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Onyiah v. St. Cloud State University

United States District Court, D. Minnesota

September 25, 2017

Leonard C. Onyiah, Plaintiff,
v.
St. Cloud State University and Board of Trustees, et al., Defendants.

          REPORT AND RECOMMENDATION

          THE HONORABLE LEO I. BRISBOIS UNITED STATES MAGISTRATE JUDGE.

         This 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 No. 37]).

         For the reasons set forth below, the Court recommends that Defendants' Motion to Dismiss, [Docket No. 18], be GRANTED IN PART AND DENIED IN PART.

         I. BACKGROUND AND STATEMENT OF ALLEGED FACTS[1]

         Plaintiff 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).

         Defendants 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).[2]

         Plaintiff 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.

         On or 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.

         In 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).

         Next, 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”[3] 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).

         Also in 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.).

         On another occasion, while Plaintiff was on sabbatical[4] 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).

         SCSU 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).

         In 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. at 9).

         In 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).

         SCSU 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.).

         Defendant 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.).

         On 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.”[5] (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 15).

         At a 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 17).

         I. PROCEDURAL HISTORY

         On 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.[6] (Compl., [Docket No. 1]).

         On April 19, 2017, Defendants filed a joint Motion to Dismiss the original Complaint, [Docket No. 4].[7]

         On 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).[8] 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).

         On May 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].

         On June 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]).

         II. DEFENDANTS' MOTION TO DISMISS, [Docket No. 18]

         A. Standards of Review

         Pro 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.)).

         When 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).

         The 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. at 678-81.

         B. Analysis

         Defendants 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. 18]).

         At the 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[9], 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.

         1. 42 U.S.C. § 1981 Claims

         42 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).

         However, “‘[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.

         Therefore, 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 prejudice.

         2. Monetary and Punitive Damages for Official Capacity Claims

         In 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)).

         Official-capacity 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.[10]

         3. Personal Involvement

         Defendants 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], 7-12).

         “To 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.

         4. Sufficiency of the Amended Complaint

         The 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.

         For 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 retaliatory motivation.

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 action.

Lyons v. Vaught, 781 F.3d 958, 961 (8th Cir. 2015).[11]

         Specifically 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)).[12] 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. 20], 7-12).

         In 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 rests.'”

Hager v. Ark. Dept. of Health, 735 F.3d 1009, 1014 (8th Cir. 2013).

         Therefore, 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 discrimination claims.

         Moreover, 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 claims.

         a. First Cause of Action

         Plaintiff 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, ...


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