United States District Court, D. Minnesota
Leonard C. Onyiah, Plaintiff,
Peiyi Zhao, Daniel Gregory, Dale Buske, and Melissa Hanszek-Brill, Defendants.
Kenechukwu C. Okoli, Law Offices of K.C. Okoli, P.C., New
York, NY; and Jordan W. Anderson and Boris Parker, Parker
& Wenner, P.A., Minneapolis, MN for Plaintiff Leonard C.
Kathryn Fodness, Minnesota Attorney General's Office, St.
Paul, MN for Defendants Peiyi Zhao, Daniel Gregory, Dale
Buske, and Melissa Hanszek-Brill.
OPINION AND ORDER
C. TOSTRUD UNITED STATES DISTRICT COURT JUDGE.
Leonard C. Onyiah is a statistics professor at St. Cloud
State University. He alleges that Defendants-four of his
colleagues at Saint Cloud State University- retaliated
against him for exercising his legal rights and discriminated
against him on the basis of his national origin and race when
they made or participated in decisions regarding his teaching
assignments and related matters. Onyiah asserts his claims
under 42 U.S.C. § 1983 seeking to recover damages for
violations of his rights under 42 U.S.C. § 1981 and the
Fourteenth Amendment's Equal Protection Clause.
Defendants have filed a summary-judgment motion, and that
motion will be granted because Onyiah fails as a matter of
law to identify facts establishing essential elements of his
basis of Onyiah's retaliation claims has changed from a
First Amendment retaliation theory to one under 42 U.S.C.
§ 1981. Before he responded to Defendants'
summary-judgment motion, Onyiah seemed to allege that
Defendants had retaliated against him for exercising his
First Amendment rights. That is how the Court has understood
Onyiah's retaliation claims. See, e.g., Order at 2-3 (May
13, 2019) (Brisbois, M.J.) [ECF No. 111]. And that is how
Defendants reasonably understood and briefed the claims. Def.
Mem. at 12-19. The gist of Onyiah's First Amendment
retaliation claims seemed straightforward. In 2008, Onyiah
sued Saint Cloud State University and the Board of Trustees
of Minnesota State Colleges and Universities alleging that he
had been discriminated against based on his race, national
origin, and age. See Onyiah v. St. Cloud State Univ.,
No. 08-4948 (MJD/LIB), 2011 WL 1868794 (D. Minn. May 16,
2011) (entering summary judgment against Onyiah's
claims), aff'd, 684 F.3d 711 (8th Cir. 2012), cert.
denied, 568 U.S 1213 (2013). Onyiah also filed employment
discrimination complaints internally at Saint Cloud State
University. Second Am. Compl. ¶¶ 19, 21 [ECF No.
52]. Onyiah claimed that Defendants had taken adverse action
with respect to his employment in retaliation for his 2008
lawsuit and internal complaints. But in response to
Defendants' summary-judgment motion, Onyiah abandoned his
First Amendment retaliation theory. Pl. Opp'n Mem. at 5
[ECF No. 109]; Tr. at 10-12. Onyiah instead identified 42
U.S.C. § 1981 as the basis for his retaliation claims.
It is reasonable to question whether Onyiah's complaint
actually pleads a § 1981 retaliation claim. It nowhere
mentions that theory explicitly. At the same time, however,
it cites § 1981 (albeit just once on the first page),
describes activities arguably protected under § 1981,
and then alleges on several occasions (albeit without
reference to § 1981) that Defendants retaliated against
Onyiah for engaging in those activities. For these reasons,
it seems fair to understand Onyiah's complaint to assert
federal action to enforce rights under § 1981 against a
state actor may only be brought pursuant to §
1983.” Artis v. Francis Howell N. Band Booster
Ass'n, 161 F.3d 1178, 1181 (8th Cir.
1998). Section 1981 protects the right of all
persons “to make and enforce contracts . . . and to the
full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white
citizens.” 42 U.S.C. § 1981(a). 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.” 42 U.S.C.
§ 1981(b). “The protections offered by § 1981
include a government employee's right to be free from
racial harassment” and discrimination. Ellis v.
Houston, 742 F.3d 307, 318 (8th Cir. 2014). “The
Supreme Court has explained that it is ‘well
embedded' that § 1981 also allows for retaliation
claims.” Id. at 319 (quoting CBOCS W.,
Inc. v. Humphries, 553 U.S. 442, 451 (2008)).
“Such claims are analyzed under the same McDonnell
Douglas burden shifting framework as Title VII claims.”
Ellis, 742 F.3d at 319. To prove a prima facie case of
retaliation in the absence of direct evidence, a plaintiff
must show that (1) he engaged in protected activity, (2)
subsequent materially adverse action was taken against him,
and (3) the materially adverse actions were causally linked
to his protected activity. Id. at 322-23.
“‘[S]tatutorily protected activity' for a
retaliation claim under § 1981 is conduct covered by
Title VII.” Sayger v. Riceland Foods, Inc.,
735 F.3d 1025, 1031 (8th Cir. 2013). Conduct is protected
“if it qualifies as participation ‘in any
manner' in [a] Title VII ‘investigation,
proceeding, or hearing.'” Hayes v.
Patterson, 366 Fed. App'x 711, at *1 (8th Cir. 2010)
(quoting Brower v. Runyon, 178 F.3d 1002, 1005 (8th
Cir. 1999)). An action is “materially adverse” if
it “would dissuade a reasonable worker from making or
supporting a charge of discrimination.” Ellis, 742 F.3d
at 323 (quotations omitted). To establish causation, a §
1981 plaintiff must show that “‘the desire to
retaliate was the but for cause of'” the adverse
action. Wright v. St. Vincent Health Sys., 730 F.3d
732, 737 (8th Cir. 2013) (quoting Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 570 U.S. 338, 352 (2013)); see also
Van Horn v. Best Buy Stores, L.P., 526 F.3d 1144, 1148
(8th Cir. 2008) (“To make out a retaliation claim, the
plaintiff must show that the protected conduct was a
‘determinative- not merely a motivating-factor' in
the employer's adverse employment decision.”
(quoting Carrington v. City of Des Moines, 481 F.3d
1046, 1053 (8th Cir. 2007))). If these elements are shown,
then a defendant must show a “‘legitimate,
non-retaliatory reason' for the adverse action.”
Sayger, 735 F.3d at 1031 (quoting Takele v. Mayo
Clinic, 576 F.3d 834, 839 (8th Cir. 2009)). If that
burden is met, then a plaintiff must show that the proffered
reason was pretextual. Sayger, 735 F.3d at 1031. “[A]
defendant's personal liability under §§ 1981
and 1983 requires proof of intentional discrimination by that
defendant.” Ellis, 742 F.3d at 327 (Loken, J.,
identifies actions that he says were materially adverse and
warrant the denial of Defendants' summary-judgment motion
with respect to his § 1981 retaliation claims, but as a
matter of law the actions Onyiah identifies and the record
evidence regarding these actions do not show that Defendants
took materially adverse action against him. The evidence
shows that some of the actions Onyiah identifies did not
happen as he alleges. Onyiah alleges that Defendants
reassigned one of his classes to a “white female
faculty member with less experience than him.” ECF No.
111 at 2; Pl. Opp. Mem. at 3. The evidence shows, not that
one of Onyiah's courses was “reassigned” to
another professor, but that Onyiah's suggestion to
reassign courses both to and away from him was not accepted.
When a course (STAT 417) scheduled to be taught by one of his
colleagues (Nancy Sundheim) during the Spring 2014 semester
became full and had a growing waitlist, Onyiah was asked in
December 2013 about teaching a second section of the course.
Buske Decl. ¶¶ 4-5, Ex. A [ECF No. 93]. Onyiah
objected to teaching a second section of the course on short
notice and suggested reassigning courses to address the
problem. Id. Rather than accepting Onyiah's
reassignment suggestion, the class size for Sundheim's
STAT 417 course was increased, and Onyiah was not required to
teach a second section of the course. Id. ¶ 5.
Onyiah also alleges that his teaching schedule for the Spring
2016 semester was created without his input, but the record
shows he was consulted. ECF No. 111 at 2; Zhao Decl. ¶
5, Ex. A [ECF No. 102]. The record shows that one action
Onyiah cites to support his retaliation claim was not taken
by any Defendant. Specifically, the decision not to permit
Onyiah while on sabbatical to participate in a program that
allowed high-school students to take college-level courses
(the “S2S program”) was made by the Dean of the
Center for Continuing Studies, John Burgeson. Buske Decl.
¶ 9, Ex. E. Onyiah identifies no record evidence showing
that any Defendant participated in making this decision.
each of the actions Onyiah identifies concerns his teaching
schedule or issues related directly to his teaching schedule,
and decisions concerning a teaching schedule may show
materially adverse action only if the evidence indicates that
a plaintiff “suffered a material disadvantage as a
result of the action.” Recio v. Creighton
Univ., 521 F.3d 934, 940 (8th Cir. 2008). The mere fact
that scheduling decisions are unwelcome or disallow a
plaintiff “from maintaining [his] preferred teaching
schedule” are insufficient. Id. Onyiah alleges
no material disadvantage with respect to his teaching
assignments. Onyiah is correct that he was scheduled to teach
back-to-back classes on Tuesdays and Thursdays during the
Spring 2016 semester and that this was not his preferred
schedule, Zhao Decl. ¶ 4, but he identifies no
disadvantage resulting from this arrangement. Onyiah also is
correct that a course he was scheduled to teach in the Summer
2018 semester was canceled. Buske Decl. ¶¶ 13-18.
Again, Onyiah identifies no disadvantage resulting from the
cancellation ofthis course. Nowhere in his brief in
opposition to Defendants' summary-judgment motion does
Onyiah cite record evidence showing that the complained-of
teaching assignments adversely affected his compensation. Nor
does he assert that these assignments so hindered his
professional career that they might reasonably be
characterized as materially adverse. See Recio, 521 F.3d at
941. In his opposition brief, Onyiah asserts that
“every retaliatory action which Plaintiff alleges in
this action is predicated on the Defendants' action in
maligning Plaintiff's textbook and taking every action
they could to prevent Plaintiff from using the book.”
Pl. Opp. Mem. at 16. This assertion is unsupported by any
citation to record evidence. Fed.R.Civ.P. 56(c)(1)(A). An
independent review of the record has turned up no evidence
supporting this assertion. And Onyiah does not describe how
his teaching assignments caused him to suffer a material
disadvantage with respect to his textbook.
of the actions Onyiah identifies could be considered
materially adverse, he identifies no clear theory or record
evidence showing that his protected activity caused the
materially adverse actions to be taken. As a matter of law,
there is no temporal connection between Onyiah's
protected activity and the actions he identifies. Onyiah
commenced his previous lawsuit in 2008, and it concluded in
2013. The most recent internal discrimination complaint
Onyiah identifies filing prior to this lawsuit occurred in
October 2013. Second Am. Compl. ¶¶ 19-22. Onyiah
brought this case in December 2016. Compl. [ECF. No. 1]. The
actions Onyiah identifies-which the evidence shows actually
occurred-took place in the Spring 2016 semester and the
Summer 2018 semester. Regardless of what protected activity
one associates with which assertedly adverse action, the
temporal connection is not close enough to alone raise an
inference of causation. Recio, 521 F.3d at 941 (citing
Green v. Franklin Nat'l Bank of Minneapolis, 459
F.3d 903, 915 (8th Cir. 2006) and Weger v. City of
Ladue, 500 F.3d 710, 726 (8th Cir. 2007)). Onyiah's
opposition brief identifies no other discernable theory of
Onyiah had established a prima facie retaliation claim,
summary judgment against his § 1981 retaliation claim
would remain appropriate because Defendants have shown
legitimate, non-retaliatory reasons for their actions, and
Onyiah has not shown Defendants' proffered reasons were
pretextual. Defendants have cited extensive materials in the
record, including deposition testimony, affidavits, and
documents showing legitimate, non-discriminatory reasons for
their challenged actions. For example, in his declaration,
Buske explained that his scheduling decisions were driven by
several factors including student interest in having a choice
of instructors, Buske Decl. ¶ 3, student need to have
courses available that were necessary to graduate,
Id. ¶ 4, enrollment in courses, Id.,
student expectations once they had registered, Id.
at ¶ 5, and anticipated student demand and projected
enrollment for particular courses, Id. ¶ 13.
opposition brief, Onyiah seems to raise two arguments to show
pretext, but neither fairly responds to the record evidence
identified by Defendants. First, he says that Buske's
declaration contradicts his deposition testimony and that
this shows “the conduct of a guilty mind.” Pl.
Opp. Mem. at 18. This is not a reasonable characterization of
Buske's testimony. In his deposition, Onyiah's
counsel asked Buske: “As you sit here today, do you
know how [Nancy Sundheim] came to be assigned to teach Stat
193 in spring of 2014?” Okoli Decl., Ex. 3 at 6 [ECF
No. 108]. Buske responded: “No.” Id.
Onyiah's counsel did not attempt to refresh Buske's
recollection by introducing exhibits or asking additional
questions. In his declaration filed in connection with
Defendants' summary-judgment motion, Buske described his
drafting of the schedule for the Spring 2014 semester that
resulted in Sundheim teaching STAT 193. Buske Decl.
¶¶ 3-4. Buske's inability to recall during his
deposition the facts described in his later declaration
neither undermines his declaration nor suggests pretext.
Buske's declaration testimony is supported by a
contemporaneous email exchange with Onyiah explaining the
scheduling process, Id. ¶ 4, and Onyiah
identifies no record evidence to undermine Buske's
account. Onyiah does not contend, and nothing about
Buske's declaration shows, that the declaration violates
Fed.R.Civ.P. 56(c)(4), which requires a declaration to
“be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters
stated.” The Eighth Circuit has made clear that a
declaration filed in connection with a summary-judgment
motion appropriately may be considered when it is consistent
with prior deposition testimony or simply adds more detailed
information. Bass v. City of Sioux Falls, 232 F.3d
615, 618 (8th Cir. 1999). That is the case here.
Onyiah asserts “[f]or details of how Plaintiff showed
that the Defendants' decisions were a pretext for
retaliation, see Onyiah Declaration filed herewith.”
Pl. Opp. Mem. at 18. Onyiah's declaration does not create
a genuine issue of material fact regarding pretext. The
declaration is 31 pages and 130 paragraphs long. Onyiah Decl.
[ECF No. 107] Citing a document of that length without
identifying particular pages or paragraphs violates
Fed.R.Civ.P. 56(c)(1)(A). The declaration is long on
invective; it repeatedly accuses Defendants of racist and
retaliatory motives. But at the summary-judgment phase,
accusations must surrender to evidence. Onyiah cites no
evidence to support his accusation that Defendants'
actions were pretext for retaliation. See Sims v. Ford
Motor Co., No. 1:05CV2336, 2007 WL 9753723, at *7 (N.D.
Ohio Sept. 27, 2007) (finding a plaintiff's affidavit
insufficient to show pretext because it “read much
like her complaint, ” contained “conclusory