United States District Court, D. Minnesota
Leonard C. Onyiah, Plaintiff,
St. Cloud State University and Board of Trustees, et al., Defendants.
REPORT AND RECOMMENDATION
HONORABLE LEO I. BRISBOIS UNITED STATES MAGISTRATE JUDGE.
matter came before the undersigned United States Magistrate
Judge pursuant to an order of referral, [Docket No. 23], made
in accordance with the provisions of 28 U.S.C. §
636(b)(1)(B), and upon Defendants' Motion to Dismiss,
[Docket No. 18]. This Court held a Motion Hearing on July 24,
2017, and Defendants' Motion to Dismiss was taken under
advisement thereafter. (See, Minute Entry, [Docket
reasons set forth below, the Court recommends that
Defendants' Motion to Dismiss, [Docket No. 18], be
GRANTED IN PART AND DENIED IN PART.
BACKGROUND AND STATEMENT OF ALLEGED
Leonard Onyiah is a black man who was born in Nigeria.
(Amend. Compl., [Docket No. 15], 2). He has been a Professor
of Statistics at St. Cloud State University
(“SCSU”) since 1998, and he was the Chair of the
Department of Statistics and Computer Networking prior to
that department's absorption into other departments.
(Amend. Compl., [Docket No. 15], 3).
are Pieyi Zhao, a Chair of the Mathematics/Statistics
Department at SCSU; Daniel Gregory, the Dean of the College
of Science and Engineering at SCSU; Dale Buske, a Chair of
the Mathematics/Statistics Department at SCSU; Melissa
Hanszek-Brill, a faculty member at SCSU; and Ellyn Bartges,
the Equity and Affirmative Action Officer at SCSU.
(Id. at 1).
has previously filed internal complaints of employee
discrimination, and he has pursued at least one prior
discrimination complaint through both the EEOC and federal
court litigation. (Id.); see,
also, Onyiah v. St. Cloud State Univ., et
al., 684 F.3d 711 (8th Cir. 2012). In that previous
case, Plaintiff “sued St. Cloud State University and
the Board of Trustees of Minnesota State Colleges and
Universities (collectively, the University) for wage
discrimination based on race, national origin, and
age.” Id. at 714. The District Court of
Minnesota granted summary judgment to the University, and on
July 2, 2012, the Eighth Circuit affirmed. Id.
about October 21, 2013, Plaintiff filed an internal
discrimination complaint at SCSU, and in the case now before
the Court, he alleges that the Eighth Circuit decision in
July 2012, combined with his internal complaint in October
2013, motivated Defendants to create a hostile work
environment and unlawfully retaliate against him. (Amend.
Compl., [Docket No. 15], 3-4). In support of his claims,
Plaintiff relates multiple incidents, which are set forth
here in chronological order.
approximately November 2013, Plaintiff states that he
requested that SCSU review his salary, “to bring [the]
same in line with professors of his experience and stature
within SCSU.” (Id. at 17). In December 2013,
the Provost and the President of SCSU informed Plaintiff that
no salary adjustment was warranted; they specifically stated
that the results of the prior litigation had concluded that
there was no need to adjust Plaintiff's salary.
(Id. at 18).
Plaintiff maintains he “had long been scheduled”
to teach a certain statistics class (STAT 193) in the spring
semester of 2014. (Id. at 4). However, in December
2013, Defendants Gregory, Buske, and Hanszek-Brill
“orchestrated” the reassignment of STAT 193 from
Plaintiff to a white teacher with less experience teaching
the class. (Id. at 2, 4). Defendants Gregory, Buske,
and Hanszek-Brill also “campaign[ed]” against
other faculty members using Plaintiff's published
statistics textbook in their statistics courses, and
“Defendants” made “false, derogatory, and
painful statements about [Plaintiff's] pedagogy”
and about Plaintiff's capability to manage his classes
without help from Hanszek-Brill. (Id. at 5-6).
Plaintiff was also asked on “very short notice”
to teach STAT 417. (Id.). Moreover, on or about
December 18, 2013, Plaintiff's STAT 193 class was capped
at 37 students and his suggestion of an alternate arrangement
was rejected by Defendant Gregory. (Id. at 5).
December 2013, Defendants Gregory, Buske, and Hanszek-Brill
are alleged to have denied Plaintiff the opportunity to
continue using Learning Assistants: a practice which
Plaintiff had been successfully using since 2008, a practice
which Plaintiff had implemented prior to any other faculty
member at SCSU, and one for which Plaintiff had received
specific training. (Id. at 5-6). Defendants are said
to have asserted in statements published to the entire
department and placed in a shared computer drive that
Plaintiff had submitted an “incompetent”
application for the use of Learning Assistants. (Id.
at 6). When Plaintiff complained about the situation to
Defendant Bartges, she did nothing. (Id.).
another occasion, while Plaintiff was on
sabbatical in Nigeria, he was again denied the
opportunity to use Learning Assistants, while other faculty
members with similarly sized classes allegedly were not.
(Id.). Prior to the denial, Defendants had not
informed Plaintiff of the application period for the use of
Learning Assistants. (Id. at 7). When Plaintiff
returned from his sabbatical, he requested assignment of
Learning Assistants, but Defendant Gregory “refused
[the request] without any rational explanation.”
(Id. at 7).
participated in a program called “Senior to Sophomores
(‘S2S'), ” which appears to be a mentorship
program in which high school teachers are mentored by SCSU
faculty. (See, Id. at 7-8). SCSU has a
historical practice of allowing faculty on sabbatical leave
to continue in their S2S mentorship roles and thereby earn
extra money while on leave, but on or about February 26,
2014, Defendants Buske and Gregory “and their
collaborators” denied Plaintiff the opportunity to
participate in the S2S program while he was on sabbatical
leave during the 2014/2015 academic year. (Id. at
7). Instead, Defendants Zhao and Gregory purportedly assigned
Plaintiff's three S2S classes to a white faculty member.
(Id. at 8).
March 2014, Plaintiff filed an internal complaint about the
foregoing S2S situation with Defendant Bartges who eventually
responded that the “complaint did not qualify to be
treated as an employment discrimination complaint.”
(Id. at 9). Nevertheless, Plaintiff believed that
his S2S classes would be restored to him upon his return from
his 2014/2015 sabbatical. (Id. at 8). However, when
Plaintiff returned from that sabbatical, the S2S classes are
alleged not to have been restored to him, and he learned that
Defendants Gregory and Zhao had “supported” the
passage of a resolution that teachers at the participating
high schools would decide which SCSU professor to work with
in the S2S program. (Id. at 8). All of the S2S high
school teachers (whom Plaintiff points out were all white),
chose to work with a white SCSU faculty member instead of
Plaintiff. (Id.). When Plaintiff complained, two of
the S2S classes were restored to him, but after one semester,
one of those classes was eliminated altogether. (Id.
addition, Defendants Zhao and Gregory created Plaintiff's
teaching schedule for the Spring 2016 semester without
consulting Plaintiff, allegedly in violation of the
applicable Collective Bargaining Agreement and departmental
rules. (Id. at 11). This resulted in Plaintiff being
scheduled for the 2016 Spring semester to teach three classes
(of 75-minute duration) on Tuesdays and Thursdays; without
sufficient breaks between classes. (Id.). Plaintiff
appealed to Defendants Gregory and Zhao for permission to
switch classes with another faculty member, but Defendant
Gregory is reported to have rejected the request stating that
students have a right to be taught by the faculty who is
designated at registration as the one assigned to teach that
class. (Id. at 12).
designates some courses as “on-load” courses and
some as “package” courses. (Id. at 10).
An on-load course is “taught as part of the contracted
12 credits per [s]emester” and does not result in extra
pay for the instructor, while package courses are compensated
beyond the contract and the instructor is paid per student.
(Id.). In the Spring 2016 semester, Plaintiff was
scheduled to teach STAT 424 as an on-campus, on-load course
as well as STAT 193 as an online, package course.
(Id.). An insufficient number of students registered
for STAT 424, but Defendant Gregory did not assign Plaintiff
to teach an additional on-load course, although such courses
were available. (Id.). Defendant Gregory allegedly
“ignored or rejected” Plaintiff's request for
another on-campus, on-load course. (Id. at 11).
Instead, Defendants Gregory and Zhao reclassified 30 of the
students enrolled in the STAT 193 online, package course as
instead being considered to be in an on-load course; thus,
leaving Plaintiff to be paid package-course rates only for
the remaining 12 students in the class. (Id. at 10).
Plaintiff was purportedly the only faculty member in the
Department of Mathematics and Statistics whose package course
was partially converted to an on-load course. (Id.
at 11). A letter of complaint Plaintiff sent to the Provost
of SCSU brought no change. (Id.).
Gregory is described as also declining to allocate funding
for online courses to be taught in the summer of 2016.
(Id. at 13). Plaintiff, Defendant Buske, and
Defendant Hanszek-Brill were the only faculty members who
regularly taught online courses during the summers.
(Id.). Instead, Defendant Gregory arranged on-campus
courses for Defendants Buske and Hanszek-Brill to teach in
place of online courses that summer, but he allegedly did not
arrange an on-campus course for Plaintiff. (Id.).
February 8, 2016, the Department of Mathematics and
Statistics resolved that three classes (MATH 112, MATH 193,
and STAT 193) would be offered online during the Fall 2016
semester and would be compensated as
“overload.” (Id. at 13). Defendant Gregory
accepted the resolution, but he is described by Plaintiff as
capping enrollment in MATH 112 and MATH 193, which were
taught by Defendants Buske and Hanszek-Brill, at 40 students,
but he capped enrollment in STAT 193, which was taught by
Plaintiff, at 60 students. (Id. at 14). A meeting to
discuss objections to the different enrollment caps was held
on April 4, 2016, and Plaintiff states that he was excluded
from this meeting; further, he asserts that it resulted in
the cancellation of his online STAT 193 class altogether
while retaining the online MATH 112 and MATH 193 classes.
(Id.). Moreover, Defendant Zhao notified Plaintiff
the same day that the two on-campus STAT 193 classes would
now be capped at an “unprecedented” high of 130
students each. (Id.). When Plaintiff asked for an
explanation, Defendant Zhao did not clarify for Plaintiff why
his online STAT 193 class was cancelled. (Id. at
subsequent Departmental meeting on April 11, 2016, Plaintiff
again asked why his STAT 193 class was cancelled but the MATH
112 and MATH 193 classes taught by others were not.
(Id. at 15). During the meeting, Defendant Buske
would allegedly not allow Defendant Zhao to answer
Plaintiff's questions, and Buske repeatedly interrupted
Zhao when she attempted to do so. (Id.). Defendant
Buske indicated that he was the one who should answer the
question since he had experience in scheduling.
(Id.). Other faculty members yelled angrily at
Plaintiff, and Defendant Buske is said to have left the
meeting “in obvious anger and frustration.”
(Id. at 16-17). Thereafter, a complaint was filed by
unknown persons with SCSU regarding Plaintiff's behavior
at the April 11th meeting, and Plaintiff was investigated
through SCSU's disciplinary process. (Id. at
December 8, 2016, Plaintiff commenced the present action by
filing his original Complaint pro se in this Court;
he alleged that Defendants violated his rights under the
First Amendment to the United States Constitution, leading to
federal claims under 42 U.S.C. §§ 1981 and 1983 and
the Minnesota Human Rights Act. (Compl., [Docket No. 1]).
April 19, 2017, Defendants filed a joint Motion to Dismiss
the original Complaint, [Docket No. 4].
April 24, 2017, Plaintiff filed a pro se Amended
Complaint, [Docket No. 15]. As narrowed at the July 24, 2017,
Motion Hearing, Plaintiff therein brings claims against
Defendants Zhao, Gregory, Buske, Hanszek-Brill, and Bartges
in both their individual and official capacities “under
42 U.S.C. § 1981, as amended by the Civil Rights Act of
1991, 42 U.S.C. § 1983, First Amendment to the United
States Constitution, [and] the Equal Protection
Clause.” (Id. at 1; July 24, 2017, Motion
Hearing, Digital Record, 2:55-59). Plaintiff seeks compensatory
damages of $5, 000, 000.00 for each of his nine causes of
action, punitive damages against the individual Defendants, a
permanent injunction preventing Defendants from further
discrimination or retaliation against Plaintiff,
attorney's fees, and costs. (Id. at 18-19).
8, 2017, Defendants filed a Motion to Dismiss the Amended
Complaint, [Docket No. 18], which was thereafter referred to
this Court for a Report and Recommendation, [Docket No. 23].
30, 2017, counsel entered an appearance on behalf of
Plaintiff, [Docket No. 30], and filed Plaintiff's
Memorandum in Opposition to Defendants' second Motion to
Dismiss, [Docket No. 32]. Defendants filed their Reply
Memorandum on July 14, 2017. ([Docket No. 36]).
DEFENDANTS' MOTION TO DISMISS, [Docket No. 18]
Standards of Review
se complaints are construed liberally, but they still
must allege sufficient facts to plausibly support the claims
advanced. See, Stone v. Harry, 364 F.3d
912, 914 (8th Cir. 2004). A Complaint drafted and filed by a
pro se party is afforded such liberal construction
even if the party is later represented by counsel.
See, Sneh v. Bank of New York Mellon, No.
12-cv-954 (MJD/JSM), 2012 WL 5519690, *5 (D. Minn. Oct. 30,
2012) (applying liberal construction to a complaint which was
filed by plaintiffs pro se but plaintiffs later
retained counsel to represent them at the hearing on the
motion to dismiss); see, also, Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (“A document
filed pro se is ‘to be liberally
construed.'” (Emphasis added.)).
considering a motion to dismiss under Rule 12(b)(6), courts
“look only to the facts alleged in the complaint and
construe those facts in the light most favorable to the
plaintiff.” Riley v. St. Louis Cty. of Mo.,
153 F.3d 627, 629 (8th Cir. 1998) (citing Double D
Spotting Serv., Inc. v. Supervalu, Inc., 136 F.3d 554,
556 (8th Cir 1998)), cert. denied 525 U.S. 1178
(1999). Courts must accept as true all of the factual
allegations in the complaint and draw all reasonable
inferences in the plaintiff's favor. Aten v.
Scottsdale Ins. Co., 511 F.3d 818, 820 (8th Cir. 2008).
Although the factual allegations in the complaint need not be
detailed, they must be sufficient to “raise a right to
relief above the speculative level, ” which
“requires more than labels and conclusions, and a
formulistic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007).
complaint must “state a claim to relief that is
plausible on its face.” Id. at 570. “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged, ” and “[w]here a complaint pleads facts
that are ‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility of ‘entitlement to
relief.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 556-57).
When courts undertake the “context-specific task”
of determining whether a plaintiff's allegations
“nudge” its claims against a defendant
“across the line from conceivable to plausible, ”
they may disregard legal conclusions that are couched as
factual allegations. See, Iqbal, 556 U.S.
move the Court for dismissal of Plaintiff's Amended
Complaint in its entirety for failure to state a claim upon
which relief can be granted, pursuant to Rules 12(b)(1) and
(6) of the Federal Rules of Civil Procedure. ([Docket No.
July 24, 2017, Motion Hearing, Plaintiff's counsel
clarified for the Court that Plaintiff's claims are based
upon his contention that the actions alleged in the Amended
Complaint were based on unlawful discriminatory or
retaliatory motives. (July 24, 2017, Motion Hearing, Digital
Record, 3:15-16). When the Court asked Plaintiff's
counsel to further clarify the basis for each Cause of
Action, Plaintiff's counsel stated that the legal
theories are distinct within each Cause of Action and can be
determined from the four corners of the Amended Complaint.
(Id. at 3:15-18). The bases for the claims in the
operative Amended Complaint, as narrowed at the July 24,
2017, Motion Hearing, are: “42 U.S.C. § 1981, as
amended by the Civil Rights Act of 1991, 42 U.S.C. §
1983[; the] First Amendment to the United States
Constitution[; and] the Equal Protection Clause.”
(Amend. Compl., [Docket No. 15], 1). Moreover, at this
juncture, Plaintiff's claims as narrowed are brought only
against the individual, named Defendants in their individual
and official capacities.
42 U.S.C. § 1981 Claims
U.S.C. § 1981 protects the right of an individual in the
United States to “make and enforce contracts”
regardless of his or her race. The United States Supreme
Court has explicitly held that “§ 1981 encompasses
retaliation claims.” See, CBOCS West, Inc.
v. Humphries, 533 U.S. 442, 446 (2008). Furthermore, the
amendments to § 1981 included in the Civil Rights Act of
1981 made clear that “the term ‘make and enforce
contracts' includes the making, performance,
modification, and termination of contracts, and the enjoyment
of all benefits, privileges, terms, and conditions of the
contractual relationship.” See, Id.
at 450 (quoting 42 U.S.C. 1981(b).
“‘[a] federal action to enforce rights under
§ 1981 against a state actor may only be brought
pursuant to § 1983.'” Delgado-O'Neil
v. City of Minneapolis, 745 F.Supp.2d 894, 901 (D. Minn.
2010) (quoting Artis v. Francis Howell N. Band Booster
Ass'n, Inc., 161 F.3d 1178, 1181 (8th Cir. 1998)).
It is undisputed that St. Cloud State University is an arm of
the State of Minnesota and, as such, its employees are state
officials. See, Breaker v. Bemidji State
Univ., ___ N.W.2d___, 2017 WL 2535724, *4 (Minn. 2017)
(noting that entities statutorily designated in Minn. Stat.
§ 136F.10 as members of Minnesota State Colleges and
Universities are state agencies); Minn. Stat. § 136F.10
(designating SCSU as a member of Minnesota State Colleges and
Universities); see, also, e.g.,
Davenport v. Bd. of Trs. of the Univ. of Ark. at Pine
Bluff, No. 10CV00023 BSM, 2011 WL 900095, *2 (E.D. Ark.
March 14, 2011) (classifying defendant employee of state
university as “a state official”); James v.
Bd. of Curators of the Univ. of Mo., No. 09CV2066 RWS,
2011 WL 147910, *3 n.3 (E.D. Mo. Jan. 18, 2011) (same).
Accordingly, Plaintiff may not properly assert a retaliation
claim directly under § 1981 against Defendants, as they
are state actors; Plaintiff must bring his retaliation claims
under 42 U.S.C. § 1983.
to the extent that Plaintiff intends to pursue retaliation
claims against the remaining individually named Defendants
the Plaintiff must do so under § 1983 and not under
§ 1981. Accordingly, the Court recommends that all
§ 1981 claims for retaliation be dismissed with
Monetary and Punitive Damages for Official Capacity
their Memorandum in Support of their Motion to Dismiss,
Defendants argue that as a matter of law, Plaintiff is wholly
barred from bringing suit under § 1983 against the
remaining named Defendants in their official capacities.
([Docket No. 20], 5-6). To the extent that Plaintiff is
seeking monetary damages against Defendants in their official
capacities, the Court agrees that monetary damages are not
recoverable under § 1983. See, e.g.,
Karsjens v. Jesson, 6 F.Supp.3d 916, 941 (D. Minn.
2014) (citing Will v. Mich. Dep't of State
Police, 491 U.S. 58, 71 (1989), and Edelman v.
Jordan, 415 U.S. 651, 663 (1974)).
claims “generally represent only another way of
pleading an action against the entity of which an officer is
an agent, ” and “[s]uits against state officials
in their official capacity therefore should be treated as
suits against the State.” Hafer v. Melo, 502
U.S. 21, 25 (1991) (citations and quotations omitted).
“[N]either a State nor its officials acting in their
official capacities are ‘persons' under §
1983, ” and thus monetary relief is not available under
§ 1983 from state employees in their official capacity.
See Will, 491 U.S. at 71. In addition, the
government and its officials are immune from punitive damages
under § 1983 because “considerations of history
and policy do not support exposing a [state] to punitive
damages for the bad-faith actions of its officials.”
See City of Newport v. Fact Concerts, Inc., 453 U.S.
247, 271 (1981). Plaintiff will not be able to recover either
monetary relief or punitive damages from Defendants in their
official capacities; therefore, the Court recommends that to
the extent Plaintiff seeks to recover monetary relief or
punitive damages from the remaining named Defendants in their
official capacities, Plaintiff's § 1983 claims
be dismissed with prejudice.
also argue that Plaintiff has failed to sufficiently allege
each Defendant's personal involvement in the alleged
unconstitutional acts. (Mem. in Supp., [Docket No. 20],
state a claim under § 1983, the plaintiff must plead
that a government official has personally violated the
plaintiff's constitutional rights.” Jackson v.
Nixon, 747 F.3d 537, 543 (8th Cir. 2014) (citing
Iqbal, 556 U.S. at 676)). Thus, to survive
Defendants' current Motion to Dismiss, Plaintiff in the
present case must have alleged each individually named
Defendant's personal involvement in the asserted First
Amendment retaliation and equal protection violations due to
racial discrimination with “more than labels and
conclusions, and a formulistic recitation of the elements of
a cause of action will not do.” See,
Twombly, 550 U.S. at 555. Whether Plaintiff has done
so sufficiently is addressed in the analysis of each
individual Cause of Action, below.
Sufficiency of the Amended Complaint
Court will address each Cause of Action in turn, but first it
would be helpful to set forth the general law relevant to
pleading claims of retaliation or racial discrimination
sufficiently to survive a Rule 12(b)(6) Motion to Dismiss
such as the one presently before the Court. Retaliation
claims and racial discrimination claims do not require the
same factual allegations.
example, Defendants argue that Plaintiff has failed to allege
facts sufficient to support any plausible remaining
claim for relief under 42 U.S.C. § 1983 because he did
not “detail any facts linking either his history of
litigation against SCSU . . . or his purported October 2013
internal complaint to any of the decisions about which he
complains.” (Mem. in Supp., [Docket No. 20], 7).
However, only Plaintiff's claims of retaliation in
violation of the First Amendment require a showing of such
To plead a prima facie case of First Amendment retaliation,
[a plaintiff] must allege that (1) he engaged in activity
protected by the First Amendment; (2) the defendants took an
adverse employment action against him; and (3) the protected
conduct was a substantial or motivating factor in the
defendants' decision to take the adverse employment
Lyons v. Vaught, 781 F.3d 958, 961 (8th Cir.
relevant to Plaintiff's retaliation claims, Defendants do
not argue that filing a civil lawsuit and lodging an internal
employment discrimination complaint are not activities
protected by the First Amendment. (See, Mem. in
Supp., [Docket No. 20], 7-12). Moreover, it is clear that
“[t]he First Amendment protects a person's right to
file a lawsuit.” Taylor v. Bailey, 617
Fed.Appx. 615, 617 (8th Cir. 2015) (citing Beaulieu v.
Ludeman, 690 F.3d 1017, 1025 (8th Cir.
2012)). Rather, Defendants focus their arguments
on their assertion that Plaintiff has not pled facts
sufficient to plausibly allege adverse employment action and
that Plaintiff has similarly failed to plead facts sufficient
to support a plausible claim that the decision to make any of
the purported adverse employment decisions was motivated by a
retaliatory intent. (See, Mem. in Supp., [Docket No.
contrast, what Plaintiff terms as his “straight
discrimination claim, ” (see, Mem. in Opp.,
[Docket No. 32], 7)-his claims brought under § 1983
which alleges violation of the Equal Protection Clause of the
Fourteenth Amendment-does not require the same showing of
retaliatory motive. As the Eighth Circuit has explained:
“[T]he Equal Protection Clause requires that the
government treat such similarly situated persons
alike.” Absent evidence of direct discrimination,
courts apply the McDonnell Douglas burden-shifting
analysis to claims of employment discrimination under the
Equal Protection Clause. Under McDonnell Douglas, a
prima facie case of discrimination requires that a plaintiff
prove: “(1) membership in a protected group; (2)
qualification for the job in question; (3) an adverse
employment action; and (4) circumstances that support an
inference of discrimination.”
. . . .
. . . [A] plaintiff need not plead facts establishing a prima
facie case of discrimination under McDonnell Douglas
in order to defeat a motion to dismiss. The complaint
“must contain only ‘a short and plain statement
of the claim showing the pleader is entitled to
relief.'” “Such a statement must simply
‘give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
Hager v. Ark. Dept. of Health, 735 F.3d 1009, 1014
(8th Cir. 2013).
while the Court will consider Defendants' argument
regarding the sufficiency of alleged retaliatory intent in
conjunction with Plaintiff's retaliation claims, that
argument has no bearing on the sufficiency of pleading with
regard to Plaintiff's separate racial and national origin
despite Plaintiff's counsel's reassurances at the
July 24, 2017, Motion Hearing, the legal basis for each Cause
of Action is not entirely clear from the Amended Complaint.
However, because Plaintiff was pro se when he
drafted and filed the Amended Complaint, the Court will
construe the Amended Complaint liberally. Accordingly, for
those Causes of Action which do not explicitly identify
whether they are retaliation claims or discrimination claims,
the Court will draw all reasonable inferences in
Plaintiff's favor to determine the legal basis for the
First Cause of Action
bases his First Cause of Action on the following alleged
facts: In December 2013, Defendant Gregory assigned Nancy
Sundheim, a white female faculty member with less experience,
to teach a statistics class which Plaintiff had long been
scheduled to teach and which Plaintiff had the most
experience teaching when compared to other faculty within the
department. (Amend. Compl., [Docket No. 15], 4-5). Because of
the class reassignment, Plaintiff was denied the opportunity
to earn royalties from the use of his book in teaching the
class. In addition, Plaintiff was asked to teach a different,
higher-level statistics class on very short notice, and the
enrollment in his lower-level statistics class was capped at
37 students by Defendant Buske. (Id. at 5). When
Plaintiff suggested an alternate arrangement, ...