Eppinger v. University of Tennessee

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

CATHY EPPINGER, )

)

Plaintiff, )

)

v. ) 1:21-CV-268-KAC-CHS

)

UNIVERSITY OF TENNESSEE, )

AT CHATTANOOGA, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

This action is before the Court on Defendant University of Tennessee at Chattanooga’s

“Motion for Summary Judgment” [Doc. 106] and Plaintiff Cathy Eppinger’s “Motion for Leave

to File Fourth Amended Complaint” [Doc. 129]. For the below reasons, the Court grants

Defendant’s Motion and denies Plaintiff’s Motion.

I. Background1

Defendant hired Plaintiff Cathy Eppinger, “an African American female” “over the age of

40,” “in 2012 as an Administrative Support Assistant” for its “Department of Occupational

Therapy” [Docs. 106-4 at 2 (Declaration of Laure Pou (“Pou Decl.”) ¶ 8); 61 ¶ 2; 106-6

at 4; 106-7]. Plaintiff holds a “bachelor of Science Degree from Covenant College in

Organizational Management, and Associated Degree of Applied Science in Office

Administration” [Doc. 61 ¶ 26].2

1 Because Plaintiff is the nonmoving Party, the Court describes the facts in the light most favorable

to her. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

2 The Third Amended Complaint is verified [See Doc. 61 at 27]. At summary judgment, a verified

complaint “carries the same weight as would an affidavit.” See, e.g., El Bey v. Roop, 530 F.3d 407,

414 (6th Cir. 2008).

“In 2015,” Defendant’s “Division of Academic Affairs underwent a significant

reorganization” [Doc. 106-4 at 2 (Pou Decl. ¶ 9)]. As a result, Defendant needed to “reassign[]”

“two Administrative Support employees” to vacant positions “in Facilities and Emergency

Services” [Doc. 106-2 at 2 (Declaration of Tom Ellis (“Ellis Decl.”) ¶ 5)]. Plaintiff was one of

the employees reassigned to the Facilities Department [Id.].

“In 2017,” the Facilities Department’s “Construction Services area” requested that

Defendant’s Human Resources Department “post a position called Project Support

Specialist” [Doc. 106-4 at 4 (Pou Decl. ¶ 22)]. The required “qualifications included,” among

other things, “familiarity with the construction industry” such as “knowledge and experience in

electronic archiving of project documents, project management, architectural drawings and

floorplans, and other concepts of value to the Construction Services unit” [Doc. 106-2 at 2-3 (Ellis

Decl. ¶ 7)]. The position also required an “[a]ssociates degree in construction

management” [Doc. 106-5 at 9 (Project Support Specialist Job Description)]. The position further

required “1-3 years of related project management experience” [Id. at 13 (Project Support

Specialist Job Description)]. Plaintiff “was not one of the applicants” for the position [Doc. 106-4

at 4 (Pou Decl. ¶ 23)]. There is a dispute regarding where Defendant posted the

position [See Docs. 61 ¶ 41 (“job was never posted on [Defendant’s] job website”); 106-2 at 2-3

(Ellis Decl. ¶ 7 (“Construction Services unit posted an internal position”))]. But there is no dispute

that Plaintiff did not possess the required experience and qualifications for the position [Doc. 106-

1 at 27 (Deposition of Cathy Eppinger (“Eppinger Dep.”) 103:4-9)].

In 2018, Defendant chose Amanda Winesburgh, a white woman, for the Project Support

Specialist position [Docs. 106-4 at 4 (Pou Decl. ¶ 23); 61 ¶ 41]. Winesburgh had “expertise in

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contract and procurement matters” and her “background included ownership of a construction

company” which made her a “valuable resource” [Doc. 106-2 at 3 (Ellis Decl. ¶ 9)].

“In early 2020,” the Facilities “Department needed a dedicated full-time business manager”

to “handle accounting for UTC’s capital projects as well as department clearing accounts and

billing” [Id. (Ellis Decl. ¶ 10)]. The Business Manager position required, among other things, “2+

years of experience” in “tracking and managing multiple project costs related to construction,

renovations, and technology upgrades using” particular software [Doc. 106-4 at 16 (Business

Manager Job Description)]. The position also required at least “2+ years of fund accounting in a

lead role” [Id.]. Because Winesburgh had the “necessary accounting skills,” Defendant added the

Business Manager responsibilities to Winesburgh’s portfolio and reclassified her to a Business

Manager position [Doc. 106-2 at 3-4 (Ellis Decl. ¶ 11)].

Plaintiff “began sending emails to” Laure Pou, Defendant’s Vice Chancellor for Human

Resources, “demanding to know” why the Business Manager position “was not posted” and how

Winesburgh’s reclassification complied with Defendant’s “EEO guidelines” [Doc. 106-4 at 5 (Pou

Decl. ¶ 31); see also id. at 26]. “In July 2020,” Plaintiff sent an email to Richard Brown,

Defendant’s Vice Chancellor for Finance and Administration, expressing personal misgivings with

Winesburgh [See Doc. 106-4 at 23]. Plaintiff stated that Winesburgh “walks[] and talks the

majority of her day making people think she knows more than God,” and “needs to sit down, shut

that mouth, and work for all that money the state is paying her” [Id.]. Plaintiff went on to say that

Plaintiff “show[s] love to all, but if [she is] pushed, well ....you know the rest of the story, and you

know I’m not afraid” [Id.]. In December 2020, Defendant “received notice from the Tennessee

Human Rights Commission” that Plaintiff “filed a complaint proposing that” Winesburgh’s

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reclassification “constituted race discrimination” [Doc. 106-4 at 7 (Pou Decl. ¶ 46);

see also Doc. 61 ¶ 39].

Defendant’s “Executive Director of Facilities Planning and Operations,” Anthony

McClellan, an “African American,” “began supervising [Plaintiff] on December 1,

2020” [Docs. 106-3 at 2 (Declaration of Anthony McClellan (“McClellan Decl.”) ¶ 5);

106-6 at 5]. Under McClellan’s supervision, Plaintiff “often engaged in unpredictable and

unprofessional behavior” [Doc. 106-3 at 5 (McClellan Decl. ¶ 17)]. Indeed, Plaintiff had a “hostile

encounter” with Winesburgh in “early 2021” [Id. (McClellan Decl. ¶ 19)].

Defendant’s IT Department “was upgrading the Administrative Services Building” by

implementing a new phone system [Id.]. Winesburgh’s office was the first to receive a new phone

as part of the upgrade [Id.]. Plaintiff “aggressively questioned her about the new phone,”

“create[ing] an uncomfortable environment” [Doc. 106-3 at 13 (Final Written Warning)].

When McClellan “attempted to speak with” Plaintiff about this incident, “and her inappropriate

language toward” Winesburgh, Plaintiff responded by telling McClellan: “[e]very day you walk

in here with your face in your butt, and you’re supposed to be an example” [Id. at 5-6 (McClellan

Decl. ¶ 20)].

During this time, Plaintiff’s job “performance was inconsistent” too; Plaintiff “made many

mistakes in processing invoices, paying bills, and other basic responsibilities” [Id. at 2 (McClellan

Decl. ¶ 7)]. For example, Plaintiff “inadvertently paid” a “tree services vendor” “twice for the

same job” [Id. at 8 (McClellan Decl. ¶ 27)]. When the “vendor then came to campus seeking

assistance” to rectify the overpayment, Plaintiff “responded unprofessionally,” requiring

McClellan to “smooth out the relationship” [Id.]. As a result of this and other incidents, the

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Facilities Department “spent many hours correcting [Plaintiff’s] mistakes, clearing up late fees,

and completing tasks that were her responsibility” [Id. at 2 (McClellan Decl. ¶ 7)].

Thereafter, Defendant “elected to give [Plaintiff] a Final Written Warning” on “April 16,

2021” [Id. at 6 (McClellan Decl. ¶ 22); see also id. at 13 (Final Written Warning))].

Defendant’s “System-wide” disciplinary policy provides that although Defendant uses a

“progressive discipline system,” “a supervisor is not required to utilize every step in th[e] process,”

and may “skip or repeat any or all steps if warranted by the circumstances” [Doc. 106-4 at 35

(System-Wide Policy)]. The Final Written Warning informed Plaintiff that “[a]ny further

instances of unsatisfactory work performance or work-related behavior” could “result in further

disciplinary action, up to and including immediate termination” [Doc. 106-3 at 13 (Final Written

Warning)].

On “July, 1, 2021,” Plaintiff sued Defendant in the Circuit Court for Hamilton County,

Tennessee, under the Tennessee Human Rights Act and various state law tort

theories [See Doc. 1-1 at 4]. Plaintiff later amended her state court complaint to add federal law

claims [See id. at 24]. Thereafter, Defendant removed that state action to this Court [See Doc. 1].

For more than a year, the Final Written Warning “had no impact on [Plaintiff]’s

behavior” [Doc. 106-3 at 6 (McClellan Decl. ¶ 23)]. “On May 12, 2022,” Defendant placed

Plaintiff on a Performance Improvement Plan (“PIP”), requiring her to complete various tasks to

improve her behavior and job performance [See id. at 20-24 (Performance Improvement Plan)].

Plaintiff responded to the “PIP with a 128-page ‘rebuttal,’” and “made few, if any, efforts to

improve” [Id. at 9 (McClellan Decl. ¶ 30)].

“In the fall of 2022,” Defendant placed Plaintiff “on paid administrative leave in order to

investigate her unauthorized access to confidential information and her use of this information for

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personal reasons” [Doc. 106-2 at 5 (Ellis Decl. ¶ 23)]. Plaintiff obtained “a list of all [Facilities]

Department employees who had received disciplinary actions or who were on leave associated

with the Family Medical Leave Act,” “with no authorization,” and attached it to her filings in this

action [See Docs. 106-4 at 11 (Pou Decl. ¶ 65); 38-1 at 143]. Ultimately, Defendant terminated

Plaintiff’s employment on “September 13, 2022” [Doc. 106-3 at 26].

Plaintiff’s Third Amended Complaint is operative [See Doc. 61]. Though unclear, it appears

to assert several claims against Defendant: “violations of Title VII of the Civil Rights Act of

1964 . . . Age Discrimination in Employment Act of 1967 . . . Americans with Disabilities Act of

19903 . . . Section 207(f) of GINA,” and “the Privacy Act of 1974” [See Doc. 61 ¶ 1]. Plaintiff is

proceeding pro se [See Doc. 30]. Defendant filed the instant Motion for Summary Judgment,

asserting that it is entitled to judgment as a matter of law on all of Plaintiff’s

claims [Doc. 106]. Plaintiff opposed the Motion [see Doc. 120], Defendant replied [Doc. 121],

and Plaintiff filed a sur-reply with leave from the Court [Docs. 122, 125]. Plaintiff further requests

leave from the Court to file a fourth amended complaint [See Doc. 129]. Defendant opposes

Plaintiff’s motion to amend [See Doc. 131]. Plaintiff replied and filed a supplement to her

reply [Docs. 132, 133].

II. Legal Standard

Federal Rule of Civil Procedure 56 provides that the Court “shall grant summary judgment

if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court views the facts in the

3 Although unclear from the Third Amended Complaint, Plaintiff appears to premise her disability

discrimination claim on a 2014 exchange between an employee of Defendant and Pou where the

employee informed Pou that Plaintiff wore “hearing aids” [See Doc. 106-1 at 66 (Eppinger Dep.

259:2-23)].

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light most favorable to the nonmoving party and draws all reasonable inferences from those facts

in her favor. See Matsushita, 475 U.S. at 587. The moving party bears the burden of

demonstrating that no genuine dispute of material fact exists. See Bennett v. Hurley Med. Ctr.,

86 F.4th 314, 323 (6th Cir. 2023) (citation omitted). Once the moving party meets this burden, the

nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.”

See Zakora v. Chrisman, 44 F.4th 452, 464 (6th Cir. 2022) (quotation omitted).

Rule 56, however, “does not require a court to draw every possible inference, no matter how

stretched, in the nonmovant’s favor.” Walden v. Gen Elec. Int’l, Inc., 119 F.4th 1049, 1061 (6th

Cir. 2024). Indeed, a “party may not avoid summary judgment by resorting to speculation [or]

conjecture.” K.V.G. Props., Inc. v. Westfield Ins. Co., 900 F.3d 818, 823 (6th Cir. 2018) (quotation

omitted). Instead, “[a] genuine issue of material fact exists” only if “there are disputes over”

specific facts “that might affect the outcome of the suit under the governing law.”

See Regions Bank v. Fletcher, 67 F.4th 797, 802 (6th Cir. 2023) (citation and quotation omitted).

The Court does “not weigh the evidence or make credibility determinations.” See Smith v. City of

Toledo, 13 F.4th 508, 514 (6th Cir. 2021).

III. Analysis

A. Plaintiff’s Title VII Race Discrimination Claim Fails.

Title VII prohibits an employer from “discriminat[ing] against any individual with respect

to” her “compensation, terms, conditions, or privileges of employment, because of such

individual’s race.” 42 U.S.C. § 2000e-2(a)(1). Where, as here, a plaintiff relies only on

circumstantial evidence of discrimination, the McDonnell Douglas burden-shifting rule applies.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); Boshaw v. Midland

Brewing Co., 32 F.4th 598, 605 (6th Cir. 2022).

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Under McDonnell Douglas, a plaintiff bears the burden of establishing a prima facie case of

discrimination. See Levine v. DeJoy, 64 F.4th 789, 797 (6th Cir. 2023) (citation omitted). If a

plaintiff succeeds, the “burden shifts to” the defendant “to articulate some legitimate,

nondiscriminatory reason for the employee’s” treatment. See id. (quotation omitted). And if the

defendant succeeds there, the burden shifts back to the plaintiff “to prove by a preponderance of

the evidence that the legitimate reasons offered by the defendant were not its true reasons but were

a pretext for discrimination.” Id.

To establish a prima facie case here, Plaintiff must demonstrate that she: (1) is a member of

a protected class; (2) was qualified for the job she sought; (3) suffered an adverse employment

decision; and (4) was replaced by a person outside the protected class or treated differently than

similarly situated non-protected employees. See id.

Here, Plaintiff fails to establish a prima facie case of racial discrimination. Liberally

construed in her favor, Plaintiff appears to premise her race discrimination claim on the theory that

Defendant’s hiring of Winesburgh for the Project Support Specialist position and then

reclassifying Winesburgh into the Business Manager position—instead of Plaintiff—constitutes

discrimination because of her race [See Docs. 61 at 8; 106-1 at 29 (Eppinger Dep. 111:17-22);

120 at 17, 19-20]. Reviewing the evidence in the light most favorable to Plaintiff, however, she

fails at the second element because Plaintiff was not qualified for either position.

The Project Support Specialist position required an “[a]ssociates degree in construction

management,” [Doc. 106-5 at 9 (Project Support Specialist Job Description)], which Plaintiff

admits she did not have and does not have [See Doc. 61 ¶ 26]. The position further required “1-3

years of related project management experience” [Doc. 106-5 at 13 (Project Support Specialist Job

Description)]. Plaintiff concedes that she did not have and does not have that experience,

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either [Doc. 106-1 at 27 (Eppinger Dep. 103:4-9)]. The Business Manager position required,

among other things, at least “2+ years of experience” in “tracking and managing multiple project

costs related to construction, renovations, and technology upgrades using” particular software

[Doc. 106-4 at 16 (Business Manager Job Description)]. Plaintiff conceded that she did not have

that experience [See, e.g., Doc. 106-1 at 31 (Eppinger Dep. 121: 14-19)]. Plaintiff further

demonstrated that she was unfamiliar with basic concepts in the construction

industry [Id. at 33-34 (Eppinger Dep. 127:1-130:2)]. For these reasons, Plaintiff was unqualified

for the Project Support Specialist and Business Manager positions and therefore cannot establish

a prima facie case of race discrimination.

Plaintiff seeks to resist this conclusion in two (2) ways. First, Plaintiff appears to assert,

pointing to no evidence, that Defendant fabricated the job requirements for both

positions [See, e.g., Doc. 120 at 20]. That unsupported speculation cannot overcome summary

judgment. See Walden, 119 F.4th at 1061; see also K.V.G. Props., Inc., 900 F.3d at 823.

Second, Plaintiff argues that even if she was unqualified for the position, Defendant had an

obligation to train her so she would have the requisite experience and

qualifications [See, e.g., Doc. 120 at 4 (arguing that Plaintiff can establish a prima facie case

because Defendant did not provide Plaintiff with “qualification[s]/credential[s]”)]. But Title VII

does not require employers “to give special training and guidance” to employees.

See Johnson v. Michigan St. Univ., 547 F.Supp 429, 441 (W.D. Mich. 1982) (citation omitted).

Nevertheless, even if Plaintiff could establish a prima facie case, her race discrimination

claim would still fail. Defendant has presented a legitimate, nondiscriminatory reason for

selecting Winesburgh over Plaintiff for the Project Support Specialist and Business Manager

Positions—Winesburgh had the requisite experience and qualifications to perform each of these

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roles [Doc. 106-2 at 2-3 (Ellis Decl. ¶ 7)]. Plaintiff’s response to this evidence is, essentially, that

it is all “fabricated” too [See, e.g., Doc. 106-1 at 24 (Eppinger Dep. 92:17-19)]. But Plaintiff’s

unsupported claim of misrepresentation does not create a genuine dispute of material fact.

See Walden, 119 F.4th at 1061; see also K.V.G. Props., Inc., 900 F.3d at 823.

Even if Plaintiff’s claim made it to the third step in the McDonnell Douglas framework,

she “must identify evidence from which a reasonable jury could conclude that the proffered reason

is actually a pretext for unlawful discrimination.” See Jackson, 814 F.3d at 778 (quotation

omitted). Under the law, Plaintiff could attempt to show pretext in several different ways.

See Chen v. Dow Chemical Co., 580 F.3d 394, 400 (6th Cir. 2009) (citation omitted).

But Plaintiff has pointed to no competent evidence that Defendant’s reasons for its actions

were pretextual. Speculation and unsupported arguments that Defendant fabricated

documents, [see, e.g., Doc. 106-1 at 24 (Eppinger Dep. 92:17-19)], will not do.

See Walden, 119 F.4th at 1061; see also K.V.G. Props., Inc., 900 F.3d at 823.

Accordingly, Plaintiff’s Title VII race discrimination claim fails.

B. Plaintiff’s Age, Sex, and Disability Discrimination Claims Fail Too.

Plaintiff’s Third Amended Complaint focuses primarily on Plaintiff’s Title VII race

discrimination and retaliation claims, but it makes some references to potential claims of age, sex,

and disability discrimination [See Doc. 61]. These claims, however, fail for the same reason

Plaintiff’s race discrimination claim fails: she has not identified a genuine dispute of material fact

regarding whether she was qualified for either of the positions at issue. See Thompson v. Fresh

Products, 985 F.3d 509, 526 (6th Cir. 2021) (explaining that a prima facie case of age

discrimination under the ADEA requires a plaintiff to show she was qualified for the relevant

position); Baggett v. City of Cincinnati, No. 22-3338, 2022 WL 17337851, at *2 (6th Cir. Nov. 30,

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2022) (“To establish a prima facie case for [sex] discrimination, a plaintiff must show she was . .

. qualified for the position.”); Babb v. Maryville Anesthesiologists P.C., 942 F.3d 308, 320 (6th

Cir. 2019) (citation omitted) (explaining that an element of the prima facie case for disability

discrimination is that a plaintiff must be “otherwise qualified for the position”). Accordingly, the

Court dismisses these claims.

C. Plaintiff’s Title VII Retaliation Claim Fails.

Plaintiff has not raised a genuine dispute of material fact regarding her Title VII retaliation

claim either. Under Title VII, an employee may sue an employer for retaliating against her for

opposing a discriminatory practice. 42 U.S.C. § 2000e-3(a). The McDonnell Douglas rule

applies here too because Plaintiff purports to rely on circumstantial evidence of

retaliation [See. e.g., Doc. 106-1 at 41 (Eppinger Dep. 159:20-23)].

To establish a prima facie case for retaliation here, Plaintiff must show that (1) she engaged

in a protected activity, (2) the defendant knew of her conduct, (3) the defendant took an adverse

employment action against her after her protected activity, and (4) there was a causal connection

between the exercise of Plaintiff’s protected activity and the adverse action. See Wehrly v. Allstate

Ins., No. 23-5736, 2024 WL 1308245, at *4 (6th Cir. May 27, 2024) (citation omitted). The law on

causation is exacting. Binding precedent from the United States Court of Appeals for the Sixth

Circuit requires a plaintiff to prove causation by traditional “but-for cause” principles.

See Boshaw, 32 F.4th at 605.

Here, Plaintiff fails to establish a prima facie case because she has not raised a genuine

dispute of material fact regarding whether engaging in a protected activity was the but-for cause

of the adverse employment actions she experienced [See Doc. 61 ¶¶ 56-74 (describing the

purported adverse employment actions taken against Plaintiff)]. Plaintiff points to no evidence of

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causation; and at summary judgment, that failure is fatal to her claim. See Zakora, 44 F.4th at 464.

Even if Plaintiff could establish a prima facie case, though, Defendant has proffered at

least one legitimate, nondiscriminatory reason for the adverse employment actions:

Plaintiff’s unprofessional behavior [See Doc. 106-3 at 5-6 (McClellan Decl. ¶ 20)].

See, e.g., Velzat v. Williamson Med. Ctr., 627 F. App’x 534, 541 (6th Cir. 2015) (concluding that

an “unprofessional email” and “insubordination” toward supervisors are legitimate,

nondiscriminatory reasons for an adverse employment action). And as with her race

discrimination claim, Plaintiff points to no evidence showing pretext. Plaintiff’s Title VII

retaliation claim thus fails.

D. Plaintiff’s Purported Genetic Information Nondiscrimination Act And Privacy Act

Claims Fail.

Plaintiff’s two remaining claims also fail. The Third Amended Complaint makes a brisk

reference to “Section 207(f) of GINA,” which the Court infers is a reference to the Genetic

Information Nondiscrimination Act (“GINA”) [See Doc. 61 ¶ 1]. But any GINA claim Plaintiff

sought to raise would fail. GINA provides that it is “an unlawful employment practice for an

employment agency to request, require, or purchase genetic information with respect to an

individual or family member of the individual.” See Williams v. Graphic Packaging Int’l, Inc.,

790 F. App’x 745, 754 (6th Cir. 2019) (quoting 42 U.S.C. § 2000ff-2(b)). Plaintiff points to no

evidence that Defendant requested, required, or purchased relevant genetic information or

retaliated against Plaintiff on a qualifying basis. The Third Amended Complaint also alludes to a

claim under the “Privacy Act of 1974” [See Doc. 61 ¶ 1]. To the extent Plaintiff intends to assert

such a claim, however, it would fail. “[T]he Privacy Act applies exclusively to federal agencies,”

which Defendant is not. See Schmitt v. City of Detroit, 395 F.3d 327, 331 (6th Cir. 2005).

Therefore, these two potential claims fail.

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E. The Court Denies Plaintiff’s Motion To Amend Her Third Amended Complaint

Because It Is Untimely And The Proposed Amendment Would Be Futile.

Plaintiff seeks to amend her complaint a fourth time [See Doc. 129], but the Court denies

that request for two (2) independent reasons. First, the deadline for Plaintiff to amend her pleading

had long passed when Plaintiff made her request [See Docs. 22 at 3; 57 at 3]. And she has not

even attempted to establish good cause. See Fed. R. Civ. P 6(b). Second, amendment would be

futile. As applicable here, Rule 15 provides that “a party may amend its pleading only with the

opposing party’s written consent or the court’s leave.” See Fed. R. Civ. P. 15(a)(2).

“The court should freely give leave when justice so requires.” Id. The Court may, however, deny

a motion to amend if the amendment would be futile. See Foman v. Davis, 371 U.S. 178,

182 (1962). Permitting amendment would be futile “when, after including the proposed changes,

the complaint still could not withstand a Rule 12(b)(6) motion to dismiss.” See Stanley v. W. Mich.

Univ., 105 F.4th 856, 867 (6th Cir. 2024) (citation omitted).

Here, Plaintiff’s proposed amendment would be futile. Plaintiff wishes to amend her Third

Amended Complaint to add a claim under “42 U.S.C. § 1981” [See Doc. 129 at 1].

Defendant, however, is a public university and “arm of the State.” See Johnson v. Univ. of

Cincinnati, 215 F.3d 561, 571 (6th Cir. 2000). The Eleventh Amendment of the United States

Constitution makes Defendant “immune from suit” on Plaintiff’s Section 1981 theory. See id.

Plaintiff points out—correctly—that Congress may abrogate a state’s sovereign immunity in some

instances [See Doc. 133 at 1]. But Plaintiff points to no binding precedent holding that Section

1981 abrogated the State’s immunity here [See id.]. In fact, prevailing precedent holds that Section

1981 does not abrogate Defendant’s sovereign immunity. See Hafford v. Seidner, 183 F.3d 506,

512 (6th Cir. 1999).

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IV. Conclusion

For the above reasons, the Court (1) DENIES Plaintiffs “Motion for Leave to File Fourth

Amended Complaint” [Doc. 129] and (2) GRANTS Defendant University of Tennessee at

Chattanooga’s Motion for Summary Judgment [Doc. 106] and DISMISSES this action.

An appropriate judgment shall enter.

SO ORDERED.

KATHERINE A. 4 Wa

United States Distritt Jidge

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