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Chung v. Berkman

United States District Court, Sixth Circuit

August 26, 2013

RONALD M. BERKMAN, et al., Defendants.


DAN AARON POLSTER, District Judge.

Before the Court are Defendants' Partial Motion to Dismiss Pursuant to Federal Civil Rules 12(b)(1) and 12(b)(6) (Doc #: 9) and Plaintiff's Motion to Strike Defendants' Partial Motion to Dismiss (Doc #: 10). For the reasons set forth below, the Partial Motion to Dismiss is GRANTED, and the Motion to Strike is DENIED.


Pro se Plaintiff Woo Young Chung filed this action under Title VII, 42 U.S.C. § 2000e et seq., against Cleveland State University ("CSU") and under 42 U.S.C. §§ 1981, 1983 and 1985 against CSU President Ronald M. Berkman, CSU Trustee Robert H. Rawson, Jr. CSU Vice President of Business Affairs and Finance Stephanie Y. McHenry, CSU Vice President of Enrollment Services Carmen A. Brown, CSU University Registrar Janet L. Stimple, CSU Director of Audits Judith A Richards, CSU Manager of Audits John N. Petrus, CSU Associate Vice President of Finance and Technology Timothy J. Long, CSU Chief Information Officer William Wilson, CSU Manager of Data and Network Security Michael O. Holstein, CSU Vice Provost for Academic Planning Teresa C. LaGrange, CSU Director of Institutional Research Thomas Geaghan, CSU General Counsel Sonali B. Wilson, CSU Assistant General Counsel Kelly M. King, CSU Director of Diversity and Multicultural Affairs Donna M. Whyte, CSU Law Library Director Kristina L. Niedringhaus, and CSU Manager of Labor Relations Denise Mutti.

Plaintiff alleges CSU hired him on January 10, 2011 as the Manager of System and Data Analysis, reporting to the Vice President of Enrollment Services, Corinne Webb. His job duties included data collection oversight and analysis for reporting, developing and maintaining a database system, implementing technical projects, and consulting on institutional data. He was assigned three specific projects when he was hired. First, he was asked to design and implement Dashboard, a computerized system to track the students' academic progress toward graduation. Next, he was assigned to oversee the design and implementation of two programs purchased from outside vendors. When those projects were ready for interface with the CSU central database, the actual coding tasks were assigned to employees from the Information Services and Technology Department. He asked to be assigned to those tasks but claims Richards directed the request be denied. He contends the employees given the coding tasks were Caucasian.

In May 2011, Richards (the Director of Audits) and Petrus (the Audits Manager) raised concerns about Dashboard's security features. They indicated the program did not properly protect students' social security numbers and credit card information from exposure. Richards asked Plaintiff to create a security check list to ensure sensitive information was protected; however, Plaintiff told her that her concerns were not valid. It does not appear that Plaintiff complied with Richard's request. At that same meeting, Plaintiff expressed disappointment at being excluded from the coding tasks for the other two programs and asked that the requirements for the programs be published in the future so that minorities could seek out those assignments.

Plaintiff applied for the position of Director of Institutional Research on June 5, 2011. He contends several personnel department employees told him he was a good candidate for the job based on his prior work experience. Plaintiff learned in September 2011 that another candidate, Thomas Geaghan, was hired for the position. He contends he was better qualified than Geaghan, who is Caucasian. He claims that when he asked why he did not get the position, he was told he did not meet the minimum requirements.

Plaintiff claims in July 2011, while working on a program to automate application fee refunds, he noticed accounting transaction balances that did not reconcile with payment records. He claimed a large amount of application fees were being deposited into a University staff member's account rather than the application account. He reported this to the Director of Administration. Brown replaced Webb as the Vice President of Enrollment Services in August 2011, and shortly thereafter, Plaintiff reported the accounting irregularities to Brown, suggesting she investigate.

A week later, Richards again raised security concerns about Dashboard and renewed her request for Plaintiff to complete a security check list for the program. Plaintiff claims no other employees were asked to make a check list for their programs. On August 23, 2011, Plaintiff met with Richards, Brown, Long, LaGrange, Sonali Wilson, Petrus, Holstein, and two students who worked for the Audits Department to discuss the Dashboard security concerns. Plaintiff denied there was a problem with the program and felt he was the target of the complaints. Two days later, Richards and Holstein reported to Brown that they believed Plaintiff may be storing unauthorized information on his computer, which they confiscated and searched. That same day, Plaintiff met with the University's Director of Affirmative Action. He claimed he had been excluded from coding tasks and falsely accused of improperly handling sensitive student data because of his national origin.

Plaintiff received several indications in October 2011 that Brown was not satisfied with his work. He claims she reported he had neglected a project to which he alleges he was not assigned. He contends Brown and Stimple blamed him for delaying the official certification of the graduation reports, but he denied he was responsible for generating those reports. These accusations culminated in a meeting between Plaintiff and Brown in which she told him he needed to work more hours. Brown then told Plaintiff to keep a daily timesheet recording the time he spent each day on each project and to submit it to her at the day's end. He contends no other employees were asked to submit time sheets.

On November 9, 2011, Plaintiff was told his probationary period was being extended for another 60 days. Plaintiff took this information to the Director of Diversity and Multicultural Affairs, Donna Whyte, indicating he intended to file a complaint with the Equal Employment Opportunity Commission ("EEOC"). On November 23, 2011, he submitted a 76 page complaint with 15 exhibits to Whyte complaining of discriminatory treatment and asking for a formal resolution.

The Department of Audits completed their internal audit of the Registrar's Office, and Plaintiff claims he noticed the management irregularities he previously reported had not been corrected. He informed Brown and the Director of Administration of his findings.

On November 29, 2011, Brown met with Plaintiff for his performance review. Brown informed Plaintiff his work was deficient because he did not submit reports for the freshman marketing project. Plaintiff claimed he had emailed them to her but she denied receiving them. Brown indicated he refused to work on assigned tasks and did not correct the Dashboard security concerns. After the meeting, Plaintiff submitted a 54 page addendum to his discrimination complaint to Whyte. He claims Whyte conducted a flawed investigation and determined the complained-of actions were not motivated by discriminatory animus. Plaintiff filed an EEOC claim on January 9, 2012.

On February 9, 2012, Brown and Mutti called a meeting with Plaintiff and presented him with an Order of Termination signed by the Vice President of Business Affairs, Stephanie McHenry. The stated reason for termination was unsatisfactory job performance during his probationary period. He asked if he could apply for other positions with CSU and was told that while he would not be excluded as a candidate, his personnel file would be made available to any prospective CSU interviewer.

Plaintiff contends he applied for a job as the Assistant Director of Technology Operation at the Cleveland Marshal College of Law on February 20, 2013. He claims he had an interview with the Director of the Law Library, Kristina Niedringhaus on March 6, 2013; however, the position was offered to another candidate. Plaintiff contends he had more experience than the Caucasian candidate that was hired.

Plaintiff includes 23 counts for relief in his Complaint. Count 1, 5, 6, 9, 10, 13, 14, 17, 18, 21 and 22 contain claims against CSU under Title VII, 42 U.S.C. § 2000e. Counts 4, 8, 12, 16, and 20 contain claims against Berkman, Rawson, Brown, Stimple, McHenry, Richards, Petrus, Whyte, Wilson, King, and Mutti under 42 U.S.C. § 1981. Counts 4, 7, 11, 15, and 19 assert claims against Berkman, Rawson, Brown, Stimple, McHenry, Richards, Petrus, Whyte, Wilson, King, Holstein, LaGrange, Long, Niedringhaus and Mutti for denial of equal protection, substantive and procedural due process, and retaliation for exercising his First Amendment rights under 42 U.S.C. § 1983. He claims Defendants terminated his employment and refused to hire him for two other positions without providing due process. He also contends they damaged his reputation and did not give him the opportunity to clear his name. He asserts he was denied coding tasks, and was subjected to additional job performance scrutiny based on his national origin in violation of the Equal Protection Clause of the Fourteenth Amendment. Finally, he asserts Defendants retaliated against him for complaining of disparate treatment and reporting accounting and record keeping irregularities in the Registrar's Office. Count 23 contains a claim for violation of 42 U.S.C. § 1985 against Berkman, Rawson, Brown, McHenry, Stimple, Richards, Petrus, Long, W. Wilson, Holstein, Whyte, S. Wilson, King, LaGrange, Neidringhause, and Mutti.


A. Federal Civil Procedure Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) allows dismissal for "lack of jurisdiction over the subject matter" of claims asserted in the Complaint. FED. R. CIV. P. 12(b)(1). Generally, FED. R. CIV. P. 12(b)(1) motions fall into two categories: facial attacks and factual attacks. FED. R. CIV. P. 12(b)(1); United States v. Richie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack challenges the sufficiency of the pleading itself. In contrast, a factual attack challenges the factual existence of subject matter jurisdiction. See In re Title Ins. Antitrust Cases, 702 F.Supp.2d 840, 884 (N.D. Ohio 2010) (citing Ohio Hosp. Ass'n v. Shalala, 978 F.Supp. 735, 739 (N.D. Ohio. 1997)). The Plaintiff has the burden of proving subject matter jurisdiction in order to survive a Rule 12(b)(1) motion. Madison-Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir.1996). Lack of subject matter jurisdiction is a non-waivable, fatal defect. Von Dunser v. Aronoff, 915 F.2d 1071, 1074 (6th Cir. 1990).

B. Federal Civil Procedure Rule 12(b)(6)

When deciding a motion to dismiss under Federal Civil Rule 12(b)(6), the Court's function is to test the Complaint's legal sufficiency. See Mayer v. Mulod, 988 F.2d 635, 638 (6th Cir. 1993). The Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), and recently in Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009), clarified the law regarding what Plaintiff must plead in order to survive a Rule 12(b)(6) Motion.

When determining whether Plaintiff has stated a claim upon which relief can be granted, the Court must construe the Complaint in the light most favorable to the Plaintiff, accepting all factual allegations as true, and determine whether the Complaint contains "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 555. Plaintiff's obligation to provide the grounds for relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. Although a Complaint need not contain detailed factual allegations, its "factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all ...

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