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Newman v. University of Dayton

United States District Court, S.D. Ohio, Western Division, Dayton

October 31, 2017

PETER NEWMAN, Plaintiff,
v.
UNIVERSITY OF DAYTON, et al., Defendants.

          ENTRY AND ORDER GRANTING MOTION TO DISMISS (DOC. 18), DENYING MOTION TO STAY DISCOVERY (DOC. 27) AS MOOT, AND TERMINATING CASE

          THOMAS M. ROSE, UNITED STATES DISTRICT JUDGE

         This case is before the Court on the Motion to Dismiss (Doc. 18) filed by all of the Defendants to this action-namely, the University of Dayton (the “University”), ten University employees (Carolyn Phelps, Kimberly Bakota, Christine Schramm, Terence Lau, Jay Janney, E. James Dunne, Eric Spina, Andrew Strauss, Amy Zavadil, and Mary Ann Recker), and Bridget Jackson, who is a law student at the University (collectively, “Defendants”). Defendants argue that Plaintiff Peter Newman's Complaint should be dismissed under the doctrine of judicial estoppel because he failed to disclose his employment with the University and his claims against Defendants in this case to the Bankruptcy Court considering his Chapter 13 Bankruptcy Petition.

         Plaintiff submitted two affidavits with his Memorandum in Opposition and therefore requests that the Court convert the Motion to Dismiss into a Motion for Summary Judgment. (Doc. 26.) In reply, Defendants argue that, whether or not the Court considers their Motion as a motion to dismiss or a motion for summary judgment, the Complaint should be dismissed in its entirety.

         In order to properly consider Plaintiff's Memorandum in Opposition, the Court must convert the Motion to Dismiss into a Motion for Summary Judgment. Even considering the evidence submitted by Plaintiff, however, he still fails to demonstrate that judicial estoppel should not be applied in this case. The Court therefore GRANTS the Motion to Dismiss (Doc 18) and the Clerk is directed to TERMINATE this case on the Court's docket. Accordingly, Defendants' Motion to Stay Discovery (Doc. 27) is DENIED as moot.

         I. BACKGROUND

         A. Plaintiff's Employment at the University and Claims in this Lawsuit

         From Fall 2014 through Winter 2017, Plaintiff was employed as an adjunct professor at the University. (Doc. 1 at ¶ 1; Doc. 26 at 3; Doc. 26-1 at ¶ 3.). He taught courses in the University's School of Law, MBA Program, and School of Business Administration. (Doc. 1 at ¶ 1.)

         On September 16, 2016, Plaintiff filed an internal discrimination and harassment complaint against one of his students, an African American woman named Bridget Jackson (also a named Defendant in this case), with the University's Interim Title IX Coordinator. (Id. at ¶ 3.) Plaintiff alleges that, in response to the Title IX complaint, the University engaged in a “pattern of retaliation taking adverse actions against the Plaintiff each time he engaged in protected conduct which ultimately lead to the termination of Plaintiff's teaching career at [the University] and [the University] banning him from visiting its campus.” (Id. at ¶ 4.)

         On October 14, 2016, the University notified Plaintiff that he would not be scheduled to teach classes for the Spring 2017 semester. (Id. at ¶ 46.) On November 9, 2016, Plaintiff met with the Interim Dean of the School of Business Administration and the Associate Provost for Faculty and Academic Affairs to discuss his behavior at the School of Business. On December 9, 2016, the University told Plaintiff that it would not mediate his claims. (Id. at ¶ 55.) On December 22, 2016, Plaintiff received his last paycheck from the University. (Doc. 29-1 at ¶ 5.) Between January 23, 2015 and December 22, 2016, the University paid Plaintiff a total of $38, 762. (Id.)

         On January 20, 2017, Plaintiff filed an administrative complaint with the Department of Education Office of Civil Rights relating to his employment at the University. (Doc. 1 at ¶ 69.) On February 14, 2017, Plaintiff filed an employment discrimination charge with the Equal Employment Opportunity Commission. (Id.) On February 28, 2017, Plaintiff filed an employment discrimination claim with the Ohio Civil Rights Commission. (Id.)

         On May 19, 2017, Plaintiff filed the Complaint in this action. Plaintiff asserts thirteen claims against Defendants: (1) retaliation in violation of Title VII, Title IX, and the Ohio Civil Rights Act, (2) age discrimination in violation of the Age Discrimination in Employment Act and Ohio Rev. Code § 4112.02(A), (3) denial of public accommodations in violation of Ohio Rev. Code §§ 4112.02(G) and (I), (4) aiding and abetting discrimination in violation of Ohio Rev. Code § 4112.12 (j), (5) sex discrimination in violation of Title IX, (6) erroneous outcome in violation of Title IX, (7) deliberate indifference in violation of Title IX, (8) harassment in violation of Title IX, (9) negligence, (10) defamation per se, (11) promissory estoppel, (12) breach of implied contract, and (13) misrepresentation and fraud. Although Plaintiff brings these claims against different combinations of Defendants, all of them are premised on actions taken by them relating to Plaintiff's employment at the University and/or the filing of his Title IX complaint.

         B. Plaintiff's Chapter 13 Bankruptcy Petition

         On October 8, 2014, Plaintiff filed a Chapter 13 Bankruptcy Petition with the United States Bankruptcy Court for the Southern District of Ohio. (In re Peter K. Newman and Susan B. Newman, Case No. 3:14-bk-33622, Doc. 1 (Bankr. S.D. Ohio) (hereinafter, documents in the docket of the Bankruptcy Court will be referenced as “BK Doc. [X]”).) On Schedule I, Part 1, of the Petition, under the title “Your Income, ” Plaintiff listed his occupation as “disabled.” (BK Doc. 1 at 23.) He also does not list any “part-time, seasonal, or self-employed work” where required on the form. (Id.) On Schedule I, Part 2, he lists his income as $0 and states that he does not expect his income to increase in the following year. (Id.)

         On October 27, 2014, Plaintiff filed his Chapter 13 Bankruptcy Plan. (BK Doc. 12.) In the Plan, Plaintiff acknowledges that “[t]he Debtor shall keep the Trustee informed as to any changes in status of any claim . . . to ...


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