*1 point adequate evidence in the record to allegations.
support his
IV
Because Johnson offers no
federal prosecutors were involved his plea negotiations
state and because there
is, event, in any no evidence that his coun- proceedings ineffective,
sel the state
we the district AFFIRM court’s denial of motion to
Johnson’s dismiss the indict-
ment. Christopher
Kathleen C. BENISON
Benison, Plaintiffs-Appellants,
George ROSS, President of Central
Michigan University, in his individual capacity, Gary Shapiro, official E. Provost,
Executive Vice President and capacity, individual and Ian R.
Davison, Dean, College of Science and
Technology, in capacity, his individual
Defendants-Appellees.
No. 13-2554.
United States Court of Appeals,
Sixth Circuit.
Argued: Aug. 2014.
Decided and Filed: Sept. 2014. *4 Glazier, K. Bradley reviewing ARGUED: Bos & agreed. dean appeal- Glazier, P.L.C., Rapids, Michigan, Grand ed their recommendations to the provost, Kauffman, Ryan for K. Appellants. resigned Fra- but she before he could render a ser, Trebileock, P.C., Dunlap, Davis & final decision. Pursuant to the sabbatical Lansing, Michigan, Appellees. agreement, for ON requested that Kathleen Glazier, BRIEF: Bradley K. Bos & return any Gla- compensation she received zier, P.L.C., Rapids, Grand Michigan, during semester, for her sabbatical including Kauffman, Appellants. Ryan K. Michael and benefits. When Kathleen re- Cavanaugh, Fraser, Trebileock, fused, E. Davis & university filed a P.C., Dunlap, Lansing, Michigan, Ap- state court based on breach of contract. pellees. Because Christopher’s tuition had been remitted for the Spring 2012 semester as MOORE, SUTTON, Before: part of Kathleen’s benefits and Kathleen ALARCÓN, Judges.* Circuit was contractually obligated repay her salary and semester, benefits for MOORE, J., opinion delivered the CMU determined that Christopher had an court, SUTTON, J., joined. which outstanding tuition placed balance and ALARCÓN, 665-66), (pp. J. delivered a hold on his academic transcript. separate dissenting opinion. The Benisons filed suit in federal court *5 alleging CMU, that the president of in his OPINION individual and official capacities, and the MOORE, KAREN NELSON Circuit dean, provost and in their individual capac- Judge. only, ities retaliated against them because Kathleen Benison a profes- was tenured Christopher’s of sponsorship of the no- geology sor of Michigan at Central Uni- confidence resolution provost (“CMU”). versity In Kathleen’s president. and the findWe sufficient evi- Benison, Christopher husband an under- dence to create a genuine dispute of mate- graduate CMU, sponsored student at a rial fact regarding whether CMU filed a vote of no confidence president in the and Benison Kathleen and provost of university. Shortly after the placed a hold on Christopher Benison’s vote, in accordance with the collective bar- transcript in retaliation for gaining agreement negotiated by the exercise of his First rights. Amendment faculty, CMU Kathleen took a semester of CMU, We also represent- conclude that as Spring sabbatical leave for 2012. She by ed President capaci- Ross in his official that, agreed leave, aas condition of her ty, liability cannot shield from by itself she would return to for at least one CMU invoking qualified immunity. Therefore, year full following sabbatical or return part we AFFIRM in and REVERSE in any compensation during received her part judgment of the district court and sabbatical, leave. While Kathleen was on REMAND for further proceedings. eligible she became requested for and I. BACKGROUND
promotional pay supplement. Kathleen’s department denying ap- recommended her In Michigan University Central plication for a supplement, and the hired Dr. Kathleen as an Benison assistant * Alarcon, cuit, The Honorable sitting by designation. L. Arthur Senior Judge United States Circuit for the Ninth Cir- Morgan, Chair four- duties. Sven the next Over geology. of
professor CMU, was felt that Kathleen Department, employment her EAS years teen and reappointments during obligations five her fulfilling not service received Kathleen During each of at least two inci- promotions. on three the semester based assessments, only posi- received she occasion, eight Morgan assumed On one dents. from the other tive recommendations completing department the credit for Earth department, of her members Kathleen project that claims prioritization Department Sciences Atmospheric professor. with another completed she had “Department”). (the Department” “EAS occasion, inquired Kathleen another On recognition for her also received Kathleen retreat missing department be- about teaching record outstanding research already meeting had scheduled cause she In Kath- time at CMU. during her grant visit collaborators. and site with profes- as a full tenure granted leen was was replied question that her Morgan sor. missing such meet- “frustrating” and that requested Kathleen September In avoiding service. R. 20-4 ings was akin to during leave to take sabbatical permission 850). Email) (Retreat (Page ID This December On 2012 semester. Spring Morgan had first time that not the was sent Kathleen Gary Shapiro 7, Provost E. depart- service to the found Kathleen’s obligations while on her detailing a letter Morgan In lacking: when ment that one of stated The letter sabbatical. an assessment complete asked Kathleen to return to CMU obligations “[t]o those that she explained she Department, for the year following one academic for at least by the complete the assessment could not salary and bene- to refund the leave or she was deadline because overburdened R. during the leave.” paid fits Morgan interpreted with commitments. Ltr.) (Sabbatical ID # On warned her response as a refusal and a sab- 13, 2011, signed January down for that “he would vote future [her] *6 following the including contract batical providing she was not promotion” because University the agree “I to return term: R. 20- Department. to the enough service for one full con- assignment my regular #819). 174) (Benison (Page ID Dep. at of the termination following period tractual of complained to the Dean Morgan After compensation the my or to refund leave Technology, Ian College the of and Science period my of the paid by to me CMU for Davison, shirking was R. that Kathleen (Sabbatical Agreement) R. 20-2 leave.” sent Dean Davison responsibilities, her 738).1 (Page ID # August Kathleen an email dated semester, Kathleen re- In the Fall 2011 obligations. reminding her of her service as- teaching from quested to be relieved 2011, Kathleen’s husband In December could focus on her signments so she Benison, then un- who was an Christopher Kathleen a re- granted CMU research. CMU, sponsored a dergraduate at student but she teaching obligations, from lease in Provost of no confidence Sha- resolution fulfill the other obligated to remained George and President Ross. including piro her service CMU position, of her duties by specifically the Provost.” R. 20-2 bargaining agree- waived faculty’s 1. The collective #714). 59) (Page Agreement”) (Faculty Agreement also states that at ("Faculty ment death, obligated follow- faculty to return member is of a waiver is “in case Such automatic sabbatical, that there is ing accident, and bargaining clarifies causing illness the paid by compensation duty to the "refund to return.” Id. member to unable unit be obligation during this the leave unless Senate, The Academic composed which is forwarded to provost, who “considers students, administrators, of and faculty- and, the recommendations following con- members, passed the on resolution Decem- President, sultation with the renders ber 2011. The no-confidence resolution independent judgment on the bargaining widely endorsed CMU’s academic unit member’s achievements as indicated chairs, departments but the CMU by documentation, giving due weight Trustees, Board of of which Dean Davison to the department’s recommendation in- member, is a in support drafted a letter of cluding the rationale and documentation.” vote, Ross and Shapiro. After the Leigh faculty Id. The may member then re- Orf, a member of the Department, EAS quest a meeting with provost to ad- mentioned the when discussing Benisons dress errors. In the event of a neg- opposition to the resolution with other ative recommendation from provost, faculty occasions, members. On several the faculty may member utilize an inter- Kathleen say, during overheard him con- grievance procedure nal to appeal versations regarding the support Benisons’ decision. resolution, going “that he was Upon receipt of application, Kathleen’s teach when it [Kathleen] lesson came the EAS Department considered her mate- (Beni- promotion.” time for [her] R. 20-4 rials and voted not to recommend her for a 39) son at Dep. #ID salary adjustment. Although all nine fac- In Spring began her ulty recognized members her accomplish- semester of sabbatical leave. She also ments “teaching competence” and became eligible for a promotional pay in- “scholarly activity,” eight creative crease, January and on she members found her “service to Depart- submitted an application setting forth ... lacking.” ment R. 20-3 (Department qualifications promotion. #797). Rec. They ex- Faculty Agreement The provides for a plained: three-step process review applications First, for promotion: faculty mem- Dr. Benison does demonstrate leader- department ber’s makes a recommenda- ship to her profession but she does not tion based on “the to which extent de- high quality leadership contribute to De- partmental members have fulfilled the partment service activities. The De- criteria and standards established partment view is that Dr. Benison does compliance Agreement.” with this R. 20- contribute to service activities but these *7 32) 2 (Faculty Agreement at ID (Page short-term, are mostly time limited com- 707). Second, # the Department for- mitments. dean, wards its to the recommendation dissenting Id. The member noted Dr. Be- who “considers the recommendations and CMU, nison’s service to including several an independent renders judgment on the examples of “leadership at the Department bargaining unit member’s achievements Department Chair, level.” Id. The Dr. by documentation, as indicated the giving Morgan, comments, Sven added his own weight due to department’s the recom- explaining: mendation including the rationale and documentation.” at Dr. Benison Id. 33. After is an excellent the teacher and recommendation, dean makes a faculty a researcher but she not has contributed may member request a leadership Department “initiate for re- to service activi- by view the fact, Id. at In Provost.” 34. ties. In her actions have led to a case, that the dean’s recommendation negative department morale in the be- with menting Morgan’s past frustrations have to do faculty members junior
cause Provost Morgan, for service to up to make Kathleen’s activities service extra Serra, another adminis- by professors. our full and Matt Shapiro, lack of service the 2, 2012, Monday fol- April trator. On by the provided for lowing the deadline three only has Department The EAS Dean Davison issued Faculty Agreement, must take each one professors full on Kath- negative recommendation service department leadership on salary supplement. for a application leen’s consuming time long-term, duties —the explained: Davison department to duties —for service every by to allow Dr. effectively and made Despite representations function re- time to conduct Beni- faculty member the ... and Dr. Benison’s advocate departmental search. to the long son’s rebuttal (which my opinion inis recommendation 798). # (Page ID Id. at department’s criti- consistent with Morgan to protested Kathleen When onerous regarding an avoidance of cism a adequate support to was that her service service), compelling I find no but critical “Don’t bother warned her: promotion, he overturning neg- support only dean will appeal because department ative recommendation (Benison Dep. R. 20-4 go along "withme.” Furthermore, I chairperson.... and the 826). 390) Kathleen inter- ID # (Page at Dr. Benison have had occasion to remind as an indication preted this comment reassigned time for re- receiving that the admin- already plan a “there was her service obli- search does not obviate department using the istration was gations. Morgan’s Kathleen believed this.” Id. 843). (Dean 3) “just (Page a ID # her service was R. 20-4 Rec. at interpretation of vote, meeting that he also to address requested Kathleen a part”- negative of his “he Dean Davison because recommendation. deny application voted to Davison’s ’ regarding and her Leigh agreed Orf to meet with Kathleen agree tended to with (Be- advocate, R. 20-4 and “did not resolution. but he was “brusk” the no-confidence 819). 177) Rog- very ID # familiar with rec- (Page [the at seem to be Dep. nison 125) (Hatch Hatch, Faculty Dep. Association at long-time R. 20-3 ord].” er #757-58). meeting, has never official, (Page there After testified “that years at CMU a modified recom- during Dean Davison issued [his] been case on promotion expanding explanation on his where someone was denied mendation sup- R. 20-3 not alone.” that Kathleen’s service record did the basis of service 753). (Dean (Hatch 37) ID # R. Dep. port promotion. 848). something un- Therefore, thought “that Rec. at he Modified department at the level going usual on was negative Dean Davison issued his When ratified and that seemed then be recommendation, “very began Id. at 39 thought.” dean without much being seriously recognize that [she] (Page ID # *8 going was never she] forced out that [and R. fairly again.” treated at CMU made its to be Department After the EAS (Benison ID (Page recommendation, Dep. 20-4 at Kathleen’s ma- negative 817). Nonetheless, that requested # she to Dean Davison as terials were forwarded Shapiro application. review her ap- Provost reviewing Kathleen’s dean. While applications him, began Kathleen also to submit Dean plication before pending was universities with several other positions for began circulating emails docu- Davison
657 sought motion, at the same time she review of her the Defendants’ the district court (D.Ct. granted summary judgment. R. application, May and on 2012 she re- 961-88). Op.) (Page ID # The join district faculty ceived an offer to of West court recognized first that Christopher’s (“WVU”) Virginia University as an associ- “motion for a no confidence vote May professor. Shapi- ate On Provost Academic Senate is constitutionally pro- that Christopher pub- ro was notified “has speech” tected and that “may Kathleen licly moving stated that are [the Benisons] third-party maintain a retaliation claim on Morgantown where WV has Kath[leen] the basis of her husband’s protected activi- (Relo- WVU,” position taken R. 20-4 968-69). ty.” Id. at ID (Page # The Email) 857), (Page cation ID # and on district court then individually addressed May Shapiro learned that the Benisons each of the adverse by actions identified had their in Michigan, sold house to which First, the Benisons. the district court con- just responded gets he news “[t]he Department’s cluded that the EAS nega- #856). (Page better and better.” Id. ID tive vote on her supplement applica- In May, verbally accepted late tion was an adverse action and that the offer, employment WVU’s but she did not provided Benisons had raising evidence officially resign position her with CMU inference that the decision was motivated until June 2012. At that point, Provost by animus; retaliatory however, the dis- Shapiro yet had not a final issued decision trict court concluded that the Benisons application on a promotional salary her could not refute the non-retal- Defendants’ supplement. iatory justification related to Kathleen’s resigned, After Kathleen alleged CMU demand- lack of service. (Page Id. at 11-13 971-73). pay Second, ed that she ID # compensa- back her “total the district court benefits)” determined that the (salary filing tion of a lawsuit to Spring from the recover Kathleen’s compensa- sabbatical 2012 semester because she had breached action, tion anwas adverse but concluded obligation year return for one fol- produced any Benisons had not lowing a sabbatical. R. 20-4 (Compensa- evidence of the lawsuit was Ltr.) #879). tion Kath- When by Christopher’s protected motivated refused, leen filed suit in CMU state court speech. The district court reasoned that seeking to compensation, recover all in- long filed the lawsuit too after the cluding the value of Christopher’s tuition provide strong no-confidence vote to evi- Spring semester, for the which had causation, dence of and that there was no been remitted because he a family evidence that Kathleen was treated differ- university member of a employee. CMU ently comparable from professors who placed also a hold on Christopher’s aca- failed to following return a sabbatical. Id. because, demic transcript without the ben- 977-81). at 17-21 Finally, remission, efit of the tuition he had an district court turned to Christopher’s claim outstanding tuition balance for Spring that, although transcript concluded 2012 semester. action, hold was an adverse there was no 28, 2012, On November the Benisons indicating that the hold was moti- pursuant filed suit federal court protected vated conduct. Id. at 26. § alleging U.S.C. that President timely The Benisons filed this appeal. Ross, Shapiro, Provost and Dean Davison II. STANDARD OF REVIEW “Defendants”)
(collectively, “CMU” or the had retaliated against them for the exer- We review de novo a district court’s cise of rights. their First Amendment granting On order summary motion for
658
by
protect-
in
Valley
part
motivated at least
v. Huron
Sch.
judgment. Vereecke
Cir.2010).
(6th
employee
If the
establishes
ed conduct.
392,
In
Dist., 609 F.3d
399
case,
facie
the burden then
prima
a
so,
the record
must consider
doing we
employer
by
demonstrate
to the
to
shifts
light
in
inferences
any reasonable
draw
that the
preponderance
a
of the evidence
nonmoving party.
to the
favorable
most
employment decision would have been
v. Zenith Ra
Elec. Indus. Co.
Matsushita
protected
absent the
conduct.
the same
574, 587, 106 S.Ct.
Corp., 475 U.S.
dio
occurred, summary
has
Once this shift
(1986). Summary
L.Ed.2d 538
89
if,
light
in
judgment is warranted
moving
only if the
proper
judgment
light
in the
most favor-
evidence viewed
does not re
shows that the record
party
juror
plaintiff,
to the
no reasonable
able
dispute as to
material
“genuine
a
veal
fail to return a
for the
could
verdict
judg
is entitled to
fact and the movant
defendant.
matter of law.” Fed.R.Civ.P.
ment as a
56(a).
Comm’n,
must determine
702
Racing
Therefore we
Dye v. Office of
(6th Cir.2012) (internal
presents
a
“whether the evidence
sufficient F.3d
omitted);
a
quotation
submission to
marks
disagreement
require
citations and
Blatter,
one
it is so
see
Thaddeus-X v.
175 F.3d
jury or whether
one-sided
also
Cir.1999) (en banc).
(6th
law.”
Accord-
prevail
must
as a matter of
party
Inc.,
first consider whether the
Lobby,
ingly,
477 U.S.
we will
Liberty
Anderson v.
242, 251-52, 106
provided
Benisons have
sufficient evidence
regarding whether against en them were motivated their III. AMENDMENT FIRST constitutionally protected conduct. If the RETALIATION supporting point Benisons can argue The Benisons that the De case, prima all three elements of a facie we by deny against fendants retaliated them next consider whether CMU can dem- will supple ing promotional pay Kathleen a taken onstrate that it would have the same court, ment, in against suit state protect- of the Benisons’ regardless action tran placing Christopher’s a hold on conduct, it ed such that was entitled Christopher’s script punishment as summary judgment. the no-confidence resolution sponsorship of A. Prima Facie Case against Shapi and Provost President Ross burden-shifting ro. framework We use argue that re The Benisons plaintiff to determine has ade whether against Christopher’s them for in taliated quately a claim of First Amend proven passing a no-confidence reso volvement ment retaliation: against lution President Ross and Provost prima Shapiro. dispute
A facie CMU does not plaintiff must first make retaliation, sponsorship of the no-confi comprises case of which (1) President Ross following engaged he dence resolution elements: Shapiro constitutionally was constitutionally speech or con- and Provost protected Daeschner, (2) duct; Leary see v. protected speech, action was taken adverse Cir.2000), or that person him that of 228 F.3d would deter claim may assert a retaliation ordinary continuing firmness from to en- (3) conduct; with stemming is a from her association Chris gage there speech. See topher protected one and his causal connection between elements Stainless, LP, N. Am. is, Thompson and two—that the adverse action
659
170,
863, 868,
garding
U.S.
131 S.Ct.
178 L.Ed.2d
application
Kathleen’s
pro-
for a
(2011). Therefore,
694
the central issues
pay
motional
supplement are not adverse
appeal
on this
are whether the Defendants
actions
resigned
because Kathleen
before
took
adverse action
either of CMU made a final
deny
decision to
any
the Benisons and whether
such ad-
request
for a
increase. Tenure de-
causally
verse action is
to
connected Chris-
promotional
cisions and other
in
“decisions
topher’s sponsorship of the no-confidence
an academic setting involve a combination
resolution.
of factors which tend to set
apart
them
from employment
generally.”
decisions
The Benisons argue that CMU
Univ.,
Dobbs-Weinstein v. Vanderbilt
185
took three adverse actions
in
them
(6th Cir.1999)
542,
(internal
F.3d
545
quo-
support
retaliation for their
of the no-
omitted).
tation marks
In Dobbs-Wein-
(1)
confidence resolution:
the denial of a
stein, we held that a dean’s decision to
Kathleen,
promotional pay supplement for
deny
professor
tenure to a
was not an
(2)
of a
state court to
adverse action because it was not an “ulti-
compensation
recover
paid to Kathleen
employment
mate
decision”:
(3)
sabbatical,
while she was on
and
Because tenure decisions are so complex
placement of a hold on Christopher’s tran
potentially contentious,
universities
script. To demonstrate that he has suf
are
grievance
well-served to have a
pro-
action,
fered an adverse
plaintiff
must
cedure for
wishing
individuals
appeal
show that the action “would chill or silence
many
intermediate decisions
person
ordinary
of
firmness from future
during
evaluations made
the tenure
First Amendment activities.” Ctr. For
process.
review
a university]
[When
Reform,
Bio-Ethical
City
Inc. v.
of
employs such a process, [it] allow[s] [a
(6th
Springboro, 477 F.3d
822
Cir.
professor]
prevent
negative]
[a
inter-
2007) (internal quotation
omitted);
marks
im decision from becoming final.
Burlington
see also
N. & Santa Fe R.R.
White,
545;
53, 68,
v.Co.
548 U.S.
126
Id. at
see
S.Ct.
also Okruhlik v. Univ. of
(2006).
Ark.,
Cir.2005)
The
recommendations of the
The recommendations of the EAS
Department
EAS
Department
Dean Davison re-
and Dean Davison are non-
two actions taken
decisions,”
that the other
and thus
conclude
binding “intermediate
*11
First,
point
actions. At the
actions.
them were adverse
against
not adverse
they are
had avail-
she still
resigned,
Kathleen
that
to file a lawsuit
decision
CMU’s
layers of internal re-
several
able to her
com-
recover her sabbatical
Kathleen to
recommendation, a
Provost’s
view:
A reason-
is an adverse action.
pensation
urge
reconsid-
Provost
meeting with the
have been dissuaded
might
individual
able
pro-
grievance
eration,
appellate
full
and a
by the
protected
conduct
engaging
from
at
(Faculty Agreement
R. 20-2
cedure.
holding her liable for
of a lawsuit
threat
709).
Kathleen
34)
Because
at
$50,000.
Dye, 702 F.3d
than
See
more
from the internal re-
voluntarily withdrew
of
the withdrawal
(concluding that
304
a final decision was
process before
view
be-
an adverse action
“key benefit” was
Pro-
whether
made, may
speculate
not
we
a ...
financial burden”
“imposed
it
cause
have denied
ultimately would
Shapiro
vost
Rob-
also Conrad v.
plaintiffs);
see
on
Okruhlik,
395 F.3d
See
application.
her
Cir.1989)
(6th
inson,
F.2d
615
871
Moreover,
rec-
the intermediate
880-81.
argument
that a
accepting the
(implicitly
way
in a
that
not used
were
ommendations
for
filed in retaliation
libel lawsuit was
fi-
the eventual
“directly influence”
would
Second, a
activity).
protected
Title VII
permit-
Shapiro was
Provost
nal decision:
have been dis-
individual could
reasonable
recommen-
the intermediate
ted to consult
activity
protected
engaging
from
suaded
the final decision
made
when he
dations
transcript hold that
by the threat of a
salary supplement,
Kathleen’s
regarding
to “com-
being
him from
able
prevented
required him
Faculty Agreement
but the
teaching
elementary
education
plet[e]
on
decision based
independent
an
to make
R. 1
certification.”
degree work and
Thus, although
record.
his review
#8).
32)
A serious
(ComplA
and Dean Davison
Department
the EAS
recommendations,
completion of an education-
negative
made
obstacle to the
both
CMU took an
resigned before
“injury
that
is the kind of
program
al
in the form of
against her
action”
“adverse
ordinary
likely
person
would
chill
application
denying
a final decision
engage in
continuing
from
firmness
increase.2
pay
Paige Coyner,
v.
614
[protected] activity.”
Cir.2010).
(6th
Because
F.3d
281
negative
recom
Although
evidence sufficient
provided
Benisons have
application for a
on Kathleen’s
mendations
took two ad-
that CMU
demonstrate
actions,
adverse
are not
salary supplement
them,
next
actions
we must
verse
evi
produced
have
sufficient
the Benisons
they
presented
have
evi-
jury could consider whether
a reasonable
dence from which
(6th Cir.2002),
Corp., 286 F.3d
310
related claim
BASF
also make
2. The Benisons
constructively discharged
working condi
was
has not shown that her
that Kathleen
she
promotional
denied a
way
when
she
in a
that forced
tions were "intolerable”
Morgan’s
They argue
threat
supplement.
Sys.
Welding
&
resign. Moore v. KUKA
her to
down for fu
vote [Kathleen]
that he "would
(6th
Corp.,
F.3d
1080
Cir.
Robot
fa
the administration's
promotion”
ture
and
1999);
Keys,
v.
87 F.3d
see also Hartsel
the news that she would
reaction to
vorable
argument
(rejecting the
Cir.
support
leaving
the inference
be
promote the
failure to
that the defendant’s
"never ...
out” and would
she was "forced
discharge). Ac
plaintiff was constructive
again.” R. 20-4
fairly at CMU
be treated
summary judg
cordingly,
we conclude
#817,
110, 174)
(Benison
(Page ID
Dep. at
Benisons’ con
in favor of CMU on the
ment
However,
"little
Kathleen had
even if
appropriate.
discharge claim was
structive
advancement,” Agnew hope of further
causally
dence that either adverse action is
compensation
of sabbatical
came approxi-
protected
connected to the
conduct.
mately seven months after Christopher
sponsored the no-confidence resolution.
“A causal link can be shown
sure,
To be
CMU could not have filed suit
evidence,
through direct or circumstantial
until
June,
after Kathleen resigned in
including showing temporal proximity be
the administration promptly decided to
engaging
protected activity
tween
repayment
seek
only weeks after she did
suffering
action,”
employment
adverse
resign. Nonetheless, a lag time of more
*12
Eckerman v. Tenn. Dep’t
Safety, 636
of
than six months
protected
between
con-
Cir.2010),
F.3d
or demon
duct and an adverse action
permit
does not
strating
disparate
“the
treatment of simi
strong
inference,
a
causal
both because the
larly
Thaddeus-X,
situated individuals.”
occurrence of intervening events weakens
at
175 F.3d
399. If the causal connection
relationship
the
and because it is reason-
is to
through
be demonstrated
circumstan
expect
able to
that the Benisons had the
evidence,
panel may
tial
the
consider “inci
opportunity
identify
other circumstan-
dents of misconduct that do not rise to the
tial
support
evidence to
their claim. See
an
employment
level of
adverse
action” if
id.
those
pattern
incidents “show a
of mis
job
treatment on the
plaintiffs
based on
Although
temporal
the
relation
protected
Dye,
activities.”
The Benisons CMU acted with provided have a retal iatory support Specifically, they evidence to motive. reasonable infer claim that ence that the Department Defendants decided to a the EAS improperly expand file upon Kathleen to recover ed requirements sab service set forth pay batical because of her in in department bylaws, husband’s discounted exempla volvement in the ry Kathleen, no-confidence resolution. service rendered misinter argue The Benisons that they preted can demon incidents in which she declined to strate a causal link (i.e., because the lawsuit take on additional service the depart decision followed the assessment), no-confidence vote in ment and took the unprece time and Kathleen is faculty the sole mem dented step recommending of that a pro ber whom CMU has failing ever sued for motion be denied “on the basis of service compensation (Hatch 37) to return paid during a sab alone.” R. 20-3 Dep. at circumstances, #753). batical. Under some They close argue also two temporal proximity protected between con members of the Department, Leigh Orf duct may adverse action Morgan, be suffi and Sven improperly influenced cient on its own to raise an inference of other members of Department to vote causation. Mickey v. Zeidler Tool by telling & Die them that they Co., (6th Cir.2008). 516 F.3d intended to “teach her a lesson” about Temporal proximity alone is insufficient to no-confidence vote. R. 20-4 (Benison case, #813). demonstrate causation in Dep. this howev at er, because the repayment decision to seek Although types these of incidents are not small, court actions, employees is may comparable con- we adverse
themselves
“similarly-situated”
apply
should not
to assess wheth-
in combination
them
sider
stringently that
it “de
requirement
retaliato-
so
pattern
of
they
er
demonstrate
any remedy
to which
mistreatment,
support
prive[s
plaintiff]
could
which
ry
the law.” Jack
may
at
he
be entitled under
Dye, 702 F.3d
See
causal inference.
Servs., Inc.,
Corp.
518 F.3d
of retal-
son v. FedEx
The circumstantial
305.
(6th Cir.2008).
388, 396-97
department
level does
iatory animus
however,
case,
in this
Benisons
not aid the
only
years,
In
to fifteen
four
past
ten
any evi-
not identified
they have
because
Kathleen,
professors, aside from
Orf,
Morgan,
suggesting
dence
following a sabbatical in vio-
resigned
have
Department
the EAS
member of
other
pro-
lation of their contracts. Of the four
to file a law-
in the decision
was involved
fessors,
obligation
to re-
CMU waived
contrary, an
To the
against Kathleen.
suit
for three and chose not
pay compensation
Davison, Pro-
Dean
chain between
email
to file a lawsuit to enforce the contract
Ross reveals
and President
Shapiro,
vost
(Serra
fourth. R. 16-4
Aff. at
against the
*13
amongst
and decided
they
that
discussed
2-3)
#516-17).
argues
CMU
(Page
they would file suit
that
themselves
not
to the other
that Kathleen is
similar
the value of
Kathleen to recover
against
aspects,”
professors
“all of the relevant
Spring 2012
for the
salary
her
and benefits
and thus no reasonable inference of causa-
Repay-
(Compensation
20-4
semester. R.
comparison.
can
from the
tion
be drawn
881-83).
Emails) (#875-77,
Thus,
ment
Specifically,
argues that
the other
CMU
or Orf made
Morgan
that
to the extent
professors
required
repay
were not
motive,
retaliatory
a
suggesting
comments
they
compensation
their sabbatical
because
not relevant to dem-
comments are
those
family or medical rea-
resigned
had
Ross, Provost Sha-
onstrate that President
sons,
they
negotiated
because
had
a waiver
different set of
Dean
piro, or
Davison—a
they
resigning,
before
or because
resided
individuals,
position
not
a
who were
and were
outside of the United States
members—
by department
be influenced
collection-proof.
(Resig-
therefore
R. 16-4
in retaliation for
file the lawsuit
decided to
Communications)
ID #
(Page
nation
519-
conduct.
protected
Christopher’s
43). However,
correspondence
sur-
that,
rounding these
shows
resignations
Second,
argue
the Benisons
professors,
for at least
of these
CMU
one
the reasonable in
jury
that a
could draw
concluded that
there was not a medical
to file a lawsuit
ference that the decision
problem preventing
professor
from
by pro
motivated
against Kathleen was
status,” R.
“returnfing]
to active
CMU had never
tected conduct because
(Mathematics
Letter) (Page ID
Professor
against
professor
a
who
before filed suit
#532),
to waive
but nonetheless elected
duty to return fol
violated a contractual
number of
obligation.
Given
small
plaintiff
A
who chooses
lowing sabbatical.
Benisons,
comparators
to the
available
retaliatory
by using compa
prove
intent
jury
reasonable
could conclude
CMU’s
employ
that he “and the
rators must show
against
decision to file a lawsuit
Kathleen
him
compare
seeks to
ee
[he]
with whom
disparate
constitutes
treatment
raises
in all of the relevant
self ...
similar
[are]
an inference of causation.
Ercegovich Goodyear
Tire &
aspects.”
Furthermore,
Co.,
we conclude that
F.3d
Cir.
because
Rubber
omitted).
1998) (internal
evidence of
provided
the Benisons have
quotation marks
respect
filing
to the
of a
However,
possible
causation with
sample
size of
when
Kathleen,
lawsuit
we also
sponsorship
conclude
of the no-confidence resolu-
they
tion.
provided
have
evidence of causa-
There is no doubt that CMU had
an arguably
respect
tion with
to the
meritorious
hold on Christo-
claim for breach
of- contract:
signed
pher’s transcript.
transcript
The
hold
contract
obligating her to return to
teach at
direct result of the decision to
CMU
recover
following her sabbatical or to repay the
compensation
Kathleen’s sabbatical
and ac-
compensation she
during
received
her
companying lawsuit: Had CMU not re-
(Sabbatical
sabbatical
leave. R. 20-2
quired
repay
Kathleen to
738).
Agreement)
Provost
benefits, including Christopher’s tuition re-
Shapiro
option
had the
to waive the obli-
mission,
university’s policy
placing
gation
discretion,
at his
but he was not
transcripts
holds on the
of students with
required to do so. Nor is
there
outstanding tuition balances would not
doubt that
legally
CMU was
entitled to
triggered.
have been
(Shapiro
See R. 16-3
pursue
Thus,
its claim in state court.
Dep.
Therefore,
ID #
there is no doubt that
legally
could
placement
of a hold on
have taken the same action against
transcript
logically
cannot be
separated
Benisons absent the constitutionally pro-
from the
of a
Kath-
However,
tected conduct.
there remains
leen, and Christopher’s prima facie case
considerable doubt whether CMU would
rises or falls with Kathleen’s.
have filed a lawsuit to enforce its contrac-
Accordingly, we conclude that the Beni-
tual rights had Christopher
played
not
sons have created a genuine dispute of
in passing
role
the no-confidence resolu-
material fact with respect
prima
to a
facie
*14
against
tion
Shapiro
Provost
and Presi-
case of retaliation based on CMU’s deci- dent Ross.
sion to file a lawsuit against Kathleen
presented
The Benisons have
seeking recovery of her
compen-
sabbatical
from which a reasonable jury could infer
placement
sation and the
of a hold on
that CMU would not have chosen to sue
Christopher’s transcript. Because the Be-
Kathleen to recover her sabbatical com-
have presented
nisons
evidence sufficient
pensation absent Christopher’s role in the
prove
prima
retaliation,
facie case of
no-confidence resolution. As we have al-
we will next consider whether CMU can
discussed,
ready
at least four
profes-
other
preponderance
“demonstrate
sors refused to return to
following
CMU
evidence that
the employment decision
sabbatical leave. One of
professors
those
would have been the same
pro-
absent the
prevented
from returning because of
conduct,”
tected
such that no reasonable
health,
her
and was thus excused from the
jury could
Dye,
conclude otherwise.
702 obligation
repay
compensation by
(internal
F.3d at 294-95
quotation marks
Faculty
the terms of the
Agreement. R.
omitted).
59)
(Faculty Agreement
20-2
(Page ID
#714). However, CMU had the same
B. Same Decision Absent Protected
right
contractual
to recover sabbatical
Conduct
compensation against
pro-
the other three
that,
argues
CMU
even if the Benisons
Benison,
it
against
yet
fessors as
had
and
can
prima
demonstrate a
facie case of re-
it chose not to enforce
right
the
in court on
taliation, it is nonetheless entitled to sum-
any of those occasions. See R. 16-4
mary judgment
(Hanessian Email)
519) (excus-
because it would have
(Page ID #
made the same decision to file a lawsuit
ing obligation on the
exemplary
basis of
(Jeon
even
the
absence of
work for
department);
id.
Email)
a reasonable
would have
(declining
person
to col- of which
(Page ID
Callahan,
Pearson v.
555 U.S.
professor
known.”
because
obligation
lect on
223,
808,
(Mathematics
whether QUALIFIED IMMUNITY IV. established, we look first to decisions of Court, Supreme then to decisions of that, argue The Defendants this court and other courts within our genuine raised a issue even if the Benisons circuit, finally to decisions of other they fact whether regarding of material circuits. of their constitutional suffered a violation Johnson, v. Defendants should nonetheless Bell 308 F.3d rights, the Rickard, Cir.2002); immunity qualified because see also granted be Plumhoff — —, clearly established at 134 S.Ct. rights were not U.S. those *15 (2014) Qualified (“[EJxisting precedent was filed.3 L.Ed.2d 1056 the time the lawsuit placed statutory have the or constitu immunity government shields officials must damages question by as tional confronted the official liability “from for civil insofar (internal debate.”) clearly beyond quotation not violate es marks their conduct does omitted). statutory rights or constitutional tablished mary judgment, explained claim that the Defendants the Defendants 3. The Benisons qualified-immunity defense they qualified immunity never raised the were "entitled to court, they in and that therefore district bring regard to in to CMU’s decision its suit Reply Appellant Br. at waived the defense. jurisprudence because the settled establishes contrary, 28. To the the Defendants asserted cannot re- that meritorious lawsuits constitute qualified immunity in their Answer to the (Mot. 27) at taliation.” R. 16 for Summ. J. Complaint summary and in their motion 112). Although (Page neither of these ID 13) (Answer judgment. at R. 9 expansive documents contains discussion of #38); 27) (Mot. J. at R. 16 for Summ. qualified immunity, the references were suffi- Answer, #112). In their the Defendants put and the court on cient to the Benisons immunity the asserted several forms of to asserting were notice that the Defendants claims, sovereign including immu- Benisons’ qualified under the im- their defense to suit (Answer nity qualified immunity. R. 9 munity doctrine. (Page ID # In their motion for sum- Qualified immunity per is a a shield in capacities, their official no de- applies only govern sonal defense that to fendant capacity has the qualified claim capacities. ment officials in their individual immunity Therefore, as a defense. Leis, Everson v. 556 F.3d 501 n. 7 Benisons’ claims based on CMU’s decision (6th Cir.2009) (“As qualified immunity pro against file a lawsuit Kathleen and to public tects a official in his individual ca place a hold on transcript pacity damages, immunity from civil such properly were not dismissed on summary itself.”). public entity is unavailable to the judgment against as President Ross in his action, capacity “In an official plaintiff capacity. official not from damages seeks the individual offi cer, entity but from the for which the y. CONCLUSION an agent.” Pusey City officer is v. reasons, For foregoing we AFFIRM Youngstown, 11 F.3d Cir. the judgment of the district court with 1993); Jones, see also v. Matthews 35 F.3d Davison, respect to Dean Provost Shapiro, (6th Cir.1994) (“A 1046, 1049 against suit and President in Ross their individual ca- in capacity individual his official is the pacities, but judgment REVERSE equivalent against govern of a suit with respect to President Ross his offi- Thus, entity.”). personal immunity
mental
cial capacity and REMAND for further
defenses,
immunity
such as absolute
or
proceedings
opinion.
consistent with this
qualified immunity, are not available to
government
defending against
officials
suit
ALARCÓN,
ARTHUR
Circuit Judge,
capacities. Kentucky
their official
dissenting.
Graham,
159, 166-67,
473 U.S.
105 S.Ct.
I respectfully dissent.
I do
agree
not
(1985).
3099,
because of his outstanding tuition balance. Accordingly, Ross, President in his official I capacity CMU, representative as a of is dispositive The in dispute. facts are not only defendant which the Beni- may proceed. sons public Because offi Christopher sponsored Benison the res- may qualified cials not assert immunity as olution of a vote of no confidence De- who deliber- against any professor violated action Benison 2011. cember or her sabbatical leave ately breach his for at to serve with her contract CMU contract. returning from her sabbat- after year least aat appointment by accepting
ical leave May of 2012. in late university different Ill pre- that the majority with the agree I majority’s con- agree I cannot with to demon- temporal proximity of sumption may have that the fact CMU clusion in this inapplicable retaliation is strate of obligation one previously waived action to state court matter because obligation repay sabbatical professor to approximately filed repayment was seek trier of fact that a rational demonstrates Benison Christopher after months seven plausible draw a inference could resolution. the no-confidence sponsored action was retalia- filing of the state court tory. II present have failed to Appellants jury could contend Appellants that the of demonstrate filing of an action reasonably infer that against Kathleen Beni- state court action of Benison’s breach by CMU for Kathleen leave con- breaching for sabbatical son uni- retaliatory because contract was a hold on her placing tract and the of filed a lawsuit versity had never before transcript demon- husband’s academic a contrac- violated against professor who issue of fact genuine that there strates a sabbatical following duty tual to return these acts regarding whether dispute example classic is a argument leave. This for Chris- taken to retaliate were ergo prop- hoe fallacy post of logical of his First topher Benison’s exercise this, hoc, i.e., therefore because “after ter I rights. Accordingly, would Amendment Dictionary 1355 Law of this.” Black’s judgment grant- affirm the district court’s (“The fallacy logical of ed. judg- summary for ing Appellees’ motion relationship exists assuming that a causal ment. merely sequen- are when acts or events tial.”). pro- of that hundreds
The record shows sabbaticals taken
fessors at CMU have During that years.
over the last 10-15 aside from Kath- only professors four time America, of STATES UNITED returned to CMU leen Benison have not Plaintiff-Appellee, leave, repay and failed following their the sabbatical leave. compensation for by CMU showed presented The evidence MABEE, Eugene Defendant- Ronald not re- were professors that three of the Appellant. compensa- sabbatical quired repay their No. 13-2496. family they resigned tion because reasons, negotiated a waiv- family medical Appeals, Court of United States outside resigning, er before or resided Circuit. Sixth judgment- the United States and were *17 Sept. 2014. in the record proof. There is no evidence not have to demonstrate did that CMU to file an
appropriate reason not business