Evidence
Direct evidence is evidence that, if believed, requires the conclusion that
retaliation was at least a motivating factor in the employer’s actions. See McGee v.
Food Warming Equip., Inc., No. 3-14-CV-01776, 2017 WL 587856, at *2 (M.D. Tenn.
Feb. 14, 2017). Direct evidence is composed of only the most blatant remarks, whose
intent could mean nothing other than to retaliate against the employee—it does not
require a factfinder to draw any inferences in order to conclude that the challenged
employment action was motivated at least in part by discrimination or retaliation.
See Equal Emp. Opportunity Comm’n v. Publix Super Markets, Inc., 481 F. Supp. 3d
684, 697–98 (M.D. Tenn. 2020). Importantly, the evidence must establish not only
that the plaintiff’s employer was predisposed to retaliate, but also that the employer
acted on that predisposition. Id.
“Where a plaintiff has shown direct evidence of retaliation, the burden shifts
to the employer to prove by a preponderance of the evidence that it would have
made the same decision absent the impermissible motive.” Grizzard v. Nashville
Hosp. Capital, LLC, 2021 WL 3269955, at *20 (M.D. Tenn. July 30, 2021) (internal
citations and quotations omitted); see also Blalock v. Metals Trades, Inc., 775 F.2d
703, 707–712 (6th Cir. 1985). “In the summary judgment—as opposed to trial—
context, the defendant-movant must show that no reasonable jury could fail to find
by a preponderance that the defendant would have made the same decision absent
the impermissible (here, retaliatory) motive.” Grizzard, at *20.
26
Dr. Kessling argues that she has submitted direct evidence of retaliation by
Lloyd, Van Putten, Sowers, and Old. However, as discussed above, the actions of
Van Putten, Sowers, and Old do not rise to the level of adverse employment actions.
That leaves the alleged retaliation by Dr. Lloyd.
Dr. Lloyd’s statements to Dr. Kessling are direct evidence of retaliation. They
do not require the drawing of inferences to reach the conclusion that he wished to
retaliate against Dr. Kessling for her participation in the investigation against Van
Putten. He told Dr. Kessling that he was disappointed in what she had shared in
the investigation and that she had been disrespectful to a senior faculty member.
(Kessling Decl., ECF No. 61-2, PAGEID # 6006–07.) He instructed her to share her
complaints about Dr. Van Putten only with Dr. Lang in the future. (Kessling Dep.
ECF No. 38-2, PAGEID # 1079–80.) Dr. Lloyd then reminded Dr. Kessling that he
had the power to withdraw her academic appointment (which would result in her
termination) and that he would do so if she did not follow his directives. (Kessling
Dep. ECF No. 38-1, PAGEID # 969; Kessling Decl., ECF No. 61-2, PAGEID # 6006–
07.) While Dr. Lloyd disputes what was said at the meeting, if a factfinder were to
believe Dr. Kessling’s testimony, Dr. Lloyd’s statements require a conclusion that
retaliation was at least a part of his motivation for his actions toward her.
Because Kessling has presented direct evidence of retaliation, the Court can
grant summary judgment to OSU only if it has shown that no reasonable jury could
fail to find by a preponderance of the evidence that Lloyd would have taken the
same actions absent a retaliatory motive. It has not.
27
OSU claims that the conversation between Lloyd and Kessling was not about
her participation in the March investigation, but rather was the result of
complaints made about Dr. Kessling performing extractions beyond the scope of her
permissions. However, given the timing and Dr. Kessling’s version of their
conversation, a reasonable jury could choose to believe Dr. Kessling’s version of
events, finding that Dr. Lloyd had a retaliatory motivation.
Because Dr. Kessling has established her retaliation claim based on direct
evidence, the Court need not address whether she has met all elements of her prima
facie case under the McDonnell Douglas framework—including whether all twenty
actions collectively constituted retaliatory harassment. OSU is not entitled to
summary judgment on Dr. Kessling’s Title VII retaliation claim.
c. Indirect Evidence
Dr. Kessling has not presented direct evidence of discrimination, so the Court
must use the McDonnell Douglas framework for her discrimination claim. Under
McDonnell Douglas, a plaintiff must first establish a prima facie case. A prima facie
case of discrimination requires a showing that the plaintiff: (1) is a member of a
protected class, (2) was qualified for her job, (3) suffered an adverse employment
decision, and (4) was replaced by a person outside the protected class or treated
differently than similarly situated nonprotected employees. White v. Baxter
Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008). There are two discriminatory
adverse actions—pay disparity and the restriction of Kessling’s privileges.
28
When a plaintiff establishes a prima facie case, it creates a rebuttable
presumption that the employer engaged in unlawful conduct and the burden shifts
to the employer to produce a legitimate, non-discriminatory reason for the adverse
employment action. Burdine, 450 U.S. at 252–53. This burden is not onerous; an
employer satisfies its burden if it articulates a valid rationale for its decision.
Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996). If a defendant presents a
legitimate, non-retaliatory reason for the employment action, “a plaintiff will
survive summary judgment only by raising a genuine issue of material fact as to
whether the proffered reason is in fact a pretext for” unlawful discrimination.
Walcott v. City of Cleveland, 123 F. App’x 171, 176 (6th Cir. 2005). The ultimate
burden of persuasion remains on the plaintiff throughout this analysis. See
Burdine, 450 U.S. at 253–56.
To demonstrate pretext, Dr. Kessling may establish that the proffered
reasons: (1) had no basis in fact, (2) did not actually motivate the action, or (3) were
insufficient to motivate the action. Tingle v. Arbors at Hilliard, 692 F.3d 523, 530
(6th Cir. 2012) (quoting Romans v. Mich. Dep’t of Human Servs., 668 F.3d 826, 839
(6th Cir. 2012)). But plaintiffs are not limited to presenting evidence that falls
cleanly within these categories. Rather, they are a “convenient way of marshaling
evidence and focusing it on the ultimate inquiry: ‘did the employer fire the employee
for the stated reason or not?’” Id..
A jury “may not reject an employer’s explanation [of its action] unless there is
sufficient basis in the evidence for doing so.” Gray v. Toshiba Am. Consumer Prods.,
29
Inc., 263 F.3d 595, 600 (6th Cir. 2001) (quotation and citation omitted). Accordingly,
to avoid summary judgment, “a plaintiff must produce sufficient evidence from
which a jury could reasonably reject [the employer’s] explanation of why it [acted as
it did].” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009).
i. Disparate Treatment compared to Van
Putten.
Dr. Kessling complains that she was paid less than Van Putten and was
otherwise subject to less favorable treatment as compared to him. (Resp., PAGEID #
5836, 5953–5956.) In response, OSU argues that Dr. Kessling cannot establish a
prima facie case of discrimination using Dr. Van Putten as a comparator because he
was not a similarly situated nonprotected employee.
To demonstrate that Van Putten is “similarly situated” Dr. Kessling “need
not demonstrate an exact correlation with the employee receiving more favorable
treatment”; rather they must be similar in “all relevant aspects.” Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (citing Pierce v.
Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir.1994)). In determining
relevance, courts are to “make an independent determination as to the relevancy of
a particular aspect of the plaintiff’s employment status and the comparator
employee.” Id; see also Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir.1992)
(finding that relevant aspects of employment may include having the same
supervisor, being subject to the same standards, and engaging the same conduct).
Here, Kessling and Van Putten were not similarly situated in all relevant
30
aspects. It is undisputed that Van Putten has decades more experience as a
maxillofacial prosthodontist at OSU than Dr. Kessling—he worked at the College of
Dentistry for over 20 years and worked at the James Clinic full-time for over a
decade. (Van Putten Personnel File, ECF No. 51-3.) Van Putten had previously
served as Chair of the Section of Primary Care within the College of Dentistry. (Id.)
During his nearly 30-year career, he has lectured both nationally and
internationally and has written multiple research papers and abstracts. (Id.) As a
tenured faculty member, Van Putten was not required to teach, was subject to
greater research and publication requirements, and was eligible for merit-based
raises on top of annual salary increases.
In contrast, Dr. Kessling was at the University for only five years, she held
no leadership positions at the College, and was not tenured. Dr. Kessling was not
subject to the same research and publication requirements as Dr. Van Putten. Thus,
while they may have been peers in some respects with the same supervisor and
performing many of the same functions, their differences in tenure, rank, and
scholarship matter in a university setting.
The differences between Drs. Van Putten and Kessling are also legitimate,
nondiscriminatory reasons for the differences in their treatment. She has not
demonstrated that any of these reasons are pretextual. Thus, she has failed to state
a claim for unlawful discrimination based on disparities in pay or treatment with
Van Putten.
31
ii. Lloyd and Larsen restricted Kessling’s
clinical privileges to extract teeth.
As to the adverse action that occurred when Drs. Lloyd and Larsen restricted
her privileges to extract teeth, Dr. Kessling has not identified a comparator for
whom there were similar concerns about extractions beyond the scope of their
responsibilities that was treated differently.
Even if she had established the elements of her prima face case, OSU
provides a legitimate, non-discriminatory reason for restricting her privileges—that
it was necessary to do so to address concerns that she was performing tooth
extractions beyond the scope of her responsibilities. Now the burden shifts to Dr.
Kessling to demonstrate that this reason was pretextual.
Dr. Kessling argues that Drs. Lloyd and Larsen provide contradictory
testimony for how they learned about issues with her tooth extractions. In fact, both
Drs. Lloyd and Larsen testified that they were independently alerted to potential
issues with Dr. Kessling’s extractions by individuals who worked with Dr. Kessling
at the James Clinic. (Lloyd Dep., ECF No. 43-1, PAGEID # 2875; Larsen Dep. ECF
No. 40-2, PAGEID # 1539–40, 53–54.) Although their testimony varied slightly on
whether Dr. Larsen conducted a review of Kessling’s credentials independently or at
Lloyd’s direction, this is of little consequence because both Defendants agree that
Dr. Larsen conducted such a review. (Lloyd Depo, ECF Nos. 43-1, 43-2, PAGEID #
2875–76, 2884; Larsen ECF No. 40-2, PAGEID # 1568–70.) After Dr. Larsen
concluded that Dr. Kessling had been performing extractions beyond the scope of
32
her responsibilities, Dr. Lloyd told Dr. Kessling to stop performing extractions.
(Larsen ECF No. 40-2, PAGEID # 1568–70; Lloyd Dep., ECF No. 2897.) This does
not support an argument of pretext for discrimination.
Kessling also attempts to demonstrate pretext by arguing that OSU’s
proffered reason had no basis in fact, arguing that she was not performing improper
extractions and only performed extractions at the request of oncologists. (Resp.,
PAGEID # 5855; Kessling Decl., ECF No. 61-2, PAGEID # 6005.) However, the
oncologists had no training in dentistry or experience in determining whether a
given procedure fell within the scope of her privileges. (Lloyd Dep., ECF 43-2,
PAGEID # 2881.) It is undisputed that it was Kessling’s responsibility to use her
judgment as to whether an extraction was within her credentials. Based on the
information from Dr. Larsen and other sources, Dr. Lloyd did not believe Dr.
Kessling exhibited sound judgment in making such determinations. (Lloyd Depo,
ECF No. 43-2, PAGEID # 2893–97.) Dr. Kessling has not demonstrated that the
concerns about her performing extractions beyond her responsibilities had no basis
in fact.
Because she has failed to establish a prima facie case of sex discrimination
and has not demonstrated that OSU’s proffered reasons were mere pretext for
discrimination, Dr. Kessling’s discrimination claim fails as a matter of law.
Defendants’ Motion for Summary Judgment is GRANTED on Dr. Kessling’s
Title VII discrimination claim.
33
2. Constructive Discharge
A constructive discharge occurs when working conditions are “so difficult or
unpleasant that a reasonable person in the employee’s shoes would have felt
compelled to resign.” Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir. 1982).
Constructive discharge is hard to prove. See Groening v. Glen Lake Cmty. Sch., 884
F.3d 626, 630 (6th Cir. 2018). To demonstrate a constructive discharge, the plaintiff
must show that: (1) the employer deliberately created intolerable working
conditions, as perceived by a reasonable person; (2) the employer did so with the
intention of forcing the employee to quit; and (3) the employee actually quit. See
Savage v. Gee, 665 F.3d 732, 739 (6th Cir. 2012). The Sixth Circuit employs a multi-
factor approach to determine whether intolerable working conditions existed,
including examining the presence of: (1) demotion, (2) reduction in salary, (3)
reduction in job responsibilities, (4) reassignment to menial or degrading work, (5)
badgering, harassment, or humiliation by the employer calculated to encourage the
employee’s resignation, or (6) offers of early retirement or continued employment on
terms less favorable than the employee’s former status. Logan v. Denny’s, Inc., 259
F.3d 558, 569 (6th Cir. 2001). Also relevant is “the employer’s intent and the
reasonably foreseeable impact of its conduct on the employee.” Wheeler v. Southland
Corp., 875 F.2d 1246, 1249 (6th Cir. 1989) (quotation omitted).
Dr. Kessling’s constructive discharge claim fails. Most of the things she
complains about were not changes to her employment. Even to the extent there
were some changes, none of them created working conditions that a reasonable
34
person would have found to be intolerable. For example, Dr. Kessling’s reduction of
time at the James had no impact on her pay, hours, job responsibilities, or even the
type of work that she performed.
Additionally, none of Kessling’s complaints constitutes badgering,
harassment, or humiliation by her employer. Instead, she recounts petty slights or
minor annoyances from her coworkers; she was not even aware of many of the
incidents until discovery in this suit. These are not the type of working conditions
that are “so difficult or unpleasant that a reasonable person in the employee’s shoes
would have felt compelled to resign.” Logan, at 887 (internal quotation marks
omitted).
No matter how she subjectively reacted to her situation, there is no evidence
that OSU intended to force her to resign or that her resignation was a reasonably
foreseeable impact of its conduct—especially given that OSU had offered her a four-
year contract and a twelve-month credentialling waiver before her resignation.
Finally, according to her own testimony, she was not looking for a new job
and had no intention of leaving the University before the VA solicited her for a job.
(Kessling Dep., ECF No. 38-3, PAGEID # 205, 207–208.)
Defendants’ Motion for Summary Judgment on Dr. Kessling’s constructive
discharge claim is GRANTED.
3. Faragher/Ellerth Defense
As an additional basis for summary judgment on Dr. Kessling’s Title VII
claim, OSU argues that it is not liable under the Faragher/Ellerth defense. Because
35
Dr. Kessling’s retaliation claim is the only claim that survives, the Court focuses its
discussion that claim.
In order to avoid vicarious liability for non-tangible employment actions
taken by a supervisor, the Faragher/Ellerth defense requires an employer to
establish two elements by a preponderance of the evidence: 1) that it exercised
reasonable care to prevent and promptly correct retaliatory harassment; and 2) that
plaintiff unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer. See Morris v. Oldham Cnty. Fiscal Ct., 201
F.3d 784, 792 (6th Cir. 2000).
There is a genuine issue of material fact as to whether Dr. Kessling failed to
take advantage of OSU’s available procedures. OSU claims that Dr. Kessling
refused to share information about instances of retaliation that occurred after she
participated in the March 2018 investigation and that she asked OSU not to
investigate these matters. However, Kristi Hoge acknowledged that during her
interview of Dr. Kessling in November 2018, Dr. Kessling reported that Dr. Lloyd
told her “that he was very disappointed that [she] did not respect senior faculty
member” and that she believed she had been retaliated against. (Hoge Dep. ECF
No. 46-2, PAGEID # 4352.) Although Dr. Kessling told Ms. Hoge not to investigate,
she also told Ms. Hoge that she wanted OSU’s legal department to perform the
investigation. (Kessling Decl., ECF No. 61-2, PAGEID # 6010.)
Even if OSU could establish that Dr. Kessling failed to take advantage of
available procedures, there is still a genuine issue of material fact as to whether
36
any such failure would be unreasonable—a reasonable jury could find that an
employee who was under a credible threat of retaliation had no duty to take
advantage of an employer’s available procedures. See Wyatt v. Nissan N. Am., Inc.,
999 F.3d 400, 416 (6th Cir. 2021). Dr. Kessling has presented direct evidence that
Dr. Lloyd threatened her employment after she complained about Dr. Van Putten in
March, and this is enough to create a jury question as to whether she had a rational
fear of retaliation if she made more complaints.
Viewing the record in the light most favorable to Dr. Kessling, a jury could
reasonably find that she did not unreasonably fail to take advantage of OSU’s
available procedures. OSU’s Faragher/Ellerth defense argument fails.
D. Title IX Claim
Title IX prohibits discrimination based on sex and pregnancy by “any
education program or activity receiving federal financial assistance.” 20 U.S.C. §
1681(a); see also Workman v. Univ. Of Akron, 2017 U.S. Dist. LEXIS 203302, *6
(N.D. Ohio) (“The discrimination prohibited by Title IX includes discrimination
related to pregnancy.”); 34 CFR § 106.57(b). Though the statute contains no express
private right of action, the Supreme Court has held that individuals may sue
funding recipients for violating Title IX. See Cannon v. Univ. of Chi., 441 U.S. 677,
717, (1979); Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60, 76 (1992). This
implied right of action includes claims of retaliation against those who complain
about sex discrimination. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174
(2005).
37
Title IX claims are subject to the same legal standards as Title VII claims.
See Nelson v. Christian Bros. Univ., 226 Fed. Appx. 448, 454 (6th Cir. 2007) (Title
IX and Title VII claims are analyzed under the same legal standards for both
discrimination and retaliation) (collecting cases). See Bose v. Bea, 947 F.3d 983,
989–90 (6th Cir. 2020), cert. denied, 208 L. Ed. 2d 521 (2021) (the elements of prima
facie retaliation claims under Title VII and Title IX are analogous). However, there
is a critical difference in the type of conduct that can be imputed to an employer
under Title VII and a funding recipient under Title IX: whereas employers can be
held liable for the unlawful conduct of their employees under Title VII, a funding
recipient is only liable for its own misconduct under Title IX. Bose, at 989–90 (“Title
IX imposed liability only for a funding recipient’s ‘own official decision[s]’ and not
‘for its employees’ independent actions.”) (quoting Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 285 (1998)).
Thus, Dr. Kessling’s Title IX discrimination claim fails for the same reasons
that her Title VII discrimination claim failed. As to her Title IX retaliation claim,
there is a genuine dispute whether Dr. Lloyd threatened to withdraw her academic
appointment and took other actions as retaliation for her participation in the March
investigation. As the Dean of the College of Dentistry, Dr. Lloyd had the authority
to withdraw Dr. Kessling’s academic appointment. This threat by the Dean is OSU’s
own official decision and is sufficient for OSU to be liable under Title IX . See, e.g.,
Bose, at 991–92 (explaining that acting or failing to act by a high-ranking university
38
official in their official capacity is a university’s own official decision) (citing
Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81 (2d Cir. 2011)).
Defendants’ Motion for Summary Judgment is DENIED on Dr. Kessling’s
Title IX retaliation claim and GRANTED on her Title IX discrimination claim.
E. Section 1983 Claims
Dr. Kessling’s claims against the individual Defendants are brought against
them in their individual and official capacities. She alleges that the individual
Defendants retaliated against her for her protected speech in violation of the First
Amendment and that they discriminated against her in violation of the Equal
Protection Clause of the Fourteenth Amendment.
As a preliminary matter, Kessling is not permitted to bring § 1983 claims
against Defendants in their official capacity. Section 1983 imposes liability only
upon a “person” who, under color of law, subjects another person to a deprivation of
federal rights, and State officials acting in their official capacity are not “persons”
under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Gean v.
Hattaway, 330 F.3d 758, 766 (6th Cir. 2003) (holding that § 1983 claims against
agents of the state in their official capacity are not cognizable).
To succeed on her § 1983 claim against Defendants in their individual
capacities, Dr. Kessling must demonstrate personal involvement of each Defendant
in causing her injury. Hardin v. Straub, 954 F.2d 1193, 1196 (6th Cir. 1992). A
person cannot be held liable under § 1983 unless he or she personally participated
in, or otherwise authorized, approved or knowingly acquiesced in, the allegedly
39
unconstitutional conduct. Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1241 (6th
Cir. 1989). A plaintiff must demonstrate that a supervisory defendant “did more
than play a passive role in the alleged violation or showed mere tacit approval of the
goings on,” Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999), because “[§] 1983
liability cannot be imposed under a theory of respondeat superior.” Grinter v.
Knight, 532 F.3d 567, 575 (6th Cir. 2008) (citation omitted).
Thus, to establish liability against an individual defendant, Kessling must
plead and prove that the defendant was personally involved in the conduct that
forms the basis of her complaint. Greene v. Barber, 310 F.3d 889, 899 (6th Cir.
2002); Breen v. Barber, 310 F.3d 889, 899 (6th Cir. 2002) (stating that, “[a]t a
minimum a [§ 1983] plaintiff must show that a supervisory official at least
implicitly authorized, approved, or knowingly acquiesced in the unconstitutional
conduct”).
Before addressing the merits of Kessling’s § 1983 claims, the Court will
address the claim against Dr. Old. Then, the Court will turn to the First
Amendment retaliation claim before finishing with Kessling’s Equal Protection
claim.
1. Dr. Old
Kessling does not make any factual allegations against Dr. Old in her
Complaint. She presents allegations against him for the first time in her response to
the Defendants’ motion for summary judgment. Parties who seek to raise new
claims at the summary-judgment stage must first move to amend their pleadings
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under Federal Rule of Civil Procedure 15(a). See Rafferty v. Trumbull Cnty., 758 F.
App’x 425, 429 (6th Cir. 2018). If the plaintiff seeks to raise new claims for the first
time in response to summary judgment, a district court does not err by refusing to
consider them. Tucker v. Union of Needletrades, Indus., & Textile Emps., 407 F.3d
784, 788 (6th Cir. 2005).
Kessling has not moved to amend her complaint to include allegations
against Dr. Old.6 The Court will not consider claims brought against him for the
first time in summary judgment briefing. Defendants’ Motion for Summary
Judgment is GRANTED as to Defendant Matthew Old.
2. First Amendment Claim
It is well settled that “a public employer may not retaliate against an
employee for her exercise of constitutionally protected speech.” Buddenberg v.
Weisdack, 939 F.3d 732, 741 (6th Cir. 2019); see also See v. City of Elyria, 502 F.3d
6 In her response to Defendants’ summary judgment motion, Kessling asks
for leave to amend the complaint “in the event that the Court peruses the complaint
and determines it is deficient.” (Resp., PAGEID # 5945.) This open-ended request
for an advisory opinion on the deficiencies of her complaint is not a proper motion to
amend. See Begala v. PNC Bank, 214 F.3d 776, 784 (6th Cir. 2000) (affirming
District Court’s determination that “Plaintiffs were not entitled to an advisory
opinion from the Court informing them of the deficiencies of the complaint and then
an opportunity to cure those deficiencies.”) (emphasis in original).
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484, 495 (6th Cir. 2007) (“a public employee’s right to speak on matters of public
concern without facing improper government retaliation [is] settled”).7
First Amendment retaliation claims are also subject to a burden-shifting
framework. Haji v. Columbus City Sch., 621 Fed.Appx. 309, 314 (6th Cir.2015). To
succeed on a claim against her employer, a public employee must first make prima
facie case of retaliation, which is comprised of the following elements: (1) that her
speech was protected, (2) that her employer took an adverse action against her, and
(3) that her protected speech was a substantial or motivating factor for the adverse
action—that is, the adverse action was motivated at least in part by her protected
conduct. Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 255 (6th Cir.2006);
Dye v. Office of the Racing Comm’n, 702 F.3d 286, 294 (6th Cir.2012). If the
employee establishes a prima facie case, the burden then shifts to the employer to
demonstrate by a preponderance of the evidence that it would have taken the same
actions absent the protected conduct. Dye, 294–95. Once this shift has occurred,
summary judgment in favor of the employer is warranted only if, considering the
evidence viewed in the light most favorable to the employee, no reasonable juror
could return a verdict for the employee. Id.
7 In fact, it is so well settled that Defendants’ argument for qualified
immunity deserves no more than a footnote: the individual Defendants are not
entitled to qualified immunity.
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Protected Speech. There is a three-step inquiry to determine whether
speech by a public employee is constitutionally protected. Mayhew v. Town of
Smyrna, 856 F.3d 456, 462 (6th Cir. 2017). A plaintiff must show that (1) she spoke
as a private citizen, (2) on a matter of public concern, and (3) that the interest of the
government employer in promoting efficient public service is not outweighed by her
interest in that speech. Id.; Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); Pickering
v. Board of Educ., 391 U.S. 563, 568 (1968). Defendants contend that Dr. Kessling
was not speaking as a private citizen when she participated in internal
investigations into sex discrimination and retaliation.
“[W]hen public employees make statements pursuant to their official duties,
the employees are not speaking as citizens for First Amendment purposes.”
Garcetti, at 421. Restricting such speech, “does not infringe any liberties the
employee might have enjoyed as a private citizen. It simply reflects the exercise of
employer control over what the employer itself has commissioned or created.”
Garcetti, at 411. The critical question is whether the speech “owes its existence to a
public employee’s official responsibilities.” Id. However, employers may not restrict
the rights of their employees by imposing overly broad job descriptions. Id. at 424–
25. Instead, the inquiry is a practical one that looks at routine job functions or ad
hoc duties that the employee is actually expected to perform. Id.; see also Weisbarth
v. Geauga Park Dist., 499 F.3d 538, 543 (6th Cir. 2007) (finding speech was
pursuant to official duties where employee was “obligated” to participate in an
investigation about employee morale and performance was an ad hoc duty); c.f.
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Buddenberg, at 740 (employee acted as a private citizen when she brought
complaints of discrimination and misconduct outside her chain of command and of
her own volition).
Here, Dr. Kessling was not speaking pursuant to her official duties when she
voluntarily participated in internal investigations. There is no evidence that her
day-to-day responsibilities included reporting instances of workplace discrimination
or harassment, that she was required to participate in the investigations, or that
she would suffer disciplinary action for failing to participate. Defendants argue that
a University policy provides that employees have a “responsibility” to report
discrimination. (See University Policy, ECF No. 38–5, PAGEID # 1272–75.) But that
policy provides only that University employees can report discrimination “if desired”
or “if comfortable doing so.” (Id.) This did not create an obligation to report
discrimination.
Kessling’s statements made during both internal investigations were made as
a private citizen and are protected under the First Amendment.
Adverse Action. The First Amendment standard for an adverse action in the
public employment context is identical to the standard for a Title VII retaliation
claim—it is an adverse action if it “‘might have dissuaded a reasonable worker’ from
engaging in protected activity.” Benison, 765 F.3d at 659 (quoting Burlington, 548
U.S. at 68). Dr. Kessling has established the following retaliatory adverse actions:
(1) the threat to withdraw her academic appointment, (2) the restriction of her
extraction privileges, and (3) the reassignment of her duties within the College.
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Because these are the only adverse actions for purposes of Dr. Kessling’s First
Amendment claim, OSU’s Motion for Summary Judgment is GRANTED as to Dr.
Van Putten and Ms. Sowers.
Protected speech was a substantial or motivating factor. Dr. Kessling
must show that her protected speech was a “substantial or motivating factor” in the
adverse actions taken against her. “Where an adverse employment action occurs
very close in time after an employer learns of a protected activity, such temporal
proximity between the events is significant enough to constitute evidence of a
causal connection for the purposes of satisfying a prima facie case of retaliation.”
Dye, at 305–06 (finding that a temporal proximity of two months is sufficient). The
Court can also consider “incidents of misconduct that do not rise to the level of an
adverse employment action if those incidents show a pattern of mistreatment on the
job based on plaintiff’s protected activities.” Benison, at 661 (internal quotations
and citation omitted).
a. Defendant Patrick Lloyd
Kessling has established a prima facie case of First Amendment retaliation
against Dr. Lloyd by presenting evidence that, within weeks of learning about her
participation in the March investigation, Dr. Lloyd threatened to withdraw her
academic appointment and restricted her clinical privileges to perform extractions;
within months, he reassigned her to duties within the College to those that he
believed were less “plum.”
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Having established a prima facie case of retaliation, the burden shifts to
Defendants to demonstrate that no reasonable jury could return a verdict for Dr.
Kessling. They have failed to do so.
Although Defendants argue that the threat to withdraw Kessling’s academic
appointment and restriction of her extraction privileges were necessary to address
concerns about her performing extractions beyond the scope of her responsibilities,
that argument is best resolved by a jury—Dr. Lloyd’s comments at the time he took
these actions could cause a reasonable jury to conclude that his motive was, at least
in part, retaliation. Similarly, a reasonable jury could choose not to credit
Defendants’ vague argument that Kessling’s duties within the College were
reassigned to “meet the needs of the College.” A reasonable jury could conclude that
Dr. Lloyd was motivated, at least in part, by Dr. Kessling’s protected conduct.
OSU’s motion for summary judgment is DENIED as to Dr. Lloyd in his
individual capacity.
b. Defendant Peter Larsen
Dr. Kessling has failed to establish a prima facie case against Dr. Larsen.
Although she alleges that he was involved in revoking her privileges to perform
extractions, there is no evidence that Dr. Larsen was aware of Kessling’s protected
activities when that action was taken. Thus, she cannot prove that his involvement
was motivated by her protected activity. Kessling’s First Amendment retaliation
claim against Dr. Larsen fails as a matter of law.
OSU’s motion for summary judgment is GRANTED as to Dr. Larsen.
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3. Fourteenth Amendment Claim
Dr. Kessling alleges that the individual Defendants violated her right to
equal protection. (Resp., PAGEID # 5960.) The elements for establishing an equal
protection claim under § 1983 and the elements for establishing a discrimination
claim under Title VII are the same. See Deleon v. Kalamazoo Cty. Rd. Comm’n, 739
F.3d 914, 917–18 (6th Cir. 2014). Because Dr. Kessling has failed to establish a
prima facie case of discrimination under Title VII, the claim also fails under the
Fourteenth Amendment.
Defendants’ Motion for Summary Judgment is GRANTED on Dr. Kessling’s
Fourteenth Amendment claim.
IV. Conclusion
For the reasons stated herein, Plaintiff’s Motion to Strike and for Leave to
File a Sur-reply (ECF No. 69) is DENIED. Defendants’ Motion for Summary
Judgment (ECF No. 51) is GRANTED in part and DENIED in part. Remaining for
trial are Dr. Kessling’s retaliation claims under Title VII and Title IX against the
University and her First Amendment retaliation claim against Dr. Lloyd in his
individual capacity.
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE
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