United States District Court, S.D. Ohio, Western Division
AND ENTRY SUSTAINING DEFENDANTS WRIGHT STATE UNIVERSITY AND
VICKI EVANS'S MOTION TO DISMISS PLAINTIFF PRATIBHA
NIGAM'S AMENDED COMPLAINT (DOC. #12); CLAIMS ONE AND TWO
IN PLAINTIFF'S AMENDED COMPLAINT (DOC. #10) ARE DISMISSED
WITH PREJUDICE; CLAIMS THREE AND FOUR ARE DISMISSED WITH
PREJUDICE AS THEY PERTAIN TO DISABILITY DISCRIMINATION;
CLAIMS THREE AND FOUR ARE DISMISSED WITHOUT PREJUDICE TO
REFILING, SUBJECT TO THE STRICTURES OF RULE 11, AS THEY
PERTAIN TO RETALIATION UNDER THE AMERICANS WITH DISABILITIES
AND REHABILITATION ACTS; CLAIMS FIVE THROUGH SEVEN ARE
DISMISSED WITHOUT PREJUDICE, SUBJECT TO REFILING IN A COURT
OF COMPETENT JURISDICTION; JUDGMENT SHALL ULTIMATELY ENTER IN
FAVOR OF DEFENDANTS AND AGAINST PLAINTIFF ON CLAIMS ONE AND
TWO IN THEIR ENTIRETIES, AND ON CLAIMS THREE AND FOUR AS THEY
PERTAIN TO DISABILITY DISCRIMINATION
H. RICE UNITED STATES DISTRICT JUDGE
Pratibha Nigam ("Plaintiff') was a student in the
Bachelor's of Science in Nursing program
("Program") in Defendant Wright State
University's ("WSU") College of Nursing and
Health ("CoNH") from Fall 2011 until Fall 2015,
when she was dismissed from the Program. During her entire
tenure at WSU, Plaintiff was under a disability, and she
claims that she suffered discrimination on the basis of that
disability by Defendant Vicki Evans ("Evans"), one
of Plaintiff's clinical professors in the CoNH, and
suffered retaliation by Evans as a result of her reporting
that discrimination, culminating in her dismissal from the
Program. WSU and Evans (collectively "Defendants")
have filed a Motion to Dismiss Plaintiff's Amended
Complaint ("Motion"), arguing that "this Court
lacks subject matter jurisdiction over some of
Plaintiff's claims, and the claims over which this Court
has jurisdiction fail to state a claim upon which relief can
be granted." Doc. #12, PAGEID #86. For the reasons set
forth below, Defendants' Motion is SUSTAINED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
enrolled at WSU in Fall 2010 and matriculated into the
Program in Fall 2011. Doc. #10, ¶¶ 14-15, PAGEID
#66. In December 2012, Plaintiff was diagnosed with ovarian
cancer and withdrew from the Program while she underwent
treatment. Id., ¶¶ 16-17. Plaintiff was
readmitted to the Program in 2014, and enrolled in Nursing
4420, a clinical course taught by Evans, in Summer 2014.
Id., ¶ 18. During the course, Evans, who knew
of Plaintiff's past cancer treatments, id.,
¶ 20, PAGEID #67, "harassed Plaintiff throughout
the semester by regularly singling her out from the other
students based on actual and perceived weaknesses due to
Plaintiff's disabilities." Id., ¶ 21.
"On June 25, 2014, Plaintiff suffered a panic attack
during a clinical shift immediately after Defendant Evans
admonished Plaintiff in her clinical." Id.,
¶ 22. Plaintiff withdrew from Nursing 4420 and
petitioned CoNH for an extension of time to complete the
Program; on appeal, she was granted such an extension.
Id., ¶¶ 24-25. During the petition and
appeals process, Plaintiff reported to CoNH that Evans had
verbally abused her in public, and she submitted anonymous
written statements from other students corroborating her
description of harassment. Id., ¶ 26, PAGEID
#67-68. Evans became aware of Plaintiff's reports, and in
an interview with Lindsay Wright ("Wright"), an
investigator with WSU's Office of Equity and Inclusion
("OEI"), "Evans alleged that Plaintiff
'campaigned' against her 'by claiming her rights
were violated.' This was 'very frustrating' to
Ms. Evans." Id., PAGEID #68.
receiving an extension of time, Plaintiff re-enrolled in
Nursing 4420 in Summer 2015, with a different instructor, and
"excelled in both the lecture and clinical portions of
the course[.]" Doc. #10, ¶ 27, PAGEID #68. In Fall
2015, Plaintiff enrolled in Nursing 4460, "and was
placed at the Grandview Medical Center ('GMC') in
Dayton, Ohio[, ] for her clinical rotation. Liz Pulley
[('Pulley')] was assigned as Plaintiff's Clinical
Instructor[, ] and Jessica Roberts [('Roberts')] was
assigned as Plaintiff's Preceptor at GMC." Id.,
¶ 28. In an evaluation dated October 17, 2015, Roberts
indicated "that Plaintiff's performance was
satisfactory in all ten areas of evaluation."
Id., ¶ 31, PAGEID #69. However, on October 16,
2015, Plaintiff informed Evans that she was working full-time
outside of her clinical rotations for Nursing 4460.
Id., ¶ 30. Evans then contacted Pulley to voice
her concerns about Plaintiff working while performing
clinical rotations. Id., ¶¶ 32-33. In an
October 19, 2015, meeting, Pulley informed Plaintiff of
Evans's concerns, id., ¶ 34, PAGEID #70,
and the next day, "Roberts relayed apparently newfound
concerns about Plaintiff's competency, knowledge of
medications and overall safety." Id., ¶
October 22, 2015, Roberts issued a new evaluation, Doc. #10,
¶ 37, PAGEID #70, rating Plaintiff "as satisfactory
in only four out of ten areas." Id., ¶ 38.
The next day, "Pulley informed Plaintiff that she could
not return to the clinical [rotation at GMC] until the
'narcotics issue'" pertaining to her "was
investigated." Id., ¶ 41, PAGEID #71.
Pulley completed her own midterm evaluation of Plaintiff,
assigning her "the lowest possible scores in each
category." Id., ¶ 42. Plaintiff was never
provided a remedial action plan or offered a different
clinical placement, and on November 10, 2015, Plaintiff was
dismissed from the Program. Id., ¶¶ 44-47,
January 6, 2016, Plaintiff sent a letter to Matthew Boaz
("Boaz"), the OEI Director, in which she alleged
"ridicule, harassment, discrimination and retaliation
based on the foregoing circumstances." Doc. #10, ¶
52, PAGEID #73. Wright, on behalf of OEI, conducted
interviews of: Evans; Pulley; Roberts, Will Matcham, Ph.D.,
Course Coordinator, and Sherrill Smith, Ph.D., Assistant Dean
of Undergraduate Programs. Id., ¶ 53. From her
investigation, Wright concluded that it was more likely than
not that WSU's Non-Discrimination Statement had been
violated with respect to Plaintiff, and she informed Thomas
Sudkamp, Ph.D., Provost of CoNH, of same. Id.,
¶ 55, PAGEID #74. Nonetheless, on July 18, 2016, Dr.
Sudkamp determined that Plaintiff had not suffered
discrimination or retaliation, and would not be permitted to
re-enter the Program. Id., ¶ 56. As Plaintiff
was not permitted to appeal Dr. Sudkamp's decision,
id., ¶ 58, she alleges that she was
"dismissed from the CoNH without being afforded . . .
reasonable procedural process, for reasons that were purely
pretextual." Id., ¶ 60.
December 1, 2017, Plaintiff filed an Amended Complaint
against WSU and Evans, raising a First Amendment Retaliation
Claim, brought under 42 U.S.C. § 1983, against Evans in
her Official and Individual Capacities (Claim II). Doc. #10,
¶¶ 76-83, PAGEID #77-78. Plaintiff also claims that
WSU engaged in disability-based discrimination and
retaliation in violation of the Americans with Disabilities
Act of 1990 ("ADA"), 42 U.S.C. § 12131 et
seq. (Claim III) and Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794 (Claim IV). Id.,
¶¶ 84-99, PAGEID #78-79. Plaintiff also brings
three state common law claims: breach of contract against WSU
(Claim V); intentional infliction of emotional distress
("IIED") against Evans in her individual and
official capacities (Claim VI); and tortious interference
with contract against Evans in her individual capacity (Claim
VII). Id., ¶¶ 100-25, PAGEID #80-83.
Plaintiff seeks declaratory and prospective injunctive
relief, as well as money damages. Id., PAGEID #83.
objection that a federal court lacks subject-matter
jurisdiction may be raised by a party, or by a court on its
own initiative, at any stage in the litigation[.]"
Arbaugh v. Y&H Corp., 546 U.S. 500, 506, 126
S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (citing Fed.R.Civ.P.
12(b)(1)). "[T]he party invoking federal jurisdiction
has the burden to prove that [subject matter] jurisdiction
[exists]." Global Tech., Inc. v. Yubei (XinXiang)
Power Steering Sys. Co., Ltd., 807 F.3d 806,
810 (6th Cir. 2015). As parties cannot waive the requirement
of subject matter jurisdiction, " Ammex, Inc. v.
Cox, 351 F.3d 697, 702 (6th Cir. 2003) (quoting
Riggs v. Island Creek Coal Co., 542 F.2d 339, 343
(6th Cir. 1976)), the Court must dismiss any claims over
which it lacks jurisdiction.
Rule of Civil Procedure 8(a) provides that a complaint must
contain "a short and plain statement of the claim
showing that the [plaintiff] is entitled to relief." The
complaint must provide the defendant with "fair notice
of what the . . . claim is and the grounds upon which it
rests." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct.
12(b)(6) allows a party to move for dismissal of a complaint
on the basis that it "fail[s] to state a claim upon
which relief can be granted." The moving party "has
the burden of showing that the opposing party has failed to
adequately state a claim for relief." DirecTV, Inc.
v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citing
Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir.
1991)). The purpose of a Rule 12(b)(6) motion to dismiss
"is to allow a defendant to test whether, as a matter of
law, the plaintiff is entitled to legal relief even if
everything alleged in the complaint is true." Mayer
v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). In ruling
on a Rule 12(b)(6) motion, the Court must "construe the
complaint in the light most favorable to the plaintiff,
accept its [well-pleaded] allegations as true, and draw all
reasonable inferences in favor of the plaintiff."
Handy-Clay v. City of Memphis, 695 F.3d 531, 538
(6th Cir. 2012) (quoting Treesh, 487 F.3d at 476).
to survive a Rule 12(b)(6) motion to dismiss, the complaint
must contain "enough facts to state a claim to relief
that is plausible on its face." Twombly, 550
U.S. at 570. Unless the facts alleged show that the
plaintiff's claim crosses "the line from conceivable
to plausible, [the] complaint must be dismissed."
Id. Although this standard does not require
"detailed factual allegations," it does require
more than "labels and conclusions" or "a
formulaic recitation of the elements of a cause of
action." Id. at 555. "Rule 8 . . . does
not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions." Ashcroft v.
Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009). Legal conclusions "must be supported by
well-pleaded factual allegations . . . [that] plausibly give
rise to an entitlement of relief." Id. at 679.
"Although for the purposes of this motion to dismiss we
must take all the factual allegations in the complaint as
true, we are not bound to accept as true a legal conclusion
couched as a factual allegation." Papasan v.
Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
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