# Ogbonna-McGruder v. Austin Peay State University

> District Court, M.D. Tennessee · March 8, 2023

URL: https://www.frixlaw.com/law-library/cases/10438499

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** March 8, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10438499. Public record. Not legal advice.