Petition for Writ of Certiorari — Al-Marayati v. University of Toledo
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1 ——
Susreme Court, US,
89-975 \ FILED
. ”~ ‘ft DEC 20 1989
Case No. —— tf JOSEPH F. SPAN'OL, JR,
CLERK
In The
Supreme Court of the United States
October Term, 1989
ity
MS
ABID A. AL-MARAYATI
PETITIONER
Ws
UNIVERSITY OF TOLEDO,
GEEN DRISCOLL,
KARL VEZNER,
and
SHARRON E. DOERNER
RESPONDENTS
anf'%
—
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
Ly
Vv
Francis J. Landry of
WASSERMAN, BRYAN, LANDRY & HONOLD
300 Inns of Court Bldg.
405 N. Huron Street
Toledo, Ohio 43604
Telephone: (419) 243-1239
Counsel of Record for Petitioner
i
I. QUESTIONS PRESENTED BY PETITION FOR
WRIT OF CERTIORARI:
. Whether a tenured professor of a state university
may amend his complaint which was originally
cast seeking relief pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. Section 2000 (e) et seq.,
in order to re-cast the complaint as one seeking
relief in part against university officials under 42
U.S.C. Section 1983 in their individual capacities
for damages when said amendment was sought
two years and one (1) day after the filing of the
original complaint.
. Whether in a case arising out of Ohio, claims
rFrought pursuant to 42 U.S.C. Section 1983 are
properly governed by the residual four year
personal injury statute of limitations contained in
Ohio Revised Code Section 2305.09 in light of this
Court's previous opinion in Owens v. Okure,
USS. , 109 S.Ct. 573 (1989), and whether The
United States Court of Appeals for the Sixth
Circuit has in Browning v. Pendleton, 86 F.2d 989
(6th Cir. 1989) misapplied a two year statute of
limitations for actions brought pursuant to 42
U.S.C. Section 1983 in Ohio.
. Whether a tenured professor of a state university
may amend his complaint which was originally
cast seeking relief pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. Section 2000 (e) et seq.,
in order to re-cast the complaint as one seeking in
part prospective injunctive relief against a state
university and university officials acting in their
official capacities despite claims that said claims
were barred under the Eleventh Amendment to
the United States Constitution.
ii
D. Whether a District Court, in finding that claims
sought to be alleged by a tenured professor of a
state university are barred by the Eleventh
Amendment to the United States Constitution
under the principle of Sovereign Immunity is
required to analyze relevant factors relating to its
Sovereign Immunity finding and to examine
whether the particular state has consented to suit
and thus waived its claim to Sovereign Immunity
and whether said district court's failure to do so
constitutes grounds for a remand.
E. Whether a state university and/or university
officials, in reprimanding a tenured professor for
objecting in a memorandum to the promotion of
a fellow faculty member on the basis, in part, of
said fellow faculty member's civil rights record
constitutes a retaliatory act in violation of Section
704 (a) of Title VII of the Civil Rights Act of 1964
notwithstanding claims by the state university and
its officials that said tenured professor's conduct
was disruptive.
lil
PARTIES TO PROCEEDINGS BELOW
Professor Abid A. Al-Marayati, plaintiff-appellant
below and petitioner herein is and has been since
1968 a member of the Department of Political Science
of the University of Toledo. Dr. Al-Marayati, a
former Departmental Chairman and a tenured full
professor is a resident of Toledo, Ohio. His country of
national origin is Iraq and he is a Shiite Muslim in
his religious beliefs.
The defendant-appellee, University of Toledo, is a
part of the Ohio State University system and was Dr.
Al-Marayati's employer since 1968. Glen Driscoll, at
the time of the filing of Dr. Al-Marayati's original
complaint, was the president of the University of
Toledo. Dr. Karl Vezner was an employee of the
University of Toledo and then chairman of the
Department of Political Science. Dr. Sharron Doerner
was at the time of the filing of Dr. Al-Marayati's
original complaint, a member of the Political Science
Department of the University of Toledo and a former
Chairman of the Department of Political Science.
iv
TABLE OF CONTENTS
Page
Cousens PE itcctcn sets nnensinnelisinniniinncstinnenmnivinninnnes i
Parties to Proceedings Below...........sssssssenesneneneeees iii
Tebe OF Anti oiicnccecinccncnsncescsepsosepsosennascssoneanvoeversnees v
Petition for Writ of Certiorari to the United
States Court of Appeals for the Sixth Circuit................ 1
Opinions Below................cccescsscssseeeccsnserenenssesessessosscossecess 1
Statement of Jurisdictional Groumnd6...............scccseeeeeees 2
Statutory Provisions Involved ...........:ssseseeeseseseseneseees 3
Senbermesit OF COaG0........00secerscsscrovssccerecancoccscnsesevesssocenaseoosconte 3
Reasons for Granting the Wit...........ccssssssceseneeeeeeees 6
ro eanseseiiienniaaabinennliaa 16
Vv
TABLE OF AUTHORITIES
CASES: Page
Ainsworth v. Aristocrat International Pty.
United v. Tourism Company of the Common-
wealth of Puerto Rico, 818 F.2d 1034
CRE GR RI eshapeniinsiastintccnticnnichtinescenrieamasinevicnnscemneenan 15
Amer v. Akron City Hospital, (1976) 47 Ohio
Fe Ry 8 POM: SEP ecnentnisinnriancataileanninnninmnnenie 12
Berndt v. State of Tennessee and Lakeshore
Mental Health Institute, 796 F.2d 879
ae ae deeninentonesininessensinsineespiitalttiaianninieaiee 9
Bowling v. Brendamour’s, Inc., 40 Ohio App.
3d 37 (Ct. App. Hamilton Cty. 1988) .......c:cceeeeee 12
Browning v. Pendleton, 869 F.2d 989
GO GOP... SED eesctecnshenenpiviiicinshiennmnsthinrnninnisnenemncniiinnn 11
Clark v. Beville, 730 F.2d 739 (11th Cir. 1984)............... 9
Clark v. Tarrant County, 798 F.2d 736
I. Fe iciciensiriesspnnininitesinieniceasatinenicennieiaieneinimeisunnn 14
Ex parte Young, 209 U.S. 123 (1908) .........cccsesesssesseeseeees 12
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)........ssseseseeees 15
Florida Dept. of Health and Rehabilitation
Services v. Florida Nursing Home
Association, 450 U.S. 147 (1981)........cscsseseeseeseeeees 15
Greenwood v. Ross, 778 F.2d 448 (8th Cir. 1985)....13,14
vi
TABLE OF AUTHORITIES - continued
Harlow v. Fitzgerald, 457 U.S. 800 (1987) ..........ssceceseee 9
Kashari v. Purdue University, 813 F.2d 843
CFOs COP, TRG PP ccnserenissnitininninvinaeiatitnbibiibitamnniiannnniteinmnen 13
Kovats v. Rutgers, 822 F.2d 1303 (3rd. Cir. 1987)......... 15
Merritt v. Mackey, 827 F.2d 1368 (9th Circ. 1987).......... 9
O'Connor v. Donaldson, 422 U.S. 563 (1975)....-....0000+ 9
Owens v. Okure, US. , 109 S.Ct.
BFS CRIED eevevrnnsnniinenneninnbanaeniia 10, 11, 12
Procunier v. Nabarette, 434 U.S. 555 (1970)... 9
Scheuer v. Rhodes, 416 U.S. 232 (1974).....scsscsseesseeseeeeees 9
Thomas v. Columbus, 39 Ohio App. 3d. 53, 528
N.E. 1274 (Ct. App. Franklin Cty. 1974)........0:s00+ 12
Will v. Michigan Department of State Police,
US. , 109 S.Ct. 2304 (1989)... 8,12
OHIO REVISED CODE Pages
I Te eisctststinsticnsansisscinihinciasamnipanaionamicianitaad one ae
I en sarensincrselintesshieiibiicatiianaanardaaienaniadiaaal 11,12
Baca GEIST CAG) wo cercecesessscernnntsiirennnnnniennninas 15
OCU GEES. DD ener csccenesentnternensncnrecnannennsrensineniienannniisaibttslasions 15
vii
TABLE OF AUTHORITIES - continued
UNITED STATES CODE Pages
SP aes IE TIED TOD sc cccscssccecnannarsceceniaeseecnconennnsesnnes 2
GS A ,, BIEN BI as ineissensecrsncsscrsoscescernsers 3, 7, 10, 12, 13
42 US.C. Sections 2000 (€) et Seq. ..........ccceesseceeesees 3, 6,7
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Petitioner, Abid A. Al-Marayati, respectfully prays
that a writ of certiorari issue to review the judgment
and opinion of the United States Court of Appeals for
the Sixth Circuit entered in this matter on August 29,
1989. On September 22, 1989, the United States Court
of Appeals for the Sixth Circuit denied Petitioner's
Petition for rehearing which had been timely filed on
September 12, 1989.
6
OPINIONS BELOW
The August 29, 1989 opinion of the United States
Court of Appeals for the Sixth Circuit, whose
judgment herein is sought to be reviewed was not
recommended for publication in accordance with the
Sixth Circuit's Local Rules. The decision is
represented in the Separate Appendix to this petition
at Appendix A, pp. Al to Al5. The prior opinion of
the United States District Court for the Northern
District of Ohio, Western Division, also reprinted in
Appendix B at pp. Al6 to A32, is an unreported
decision. Interlocutory orders of the United States
District Court for the Northern District of Ohio,
Western Division have been set forth at Appendix D,
1
2
at pp. A34-A42; Appendix E at pp. A43-A47; Appendix
F at pp. A48-A52; and Appendix G at pp A53-A55. All
interlocutory orders are unreported.
ah >
~— >=
STATEMENT OF JURISDICTIONAL GROUNDS
The judgment of the United States Court of
Appeals for the Sixth Circuit was entered on August
29, 1989. On September 12, 1989, petitioner filed a
timely petition for rehearing before the United States
Court of Appeals for the Sixth Circuit. In its Order
filed on September 22, 1989, the United States Court
of Appeals for the Sixth Circuit denied petitioner's
petition for rehearing. The jurisdiction of this Court
is invoked pursuant to 28 U.S.C. Section 1254 (1)
af}
~)>*
STATUTORY PROVISIONS INVOLVED
The statutes involved as set forth in Appendix I at
pp. A57 et seq.
«f>
~~)
STATEMENT OF THE CASE
This petitioner challenges the judgment of the
United States Court of Appeals for the Sixth Circuit
which affirmed a judgment by the United States
3
District Court for the Northern District of Ohio in
favor of respondents in an action filed pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000 (e) et seq. Key to this challenge are two
interlocutory orders of the United States District
Court for the Northern District of Ohio. At Appendix
F, pages A48-A52 is a Memorandum and Order of the
District Court filed on August 5, 1987 which denies
petitioner's Motion for leave to amend his complaint
in order to substitute 42 U.S.C. Section 1983 for 42
U.S.C. Section 2000 (e) as the theory of liability.
Petitioner had sought to make one new factual
allegation in the amended complaint, to add the then
present president of the University of Toledo as a
new party defendant, to name all defendants in their
individual and official capacities, to add a jury
demand, and to predicate a prayer for attorney's fees
on 42 U.S.C. Section 1988. In an earlier interlocutory
Memorandum and Order filed on February 21, 1986,
discrimination which occurred outside of the 300 day
filing period was held time barred. Petitioner's case
proceeded to a non-jury trial commencing on
February 16, 1988. On June 21, 1988, the District Court
filed its Findings of Fact and Conclusions of Law
finding that plaintiff was not entitled to relief under
42 U.S.C. Section 2000 (e) - 3 (a) et seq. and ordering
that judgment be entered in favor of defendant and
against plaintiff with costs to defendants dismissing
this case on June 27, 1988. (Appendix B at pp Al6-
A32). An appeal followed to the United States Court
of Appeals for the Sixth Circuit which affirmed the
4
Decision of the District Court in all respects.
(Appendix A at pp. Al-A15)
Professor Abid A. Al-Marayati was born in
Baghdad, Iraq on October 14, 1931. Dr. Al-Marayati is
a Shiite Muslim by religious persuasion and practice.
Dr. Al-Marayati became a U.S. Citizen in 1971.
Professor Al-Marayati was hired at the University of
Toledo as an Associate Professor in 1968. He
subsequently obtained tenure in 1972 and a full
professorship in 1971. From 1972 to 1975 he served as
Chairman of the Department of Political Science. At
trial Petitioner's Complaints centered around poor
teacher evaluations, poor merit salary increases and
the respondents’ reprimanding of petitioner for
exercising his first amendment right of free speech
when petitioner had commented on _ the
qualifications of Sharron E. Doerner, who was being
considered for promotion in the Political Science
Department. Petitioner had in part of that
memorandum criticized Doerner's civil rights record.
(Appendix J at ppA74-A75). Although petitioner's
original complaint, filed on May 10, 1985, sought
relief for discrimination in teaching evaluations and
merit salary increases and for retaliatory acts since
1975, the District Court on February 21, 1986 dismissed
all acts of alleged discrimination that occurred outside
the 300 day filing period as time barred, but held that
the events could be used as background on the timely
charges if relevant. (Appendix A, p. A2).
5
Petitioner had also filed four grievances with the
University of Toledo relative to his Complaints of
discriminatory treatment. The fourth grievance
pertained to respondent, Doerner's refusal as
department chairman to provide petitioner in
writing with documentation that supported the low
evaluation and merit increase which petitioner
received in 1983. The University of Toledo's
Conference Committee requested the then President,
Defendant Driscoll, to advise petitioner to cease his
ongoing stream of complaining memoranda. On
November 21, 1983, President Driscoll directed
petitioner to refrain from any effort to renew the
above grievances or be subject to disciplinary action.
On November 14, 1983, plaintiff sent a memorandum
to the department and executive committee
complaining of the departmental masters program
and specifically the treatment that two Arab students
in the program had received. The executive
committee chose on their own to expand the nature
of the inquiry into plaintiff's memorandum to
include issues raised by plaintiff in other memoranda
which he had presented in the department resulting
in a request to defendant Doerner that plaintiff be
censured and a warning that if he continues his
present pattern, the department would request
disciplinary action. On January 27, 1984, the
Department of Political Science adopted the executive
committee's unprecendented resolution of censure
against petitioner.
6
On December 21, 1984, respondent Driscoll
officially reprimanded petitioner as a result of the
letters objecting to the promotion of Professor
Sharron E. Doerner in part because of Doerner's being
discriminatory on the basis of race and politics.
(Appendix A at p. A5)
This official reprimand occurred after the filing of
a change of employment discrimination with the
Ohio Civil Rights Commission on December 14, 1984.
Petitioner also presented extensive testimony and
documentation to the District Court relating to his
claims that he was unfairly discriminated against in
teaching evaluations, salary increases and merit
increases for the academic year 1980-81 on as well as
evidence relating to the highly subjective nature of
the process.
on™,
©
REASONS FOR GRANTING THE WRIT
Petitioner, Abid A. Al-Marayati, respectfully
submits that the United States Court of Appeals for
the Sixth Circuit has erroneously affirmed the District
Court's denial of petitioner's first Motion for Leave to
Amend his Complaint filed on May 11, 1987. This
decision runs contrary to authority of this Court in
two important respects as will be detailed below. In
said motion, petitioner sought to re-cast his original
complaint, which was filed pursuant to Title VII of
the Civil Rights Act of 1964, 42 U.S.C. Section 2000 (e)
7
et seq., as one seeking relief against Respondent, The
University of Toledo, and Glen Driscoll, Karl Vezner,
and Sharron E. Doerner both in their official
capacities and individually. The proposed complaint
which was lodged with the District Court sought
compensatory damages, declaratory relief, and
attorney's fees (Appendix J at pp. A66-A71). In its
Memorandum and Order of August 5, 1987 and the
District Court stated in pertinent part:
The amended complaint alleges that the same
acts described in the complaint are now violations
of 42 U.S.C. Section 1983, thereby substituting 42
U.S.C. Section 1983 for 42 U.S.C. Section 2000 (e) as
a theory of liability. Plaintiff makes one new
factual allegation in the amended complaint, seeks
to add the present president of the University as a
new party, names all defendants in their
individual capacities, seeks to add a jury demand
and predicates his prayer for attorney's fees on 42
U.S.C. Section 1988... On February 21, 1986, this
Court issued an order dismissing all of plaintiff's
allegations which occurred outside the 300 day
filing period under Title VII. The only new
factual allegation in the amended complaint
occurred no later than 1982. Therefore, under the
precedent of Wilson v. Garcia, 471 U.S. 261 (1985),
and Mulligan v. Hazard, 777 F.2d 340 (6th Cir.
1985), cert. denied, 106 S.Ct. 2902 (1986). This new
allegation contained in paragraph 10 of the
amended complaint is not cognizable in this
proceeding.
Furthermore, the Eleventh Amendment
establishes an absolute bar to a suit for monetary
damages against the state unless the state has
8
consented to be sued. Alabama v. Pugh, 438 U.S.
781 (1978). Under the precedent established by the
Sixth Circuit and this Court, the University of
Toledo and the individual defendants in their
official capacities are entitled to immunity under
the Eleventh Amendment as an alter ego or arm
of the state. Hall v. Medical College of Ohio, 742
F.2d 299 (6th Cir. 1984), cert. denied, 469 U.S. 1113
(1985); Crenshaw v. University of Toledo No C84-
8067 (N.D. Ohio January 28, 1986). Therefore, the
addition of the new allegations against the
University and the individual defendants in their
official capacities would not withstand a motion to
dismiss pursuant to Fed. R. Civ. P. 12 (b) (6).
The court determines that pursuant to the
criteria of Fed. R. Civ. P. 15 (a) that, although any
prejudice to defendants may be slight, the
additional allegations of the proposed amended
- complaint are futile. (emphasis added). Appendix
F. at pp A50 - A51.
The United States Court of Appeals for the Sixth
Circuit noted that the alleged First Amendment
deprivation sought to be added to the complaint by
petitioner was based on a decision by President
Driscoll and thus since Driscoll was sued solely in his
official capacity, he was clothed with immunity under
this Court's holding in Will v. Michigan Dept. of
State Police, U.S. __, 109 S.Ct. 2304 (1989).
It is respectfully submitted that in his proposed
amended complaint, petitioner realleged all facts
contained in his original complaint. Moreover, he
specifically sued the Respondents Doerner, Driscoll
and Vezner both individually as well as in their
9
official capacities. He also sought compensatory
damages which were not available under Title VII.
It is respectfully submitted that their is no absolute
immunity covering the individual defendants in
their individual as opposed to official capacities. See
Harlow v. Fitzgerald, 457 U.S. 800 (1982); Scheuer v.
Rhodes, 416 U.S. 232 (1974). See generally O’Connor
v. Donaldson, 422 U.S. 563 (1975); Procunier v.
Nabarette, 434 U.S. 555 (1970); Harlow v. Fitzgerald,
457 U.S. 800 (1982). Qualified immunities can be
rebutted by a showing that the defendant lacked good
faith. Harlow v. Fitzgerald, 457 U.S. 800 (1982); Clark
v. Beville, 730 F.2d 739 (11th Cir. 1984). Qualified
immunities can also be rebutted by a showing that the
defendant's conduct exceeded the scope of his
authority. Merritt v. Mackey, 827 F.2d 1368 (9th Cir.
1987). The proposed Amended complaint and Jury
Demand contained allegations at paragraphs 10, 12
and 14 of violations of the First, Fifth and Fourteenth
Amendments to the United States Constitution. It is
submitted that both courts below overlooked the
issue of petitioner's claims against the defendants as
individuals and supervision of this Court is essential
to secure a day in Court for petitioner on such
sensitive issues.
The Sixth Circuit itself in Berndt v. State of
Tennessee and Lakeshore Mental Health Institute,
796 F.2d 879 (6th Cir. 1986), stated at 796 F.2d. at 882:
The Eleventh Amendment does not bar suits for
money damages brought against state officials in
10
their individual capacities when they are alleged
to have violated federal law. Banas v. Dempsey,
742 F.2d 277, 284, n. 10 (6th Cir. 1984), aff'd, Green
v. Mansour, __ U.S. ____, 106 S.Ct. 423, 88 L.Ed.
2d 933 (1985).
The Sixth Circuit's overlooking of petitioner's
proposed Amended Complaint and Jury Demand
insofar as it was in part against state officials in their
individual capacities departs from precedent of this
Court and the Sixth Circuit. The need for this Court's
supervisory intervention is underscored.
In another important and intertwined respect,
both courts below held that claims pursuant to 42
U.S.C. Section 1983 could not be presented if they
were beyond the 300 day time bar previously applied
by the District Court. The District court never reached
the issue as to whether the proposed amendment, if
granted, would relate back to the date of the filing of
the original complaint. The Sixth Circuit's rationale,
at Appendix A, pp A13-A14, is somewhat cryptic. The
Sixth Circuit noted in passing that the Petitioner's
Motion for Leave to Amend his Complaint was filed
two years and one day after the original complaint
was filed. The seeming uncertainty of the Sixth
Circuit on the Statute of Limitations issue should be
resolved in light of this Court's recent holding in
Owens v. Okure,___s—~ US. , 109 S.Ct. 573 (1989).
In that case, this Court held that where state law
provides multiple statutes of limitations for personal
injury actions, courts considering Section 1983 claims
should borrow the state's general or residual personal
11
injury statute of limitations. Subsequent to this
Courts' decision in Owens, supra, the United States
Court of Appeals for the Sixth Circuit held in
Browning v. Pendleton, 869 F.2d 989 (6th Cir. 1989)
(en banc) that the appropriate statute of limitations
for section 1983 actions in Ohio is Ohio Revised Code
Section 2305.10 which requires that actions for "bodily
injury or injury to property” be filed within two years
after their accrual. However, the Sixth Circuit did not
discuss the applicability of Ohio Revised Code Section
2305.09, a four year limitations period for certain
specified torts and “for an injury to the right of the
plaintiff not arising on contract nor enumerated in
Sections 2305.10 to 2305.12, inclusive, 2305.14 and
1304.29 of the Revised code." The Sixth Circuit did
not consider the applicability of the four year statute
because neither party to the Court in Browning
briefed or argued the issue.
As in New York, there are multiple statutes of
limitations for personal injury in Ohio. The most
general personal injury statute or residual statute
encompassing personal injury claims is Ohio Revised
Code Section 2305.09, the four year residual statute of
limitations. This statute has been held to encompass
types of personal injury claims that do not fall within
the category of actions “for bodily injury or injury to
property" under Ohio Revised Code Section 2305.10.
Those claims would include, for example, personal
injury claims for loss of consortium, loss of services
and medical expenses, intentional infliction of
mental distress, false imprisonment, invasion of
privacy, conversion, and accountant's malpractice.
12
See e.g., Amer v. Akron City Hospital, (1976) 47 Ohio
St.2d 85, 351 N.E. 2d 479; Thomas v. Columbus, 39
Ohio App. 3d 53, 528 N.E. 2d 1274 (Ct. App. Franklin
Cty. 1974); Bowling v. Brendamour’s, Inc., 40 Ohio
App. 3d 37 (Ct. App. Hamilton Cty. 1988).
In Owens v. Okure, supra, this Court cited several
examples of appropriate general personal injury or
residual statutes of limitation. Included in the
examples are similar Alabama and North Carolina
statutes. See Owens v. Okure, supra, 109 S.Ct. at 580,
n 9. The language in both of the examples more
closely resembles Ohio Revised Code Section 2305.09
(four year statute) than Ohio Revised Code Section
2305.10 (two year statute adopted by the Sixth Circuit
in Browning). Application of the four year statute by
the Courts below would have included most if not all
claims alleged by petitioner in his proposed Amended
Complaint and Jury Demand and, clearly, the newly
alleged claim if the District Court permitted the
amendment to relate back to the date of original
filing.
Even if petitioner's proposed Amended
Complaint and Jury Demand were construed to
advance claims only against the respondent
University and officials in their official capacities,
assuming arguendo, the Courts below erred in not
permitting the action to proceed under 42 U.S.C.
Section 1983 for prospective injunctive relief. This
Court has allowed suit against a state where
prospective injunctive relief is sought. Ex parte
Young, 209 U.S. 123 (1908). Most recently, in Will v.
13
Michigan Department of State Police, US.
109 S.Ct. 2304 (1989), this Court noted at footnote 10
that official capacity actions for prospective injunctive
relief under 42 U.S.C. 1983 are not treated as actions
against the state. Therefore, the proposed Amended
Complaint should have been permitted at least to the
extent of allowing petitioner to seek prospective relief
under 42 U.S.C. 1983. It is submitted that prospective
relief could have been fashioned to restore petitioner
to his claimed proper salary status. In Kashari v.
Purdue University, 813 F.2d 843 (7th Circ. 1987), the
Seventh Circuit noted at 813 F.2d at 848:
Although the Eleventh Amendment bans all
claims against Purdue and the damages claims
against its officials in their official capacities, it
does not thwart the claims against the officials in
their official capacities for the injunctive relief of
reinstatement. Under the doctrine of Ex parte
Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714
(1908), a suit for prospective injunctive relief is
not deemed a suit against the state and thus is not
barred by the Eleventh Amendment...
...We recently held that an injunction ordering
reinstatement of a pharmacist "is clearly
prospective in effect and thus falls outside the
prohibitions of the Eleventh Amendment." Elliot
v. Hinds, 786 F.2d 298, 302 (7th Circuit 1986). The
same result has been reached be the Sixth Circuit
regarding reinstatement of a medical student, Hall
v. Medical College of Ohio at Toledo, 742 F.2d 299,
307 (6th Cir. 1984), cert. denied, 469 U.S. 1113, 105
S.Ct. 796, 83 L.Ed. 2d 789 (1985)...
14
See also Greenwood v. Ross, 778 F.2d 448 (8th Cir.
1985).
It is respectfully submitted that, once again the
Sixth Circuit did not consider this Court's precedent
and its own precedent in its refusal to recognize
petitioner's contention that he should have been
permitted to obtain prospective relief under his
sought for amendment.
Although the District Court, in its Memorandum
and Order of August 5, 1987, held that the University
of Toledo and the individual defendants in their
official capacities were entitled to immunity under
the Eleventh Amendment as an alter ego or arm of
the state, it made no findings of fact supporting its
conclusion. (Appendix F. at p. A48). In its Findings of
Fact and Conclusions of Law filed June 21, 1988, the
District Court found in its finding of fact number 9
that the Defendant "is a state funded educational
institution whose operation and management is
provided for in Ohio Rev. Code Section 3360.01 et.
seq." (Appendix B at p. A19). In its August 29, 1989
decision, the Sixth Circuit did not address whether or
not sovereign immunity was applicable. In
Greenwood v. Ross, 778 F. 2d 448 (8th Cir. 1985), a case
involving the University of Arkansas, the Eighth
Circuit noted that since it was unable to determine
from the District Court order the basis for its decision
that a Section 1983 action was barred by the Eleventh
Amendment, it reversed and remanded the action.
Appellate courts have considered multiple factors in
reaching the Eleventh Amendment issue none of
15
which were addressed by the lower courts. See Clark
v. Tarrant County, 798 F.2d 736, 744 (5th Cir. 1986);
Kovats v. Rutgers, 822 F. 2d 1303, 1307 (3rd Cir. 1987);
Ainsworth v. Aristocrat International Pty. Limited v.
Tourism Company of the Commonwealth of Puerto
Rico, 818 F.2d 1034 (1st Cir. 1987). Moreover, the
lower courts did not examine whether the State of
Ohio had waived its immunity for suit. See Florida
Dept. of Health and Rehabilitation Services v. Florida
Nursing Home Association, 450 U.S. 147 (1981);
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). It is
submitted that the State of Ohio has consented to be
sued for all discriminatory actions under Ohio
Revised Code Chapter 4112 effective September 28,
1987. Ohio Revised Code Section 4112.01 (2) states
that:
"Employer" includes the state, or any political
or civil subdivision therof, any person employing
four or more persons within the state, and any
person acting in the interest of an employer,
directly or indirectly.
Moreover, Ohio Revised Code Section 4112.99 as
amended effective September 28, 1987 provides:
Whoever violates this chapter is subject to a
civil action for damages, injunctive relief, or any
other appropriate relief.
It is respectfully submitted that the State of Ohio
had waived, prior to trial on the within cause, its
immunity to suit as to all discriminatory practices as
set forth in Ohio Revised Code Chapter 4112. This
16
issue should have been remanded for examination by
the Disctrict Court.
The Disctrict Court further found that Dr. Al-
Marayati's reprimand of December 21, 1984 was
justified as resulting from disruptive activity.
However, the reprimand itself resulted from a
memorandum dated November 19, 1984 to the
Administrative Committee for Academic Personnel
complaining that he could not support Professor
Vezner's recommendation (for promotion) on behalf
of Professor Doerner. In part, petitioner complained
in that memorandum about Doerner's rendering
meaningless the principles of academic freedom and
tenure at the University of Toledo and that Doerner
had exhibited discriminating behavior in social and
political contexts. It is submitted that the memo-
randum was a protected expression of concern and
that the respondent's reprimand was inherently
retaliatory. (See Appendix J at p. A72).
ff
—
CONCLUSION
For the reasons set forth above, Petitioner prays
that a Writ of Certiorari be granted.
Respectfully Submitted,
WASSERMAN, BRYAN,
LANDRY & HONOLD
Francis J. Landry
Attorney for Petitioner
Abid A. Al-Marayati
APPENDIX
TABLE OF CONTENTS
A. Opinion and Judgment of United States Court
of Appeals for the Sixth District (Case No.
88-3643) entered August 29, 1989 .........ccscseseseeseees Al
B. Opinion and Order of the United States
District Court for the Northern District of
Ohio, Western Division (Case No. 85-7497),
ts Sr re cecckeceincecteeeic peti Geiss Al6
C. Judgment of United States District Court for
the Northern District of Ohio, Western Division
(Case No. C85-7497), entered June 27, 1988........ A33
D. Memorandum and Order of United States District
Court for the Northern District of Ohio, Western
Division (Case No. C85-7647), entered February
E. Memorandum and Order of United States District
Court for the Northern District of Ohio,
Western Division (Case No. C85-7647),
entered December 31, 1987. ....ccccccccccccocccscososcosesees A43
F. Memorandum and Order of United States District
Court for the Northern District of Ohio, Western
Division (Case No. C85-7647), entered
SE ey Ps titnscchnnrsiettttancciennterncanivesssisennsssnsesins A48
G. Memorandum and Order of United States District
Court for the Northern District of Ohio,
Western Division (Case No. C85-7647),
entered February 21, 1986. .........sssssssrseereersnenenees A53
H. Order of United States Court of Appeals
for the Sixth Circuit (Case No. C85-7647),
entered September 22, 1989 denying
Petition for Rehearing. ........csssesesesssersecnserenees A56
L Text of Statutes Involved........ccccccccccccccssccccccscscssees A57
J. Complaint, Proposed Amended Complaint
and Jury Demand and Trial Exhibit TT
(Petitioner's November 19, 1984 Memorandum
relating to promotion of Sharron E. Doerner... A61
Al
APPENDIX A
NOT FOR PUBLICATION
NO. 88-3643
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ABID AL-MARAYATI
ON APPEAL FROM
THE UNITED STATES
COURT FOR THE
NORTHERN DISTRICT
OF OHIO
Plaintiff-Appellant,
V.
TOLEDO; GLEN
DRISCOLL; KARL
VEZNER; AND
SHARRON E.
)
)
)
)
)
UNIVERSITY OF )
)
)
)
)
DOERNER, )
)
)
Defendants-Appellee.
(Filed August 29, 1989)
BEFORE: MARTIN, WELLFORD AND MILBURN,
Circuit Judges.
PER CURIAM. Piaintiff-appellant Abid Al-Marayati
appeals from a judgment in favor of defendants-
appellees, the University of Toledo ("the University-
"); its president, Glen Driscoll; and two former
chairmen of the University's Department of Political
Science, Karl Vezner and Sharron Doerner, in this
action filed pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seg. For the reasons
that follow, we affirm.
A2 \
Al-Marayati, a native of Iraq, embraces the tenents
of the Shiite sect of the Muslim religion. In this
action commenced under Title VII on May 10, 1985,
he contends that he has suffered discrimination since
1975 because of his national origin and religious
beliefs in that the defendants intentionally gave him
poor teaching evaluations and merit salary increases,
inhibited and punished him for expressing his beliefs
concerning matters affecting the University, and
harassed him in the hope that he would resign his
tenured position. He further contends that the
defendants retaliated against him for filing a civil
rights charge by reprimanding him for commenting
on the qualifications of defendant Doerner when
Doerner was being considered for a promotion.
On February 21, 1986, the district court dismissed
all acts of alleged discrimination that occurred outside
the 300-day filing period as time-barred, but held that
the events could be used as background on the timely
charges if otherwise relevant. On May 11, 1987, Al-
Marayati sought to amend his complaint to dismiss
the Title VII allegations and proceed instead under 42
U.S.C. § 1983. He also sought to allege a deprivation
of his First Amendment rights in addition to
unlawful discrimination and retaliation and
requested a jury trial. The district court denied leave
to amend, however, holding that allowing Al-
Marayati to recast his complaint under section 1983
would be frivolous in that the court had previously
dismissed all events occurring outside the 300-day
filing period, the allegations regarding the First
Amendment occurred outside the applicable
A3
limitations period, and the Eleventh Amendment
barred recovery of any monetary damages from the |
University and the defendants in their official
capacity.
Al-Marayati filed a second motion to amend on
November 6, 1987, seeking to add a claim for
intentional employment discrimination under 42
U.S.C. §§ 1981 and 1985. He contended that such a
claim was not cognizable until the Supreme Court's
decision in St. Francis College v. Al-Khazraji, 481 U.S.
604 (1987). On December 31, 1987, the district court
denied leave to amend. In light of a trial date of
February 16, 1988, the district court held that
defendants would have insufficient time to conduct
discovery and would be unfairly surprised and
prejudiced by a complete change of theory on the eve
of trial.
On January 26, 1988, Al-Marayati sought a
continuance on the grounds that defendant Doerner's
medical condition precluded the conclusion of his
oral deposition and testimony at trial. However, the
district court denied the motion without opinion on
February 3, 1988.
A nonjury trial commenced on February 16, 1988.
On March 9, 1988, at the conclusion of plaintiff's case,
the defendants jointly moved for dismissal under
Rule 41 of the Federal Rules of Civil Procedure. The
district court denied the motion, concluding that Al-
Marayati had presented sufficient evidence to
establish prima facie claims of discrimination and
retaliation. The trial then proceeded to a conclusion.
A4
On June 21, 1988, the district court entered its
findings of fact and conclusions of law. The district
court held that plaintiff was not entitled to relief
because he had failed to establish that the reasons
given for the employment actions in question were
pretextual. This timely appeal followed.
The record shows that Al-Marayati has repeatedly
filed grievances within the University's structure for
resolving disputes. It is undisputed that every
grievance has been ultimately rejected following
extensive review within the University. The record
also establishes that Al-Marayati maintained a steady
stream of memoranda within the Political Science
Department wherein he complained of employment
decisions and raised allegations of discrimination
among fellow political science professors.
After the denial of Al-Marayati's fourth grievance
on October 4, 1983, the University's Faculty
Conference Committee sent a memorandum to the
University's president, defendant Driscoll, wherein it
stated its conclusion that Al-Marayati's persistent
memos within the department were becoming
counterproductive, that Al-Marayati had ignored the
Committee's previous request that he cease the flow
of memoranda within the department, and
recommended that defendant Driscoll inform Al-
Marayati in the strongest possible terms that his
actions within the department were preventing him
and other members of the faculty from performing
their responsibilities as University professors.
Driscoll testified that he corresponded with Al-
Marayati on November 21, 1983, and informed him
A5
that he had exhausted all remedies within the
University and that he should seek redress elsewhere,
specifically mentioning the courts. He additionally
informed Al-Marayati that he would request that the
Board of Trustees approve disciplinary
recommendations if Al-Marayati did not refrain from
raising old grievances within the University.
During the following academic year, 1983-1984,
defendant Doerner was recommended for promotion
to the rank of full professor by then-department
chairman, defendant Vezner, and the corresponding
faculty committee. Although plaintiff did not attend
any of the departmental meetings and chose not to
submit an absentee ballot, he went outside of the
University's processes and objected to Doerner's
promotion with inter-University memoranda
wherein he accused Doerner of being discriminatory
on the basis of race and politics.
The Political Science Department ultimately
decided to request disciplinary action against Al-
Marayati and informed President Driscoll of its
conclusion. Driscoll subsequently informed Al-
Marayati on December 21, 1984, that he viewed the
substance of the memoranda to be an effort to renew
old grievances and noted that he had previously
warned Al-Marayati on two prior occasions to refrain
from "plowing the same ground." Noting that Al-
Marayati had filed charges against the University
with the Equal Employment Opportunity
Commission, Driscoll encouraged Al-Marayati to
pursue avenues of relief outside of the University.
He instructed Al-Marayati to cease attempts to use the
A6
University's internal grievance mechanisms to
resolve his old grievances and informed Al-Marayati
that if he persisted in renewing old grievances, he
would recommend to the Board of Trustees that he be
suspended without pay. Driscoll concluded his letter
to Al-Marayati by stating that the letter should be
viewed as an official reprimand.
There was significant testimony at trial regarding
the conduct of Al-Marayati and others within the
University's Political Science Department which
indicates that Al-Marayati's relationship with his
colleagues has steadily deteriorated since 1975.
Department members testified that plaintiff refrained
from speaking to colleagues who, while performing
their duties as members of faculty committees or
other positions, evaluated him less favorably than
others. Al-Marayati stopped attending departmental
meetings during the 1982-1983 academic year, and
there was considerable testimony that he affected the
department's morale. Finally, there was testimony
that he was repeatedly advised over the years that he
should “bury the hatchet," but that all attempts at
reconciliation between him and other members of
the department had been unsuccessful.
The issues presented in this appeal are whether
the district court erred (1) in finding that Al-Marayati
was not the subject of intentional discrimination on
the basis of his religion or national origin; (2) in
finding that Al-Marayati's censure and reprimand
were not in retaliation for the exercise of his Title VII
rights; (3) in denying Al-Marayati's motion for a
continuance; (4) in denying Al-Marayati'’s two
A7
motions to amend his complaint; and (5) in
dismissing several of Al-Marayati's claims as
untimely.
Il.
In Daniels v. Board of Education, 805 F.2d 203, 208
(6th Cir. 1986), we held that when a district court
decides "the ultimate factual issue, whether the
plaintiff was a victim of intentional discrimination,"
then the focus of our inquiry on appeal is not on
whether the district court properly applied the correct
legal standard in reaching the ultimate question of
discrimination, but whether the district court's
finding is supported by substantial evidence. This
court reviews a district court's findings of fact only for
clear error under Rule 52(a) of the Federal Rules of
Civil Procedure and will overturn a district court's
findings of fact only when it "is left with the definite
and firm conviction that a mistake has been
committed." United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948).
If a district court's findings "are based on
determinations regarding the credibility of witnesses,
Rule 52(a) demands even greater deference to the trial
court's findings; for only the trial court can be aware
of the variations in demeanor and tone of voice that
bears so heavily on the listener's understanding of
and belief in what is said." Anderson v. City of
Bessemer City, 470 U.S. 564, 575 (1985). As noted in
Henry v. Lennox Indus., Inc., 768 F.2d 746 (6th Cir.
1985),
A8
[t]he reviewing court oversteps the bounds of its
duty under Rule 52 if it undertakes to duplicate
the role of the lower court ... If the district court's
account of the evidence is plausible in light of the
record viewed in its entirety, the Court of Appeals
may not reverse it even though convinced that
had it been sitting as the trier of fact it would have
weighed the evidence differently.
Id. at 750 (quoting Anderson, 470 U.S. at 573-74).
A.
Al-Marayati contends that he suffered
discrimination on the basis of his national origin and
religion in the manner in which he was evaluated
pursuant to the University's procedures. In response
to the University's proffered reasons for the alleged
discriminatory adverse employment decisions, Al-
Marayati relies upon three instances which he alleges
prove discriminatory animus. He relies on a note
found in his mailbox wherein defendant Doerner was
critical of the Iraq government and a letter Doerner
penned to him while he was in Kuwait on leave of
absence. In the letter, Doerner wrote of the hot and
humid weather in Kuwait and noted his hope that
Kuwait, like the American South, was an air-
conditioned society. He further warned Al-Marayati
to "keep his back against the wall." Doerner testified
on deposition that the comments on the note were a
furtherance of a lunch conversation between Doerner
and Al-Marayati concerning Iraq. With regard to the
letter, Doerner testified the first comment was in
A9
reference to an earlier conversation in which the
effect that Kuwait's hot and humid weather would
have on Al-Marayati's bronchitis was discussed, and
the latter comment was an expression of his concern
for Al-Marayati's safety as an American in the Middle
East. Finally, testimony was presented by one of Al-
Marayati's colleagues of hearing racial comments in
reference to plaintiff as a "camel driver". However,
the testimony that he quickly tries to strike such
comments from his mind and therefore could
provide little information about them. He was
unable to remember who made the comments or
when they were made.
With regard to the above three incidents, the
district court found that they were not indicative of
any discriminatory animus on behalf of the
defendants, and that the racial comments could not
be linked to any of the defendants. After reviewing
the record, we conclude that the district court's
findings are not clearly erroneous.
B.
In his complaint, Al-Marayati contends that three
separate actions taken by the defendants constitute
retaliatory conduct as prohibited by Title VII. At trial,
however, it appears that he only pursued one of these
actions, his reprimand by the University, and
additionally sought to establish that the mierit
increase he received after the University learned of
his Title VII complaint was retaliatory.
A 10
Section 704(a) of Title VII, 42 U.S.C. § 2000e-3,
prohibits an employer from discriminating against an
employee “because he has made a charge, testified,
assisted or participated in any manner in any
investigation, proceeding, or hearing" under Title
VII. However, employees are not protected or
insulated from discipline or discharge merely due to
the fact that they have filed charges of discrimination
or opposed employer practices that they believe to be
discriminatory. This court has made it clear that
employers do not violate Title VII when they make
an adverse employment decision regarding an
employee within a protected category when the
decision is made for reasons such as insubordination,
poor work pe.formance, difficulty in getting along
with fellow employees, or where the potential exists
that the employee's continued presence would cause
resentment or hostility. -See Daniels, 805 F.2d at 208-
09; Weems v. Ball Metal and Chem. Div., Inc., 753
F.2d 527, 529-30 (6th Cir. 1985); Morvay v. Maghielse
Tool and Die Co., 708 F.2d 229, 233 (6th Cir.), cert.
denied, 464 U.S. 1011 (1983).
In light of the substantial evidence in the record of
Al-Marayati's conduct, we conclude that the district
court did not err in concluding that the adverse
employment decisions of which Al-Marayati
complains were not in retaliation for the exercise of
his Title VII rights. An employer is allowed to
maintain internal discipline and a stable work
environment, and [a]Jn employee is not protected by
Title VII when he violates legitimate rules and orders
of his employer, disrupts the employment
All
environment, or interferes with the attainment of his
employer's goals. Unt v. Aero Space Corp., 765 F.2d
1440, 1446 (9th Cir. 1985); see also Rosser v. Laborers’
Int'l Union, 616 F.2d 221, 223 (5th Cir.), cert. denied,
449 U.S. 886 (1980).
..
Al-Marayati contends that the district court erred
when it denied his request for a continuance of the
trial date and to reopen discovery on the basis that
defendant Doerner's medical condition precluded Al-
Marayati from obtaining further discovery and
Doerner's testifying at trial. Doerner's physician
opined at the time that Doerner's heart condition was
such that further testimony was potentially life-
threatening.
The question of a continuance is addressed to the
sound discretion of the district judge and will not be
reversed on appeal unless there has been a clear abuse
of discretion. Pingatore v. Montgomery Ward & Co.,
419 F.2d 1128, 1141 (6th cir. 1969), cert. denied, 398 U.S.
928 (1970). In this instance, we do not find a clear
abuse of discretion. There was no evidence at the
time of the denial of the motion that Doerner's
medical condition would ever improve to the point
that he could withstand the rigors of trial or even a
discovery deposition. Moreover, Al-Marayati is
unable to show any substantial prejudice in that the
discovery he had already obtained from Doerner was
inadequate. Doerner's 150-page discovery deposition,
his answers to written interrogatories, and his six-
A 12
page affidavit were admitted without protest by the
defendants, and the plaintiff has not established why
live testimony was needed. Accordingly, we do not
find error.
D.
Al-Marayati contends that the district court erred
in denying his two motions to amend. In his first
motion filed on May 11, 1987, Al-Marayati sought to
dismiss his allegations under Title VII and to proceed
instead under 42 U.S.C. § 1983. In denying the
motion, the district court held that allowing the
plaintiff to recast his complaint as a section 1983
action would be frivolous because the court had on
February 21, 1986, dismissed all of the allegations
occurring outside of the 300-day period, the new
allegations regarding deprivation of First
Amendment rights occurred outside the applicable
statute of limitations for section 1983 actions, and the
Eleventh Amendment stood as an absolute bar to any
section 1983 action for monetary damages. In this
connection, we note that Al-Marayati's action had
been pending since May 10, 1985.
In his second motion to amend filed on
November 6, 1987, Al-Marayati sought to amend his
complaint to allege violations of his rights under 42
U.S.C. §§ 1981 and 1985. The district court denied the
motion because the case was in the final stages of trial
preparation, and the defendants would be prejudiced
by being denied the opportunity to adequately prepare
A 13
and file any motions regarding the added causes of
action.
As noted by the Supreme Court in Zenith Radio
Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330
(1981), a district court is empowered to deny a motion
for leave to amend a complaint if the denial is based
valid grounds, and a trial court's discretion whether
or not to grant leave to amend is subject to limited
appellate review for abuse of discretion. In Marx v.
Centran Corp., 747 U.S. 1125 (1985), this court upheld
the district court's refusal to allow amendment on
"futility of amendment" grounds. We held that the
district court had not abused its discretion in refusing
to allow a plaintiff to amend his complaint to add
claims which are unsupported by facts or were time-
barred.
With respect to Al-Marayati's first motion to
amend, we do not find abuse of discretion. As the
Supreme Court has recently held in Will v. Michigan
Dept. of State Police, 109 S. Ct. 2304, 2310-11 (1989),
state officials acting in their official capacities are not
"persons" under section 1983. In this instance, the
alleged First Amendment deprivation was the
decision by President Driscoll to prohibit Al-Marayati
from commenting on matters affecting the
University. President Driscoll was sued solely in his
official capacity and, under the holding in Will, was
clothed with immunity under the Eleventh
Amendment. Accordingly, the district court correctly
concluded that allowing the amendment would be
futile.
Al4
We are also of the view that the district court did
not err in denying the second motion to amend. The
case was on the eve of trial, discovery was in its later
stages, and it would have been of obvious prejudice
to require the defendants to defend on a theory not
yet presented. Plaintiff contends that he was not
aware of the potential cause of action under section
1981 until the Supreme Court's holding in St. Francis
College v. Al-Khazraji, 481 U.S. 604 (1987). However,
that decision was handed down one month after Al-
Marayati's first motion to amend, and we see no
justification for allowing him to wait until the eve of
trial to seek to amend his complaint.
E.
The final issue before us is Al-Marayati's
contention that the district court erred in barring him
from pursuing acts of discrimination occurring before
the 300-day limitations-period. Relying upon this
court's holding in Sawchik v. E. I. DuPont de
Nemours & Co., 783 F.2d 635 (6th Cir. 1986), the
district court determined that the continuing
violation theory was inapplicable and, therefore,
dismissed all alleged acts occurring outside the 300-
day filing period. However, the district court allowed
the acts as background material.
In United Air Lines v. Evans, 431 U.S. 553, 557
(1977), the Supreme Court held that the present
effects of an earlier time-barred action are insufficient
to constitute a present or continuing violation which
A115
can be the subject of a timely EEOC charge. The Court
concluded:
A discriminatory act which is not made the basis
of a timely charge is the legal equivalent of a
discriminatory act which occurred before the
statute was passed. It may constitute relevant
background evidence in a proceeding in which the
status of a current practice is at issue, but
separately considered, it is merely an unfortunate
event in history which has no present legal
consequences. ;
Id. at 558. In this instance, it is undisputed that Al-
Marayati filed grievances and sought relief within the
avenues of the University at the time of the alleged
discriminatory actions. Clearly, he was of the view at
that time that he had suffered discrimination and,
therefore, should have engaged the machinery of
Title VII if he did not obtain the desired redress
within the University.
Il.
Accordingly, for all of the foregoing reasons, the
judgment of the district court is AFFIRMED.
a aie |
A 16
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
ABID AL-MARAYATI, _ )
Plaintiff ) Case No. C 85-7497
)
vs. ) FINDINGS OF FACT }
) AND CONCLUSIONS
UNIVERSITY OF ) F LAW
TOLEDO, et al., )
)
Defendants
(Filed June 21, 1988)
POTTER, J.:
This case was originally filed by plaintiff on May
10, 1985 pursuant to the provisions of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
(Title VII) against defendant University of Toledo
(University) and individual defendants Glen Driscoll,
Carl Vezner and Sharron Doerner in their individual
and official capacities as University Administrators.
On February 5, 1988, this Court granted in part and [
denied in part defendants’ motion for summary i
judgment, and this matter proceeded to trial on two :
distinct issues: (1) whether from 1984. to the present
time plaintiff has been denied employment benefits,
including adverse annual evaluations and resulting
merit increases affecting his salary and benefits
because of his national origin and religion; and (2)
whether or not defendants have retaliated against
plaintiff because of his assertion that defendants had
SaaS |
A 17
denied him rights protected by Title VII because of his
national origin and religion in the fall of 1984. This
matter proceeded to the taking of evidence on these
issues in a trial to the Court on February 16 through
19 and March 3 through 10, 1988.
On March 9, 1988, at the conclusion of plaintiff's
case, defendants moved for an involuntary dismissal
of plaintiff's claims pursuant to Rule 41 of the Federal
Rules of Civil Procedure, which the Court denied
indicating that plaintiff had presented sufficient
evidence to establish a prima facie claim of violation
of Title VII on both issues. Thereafter, defendants
presented their evidence and plaintiff submitted
rebuttal testimony.
The parties were invited to and have submitted
briefs on plaintiff's retaliation claim in addition to
proposed findings of fact and conclusions of law. The
Court finds that counsel's proposed findings of fact in
the main were narratives of witnesses’ testimony.
The Court makes its own independent findings of fact
and conclusions of law.
indin f Fa
1. Plaintiff was born in Iraq and came to the
United States in 1949, becoming a permanent resident
in 1967 and a US. citizen in 1971. Plaintiff believes in
and embraces the tenets of the Muslim religion as a
member of the Shiite sect thereof.
2. Plaintiff obtained his Bachelor of Science
degree and thereafter his Master of Arts degree in
political science from Bradley University in 1952 and
A 18
1954, respectively. In 1959 he received his doctoral
degree in political science from New York University.
3. Thereafter plaintiff worked as a United
Nations intern, assigned to the secretaries of the
Delegations of Iraq and Yemen until 1969 when he
taught one semester of political science as an
instructor at the University of Massachusetts. From |
1960 until 1962 he was a technical assistant officer |
with the United Nations International Atomic
Energy Agency assigned in Vienna. From 1962 until
January of 1964, he was employed as an associate
professor at New York State College. In 1964 he was
chosen to be a research fellow at Harvard University
where he concentrated his research on the United
Nations in the Middle East and Middle Eastern
constitutions. He remained a research fellow until
June of 1965 when he was employed as an assistant
professor in the Political Science Department at
Arizona State University.
4. In 1967 plaintiff was promoted to associate
professor at Arizona State University, where he
remained until he was hired at the University of
Toledo in 1968.
5. Frank Lewis was the Chairman of the Political
Science Department in 1968. In 1968, Lewis hired {
plaintiff to teach classes in International Relations
and the Middle East. Plaintiff was hired as an
associate professor at an initial salary of $12,500.00.
6. Plaintiff was granted tenure in 1970 and was
promoted to the rank of full professor in 1972.
Plaintiff was elected Department Chairman and
|
A 19
served a three year term beginning in Academic Year
(AY) 1972-73.
7. Lewis also recruited and hired George Jan in
1968 at an initial salary of $16,500. Jan was a full
professor at the University of South Dakota, where he
had taught for seven years and was hired in that rank
by the University. Jan was born and raised in China,
now the People's Republic of China.
8. From 1968 until the present time, plaintiff has
been the only faculty member with the Department of
Political Science of Arab descent and who embraces
the Muslim religion. However, there were 615
ranked faculty members at the University at the time
of trial. Twenty-three ranked faculty members were
born in the following countries: Iran, Lebanon, Israel
and Egypt. Of this group, 18 are Arabs.
9. Defendant University is a state funded
educational institution whose operation and
management is provided for in Ohio Rev. Code §
3360.01 et seq.
10. Defendant Glen Driscoll was President of the
University from October, 1972 until July 1, 1985.
11. Defendant Sharron E. Doerner is a full
professor with tenure in the Political Science
Department at the University. Doerner was elected
Department Chairman for three consecutive three-
year terms and served from AY 1975-76 through AY
1983-84. Based upon the recommendation of a
physician selected by plaintiff, Doerner, who has a
history of coronary problems, did not testify, nor was
he present, at trial. The parties stipulated that he was
A 20
unavailable within the meaning of the Federal Rules
of Civil Procedure.
12. Defendant Karl O. Vezner, a full professor
with tenure in the Political Science Department at the
University, succeeded Doerner as Chairman and is
the current Chairman.
13. Plaintiff testified as to various alleged
instances of discriminatory conduct on the part of
Doerner in connection with his allegations of
discriminatory treatment regarding his merit
increases for the AY 1984-85 to present. One incident
was a note taped to plaintiff's mailbox referring to the
weather in Baghdad for the year 1978. The note was
of unknown authorship except for a comment by
Professor Doerner as follows: "Yes, but what about
freedom of speech, press, assembly, petition and
religion? And the freedom to be a non-Marxist?" -
Plaintiff did not know who placed the note on his
mailbox. The earliest this note was called to the
attention of the administration was 1981. Another
incident was a letter from Professor Doerner to
plaintiff dated September 21, 1981, when plaintiff was
in Kuwait, which stated in pertinent part that
plaintiff “ought to be an old Kuwaiti hand and have
sampled both their sandstorms and high humidity. I
hope for your sake that they are, like the American
South, an air-conditioned society," and "Everyone
wishes you well and keep your back to the wall." The
Court finds as a fact that these incidents do not
establish a discriminatory animus against this
plaintiff.
re. es ee ge
A 21
14. Plaintiff also complained of racial slurs, but
could not connect any of the statements to the
defendants.
15. Plaintiff asserted that he received low merit
and salary increases for the periods in question
because of his national origin and religious
preference. The University has a complicated, many-
leveled process for determination of merit and salary
increases with many safeguards.
16. At all relevant times hereto, the guidelines
governing the salary process were set forth in the
University's Manual of Policies and Procedures,
Guidelines for Accountability (Guidelines). The
opening paragraph of the Guidelines refers to the
"long and continuing concern" that the faculty of the
University has had regarding the University's system
of accountability with respect to salaries, tenure,
promotions and non-renewals. It is stated therein:
The document on accountability has a primary
purpose of assuring that each member has been
advised on how the various levels of
administration value his/her contribution to the
University and, perhaps even more important,
informing him/her on who makes the
evaluations and what criteria are used in making
them. The accountability guidelines are to be used
by all levels and units where decisions are made
with respect to salaries, tenure, promotion, and
non-renewals.
17. The Guidelines also set forth the definition of
academic freedom at the University. Academic
freedom is defined in part as the right of free
expression of ideas and opinions. |
A 22
18. The Guidelines set forth five separate areas for
evaluation: teaching, research and publication,
service to the University other than classroom
teaching and research, professional development and
professional conduct, and public service relating to
the University goals.
19. The Guidelines set forth the five independent
units in the decision process which shall make
recommendations prior to final decision by the
President as follows: the department chairman; the
college committee on salaries, promotions and
tenure, or an equivalent committee; the college dean;
the University Committee on Academic Personnel
(ACAP); and the Offices of the Vice President for
Academic Affairs and the President.
20. The Political Science Department had a
department executive committee (D.E.C.), whose
function is to advise the chairman, at all relevant
times hereto. Departmental faculty elect the three
members of the D.E.C. annually, and the composition
of the D.E.C. generally changes completely from year
to year.
21. As part of the merit evaluation process, a
departmental faculty member prepares an annual
report of professional activities (ARPA) covering the
year under review. The ARPA is reviewed by the
D.E.C. and the chairman the following academic year
for merit increases to be awarded the next academic
year.
22. Departmental members are notified after the
chairman has arrived at the recommended merit
increases. The information is next forwarded to the
LOT ON ET AY EET ARNT SOT OORT IE TE POA Nem ty
A 23
ACAP. ACAP members are elected by their
colleagues. According to ACAP's bylaws, its purpose
is to "examine recommendations of the various
departments to the Dean in order to insure the
equitable treatment of all academic personnel and
make college recommendations to the Dean to effect
such treatment" and to advise the Dean of the College
of Arts and Sciences on such matters.
23. The College Dean’ reviews’ the
recommendations of ACAP and submits his
recommendations to the University Committee or
Academic Personnel (UCAP). UCAP also is a
committee composed of elected faculty
representatives. According to the Guidelines,
UCAP’s function is to see that there is equitable
treatment to faculty in all colleges with respect to
tenure, promotion and faculty ranks, salary and
sabbatical leaves, and to advise the Vice President for
Academic Affairs on such matters.
24. The Vice President for Academic Affairs
advises the President. The final administrative
judgment rests with the President. The information
is then sent to the Academic Affairs Committee of the
Board of Trustees for their review and final
recommendation to the Board of Trustees, the final
approving authority within the University.
25. Plaintiff's salary determinations were made in
accordance with the Guidelines.
26. In regard to merit evaluation, teaching,
research and service were considered. As to
plaintiff's teaching ability, ratings from students, as to
plaintiff's ability and attitudes were mixed.
A 24
27. Plaintiff received the University's
Outstanding Teaching Award was not a factor in the
recommendations regarding plaintiff's merit
increases from AY 1984-85 to date because it was not
received during any of the periods under review.
28. Plaintiff was Director of the Center for
International Studies since 1972. The Center's
effectiveness over the years was called into question
by other departmental members affiliated with the
Center and by the college dean.
29. Plaintiff received a low evaluation for
research and publication and service.
30. Plaintiff, for the years 1984-85 and 1985-86,
received merit increases of 0% and 1.4%.
31. Other faculty members at the University in
addition to plaintiff have received zero merit
increases. None were Arabic.
32. Other departmental faculty members in
addition to plaintiff have raised salary grievances.
33. Other faculty members have been censured,
reprimanded and/or fired.
34. The Court finds that the members of the
Political Science Department of the University were
not always congenial and were concerned about
standing and relative compensation, but that their
competitive conduct and rivalry were not motivated
by discriminatory reasons involving national origin
and religion.
35. Plaintiff was very active in voicing his
opinion relative to policies and promotions of his
colleagues. His numerous grievances, redundant
memos and failure to use existing procedure irrated
A 25
defendants. The Court finds irritation, but no
discrimination based on national origin or religion.
36. The Court further finds by a preponderance of
the evidence that the reasons given for plaintiff's low
evaluation by defendants during said ARPA periods
are not pretextual.
37. The Court finds that the censure, reprimand
and low merit evaluations were not in retaliation for
plaintiff's exercising his Title VII rights. The Court
also finds that plaintiff's censure and the letters of
reprimand from President Driscoll, dated November
21, 1983, March 6, 1984 and December 21, 1984 were
the result of plaintiff's refusal to follow the
Guidelines and University procedure and not because
plaintiff was utilizing Title VII procedures. President
Driscoll advised plaintiff to seek external remedies
and to resort to the civil courts.
Conclusions of Law
1. A Title VII case of sexual discrimination must
be analyzed under the three prong test articulated by
the Supreme Court in Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct.
1089, 67 L. Ed.2d 207 (1981) and McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.2d
668 (1973). A plaintiff carries the burden of
establishing a prima facie case. 450 U.S. at 252-53, 101
S. Ct. at 1093-94. If she establishes a prima facie case,
the defendant must then articulate a
nondiscriminatory reason for its actions. Id. If the
employer does this, the burden is again on the
A 26
plaintiff to prove that the articulated reason was
pretextual and not the true reason, either by showing
that a discriminatory reason was the more likely
motivation, or by showing that the articulated reason
is unworthy of belief. (Citations omitted.)
Mills v. Ford Motor Co., 800 F.2d 635, (6th Cir. 1986).
2. “The plaintiff must ultimately prove that the
defendant intentionally discriminated against her.
450 U.S. at 253, 101 S. Ct. at 1093." Id. at 638.
3. But McDonnell Douglas did make clear that a
Title VII plaintiff carries the initial burden of
showing actions taken by the employer from which
one can infer, if such actions remain unexplained,
that it is more likely than not that such actions were
"based on a discriminatory criterion illegal under the
Act." (Citations omitted.)
Furnco Construction Corp. v. Waters, 438 U.S. 567,
576 (1978).
4. The controlling legal authority in Title VII
"disparate treatment” cases is the Supreme Court's
recent decision in Texas Department of Community
Affairs v. Burdine (citation omitted). Burdine is, in
essence, a refinement of the burden of proof analysis
previously set out in McDonnell Douglas Corp. v.
Green, (citation omitted).
Miller v. WFLI Radio, Inc., 687 F.2d 136, 138 (6th Cir.
1982).
5. “Proof of the four McDonnell Douglas
elements or other direct or statistical proof raises a
rebuttable presumption of discrimination.”
(Footnotes omitted.) Id.
.) a 7
—
A 27
6. Establishment of the prima facie case in effect
creates a presumption that the employer unlawfully
discriminated against the employee. If the trier of fact
believes the plaintiff's evidence, and if the employer
is silent in the face of the presumption, the court
must enter judgment for the plaintiff because no
issue of fact remains in the case. (Footnotes omitted.)
Burdine, 450 U.S. at 254.
7. “The burden of production then shifts to the
defendant employer to provide a legitimate
nondiscriminatory reason for the action taken."
Simpson v. Midland-Ross Corp., 823 F.2d 937, 940 (6th
Cir. 1987).
8. A plaintiff can establish that the legitimate,
nondiscriminatory reason for the employment
decision articulated by the defendant employer is
pretextual in one of two ways. The first is to establish
by a preponderance of the evidence that the
discriminatory reason was the true reason motivating
the employer's conduct. Alternatively, the plaintiff
can prove pretext by showing that the proffered
legitimate reason was false. (Citations omitted.)
Sims v. Cleland, 813 F.2d 790, 792 (6th Cir. 1987).
9. The Court concludes that plaintiff has
established a prima facie case of unlawful
discrimination by demonstrating his membership in
a protected category due to his religion and national
origin, and by establishing that he was treated
disparately in his employment under alleged
circumstances which, if proven true, raise a rebuttable
presumption of discrimination. In making this
finding, however, the Court is mindful that the
A 28
burden of establishing a prima facie case is not
enormous. Burdine, 450 U.S. at 253.
10. Defendant has articulated the following
legitimate, nondiscriminatory reasons for plaintiff's
merit increases: that plaintiff's teaching was the
subject of student complaints; the plaintiff's
professional conduct was disruptive and counter-
productive; that plaintiff's service was not of a level
to warrant a greater merit increases; and that
plaintiff's scholarly research for the periods under
review was minimal.
11. Plaintiff now has the burden to prove that the
articulated reason is pretextual. Mills, 800 F.2d at 637.
12. The Court does not evaluate whether the
employment decision was a correct decision or the
best approach. The question is whether the decision
was based upon impermissible considerations of
religion and/or national origin. The focus is upon an
employer's motivation, not its business judgment.
Burdine, 450 U.S. at 258-259; Liberman v. Gant, 630
F.2d 60, 67 (2d Cir. 1981).
13. Personnel policies or practices which take into
account subjective factors are not unlawful or even
suspect absent a showing of adverse impact upon
minority groups. Burgus v. United Telephone -Co. of
Kansas, Inc., 683 F.2d 339, 243 (10th Cir. 1980. cert.
denied 459 U.S. 1071 (1983); Wilkins v. University of
Houston, 654 F.2d 383. (10th Cir. 1981), cert. denied,
459 U.S.822 (1983).
14. This Court is not empowered to sit as a super
review board of the University's employment
decisions. The same difficulties inherent in
en
A 29
reviewing tenure decisions are present here. Sec., e.g.
Kemar v. Bd. of Trustees, Univ. of Mass., 774 F.2d 1
(1st Cir. 1985), cert. denied, 475 U.S. 1097 (1986).
15. The Court finds that the low merit increases
were not based on retaliation or prompted by a
discriminatory animus.
16. While the low ratings given to plaintiff
during the years in question have been in error or
based on professional rivalry or personal dislike,
these factors do not constitute Title VII violations.
Furthermore, plaintiff was subject, as previously
found, to a multi-step evaluation process.
17. The Court concludes that plaintiff has failed to
meet the burden to establish by a preponderance of
the evidence either that any discriminatory reason
was the true reason or that the proffered legitimate
reasons were false. See, Sims, 813 F.2d at 792.
18. The evidence in the case does not establish
that either religion or national origin was a factor in
the treatment plaintiff perceived as disparate.
Plaintiff has failed in his ultimate burden to prove by
a preponderance of the evidence that defendants
intentionally discriminated against him on the basis
of his religion or national origin.
19. Plaintiff is not entitled to relief under 42
U.S.C. § 2000e-2(a)(1).
20. Title VII also makes it an unlawful
employment practice for an employer subject to its
provisions to discriminate against an employee
"because he has made a charge, testified, assisted or
participated in any manner in an investigation,
A 30
proceeding, or hearing” under Title VII. 42 U.S.C. §
2000e-3(a).
21. Proof of a retaliation claim under title VII is
governed by McDonnell Douglas and its progeny.
Plaintiff must establish by a preponderance of the
evidence: (1) that he engaged in a protected activity;
(2) that the exercise of the civil rights was known by
the defendant; (3) that, thereafter, the defendant took
an employment action adverse to the plaintiff; and (4)
that there was a causal connection between the
protected activity and the adverse employment
action. Wrenn v. Gould, 808 F.2d 493, 500-01 (6th Cir.
1987); Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d
370, 377 (6th Cir. 1984), cert. denied, 106 S. Ct. 3208
(1986); Burrus, 683 F.2d at 343.
22. Employers are not protected or insulated from
discipline or discharge merely due to the fact that they
have filed charges of discrimination or opposed
employer practices that they believe to be
discriminatory. See Brown v. Ralston Purina, XX
F.2d 570, 572 (6th Cir. 1977); Williams v. Boorstin, 663
F.2d 109 (D.C. Cir. 1980), cert. denied, 451 U.S. 985
(1981).
23. Employers do not violate Title VII when they
terminate or refuse to hire employees who are within
protected categories for such reasons as
insubordination, poor work performance, difficulty
in getting along with fellow employees, or the
potential that the employee's continued presence
would cause resentment or hostility. See Daniels v.
Board of Ed. of Ravenna City Schools, 805 F.2d 203,
208-209 (6th Cir. 1986); Weems v. Ball Metal & Chem.
ee
A 31
Div., Inc., 753 F.2d 527 (6th Cir. 1983), cert., denied, 464
U.S. 1011 (1984).
24. The Court concludes that plaintiff has
established a prima facie case of unlawful retaliation
for filing a charge of discrimination by demonstrating
| that he was engaged in protected conduct, that
defendant was aware of his protected activity and that
defendant thereafter took an employment action
adverse to plaintiff under circumstances which justify
anf inference or retaliatory motive.
25. Defendants assert that plaintiff's reprimand
was a result of progressive discipline for his
continuing disruptive behavior in raising grievances,
the merits of which had been previously adjudicated.
26. The Court concludes that the reason asserted
for the reprimand is the true reason. The progressive
warnings issued to plaintiff, which culminated in the
reprimand, are well documented and precede the
filing of plaintiff's charge of discrimination.
Defendants’ witnesses testified credibly as to the
lawful motivation behind the reprimand. Plaintiff
has failed to demonstrate that the reason for the
reprimand is pretextual or that defendants acted
intentionally to unlawfully retaliate against plaintiff
for engaging in protected conduct.
27. Plaintiff is not entitled to relief under 42
U.S.C. § 2000e-3(a).
THEREFORE, for the foregoing reasons, good
cause appearing, it is ORDERED that judgment be,
and hereby is, entered in favor of defendants and
against plaintiff, with costs to defendants.
Leateseeeneeneenen teenie
A 32
United States District Judge
I hereby certify that this instrument is a true and
correct copy of the original on file in my office, on
file in my Office.
Attest: James S. Gallas, Clerk
U.S. District Court
Northern District of Ohio
By:
Deputy Clerk
A 33
- APPENDIX C
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
ABID AL-MARAYATI, Case No. C85-7497
Plaintiff JUDGMENT IN A
CIVIL CASE
UNIVERSITY OF
)
)
)
)
V. )
)
)
TOLEDO, et al., )
)
)
Defendants
(Filed June 27, 1988)
JURY VERDICT. This action came before the Court
for a trial by jury. The issues have been tried and the
jury has rendered its verdict.
DECISION BY COURT. This action came to trial or
hearing before the Court. The issues have been tried
or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED
that judgment is hereby entered in favor of
defendants and against plaintiff, with costs to
defendants. Case dismissed.
United States District Judge
A 34
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
ABID AL-MARAYATI, _ )
)
Plaintiff, ) Case No. C 85-7497
)
V. ) MEMORANDUM
) AND ORDER
UNIVERSITY OF )
TOLEDO, et al., )
)
Defendants, )
(Filed February 5, 1988)
POTTER, J.:
This matter is before the Court on defendants’
motion for summary judgment, plaintiff's
opposition, and defendants’ reply. Also before the
Court is plaintiff's request for clarification of this
Court's February 21, 1986 order, and defendants’
response. Plaintiff instituted this action for
employment discrimination pursuant to Title VII of
the Civil Rights Act of 1964. Defendants are The
University of Toledo (University), Glen Driscoll in
his official capacity as President of The University,
Karl Vezner individually and in his official capacity
as Chairman of the Department of Political Science,
and Sharon E. Doerner individually and in her
official capacity as past chairman of the Department of
Political Science. Plaintiff contends that the
eens
ee
A 35
defendants have intentionally discriminated against
plaintiff on the basis of plaintiff's religion and
national origin. Plaintiff also contends that
| defendants have retaliated Commission (EEOC).
Plaintiff seeks recovery from defendants for
; compensatory damages, punitive damages, and the
. costs of this action, including an award of attorney's
| fees.
On February 21, 1986, this Court granted
defendants’ motion to dismiss the time-barred
claims. The Court determined that any acts of
discrimination occurring before February, 1984 are
time barred and not compensable. Although the
Court did determine that other acts of discrimination
may be used to establish discrimination, the decision
whether to admit these other acts will be based on
their relevancy and probativeness, pursuant to Fed.
R. Evid. 401 and 403, not on whether the evidence is
derived from events that occurred within a certain
time period. Black law Enforcement Officers Ass'n v.
City of Akron, 824 F.2d 475, 483 (6th Cir. 1987).
However, even though this Court may allow plaintiff
to admit evidence of acts occurring outside the 300
day time period, plaintiff must establish that because
of plaintiff's national origin and religion, defendants
discriminated against plaintiff by refusing to give him
a 1984 merit increase.
Plaintiff alleges that this Court's order was vague.
However, the order clearly explained that plaintiff's
cause of action was limited to acts of discrimination
occurring 300 days prior to the filing of the charge of
discrimination. Therefore, the Court, without
a
Pe EI Se PW -. wet
A 36
objection from defendants, will consider whether
defendants discriminated against plaintiff from
February, 1984 until the present.
Without opposition from plaintiff, defendants
contend that a Title VII action can only be maintained
against a state government official in his official
capacity. Richey, Manual on Unemployment
Discrimination Law & Civil Rights Actions in the
Federal Courts, A-7(A) (1984). However, plaintiff may
maintain a cause of action against state entities
pursuant to Title VII. Fitzpatrick v. Bitzer, 427 U.S.
445, 457 (1976). Furthermore, Title VII defines an
employer as including any agent of any employer. 42
U.S.C. § 2000e(b) (1981). Sumervisory employees may
be agents of the employer. Kelly v. Richland School
District 2, 463 F. Supp. 216, 218 (D.S.C. 1978).
Therefore, plaintiff may maintain this action against
the named defendants in their official and not
individual capacity.
Title VII entitles a prevailing plaintiff to equitable
relief. 42 U.S.C. § 2000e-5(g) (1981). Defendants
contend that, since a prevailing plaintiff is only
entitied to equitable relief including back pay, plaintiff
is not entitled to compensatory or punitive damages.
Wilkins v. Walters, 571 F. Supp. 474, 476 (N.D. Ohio
1983). This Court determines that, pursuant to Title
VII, plaintiff is not entitled to compensatory or
punitive damages.
Pursuant to this Court's February 21, 1987 order,
plaintiff's only remaining charge of discrimination
was the decision of defendants regarding the 1984
merit increase. Also, plaintiff alleges that three
eee
| A 37
actions taken by defendant constituted retaliatory
conduct. The retaliatory conduct includes
defendants’ decision to change plaintiff's office,
| defendant Driscoll's official reprimand of plaintiff,
| and defendants’ handling of plaintiff's request for a
leave of absence.
Proof of a charge of discrimination and a claim of
retaliation under Title VII is governed by McDonnell
' Douglas Corp. v. Green, 411 U.S. 792 (1983) and its
| progeny. McDonnell requires that the plaintiff
establish a prima facie case. Although this burden is
easily met, the plaintiff must affirmatively establish
the existence of each element of a prima facie case.
Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the plaintiff has
established a prima facie case, an inference of
discrimination is created, and the burden of going
forward shifts to the defendants "to articulate some
legitimate non-discriminatory reason for the
employees rejection." McDonnell, 411 U.S. at 802. If
the defendant meets this burden of going forward, the
burden of going forward shifts back to the plaintiff to
demonstrate “that the legitimate reasons offered by
. the defendant were not true reasons, but were a
pretext for discrimination.” Id. at 804. The ultimate
burden of proving that the defendant intentionally
discriminated or retaliated against the plaintiff
remains with the plaintiff at all times. Burdine, 450
U.S. at 253.
To establish a prima facie case of retaliation, the
plaintiff must establish:
A 38
(1) that plaintiff engaged in an activity protected by
Title VII; (2) that the exercise of his civil rights
was known by the defendant; (3) that, thereafter,
the defendant took an employment action adverse
to the plaintiff; and (4) that there was a causal
connection between the protected activity and the
adverse employment action.
Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987).
Plaintiff does not dispute defendant's contention
regarding defendant's decision to move plaintiff's
office and defendant's handling of plaintiff's request
for a leave of absence. As Vezner's affidavit states,
Vezner was unaware that plaintiff filed a charge of
discrimination when Venzer made the decision to
change plaintiff's office. Also, defendants’ handling
of plaintiff's request for leave of absence was prior to
plaintiff's filing the charge of discrimination.
Therefore, since defendants were not aware that
plaintiff had exercised his civil rights, plaintiff has
failed to establish a genuine issue of fact regarding
these two claims of retaliatory conduct. Therefore,
defendants are entitled to judgment as a matter of law
of these claims.
The Court has considered plaintiff's charge of
retaliatory conduct regarding Driscoll's decision to
officially reprimand plaintiff. When Driscoll sent the
letter to plaintiff, plaintiff was engaged in a protected
activity and plaintiff's exercise of these rights was
known to defendants. Since Driscoll officially
reprimanded plaintiff, defendant did take an
employment action adverse to plaintiff. A genuine
issue Of material fact exists regarding the causal
connection between the protected activity and the
A 39
employment action. The Court has considered
defendants’ contentions that Driscoll's letter was the
logical consequence of plaintiff's own action.
Whether or not Driscoll had legitimate reasons for
sending the letter or the letter was sent in retaliation
for plaintiff instituting legal proceedings against the
University creates a genuine issue of material fact.
Therefore, defendants are not entitled to judgment
on this claim.
Plaintiff's remaining allegation of discrimination
is based on not receiving a 1984 merit increase.
Plaintiff contends that defendants' conduct in
denying plaintiff a merit increase constituted
unlawful discrimination against plaintiff on the basis
of his religion and national origin. Two theories of
employment discrimination exist under Title VII,
disparate treatment and disparate impact cases. A
disparate treatment case is one in which an employee
alleges that he has been treated less favorably than his
peers because of his race, sex, religion or national
origin. Burdine, 450 U.S. at 256. In a case alleging
disparate treatment, the plaintiff must prove
differences in treatment and a discriminatory motive
on the part of the employer. Underwood v. Jefferson
Memorial Hospital, 639 F.2d 455, 457 (8th Cir. 1981). A
disparate impact case is one in which the plaintiff
alleges that facially neutral tests or employment
criteria impact upon a protected group more harshly
than other groups, and that this practice is not
justified by legitimate, nondiscriminatory reasons. A
party relying on both theories is not required to elect
between the theories before, during or after the trial.
A 40
Rowe v. Cleveland Pneumatic Co., Numerical
Control Inc., 690 F.2d 88, 92 (6th Cir. 1982).
A plaintiff alleging that his employer treated him
less fairly than others because of his race, color,
religion, sex or natioal origin has articulated a claim
based on disparate treatment. Chrisner v. Complete
Auto Transit Co., Inc., 645 F.2d 1251, 1257 (6th Cir.
1981). Since plaintiff is contending that he received a
low 1984 merit increase in comparison with other
similarly situated faculty members, plaintiff has
alleged a cause of action under the disparate
treatment theory. However, under the disparate
impact theory, plaintiff may establish theory.
However, under the disparate impact theory, plaintiff
may establish that the criteria used to determine the
1984 merit increase, although facially neutral,
impacted upon individuals of plaintiff's religion or
national origin more harshly than members of other
groups. Construing the materials submitted under
Fed. R. Civ. P. 56(e)! in the light most favorable to the
plaintiff, this Court determines that, for the purpose
of this motion only and defendants concede, plaintiff
has established a prima facie case.
Defendants contend that even if plaintiff does
establish a prima facie case, the decision not to give
plaintiff a merit increase for 1984 was based on
legitimate, nondiscriminatory reasons. The Court
1 This Court has considered all materials submitted in the
proceeding, pursuant ot the mandates of Fed. R. Civ. P. 56.
Therefore, in deciding the present motion, this Court has
considered only those portions of the record which are properly
before the Court.
A 41
has reviewed the depositions and affidavits of the
parties. Plaintiff contends that the defendants
subjected him to racial slurs and harassment.
According to the plaintiff, the decision of defendants
not to give plaintiff a merit increase was based on
defendants’ unlawful discrimination against plaintiff.
Defendants reply to plaintiff's allegation of
harassment and racial slurs by contending that these
incidents were not intended as harassment or racial
slurs.
The Court has considered Kumar v. Board of
Trustees, University of Mass., 774 F.2d 1 (1st Cir. 1985),
cert. denied, 475 U.S. 1097 (1986). However, Kumar is
procedurally distinguishable from the present
proceeding. Notwithstanding this difference, this
Court realizes that it cannot become a super
reviewing board for university decision. Id. at 12,
(Campbell, C. J., concurring). But the University is
not permitted to make decisions based on an
employee's religion or national origin.
The Supreme Court has recently held that a
motion for summary judgment requires an inquiry to
determine whether "there are any genuine issues that
properly can be resolved only by a trier of fact because
they may reasonably be resolved in favor of either
party.” Anderson v. Liberty Lobby, Inc., 106 S. Ct.
2505, 2511 (1986). In determining whether
defendants’ reasons for denying plaintiff a merit
increase were legitimate or pretextual, this Court
must evaluate the credibility of the respective parties
and resolve factual disputes. Upon the record
presently before this Court, the Court, as the trier of
A 42
fact, may resolve these factual disputes in favor of
either party. Therefore, defendants’ motion for
summary judgment as to plaintiff's claim of
discrimination is not well taken.
THEREFORE, for the foregoing reasons, good
cause appearing, it is ORDERED that defendants’
motion for summary be, and hereby is, GRANTED in
part and DENIED in part.
United States District Judge
ee Oe Eo ees Gee See
RT i ee Ae
:
:
‘
A 43
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
FORK THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
ABID AL-MARAYATI, _)
) Case No. C 85-7497
Plaintiff, )
)
V. ) MEMORANDUM
) AND ORDER
UNIVERSITY OF )
TOLEDO, et al., )
)
Defendants, )
(Filed December 31, 1987)
POTTER, J.:
This matter is before the Court on plaintiff's
motion for leave to amend the complaint,
defendants’ opposition, and plaintiff's reply. This
action was filed in May, 1985. The complaint set forth
two causes of action under Title VII of the Civil
Rights Act of 1964, 42 U.S. C. § 2000e. Defendants’
filed a motion to dismiss contending that all of the
allegedly discriminatory acts except one were time
barred. On February 21, 1986, the Court granted
defendants’ motion to dismiss. This is plaintiff's
second motion to amend. Plaintiff's first motion to
amend sought to amend the complaint to include a
cause of action under 42 U.S.C. § 1983 and to add a
jury demand. The Court denied plaintiff's first
motion to amend.
A 44
Plaintiff's second motion to amend seeks to add
claims against the defendants under 42 U.S.C. § 1981
and 42 U.S.C. § 1985, alleging that "the denial of
employment benefits and opportunities was the
result of actions and a conspiracy to intentionally
deny him benefits because of his natioal origin."
Plaintiff's motion and memorandum for leave to file
amended complaint at 2. Plaintiff claims that his
cause of action for intentional employment
discrimination was not recognized until the Supreme
Court's decision of Saint Francis College v. Al-
Khazraji, 407 S. Ct. 2022, reh’g denied, 107 S. Ct. 3244
(1987). Therefore, since this cause of action was not
available to plaintiff when he filed his complaint,
plaintiff maintains that the motion to amend should
be granted.
Defendants contend that this motion is untimely
because the Supreme Court's decision was issued
within a few days of plaintiff's first motion to amend.
Therefore, defendants contend that plaintiff could
have incorporated this argument into the first
motion to amend. Also, defendants maintain that
the Sixth Circuit has recognized a cause of action for
discrimination on the basis of national origin under
42 U.S.C. § 1981 and § 1985. Marlowe v. Fisher Body,
489 F.2d 1057, 1060 (6th Cir. 1973).
Although plaintiff alleged a cause of action for
discrimination based on national origin in Marlowe,
the court did not expressly recognize this type of
discrimination as a valid cause of action under 42
U.S.C. § 1981 and § 1985. id. at 1063. In this present
proceeding, plaintiff should have been cognizant of
a
A 45
his rights shortly after the Supreme Court ruling in
Al-Khazraji.. However, even though a motion to
amend was pending, plaintiff did not attempt to
include a cause of action under 42 U.S.C. § 1981 until
six months after the Supreme Court decision.
Fed. R. Civ. P. 15 (a) provides:
[a] party may amend the party's pleading once as a
matter of course at any time before a responsive
pleading is served or, if the pleading is one to
which no responsive pleading is permitted and
the action has not been placed upon the trial
calender, the party may so amend it at any time
) within 20 days after it is served. Otherwise a party
) may amend the party's pleading only by leave of
court or by written consent of the adverse party;
| and leave shall be freely given when justice so
requires.
Fed. R. Civ. P. 15(a). The granting or denying of a
motion for leave to file an amended complaint is
committed to the discretion of the Court. Zenith
Radio Corp. v. Hazeltime Research, Inc., 401 U.S. 321,
330 (1971). If the non-moving party will be prejudiced
by the amended complaint, the motion should be
denied. Id. at 331. Also, if an amended complaint
could not withstand a motion to dismiss under Fed.
R. Civ. P. 12, plaintiff's motion to amend the
complaint should be denied. Neighborhood
Development v. Advisory Council on Historic
Preservation, Dept. of Housing & Urban
Development, 632 F.2d 21, 23 (6th Cir. 1980).
. Therefore, if, as a result of permitting the plaintiff
to amend the complaint, defendants will have
insufficient time to conduct discovery, will be
unfairly surprised by the change in theories or in
heel
a NN ee
A 46
anyway be unable to effectively rebut plaintiff's new
theory at trial, defendants will have demonstrated
that the amendment adversely affected their posture
in this litigation. Roth Steel Products v. Sharon Steel
Corp., 705 F.2d 134, 155 (6th Cir. 1983). However,
"(t]he fact that the defendants might have to
undertake some discovery proceedings and have time
within which to answer is not sufficient reason for
denial of the motion.” Farrell v. Hollingsworth, 43
F.R.D. 362, (D.S.C. 1968).
Furthermore, the request to amend the complaint
to add civil rights claims should not be denied on the
grounds of timeliness where no prejudice is alleged
by the defendants. Boileau v. Bethlehem Steel Corp.,
730 F.2d 929, 938 (3d Cir.) cert. denied, 469 U.S. 871
(1984). But this issue of timeliness must be
considered in conjunction with Fed. R. Civ. P. 1's
express concern for the "just, speedy and inexpensive
determination of every action.” Fed. R. Civ. P.1.
This matter is in the final stages of trial
preparation.! Furthermore, the Court has established
December 1, 1987 as a motion practice deadline. If the
plaintiff is permitted to amend, defendants are
prejudiced by being denied an opportunity to
adequately prepare and file any motions regarding
these added causes of action. Therefore, plaintiff's
motion is not well taken.
THEREFORE, for the foregoing reasons, good
cause appearing, it is ORDERED that plaintiff's
motion to amend be, and hereby is, DENIED.
1 February 16, 1988 is the fourth trial date assigned to this case.
——eoOe
A 47
United States District Judge
A 48
APPENDIX F
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
ABID AL-MARAYATI, _ )
) Case No. C 85-7497
Plaintiff, )
) MEMORANDUM
V. ) AND ORDER
)
UNIVERSITY OF )
TOLEDO, et al., )
)
Defendants, )
(Field August 5, 1987)
POTTER, J.:
This matter is before the Court on plaintiff's
motion for leave to amend the complaint and
defendants’ opposition. This action was filed in May,
1985. The complaint set forth two causes of action
under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e. Defendants filed a motion to dismiss
contending that all of the allegedly discriminatory
acts except one were time-barred. On February 21,
1986, the Court granted defendants' motion to
dismiss.
The amended complaint alleges that the same acts
described in the complaint are now violations of 42
U.S.C. § 1983, thereby substituting 42 U.S.C. § 1983 for
42 U.S.C. § 2000e as the theory of liability. Plaintiff
makes one new factual allegation in the amended
aia
A 49
complaint, seeks to add the present president of the
University as a new party, names all defendants in
their individual and official capacities, seeks to add a
jury demand and predicates his prayer for attorney's
fees on 42 U.S.C. § 1988.
Plaintiff contends that the change of attorneys,
| after plaintiff's original counsel withdrew, is
sufficient justification for allowing plaintiff to amend
| the complaint to Fed. R. Civ. P. 15(a). Defendants
contend tnat the motion for leave to amend the
complaint should be denied because it wouid be futile
and unfair to allow the filing of the proposed
amendment.
Fed. R. Civ. P. 15(a) provides:
[a] party may amend the party's pleading once as a
matter of course at any time before a responsive
pleading is served or, if the pleading is one to
which no responsive pleading is permitted and
the action has not been placed upon the trial
calender, the party may so amend it at any time -
within 20 days after it is served. Otherwise a party
may amend the party's pleading only by leave of
court of by written consent of the adverse party;
and leave shall be freely given when justice so
requires.
Fed. R. Civ. P. 15(a). The granting or denying of a
motion for leave to file an amended complaint is
committed to the discretion of the Court. Zenith
Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321,
330 (1971). If the non-moving party will be prejudiced
by the amended complaint, the motion should be
denied. Id. at 331. Also, if an amended complaint
could not withstand a motion to dismiss under Fed.
R. Civ. P. 12, plaintiff's motion to amend the
A 50
complaint should be denied. Neighborhood
Development v. Advisory Council on Historic
Preservation, Dept. of Housing & Urban
Development, 632 F.2d 21, 23 (6th Cir. 1980).
Therefore, if, as a result of permitting the plaintiff
to amend the complaint, defendant will have an
insufficient time to conduct discovery, will be
unfairly surprised by the change in theories or in
anyway be unable to effectively rebut plaintiff's new
theory at trial, defendant will have demonstrated that
the amendment adversely affected their posture in
this litigation. Roth Steel Products v. Sharon Steel
Corp., 705 F.2d 134, 155 (6th Cir. 1983). However,
"(t]he fact that the defendants might have to
undertake some discovery proceedings and have time
within which to answer is not sufficient reason for
denial of the motion." Farrell v. Hollingsworth, 43
F.R.D. 362, 363 (D.S.C. 1968).
Defendants contend that by allowing plaintiff to
recast his complaint as a § 1983 actio, defendants
would be unfairly prejudiced, it would defeat the
reasonable expectations of the defendants and would
require additional expensive’ discovery.
Furthermore, defendants contend that the
amendment is frivolous and therefore plaintiff is not
acting in good faith in filing this motion for leave to
amend. On February 21, 1986, this Court issued an
order dismissing all of plaintiff's allegations which
occurred outside the 300 day filing period under Title
VII. The only new factual allegation in the amended
complaint occurred no later than 1982. Therefore,
under the precedent of Wilson v. Garcia, 471 U.S. 261
|
A 51
(1985), and Mulligan v. Hazzard, 777 F.2d 340 (6th Cir.
1985), cert. denied, 106 S. Ct. 2902 (1986), this new
allegation contained in paragraph 10 of the amended
complaint is not cognizable in this proceeding.
Furthermore, the eleventh amendment
establishes an absolute bar to a suit for monetary
damages against the state unless the state has
; consented to be sued. Alabama v. Pugh, 428 U.S. 781
(1978). Under the precedent established by the Sixth
Circuit and this Court, the University of Toledo and
the individual defendants in their official capacities
are entitled to immunity under the eleventh
) amendment as an alter ego or arm of the state. Hall
| v. Medical College of Ohio, 742 F.2d 299 (6th Cir.
| 1984), cert. denied, 469 U.S. 1113 (1985); Crenshaw v.
University of Toledo, No. C 84-8067 (N.D. Ohio
January 28, 1986). Therefore, the addition of the new
allegation of paragraph 10 and the allegations against
the University and the individual defendants in their
official capacities would not withstand a motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
The Court determines that pursuant to the criteria
of Fed. R. Civ. P. 15(a) that, although any prejudice to
defendants may be slight, the additional allegations of
the proposed amended complaint are futile, thereby
rendering plaintiff's motion for leave to amend the
complaint unnecessary. Since the cases relied on by
plaintiff involve the addition of counts to the
complaint, not the deletion of existing theories of
liability, these cases are unpersuasive.
THEREFORE, for the foregoing reasons, good
cause appearing, it is ORDERED that plaintiff's
A 52
motion for leave to file an amended complaint be,
and hereby is, DENIED and the amended complaint
be, and hereby is, STRICKEN.
United States District Judge
A 53
APPENDIX G
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
ABID AL-MARAYATI, _ )
) Case No. C 85-7497
Plaintiff, )
) ME NDUM
V. ) AND ORDER
)
UNIVERSITY OF ) 7
TOLEDO, et al., )
)
Defendants, )
(Filed February 21, 1986)
POTTER, J.:
This cause came on to be heard on defendants'
joint motion to dismiss and motion for stay.
Defendants acknowledge that the motion to stay is
moot and for this reason the motion to stay will be
denied.
Defendants’ motion to dismiss is directed to
certain acts which fall outside the 300 day filing
period. Plaintiff's complaint is in very general terms
as to when the discrete acts of discrimination
occurred. Defendants refer to the charge affidavit and
assert that except for the merit increase act of 1984, all
other discrete acts fall outside the 300 day filing
period.
Plaintiff asserts that the other acts may be
"background" to prove intent and that there is a
A 54
continuing violation. See United Air Lines, Inc. v.
Evans, 431 U.S. 553 (1977).
The Court first discusses the issue of continuing
violation. The recent case of Sawchik v. E. I. DuPont
De Nemours & Co., No. 84-3783 (6th Cir. Feb. 13,
1986), is helpful. On page 6 the court said the
following:
Plaintiff's attempt to fix July 1, 1981 as the date that
the 300-day time starts to run won't stand scrutiny.
This was simply the date his retirement became
effective. There is no suggestion, nor could there
be, that any discriminatory act occurred on that
date. It is now settled that the 300 day time period
begins to run in a discrimination case when the
individual involved became aware of the
discriminatory act and not when the consequences
are felt. Delaware State College v. Ricks, 449 U.S.
250, 258 (1980). Ricks also teaches that "[mJere
continuity of employment, without more, is
insufficient to prolong the life of a cause of action
for employment discrimination.” Id. at 257.
"A plaintiff may not circumvent Title VII's
stringent time limits merely by characterizing a
completed act of discrimination as a ‘continuing
violation.’ Delaware State College v. Ricks, 449 U.S.
250, 257 (1980)." Richey, Manual on Employment
Discrimination Law and Civil Rights Actions in the
Federal Courts (1984) at p. A-18.
See also Chardon v. Fernandez, 454 U.S. 6 (1981).
It is the order of the Court that all acts of
discrimination which occurred outside the 300 day
filing period are, therefore, time-barred. Pursuant to
Evens, such acts may be relevant as background.
A55
Since the Court has ruled that prior acts may be
background, the Court instructs counsel, pursuant to
Local Civil Rule 3.04, at attempt to resolve their
differences concerning discovery.
THEREFORE, for the foregoing reasons, good
cause appearing, it is ORDERED that defendants’
motion to stay be, and hereby is, DENIED; and it is
FURTHER ORDERED that defendants’ motion to
dismiss be, and hereby is, GRANTED; and it is
FURTHER ORDERED that plaintiff's motion to
compel be, and hereby is, DENIED.
United States District Judge
A 56
APPENDIX H
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ABID AL-MARAYATI,
Case No. 88-3643
ORDER
Plaintiff-Appellant,
UNIVERSITY OF
)
)
)
)
V. )
)
)
TOLEDO, et al., )
)
Defendants-Appellees )
(Filed September 22, 1989)
BEFORE: MARTIN, WELLFORD, and MILBURN,
Circuit Judges.
Upon consideration of the petition for rehearing
filed herein by the appellant, the Court concludes that
all of the questions addressed in the petition for
rehearing were fully considered upon the original
submission and decision of this case.
It is THEREFORE ORDERED that the petition for
rehearing be, and it hereby is, DENIED.
ENTERED BY ORDER OF THE COURT
Leonard Green, Clerk
A 57
APPENDIX I
Qhio Revised Code 2305.09 Four years; certain torts
An action for any of the following causes shall be
brought within four years after the cause thereof
accrued:
(A) For trespassing upon real property;
(B) For the recovery of personal property, or for
taking or detaining it;
(C) For relief on the ground of fraud;
(D) For an injury to the rights of the plaintiff not
arising on contract nor enumerated in sections
2305.10 to 2305.12, inclusive, 2305.14 and 1304.29 of the
Revised Code.
If the action is for trespassing under ground in
injury to mines, or for the wrongful taking of
personal property, the causes thereof shall not accrue
until the wrongdoer is discovered; nor, if it is for
fraud, until the fraud is discovered.
HISTORY: 129 v 13, eff. 7-1-62
1953 H 1; GC 11224
Ohio Revised Code 2305.10 Bodily injury or injury to
personal property; when certain causes of actio arise
An action for bodily injury or injuring personal
property shall be brought within two years after the
cause thereof arose.
For purposes of this section, a cause of action for
bodily injury caused by exposure to asbestos or to
A 58
chromium in any of its chemical forms arises upon
the date on which the plaintiff is informed by
competent medical authority that he has been injured
by such exposure, or upon the date on which, by the
exercise of reasonable diligence, he should have
become aware that he had been injured by the
exposure, whichever date occurs first.
For purposes of this section, a cause of action for
bodily injury incurred by a veteran through exposure
to chemical defoliants or herbicides or other causative
agents, including agent orange, arises upon the date
on which the plaintiff is informed by competent
medical authority that he has been injured by such
exposure.
As used in this section, "agent orange,” "causative
agent,” and "veteran" have the same meanings as in
section 5903.21 of the Revised Code.
For purposes of this section, a cause of action for
bodily injury which may be caused by exposure to
diethlystibestrol or other nonsteroidal synthetic
estrogens, including exposure before birth, arises
upon the date on which the plaintiff learng from a
licensed physician that he has an injury which may
be related to such exposure, or upon the date on
which by the exercise of reasonable diligence he
should have become aware that he has an injury
which may be related to such exposure, whichever
date occurs first.
ww
HISTORY: 1984 H 72, eff. 5-31-84
1982 S 406; 1980 H 716; 1953 H 1; GC 11224-1
Qhio Revised Code 4112.01 Definitions
ee
A 59
(A) As used in sections 4112.01 to 4112.11 of the
Revised Code: ...
(2) “Employer” includes the state, or any political
or civil subdivision thereof, any person employing
four or more persons within the state, and any person
acting in the interest of any employer, directly or
indirectly.
Qhio Revised Code 4112.99 Civil Action for
violations
Whoever violates this chapter is subject to a civil
action for damages, injunctive relief, or any other
appropriate relief.
HISTORY: 1987 H 5, EFF. 9-28-87
1976 S 162; 1969 H 432; 128 V 12
42 USC § 1983
Ohio Revised Code Section 1983. Civil action for
deprivation of rights
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to
A 60
the party injured in an action at law, suit in equity, or
other proper proceeding for redress. For the purposes
of this section, any Act of Congress applicable
exclusively to the District of Columbia shall be
considered to be a statute of the District of Columbia.
(R.S. § 1989; Dec. 29, 1979, P. L. 96-170, § 1, 93 Stat.
1284.)
42 USC § 2000(e)-3(a)
§ 2000e-3. Other unlawful employment practices
(a) Discrimination for making charges, testifying,
assisting, or participating in enforcement proceedings.
It shall be an unlawful employment practice for an
employer to discriminate against any of his
employees or applicants for employment, for an
employment agency, or joing labor-management
committee controlling apprenticeship or other
training or retraining, including on-the-job training
programs, to discriminate against any individual, or
for a labor organization to discriminate against any
member thereof or application for membership,
because he has opposed any practice made an
unlawful employment practice by this title [42 USCS
§§ 2000e-2000e-17], or because he has made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this title
[42 USCS §§ 2000e-2000e-17].
A 61
APPENDIX J
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
ABID AL-MARAYATI,
Case No. C 85-7497
Plaintiff
_. COMPLAINT
UNIVERSITY OF
)
)
)
)
)
)
)
TOLEDO, )
)
and )
)
GLEN DRISCOLL, )
)
and )
)
KARL VEZNER, )
)
and )
)
SHARON E. DOERNER, )
)
)
Defendants,
1. Jurisdiction for this action is based upon
Section 706 of Title VII of the Civil Rights Act of 1964,
42 USC 2000e-5. In the alternative jurisdiction is
based upon 28 USC 1331 and 2201.
2. The Plaintiff is a citizen of the State of Ohio,
and a resident of Toledo, Lucas County, Ohio. His
A 62
country of national origin is Iraq and he is a Muslim
in his religious beliefs.
3. The Defendant, University of Toledo
(hereafter University) is a part of the Ohio State
University System and has been the Plaintiff's
employer since 1968.
4. The Defendant, Glen Driscoll is the President
of the University and is charged by law and by the
Board of the Trustees of the University with the
operation and management of the University.
5. The Defendant, Karl Vezner is an employee of
the University and is currently the Chairman of the
Political Science Department. The Defendant Sharon
Doerner is a member of the Political Science
Department and was its former Chairman.
FIRST CAUSE OF ACTION
6. In 1972 Plaintiff was promoted by the
University to the rank of full professor in the
Department of Political Science.
7. Since 1975 the Plaintiff has been subjected to
an ongoing campaign of harassment affecting the
terms and conditions of his employment because of
Plaintiff's national origin and/or religious beliefs.
8. The Defendants have intentionally
discriminated against the Plaintiff because of his
national origin and/or religious beliefs by:
a. giving Plaintiff poor teaching evaluations
while knowing that such evaluations were false;
A 63
b. giving Plaintiff poor merit salary
increases;
c. inhibiting and punishing Plaintiff for
expressing his beliefs concerning matters effecting
the University and the Political Science
Department;
d. conducting a campaign of harassment
with a view towards forcing Plaintiff t to resign his
tenured faculty position.
9. Specific examples of the Defendants’
discrimination include, but are not limited to the
following incidents:
a. The year the Plaintiff won the
University’s "Outstanding Teacher Award" is the
same year Plaintiff was given a poor salary merit
increase, substantially less than the average in the
: department, because the Defendant was evaluated
by his department as a "poor teacher";
b. Another member of the Political Science
Department was hired the same year as Plaintiff.
Although Plaintiff has the same seniority at the
University of Toledo as this individual. The other
non-Muslim non-Iraqi faculty member, now has a
salary significantly higher than Plaintiff which is -
solely the result of the unlawful discrimination
which Plaintiff is suffering.
Se ta ets yi UR Sh srt tt da te lh 5.3
10. The actions of the Defendants as set out above
are in violation of Civil Rights Act of 1964, as
amended.
A 64
11. On or about April 19, 1985, after having filed
the charge of discrimination with the Ohio Civil
Rights Commission, as required by law, Plaintiff
received a "right to sue” letter from the Equal
Employment Opportunity Commission, a copy of
which is attached as Exhibit A.
SECOND CAUSE OF ACTION
12. After filing the charge of discrimination with
the Ohio Civil Rights Commission as required by law,
the Defendants retaliated against the Plaintiff. The
retaliatory conduct of the Defendants included:
a. Moving Plaintiff from the office that be
occupied for over fifteen years to a smaller and
less desirable office, and moving into Plaintiff's
old office a non-Iragi, Non-Muslin, faculty
member with less seniority than Plaintiff;
b. Reprimanding Plaintiff for exercising his
first amendment right of free speech when
Plaintiff commented on the qualifications of
Sharon E. Doerner, who was being considered for
promotion in the Political Science Department;
c. By refusing to inform Plaintiff whether he
could take a leave of absence for 1984-1985 after
Plaintiff filed an application pursuant to the
University's official rules and regulations.
13. The actions of the Defendant as set out above
are in violation of Section 704 (a) of the Civil Rights
Act of 1964, as amended.
A 65
WHEREOF, Plaintiff respectfully prays this Court
to advance this case on the docket, order a speedy
hearing at the earliest practicable date, cause this case
to be in every way expedited, and upon such hearing
to:
a. Declare that the Plaintiff has suffered from
the acts of discrimination at the hands of the
Defendants;
b. Award Plaintiff the back pay he should
have earned together with the related benefits and
interest had he not been discriminated against by
the Defendants;
c. Award Plaintiff compensatory and
punitive damages;
RE LE ARR. Ne Re IB i Rte
d. Award Plaintiff the costs of this action,
including an award of reasonable attorney fees and
such an other and further relief as may be just and
proper.
ee ere tone
PRE at ON OI ek Gl Sins B ey
| Michael N. Vaporis
; Dennis P. Strong
. BAYFORD, SENERIUS, VAPORIS & STRONG
Suite 238
4334 West Central Avenue
Toledo, Ohio 43615
(419) 537-8631
A 66
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
ABID AL-MARAYATI, _ )
) Case No. C 85-7497
Plaintiff, )
) AMENDED
V. ) COMPLAINT AND
) TURY DEMAND
UNIVERSITY OF )
TOLEDO and GLEN )
DRISCOLL, KARL )
VEZNER, SHARRON _ )
E. DOERNER and JAMES )
D. McCOMAS, )
Individually and in their )
Official Capacities, )
Jointly and Severeally, )
)
Defendants, )
AMENDED COMPLAINT
NOW COMES PLAINTIFF, by and through his
attorneys, Lawrence D. Hochman and Jeffrey Lydy,
and for his Amended Complaint states as follows:
* I - VIOLATION OF 42 198
1. Jurisdiction is based upon 28 USC 1331 and
1343.
2. The Plaintiff is a citizen of the State of Ohio,
and a resident of Toledo, Lucas County, Ohio. His
A 67
country of national origin is Iraq and he is a Muslim
in his religious beliefs.
— 3. The Defendant, University of Toledo
(hereafter University) is a part of the Ohio State
University System and has been the Plaintiff's
employer since 1968.
4. The Defendant, Glen Driscoll was the
President of the University and was charged by law
i and by the Board of the Trustees of the University
. with the operation and management of the
University.
5. The Defendant, Karl Vezner is an employee of
the University and is currently the Chairman of the
Political Science Department. The Defendant
Sharron Doerner is a member of the Political Science
Department and was its former Chairman. The
Defendant James E. McComas is the current President
of the University.
6. In 1972 Plaintiff was promoted by the
University to the rank of full professor in the
Department of Political Science.
7. Since 1975 the Plaintiff has been subjected to
an ongoing campaign of harrassment affecting the
terms and conditions of his employment because of
Plaintiff's national origin and/or religious beliefs.
|
;
A 68
8. The Defendants have _ intentionally
discriminated against the Plaintiff because of his
national origin and/or religious beliefs by:
a. giving Plaintiff poor teaching evaluations
while knowing that such evaluatios were false;
b. giving Plaintiff poor merit salary
increases;
c. inhibiting and punishing Plaintiff for
expressing his beliefs concerning matters effecting
the University and the Political Science
Department;
d. conducting a campaign of harrassment
with a view towards forcing Plaintiff to resign his -
tenured faculty position.
9. Specific examples of the Defendants'
discrimination include, but are not limited to the
following incidents:
a. The year the Plaintiff won the
University's "Outstanding Teacher Award" is the
same year Plaintiff was given a poor salary merit
increase, substantially less than the average in the
department, because the Defendant was evaluated
by his department as a "poor teacher";
b. Another member of the Political Science
Department was hired the same year as Plaintiff.
Although Plaintiff has the same seniority at the
University of Toledo as this individual. The other
non-Muslim non-Iraqi faculty member, now has a
salary significantly higher than Plaintiff which is
wot
A 69
solely the result of the unlawful discrimination
which Plaintiff is suffering.
10. When Plaintiff, at the request of a student,
posted a summary of Baghdad, Iraq weather for a
particular year, Defendant Doerner wrote on that
summary the following,
"Yes, but what about freedom of speech, press,
assembly, petition, and religion? And the
freedom to be a non-Marxist?"
and attached same to the mailboxes for all to see, in
an attempt to harass, embarrass and intimidate
Plaintiff and in implicit violation of Plaintiff's
protected liberty rights under the First and
Fourteenth Amendments.
11. On or about April 19, 1985 Plaintiff filed a
charge of discrimination with the Ohio Civil Rights
Commission and Defendants retaliated against
Plaintiff in the following ways, among others:
a. Moving Plaintiff from the office that he
occupied for over fifteen years to a smaller and
less desirable office, and moving into Plaintiff's
old office a non-Iragi, Non-Muslim, faculty
member with less seniority than Plaintiff;
b. _Reprimanding Plaintiff for exercising his
first amendment right of free speech when
Plaintiff commented on the qualifications of
Sharon E. Doerner, who was being considered for
promotion in the Political Science Department;
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_¢ By refusing to inform Plaintiff whether he
could take a leave of absence for 1984-1985 after
Plaintiff filed an application pursuant to the
University's official rules and regulations.
12. By virtues of its acts and omissions
Defendants, acting under color of State law, deprived
Plaintiff of his protected liberty, property and due
process and equal protection interests under the First,
Fifth and Fourteenth Amendments to the United
States Constitution in violation of 42 USC 1983.
13. The acts and omissions of Defendants were a
proximate cause of Plaintiff's injuries and damages.
14. Plaintiff suffered loss of income, humiliation,
outrage, indignity, mental distress and the loss of
valued civil rights due to the invidious
discrimination by Defendants.
WHEREFORE PLAINTIFF RESPECTFULLY PRAYS
for the following:
a. Actual, compensatory and punitive damages
in excess of $10,000.00, together with costs.
b. Reasonable attorney fees as per 42 USC 1988.
c. A declaratory judgment that the acts
complained of are unconstitutional.
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[URY DEMAND
Plaintiff demands a trial by jury.
Lawrence D. Hochman P28924
24715 Five Mile Rd., Suite 3
Redford, MI 48239
(313) 537-3624
R. Jeffrey Lydy (5256)
LYDY, MOAN & DOUGLAS
4052 Holland-Sylvania Road
Toledo, Ohio 43623
(419) 885-5070
Dated: June 21, 1987
PROOF OF SERVICE
The undersigned certifies that he served this pleading
upon all attorneys of record by placing same in an
evelope, properly addressed and stamped, and
depositing same in a U.S. Mailbox in Ann Arbor, MI
on June 21, 1987.
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November 19, 1984 (Trial Exhibit TT)
MEMORANDUM TO:
Administrative Committe for Academic
Personnel
FROM:
Abid A. Al-Marayati, Professor
Department of Political Science
RE: Nomination for Promotion of Mr. Sharron
E. Doerner
I have received a memorandum from Karl O.
Vezner, Chairman, Department of Political Science,
in which he endorses the recommendation of the
Executive Committee of the Department, that Mr.
Doerner be promoted to the rank of professor.
Professor Vezner's memorandum refers also to the
availability of promotion materials in the main office
of the Department on Monday, November 5. I have
examined the material relating to Professor Doerner
as follows:
1. his curriculum vitae
2. letters from Professors, Bigney, Larson,
Weisfelder and Wilson
3. pamplet, "Indian Votes: Election Returns for
United States Representatives and State Assembly
1922-1958," of which Professor Doerner is co-editor.
Recast 9 2 ei Aaa a A
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This is all of the material that was presented in the
office relating to the nomination, and I assume there
was nothing further to be added to it. There was no
explanation of the rationale of the Executive
Committee and the Chairman in making their
recommendation. I wish to state on the basis of the
materials presented, I find no grounds whatever for
supporting the nomination of Professor Doerner for
professional rank. According to Professor Vezner's
memorandum a departmental meeting to discuss the
recommendation was held on Friday, November 9; I
was unable to attend this meeting, being absent at a
conference.
I cannot support Professor Vezner's
recommendation on behalf of Professor Doerner, for
reasons as follows:
Teaching: In respect of Professor Doerner's
teaching record, I have been shown no written
reports from students. Rather, anonymous oral
attributions are cited purporting to favor Professor
Doerner. In the circumstances, where were are
involved in considering “the highest recognition the
University can bestow upon individual." I find such
citations insubstantial and unacceptable.
I submit that alleged hearsay on the part of
academic personnel whose function in no way relates
to teaching evaluations, is not only unacceptable but
rather dangerous, as being open to abuse, postively or
negatively.
Professor Doerner received the Outstanding
Teaching Award in 1970: it may be assumed that
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reward for this distinction has already been bestowed.
In any case, the Department has not recognized this
Award in merit evaluation. Moreover, there is
provision in the Department for written evaluations
by students: no such evaluation has been produced
for Professor Doerner.
Service: The service attributed to Professor
Doerner has been mainly in the political area within
the University. This is not to say that such service
may not be useful, and that the nominee has not
already been rewarded for it from year to year in
merit pay. It does not compare however, with the
broader areas of service extending to the community
at large.
One letter of support for Professor Doerner's
nomination reports his steady attendance at meetings
of the Conference Committe. However, as a
department chairman, Professor Doerner was but
rarely in his office, and conducted department
business from his residence. In this context , I see
nothing about the service record of the nominee that
in any way would recommend him for promotion,
bearing especially in mind the guidelines for
promotion of the College of Arts and Sciences.
It has been suggested on behalf of Professor
Doerner that he is a defender of faculty rights. This
opinion is altogether at variance with my own
knowledge of Professor Doerner's behavior, where he
grossly violated all canons of civil discourse and
accountability, rendering meaningless the principles
of academic freedom and tenure at The University of
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Toledo. The damage in this context to Department,
College, and University is yet to be assessed.
In addition, he as exhibited discriminating
behavior in racial and political contexts.
Research: Professor Doerner's contribution under
this heading is so negligible as to be of no significance.
He is listed as co-editor of what is essentially a
compilation of statistics in a pamphlet that was
published some twenty-two years ago: no doubt, if
any credit was due for this, it has already been given.
The exhibition of this as grounds for promotion
merely highlights the absence of any other
contribution under this heading. Professor Doerner
has, of course, never proceeded to the Ph.D. degree.
Considering the foregoing, and_bearing in mind
the wording of the Guidelines for faculty promotion,
which says, in part: "The professor should be a
mature faculty member of established teaching ability,
scholarly achievements, and service. Normally, he
should be a recognized, creative, and highly regarded
scholar in his field ...," it is clear that the academic
profile of Mr. Doerner in no way correlates with the
profile of the faculty member who is to be considered
for the "highest recognition the University can
bestow upon an individual."
These representations in writing as an integral
part of the documentation relating to the proposal to
promote Professor Doerner. I do this with the
reasonable expectations that, as my representations
herein are available to anyone concerned with this
matter, any representations made by others, apart
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from those I have listed above, will be made available
to me for my information and possible response.
I draw the attention of everyone concerned that I
may be going on a leave of absence about the end of
this Fall Quarter. Accordingly, if further information
or elaboration is desired, I should be glad to provide
it.
cc: William N. Free, Vice President for Academic
Affairs
Alfred A. Cave, Dean, College of Arts and Sciences
University Committee on Academic Personnel
S.E. Doerner, Associate Professor, Department of
Political Science
Karl O. Vezner, Chairman, Department of
Political Science
Committee on Promotion, Department of Political
Science
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.