Oirya v. Auburn University (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

JOHN OIRYA, )

)

Plaintiff, )

)

v. ) Case No. 3:17-cv-681-WC

)

AUBURN UNIVERSITY and )

GEORGE FLOWERS, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff John Oirya (“Plaintiff” or “Oirya”) has brought claims against Auburn

University (“Auburn”) and George Flowers (“Flowers”) (together, “Defendants”) in

connection with his admission and subsequent disenrollment at Auburn Graduate School’s

College of Business. Defendants have filed a Motion for Summary Judgment (Doc. 79),

and Plaintiff has filed a response (Doc. 99). Defendants’ motion is fully briefed and is

ripe for consideration. For the reasons below, the Court finds that the Defendants’ Motion

for Summary Judgement is due to be GRANTED.

I. STANDARD OF REVIEW

Under Rule 56(a) of the Federal Rules of Civil Procedure, a reviewing court shall

grant a motion for “summary judgment if the movant shows that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(a). Only disputes about material facts will preclude the granting

of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “An

issue of fact is ‘genuine’ if the record as a whole could lead a reasonable trier of fact to

find for the nonmoving party. An issue is ‘material’ if it might affect the outcome of the

case under the governing law.” Redwing Vehicleriers, Inc. v. Saraland Apartments, 94

F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson, 477 U.S. at 248).

Under Rule 56, summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The party asking for summary judgment “always bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those portions of

‘the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any,’ which it believes demonstrates the absence of a genuine issue

of material fact.” Id. at 323. The movant can meet this burden by presenting evidence

showing there is no dispute of material fact, or by showing that the nonmoving party has

failed to present evidence in support of some element of his case on which he bears the

ultimate burden of proof. Id. at 322–23.

Once the movant has satisfied this burden, the nonmoving party must “go beyond

the pleadings and by his own affidavits, or by the ‘depositions, answers to interrogatories,

and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for

trial.’” Id. at 324. In doing so, and to avoid summary judgment, the nonmovant “must

do more than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The parties

must support their assertions “that a fact cannot be or is genuinely disputed” by “citing to

particular parts of materials in the record, including depositions, documents, electronically

stored information, affidavits or declarations, stipulations[], admissions, interrogatory

answers, or other materials” or by “showing that the materials cited do not establish the

absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A) & (B).

If the nonmovant “fails to properly address another party’s assertion of fact” as

required by Rule 56(c), then the court may “consider the fact undisputed for purposes of

the motion” and “grant summary judgment if the motion and supporting materials –

including the facts considered undisputed – show that the movant is entitled to it.” Fed.

R. Civ. P. 56(e)(2) & (3).

In determining whether a genuine issue for trial exists, the court must view all the

evidence in the light most favorable to the nonmovant. McCormick v. City of Fort

Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). Likewise, the reviewing court must

draw all justifiable inferences from the evidence in the nonmoving party’s favor.

Anderson, 477 U.S. at 255. However, “mere conclusions and unsupported factual

allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.

England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam). Furthermore, “[a] mere

‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must

be enough of a showing that the jury could reasonably find for that party.” Walker v.

Darby, 911 F.2d 1573, 1577 (11th Cir. 1990); see also Anderson, 477 U.S. at 249–50 (“If

the evidence [on which the nonmoving party relies] is merely colorable, or is not

significantly probative, summary judgment may be granted.”) (internal citations omitted).

II. SUMMARY JUDGMENT REQUIREMENTS

Before setting out the undisputed facts in this case, the Court finds is necessary to

set forth the provisions governing factual assertions and evidentiary submissions for

summary judgment motions. Rule 56(c)(1)(A) of the Federal Rules of Civil Procedure

requires that a “party asserting that a fact cannot be or is genuinely disputed must support

the assertion by citing to particular parts of material in the record….” Additionally, this

Court’s Uniform Scheduling Order (Doc. 22), contains the following requirements with

respect to dispositive motions:

 In all briefs filed by any party relating to the motion, the discussion of the

evidence in the brief must be accompanied by a specific reference, by page

and line, to where the evidence can be found in a supporting deposition or

document. Failure to make such specific reference will result in the

evidence not being considered by the court. Doc. 22 § 2.

 All briefs in support of and in opposition to the motion shall be accompanied

by an appendix which includes the evidence upon which the parties rely. Id.

at § 2, ¶ 6.

 Any discussion of evidence in a brief must include the specific reference, by

page and line, to where the evidence can be found in the supporting

evidentiary appendix or in a court pleading or other filing (complaint,

answer, brief, etc.). Id. at § 2, ¶ 7.

 Failure to comply strictly with these provisions could result in dismissal of

the motion or appropriate sanctions. Id. at § 2, ¶ 9.

Plaintiff filed a Response in Opposition to Defendants’ Motion for Summary

Judgment (Doc. 99) along with a Declaration of the Plaintiff (Doc. 99-1) and an

“Appendix” listing Exhibits A through F on the cover. Only Exhibits A and B (copies of

two emails from Chris Anthony to George Crandall) are actually attached to the Appendix.

Exhibit C, identified as a Maran White Letter to Plaintiff’s Counsel, is not attached, but a

portion of the letter is incorporated into Plaintiff’s brief. Exhibit D is identified as

“OIRYA-AMDC – Documents Produced in the Middle District,” Exhibit E is identified as

“AUBURN [Bates No.],” and Exhibit F is identified as “BYU Confidential Documents.”

None of these documents were filed into the record.

Not only did Plaintiff fail to submit many of the evidentiary materials on which he

relies, but his brief fails to conform to the Court’s Scheduling Order regarding proper

citations to evidentiary materials. First, some factual allegations have no citation at all.

Second, when Plaintiff does include citations, he mostly cites to the page only with no line

cite. Third, some of the citations are completely improper, as in one example when he

attempts to support a factual allegation by citing to a discovery request (not even a

response) that he propounded to Defendants.1 See Doc. 99 at 12. Fourth, the vast majority

of Plaintiff’s evidentiary citations in his brief refer to the “OIRYA-AMDC” documents

that have not been submitted to the Court, making it impossible for the Court to determine

whether the cited materials support his factual allegations. Plaintiff occasionally cites to

documents produced to him with the Bates-label prefixes “AUBURN” or “BYU

Confidential Information.” Again, however, Plaintiff submitted none of these documents

with his evidentiary materials. Some of the cited pages may have been produced by

Defendants in support of their motion; some may not have. However, the Court is

1 Plaintiff lists his student comparators and, as evidentiary support, cites to his Document Request No. 19

to Defendants asking for documents on the students he identified. Obviously, his document request

regarding certain individuals does not support a conclusion that they are valid comparators.

unwilling to comb through more than 1000 pages of Defendants’ evidentiary materials to

find, for example, AUBURN 00034. See Pl.’s Br. at 19. As Plaintiff was advised in the

Uniform Scheduling Order, the failure to submit evidentiary materials and make specific

page-line references will result in the evidence not being considered. Doc. 22 § 2.

When a party files an affidavit in support or opposition to summary judgment, Rule

56(e) requires that the affidavit “be made on personal knowledge, set out facts that would

be admissible into evidence, and show that the affiant is competent to testify on the matters

stated.” Fed. R. Civ. P. 56(e). According to the Federal Rules of Evidence, personal

knowledge can be established by showing that the witness was in a physical position to

see, hear, or otherwise perceive the matters to which the testimony relates. See Fed. R.

Evid. 602. In this case, Plaintiff’s declaration is replete allegations not based on personal

knowledge, along with arguments and conclusory statements with no supporting factual

basis. See generally Doc. 99-1.

As a result of the scant evidentiary submissions and the improper assertions in

Plaintiff’s declaration, the Court has considered only a limited number of factual assertions

in Plaintiff’s brief and declaration. See Pye v. Fifth Generation, Inc., No. 14CV493, 2016

WL 9046788, at *2 (N.D. Fla. Sept. 27, 2016) (stating that a district court need not consider

materials that are not properly cited and may decline to consider evidence supporting the

assertions for which t plaintiffs provided no citations to the record).

III. STATEMENT OF UNDISPUTED FACTS

(A) Undisputed Facts Agreed-Upon by the Parties

The Scheduling Order in this case directed the parties to confer and agree upon the

facts that are uncontested, and it further advised that the Court would rely upon the parties’

representations in its determination of whether there is a genuine issue of material fact.

Doc. 22, ¶ 5. The parties were able to agree on the following undisputed facts:

1. Oirya applied and was admitted to Auburn University’s Graduate School

(“Graduate School”) in the Department of Management Ph.D. program to begin Fall 2012.

2. Oirya declined the offer to enroll in Auburn for Fall 2012.

3. Oirya declined Auburn’s 2012 offer of admission because he planned to

spend time on grant work on-site in Kenya, Africa, during the 2012–2013 academic year.

4. Oirya remained enrolled at BYU from Spring Term 2011 through March 20,

2013. Oirya has not returned to Kenya since coming to the United States in 1997.

5. On March 1, 2013, Oirya was suspended from BYU.

6. In Spring 2013, Oirya applied and was admitted to Auburn again. He enrolled

and began coursework in Spring 2014 and began teaching as a graduate teaching assistant.

(B) Additional Findings of Undisputed Facts

After a thorough review of the parties’ briefs and properly cited and submitted

evidentiary materials, the Court finds that the following material facts are undisputed:

(1) Oirya’s Applications to Auburn

When Oirya applied for admission to Auburn’s Graduate School in 2012, the

application showed that he was enrolled at BYU and expected to receive an MA Graduate

Certificate in TESOL2 in April 2012. Doc. 81-1 at 135. When he applied again on

January 20, 2013, under the heading “Academic Record” on the application, which

instructed an applicant to “[l]ist in order (most recent first) all colleges and university you

have attended,” Plaintiff indicated that his most recent college or university attended was

BYU in 2008. Doc. 81-1 at 161, 167. Although Oirya was enrolled at BYU when he

completed the application, he did not list any colleges or universities that he attended after

2008. Doc. 81-1 at 161. Oirya signed his application to the Department of Management

on January 20, 2013, “certify[ing] that the information [he] provided [was] complete and

accurate.” Doc. 81-1 at 167. Oirya also completed application materials directly to the

Graduate School in connection with his 2013 application, and he reported that his

attendance at BYU had ended in December 2008. Doc. 81-5 at 59. This online application

contained the following certification: “I understand that withholding information requested

on this application, including attendance at any other institution, or giving false information

may make me ineligible for admission to the university or subject to dismissal.” Doc. 82-

7 at 4.

(2) Oirya’s Explusion from BYU

On or about January 8, 2013, before he applied to Auburn, Oirya received notice

from BYU of allegations of inappropriate behavior toward female students. Doc. 82-2 at

129. On or about January 10, 2013, he received notice from BYU of allegations of falsely

claiming that he was receiving funding from the Ministry of Higher Education in Kenya;

2 TESOL is an acronym for Teaching English to Speakers of Other Languages.

knowingly making false claims as to the amount he was receiving from the Kenyan

Ministry of Higher Education; submitting forged documents to verify the funding;

knowingly and fraudulently attending BYU while not securing required funding;

misrepresenting the source of the funding; and never providing evidence of receipt of funds

he claimed to have received. Id. at 124. On or about January 11, 2013, Oirya received

notice from BYU that he was no longer eligible for employment of any kind at BYU due

to numerous complaints, including “inappropriate comments and behaviors” toward female

staff, dating back to 2005. Id. at 132. On January 24, 2013, BYU sent notice to Oirya that

he was being accused of Title IX violations (putting his hand down his unzipped pants

during class in the presence of at least one other classmate and calling a meeting to inquire

about who made the allegation). Id. at 133. On January 25, 2013, Oirya received two

forms entitled “Allegation Information and Invitation to Respond” from BYU. Id. at 134–

35. The first one alleged that he had plagiarized an assignment in Spring 2011 and had

been denied admission to the Linguistics Masters in Fall 2012 based partly on a failure to

attribute quotations to correct authors in his proposal, and it also mentioned the incident of

placing his hand into his open pants and engaging in retaliatory behavior by inquiring as to

who made the statement. Id. at 134. The second form contained the same allegations listed

in the January 20, 2013, notice from BYU concerning funding. Id. at 135.

On or around March 1, 2013, BYU sent a letter to Oirya stating as follows:

After interviewing you, completing a thorough review of available

information and considering the recommendation made by the Honor Code

Committee, I am suspending you from Brigham Young University because

of violations of the Honor Code. These violations include submitting false

documents, plagiarism and sexual harassment. This action makes you

ineligible to attend daytime or evening classes, to register for other courses,

to work for the university, or to reside in BYU-contracted housing. You

may not enroll in or be enrolled in any BYU classes or course that could

apply to graduation, including but not limited to Independent Study courses,

until you are returned to good Honor Code standing. A hold has been placed

on your record which will prevent you from being considered for admission

to any church Educational System school until you are returned to good

Honor Code standing.

Doc. 81-1 at 124. Approximately three weeks later, however, BYU determined that Oirya

would be permanently dismissed and sent him a letter dated March 20, 2013, which stated

in part as follows:

After carefully reviewing your most recent violations of the Honor Code, i.e.,

inappropriate gender-based behavior and admission fraud, and in light of

your past history of misconduct at the university I have determined to dismiss

you from Brigham Young University. This decision is effective

immediately and means you are permanently dismissed from the university

and will not be allowed to reapply for admission to the university in the

future. This action requires you to sever all formal connections with the

university, including course work, university employment, and living in

BYU-contracted housing, effective immediately…. A notation of this action

will be made on your transcript.

Doc. 82-1 at 122.

(3) Oirya’s 2013 Admission to Auburn

In April 2013, unaware that Oirya had been expelled from BYU in March 2013,

Auburn admitted him to the Graduate School. Doc. 81-3 at 80. Oirya deferred his Fall

2013 enrollment to Spring 2014 because there was an issue with his immigration status.

Doc. 82-4 at 19–20. Oirya enrolled without submitting a complete final transcript from

BYU, but this mistake was not caught by the Graduate School before he started classes.

Doc. 81-5 at 61–63; Doc. 82-4 at 21.

(4) Auburn’s Graduate Student Policies

Academic Good Standing: Each Auburn University Bulletin published in June

2011, June 2012, and May 2013 has a section entitled “The Graduate School.” Doc. 81-9

at 104, 107, and 109. Under “Admissions Requirements” it states, “The applicant must

be in academic good standing at the institution last attended.” Id. at 104, 107, and 111.

During the tenure of Dean Flowers, who has been the head of the Graduate School since

2008, the Graduate School policy on “academic good standing” has consistently been

interpreted to require an applicant to be eligible to re-enter the institution last attended.

Doc. 82-7 at 1, 14–15. Whether stated as “academic good standing” or “good standing,”

Dean Flowers has never interpreted the term “academic good standing” to be limited to a

grade-point-average requirement only. Id. at 15. Regardless of the basis for ineligibility

at the prior institution—whether academic status, conduct-based, a combination of the two,

or something different—ineligibility to return to the student’s prior institution makes one

ineligible for admission to Auburn’s Graduate School. Id. at 13.

Transcripts: Under “The Graduate School” subheading of “Application for

Admission,” the policy states that an applicant must submit “[o]ne official transcript of all

undergraduate- and graduate-level study from each school previously attended.” Doc. 81-

9 at 104, 107, and 111. It further provides that an applicant “must submit transcripts of

all completed study, as well as incomplete transcripts from the current institution” and that

“[a]pplications and all relevant material must be received by the Graduate School at least

forty-five days before the first day of class of the semester in which the student wishes to

begin graduate study….” Id. The Graduate School requires completed official transcripts

from every college an applicant has attended up through the time of the student’s

enrollment at Auburn. Doc. 82-7 at 2–3, 13–14.

Transfer Students: Auburn has another policy entitled “Admission of Transfer

Students and Transfer Credit.” Doc. 81-9 at 85. This policy requires that applicants

“provide official transcripts (not duplicated or faxed copies) from each college attended,”

and have “eligibility to re-enter the institution last attended . . . to be considered for transfer

admission.” Id. This policy appears in the Auburn University Bulletin in June 2011, June

2012, and May 2013 under the heading “Academic Policies” and the subheading “Policies

and Procedures for Freshman Admissions.” Id. at 89, 94, and 100. However, additional

policies under the subheading “Policies and Procedures for Freshman Admissions” also

include “Admission to Graduate Standing,” which sets forth some of the requirements for

admission to graduate standing and suggests that the policies under the heading “Policies

and Procedures for Freshman Admissions” are not limited to undergraduate freshmen. Id.

at 90 and 95.

Dean Flowers testified that this transfer policy, despite its location in the admission

materials, applies to all admissions and not just freshman admissions. Doc. 82-7 at 14.

According to Dean Flowers, every graduate student comes from another institution (either

with additional coursework or a completed degree) and is, therefore, a transfer student. Id.

at 2. During Dean Flowers’ tenure, the Graduate School has always required an applicant

to be eligible to re-enter his or her previous institution. Id. at 14–15.

Graduate Teaching Assistants: During Dean Flowers’ tenure, Auburn’s policy on

graduate teaching assistants has always been that a student must be enrolled and registered

for at least one course to be employed as a graduate teaching assistant. Doc. 82-7 at 12.

Revision of Good Standing Policy: In connection with applying the “good standing”

policy to Oirya’s situation, Auburn restated the policy for purposes of clarity in the 2015–

16 academic year. Id. at 15. The Graduate School admissions requirements were revised

to state that applicants must be in “good standing,” and the transfer student policy was

included under the Graduate School admission requirements. Id. at 15–16.

(5) Audit of Oirya’s Admissions File

In February 2015, Auburn received an unsolicited letter from someone identifying

herself as Joni Whitaker, which stated in part:

Lying is a way of life for John, I’ve learned…. Once he was gone (to attend

Auburn University) and I was free from the nightmare I had been living in, I

began to reflect and to realize what he had done. That is when I finally filed

for the annulment. Within the first week that we were married, John told me

for the first time that he had been expelled from Brigham Young University.

He claimed to be innocent, but showed me a stack of papers depicting the

multiple arrests that he had received on campus at BYU. John had elaborate

stories to illustrate how he had been victimized by BYU, but as I’ve gotten

to know him better, I believe those were just elaborate lies, as well. He was

expelled when a female student accused him of indecent exposure and

inappropriate behavior. On top of being expelled, he was banned from

libraries and other buildings on campus. The President of BYU actually told

him in a letter to pack his bags and leave.

Doc. 81-3 at 82; Doc. 82-7 at 2. After receipt of this letter and based on his understanding

that the Graduate School’s policy required Oirya to be eligible to re-enter his previous

university, Dean Flowers spoke with the BYU Associate Student Life Vice President and

Dean of Students Vernon Heperi, who confirmed by telephone that on March 20, 2013,

BYU had permanently dismissed Oirya based on violations of BYU’s Honor Code,

including inappropriate gender-based behavior, admission fraud, and a history of

misconduct. Doc. 82-7 at 3. Dr. Heperi also reported that BYU had informed Oirya of his

ineligibility for re-admission to BYU in the future, and he subsequently confirmed this

information by letter to Dean Flowers dated February 18, 2015. Id.

After receiving the letter from Ms. Whitaker, the Graduate School reviewed Oirya’s

admissions file and realized that he had never submitted a final transcript from BYU. Id.

at 2. The Graduate School’s file contained Oirya’s BYU transcript showing in-progress

classes being taken in Fall 2011, but it showed no grades for those courses and no

information about classes taken after Fall 2011. Id. at 2, 19–20. Accordingly, the

Graduate School requested that Mr. Oirya provide his complete and final BYU transcript.

Id. at 3–4.

On February 20, 2015, Dean Flowers wrote to Oirya requesting a complete official

BYU transcript, and he asked Oirya to sign a release for BYU to provide his complete

transcript “and any other information concerning [his] standing at” BYU. Doc. 81-3 at

86. Dean Flowers also reminded Oirya of the certification he provided on his online

application:

I understand that withholding information requested on this application,

including attendance at any other institution, or giving false information may

make me ineligible for admission to the university or subject to dismissal. I

have read this application and certify that the statements I have made on this

application are correct and complete, including a report of all college work

attempted or completed.

Id. Oirya responded that same day by suggesting that he voluntarily left BYU, stating, “I

discontinued my enrollment at BYU mid-semester during Winter 2013. As a result, I

earned no grades for Winter 2013 semester at BYU.” Doc. 81-3 at 95. He also provided

a transcript showing that he was enrolled at BYU for classes during Spring 2013, but it did

not show his grades. Doc. 82-7 at 4. Dean Flowers responded by explaining that

university policy requires complete transcripts from all coursework attempted at a previous

institution. Doc. 81-3 at 96. On February 21, 2015, Oirya offered to request that BYU

provide a transcript as of February 1, 2013, which, of course, would not have provided

Oirya’s Spring 2013 grades or anything that BYU might have placed on the transcript after

that date. Doc. 81-3 at 97; Doc. 82-7 at 5.

On February 21, 2015, Dean Flowers agreed to contact BYU’s registrar’s office as

Oirya requested but “reserve[d] the right to seek additional information about your overall

standing at BYU at the time you last attended.” Doc. 81-9 at 26; Doc. 82-7 at 5. BYU’s

registrar’s office responded that they “could tell [Dean Flowers] nothing about” Oirya’s

records. Doc. 81-9 at 28; Doc. 82-7 at 5. He again requested on February 24, 2015, that

Oirya produce the BYU transcript. Doc. 81-9 at 28. Finally, on February 25, 2015, the

Graduate School received Oirya’s final BYU transcript that was required to have been

produced to Auburn before Oirya began classes. Doc. 82-7 at 6. The transcript revealed a

W, as in “withdrew,” for Oirya’s 2013 courses. Doc. 82-3 at 78.

On February 26, 2015, Dean Flowers informed Oirya that he had reviewed the

transcript from BYU, which showed he had been withdrawn in Spring 2013, and asked

Oirya to “explain why [he] failed to inform us in [his] application to Auburn University

about [his] attendance at BYU between 2011 and 2013” and why he had not provided the

complete transcript with his Graduate School application. Doc. 81-3 at 101; Doc. 82-7 at

6–7. Dean Flowers also asked that Oirya “explain the circumstances that lead to [his]

withdrawal from BYU in early 2013.” Id. In response, Oirya seemed to contend that he

had submitted the required transcript to the Management Department, but neither the

Graduate School nor the Department was able to corroborate his claim. Doc. 81-3 at 103;

Doc. 82-7 at 7. Oirya again suggested that he had chosen to leave BYU and made no

acknowledgment that he had been expelled:

I began contemplating my departure from BYU some years . . . . I withdrew

from BYU . . . Having experienced and having been a victim of a series of

BYUs oppressive, deceptive, hypocritical, racist, and illegal operations . . . .

it was time for me to leave BYU . . . . BYU engages in illicit activities of

hiring criminal terrorist who pose as “administrators.” These hired goons’

primary job is to witchhunt, intimidate, bully, trump-up charges against, and

terrorize students who question BYU’s illicit activities . . . It was not a

decision that instantly occurred on March 20, 2013 for me to leave BYU. My

decision was a culmination of a series of soul-searching events . . . . I left

BYU in 2013 following my disagreement and disappointment with the

university….

Doc. 81-3 at 104–05.

On February 27, 2015, Dean Flowers emailed Oirya and asked directly: “Were you

a student in good standing with BYU when you withdrew from classes in Spring 2013.”

Doc. 81-9 at 60. At this point, Oirya admitted that he “would not consider [himself] in

good standing with BYU when [he] left in 2013.” Id. Oirya attributed his lack of good

standing to “the series of BYU’s (and its sponsor Mormon sect’s) institutionalized and

systematic racism, bigotry, witch-hunting, bullying and other forms of horrible

mistreatment that were meted against me and practically all other black students.” Id.

The details surrounding Oirya’s dismissal from BYU were not, however, relevant to the

Graduate School’s inquiry, as Dean Flowers was trying to determine Oirya’s initially

eligibility for admission to Auburn. Doc. 82-7 at 8.

(6) Auburn’s Decision Concerning Eligibility

After receiving Oirya’s own confirmation that he was not in good standing at BYU,

Dean Flowers determined that Auburn must discontinue Oirya’s enrollment at Auburn

unless he could demonstrate that he was in good standing at BYU.3 Doc. 82-7 at 8. On

March 9, 2015, Dean Flowers met with Oirya to communicate that decision, and he

delivered a letter to Oirya documenting the decision. Doc. 81-3 at 108; Doc. 82-7 at 8.

The letter stated:

It appears that at the time of your withdrawal from classes at BYU (March

2013) you were not a student in good standing with that institution.

Auburn University rules require that an applicant must be in academic good

standing at the institution last attended in order to be admitted to the Graduate

School. This requirement is clearly stated in the AU Bulletin and on the AU

3 Before Auburn’s receipt of the letter from Ms. Whitaker letter, some of his graduate school colleagues

and students had complained about his behavior within the Management Department. A female graduate

student and a student both reported being uncomfortable around him. Doc. 81-1 at 199; Doc. 81-6 at 48–

50; Doc. 82-1 at 52–53; Doc. 82-5 at 8–11. In May 2014, he was placed on academic probation because

his grades fell below the 3.0 threshold. Doc. 81-1 at 202; Doc. 82-1 at 57. In January 2015, a colleague

reported his “constant muttering of the phrase ‘rape a student.’” Doc. 81-6 at 48–49; Doc. 82-5 at 11–12.

The Department Head Christopher Shook referred the matter to Auburn’s Threat Assessment Team, which

reviewed the information regarding Oirya but took no action. Doc. 82-5 at 11. In February of 2015, Dr.

Shook inquired about Oirya with BYU. Casey Peterson, a student affairs official at BYU, told Shook that

he “should be very concerned for [the] students[.]” Doc. 81-6 at 51–52; Doc. 82-5 at 12–13, 23. After

further consultation with College of Business leadership, Dr. Shook asked the University’s Threat

Assessment Team to reassess the Oirya matter, but no action was taken. Doc. 82-5 at 25, 28. While Oirya’s

admissions issues were being addressed by the Graduate School, the Department of Management relieved

Oirya of his teaching responsibilities as a graduate teaching assistant on February 22, 2015. Doc. 82-1 at

39; Doc. 82-5 at 25. He had no classroom duties but continued in his status as a graduate student and

received his stipend as a graduate assistant for the entire Spring 2015 semester. Doc. 82-1 at 39. Dean

Flowers was generally aware of but not involved in the Management Department’s activities relative to

Oirya, and the Management Department was not involved in the Graduate School’s admissions inquiry or

decision. Doc. 82-7 at 11–12.

Graduate School application web site. In addition, AU policy requires that

an applicant, as part of the application process, certify that:

I understand that withholding information request on this application,

including attendance at another institution, or giving false

information may make me ineligible for admission or subject to

dismissal.

At the time of your acceptance for graduate studies at AU, the information

regarding your standing at BYU was not provided by you. Accordingly, I

am rescinding your admission to the Auburn University Graduate School.

You will be withdrawn from your Spring 2015 semester classes and any

tuition or fees that you have paid will be refunded. Your graduate

assistantship will also end immediately since you will no longer be a graduate

student.

If you can provide any additional document to demonstrate that the above

information regarding your status at BYU is incorrect, please provide that

documentation immediately.

Id. At the March 9th meeting, Oirya indicated that he would produce documentation

demonstrating his good standing at BYU. Doc. 82-7 at 9. To give Oirya more time,

Auburn did not implement its disenrollment decision immediately. Id. On March 10,

Dean Flowers emailed Oirya asking about the status of documentation. Doc. 81-9 at 65.

On March 11, Dean Flowers emailed Oirya again reminding him that “[i]t is the

responsibility of an applicant to supply accurate and complete information. Failure to do

so is grounds for dismissal.” Doc. 81-3 at 109. Oirya responded, in part, by stating that

he “left BYU for ecclesiastical standing reasons” and that “[n]o where in Auburn

University’s policies am I required to submit to Auburn University my ‘ecclesiastical

standing’ at BYU at the time that I last attended.” Doc. 81-9 at 67. On March 13, Oirya

wrote to Dean Flowers and attached a document that, according to Oirya, demonstrated

that he was in “good academic standing” at BYU.4 Id. at 69–73. Dean Flowers responded

by stating, “The question is whether you were in good standing to return to BYU at the

time you were accepted to admission to Auburn and if not, why not.” Id. at 69. On March

23, 2015, Dean Flowers wrote to Oirya again asking for documentation of Oirya’s

eligibility to return to BYU. Id. at 76.

On March 24, 2015, Oirya emailed Auburn’s AA/EEOC office explaining that he

was filing a charge of discrimination against Dean Flowers because he was being forced to

“verify [his] religious standing” at BYU. Id. at 74. Dean Flowers, who was copied on

Oirya’s email, responded by (1) pointing out that he had never inquired about Oirya’s

religion and (2) asking Oirya whether the sole reason he could not return to BYU was

because he changed his religious beliefs. Id. Oirya’s response: “That is exactly right.” Id.

at 78.

By March 24, 2015, Oirya had not produced anything to the Graduate School

showing his eligibility to return to BYU. Doc. 82-7 at 10. By April 2015, Oirya had

engaged legal counsel, and Auburn continued to await information from him regarding his

standing at BYU and his failure to be forthcoming about that status. Id. at 11. When Oirya

still had not shown his eligibility to return to BYU by May 7, 2015, the previous decision

to discontinue Oirya’s enrollment was implemented and formally communicated to Oirya’s

attorney on May 7, 2015. Id. at 22. Auburn’s General Counsel wrote to Oirya’s attorney

stating:

4 This document from BYU states that “academic good standing” means having a minimum GPA of 2.0. Doc. 81-9

at 72.

Auburn allowed [Oirya] to finish the Spring 2015 semester despite

repeatedly missing deadlines to produce complete and accurate information

regarding his standing at BYU. However, please note that Mr. Oirya is not

permitted to register for or attend classes at Auburn again until this matter

has been resolved. We look forward to receiving the relevant records from

you so that Auburn can move forward with a determination of Mr. Oirya’s

future standing the Graduate School.

Id. Because a student must be enrolled in a degree-seeking program at Auburn and

registered for at least one course in order to be employed as a graduate teaching assistant,

Oirya became ineligible to hold a graduate assistantship at Auburn. Id. at 11–12. His last

day as a graduate assistant was May 31, 2015. Id. at 11.

(7) Oirya’s Request for a Disability Accommodation

On March 17, approximately one week after Oirya’s meeting wherein Dean Flowers

advised that his admission was being rescinded, Oirya contacted the Office of

Accessibility, which is the office that works with students who need academic

accommodations. Doc. 81-8 at 2. When requesting an accommodation, students must

submit documentation from a licensed medical professional of the diagnosis on which the

request is based, and the office will request the medical professional’s opinion as to the

student’s functional limitations and the requested accommodation. Id. at 2–3. On Oirya’s

intake form, he reported that accommodations to “extend[] my deadlines would help. I

wouldn’t mind taking ‘incomplete’ grades if that is possible.” Id. at 3, 15. When advised

that he would need documentation of a medical professionals’ diagnosis, Oirya provided

letters from on-campus counselors who had seen him on occasion for counseling, but the

letters did not provide the required diagnosis or information regarding functional

limitations. Id. at 4, 17–18. Despite never having provided the required information

concerning diagnosis and functional limitations and even though he did not ask for an

accommodation until March 17, one teacher allowed him an extra day before taking a test

that was scheduled on March 19, and two other professors granted his request for a two- to

three-week extension of time. Id. at 4–5; Doc. 82-1 at 56. After March 19, 2015, Oirya

never contacted the Office of Accessibility or took additional steps to seek

accommodations. Doc. 81-8 at 5.

(8) Oirya’s Lawsuit and EEOC Charge

Oirya filed this lawsuit on October 10, 2017. Doc. 1. He filed an EEOC Charge of

Discrimination on November 27, 2017. Doc. 81-1 at 128. In the Charge of

Discrimination, he alleged that “[o]n August 21, 2017, all Graduate Assistants were

assigned their job duties, except for me.” Id. The charge mentions nothing about being

disenrolled from school or his graduate assistantship being terminated in May 2015, and it

does not mention the fact that Oirya had no graduate school teaching duties in intervening

period between May 2015 and August 2017. Id.

IV. DISCUSSION

(A) Applicable Statutes of Limitations

Plaintiff’s Complaint, as amended, contains the following fourteen causes of action:

Count 1: Procedural Due Process

Count 2: Substantive Due Process

Count 3: Equal Protection

Count 4: Class of One

Count 5: Unauthorized Acquisition and Distribution under Title VI, IX,

and FERPA

Count 6: Title IX Deliberate Indifference

Count 7: Title VI Deliberate Indifference

Count 8: Title IX Erroneous Outcome

Count 9: Title VI Erroneous Outcome

Count 10: Title IX Selective Enforcement

Count 11: Title VI Selective Enforcement

Count 12: 1981 Discrimination

Count 13: Rehabilitation Act/Failure to Accommodate

Count 14: Title VII

Doc. 116. Defendants argue that all of Plaintiff’s claims are barred by the applicable

statutes of limitations.

(1) Constitutional, Title VI, Title IX, and Rehabilitation Act Claims

Plaintiff’s Counts 1 through 4 are constitutional claims brought pursuant to 42

U.S.C. § 1983, which are tort actions subject to the personal injury statute of limitations in

the state where brought. Flood v. City of Jacksonville, 263 F. Supp. 3d 1213, 1218 (N.D.

Ala. 2017) (quoting McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008). In Alabama,

the applicable statute of limitations is two years. Daniel v. Talladega Cty. Sheriffs’s Dep’t,

No. 1:17-CV-01076-KOB, 2018 WL 4304185, at *1 (N.D. Ala. Sept. 10, 2018) (stating

that constitutional claims brought under § 1983 are tort claims subject to Alabama’s two-

year personal injury statute of limitations). Counts 5 through 11, brought pursuant to

Titles VI and IX,5 also have a two-year statute of limitations. Hurt v. Shelby Cty. Bd. of

Educ., 198 F. Supp. 3d 1293, 1315 (N.D. Ala. 2016) (holding that Title IX and § 1983

actions were governed by Alabama’s two-year personal injury statute of limitations)

5 Count 5 also purports to bring a claim pursuant to the Family Educational Rights and Privacy Act

(FERPA); however, the Supreme Court has held there is no private right of action available under FERPA.

A.A. v. Houston Cty. Sch. Dist., No. 05-CV-107-WDO, 2006 WL 1193416, at *1 (M.D. Ga. May 4, 2006)

(citing Gonzaga University v. Doe, 536 U.S. 273, 287, 122 S.Ct. 2268 (2002)); Arrington v. Helms, 483 F.

3d 1336, 1344 (11th Cir. 2006) (stating that the Supreme Court has determined that FERPA does not contain

rights-creating language because it speaks only to the Secretary of Education); Williams v. Hillman, No.

CV 08-0081-KD-C, 2008 WL 11425746, at *9 (S.D. Ala. June 17, 2008) (recognizing that FERPA creates

no individual right of action for violation of privacy rights).

(citations omitted); Burton v. City of Belle Glade, 178 F.3d 1175, 1204 n.32 (11th Cir.

1999) (recognizing that Title VI claims are governed by the same statute of limitations as

§ 1983 claims) (citing Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir.1996)). Finally, Count

13, a failure-to-accommodate claim pursuant to the Rehabilitation Act, is also subject to a

two-year statute of limitations. Perez v. Univ. of S. Alabama, No. CV 18-528-JB-N, 2019

WL 3849164, at *1 (S.D. Ala. Aug. 15, 2019); Horsley v. University of Alabama, 564 F.

App’x 1006, 1008 (11th Cir. 2014) (applying Alabama’s two-year statute of limitations to

claims under Title II of the ADA and the Rehabilitation Act).

Although federal courts apply the law of the forum state to determine the applicable

statute of limitations, federal law determines the date on which a statute begins to run, and

the Eleventh Circuit has held that it begins to run from the date “the facts which would

support a cause of action are apparent or should be apparent to a person with a reasonably

prudent regard for his rights.” Howell v. Proctor, 136 F. App’x 267, 269 (11th Cir. 2005)

(citations omitted); see also Lovett v. Ray, 327 F.3d 1181, 1182–83 (11th Cir. 2003)

(holding that statute began to run when plaintiff was notified by the defendants in

September 1998 that he would not be reconsidered for parole until 2006); Brown v. Ga.

Bd. of Pardons & Paroles, 335 F.3d 1259, 1261 (11th Cir. 2003) (holding that statute began

to run when Georgia Parole Board informed plaintiff of date of his parole reconsideration,

which was outside the three-year maximum mandated by policy in place at the time he

committed his crime). A plaintiff must know or have reason to know that he was injured,

and he must be aware or should be aware of who inflicted the injury. Rozar, 85 F.3d at 562

(citing Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987)).

Oirya does not dispute that he was removed from his teaching assignments on

February 22, 2015; that his requests for accommodations were denied in March 2015; that

he was given notice in March of 2015 that his admission was being rescinded and his

graduate assistantship was being terminated; that he was given additional time to provide

documents proving that he was entitled to re-enter his previous institution; and that in May

2015, having provided no additional documents, Auburn informed him by letter dated May

7, 2015, that he was no longer permitted to register for classes. Thus, in May 2015, Oirya

knew he was being disenrolled, knew he would not be allowed to register for classes again,

and knew his graduate teaching position was being terminated. In other words, he knew

he was injured, and he knew who inflicted the injury. Because Plaintiff waited more than

two years after learning of Auburn’s decision to file this lawsuit in October of 2017, his

constitutional claims and Title VI and IX claims are time-barred. With respect to his

failure-to-accommodate claim, the alleged discriminatory action took place even earlier, as

it is undisputed that he made the accommodation request on March 17, 2015, that two

teachers granted his request for a two- or three-week extension, that one teacher gave him

an additional day to take a test on March 19, and that he took no additional steps to seek

accommodations after March 19, 2015.6

Accordingly, Counts 1 through 11 and Count 13, all of which are subject to a two-

year statute of limitations, are barred.

6 The Plaintiff offers no explanation or argument as to why the statute of limitations does not bar his

Rehabilitation claim. As explained below with regard to his other claims, he argues that his “discovery”

of Auburn’s revised “good standing” policy in August 2017 tolled the statute of limitations. However, that

admissions policy has no bearing on any alleged failure to accommodate a request under the Rehabilitation

Act. In his statute of limitations argument, he does not even mention his failure-to-accommodate claim.

(2) Plaintiff’s Discovery Rule and Continuing Tort Arguments

Plaintiff does not dispute in his brief that the above claims are subject to a two-year

statute of limitations. Instead, he argues that all of the applicable statutes of limitation

were tolled by the discovery rule and the continuing tort doctrine. Doc. 99 at 34–36. Both

arguments are unavailing.

(a) Discovery Rule

Plaintiff cites Therrell v. Georgia Marble Holdings Corp. in support of his

discovery rule argument, but that case holds that Georgia’s discovery rule does not apply

to conversion claims. 960 F.2d 1555, 1561 (11th Cir. 1992). He also cites Trawinski v.

United Technologies, but that case, which involved the installation of an allegedly

defective heating and air conditioning unit, holds that the discovery rule, “which might be

applicable to statutes of limitations in state tort actions, has no place in a proceeding to

enforce a civil penalty under a federal statute” and that the “statute of limitations begins to

run with the violation itself [the installation], not the discovery of harm [several years later

when the owners discovered the defect].” 313 F.2d 1295, 1298 (11th Cir. 2002). In short,

neither case cited by the Plaintiff supports his argument that Alabama’s discovery rule

applies to this case.

In fact, Alabama’s discovery rule applies only to fraud actions and cases involving

the fraudulent concealment of the existence of a cause of action. Ala. Code § 6–2–3 (1975);

Utilities Bd. of City of Opp v. Shuler Bros., 138 So. 3d 287, 293 (Ala. 2013) (citing DGB,

LLC v. Hinds, 55 So. 3d 218, 225 (Ala. 2010)); Hurt v. Shelby Co. Bd. of Ed., 198 F. Supp.

3d 1293 (N.D. Ala. 2016) (holding that Title IX and 1983 claims were governed by

Alabama’s two-year personal injury statute of limitations and that the discovery rule did

not apply to that statute). In an attempt to interject fraud into this case in order to save his

claims, Plaintiff claims he was expelled and terminated under a “fraudulent” policy enacted

by Auburn, referring to Auburn’s removal of the word “academic” from its good standing

policy, and that he did not discover this “newly invented Fraudulent Policy” until August

2017. Doc. 99 at 21, 35. Specifically, he claims he was in “academic good standing” at

BYU because BYU defined that term as having a GPA of 2.0 or higher,7 making no other

inquiry regarding his “standing” at BYU necessary, and that Auburn’s revision of its policy

was somehow fraudulent. Doc. 99 at 15. There are two problems with this argument.

First, the undisputed facts show that Auburn did not change the policy; it merely

changed the wording of the policy to reflect how it was actually applied. Despite

Plaintiff’s constant labeling of the policy as “fraudulent,” he has failed to allege a fraud

claim against Defendants, failed to include any analysis of the requirements of a fraud

claim, presented no evidence of any type of fraudulent intent or conduct by Defendants,

and failed to explain why Auburn should be prohibited from revising its policies. He has

offered nothing to refute Auburn’s evidence that its good standing policy requires all

graduate students to be eligible to re-enter their previous institutions, that the policy has

been consistently applied to all graduate students, and that the terms “academic good

standing” and “good standing” are interchangeable with no distinction at Auburn. To be

sure, Plaintiff argues that these two words have very different meanings, but he has offered

7 Plaintiff offers no explanation as to why he concludes that BYU’s interpretation of the term “academic

good standing” dictates Auburn’s interpretation of that term or admission requirements.

no credible facts or legal theory suggesting that they have ever had different meanings at

Auburn. It is undisputed that Auburn requires a graduate student to be eligible to re-enter

a previous institution, and the change in wording did not alter that policy.

Plaintiff’s only attempt at distinguishing between Auburn’s use of “academic good

standing” and “good standing” is an excerpt from a document he failed to file with the

Court. He included the excerpt in the body of his brief, as follows:

“Only grades in Auburn University courses approved for graduate credit will

be used in determining the overall GPA for continuation in the Graduate

School…. [A student must] … have a CGGPA [cumulative graduate GPA]

of 3.0 or above … [to be considered in academic good standing at Auburn].

Because the document was not submitted with Plaintiff’s evidentiary materials, the Court

cannot determine how the policy actually reads. The purported limitation on the term

“academic good standing” is Plaintiff’s own bracketed language. Further, even as written

above, the paragraph does not support a conclusion that Auburn’s definition of “academic

good standing” is based solely on a calculation of a student’s GPA. As written, the above

policy establishes only that a student’s GPA calculation for continuation in the Graduate

School will be based on classes taken at Auburn. It does not appear to relate to admissions,

and it certainly does not limit the term “academic good standing” to a mere GPA

calculation for purposes of admission. Plaintiff was permanently expelled from BYU for

plagiarism, sexual harassment, and submission of fraudulent documents. Under

Plaintiff’s theory, a student could brazenly cheat on a final exam at another university, get

caught, and get expelled, yet he would still meet Auburn’s admission requirements as long

as he cheated successfully and kept his GPA above a certain number. Even if this

argument were rational, the fact remains that Plaintiff can present no evidence showing

that Auburn has ever limited its application of the “academic good standing” policy to a

GPA calculation.

Second, even if this Court were to accept Plaintiff’s argument that revising its policy

was fraudulent, the discovery rule would not apply. Plaintiff conveniently ignores the

fact, at the time his admission was rescinded, he knew it was based on his lack of “good

standing” and ineligibility to return to BYU. Dean Flowers’ correspondence with Oirya

clearly communicated this. Oirya also knew that Auburn’s policy contained the phrase

“academic good standing” as opposed to “good standing,” and he had even drawn a

distinction in his own mind between these two terms, arguing to Dean Flowers that he met

the requirement of “academic good standing” because of his GPA at BYU. In March

2015 and, at the very latest, on May 7, 2015, Plaintiff knew that Auburn’s policy stated

“academic good standing” but that he was being disenrolled and terminated for what Dean

Flowers called a lack of “good standing.” Thus, Plaintiff cannot possibly argue in good

faith that a “stunning discovery” in August of 2017 made him aware of any new facts

giving rise to his claims. He knew on May 7, 2017, that he had been disenrolled and

terminated, he knew who did it, and he knew why. Alabama’s discovery rule does not

apply in this case.

(b) Continuing Tort Doctrine

Plaintiff also argues that his claims are not time-barred because Defendants’ actions

are a continuing tort. He points to a letter dated October 22, 2015, from Auburn’s general

counsel to Plaintiff’s attorney. Doc. 99 at 6. The letter was written in response to

Plaintiff’s attorney’s request for information. Doc. 102-1 at 2. As Oirya points out, the

letter states, “[A] final decision has not been made regarding Mr. Oirya’s status,” and Oirya

argues this statement illustrates that Defendants’ alleged tortious conduct is continuing.

However, Plaintiff omitted a large portion of the letter from his brief. The letter continues

as follows:

After Dr. Flowers sent the March 5 letter to Mr. Oirya, Mr. Oirya indicated

that he could provide documentation that clarified his status at BYU, and

Dr. Flowers granted Mr. Oirya time to do so. After a month had passed

without Mr. Oirya providing any relevant documentation, Auburn received a

letter from you on April 6 indicating that Mr. Oirya was working with BYU

to correct his records and asking that AU not take any adversarial action

regarding Mr. Oirya’s standing at Auburn until Mr. Oirya had a chance to do

so. Accordingly, in good faith, Auburn allowed Mr. Oirya to complete the

Spring 2015 semester. However, when Auburn still had not received any

new information from you or Mr. Oirya by May 7, Auburn informed you that

Mr. Oirya could not enroll for upcoming classes and that a final decision

regarding his status at Auburn would be made once he provided the promised

documentation. It has been several months since Mr. Oirya first promised to

provide clarifying documentation to Auburn from BYU, and we have yet to

receive that information.

Doc. 102-1 at 2. According to Plaintiff, this letter proves that Auburn’s “tortuous conduct

against Oirya that continues to deprive him of access to his education and employment at

Auburn has not ceased, and will not cease until Auburn renders its anticipated ‘final

decision.’” Doc. 99 at 36.

However, the fact that Plaintiff has an open-ended invitation to submit documents

proving that he is eligible to return to BYU so that he can one day re-apply for admission

to Auburn does not save his claims. As a practical matter, assuming for the sake of

argument that Oirya could somehow restore his eligibility to re-enter BYU, he could wait

years before providing Auburn with that information and seeking readmission. Under

Plaintiff’s theory, a final decision cannot be made until he submits additional documents

and Auburn makes a decision based on those documents. This argument ignores the

purpose of a statute of limitations and case law on the issue. See Delaware State College

v. Ricks, 449 U.S. 250, 261 (1980) (determining that the statute of limitations began to run

when decision denying tenure was made and communicated to plaintiff and that pendency

of grievance or method of collateral review did not toll running of the limitations periods);

Bloom v. Alvereze, 498 F. App’x 867, 874 (11th Cir. 2012) (“In determining whether a

violation is continuing, we distinguish single, discrete acts from charges of continuously

maintained illegal policies…. The Blooms’ claims are akin to an employee being

improperly terminated due to his race and not being returned to his position—which would

not be a continuing tort.”); Coates v. Natale, 409 F. App’x 238, 240 (11th Cir. 2010)

(stating that student’s claim accrued when she learned of the defendants’ decision to expel

her from college); Perez v. Univ. of S. Ala., No. 18-CV-528-JB-N, 2019 WL 3849164, at

*2 (S.D. Ala. Aug. 15, 2019) (holding that plaintiff’s ADA and Rehabilitation Act claims

accrued on the date he was dismissed from graduate program and that institutional

grievances or subsequent investigations did not toll statute of limitations, as plaintiff knew

at the time of dismissal that he was injured and who inflicted the injury); Muckle v. UNCF,

930 F. Supp. 2d 1355, 1359 (N.D. Ga. 2012) (holding that termination of plaintiff’s

scholarship was discrete act and not a continuous tort).

These cases are consistent with numerous rulings from federal courts in other

jurisdictions as well. See Boatright v. Am. Acad. of Actuaries, 208 F.3d 212 (6th Cir. 2000)

(stating that statute of limitations began to run upon receipt of certified letter notifying

plaintiff of his expulsion from organization and ability to appeal or overturn decision did

not toll statute of limitations); Kasemeier v. Indiana Univ., 99 F.3d 1142 (7th Cir. 1996)

(determining that statute of limitations began to run when university informed plaintiff by

letter that student status was “terminated” and he was ineligible to enroll in courses, not

upon denial of application for readmission, as that would create a “black hole” where

plaintiff could obtain a fresh limitations period with each new application for readmission);

Soignier v. Am. Bd. Of Plastic Surgery, 92 F.3d 547, 551–52 (7th Cir. 1996) (holding that

statute of limitations began to run when plastic surgeon’s accommodation request to take

boards was denied, not when an internal appeal was denied, noting that it is the “discovery

of the original act of discrimination, not future confirmation of the injury or determination

that the injury is unlawful” that triggers statute of limitations, as a refusal to undo

discrimination is not a fresh act of discrimination) (emphasis in original); Davis v. La. State

Univ., 876 F.2d 412, 413 (5th Cir. 1989) (holding that student’s claim accrued when she

was expelled and barred from campus and that she could not evade prescriptive period by

contending that university’s actions amounted to continuing tort) (citing Taylor v. Bunge

Corp., 775 F.2d 617, 619 (5th Cir. 1985) (“termination of employment either through

discharge or resignation is not a ‘continuing’ violation because the individual ceases to be

an employee on the date of his discharge and all of his legal claims mature at the time”));

Tolliver v. Prairie View A&M, Univ., No. 18-CV-1192, 2018 WL 4701571, at *2 (S.D.

Tex. Oct. 1, 2018) (stating that student’s request to overturn an expulsion did not delay

accrual of his claims, as claims accrued when he knew he was expelled, grounds for the

expulsion, and procedure that was followed); Gauer v. Gallaudet Univ., 915 F.Supp.2d 145

(D.D.C. 2013) (holding that statute began to run when professor received notice of

university’s decision not to renew his position or promote him, not the effective date of the

non-renewal decision, as plaintiff knew when he received notification letter that his

contract would not be renewed and he would not be promoted); Cordova v. Univ. of Notre

Dame Du Lac, 936 F. Supp. 2d 1003, 1012–13 (N.D. Ind. 2013) (stating that plaintiff knew

of university’s conduct when she was instructed to vacate her residence and notified that

she was no longer a student and that internal appeal process did not toll running of statute

of limitations); LaPiccolo v. Am. Univ., 840 F. Supp. 2d 71, 77 (D.D.C. 2012) (finding that

statute of limitations began to run when student was notified that athletic scholarship would

not be renewed for following academic year although aid was to be continued through end

of current semester); and Allison v. Howard Univ., 209 F. Supp. 2d 55, 60 (D.D.C. 2002)

(holding that statute began to run when defendants’ formal decision regarding expulsion

was made and communicated to plaintiff and review of that decision did not toll the statute

of limitations).

Here, Oirya was unequivocally notified by the May 7, 2015, letter of Auburn’s

decision to rescind his admission and terminate his graduate assistantship. As of the end

of May 2015, he was no longer enrolled at Auburn, and he was no longer employed by

Auburn. Under the case law cited above, the statute of limitations on his claims began to

run on May 7, 2015, and Auburn’s willingness to review that decision and allow him to re-

apply if ever submits documentation showing his eligibility to re-enter BYU does not

convert any of his claims into a continuing tort.

For these reasons, neither the discovery rule nor the continuing tort doctrine applies

to Plaintiff’s claims. Plaintiff did not file his Complaint until October 10, 2017, so his

constitutional claims, Title VI and Title IX claims, and Rehabilitation Act claim are all

barred by a two-year statute of limitations, leaving only his Title VII and § 1981 claim.

(3) Title VII Claim

Before a plaintiff may bring suit under Title VII, he must first file a charge of

discrimination with the EEOC within 180 days of his employer’s last discriminatory act.

Spears v. KMG Enter., Inc., No. 18-CV-01548, 2019 WL 121273, at *2 (N.D. Ala. Jan. 7,

2019), appeal dismissed, No. 19-10490-D, 2019 WL 2123248 (11th Cir. Apr. 4, 2019)

(citing H&R Block E. Enter., Inc. v. Morris, 606 F.3d 1285, 1295 (11th Cir. 2010)). If a

plaintiff fails to file an EEOC charge within 180 days, the court must dismiss a Title VII

claim for failure to timely exhaust administrative remedies. Id.

The undisputed facts in this case show that Oirya filed his EEOC charge on

November 27, 2017. Doc. 81-1 at 128; Doc. 82-1 at 29. In that charge, he alleged that

Auburn had failed to assign him any graduate teaching positions due to his not being in

“good standing” with BYU. Id. Oirya identifies the date of the alleged adverse action as

August 21, 2017. Id. However, as set forth above and undisputed by Plaintiff, he was

actually removed from his teaching assignments on February 22, 2015; he was disenrolled

as of May 2015; and, because he was no longer enrolled, his graduate assistantship was

terminated as of May 31, 2015. Although Plaintiff claims that he did not discover

Auburn’s alleged discriminatory conduct until August 2017, the fact that he filed a

discrimination charge with Auburn’s AA/EEO office on March 15, 2013, belies this claim.

He filed that charge eight days after he received the letter revoking his admission and

ending his graduate assistantship, and he raised the “good standing” issue in that claim. It

is completely disingenuous to claim now that he was unaware of any allegedly

discriminatory conduct until August 2017. For the same reasons stated above, the

discovery rule does not apply, and the time for filing his EEOC charge began to run when

the alleged discrimination occurred. Ricks, 449 U.S. at 258 (holding that the only alleged

discrimination occurred–and the filing limitations periods therefore commenced–at the

time the tenure decision was made and communicated to plaintiff, even though one of the

effects of the denial of tenure–the eventual loss of a teaching position–did not occur until

later); Grayson v. K Mart Corp., 79 F.3d 1086, 1100 n.19 (11th Cir. 1996) (stating that

time for filing an EEOC charge begins to run when employee receives unequivocal notice

of adverse employment decision); Wen Liu v. Univ. of Miami Sch. of Med., 693 F. App’x

793, 797 (11th Cir. 2017), cert. denied sub nom. Liu v. Univ. of Miami Sch. of Med., 139

S. Ct. 229 (2018), reh'g denied sub nom. Wen Liu v. Univ. of Miami Sch. of Med., 139 S.

Ct. 937 (2019) (holding that time for filing EEOC charge began when teacher received

notice that employment was terminated even though the effective date of termination was

twelve months later). Again, Oirya received unequivocal notice on May 7, 2015, that his

employment was terminated. A charge of discrimination must be filed with the EEOC

within 180 days of an employer’s last discriminatory act, but Oirya waited two-and-a-half

years to file his charge. Thus, the charge was untimely, and his Title VII claim is barred

for failure to exhaust administrative remedies.

(4) § 1981 Claim

Defendants argue that a two-year statute of limitations applies to Plaintiff’s § 1981

claim, relying on Grimes v. Bd. of Regents of Univ. Sys. of Ga, 650 F. App’x 647, 651 (11th

Cir. 2016). In that case, the Court explained the statute of limitations for § 1981 cases:

Prior to 1991, we applied “the most appropriate or analogous state statute of

limitations” to claims brought under § 1981. See Jones v. R.R. Donnelley &

Sons Co., 541 U.S. 369, 371, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004)….

Congress has since enacted 28 U.S.C. § 1658, which provides a four-year

statute of limitations for civil actions arising under federal statutes enacted

after December 1, 1990. 28 U.S.C. § 1658(a); see also Jones, 541 U.S. at

371–72, 124 S.Ct. 1836. In 1991, Congress amended § 1981 to broaden the

definition of the term “make and enforce contracts.” Jones, 541 U.S. at 373,

124 S.Ct. 1836 (quoting 42 U.S.C. § 1981(b)). Whereas prior to 1991 this

phrase referred narrowly to “discrimination in the making and enforcement

of contracts alone,” Patterson v. McLean Credit Union, 491 U.S. 164, 176,

109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (internal quotation marks omitted

and alterations adopted), after the 1991 amendment, the statute also covered

post-formation conduct, such as the imposition of discriminatory working

conditions. See 42 U.S.C. § 1981(b) (defining the phrase “make and enforce

contracts” to include “the enjoyment of all benefits, privileges, terms, and

conditions of the contractual relationship”); Jones, 541 U.S. at 373, 124 S.Ct.

1836. Thus, we apply a four-year statute of limitations to any § 1981 claim

that is cognizable only because of the 1991 amendment and otherwise apply

the analogous state statute of limitations. Jones, 541 U.S. at 382–83, 124

S.Ct. 1836.

The Court held that the plaintiff’s failure-to-admit claim fell within the pre-amendment

version of § 1981 because her claim challenged discrimination in the formation of a

contract (for graduate admission). Defendants here argue that, because Auburn

determined Plaintiff never met the requirements for admission, his § 1981 claim also

challenges the formation of a contract. Surprisingly, Plaintiff does not dispute this

argument in his response, but the Court nonetheless finds that Grimes is distinguishable

from the instant case. Unlike Grimes, Plaintiff was admitted to the Graduate School,

allowed to enroll in courses, took courses for over a year, and allowed to teach classes as a

graduate assistant for more than a year. Accordingly, because Plaintiff was allowed to

enroll and begin his position as a graduate assistant, as opposed to being denied admission

and employment, the Court finds that his claims are governed by the four-year statute of

limitations applies to this claim. See Baker v. Birmingham Bd. of Educ., 531 F.3d 1336,

1338 (11th Cir. 2008) (holding that four-year statute of limitations applied to terminated

elementary teacher’s § 1981 claims); Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369,

384 (2004) (finding that the 1991 Act defined the key “make and enforce contracts”

language in 42 U.S.C. § 1981 to include the “termination of contracts, and the enjoyment

of all benefits, privileges, terms, and conditions of the contractual relationship” and that

four-year statute of limitations applied to employee’s claims of wrongful termination).

For these reasons, the Court finds that the four-year statute of limitations applies to Oirya’s

§ 1981 claim and that it was timely filed.

(B) Merits of Plaintiff’s § 1981 Claims

Plaintiff’s only remaining claim is his § 1981 claim. To survive summary

judgment in a § 1981 intentional discrimination claim, a plaintiff must make a sufficient

factual showing to permit a reasonable jury to rule in his favor. Lewis v. City of Union City,

Ga., 918 F.3d 1213, 1217 (11th Cir. 2019). The burden-shifting framework in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973) applies to § 1981 racial discrimination claims

relying on circumstantial evidence. Spears, 2019 WL 121273 at *2–3 (citing Rice-Lamar

v. City of Ft. Lauderdale, Fla., 232 F.3d 836, 843 n.11 (11th Cir. 2000)). Under that

framework, a plaintiff bears the initial burden of establishing a prima facie case of

discrimination by showing he was treated differently from another “similarly situated”

individual. Lewis, 918 F.3d at 1217 (citations omitted).

While Plaintiff seems to be generally aware of a requirement that he must identify

a similarly situated comparator, any understanding of the requirements for establishing a

valid comparator ends there. His arguments concerning valid comparators are devoid of

any meaningful factual or legal analysis. First, he identifies his comparators as thirteen

students enrolled in the Ph.D. program in January 2014, stating that they were “Caucasian

males and female, of American and Russian origin, and all non-Kenyan. Oirya was the

only Black African male from Kenya, in the PhD program in Management at Auburn

during the relevant time period.” Doc. 99 at 12. He then argues they were comparators

because they were Ph.D. students who held graduate assistantship employment and were

“equally in ‘academic good standing’ at their previous institutions.” Id. at 42–43, 55–56.

He later asserts that all the students “who jointly applied to the PhD program with him

during 2012 and 2013 [were granted] timely transcript audits, but [Auburn] denied the

same to Oirya.”8 In the declaration he filed with this brief, Oirya states the other Ph.D

students were “similarly situated in practically every respect, in relation to their

applications to, admission to[,] and enrollment at Auburn, to wit: Their admissions offer

letters to Auburn had practically the same terms and conditions;9 they had the same student

8 Plaintiff seems to be arguing that Auburn is guilty of discrimination because it did not discover sooner

that he concealed his final transcript and hid his expulsion from BYU for plagiarism, sexual harassment,

and submitting false documents. Although the wisdom of making such an argument seems questionable,

the Court notes that he offered no evidence showing when other students’ transcripts were audited.

9 Oirya does not explain how he gained personal knowledge of the other students’ admission offer letters,

and he did not submit copies of these letters to the Court.

status as doctoral students; were employed as graduate assistants; and taking the same core

and required courses as me in the same Ph.D. program.”

The statements in the above paragraph comprise Plaintiff’s entire argument, pieced

together from different sections of his brief, concerning similarly situated comparators for

purposes of his § 1981 claim. This falls far short of what is required to establish a valid

comparator. The Eleventh Circuit recently held that a plaintiff asserting an intentional-

discrimination claim under McDonnell Douglas must demonstrate that proffered

comparators are “similarly situated in all material respects,”10 and it must be done at the

prima facie stage of the McDonnel Douglas burden-shifting framework, not at the pretext

stage. Lewis, 918 F.3d at 1218.

In Lewis, an African-American female police officer who had previously suffered a

heart attack was restricted by her doctor from being near pepper spray or a Taser. Id. at

1219. She was placed on unpaid administrative leave and instructed to complete FMLA

paperwork for her absence. Id. When she exhausted her accrued leave in a few weeks but

still had not turned in her FMLA paperwork, her absence was deemed “unapproved,” and

she was terminated. Id. As comparators, she identified (1) a white male who was given

90 days of unpaid administrative leave after he failed a portion of a physical fitness exam,

during which time he passed the test, and (2) a white male who was given 90 days of unpaid

administrative leave after he failed the agility test but who was eventually terminated after

449 days on unpaid administrative leave. The Eleventh Circuit stated that plaintiff’s

10 In adopting this standard, the Court stated that it is neither the plain-old “same or similar” or “nearly

identical” standard, as past cases Eleventh Circuit cases “discordantly suggested,” nor the Seventh Circuit’s

so-long-as-the-comparison-isn’t-useless test. Lewis, 918 F.3d at 1218.

“broad-brush summary glosses over critical differences” in the other employees,

specifically, that plaintiff and her comparators were placed on leave years apart, pursuant

to altogether different personnel policies, and for altogether different conditions. Id. at

1229. As a result, the officers were not similar in all material respects and were not valid

comparators. Id.

As in Lewis, Oirya glosses over the critical differences between the other Ph.D.

students and himself. Oirya was disenrolled and terminated because Auburn discovered

that he failed to submit an accurate and complete transcript from BYU and was prohibited

from re-entering BYU. Plaintiff fails to mention this critical difference in his discussion

on comparators. He has not identified a single comparator who failed to submit complete

transcripts and was ineligible to return to his or her previous institution but was treated

differently by Defendants. Instead, he argues that his comparators are similarly situated

in ways that have nothing to do with the reason he was disenrolled or terminated. Oirya’s

argument is the equivalent of saying that an employee terminated for misconduct is

similarly situated to all the other employees simply because they were hired at the same

time, had the same job title, and performed the same duties. That type of comparison

ignores the point of identifying a similarly-situated comparator: finding someone who did

the same thing but was treated differently so as to justifiably give rise to an inference of

discrimination.

Absent a qualitative comparison at the prima facie stage—i.e., without

determining whether the employer treated like cases differently—there’s no

way of knowing (or even inferring) that discrimination is afoot. Think about

it: Every qualified minority employee who gets fired, for instance,

necessarily satisfies the first three prongs of the traditional prima facie case.

But that employee could have been terminated because she was chronically

late, because she had a foul mouth, or for any of a number of other

nondiscriminatory reasons. It is only by demonstrating that her employer has

treated “like” employees “differently”—i.e., through an assessment of

comparators—that a plaintiff can supply the missing link and provide a valid

basis for inferring unlawful discrimination.

Lewis, 918 F.3d at 1223.

[A] similarly situated comparator will have engaged in the same basic

conduct or misconduct as the plaintiff, will have been subject to the same

employment policy, guideline, or rule as the plaintiff, will ordinarily have

been under the jurisdiction of the same supervisor as the plaintiff, and will

share the plaintiff’s employment or disciplinary history. [Lewis, 918 F.3d] at

1227–28. A valid comparison turns “not on formal labels, but rather on

substantive likenesses.” Id. at 1228. “An employer is well within its rights

to accord different treatment to employees who are differently situated in

‘material respects’—e.g., who engaged in different conduct, who were

subject to different policies, or who have different work histories.” Id.

Menefee v. Sanders Lead Co., Inc., No. 19-10433, 2019 WL 4466857, at *3–4 (11th Cir.

Sept. 18, 2019) (finding that plaintiff failed to show that comparators were similarly

situated in all material respects, in part because they did not engage in the same type of

behavior). Because Plaintiff has not identified a single comparator who engaged in the

same basic conduct or misconduct but was treated differently, he has failed to identify a

valid comparator who is similarly situated in all material respects, and he cannot establish

a prima facie case of intentional discrimination under § 1981.

V. CONCLUSION

For all of the above reasons, it is hereby

ORDERED that Defendants’ Motion for Summary Judgment (Doc. 79) is

GRANTED.

Done this 2nd day of October, 2019.

/s/ Wallace Capel, Jr.

WALLACE CAPEL, JR.

CHIEF UNITED STATES MAGISTRATE JUDGE