# Gaston v. American Association of University Professors

> District Court, N.D. Ohio · July 2, 2024

URL: https://www.frixlaw.com/law-library/cases/10664338

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** July 2, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10664338. Public record. Not legal advice.