Ogbonna-McGruder v. Austin Peay State University

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

CHINYERE OGBONNA- )

MCGRUDER, )

)

Plaintiff, ) NO. 3:21-cv-00506

) JUDGE RICHARDSON

v. )

)

AUSTIN PEAY STATE UNIVERSITY )

et al., )

)

Defendants. )

MEMORANDUM OPINION

Pending before the Court is “The Individual Defendants’ Motion to Dismiss” (Doc. No.

57, “Motion”), filed by Defendants Tucker Brown and Marsha Lyle-Gonga (“Individual

Defendants”), who are employees of co-Defendant Austin Peay State University (“APSU”). In the

Motion, the Individual Defendants primarily request pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure the dismissal of all claims asserted against them in Plaintiff’s First Amended

Complaint (Doc. No. 53), the currently operative complaint in this case.1 The Individual

Defendants filed a brief in support of the Motion (Doc. No. 57-1, “Brief in Support”), and Plaintiff

filed a brief in opposition to the motion (Doc. No. 60, “Opposition”), whereafter the Individual

Defendants filed a reply in support of the Motion (Doc. No. 62, “Reply”).

1 Secondarily, the Individual Defendants request “an award against Plaintiff for attorney’s fees and costs

related to these individual capacity claims under Tenn. Code Ann. § 29- 20-113.” (Doc. No. 57-1 at 1).

FACTUAL ALLEGATIONS

In their Brief in Support, the Individual Defendants provide a summary of the factual

allegations from the First Amended Complaint that are relevant to this instant action as a whole.2

Comparing that summary to the First Amended Complaint, the Court is satisfied (and Plaintiff

does not seem to dispute) that the summary is accurate in both in its overall tenor and in its

individual components. Thus, the Court adopts and sets forth that summary below, although the

Court has taken the liberty to tweak the summary in particular ways as noted in the accompanying

footnote,3 primarily to clarify what allegations the Court is (and what the Court is not) accepting

as true for purposes of the instant 12(b)(6) motion to dismiss.4

Plaintiff has been employed by APSU since 2003. (Doc. No. 53, ¶ 29.)

Plaintiff was hired as a college professor, to teach classes in criminal justice and

2 That is not to say that everything set forth in such summary is necessarily indispensable or even relevant

to the resolution of the instant Motion, but the summary nevertheless is worth setting forth nearly in its

entirety.

3 In this summary, where (alleged) facts are recounted without qualification, they are accepted as true for

purposes of the instant motion. Conversely, where the (alleged) facts are qualified in some way (as for

example by “Plaintiff claims”), they are not accepted as true for purposes of the present Motion.

In some places, the Court includes ellipses to omit the Brief in Support’s language that qualifies the

allegations of the First Amended Complaint to suggest that such allegations are not necessarily true, but

rather merely alleged by Plaintiff (in the First Amended Complaint). Where the Court does so, its purpose

is to make clear that it is unqualifiedly accepting the allegations as true for present purposes. In other places,

the Court leaves in the qualifying language used by the Brief in Support, or adds a qualifying term in

brackets, believing such qualification appropriate because, under Iqbal and Twombly, the corresponding

allegations are treated not as true but instead as merely alleged by Plaintiff.

4 For reasons that will be discussed below, the resolution of the instant Motion actually is one that, unlike

the resolution of so many Rule 12(b)(6) motions, turns less on what allegations are accepted as true and

more on what is being alleged (whether it is accepted as true or not) and what is not being alleged. And yet

the Court nevertheless perceives some value in making clear what allegations the Court, applying the

below-discussed so-called Iqbal/Twombly standard, the Court is accepting as true (because they qualify as

alleged factual matter) and what allegations the Court is not accepting as true (because they amount to legal

conclusions or, even to the extent that they could be characterized as “factual” allegations in some sense,

amount solely to mere conclusory allegations rather than allegations of true factual matter).

public management. (Id.) In Spring 2017, APSU faculty were advised by former

Dean Denton that the-then Public Management/Criminal Justice Department would

be split into two departments. (Id. at ¶ 31.) According to Plaintiff, faculty could

request joint appointment, based on chair approval, with the two newly created

departments – Criminal Justice and Public Management/Political Science. (Id. at ¶

32.) Faculty from the original Public Management/Criminal Justice Department

were told that they could self-select which department they wanted to join. (Id. at ¶

33.) The self-selection did not include a review of faculty qualifications. (Id.) Dean

Denton rejected Plaintiff’s request and chair approval for joint appointment and

denied her the opportunity to self-select her department. (Id. at ¶ 34.) Dean Denton

made the selection for Plaintiff. (Id. at ¶ 36.) Plaintiff claims that, as an African

American, she was denied the opportunity to self-select her department. (Id. at ¶

35.)

Plaintiff filed a formal complaint with APSU’s Office of Equal Opportunity

and Affirmative Action in 2017, alleging that Dean Denton engaged in race

discrimination. (Id. at ¶¶ 37, 40.) APSU responded to the complaint in Summer

2019. (Id. at ¶ 37.) Plaintiff claims that the individual actions of Brown from

Summer 2019 through the present, and the individual actions of Lyle-Gonga from

2020, “began to perpetuate a hostile work environment resulting in retaliatory

treatment of Plaintiff.” (Id. at ¶ 43.) Brown was Dean of the College of Behavioral

and Health Sciences at APSU from 2019 through December 2021. (Id. at ¶ 4.) Lyle-

Gonga, beginning January 1, 2020, was at all times relevant to the Complaint, Chair

of the Department of Political Science and Public Management. (Id. at ¶ 5.)

In September 2019, Plaintiff filed a charge of discrimination with the U.S.

Equal Employment Opportunity Commission (“EEOC”) (See EEOC Charge No.:

494-2019-02950, Doc. No. 53-1) (Id. at ¶ 41.) Plaintiff’s September 2019 EEOC

Charge was closed to allow the parties to negotiate but reopened after the parties

failed to reach an agreement. (Id. at ¶ 42.) On September 29, 2020, Plaintiff filed

another charge of discrimination with the EEOC, which was assigned the same

EEOC Charge number as the September 2019 Charge. (Id. at ¶ 9.) Plaintiff claimed

that she was discriminated against based on her race and sex in violation of Title

VII of the Civil Rights Act of 1964. (See EEOC Charge No.: 494-2019-02950, Doc.

No. 53-1.) Plaintiff filed a second charge of discrimination with the EEOC on or

about June 17, 2021, alleging retaliation2. (See EEOC Charge No.: 494-2021-

01993, Doc. No. 53-2.)

As can be gleaned from the Complaint, Plaintiff’s claims of race

discrimination and the subsequent alleged retaliation and hostile work environment

she suffered arise from the 2017 split in departments. (See generally, Doc. No. 53,

¶¶ 19, 31, 35-44.) Specifically, Plaintiff alleges:

Defendants’ discriminatory practices include, but are not

limited to: (1) creating or permitting a hostile work environment

heavily charged with discrimination; (2) maintaining wages, job

assignments and other conditions of employment that unlawfully

operate to deny equal opportunity to Plaintiff because of her race;

(3) creating a hostile, racially charged work environment such that

no reasonable person would be expected to endure, and (4)

retaliating against Plaintiff for opposing discriminatory conduct.

(Id. at ¶ 28.) As to Plaintiff’s race discrimination claims, she states, “as a tenured

African American was denied the opportunity to self-select her department of out

the two newly created departments[.]” (Id. at ¶ 35.) She also claims that “in Spring

2020, [she] was scheduled to teach a particular class in the [F]all 2020 but a white

adjunct professor replaced her. (Id. at ¶ 71.) The Complaint further states that in

October 2019, “Brown yelled at plaintiff in front of a white faculty member (id. at

¶ 89) and “[s]aid harassment and inappropriate verbal scolding in the presence of a

white faculty member was offensive and caused Plaintiff great shame and

embarrassment[.]” (Id. at ¶ 90.)

With respect to Plaintiff’s hostile work environment allegations, she

generally claims that APSU “failed to exercise reasonable care to prevent and

correct promptly any harassing, and/or offending behavior. The frequency of the

discriminatory conduct, its severity, and pervasiveness are threatening and

humiliating to Plaintiff and unreasonably interfered with Plaintiff’s work

performance. These actions adversely affected her emotional and/or psychological

well-being. Such facts constitute a ‘hostile and/or abusive’ work environment.” (Id.

at ¶¶ 111-12.) Plaintiff further claims that since she is “an experienced and tenured

African American professor, Defendants must find ‘cause’ to terminate her

employment.” (Id. at ¶ 24.) And in the absence of allegedly being able to find

“cause”, [allegedly] “Defendants have intentionally created a hostile work

environment in hopes it would cause her to resign[.]” (Id. at ¶¶ 25, 27, 62, 66, 74,

77, 90, 93, 104.)

Specifically, the actions by Dean Brown and/or Department Chair Lyle-

Gonga which allegedly perpetuated a hostile work environment include requesting

that she move her office (Id. at ¶¶ 45-46), exclusion from a grant proposal (Id. at ¶¶

47-53), refusing to confer with Plaintiff about the creation of a master’s program

(Id. at ¶¶ 58-60, 99), refusal to act on Plaintiff’s appeal based on the lack of a faculty

appraisal (Id. at ¶¶ 61-63), denigrating Plaintiff’s teaching and research done with

minority students (Id. at ¶¶ 64-68), failure to timely receive clarification about a

replacement class she would be teaching (Id. at ¶¶ 71-77), denied the ability to teach

summer classes (Id. at ¶ 88), harassment and verbal scolding in the presence of a

white faculty member (Id. at ¶¶ 89-90), failure to recognize Plaintiff’s

accomplishments in the conduct of her annual evaluations, and evaluations and

appeals generally (Id. at ¶¶ 55, 78-80, 91-95), not assigning courses Plaintiff

selected to teach (Id. at ¶¶ 81-87, 96-98), and criticism of her speech accent and

thereby her natural origin (Id. at ¶ 109).

Lastly, Plaintiff claims that, since the filing of her complaint with APSU in

2017, she has experienced retaliation by Defendants. (Id. at ¶ 23.) Plaintiff then

states that by and through the actions of the Department Chair and Dean, APSU has

engaged in retaliatory treatment of Plaintiff from Summer of 20193 through the

present. (Id. at ¶ 43.) Such [allegedly] retaliatory conduct . . . includes the

following:

• In September 2019, Plaintiff was instructed by Brown to move from her office to

a basement office as a form of retaliation after reporting and opposing previous

racially charged discriminatory conduct. This was the second attempt in 2019 to

transfer her to a basement office. (Id. at ¶¶ 45-46) (emphasis added) (hereinafter

“the request to change offices”.)

• In October 2019, Plaintiff requested that she be included in a grant proposal for a

new juvenile detention center in Tennessee. Plaintiff claims she was purposefully

excluded from participation as evidenced in the final brochure. (Id. at ¶¶ 47-54)

(hereinafter “the grant proposal”.)

• In March 2020, Plaintiff did not receive an annual evaluation per university policy

for her performance in the 2019-2020 academic year under the pretext of Plaintiff

not submitting all of the necessary documents. (Id. at ¶¶ 55-57) (hereinafter “the

2019-2020 evaluation”.)

• In January 2020, the professors within the political science and public

management department voted unanimously for Plaintiff to move into phase two of

the creation of the master’s program. Plaintiff had previously submitted the initial

phase one request on “curriculog” and it was approved. Brown and Department

Chair [Lyle-] Gonga have deliberately refused to confer with Plaintiff about this

matter. (Id. at ¶¶ 58-60) (hereinafter “the master’s program”.)

• In February 2022, Plaintiff was not assigned the courses that she requested to

teach. Plaintiff was advised that she was not qualified to teach classes she had

previously taught for some 18 years. (Id. at ¶¶ 96-98) (hereinafter “course

choices”.)

(Doc. No. 57-1 at 2-6).

Based on these allegations, Plaintiff (without clearly breaking out her claims into separate

counts) asserts that Defendant Austin Peay has violated particular provisions of Title VII of the

Civil Rights Act of 1964 as amended. (Doc. No. 53 at ¶ 26). She also asserts that the Individual

Defendants have violated 42 U.S.C. § 1983,5 and are liable to Plaintiff for damages as result,6 in

that they allegedly “have unlawfully retaliated against Plaintiff via a hostile work environment

based on race in hopes this tenured African American professor would resign.” (Id. at ¶ 27). See

also id. at ¶¶ 107, 113. Plaintiff does not assert that the Individual Plaintiffs are liable to her under

Title VII. 7

LEGAL STANDARDS

The instant Motion is brought under Rule 12(b)(6), and this is appropriate because the

motion asserts that Plaintiff has failed to state a claim against the Individual Defendants upon

which relief can be granted. The Court thus will state below the legal principles generally

applicable to a Rule 12(b)(6), before noting (in the following section hereof) that many of these

principles are not implicated with respect to the first of the below-stated two issues the Court must

decide.

5 “To establish liability under 42 U.S.C. § 1983, a plaintiff must demonstrate: (1) that he was deprived of a

right secured by the Constitution or laws of the United States, and (2) that he was subjected or caused to be

subjected to this deprivation by a person acting under color of state law.” Gregory v Shelby County Tenn.,

220 F.3d 433, 442 (6th Cir. 2000). If a plaintiff can demonstrate these things, generally the liability thus

established would extend at least to any defendant who is such a “person.” Plaintiff here contends that each

of the Individual Defendants is such a person.

6 In her prayer for relief, Plaintiff seeks, among other things, damages against the Individual Defendants

for emotional distress, loss of enjoyment of life, embarrassment, and humiliation, as well as punitive

damages against the Individual Defendants. (Doc. No. 53 at 16).

7 Any such assertion would have failed in any event. Alexander v. Univ. of Memphis, No. 20-5426, 2021

WL 2579973, at *3 (6th Cir. June 7, 2021) (“The district court correctly dismissed Alexander's race-

discrimination and retaliation claims against Rudd for failure to state a claim upon which relief can be

granted, see Fed. R. Civ. P. 12(b)(6), because ‘an individual cannot be held personally liable for violations

of Title VII.’” (quoting Griffin v. Finkbeiner, 689 F.3d 584, 600 (6th Cir. 2012))). Indeed, Plaintiff correct

acknowledges that this is the law. (Doc. No. 60 at 8 (“Title VII contains no provision for actions against

individual actors and therefore employee victims no provision to sue those tortfeasors.”)).

For purposes of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must take all

of the factual allegations in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face. Id. A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. Id. Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice. Id. When there are well-

pleaded factual allegations, a court should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief. Id. at 679. A legal conclusion, including one couched

as a factual allegation, need not be accepted as true on a motion to dismiss, nor are mere recitations

of the elements of a cause of action sufficient. Id.; Fritz v. Charter Twp. of Comstock, 592 F.3d

718, 722 (6th Cir. 2010), cited in Abriq v. Hall, 295 F. Supp. 3d 874, 877 (M.D. Tenn. 2018).

Moreover, factual allegations that are merely consistent with the defendant’s liability do not satisfy

the claimant’s burden, as mere consistency does not establish plausibility of entitlement to relief

even if it supports the possibility of relief. Iqbal, 556 U.S. at 678.

In determining whether a complaint is sufficient under the standards of Iqbal and its

predecessor and complementary case, Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), it may be

appropriate to “begin [the] analysis by identifying the allegations in the complaint that are not

entitled to the assumption of truth.” Iqbal, 556 U.S. at 680. This can be crucial, as no such

allegations count toward the plaintiff’s goal of reaching plausibility of relief. To reiterate, such

allegations include “bare assertions,” formulaic recitation of the elements, and “conclusory” or

“bold” allegations. Id. at 681. The question is whether the remaining allegations—factual

allegations, i.e., allegations of factual matter—plausibly suggest an entitlement to relief. Id. If not,

the pleading fails to meet the standard of Federal Rule of Civil Procedure 8 and thus must be

dismissed pursuant to Rule 12(b)(6). Id. at 683.

On a Rule 12(b)(6) motion to dismiss, “[t]he moving party has the burden of proving that

no claim exists.” Total Benefits Plan. Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552 F.3d

430, 433 (6th Cir.2008). That is not to say that the movant has some evidentiary burden; as should

be clear from the discussion above, evidence (as opposed to allegations as construed in light of

any allowable matters outside the pleadings) is not involved on a Rule 12(b)(6) motion. The

movant’s burden, rather, is a burden of explanation; since the movant is the one seeking dismissal,

it is the one that bears the burden of explaining—with whatever degree of thoroughness is required

under the circumstances—why dismissal is appropriate for failure to state a claim.

THE INDIVIDUAL DEFENDANTS’ PRIMARY ARGUMENT

The Individual Defendants primarily seek to meet their burden by explaining that the very

nature of the claim asserted against them is such that the claim is not one upon which relief can be

granted. In other words, the Individual Defendants argue primarily that the claim Plaintiff asserts

against them is one that as a matter of law cannot validly be asserted against them.

More specifically, the Individual Defendants first assert that “an employee may sue a

public employer under both Title VII and § 1983 only when the § 1983 violation rests on a claim

of infringement of rights guaranteed by the Constitution.” (Doc. No. 57-1 at 8). To support this

assertion, they cite Grano v. Dep’t of Dev., City of Columbus, 637 F.2d 1073 (6th Cir. 1980), and

Day v. Wayne Cty. Bd. of Auditors, 749 F.2d 1199, 1204 (6th Cir. 1984) (“It would be anomalous

to hold that when the only unlawful employment practice consists of the violation of a right created

by Title VII, the plaintiff can by-pass all of the administrative processes of Title VII and go directly

into court under § 1983.”).

They next assert, relatedly, that “Title VII provides the exclusive remedy when a Section

1983 cause of action is based on violations of Title VII.” (Doc. No. 57-1, at 7) (emphasis added).8

Not surprisingly, the Individual Defendants then assert that Plaintiff’s claims against them are

based only on violations of Title VII. They argue that “[t]he Complaint does not once suggest, let

alone allege a violation of a right protected by the Constitution [but rather] “[a]t best . . . paints a

picture of the alleged discrimination [Plaintiff] suffered, in violation of Title VII.” (Doc. No. 57-1

at 8). Ergo, the Individual Defendants argue, Plaintiffs claims are cognizable only under Title VII,

meaning that Plaintiff has not stated a valid claim against them under Section 1983. (Id. at 9).

PLAINTIFF’S RESPONSE

In response, Plaintiff cites Grano v. Department of Development City of Columbus, 637

F.2d 1073 (6th Cir. 1980). There the Sixth Circuit noted that “[a] plaintiff who alleges disparate

treatment by a state employer is bringing essentially the same claim under Title VII as under

§1983. If there is liability under Title VII, there should be liability under § 1983.” Id. at 1082.

Plaintiff next attacks the Individual Defendants’ reliance on Delaney (Potter), on the

grounds that it cites a case Ethnic Employees of Library of Congress v. Boorstin [“EELC”], 751

F.2d 1415 (D.C. Cir. 1985), which (according to Plaintiff) actually helps Plaintiff. In particular,

Plaintiff notes that EELC stated that “[n]othing in that history even remotely suggests that

8 The undersigned is chagrined that the Individual Defendants state that “‘Title VII is the preemptive and

exclusive remedy for federal employment discrimination falling under Title VII.’” (Id. at 8 (quoting

Delaney v. Potter, No. 3:06-0065, 2006 WL 2469380, *4 (M.D. Tenn. Aug. 24, 2006) (citing Brown v.

Gen. Serv. Admin., 425 U.S. 820 (1976))) (emphasis added). In making this statement, the Individual

Defendants unmistakably suggest that the statement has application to the present case. But it absolutely

does not. The reference there to “federal employment discrimination” is a reference to discrimination in

federal employment (which is precisely what was at issue in both Delaney and Brown), not to discrimination

in violation of federal law. This is readily apparent from these cases. Counsel is cautioned about making

case citations that carry an incorrect implication that they are applicable to the case at hand. The Court

expresses these concerns even though it realizes that Delaney claimed that the rationale of Brown had been

applied to—in addition to various cases involving discrimination in federal employment—one case that did

not involve discrimination in federal employment (Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S.

366, 378 (1979)). See Delaney, 2006 WL 2469380, *4.

Congress intended to prevent federal employees from suing their employers for constitutional

violations against which Title VII provides no protection at all.” EELC at 1415. Plaintiff implies

that under EELC, she should be able to sue the Individual Defendants under Section 1983 for

constitutional violations because “Title VII contains no provision for actions against individual

actors and therefore employee victims no provision to sue those tortfeasors.” (Doc. No. 60 at 8).

Accord, id. at 9 (“[S]ince Title VII provides no remedy to the victim for relief from the

discriminatory actions of individuals that have subjected her to conditions, that have altered the

terms, conditions, and privileges of her employment, ‘Congress did not intend for Title VII to

displace claims she may have against individual defendants.’” (quoting EELC, 751 F.2d at 1415)).9

Plaintiff next attacks the Individual Defendants’ reliance on Day. She notes that Day states,

inter alia, that “‘[w]here an employee establishes employer conduct which violates both Title VII

and rights derived from another source—the Constitution or a federal statute—which existed at

the time of the enactment of Title VII, the claim based on the other source is independent of

the Title VII claim, and the plaintiff may seek the remedies provided by § 1983 in addition to those

created by Title VII.’” (Id. at 8-9 (quoting Day, 749 F.2d at 1205)).10

Plaintiff next cites Vega v. Hempstead Union Free School District, 801 F.3d 72, 75 (2d Cir.

2015), in further support of her above-referenced assertion to the effect that “a complaint that

alleged discrimination is actionable under § 1983” against individual defendants. (Id. at 9-10

(quoting Vega, 801 F.2d at 75)). Plaintiff then recites at length allegations of the complaint

indicating that the Individual Defendants “perpetrated a hostile work environment, then used it to

9 The Court is compelled to opine that counsel for Plaintiffs need to do a better job in terms of formatting

case citations.

10 Relatedly, the Court is compelled to note that here, Plaintiff strangely makes a sort of citation to Grano

that suggests incorrectly that the quotation here is to Grano rather than Day.

retaliate against Plaintiff [, which] makes them liable to Plaintiff. (Id. at 10-12). She concludes that

such allegations are sufficient to plausibly suggest a right to relief under Section 1983.

ANALYSIS

The instant question is whether Plaintiff’s Section 1983 claims against the Individual

Defendants are barred on the grounds that the claims are based on violations of Title VII. This

question can be subdivided into two questions: (a) is a Section 1983 claim against an individual

defendant necessarily barred11 on the grounds that it alleges discrimination based on violations of

Title VII?; and if so (b) does that mean Plaintiff’s Section 1983 claims against the Individual

Defendants are barred? The Court takes up each of these questions in turn.

Relying on out-of-circuit cases mentioned above, Plaintiff essentially asserts that the

answer to the first question is no. That is, she cites EELC and Vega for the proposition that a

Section 1983 claim is never precluded based on the possibility of relief under Title VII—precisely

because there is no right to relief against individual defendants under Title VII. The Court does

not begrudge Plaintiff for such reliance, but ultimately it gets her nowhere because binding Sixth

Circuit authority precludes her assertion. “[W]e have held that plaintiffs cannot use § 1983 to

enforce purely statutory claims under Title VII . . . .” Bullington v. Bedford Cty., Tennessee, 905

F.3d 467, 471 (6th Cir. 2018) (quoting Day, 749 F.2d at 1204 (“Though the issue is not without

doubt, we believe Title VII provides the exclusive remedy when the only § 1983 cause of action

is based on a violation of Title VII.”)).12 It is clear that Bullington serves as a clear endorsement

11 The Individual Defendants use the term “preempted.” The Court, not convinced that a Title VII-based

bar to Section 1983 claims is due to what technically fits the definition of “preemption,” uses the more

general term “barred.”

12 Plaintiff’s reliance on Grano is to no avail. In relevant part, Grano stated as follows:

of the continuing and uncontroversial viability of Day, especially given Bullington’s quotation of

the Third Circuit’s relatively recent observation that “every circuit to consider this exact question

has held that, while a plaintiff may use § 1983 as a vehicle for vindicating rights independently

conferred by the Constitution, Title VII and ADA statutory rights cannot be vindicated through

§ 1983.” Id. (quoting Williams v. Pa. Human Relations Comm’n, 870 F.3d 294, 300 (3d Cir. 2017)

(internal quotation marks omitted)).13

Surprisingly, the Individual Defendants do not cite Day on this point, and they do not cite

Bullington at all. But having found this authority on its own, the Court is constrained to find that

it is the law of the Sixth Circuit and thus to follow it as binding precedent. This means that if

Plaintiff is attempting to (as Bullington puts it) “use § 1983 to enforce purely statutory claims

The problem is that the district court made contradictory findings. It found that the

defendants violated Title VII, but then found that the defendants had not intentionally

discriminated against the plaintiff. A plaintiff who alleges disparate treatment by a state

employer is bringing essentially the same claim under Title VII as under s 1983. If there is

liability under Title VII, there should be liability under s 1983. Similarly, if there was no

discriminatory intent, there cannot be liability under either Title VII, on a disparate

treatment theory, or s 1983.

Grano, 637 F.2d 1073 1081–82. But there is no indication in Grano that either the district court or the Sixth

Circuit even considered the possibility that at least in some circumstances, a Section 1983 claim could not

proceed together with a claim under Title VII. Instead, the two courts apparently assumed that the two kinds

of claims could proceed together; perhaps this was because the plaintiff in Grano (unlike Plaintiff in the

present case) apparently alleged violations not only of Title VII but also of the Fourteenth Amendment—a

circumstance that, as discussed below, can make all the difference in whether both kinds of claims are

cognizable in a particular case. In Grano, the Sixth Circuit (operating under this assumption) merely noted

that if there was liability under Title VII, then there should be liability under Section 1983. Day, decided

after Grano, addressed the issue that Grano did not: whether a plaintiff can use § 1983 to enforce purely

statutory claims under Title VII. So the Court here follows the on-point, and more recent, pronouncements

from Day and Bullington rather than Grano.

13 The fact that the Individual Defendants cannot be held liable under Title VII does not change this reality.

Bullington was decided in the context of claims against individual defendants who likewise could not be

held liable under Title VII; Day was not, but it does not suggest that the difference in context would mandate

a different rule. Moreover, the statement from Williams prominently quoted in Bullington was made

specifically in the context of claims against individual defendants. See Williams, 870 F.3d at 297.

under Title VII”—or (as Day puts it) assert a “§ 1983 cause of action [that] is based on a violation

of Title VII”—the attempt fails.

The question, then, becomes whether this is actually what Plaintiff is attempting to do.

Detrimental though it was to Plaintiff on the first issue, Bullington throws Plaintiff a lifeline on

the second issue. As background, the Court notes that in Bullington, the plaintiff brought claims

under the Americans with Disabilities Act (“ADA”), rather than claims under Title VII. The

plaintiff also brought claims under Section 1983, which the defendants claimed (via a motion to

dismiss) were barred because they were based on violations of the ADA. After noting (as the Court

has discussed above) that Day holds that Title VII provides the exclusive remedy when the only

§ 1983 cause of action is based on a violation of Title VII, and that other circuits likewise have

held that ADA rights cannot be vindicated through Section 1983, the court in Bullington turned to

the latter issue, i.e., whether “plaintiffs can use § 1983 to enforce the ADA,” an issue the Sixth

Circuit had “not previously decided.” Id. at 471. The court found that it could avoid that issue

altogether because plaintiff actually was not seeking to use Section 1983 to enforce the ADA;

rather, she was seeking to use Section 1983 to enforce constitutional rights:

Nevertheless, we do not need to reach a conclusion on this issue because

Bullington's § 1983 claims allege constitutional violations, not violations of the

ADA itself. Bullington pleaded “that Defendant Cooper violated her federal

constitutional rights secured by the 14th amendment to be free from discrimination

and retaliation as a result of her illness/disability.” R. 28 (Second Am. Compl. ¶

14) (Page ID #90) (emphasis added). She has also alleged “that Bedford County is

liable for the violation of [Bullington's] federal constitutional rights pursuant to 42

U.S.C. § 1983 in failing to provide proper supervision and training to prevent this

type of unlawful, discriminatory abuse.” Id. ¶ 15 (Page ID *472 #90) (emphasis

added). Thus, Bullington's § 1983 disability discrimination claims are being

brought pursuant to the Fourteenth Amendment's Equal Protection Clause, not the

ADA. Therefore, the real issue is whether Bullington can pursue her separate but

parallel Fourteenth Amendment claims for disability discrimination.

Several circuits, including our own, have allowed constitutional claims to

be brought under § 1983, even where the plaintiff's constitutional claims run

parallel to claims brought under analogous statutes.

Id. at 471-72 (brackets in original). The Court went on to hold in essence that constitutional claims

could be brought under Section 1983 irrespective of whether they ran parallel to a claim brought

under the ADA. Id. at 472-476. In short, Bullington indicates that a plaintiff properly may bring a

Section 1983 claim in addition to an ADA claim, even if both claims are based on the same

underlying allegations of discrimination, provided that the plaintiff alleges a violation of federal

constitutional rights that is separate from the alleged violations of the plaintiff’s statutory rights

under the ADA. What’s more, Bullington indicates that a plaintiff in this situation does not have

to do very much to adequately allege a violation of her federal constitutional rights; it suffices

merely to incant something to the effect that the defendants have violated her “federal

constitutional rights secured by the 14th amendment to be free from discrimination and retaliation

as a result of her [protected class].”14

This is not a high bar to clear for a plaintiff seeking to bring claims against state actors

under both Section 1983 and the ADA. And the Court has little trouble concluding that this low

bar likewise exists in the case of federal anti-discrimination laws other than the ADA, including

Title VII.

14 As discussed further below, Section 1983 allows for claims based on a violation of federal law—as

distinguished from a violation of the (federal) Constitution. So a Section 1983 claim could be brought,

together with a Title VII claim, based on an alleged violation of a federal law other than Title VII, even

absent any alleged violation of the Constitution. See, e.g., Day, 749 F.2d at 1205 ( “Where an employee

establishes employer conduct which violates both Title VII and rights derived from another source—the

Constitution or a federal statute—which existed at the time of the enactment of Title VII, the claim based

on the other source is independent of the Title VII claim, and the plaintiff may seek the remedies provided

by § 1983 in addition to those created by Title VII.” (emphasis added)). But as noted below, here Plaintiff

does not base her Section 1983 claim on an alleged violation of federal law other than Title VII, just as she

does not bring her Section 1983 claim based on an alleged violation of the Constitution.

And yet, low though the bar may be, Plaintiff here nevertheless fails to clear it. In the First

Amended Complaint (and, for that matter, the original complaint), Plaintiff makes absolutely no

reference to any constitutional violation, or for that matter any violation of federal law other than

Title VII. Instead, Plaintiff essentially notes (by quoting Section 1983 in full) that a Section 1983

claim can be premised upon a violations of federal laws and not just the Constitution, and then

alleges only a violation of federal laws:

42 U.S.C. § 1983 provides that “Every person who, under color of any

statute, ordinance, regulation, custom, or usage, of any State or Territory of the

District of Columbia, subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to

the party injured in an action at law suit in equity, or other proper proceeding for

redress.” Plaintiff asserts that Defendants Brown and Gonga as illustrated in the

foregoing have engaged in conspiratorial behavior that has caused her to be

deprived of rights to which she is entitled under laws of the United States, including

but not limited to retaliation for having reported the violations of her rights.

(Doc. No. 53 at ¶ 107). The only “laws” to which Plaintiff refers in the entire First Amended

Complaint is Title VII. Section 1983 refers to the Constitution as something separate from federal

“laws,” but even if the Constitution could potentially be considered part of the “laws” that Plaintiff

refers to here, the First Amended Complaint—outside of the quotation of Section 1983 in

paragraph 107 noted above—does not refer at all to the Constitution, let alone to any particular

provision of it (such as the Fourteenth Amendment). Thus, Plaintiff has not made even the minimal

allegations that would have been sufficient for her to state a claim under Section 1983 that is

cognizable separately from a claim under Title VII. In short, the Amended Complaint alleges

discrimination in violation of Title VII, and only Title VII—and not any other provision of federal

law or of the Constitution. And Plaintiff “cannot use § 1983 to enforce purely statutory claims

under Title VII . . . .” Bullington v. Bedford Cty., Tennessee, 905 F.3d 467, 471 (6th Cir. 2018)

(quoting Day, 749 F.2d at 1204). Thus, her Section 1983 claims against the Individual Defendants

is barred.!°

CONCLUSION

Plaintiff's only claims against the Individual Defendants—Section 1983 claims—are

barred because they are based solely on violations of Title VII. Accordingly, those claims must be

dismissed, with prejudice.

An appropriate order will be entered.

Che Ruchardoor

UNITED STATES DISTRICT JUDGE

'S Given the Court’s disposition herein, the Court need not address whether the claims against the Individual

defendants should be dismissed based on limitations or qualified immunity.