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Onyiah v. Zhao

United States District Court, D. Minnesota

September 5, 2019

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. Onyiah.

          Kathryn Fodness, Minnesota Attorney General's Office, St. Paul, MN for Defendants Peiyi Zhao, Daniel Gregory, Dale Buske, and Melissa Hanszek-Brill.



         Plaintiff 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 claims.


         The 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 this claim.

         “A 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).[1] 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., concurring).

         Onyiah 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.

         Regardless, 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.

         If any 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 causation.[2]

         If 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.

         In his 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.

         Second, 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 ...

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