Gaston v. American Association of University Professors

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DIANE GASTON, et al., ) CASE NO. 1:23-cv-00850

)

Plaintiffs, )

) JUDGE BRIDGET MEEHAN BRENNAN

v. )

)

CUYAHOGA COMMUNITY ) MEMORANDUM OPINION AND

COLLEGE CHAPTER, AMERICAN ) ORDER

ASSOCIATION OF UNIVERSITY )

PROFESSORS, et al., )

)

Defendants. )

Plaintiffs Diane Gaston and Linda Lanier sue their union, Defendant Cuyahoga

Community College Chapter, American Association of University Professors (the “AAUP”), and

their union’s president, Defendant Michael Boyko, for race discrimination and retaliation.

Before the Court is Defendants’ motion to dismiss for failure to state a claim. (Doc. No. 20.)

For the following reasons, the Court GRANTS IN PART and DENIES IN PART the motion to

dismiss.

I. Background

A. Factual Allegations

Plaintiffs Diane Gaston and Linda Lanier are tenured faculty members at Cuyahoga

Community College (“Tri-C”). (Doc. No. 19-1 at ¶¶ 11–12.) As Tri-C faculty members,

Plaintiffs are also members of the AAUP. (Id. at ¶ 9.)

On May 21, 2021, a local news station interviewed Plaintiffs about how the Covid-19

pandemic was affecting African American students in college. (Id. at ¶ 18.) In this interview,

Plaintiffs expressed concerns that Tri-C’s decision to offer fewer in-person classes on one of its

campuses disproportionately harmed African American students. (Id. at ¶¶ 19, 21.) Shortly

afterwards, Tri-C’s president publicly criticized Plaintiffs for their remarks during the local news

interview. (Id. at ¶ 22.) Tri-C then initiated disciplinary proceedings against Plaintiffs for those

remarks. (Id.) Ultimately, Tri-C withdrew its disciplinary actions against Plaintiffs, removed the

disciplinary records from Plaintiffs’ personnel files, and awarded Plaintiffs back pay for brief

suspensions that occurred during the proceedings. (Id. at ¶ 26.)

However, according to Plaintiffs, the AAUP failed to support Plaintiffs throughout the

disciplinary process. As AAUP members, Plaintiffs expected the AAUP to represent them in the

disciplinary proceedings. (Id. at ¶ 23.) The AAUP allegedly failed to do so, declining to defend

Plaintiffs against Tri-C’s allegations, failing to provide legal counsel or fact-finding support, and

obstructing Plaintiffs’ ability to obtain a personal attorney by requiring Plaintiffs to sign a waiver

absolving the AAUP of any liability before allowing Plaintiffs to use their personal attorney’s

services. (Id. at ¶¶ 24–25.)

In response, Plaintiffs filed charges with the Equal Employment Opportunity

Commission (“EEOC”) alleging discrimination. (Id. at ¶ 31.) Plaintiff Lanier alleges that after

she filed her EEOC charge, Defendants AAUP and Boyko retaliated against her by denying her

request to continue her flexible work schedule so that she could care for a family member. (Id. at

¶¶ 56, 66.)

B. Procedural History

Plaintiffs initially filed suit as pro se litigants, raising a battery of various claims against

the AAUP and several individual AAUP officers. (Doc. No. 1.) The Court granted Defendants’

motion to dismiss the original complaint but allowed Plaintiffs to move for leave to amend most

of their claims. (Doc. No. 17.) Plaintiffs subsequently obtained legal counsel, who filed a

motion for leave to amend. (Doc. No. 19.) Plaintiffs’ legal counsel also attached a proposed

amended complaint, which streamlined the case by raising only discrimination and retaliation

claims and by limiting the Defendants to the AAUP and Michael Boyko. (Doc. No. 19-1.) The

Court granted leave to amend. (Feb. 15, 2024 Non-Doc. Order.) Defendants then filed the

motion to dismiss that is the subject of this Order. (Doc. No. 20.)

II. Legal Standard

A plaintiff must plead “a short and plain statement of the claim showing that [she] is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requires the plaintiff to allege facts making out a

plausible legal claim to survive a motion to dismiss for failure to state a claim. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). That

is, the complaint must make factual allegations sufficient for a court “to draw the reasonable

inference that the defendant is liable.” Id. The plaintiff need not show a probability of success,

but she must show “more than a sheer possibility that a defendant has acted unlawfully.” Id.

Courts deciding motions to dismiss for failure to state a claim “draw on [their] judicial

experience and common sense.” Id. at 679. In doing so, courts must construe the complaint in

the light most favorable to plaintiff, accept all the complaint’s factual allegations as true, and

draw reasonable inferences in plaintiff’s favor. Cates v. Crystal Clear Techs., LLC, 874 F.3d

530, 534 (6th Cir. 2017) (quoting Bickerstaff v. Lucarelli, 830 F.3d 388, 396 (6th Cir. 2016)).

But courts do not accept legal conclusions or other conclusory allegations as true. D’Ambrosio

v. Marino, 747 F.3d 378, 383 (6th Cir. 2014) (quoting Terry v. Tyson Farms, Inc., 604 F.3d 272,

275–76 (6th Cir. 2010)). Nor do courts make unwarranted factual inferences. Kottmyer v. Maas,

436 F.3d 684, 688 (6th Cir. 2006).

III. Analysis

A. Discrimination Claims

Plaintiffs raise race discrimination claims against the AAUP under both Title VII and

Ohio law. (Doc. No. 19-1 at ¶¶ 32–48.) “Because federal case law governing Title VII actions

is generally applicable to discrimination claims under Ohio law,” the Court analyzes both

discrimination claims together. Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 561 (6th

Cir. 2004) (citing Little Forest Med. Ctr. v. Ohio C.R. Comm’n, 575 N.E.2d 1164 (Ohio 1991)).

Plaintiffs allege that the AAUP discriminated against them because the AAUP failed to

represent them in disciplinary proceedings regarding Plaintiffs’ statements about the impact of

Tri-C’s pandemic-era policies on African American students. (Doc. No. 19-1 at ¶¶ 36–37, 46.)

Plaintiffs claim that the AAUP acted differently when Tri-C initiated disciplinary action against

a White faculty member who made racially insensitive remarks by fully representing that White

faculty member. (Id. at ¶¶ 39–40.) According to Plaintiffs, the reason the AAUP represented the

White faculty member but did not represent Plaintiffs, who are Black, is due to Plaintiffs’ race.

(Id. at ¶¶ 41, 46.)

As the Court previously held, plaintiffs can bring discrimination claims against unions for

breaching their duty of fair representation on account of a plaintiff’s race. (Doc. No. 17 at 11

(quoting Robinson v. Cleveland State Univ., No. 1:19-cv-1357, 2019 WL 5788595, at *2 (N.D.

Ohio Nov. 6, 2019).) To move past the pleading stage on such discrimination claims, plaintiffs

need not plead a prima facie case under McDonnell Douglas. Keys v. Humana, Inc., 684 F.3d

605, 609 (6th Cir. 2012). Rather, plaintiffs only need to offer “sufficient ‘factual content’ from

which a court, informed by its ‘judicial experience and common sense,’ could ‘draw the

reasonable inference’” that the AAUP discriminated based on race. Id. at 610 (quoting Iqbal,

556 U.S. at 678–79).

The AAUP contends that Plaintiffs’ allegations are too conclusory to clear that bar.

(Doc. No. 20-1 at 3–4.) That is not so. Plaintiffs identified a specific individual comparator—a

White professor who Plaintiffs allege was treated more favorably by the AAUP. (Doc. No. 19-1

at ¶ 39.) Plaintiffs identified that professor’s specific actions—making racially insensitive

remarks—and alleged that Tri-C instituted disciplinary action against that professor for those

remarks. (Id. at ¶ 40.) And Plaintiffs say that the AAUP represented that White professor while

the AAUP failed to represent Plaintiffs, who are Black. (Id.) These allegations are sufficient,

when drawing all inferences in Plaintiffs’ favor, for the Court to infer that the AAUP’s actions

were due to race. Indeed, courts in this district have found similar allegations to be sufficient to

survive the pleading stage. See Katib v. USF Holland LLC, 640 F. Supp. 3d 788, 794 (N.D. Ohio

2022) (allegations that a defendant did not require specific non-Arab and non-Middle Eastern

employees to drive unclean trucks while the defendant fired the Arab and Middle Eastern

plaintiff for refusing to drive an unclean truck were sufficient to state a claim).

Therefore, the Court DENIES the motion to dismiss Plaintiffs’ discrimination claims.

B. Retaliation Claims

Plaintiff Lanier raises a Title VII retaliation claim against Defendant AAUP and an Ohio

retaliation claim against both Defendants AAUP and Boyko. (Doc. No. 19-1 at ¶¶ 49–70.) Like

the discrimination claims discussed above, Lanier’s Title VII and Ohio retaliation claims are

subject to the same analysis. Baker v. Buschman Co., 713 N.E.2d 487, 491 (Ohio Ct. App. 1998)

(“For retaliation claims in Ohio, Federal law provides the applicable analysis for reviewing

retaliation claims.”) (internal quotation marks and citation omitted). The Court analyzes the two

retaliation claims together.

Lanier alleges that Defendants retaliated against her for filing a discrimination charge

with the EEOC. (Doc. No. 19-1 at ¶¶ 53, 56, 65–66.) According to Lanier, before she filed her

EEOC charge, Lanier received a flexible work schedule to tend to family medical concerns. (Id.

at ¶ 54.) After filing the EEOC charge, though, Lanier says that Defendants AAUP and Boyko

retaliated against her by denying her request to continue her flexible work schedule. (Id. at

¶¶ 56, 66.)

Defendants raise multiple arguments against Lanier’s retaliation claims. But the Court

need not address all Defendants’ arguments because Lanier’s retaliation claims fail for a simple

reason: Defendants do not control Lanier’s work schedule—Tri-C does.

Ohio Revised Code § 4117.08(C)(5) reserves the power to schedule employees to public

employers like Tri-C, even if there is a collective bargaining agreement with a public-sector

union like the AAUP, unless the public employer explicitly agrees otherwise. In turn, the

relevant collective bargaining agreement between Tri-C and the AAUP keeps the power to

schedule employees exclusively with Tri-C. (Doc. No. 20-4 at § 5.01(F).)1 Neither Defendant

AAUP nor Boyko has any authority to grant or deny Lanier’s scheduling requests, so neither

could have retaliated against Lanier by denying her request.

Ohio law and the collective bargaining agreement definitively show that Defendants had

no authority to control Lanier’s scheduling. Since Lanier cannot amend her complaint to plead

1 Although the collective bargaining agreement is outside of the pleadings, the Court may

consider it on this motion to dismiss because it is publicly available on the State Employment

Relations Board’s website (https://serb.ohio.gov/static/PDF/Contracts/2022/22-CON-02-

0515.pdf), so the Court may take judicial notice of the agreement under Federal Rule of

Evidence 201. New England Health Care Emps. Pension Fund v. Ernst & Young, LLP, 336 F.3d

495, 501 (6th Cir. 2003).

around the collective bargaining agreement, the Court GRANTS the motion to dismiss as to

Lanier’s retaliation claims and DISMISSES those claims WITH PREJUDICE.

IV. Conclusion

The Court GRANTS IN PART and DENIES IN PART Defendants’ motion to dismiss.

Plaintiffs’ discrimination claims may proceed, but the Court DISMISSES Plaintiff Lanier’s

retaliation clams WITH PREJUDICE.

IT IS SO ORDERED.

Date: July 2, 2024 uf

UNITED STA DISTRICT JUDGE