Chinyere Ogbonna-McGruder v. Austin Peay State Univ.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0017p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

CHINYERE OGBONNA-MCGRUDER,

│

Plaintiff-Appellant, │

> No. 23-5557

│

v. │

│

AUSTIN PEAY STATE UNIVERSITY; TUCKER BROWN and │

MARSHA LYLE-GONGA, in their individual capacities, │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Middle District of Tennessee at Nashville.

No. 3:21-cv-00506—Eli J. Richardson, District Judge.

Decided and Filed: January 30, 2024

Before: GRIFFIN, BUSH, and READLER, Circuit Judges.

_________________

COUNSEL

ON BRIEF: James W. Edwards, CORLEY HENARD LYLE LEVY & LANGFORD, PLC,

Hendersonville, Tennessee, for Appellant. Toni-Ann M. Dolan, Valerie M. Stoneback, E.

Ashley Carter, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee,

for Appellees.

_________________

OPINION

_________________

JOHN K. BUSH, Circuit Judge. Chinyere Ogbonna-McGruder sued her employer,

Austin Peay State University (APSU), and two of her supervisors, alleging that they engaged in

racial discrimination, created a hostile work environment, and retaliated against her when she

opposed their unlawful conduct. She also claimed that her supervisors violated her constitutional

No. 23-5557 Ogbonna-McGruder v. Austin Peay State Univ. Page 2

rights under 42 U.S.C. § 1983. The district court granted defendants’ motions to dismiss all

counts for failure to state a claim. For reasons that follow, we AFFIRM.

I.

Because this appeal arises from a motion to dismiss, we draw the facts from the

allegations in the operative pleading, the First Amended Complaint. In 2003, APSU hired

plaintiff Ogbonna-McGruder, who is African American, to teach classes in criminal justice and

public management. Her problems with the university began in 2017, when it underwent a series

of organizational changes. In the spring of that year, she learned that the public management and

criminal justice department would be split: the criminal justice side would operate independently

as a single department, and the public management side would merge with the political science

department. Following the switch, she could either (1) select a single department to join, which

did not require faculty approval; or (2) seek a joint appointment to both departments, which

required faculty review of her qualifications.

Ogbonna-McGruder claims that she was unlawfully denied the opportunity to select her

department after then-Dean David Denton rejected her request for joint appointment. She filed a

complaint with APSU’s Office of Equal Opportunity and Affirmative Action, alleging that

Denton engaged in racial discrimination when he denied her request. According to Ogbonna-

McGruder, APSU’s internal investigation found that Denton’s actions “were wrong,” but the

university took no action. First Amended Complaint (FAC), R. 53, PageID 455. Having found

no remedy with the university, she filed a complaint with the Equal Employment Opportunity

Commission (EEOC) in September 2019.

She claims that from summer 2019 through summer 2022, defendants “perpetuate[d] a

hostile work environment” based on her race and in response to her filing the 2019 EEOC

charge. Id., PageID 456. She alleges that the following incidents contributed to a hostile work

environment:

• In September 2019, defendant Dr. Tucker Brown, Dean of the College of

Behavioral and Health Sciences, instructed her “to move from [her] office to a

basement office.” Id.

No. 23-5557 Ogbonna-McGruder v. Austin Peay State Univ. Page 3

• In October 2019, she was denied the opportunity to draft a grant proposal for a

juvenile detention center in Tennessee. Brown had previously “assured [her] in

writing” that she could participate, and a County Commissioner specifically

requested that she join the drafting process. Id., PageID 456–57.

• On October 9, 2019, Brown yelled at her in front of a white faculty member.

• In March 2020, defendant Dr. Marsha Lyle-Gonga, Chair of the Department of

Political Science and Public Management, refused to complete Ogbonna-

McGruder’s faculty evaluation for the 2019–2020 academic year. She appealed the

failure to receive an evaluation, and Brown scheduled a Zoom call to address the

issue. During the call, Brown “denigrated [her] teaching and research done with

minority students” and “indicated that [her] teaching pedagogy was questionable,”

ignoring the high ratings she had received from her students. Id., PageID 457–59.

• She received a 4.45 out of 6.0 in her evaluation for the 2020–2021 academic year,

but Lyle-Gonga lowered the evaluation score to 4.25. Lyle-Gonga reinstated the

original score after Ogbonna-McGruder complained. Additionally, she received a

low evaluation for the 2021–2022 year after Lyle-Gonga “purposefully

misrepresented the criteria used” for evaluations. Id., PageID 462.

• Professors in the Department of Political Science and Public Management voted in

favor of her proposal to create a master’s program in January 2020, but Brown and

Lyle-Gonga “deliberately refused to confer with [her] about [the] matter.” Id.,

PageID 458.

• In spring 2020, she received word that a white adjunct professor was replacing her

to teach a class during the fall 2020 semester. Although she repeatedly asked Lyle-

Gonga and Brown for a replacement class, Brown did not notify her of a

replacement until summer 2020.

• Lyle-Gonga denied Ogbonna-McGruder’s request to teach political science classes

in 2021 and 2022 and assigned her to teach public management courses instead.

Lyle-Gonga reasoned that Ogbonna-McGruder “was not qualified to teach political

science classes due to not having a political science or law degree,” although she

had taught political science courses at APSU for 18 years. Id., PageID 460–62.

• She was denied the opportunity to teach summer semester classes in 2019 and 2021.

• Her work was omitted from APSU’s College of Behavioral & Health Sciences’

year-end report of presentations and research completed by faculty members.

In September 2020, Ogbonna-McGruder filed her second EEOC complaint, asserting that

APSU, Brown, and Lyle-Gonga discriminated against her because of her race. Her third EEOC

complaint followed on June 17, 2021, alleging that APSU retaliated in response to her prior

EEOC claims. Soon after she received right-to-sue letters for her second and third EEOC

No. 23-5557 Ogbonna-McGruder v. Austin Peay State Univ. Page 4

complaints, she filed this action under Title VII of the Civil Rights Act of 1964. She thereafter

amended her Complaint.

The First Amended Complaint does not specify which claims are brought under Title VII.

But the district court discerned (and Ogbonna-McGruder does not dispute) that she alleges the

following claims against the university under Title VII: that it (1) created a hostile work

environment based on her race; (2) discriminated against her on the basis of her race; (3)

unlawfully retaliated against her for opposing APSU’s discriminatory practices; and (4) created a

hostile work environment in retaliation for her opposing the discrimination. She also asserts

claims against Brown and Lyle-Gonga in their individual capacities under 42 U.S.C. § 1983,

alleging that they “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.” Id., PageID 463.

The district court granted Brown and Lyle-Gonga’s motion to dismiss, explaining that

Ogbonna-McGruder did not properly plead any claim under § 1983 because she made

“absolutely no reference to any constitutional violation, or for that matter any violation of federal

law other than Title VII.” Order Granting Individual Defs.’ Mot. to Dismiss, R. 84, PageID 875–

90. The district court later granted APSU’s motion to dismiss all remaining claims under Federal

Rule of Civil Procedure 12(b)(6). Ogbonna-McGruder timely appealed.

II.

We review the district court’s dismissal of the First Amended Complaint de novo. West

v. Ky. Horse Racing Comm’n, 972 F.3d 881, 886 (6th Cir. 2020). To survive a motion to dismiss

under Rule 12(b)(6), a complaint “must contain sufficient factual matter . . . to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In determining whether a plaintiff has stated

a plausible claim for relief, the court must accept any factual allegations as true and draw all

reasonable inferences in the plaintiff’s favor. Fisher v. Perron, 30 F.4th 289, 294 (6th Cir.

2022). However, “the presumption of truth is inapplicable to legal conclusions.” Id.

No. 23-5557 Ogbonna-McGruder v. Austin Peay State Univ. Page 5

III.

A. Race-Based Hostile Work Environment Claim

Ogbonna-McGruder appeals the district court’s dismissal of her claim that APSU created

a hostile work environment on account of her race. Notably, at the motion-to-dismiss stage, a

plaintiff is not required to plead facts establishing a prima facie case as is required under

McDonnell Douglas v. Green, 411 U.S. 792 (1973). See Keys v. Humana, Inc., 684 F.3d 605,

608–09 (6th Cir. 2012) (explaining that “application of the McDonnell Douglas prima facie case

at the pleading stage ‘was contrary to the Federal Rules’ structure of liberal pleading

requirements’” (quoting Twombly, 550 U.S. at 570)). Instead, a plaintiff asserting a hostile work

environment claim must allege that her “workplace is permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently severe and pervasive to alter the conditions of

the victim’s employment and create an abusive working environment.” Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 116 (2002) (cleaned up). Additionally, the plaintiff must allege

that she is a member of a protected class and that “the harassment was based on race.” Phillips

v. UAW Int’l, 854 F.3d 323, 327 (6th Cir. 2017).

Here, the district court dismissed Ogbonna-McGruder’s race-based hostile work

environment claim because she did not allege that any harassment she experienced was

“specifically due to [her] race.” Dist. Ct. Op., R. 100, PageID 1278. Additionally, the district

court found that any alleged harassment was not sufficiently severe or pervasive to constitute a

hostile work environment. Id. at 1278–84. Regardless of whether Ogbonna-McGruder alleged

discriminatory animus, the district court did not err in dismissing her race-based hostile work

environment claim because she did not allege severe or pervasive harassment.

First, the district court correctly found that the allegations of discrete acts of

discrimination could not be characterized as part of the hostile work environment claim. The

Supreme Court has explained that under Title VII, a plaintiff may bring a claim alleging that

either (1) an employer engaged in “discrete discriminatory acts” such as “termination, failure to

promote, denial of transfer, or refusal to hire”; or (2) the employer’s “repeated conduct” created

a hostile work environment. Morgan, 536 U.S. at 114–15; Hunter v. Sec’y of U.S. Army,

No. 23-5557 Ogbonna-McGruder v. Austin Peay State Univ. Page 6

565 F.3d 986, 993–94 (6th Cir. 2009). Because the two claims are “different in kind,” we have

consistently held that allegations of discrete acts may be alleged as separate claims, and as such

“cannot properly be characterized as part of a continuing hostile work environment.” Sasse v.

U.S. Dep’t of Labor, 409 F.3d 773, 783 (6th Cir. 2005); see Morgan, 536 U.S. at 115; Taylor v.

Donahoe, 452 F. App’x 614, 620 (6th Cir. 2011) (“First, the alleged wrongs identified by

plaintiff represent discrete acts of alleged retaliation (or discrimination) rather than acts

contributing to a hostile work environment.”); Jones v. City of Franklin, 309 F. App’x 938, 942–

44 (6th Cir. 2009) (distinguishing allegations supporting a hostile work environment claim from

allegations of discrete acts of discrimination); Clay v. United Parcel Serv., Inc., 501 F.3d 695,

708 (6th Cir. 2007) (holding that employer’s refusal to remove the plaintiff from an unfavorable

post was “more akin to a discrete act, which is decidedly not actionable as a hostile-work-

environment claim”).

We agree with the district court that most of Ogbonna-McGruder’s allegations do not

constitute “harassment” contributing to the hostile work environment claim. Her allegations that

she was denied the opportunity to draft a grant proposal and teach summer courses, received low

evaluations, was replaced by a white adjunct professor, and was reassigned to teach public

management courses represent discrete acts that could perhaps support separate claims of

discrimination or retaliation under Title VII. See Hunter, 565 F.3d at 994 (holding that “failure

to promote an employee or select him for a training program is a discrete act”); Jones, 309 F.

App’x at 942 (finding that allegations of “lowered evaluation scores, disciplinary actions, and the

lack of promotions” were “discrete acts of racial discrimination”); Cecil v. Louisville Water Co.,

301 F. App’x 490, 496 (6th Cir. 2008) (claims that employer denied plaintiff training, gave her

“unattainable and undesirable work assignments” and “outsource[ed] her job responsibilities”

were discrete acts).

By contrast, only four incidents in the First Amended Complaint could constitute

harassment to support Ogbonna-McGruder’s hostile work environment claim: that (1) Brown

instructed her to move to the basement; (2) Brown scolded her in front of a white faculty

member; (3) Brown denigrated her teaching abilities during a video call; and (4) Lyle-Gonga

stated that she was not qualified to teach political science courses.

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But even viewing those allegations as a whole, Ogbonna-McGruder did not sufficiently

allege facts from which we may infer that the harassment she experienced was severe or

pervasive. Courts consider the totality of circumstances in determining the severity and

pervasiveness of alleged harassment, including “the frequency of the discriminatory conduct; its

severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance;

and whether it unreasonably interfere[d] with an employee’s performance.” Harris v. Forklift

Sys., 510 U.S. 17, 23 (1993). Notably, the alleged harassment must be both objectively and

subjectively severe and pervasive to be actionable. Id. at 21–22. Allegations of “simple teasing,

. . . offhand comments, and isolated incidents (unless extremely serious)” do not suffice.

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal quotation marks omitted).

The district court did not err in concluding that the four alleged incidents fail to establish

severe or pervasive harassment. As an initial matter, those events occurred over a period of

approximately two and a half years—that is too infrequent to demonstrate that her workplace

was “permeated with” ridicule and insult. See Phillips, 854 F.3d at 327–28 (holding that four

racially offensive statements made over a two-year period were too isolated to constitute severe

and pervasive harassment); Clark, 400 F.3d at 351–52 (concluding that three incidents over two

and a half years was not severe or pervasive). And defendants’ comments about her teaching

abilities and qualifications, while undoubtedly offensive, are not sufficiently serious to constitute

severe harassment. Faragher, 524 U.S. at 788 (noting that “the ordinary tribulations of the

workplace, such as the sporadic use of abusive language” does not amount to hostility under

Title VII (internal quotations marks and citation omitted)). Moreover, she did not allege that the

harassment was physically threatening. Her conclusory assertions that defendants’ actions

“unreasonably interfered with [her] work performance,” without alleging supporting factual

allegations, is insufficient for purposes of a motion to dismiss. FAC, R. 53, PageID 464.

Because she failed to plausibly allege severe or pervasive harassment, the district court did not

err in dismissing her race-based hostile work environment claim.

B. Retaliatory Hostile Work Environment Claim

We affirm the district court’s dismissal of the retaliatory hostile work environment claim

on similar grounds. A plaintiff asserting such a claim must allege that she “was subjected to

No. 23-5557 Ogbonna-McGruder v. Austin Peay State Univ. Page 8

severe or pervasive retaliatory harassment by a supervisor” after she engaged in activity

protected by Title VII, and that “there was a causal connection between the protected activity and

the . . . harassment.” Morris v. Oldham Cnty. Fiscal Ct., 201 F.3d 784, 792 (6th Cir. 2000)

(emphasis omitted). The district court dismissed Ogbonna-McGruder’s claim because she did

not plausibly allege that she was subjected to severe or pervasive discrimination in retaliation for

her complaints about APSU’s discriminatory conduct, or that her harassment was causally

connected to any protected activity.

Her objection to the district court’s holding is twofold. First, she claims that the district

court should have recognized, “based on its judicial experience and common sense,” that the

harassment she experienced was causally related to her filing her 2019 Complaint with the

EEOC. Appellant Br. at 30. But even if she had alleged a causal connection, her claim

nonetheless fails because she did not plausibly allege that the harassment she suffered was severe

or pervasive, as explained above.

Ogbonna-McGruder next contends that she was not required to allege that the harassment

was severe or pervasive for purposes of her retaliatory hostile work environment claim. In

support, she relies on Tonkyro v. Sec’y, Dep’t of Veterans Affs., in which the Eleventh Circuit

held that a plaintiff alleging a retaliatory hostile work environment claim was only required to

prove that her employer’s conduct would cause a reasonable worker to be dissuaded from filing

or supporting a complaint of racial discrimination—rather than the familiar “severe or pervasive”

standard. 995 F.3d 828, 836 (11th Cir. 2021). She also cites Burlington N. & Santa Fe Ry. Co.

v. White, in which the Supreme Court applied a similarly lowered standard to a general

retaliation claim. 548 U.S. 53, 68 (2006). However, neither decision controls our analysis here:

Tonkyro, an out-of-circuit decision, does not bind this court; and Burlington does not apply in the

context of a retaliatory hostile work environment claim. See id. at 64–65 (explaining that other

cases were inapposite because they dealt with hostile work environment claims as opposed to a

retaliation claim). And our circuit has repeatedly held that a retaliatory hostile work

environment claim must include evidence that the harassment was severe or pervasive. See, e.g.,

Wyatt v. Nissan N. Am., Inc., 999 F.3d 400, 419 (6th Cir. 2021); Michael v. Caterpillar Fin.

Servs. Corp., 496 F.3d 584, 595 (6th Cir. 2007); Morris, 201 F.3d at 792; Middleton v. United

No. 23-5557 Ogbonna-McGruder v. Austin Peay State Univ. Page 9

Church of Christ Bd., No. 20-4141, 2021 WL 5447040, at *5 (6th Cir. Nov. 22, 2021) (citing

Harris, 510 U.S. at 21); Mulvey v. Hugler, No. 17-5633, 2018 WL 2771346, at *5 (6th Cir. Apr.

3, 2018); Cleveland v. S. Disposal Waste Connections, 491 F. App’x 698, 707 (6th Cir. 2012).

Accordingly, we affirm the district court’s dismissal of the retaliatory hostile work environment

claim.

C. Discrimination Claim

Ogbonna-McGruder next challenges the district court’s dismissal of her discrimination

claim. Title VII prohibits employers 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). Notably, she was not required to plead a prima facie case of

discrimination under McDonnell Douglas, which requires that a plaintiff show (1) that she was a

member of a protected class, (2) an adverse employment action, (3) that she was qualified for her

position, and (4) that she was “replaced by someone outside the protected class or was treated

differently from similarly situated members of the unprotected class.” Warfield v. Lebanon

Corr. Inst., 181 F.3d 723, 728–29 (6th Cir. 1999). Instead, the plausibility pleading standard of

Rule 12(b)(6) applies. See Keys, 684 F.3d at 608–09.

Ogbonna-McGruder abandoned her discrimination claim in her briefing before the

district court. In its motion to dismiss, APSU argued that the discrimination claim was time

barred because she failed to file an EEOC charge within 300 days of the alleged discriminatory

acts in her complaint. APSU Mot. to Dismiss, R. 56-1, PageID 523–25. In response, Ogbonna-

McGruder argued that her claims were timely because the discriminatory conduct listed in her

complaint supported her hostile work environment claim and did not state that she was alleging a

separate discrimination claim. See, e.g., Resp. in Opp. to Mot. to Dismiss, R. 59, PageID 577

(“Here, there are a number of discrete acts that have occurred over what is now a 5-year period;

however, collectively . . . they are part of a hostile work environment and in fact constitute one

unlawful employment practice.”). Indeed, the First Amended Complaint adopted the same

position when it alleged that her claims “arise from a series of separate acts that collectively

constitute an unlawful employment practice.” FAC, R. 53, PageID 462. Accordingly, the

district court held that Ogbonna-McGruder abandoned her discrimination claim when she

No. 23-5557 Ogbonna-McGruder v. Austin Peay State Univ. Page 10

exclusively relied on her hostile work environment claim to satisfy the statute of limitations

requirements.

On appeal, Ogbonna-McGruder has forfeited any challenge to the district court’s

determination that she abandoned her claim by not addressing the issue in her opening brief. An

appellant “abandons all issues not raised and argued in its initial brief on appeal.” United States

v. Johnson, 440 F.3d 832, 845–46 (6th Cir. 2006) (internal quotation marks and citation omitted).

Moreover, “issues adverted to in a perfunctory manner, unaccompanied by some effort at

developed argumentation,” are forfeited. Strickland v. City of Detroit, 995 F.3d 495, 511 (6th

Cir. 2021) (citation omitted).

Ogbonna-McGruder addressed the district court’s holding that she abandoned her claim

twice in her initial brief: once in her statement of the issues, and again when she “denie[d] that

she ha[d] abandoned a claim of general discrimination based on race.” Appellant Br. at 8, 27.

However, she did not provide any explanation why the district court’s decision was erroneous or

cite any supporting authority. And her conclusory statements make no reference to the district

court’s discussion of whether her discrimination claim would comply with the relevant

limitations requirements. Because she made no effort to develop her argument regarding

abandonment, we hold that she forfeited the issue on appeal and affirm the district court’s

dismissal of her discrimination claim.

In any event, we agree with the district court that Ogbonna-McGruder failed to state a

discrimination claim because she did not allege that any adverse employment action she

experienced was motivated by discriminatory animus. For example, she does not explain how

her supervisors’ failure to complete her faculty evaluation or her reassignment to public

management courses—to the extent those actions are adverse employment decisions under Title

VII—were racially motivated. Ogbonna-McGruder’s claim that she was replaced by a white

adjunct to teach a course is similarly insufficient because she does not allege that she was

replaced because of her race, or that she was otherwise similarly situated to the Caucasian

professor who replaced her. But see Keys, 684 F.3d at 610 (finding that plaintiff stated a claim

for employment discrimination where she alleged that she was treated “differently than her

Caucasian management counterparts” and that she “and other African Americans received

No. 23-5557 Ogbonna-McGruder v. Austin Peay State Univ. Page 11

specific adverse employment actions notwithstanding satisfactory employment performances”).

Moreover, her conclusory statement that APSU treated her poorly “because of her race” is

insufficient for purposes of a motion to dismiss. FAC, R. 53, PageID 462.

D. Retaliation Claim

Similarly, we need not address the merits of Ogbonna-McGruder’s retaliation claim

because she did not properly preserve the issue on appeal. The district court held that she

abandoned her retaliation claim when, in response to APSU’s argument that her claim was

untimely, she denied bringing such a claim and maintained that she was instead asserting a

retaliatory hostile work environment claim. She identifies the district court’s dismissal of her

retaliation claim as an issue in her opening brief, but she provides no argument in support of her

claim. Appellant Br. at 8. She also makes no mention of her retaliation claim in her reply brief.

We therefore affirm the dismissal of her retaliation claim.

E. Individual Defendants’ Motion to Dismiss

Finally, Ogbonna-McGruder appeals the dismissal of her claims under 42 U.S.C. § 1983

against the individual defendants. Section 1983 authorizes a private cause of action against

anyone who, “under color of state law, deprives a person of rights, privileges, or immunities

secured by the Constitution or conferred by federal statute.” Wurzelbacher v. Jones-Kelley, 675

F.3d 580, 583 (6th Cir. 2012). She claims that Brown and Lyle-Gonga violated § 1983 when

they “engaged in conspiratorial behavior that has caused her to be deprived of rights to which she

is entitled under laws of the United States.” FAC, R. 53, PageID 463. Defendants argue, and the

district court held, that the § 1983 claim must be dismissed because it did not allege that Brown

and Lyle-Gonga’s conduct violated any constitutional rights. We agree.

We have previously recognized that a plaintiff asserting a claim under Title VII is not

categorically precluded from bringing a parallel constitutional claim under § 1983. Day v.

Wayne Cnty. Bd. of Auditors, 749 F.2d 1199, 1205 (6th Cir. 1984) (holding that “an employee

may sue her public employer under both Title VII and § 1983 when the § 1983 violation rests on

a claim of infringement of rights guaranteed by the Constitution”); see also Toth v. City of

Toledo, 480 F. App’x 827, 831 (6th Cir. 2012). However, when asserting both claims, the

No. 23-5557 Ogbonna-McGruder v. Austin Peay State Univ. Page 12

plaintiff must allege that the conduct forming the basis of her § 1983 claim violates a

constitutional right apart from the rights protected under Title VII. See Seigner v. Twp. Of

Salem, 654 F. App’x 223, 233 (6th Cir. 2016) (granting summary judgment to defendants on

§ 1983 claim where plaintiff made “only oblique references to the First Amendment, and . . .

never allege[d] a constitutional violation independent of his Title VII claims”); Day, 749 F.2d at

1204 (“Title VII provides the exclusive remedy when the only § 1983 cause of action is based on

a violation of Title VII.”).

The First Amended Complaint stated that defendants violated rights secured “under laws

of the United States,” but did not allege that their conduct violated a specific constitutional

provision. FAC, R. 53, PageID 463. Ogbonna-McGruder contends that she adequately notified

defendants that their conduct violated her rights under the Fourteenth Amendment by including

language from § 1983 in her pleading, which refers to rights secured under the “Constitution and

laws.” Appellant Br. at 37. But this broad reference to legal texts, without providing a specific

provision, does not adequately put defendants on notice of her claims for purposes of a motion to

dismiss.

Moreover, Ogbonna-McGruder was not entitled to further amendment of her complaint to

correct the deficiency. The magistrate judge denied Ogbonna-McGruder’s motion to amend her

Complaint a second time because she did not establish good cause for failing to seek earlier leave

to amend under Federal Rule of Civil Procedure 16(b). See Op. Denying Mot. to Amend

Compl., R. 89, PageID 989 (explaining that a plaintiff seeking to amend a complaint after a

deadline established by a scheduling order must “first show good cause under Rule 16(b) for

failure earlier to seek leave to amend . . . before a court will consider whether amendment is

proper under Rule 15(a)”) (citing Com. Benefits Grp., Inc. v. McKesson Corp., 326 F. App’x

369, 376 (6th Cir. 2009)). She did not file objections to the magistrate judge’s order as required

under Federal Rule of Civil Procedure 72(a), forfeiting her right to raise this issue on appeal.

Berkshire v. Dahl, 928 F.3d 520, 530–31 (6th Cir. 2019). Although the failure to object may be

excused “in the interests of justice,” Thomas v. Arn, 494 U.S. 140, 155 (1985), we decline to do

so. Her brief just mentions the denial of her motion to amend once in her statement of issues and

No. 23-5557 Ogbonna-McGruder v. Austin Peay State Univ. Page 13

in a single sentence in her conclusion, see Appellant Br. at 9, 39, which is insufficient to preserve

her claim on appeal, see Strickland, 995 F.3d at 511.

IV.

For the foregoing reasons, we AFFIRM.