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Silitonga v. Kentucky State University

United States District Court, E.D. Kentucky, Central Division, Frankfort

June 30, 2018

MAIFAN SILITONGA and TERFERI TSEGAYE, Plaintiffs,
v.
KENTUCKY STATE UNIVERSITY, et al., Defendants.

          MEMORANDUM OPINION & ORDER

          Gregory F. Van Tatenhove United States District Judge.

         Maifan Silitonga and Teferi Tsegaye[1] bring this action claiming Kentucky State University, its President, and its Board of Regents violated Plaintiffs' state and federal constitutional rights by, among other things, engaging in discriminatory, retaliatory, and harassing practices regarding Plaintiffs' employment at Kentucky State University. For the reasons that follow, Defendants' request for summary judgment will be GRANTED in part and DENIED in part.

         I

         A

         Plaintiff Maifan Silitonga, a female of Indonesian origin, was employed by Kentucky State University (KSU), a public university, from 2012 until 2015. [R. 1 at 4, 16.] Dr. Silitonga served KSU as a tenure track Associate Professor, Assistant to the Dean of KSU's College of Agriculture, Food Sciences and Sustainable Systems, and Principal Investigator in the Division of Environmental Studies and Sustainable Systems. [See R. 19-7 at 8.] Plaintiff Teferi Tsegaye, a male of Ethiopian origin, was employed by KSU from 2011 until his resignation in October 2016. [R. 1 at 16; R. 12-1 at 1; R. 20 at 2.] For at least some of that time, Dr. Tsegaye served as Associate Vice President of Agriculture Administration and Land Grant Programs and Dean of the College of Agriculture, Food Science and Sustainable Systems. [R. 19-1 at 2.] He also served as Professor of Agriculture. [R. 19-1 at 3.] In July 2014, KSU hired Defendant Raymond Burse, who served as interim President, and then President, until his resignation in May 2016. [R. 12-1 at 2; R. 17-3 at 6, 10.]

         Prior to President Burse's arrival, KSU advertised an available position, interviewed candidates, and, in June 2014, hired Blair Hess, a Caucasian female. [R. 12-1 at 2; R. 19 at 3.] Dr. Tsegaye was involved with this hiring; however, Hess's employment papers were not signed prior to Burse's arrival. [R. 12-1 at 2.] Burse refused to sign Hess's employment forms because Hess lacked a master's degree, which Burse believed the position required. [Id.] Whether the position required, rather than preferred, applicants to have a master's degree was at the center of the first disagreements between Burse and Dr. Tsegaye. [See R. 17-1 at 34-35.] President Burse held a meeting with Dr. Tsegaye and Gary Meiseles, then-Director of Human Resources, to address the posting's flaw. [R. 20 at 2.] Regarding the discrepancy, Dr. Tsegaye testified that “probably a word was changed from masters preferred to masters required.” [R. 17-1 at 35.] Ultimately, Hess maintained her employment. [R. 12-1 at 5.]

         Dr. Tsegaye understood President Burse's dissatisfaction with Hess's hiring to be due to Hess being Caucasian. [R. 19 at 3.] While expressing to Dr. Tsegaye that KSU needed more “people like me, ” Burse tapped his wrist - a gesture Dr. Tsegaye understood to mean President Burse felt KSU needed to hire more African Americans. [Id.] Burse admits he was concerned with the lack of diversity in the land grant program due to the United States Department of Agriculture (USDA) raising the issue through its Civil Rights Division. [R. 12-1 at 2.] Burse and Dr. Tsegaye continued to disagree over Hess's hiring and retention. Following this controversy, Burse demanded Dr. Tsegaye resign; Dr. Tsegaye refused. [R. 19 at 3-4.]

         During late 2014, Dr. Tsegaye was hospitalized for spinal surgery that resulted in the limited use of his dominant hand. [R. 4.] Although his leave was approved, Dr. Tsegaye claims that while he was in the hospital “President Burse demanded that Tsegaye be available to speak about University business.” [Id.] Moreover, upon Dr. Tsegaye's return to work, and after Burse knew Dr. Tsegaye could not write, Burse required Dr. Tsegaye to “take notes in faculty meetings, clearly harassing him in front of his colleagues.” [Id.]

         The next issue of controversy revolved around the termination of April Trent in early 2015. Trent, a Caucasian female, was the Director of the Rosenwald Center for Families and Children, a program situated within KSU's College of Agriculture, Food Science, and Sustainable Systems. [R. 19 at 4.] Like Hess, Dr. Tsegaye was involved with the interviewing and hiring of Trent. [R. 19 at 4-5.] In March 2015, President Burse instructed Drs. Silitonga and Tsegaye to terminate Trent. [R. 1 at 10.] According to Defendants, complaints had been received concerning the Rosenwald Center, “including complaints by a mother criticizing Ms. Trent for not showing adequate attention to a special needs child.” [R. 12-1 at 3.] Also, the Rosenwald Center had been understaffed, and Dr. Silitonga was working to address the issue. [R.19 at 5.] Burse indicated to Dr. Tsegaye that Trent, like Hess, did not “represent KSU.” [Id.] Again, Dr. Tsegaye took this to mean Trent needed to be terminated due to her race. [Id.] Drs. Silitonga and Tsegaye “made it clear to President Burse, as well as Human Resources [ ], that they [ ] disagreed with the firing of April Trent, did not understand why she was being terminated, and did not believe she should be terminated.” [Id.] However, KSU Human Resources ultimately and abruptly terminated Ms. Trent at a meeting in which Drs. Tsegaye and Silitonga were present but refused to handle the separation. [R. 17-4 at 42, 52-58.]

         Following Trent's firing, President Burse received notice that Plaintiffs had not carried out Trent's termination. [R. 19 at 5.] Sometime thereafter, Plaintiffs contacted an attorney, who sent Burse a letter notifying Burse that Plaintiffs believed Trent's termination to be racially motivated. [R. 19-3.] Within a few months of the attorney sending Burse the letter, Dr. Silitonga received her termination letter and Dr. Tsegaye received a letter notifying him that his appointment as Dean/Director of the College of Agriculture, Food Science, and Sustainable Systems would not be renewed. [See R. 19-2; R. 19-1.]

         The record clearly indicates Drs. Silitonga and Tsegaye opposed Trent's termination. According to Defendants, “[b]oth Drs. Tsegaye and Silitonga refused to terminate Ms. Trent and instead resisted her termination. President Burse then advised Dr. Silitonga that her contract would not be renewed for the following year. She left the University in June, 2015.” [R. 12-1 at 3.] However, Burse actually sent Dr. Silitonga a Notice of Non-reappointment of Tenure-Track Appointment in December 2014, some three months prior to Ms. Trent's termination. [See R. 19-8 at 2.] And, while it is true Dr. Silitonga left KSU in June 2015, she was actually “separated from employment” with KSU, effective immediately, by way of a letter from KSU Human Resources dated June 5, 2015. [R. 19-2 at 2.] According to the Plaintiffs, this termination came while Dr. Silitonga was under contract for the 2014-2015 academic year. [See R. 19 at 23; R. 19-7.]

         On June 30, 2015, Dr. Tsegaye received a letter stating his positions as Associate Vice President and Dean would not be renewed past June 30, 2015. [R. 19-1 at 2.] He was offered a contract to continue as Professor of Agriculture for the 2015-16 academic year, which he accepted. [Id. at 3-4.] This change in status resulted in a $30, 000 decrease in Dr. Tsegaye's annual salary. [R. 1 at 12.] Dr. Tsegaye resigned from KSU in October 2016, subsequent to the commencement of this action. [See R. 12-1 at 3.]

         During the time Dr. Silitonga was employed at KSU, she claims she endured harassment other than outlined above. According to Plaintiffs, in November 2014, President Burse, in a meeting with other KSU personnel, called Dr. Silitonga incompetent. [R. 19 at 17.] “Silitonga was shaken and her head was down, Burse then screamed at her and told her to ‘look at him.'” [Id.] Burse again called her incompetent at another meeting on the same date. [Id. at 18.] During the second meeting, Dr. Silitonga asked about certain University funds, and Plaintiffs' claim Burse responded by screaming, “I don't want you or your people to ever mention Fund Balance again. You hear me![] You should operate based on what I give you to operate on.” [Id.] According to Plaintiffs, in a meeting in December 2014, Burse “stared at Silitonga for a prolonged period of time. He then proceeded to call her incompetent, lazy and informed her that the country club attitude had to stop.” [Id.] In a February 2015 meeting, “President Burse began harassing, intimidating and ridiculing Silitonga for trying to look cute and that if she would stop trying to look cute she would have glasses that she could read with.” [Id.] Burse then made Dr. Silitonga wear his glasses, which made her vision worse. [Id.] In another meeting, Burse began “making fun of” Dr. Silitonga, and “claimed he heard she had claws. He then attempted to lean over the table to see her hands. Silitonga again feeling ridiculed, harassed and intimidated hid her hands from him despite his demands.” [Id.]

         Drs. Silitonga and Tsegaye ultimately filed EEOC complaints. [See R. 1-1; R. 1-2.] In January 2016, they both received their EEOC right-to-sue letters. [R. 1-1; R. 1-2.] In April 2016, Drs. Silitonga and Tsegaye brought suit against KSU, its President, and its Board of Regents for violation of federal and state civil rights law regarding their employment with KSU. [See generally R. 1.] Defendants now seek summary judgment.

         B

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. “A genuine dispute exists on a material fact, and thus summary judgment is improper, if the evidence shows ‘that a reasonable jury could return a verdict for the nonmoving party.'” Olinger v. Corporation of the President of the Church, 521 F.Supp.2d 577, 582 (E.D. Ky. 2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Stated another way, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.

         The moving party has the initial burden of demonstrating the basis for its motion and identifying those parts of the record that establish the absence of a genuine issue of material fact. Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). The movant may satisfy its burden by showing “that there is an absence of evidence to support the non-moving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has satisfied this burden, the non-moving party must go beyond the pleadings and come forward with specific facts demonstrating the existence of a genuine issue for trial. Fed.R.Civ.P. 56; Hall Holding, 285 F.3d at 424 (citing Celotex, 477 U.S. at 324). Moreover, “the nonmoving party must do more than show there is some metaphysical doubt as to the material fact. It must present significant probative evidence in support of its opposition to the motion for summary judgment.” Hall Holding, 285 F.3d at 424 (internal citations omitted).

         When applying the summary judgment standard, the Court must review the facts and draw all reasonable inferences in favor of the non-moving party. Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th Cir. 2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, the Court is under no duty to “search the entire record to establish that it is bereft of a genuine issue of material fact.” In re Morris, 260 F.3d 654, 655 (6th Cir. 2001). Rather, “the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.” Id.

         II

         The Defendants' Motion for Summary Judgment raises jurisdictional questions of immunity. Additionally, the Court finds there to be a jurisdictional question as to whether the Plaintiffs have pleaded a legally cognizable injury with regard to certain claims. Therefore, the Court will address these jurisdictional questions prior to addressing the substantive arguments of Defendants' summary judgment motion.

         A

         Generally, the Eleventh Amendment bars suits against states and state agencies in federal court unless a state legislature has waived immunity or has consented to being sued in federal court. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989); Grinter v. Knight, 532 F.3d 567, 572 (6th Cir. 2008). Additionally, “a suit against a state official in his or her official capacity . . . is a suit against the official's office.” Will, 491 U.S. at 71. For the purposes of this sovereign immunity analysis, it is important to note that Plaintiffs seek civil damages, but the boilerplate language used to request injunctive relief is too generic to preclude official capacity defendants from asserting Eleventh Amendment immunity.[2] [R. 1 at 23]; see also Crosby v. Univ. of Kentucky, 863 F.3d 545, 558 (6th Cir. 2017); Cox v. Shelby State Comm. College, 48 Fed. App'x 500, 504-05 (6th Cir. 2002).

         Plaintiffs assert several Title VII and § 1983 claims, as well as their equivalent state claims. The Title VII claims are not barred by the Eleventh Amendment as Title VII was enacted under § 5 of the Fourteenth Amendment wherein Congress expressly abrogated the States' sovereign immunity. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 571 (6th Cir. 2000). Similarly, the Commonwealth of Kentucky has waived sovereign immunity for claims made under the Kentucky Civil Rights Act (KCRA). See Department of Corrections v. Furr, 23 S.W.3d 615, 616 (Ky. 2000). Thus, the KCRA claims asserted in Counts 1-4 are not barred by sovereign immunity. As a result, all Title VII and KCRA claims set forth in Counts 1-4 of Plaintiffs' Complaint survive Defendants' claim of sovereign immunity.

         Plaintiffs seem to concede the § 1983 claims set forth in Count Five and Six against Defendants in their official capacities are barred by sovereign immunity.[3] [R. 19 at 20 (“Plaintiffs are aware that claims made pursuant to 42 U.S.C. § 1983 against state entities and official[] individuals in their official capacities are generally not cognizable and are barred by sovereign immunity.”] However, Plaintiffs seek to hold KSU vicariously liable for the actions of President Burse and the Board of Regents. There is a very narrow circumstance wherein a governmental entity could be held vicariously liable for the actions of its employee when such actions constitute a “custom” or “practice.” See infra Section III.E. Therefore, the Court will withhold ruling on sovereign immunity with regard to the § 1983 claims set forth in Counts Five and Six against the official-capacity defendants until after analyzing Plaintiffs' “custom” and “practice” argument later in this Order. See infra Section II.E.

         B

         Plaintiffs maintain that their § 1983 claims and the claims brought under § 2 of the Kentucky Constitution against the individual-capacity defendants are not barred by sovereign immunity. [R. 19 at 20-21.] However, Defendants also assert the defense of qualified immunity [see R. 21-1 at 8-9], which shields “government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “[W]hether qualified immunity attaches to an official's actions is a purely legal question for the trial judge to determine prior to trial.” Garvie v. Jackson, 845 F.2d 647, 649 (6th Cir. 1988). Two questions are asked to determine whether an official is entitled to qualified immunity: (1) “Taken in the light most favorable to the party asserting injury, do the facts alleged show the officer's conduct violated a constitutional right?” and (2) was the right “clearly established . . . in light of the specific context of the case[?]” Crosby, 863 F.3d at 552 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Finally, once a defendant raises the qualified immunity defense, “the burden shifts to the plaintiff, who must demonstrate both that the official violated a constitutional or statutory right, and that the right was so clearly established at the time of the alleged violation ‘that every reasonable official would have understood that what he [was] doing violate[d] that right .'” Thomas v. Plummer, 489 Fed.Appx. 116, 119 (6th Cir. 2012) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

         Plaintiffs claim they were denied their constitutional and statutory rights to due process in that they were neither notified in writing of the nature of the charges leading to the adverse employment actions with ten days' notice, nor were they afforded an opportunity for a hearing prior to, or even after, the adverse employment actions. [R. 1 at 17-21; R. 19 at 22-24.] Plaintiffs contend that their “interests in continuing employment with Kentucky State University are property interests” protected by both the Fourteenth Amendment of the United States Constitution and the Kentucky Constitution. [R. 1 at 20; R. 19 at 22.] Additionally, Plaintiffs claim that Defendants' “selective enforcement of the Kentucky State University Faculty Handbook and violation of the constitutional rights to due process” infringed upon the Plaintiffs' rights to equal protection under the Fourteenth Amendment of the United States Constitution and the Kentucky Constitution. [R. 1 at 21-23; R. 19 at 25.] Plaintiffs assert a violation of Kentucky law, which reads in pertinent part,

no . . . faculty member shall be removed except for incompetence, neglect of or refusal to perform his duty, or for immoral conduct. A president or faculty member shall not be removed until after ten (10) days' notice in writing, stating the nature and charges preferred, and after an opportunity has been given him or her to make defense before the Board. . . .

KRS § 164.360(c).

         It is settled law that “[s]tate employees who have a property interest in their employment are entitled to certain minimum process before being fired.” Cox v. Shelby State Community College, 48 Fed. App'x 500, 507 (6th Cir. 2002) (citing Cleveland Bd, of Ed. v. Loudermill, 470 U.S. 532(1985)). The United States Supreme Court has held that “college professors and staff members dismissed during the terms of their contracts have interests in continued employment that are safeguarded by due process.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 576-577 (1972) (citing Wieman v. Updegraff, 344 U.S. 183 (1952)).

         It is important to distinguish the employment actions taken against Drs. Silitonga and Tsegaye. Dr. Silitonga was terminated from her employment, effective immediately, via a letter from KSU's Director of Human Resources dated June 5, 2015. [R. 19-2.] According to Plaintiffs, this termination came at a time when Dr. Silitonga was under contract for the 2014-2015 academic year. [See R. 19 at 23.] Dr. Tsegaye, on the other hand, was not terminated. Dr. Tsegaye's appointments as Associate Vice President and Dean were not renewed, but he received a contract offer to continue as Professor of Agriculture. [R. 19-1.] There is no allegation that his demotion occurred without his contract expiring, but, nevertheless, Dr. Tsegaye was not given notice or a hearing prior to the demotion. Plaintiffs do not allege these actions violated any tenure-protected rights. However, Dr. Silitonga does allege her termination came while she was under contract.

         While this distinction is nuanced, it is vital to the area of qualified immunity as it relates to the statutory violation alleged. As stated earlier, Plaintiffs allege a violation of KRS § 164.360(c), which states university faculty members may not be removed except under certain circumstances. (Emphasis added.) Because Dr. Tsegaye was not removed, he cannot maintain a cause of action under this statutory scheme; however, Dr. Silitonga can. Therefore, taking the facts in the light most favorable to the party asserting injury, the Plaintiffs have established that the Defendants' conduct violated Dr. Silitonga's constitutional and statutory right. See Crosby, 863 F.3d at 552 (quoting Saucier v. Katz, 533 U.S. at 201). In determining whether “the right was so clearly established at the time of the alleged violation ‘that every reasonable official would have understood that what he [was] doing violate[d] that right, '” see Thomas, 489 Fed.Appx. at 119, the Court determines that the right was clearly established with regard to Dr. Silitonga, but that it was not with regard to Dr. Tsegaye. Therefore, regarding Counts Five and Six, only Dr. Silitonga's § 1983 claims will proceed past qualified immunity.

         C

         Before reaching the substance of Plaintiffs' allegations and Defendants' Motion for Summary Judgment arguments, the Court must address whether certain claims fail to implicate a legally cognizable injury. Counts Five and Six of Plaintiffs' Complaint set forth due process and equal protection claims under 42 U.S.C. § 1983 and § 2 of the Kentucky Constitution. [R. 1 at 17-22.] To the extent Plaintiffs bring a separate state cause of action pursuant to § 2 of the Kentucky Constitution, those claims are barred because “Kentucky law does not recognize a cause of action for alleged violations of Kentucky constitutional rights and [] Kentucky's General Assembly has refused to create a constitutional tort akin to a federal Bivens action for violations of Kentucky's Constitution.” Litz v. Univ. of Kentucky, No. 5:11-164, 2013 WL 2257696, at *4, n.2 (E.D. Ky. May 22, 2013) (citing Faul v. Bd. of Educ. of Danville Indep. Sch., No. 5:12-CV- 277-KSF, 2013 WL 1511746, at *2 (E.D. Ky. Apr. 9, 2013)). Therefore, Plaintiffs' claims under § 2 of the Kentucky Constitution, as set forth in Counts 5 and 6 of the Complaint, must be dismissed as to all defendants.

         Additionally, a suit against a government official in his or her individual capacity “seek[s] to impose personal liability on [the] official for actions taken under color of state law.” Kentucky v. Graham, 473 U.S. 159, 165 (1985); see also Baar v. Jefferson County Bd. of Educ., 476 Fed.Appx. 621, 634 (6th Cir. 2012); Jackson v. Murray State Univ., 834 F.Supp.2d 609, 614 (W.D. Ky. 2011). In such an action, “a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); see also Jackson, 834 F.Supp.2d at 614. Thus, as other federal district courts in this state have observed, “[a] government official may only be held liable for his or her own individual acts of misconduct.” Jackson, 834 F.Supp.2d at 614 (quoting Weathers v. Kentucky State Univ., No. 3:09-04-DCR, 2009 WL 1683711, at *3 (E.D. Ky June 16, 2009). Because Plaintiffs fail to allege the Regents, individually, engaged in any misconduct, Plaintiffs' Title VII, § 1983, and KCRA claims must be dismissed against each of the Regents in their individual capacities. However, these claims remain with regard to President Burse in his individual capacity because Plaintiffs allege that Burse, through his own individual actions, violated the Constitution.

         Lastly, Title VII imposes liability on employers only. See 42 U.S.C. §§ 2000e-2(a), 2000e-3(a). Although Plaintiffs do not allege President Burse is an employer, to the extent they contend Burse is liable under Title VII, those claims will be dismissed because Burse is not an employer for Title VII purposes. For the same reason, and to the extent alleged, any Title VII claim against the Regents in their individual capacities must be dismissed.

         In summation, the only claims that survive these jurisdictional questions are: (1) Count One's Title VII and KCRA claims against KSU, the Board of Regents, and each of the Regents in their official capacities, as well as Count One's KCRA conspiracy and retaliation claims against President Burse in his individual capacity; (2) Count Two's Title VII and KCRA claims against KSU, the Board of Regents, and each of the Regents in their official capacities, as well as Count Two's KCRA conspiracy and retaliation claims against Burse in his individual capacity; (3) Count Three's Title VII and KCRA claims against KSU, the Board of Regents, and each of the Regents in their official capacities, as well as Count Three's KCRA claim against Burse in his individual capacity; (4) Count Four's Title VII and KCRA claims against KSU, the Board of Regents, and each of the Regents in their official capacities, as well as Count Four's KCRA claim against Burse in his individual capacity; (5) Dr. Silitonga' Count Five § 1983 claim against KSU, the Board of ...


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