United States District Court, S.D. Ohio, Western Division
NICHOLAS K. MERIWETHER, Plaintiffs,
THE TRUSTEES OF SHAWNEE STATE UNIVERSITY, et al, Defendants.
REPORT AND RECOMMENDATION
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.
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 (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).
Factual and procedural background
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.,
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).
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).
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
IXCoordinator 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).
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).
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).
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, ¶ 22.214.171.124). 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, ¶ 126.96.36.199;M,
Exh. 4 at 110).
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).
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).
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).
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.,
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.,
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
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
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).
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).
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."
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
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).
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).
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).
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.
Motions to dismiss
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)).
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).
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)).
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).
Rule 12(b)(6) standard
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)).
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)).
Plaintiffs official capacity claims against the Shawnee State
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).
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).
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).
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
Plaintiffs First Amendment claims
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.
First Amendment retaliation
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. ...