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Meriwether v. Trustees of Shawnee State University

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

September 5, 2019


          Dlott, J.



         Plaintiff Nicholas K. Meriwether, a professor at Shawnee State University (Shawnee State), brings this action against members of the Board of Trustees of Shawnee State and several Shawnee State officials (Shawnee State defendants) alleging (1) violations of his federal civil rights under 42 U.S.C. § 1983, and (2) violations of his rights guaranteed by the Ohio Constitution and common law under the Court's supplemental jurisdiction, 28 U.S.C. § 1367. The Court granted Jane Doe and Sexuality and Gender Acceptance (SAGA) leave to intervene as defendants in the lawsuit. (Doc. 43). This matter is before the Court on the Shawnee State defendants' motion to dismiss the original complaint for failure to state a claim for relief (Doc. 22) and the Shawnee State defendants1 motion to dismiss the first amended complaint[1] (Doc. 36), plaintiffs opposing memorandum (Doc. 45), and the Shawnee State defendants' reply in support of the motion (Doc. 47). This matter is also before the Court on the intervenor-defendants' motion to dismiss the first amended complaint (Doc. 44), plaintiffs opposing memorandum (Doc. 46), and the intervenor-defendants' reply in support of the motion (Doc. 48).

         I. Factual and procedural background

         Plaintiff makes the following factual allegations in the amended complaint. (Doc. 34). Plaintiff is a resident of Ohio and a professor at Shawnee State, a public university organized and existing under the laws of Ohio. (Id., ¶¶ 11, 12). He has been employed as a professor by Shawnee State since 1996, first as an assistant professor, then as an associate professor with a continuing contract which was the equivalent of tenure, and finally as a full professor. (Id., ¶¶ 93-95). He is a "professing evangelical Christian'" and member of the Presbyterian Church of America with sincerely-held religious beliefs about gender, and he does not believe that an individual's gender can be changed after the moment of conception. Because of his sincerely-held religious beliefs, he objects to communicating what he believes to be "a University-mandated ideological message regarding gender identity that he does not believe" and which he believes "contradicts (and would force him to violate) his sincerely held religious beliefs." (Id., ¶¶ 86-92).

         Defendants Francesca Hartop, Joseph Watson, Scott Williams, David Furbee, Sondra Hash, Robert Howarth, George White, and Wallace Edwards (Trustees) were at all times relevant to the complaint members of the Board of Trustees (Board) of Shawnee State. They are responsible for adopting and authorizing the University policies plaintiff challenges; they "have the responsibility for final policymaking authority for rules and regulations that govern the University, including the policies governing faculty members"; and they have the authority to change and enforce the policies challenged in this lawsuit. (Id., ¶¶ 11 -15). Plaintiff sues each of the Trustees in their official capacity. (Id., ¶ 52).

         Defendant Jeffrey A. Bauer was the Provost and Vice-President of Academic Affairs at Shawnee State before September 14, 2018, and he has been Shawnee State's Interim President since that date. In his current role, Bauer is the chief executive, educational, and administrative officer of Shawnee State charged with oversight of the University and direct oversight of defendants Pierce and Milliken. He authorized and implemented the policies plaintiff challenges in this lawsuit and has final policymaking authority concerning faculty members at Shawnee State. He also approved and ratified Shawnee State officials' application of the challenged policies to plaintiff in a discriminatory and retaliatory fashion. (Id., ¶¶ 19-31).

         Defendant Roberta Milliken was at all relevant times the Acting Dean of the College of Arts and Sciences at Shawnee State, whose duties include oversight of plaintiff Meriwether and defendant Jennifer Pauley. Defendant Jennifer Pauley at all relevant times was the Chair of the Department of English and Humanities at Shawnee State, and her duties include overseeing plaintiff. (Id., ¶¶ 32-38). Defendant Tena Pierce was at all relevant times the Title IX[2]Coordinator at Shawnee State whose duties include oversight of the university's Title IX office and compliance efforts. Her duties also include overseeing defendants Douglas Shoemaker and Malonda Johnson, both Deputy Title IX Coordinators at Shawnee State. Defendants Bauer, Milliken, Pauley, Pierce, Shoemaker, and Johnson implemented the policies plaintiff challenges in this lawsuit; each had the authority under the challenged policies to investigate, recommend, and impose disciplinary actions on faculty at Shawnee State; they are responsible for enforcing the policies and applying them to plaintiff; they have failed to recommend any changes to the policies or to the manner of enforcement so as to comply with constitutional mandates; and they have failed to stop Shawnee State officials from applying the policies to faculty, including plaintiff, (Id., ¶¶ 40-51).

         Plaintiff challenges on their face and as applied policies which were adopted by the Trustee defendants and the Shawnee State Interim President and are binding on University officials. Plaintiff challenges portions of the "Nondiscrimination Sexual Harassment Policy" (Nondiscrimination Policy), which was approved by the Trustee defendants (Doc. 34, Exh. I, Policy 5.01 REV), and the policy for "Reporting & Investigating Sexual Assault, Sexual Misconduct & Other Forms of Discrimination" (Reporting Policy), which was approved by the Shawnee State President in October of 2016. (Doc. 34, Exh. 2, Policy 5.01:2). The Nondiscrimination Policy states that it "serves to ensure that there are University structures and processes in place that prohibit discrimination against any individual because of. .. gender identity..." (Id., Exh. 1 at ¶ 1.2). The Reporting Policy states that the procedure "serves to implement the investigation and complaint provisions of Policy 5.01 .. . and to ensure that all discrimination complaints received by the University are reviewed and responded to promptly and in a fair and equitable manner." (Id., Exh. 2 at ¶ 1.1). If the Nondiscrimination Policy is violated, the University "will take steps, whether individual or systemic, to stop the alleged ... discrimination, prevent its recurrence, eliminate any hostile environment, and remedy the discriminatory effects on the complainant and others, as appropriate." (Id., Exh. 2, ¶ 17.0). The Reporting Policy defines "Sex and Gender Based Discrimination" as including "[n]egative or adverse treatment based on . .. gender identity .. . [which] denies or limits the individual's ability to obtain the benefits of Shawnee State's programs or activities." (Id., Exh. 2, ¶ 18.3). The Reporting Policy defines "Gender Identity" as a "person's innermost concept of self as male or female or both or neither - how individuals perceive themselves and what they call themselves." (Id., Exh. 2, ¶ 18.4). It provides that "[o]ne's gender identity can be the same or different than the sex assigned at birth." (Id., Exh. 2, ¶ 18.4).

         Plaintiff interprets these policies as leaving Shawnee State professors with two choices in how they refer to their students: (1) "eliminate all sex-based titles and all pronouns when speaking to all students," an option plaintiff describes as "impossible, impractical, and unreasonable given the way professors speak, particularly in classes that feature significant and frequent class discussion"; or (2) "use pronouns that refer to each student's gender identity," even though plaintiff alleges "that gender identity may change from day to day, may change based on which friends the student is with, or may change based on the student's mood, among other possibilities." (Id., ¶ 75).

         The Reporting Policy provides that "[s]exual harassment can take two forms - quid pro quo or hostile environment." (Id., Exh. 2, ¶ 18.6.2). "[H]ostile environment in the educational context" encompasses "any situation in which there is harassing conduct that limits, interferes with or denies educational benefits or opportunities, from both a subjective (the complainant's) and an objective (reasonable person's) viewpoint." (Id., Exh. 2, ¶ According to plaintiff, defendants use the definition of "hostile environment" provided in the Reporting Policy when assessing claims of gender identity discrimination, and the "determination of whether an environment is 'hostile' is based on the totality of the circumstances." (Id., ¶¶ 78, 79). The Reporting Policy provides that a full-time regular faculty member who violates Shawnee State's nondiscrimination policies is subject to discipline ranging from a "written warning" to immediate "termination" under the process provided in the collective bargaining agreement (CBA) between Shawnee State and the Shawnee Education Association (SEA/Union). (Id., ¶¶ 84, 85; Ex. 2, ¶;M, Exh. 4 at 110).

         In August 2016, the Union President, Chip Poirot, informed faculty members that they could face disciplinary action by Shawnee State, including suspension or dismissal, if they "refused to use a [student's] requested name or pronouns." (Id., ¶¶ 106-09; Exh. 5 at 6-7). Plaintiff contacted defendant Milliken to obtain clarification on gender identity policies, and Milliken informed plaintiff that he must use a student's preferred pronoun regardless of the professor's convictions or views on the subject and a professor would be subject to administrative disciplinary procedures if he refused to use a pronoun that reflected "a student's self-asserted gender identity." (Id., ¶¶ 110-14). In response to plaintiffs inquiry as to whether Shawnee State had any policies that outlined how professors "must respond to a student's demand to use a pronoun that reflects that student's self-asserted gender identity," Milliken stated it was not necessary for Shawnee State to have such policies because "students have a right to be referred to by their self-asserted gender identity and faculty must comply or be disciplined." (Id., ¶¶ 115-16). Milliken also informed plaintiff in November 2016 when he asked to see any written policies on this subject that "there is no formal policy specific to transgender students, faculty, or staff at Shawnee State, but the University "does have a nondiscrimination policy that includes "gender identity." (See Policy 5.01 and its reporting procedure 5.01:02 [i.e., Defendants' Nondiscrimination Policies}.)" (Id., ¶¶ 123-124, citing Exh. 6 at 1). Also, plaintiff and defendant Pauley discussed issues related to transgenderism and gender identity around November 3, 2016, and Pauley exhibited hostility toward plaintiff and his beliefs during the meeting by stating that "adherents to the Christian religion are primarily motivated out of fear"; "the Christian doctrines regarding hell are harmful and should not be taught"; "anyone who believes hell exists should not be allowed to teach these doctrines"; "faculty members who adhere to a certain religion should be banned from teaching courses regarding that religion"; and "the presence of religion in higher education is counterproductive" because "the purpose of higher education is to liberate students" and "religion oppresses students." (Id., ¶¶ 117-122).

         In January 2018, plaintiff returned from a semester-long sabbatical and began teaching Political Philosophy, during which he regularly calls on students to answer questions and participate in class discussion. Students may satisfy the participation component of the course by being prepared to answer assigned study questions when called upon. On January 9, 2018, during the first Political Philosophy class, plaintiff responded to a question from a student, Doe, by saying, "Yes, sir/' Plaintiff contends that he responded in this fashion "because Doe is male," "'Doe appears male," and plaintiff believed that no one seeing Doe would have assumed that Doe was "biologically female." Plaintiff alleges that since the 1990s he has referred to students by their last names and a title (i.e., "Mr.", "Ms.", Mrs.", "Miss") or as "sir" or "ma'am," and he has always used titles that refer to a student's biological sex, "to foster an atmosphere of seriousness and mutual respect that is befitting the college classroom." Plaintiff alleges that this is an "important pedagogical tool." (Id., ¶¶ 125-139).

         After class that day, Doe approached plaintiff, stated that she was transgender ("i.e., that [s]he identified as female"), and demanded that plaintiff refer to her as a woman with feminine titles and pronouns. When plaintiff responded that he was not sure he could comply with Doe's demand and he was "not sure students can dictate how professors must refer to them," Doe "became belligerent, circling around [plaintiff] and getting in his face in a threatening fashion" while telling plaintiff, "Then I guess this means I can call you a cunt." Doe told plaintiff that Doe would see to it that plaintiff would be fired if he did not accede to Doe's demands. Plaintiff reported Doe's conduct to Pauley, who relayed the conversation to the president of the faculty senate, Marc Scott. On January 10, 2018, Scott informed defendant Shoemaker of the matter and informed him that "a Title IX complaint [by a student] was possible." (Id., Exh. 7). Defendant Shoemaker met with Doe, apprised defendant Milliken of Doe's complaint, and advised Milliken on how to proceed. On the morning of January 11, 2018, Milliken met with plaintiff and advised him "to begin referring to all students by their last names only and to eliminate all sex-based references from his expression.1" Plaintiff proposed to continue referring to all students except Doe as he had for years and referring to Doe by her last name. Milliken indicated she approved this arrangement, and Doe continued to attend plaintiffs class without incident and to frequently contribute to class discussions. (Id., ¶¶ 140-159).

         On January 25, 2018, Milliken informed plaintiff that Doe was not satisfied with plaintiffs solution of referring to Doe by last name only and Doe had threatened to file a Title IX grievance. Defendant Milliken informed plaintiff that he would be in violation of Shawnee State's nondiscrimination policies if he did not comply with Doe's demands. In late January or early February 2018, a Union official and faculty member told plaintiff he could be suspended or dismissed if he continued to use titles and pronouns that did not reflect -each students' [sic] self-asserted gender identity." During class on February 1, 2018, plaintiff inadvertently referred to Doe using the title "Mr." before immediately correcting himself. Plaintiff said something to the effect of, "Mr. Doe -1 mean, Doe." In early February 2018, Doe told defendant Pierce that Doe's complaint had not been resolved and Doe "threatened to contact a lawyer. . .." Defendant Pierce then contacted defendant Shoemaker so that further action could be taken, and defendants ultimately agreed that defendant Milliken should take the next steps. (Id., ¶¶ 160-167).

         On February 12, 2018, Milliken followed up with plaintiff on their January 25, 2018 conversation. Plaintiff asked Milliken if it would comply with Shawnee State's nondiscrimination policies to (1) refer to all students "by their self-asserted gender identity," and (2) include a disclaimer in the syllabus stating that "he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity.'" Milliken said this approach would violate the policies, and plaintiff responded that he was willing to use Doe's first or last name without titles but he was not willing to refer to Doe as a woman or to stop referring to all other students "by their last names and sex-based titles." (Id., ¶¶ 170-173).

         Milliken sent plaintiff a "formal notice'' on February 13, 2018, after she had spoken with him several times regarding the informal complaint of a student in his Political Philosophy class, who complained that plaintiff did not address her as "Ms.__" or "Miss"__ in line with his practice of addressing other female members in the class. (Id., Exh. 9). Milliken wrote in the notice that according to the student, after notifying plaintiff that she identified as female, plaintiff began calling this student by only her surname and he had referred to the student as "he" during one class the prior week. The letter stated that the student had notified the Dean of Students that plaintiff continued to ignore or reject her requests that plaintiff treat her the same as other students who identify as female. Milliken advised plaintiff that "Policy No. 5.01REV ... has among its purposes the creation of an educational environment that prohibits discrimination on the basis of. .. gender identity," and the letter was a "formal notice that [plaintiff was] expected to comply with Policy No. 5.01 REV by treating all students the same, irrespective of their gender identity." The notice informed plaintiff that if there were "future complaints of disparate treatment in violation of this policy, whether involving [Doe] or not, the University may conduct an investigation" and plaintiff "could be subject to informal or formal disciplinary action." (Id.).

         Milliken then launched a formal investigation pursuant to the CBA on February 16, 2018, and advised plaintiff that she was doing so because she had received another complaint from a student in his Political Philosophy class (Doe). (Id., Exh. 10). Milliken stated that plaintiff had potentially violated the University's Policy 5.01REV by (1) continuing "to address this student differently than others within the class by calling her by her surname while other students are addressed as Ms. __or Mr.__," and (2) using a male pronoun when referring to Doe in class. (Id.). Milliken informed plaintiff that because the matter involved a potential violation of Policy 5.01REV, Milliken was also directing the complaint to defendant Johnson, the Director of Human Resources, and defendant Shoemaker, the Title IX Coordinator. (Id.).

         On March 12, 2018, in response to plaintiffs request for clarification of University Policy 5.01REV, Milliken informed plaintiff via email that: "Every student needs to be treated the same in all of your classes. In other words, the policy seeks to ensure that what is done for one student is done for all to avoid issues of discrimination. This regards names, pronoun usage, and most any other matter." (Id., Exh. 11 at 1-2). Plaintiff thus understood Milliken to be indicating that he would be in violation of Shawnee State's nondiscrimination policies "(1) if he referred to Doe using masculine pronouns; or (2) if he stopped using pronouns in reference to Doe but continued to use sex-based pronouns for all other students; or (3) if he referred to transgender students by their name of choice but continued to refer to all other students by their last names and titles (i.e., 'Mr.,' 'Ms.,' 'Miss,' or 'Mrs.')." Plaintiff perceived only two choices if he wanted to comply with the policy: "(1) stop using pronouns altogether. .. .; or (2) use pronouns that refer to each student's self-asserted gender identity" (Id., ¶¶ 216-218).

         Following an investigation by defendants Johnson and Shoemaker, defendant Johnson concluded that plaintiffs "disparate treatment has created a hostile environment" for Doe, thereby violating Shawnee State's Nondiscrimination Policy and Reporting Policy. (Id., ¶¶ 225-226, 230-32; Exh. 13 at 1, 4). Milliken filed a formal charge against plaintiff, asserting that plaintiffs "disparate treatment of the complainant in your class has caused a hostile environment." (Id., ¶¶ 233-234; Exh. 14). After a formal investigation, Milliken issued a report setting forth her findings and recommending the formal action of a written warning in plaintiffs personnel file. (Id., ¶ 238; Exh. 17 at 1-3). Milliken concluded that because plaintiff "repeatedly refused to change the way he addressed Ms. [Doe] in his class due to his views on transgender people, and because the way he treated Ms. [Doe] was deliberately different than the way he treated others in the class, I found that he effectively created a hostile environment for Ms. [Doe]. This is a direct violation of Policy No. 5, 01 REV.'* (Id., Exh. 17 at 2).

         On June 14, 2018, defendant Bauer issued the "Provost's Decision on Formal Disciplinary Action," in which he agreed that plaintiff had violated Policy 5.01 REV, which states that "Shawnee State is committed to having an educational and working environment for students . .. that is without unlawful or prohibited discrimination and harassment." (Id., Exh.19). Bauer found that plaintiff had not treated Doe the same as all other students because he "continued to address [Doe] differently from other students based on a trait that is protected under our anti-discrimination policy even after being warned by Dean Milliken that this was a violation of policy." (Id.).

         On June 22, 2018, Dean Milliken issued a written warning to plaintiff. (Id., ¶ 246; Exh. 20). The Union pursued a grievance on plaintiffs behalf. (Id., Exh. 23). Bauer concluded that plaintiff discriminated against Doe based on gender identity, denied plaintiffs grievance, and adopted the recommended decision in his role as Interim President. (Id., Exh. 27 at 11). A warning letter was placed in plaintiffs personnel file and a copy was provided to plaintiff. (Id., Exh. 20). The letter states in pertinent part:

Provost Bauer approved this formal disciplinary action that comes as a result of a Title IX investigation and my findings regarding the violation of Shawnee State University's Policy 5:01.
As [] Policy 5.01 makes clear, Shawnee State is dedicated to providing an educational environment that does not discriminate against any individual due to a variety of traits, including gender identity. Given that you persisted in treating the complainant differently than other students in your class throughout spring term because of her gender identity, you engaged in behavior that is prohibited by the university.. . .

(Id.), The warning also cautioned plaintiff against "such behaviors" in the future to avoid further corrective action. (Id.). Plaintiff pursued a grievance related to the written warning, which was denied. (Id., ¶¶ 250-270).

         As a consequence of the warning letter, plaintiff "has not discussed issues related to gender identity or transgenderism when he otherwise would have done so" for fear he could immediately be suspended without pay or terminated. (Id., ¶¶ 290-91). Plaintiff alleges that as a result, he "cannot address a high profile issue of public concern that has significant philosophical implications (e.g., illustrating how modern society no longer treats the physical body and its purposes and functions as normative for human behavior and examining whether this philosophical shift is well-grounded or beneficial for the individual and society"). Plaintiff claims that the letter of warning in his file will make it difficult, if not impossible, for him to obtain a position "as an adjunct, professor, instructor, consultant, or administrator at another institution once he retires from the University." (Id., ¶¶ 297-298).

         Plaintiff asserts a facial challenge to the Nondiscrimination Policy and to the Reporting Policy to the extent they include the term "gender identity." Plaintiff alleges that inclusion of the term "results in vague and overbroad restrictions upon his protected expression and grants Defendants unbridled discretion to restrict (or punish him for) his protected expression, among other constitutional flaws." (Id., ¶ 58). Plaintiff alleges that Shawnee State's policies as they relate to the definition of "gender identity" are vague and subjective and therefore "give professors no notice as to what constitutes gender identity, what constitutes gender identity discrimination, and how to avoid charges of such discrimination.'' (Id., ¶ 80). Plaintiff further alleges that the policies ""provide no objective guidelines, standards, or criteria for University officials to use when deciding what constitutes gender identity or gender identity discrimination, thereby granting those officials unbridled discretion to restrict expression." (Id., ¶ 81). Plaintiff also challenges the provisions of the policies that prohibit and define '"gender identity" discrimination as applied to him. (Id., ¶¶ 56, 57). Plaintiff alleges that defendants, by policy and practice, apply Shawnee State's nondiscrimination policies to regulate individual faculty members' expression and professors' interactions with their students both in and outside of the classroom. (Id., ¶¶ 82, 83).

         Based on these allegations, plaintiff brings the following claims for relief: (1) retaliation against plaintiff for exercise of his right to freedom of speech in violation of the First Amendment (Id., ¶¶ 308-316); (2) content and viewpoint discrimination in violation of plaintiff s First Amendment rights (Id., ¶¶ 317-327); (3) compelled speech in violation of plaintiff s First Amendment rights (Id., ¶¶ 328-331): (4) violation of plaintiff s First Amendment right to free exercise of his religion (Id., ¶¶ 332-341); (5) violation of plaintiff s right to be free from unconstitutional conditions (Id., ¶¶ 342-347): (6) violation of plaintiff s due process rights under the Fourteenth Amendment (Id., ¶¶ 348-355); (7) violation of plaintiff s right to equal protection of the law under the Fourteenth Amendment (Id., ¶¶ 356-363); (8) violation of plaintiff s rights of conscience and free exercise of religion under the Ohio constitution (Id., ¶¶ 364-369); and (9) breach of contract under Ohio law (Id., ¶¶ 370-375). As relief, plaintiff seeks a declaratory judgment that defendants" nondiscrimination policies and related practices violate plaintiffs rights under the First and Fourteenth Amendments on their face and as applied; a preliminary and permanent injunction prohibiting defendants from enforcing their nondiscrimination policies to preclude plaintiff "from expressing his views regarding gender identity or to punish him for expressing those views, including addressing and referring to students based on their biological sex"; a preliminary and permanent injunction ordering defendants to "purge [plaintiffs] file of any reference to the punishment they imposed on him for expressing his views regarding gender identity, including the June 22, 2018 written warning"; and plaintiffs reasonable attorney fees and costs under 42 U.S.C. § 1988. (Doc. 34 at pp. 47-48).

         II. Motions to dismiss

         The Shawnee State defendants and intervenor-defendants move to dismiss the amended complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim for relief. (Docs. 36, 44). They argue that plaintiff has not stated claims for violations of his First Amendment free speech rights under his first, second, third, and fifth claims for relief because plaintiffs "refusal to use a pronoun or title in addressing one student in his classroom was not 'speech" protected by the First Amendment" as a matter of law. (Doc. 36 at 15-21; Doc. 44 at 4). Defendants argue that the alleged speech was a "simple, ministerial act" that was part of plaintiff s employment responsibilities. (Doc. 36 at 15). Defendants argue that plaintiff spoke as a public employee, not as a citizen, and his speech was not on a matter of "public concern"; therefore, plaintiffs speech is not protected under the test of Garcetti v. Ceballos, 547 U.S. 410 (2006). (Doc. 36 at 16; Doc. 44 at 4, 10-13, quoting Connick v. Myers, 461 U.S. 138, 146-47 (1983)). Defendants argue that even if plaintiff s speech were on a matter of public concern, the Pickering balancing test would apply and weighs in favor of Shawnee State's right "to establish and enforce a nondiscrimination policy to ensure that its transgender students have an equal opportunity to get a university education." (Doc. 44 at 3-15, citing Pickering v. Bd. of Educ. Of Twp. High Sch. Dist. 205, 391 U.S. 563, 568(1968)).[3]

         In response, plaintiff contends he has stated a claim for relief under the First Amendment. Plaintiff challenges the Shawnee State defendants' characterization of his use of titles and pronouns as '"conduct" or as a "ministerial act," and he argues his language is ''speech" that is entitled to First Amendment protection. (Doc. 45 at 19-20). Plaintiff alleges that his "speech" is not public employee speech made as part of his "official duties" that can be regulated under Garcetti. (Doc. 45 at 13; Doc. 46 at 9). Instead, plaintiff alleges that he was speaking as a "citizen" because his "speech" is "faculty speech" that is "related to teaching" or to "scholarship or teaching." (Doc. 45 at 13; Doc. 46 at 10).

         Plaintiff further alleges that "[i]n-class speech is presumptively a matter of public concern." (Doc. 45 at 17). He alleges that the presumption applies here because his speech involved gender identity, which is a "quintessential public concern." (Id. at 18). Plaintiff alleges that based on the allegations of the complaint, the Pickering balancing test applies and favors him because he has shown that his interest in First Amendment expression outweighed defendants' interest in the efficient operation of the workplace. (Doc. 46 at 14, citing Crawford v. Columbus State Community College, 196 F.Supp.3d 766, 777 (S.D. Ohio 2016)).

         Plaintiff also contends that defendants have taken an "adverse action . .. that would deter a person of ordinary firmness from the exercise" of his free speech rights. (Doc. 45 at 21, quoting Maben v. The/en, 887 F.3d 252, 266 (6th Cir. 2018)). Plaintiff claims that defendants took "disciplinary actions" which they characterized as "formal" by threatening in a written statement that "further corrective actions" would be taken if plaintiff continues to express his views, and defendants have chilled the exercise of his rights by taking actions that threaten him with the risk of suspension or termination if he does not change his speech. (Doc. 45 at 21-22). Plaintiff alleges that defendants' actions have caused him to avoid discussing gender identity and transgenderism, to steer class discussions away from these topics, and to refuse to address these topics when students have raised them. (Id. at 22, citing Doc. 34, ¶¶ 291-97).

         II. Rule 12(b)(6) standard

         Defendants move to dismiss plaintiffs Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the ground the complaint fails to state a claim upon which relief can be granted. (Docs. 36, 44). In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations as true and make reasonable inferences in favor of the non-moving party. Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005)). Only "a short and plain statement of the claim showing that the pleader is entitled to relief is required. Id. (quoting Fed.R.Civ.P. 8(a)(2)). ''[T] he statement need only give the defendant fair notice of what the .. . claim is and the grounds upon which it rests.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks omitted) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Although the plaintiff need not plead specific facts, the "[f]actuai allegations must be enough to raise a right to relief above the speculative level" and to "state a claim to relief that is plausible on its face." Id. (quoting Twombly, 550 U.S. at 555, 570). A plaintiff must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         The Court "may consider exhibits attached to the complaint, public records, [and] items appearing in the record of the case ... so long as they are referred to in the complaint and are centra] to the claims contained therein, without converting the motion to one for summary judgment." Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016) (citing Kreipke v. Wayne State Univ., 807 F.3d 768, 774 (6th Cir. 2015)). The Court may also consider documents attached to a Rule 12(b)(6) motion without converting the motion into a summary judgment motion if the attached materials are matters of public record. McLaughlin v. CNX Gas Co., LLC, 639 Fed.Appx. 296, 298-99 (6th Cir. 2016) (citing Commercial Money ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007)).

         IV. Resolution

         A. Plaintiffs official capacity claims against the Shawnee State officials

         The Shawnee State officials contend they should be dismissed as parties from the lawsuit because plaintiff has sued them in their official capacity, meaning the claims brought against them are to be treated as claims against the State of Ohio which are barred by the Eleventh Amendment. (Doc. 36 at 14, citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989); Hall v. Med, College of Ohio at Toledo, 742 F.2d 299, 307 (6th Cir. 1984)). Defendants further contend that they must be dismissed from the lawsuit because plaintiff has not alleged facts to show they had any role in violating plaintiffs constitutional rights. (Doc. 36 at 14). They argue that plaintiff has not alleged facts to show they were involved in any of the actions he challenges as violative of his constitutional rights, including developing or instituting the Shawnee State policies at issue, communicating with him about actions under the policies, or carrying out those actions. (Id.). Defendants contend that plaintiff alleges only that the individual Trustees have "final policymaking authority for rules and regulations that govern the University" and that the Trustees "have not modified the policies challenged herein," which does not suffice to state a claim for relief against them. (Id., citing Doc. 34, ¶¶ 13-18). Defendant Pauley contends that the Amended Complaint alleges that she "possesses the authority and responsibility for governing and regulating faculty in the Department of English and Humanities at the University" and for "overseeing" plaintiff; however, under the CBA, she is a member of the faculty bargaining unit and not an administrator of University policy who can impose discipline or materially affect the terms and conditions of plaintiff s employment. (Id. at 15, citing Doc. 34, Exh. 4, Art. 5, § 1 .A.3, p. 11; Id., Art. 18).

         Any form of relief sought against a State in federal court is barred under the Eleventh Amendment unless the State has waived its sovereign immunity. See Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 58 (1996); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984); Hamilton's Bogarts, Inc. v. Mich., 501 F.3d 644, 654 n.8 (6th Cir. 2007). The State of Ohio has not constitutionally or statutorily waived its Eleventh Amendment immunity in the federal courts. See Johns v. Supreme Court of Ohio, 753 F.2d 524 (6th Cir. 1985); State of Ohio v. Madeline Marie Nursing Homes. 694 F.2d 449 (6th Cir. 1982).

         The Eleventh Amendment bar extends to actions where the State is not a named party but where the action is essentially one for the recovery of money from the state. Edelman v. Jordan, 415 U.S. 651, 663 (1974); Ford Motor Company v. Dept. of Treasury, 323 U.S. 459, 464 (1945). A suit against state officials in their official capacities would, in reality, be a way of pleading the action against the entity of which the state officials are agents. Monell v. Dept. of Soc. Services of City of New York, 436 U.S. 658, 690 (1978). Thus, actions against state officials in their official capacities are included in the Eleventh Amendment bar. Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (citing Cady v. Arenac County, 574 F.3d 334, 344 (6th Cir. 2009) f/'[A]n official-capacity suit against a state official is deemed to be a suit against the State and is thus barred by the Eleventh Amendment, absent a waiver.") (citation and ellipsis omitted)). A suit in federal court against a State university and its board is treated as a suit against the State. Hutsell v. Sayre, 5 F.3d 996, 1002 (6th Cir. 1993).

         An exception to this immunity from suit applies if state officials are sued in their official capacities for prospective relief in the form of an injunction. Ex parte Young, 209 U.S. 123 (1908). See also Kentucky v. Graham, 473 U.S. 159, 169 n.18 (1985) ("In an injunctive or declaratory action grounded on federal law. the State's immunity can be overcome by naming state officials as defendants."). Thus, plaintiff is not barred by the Eleventh Amendment from seeking prospective injunctive relief from the Shawnee State officials in their official capacities.[4]

         B. Plaintiffs First Amendment claims

         Plaintiff brings a First Amendment claim under the Free Exercise Clause and four claims premised on his constitutional right to freedom of speech: (1) retaliation, (2) content and viewpoint discrimination, (3) compelled speech, and (4) unconstitutional conditions. (Doc. 34). The Court will initially address plaintiffs retaliation claim alleged in the first count of the complaint.

         1. First Amendment retaliation

         "[T]he First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos,547 U.S. 410, 417 (2006). A plaintiff must establish three elements to prevail on a claim of retaliation under the First Amendment: (1) he engaged in speech that was protected under the First Amendment; (2) he suffered an adverse employment action that would deter an individual of "ordinary firmness" from engaging in the action; and (3) the adverse action was at least partially motivated by the plaintiffs exercise of his constitutional right. Fox v. Traverse City Area Pub. Schs. ...

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