Goldblum v. Univ. of Cincinnati

ANDREA GOLDBLUM, Plaintiff, v. THE UNIVERSITY OF CINCINNATI, Defendant.

Case No: 1:19-cv-398

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

October 21, 2019

Dlott, J.

Bowman, M.J.

REPORT AND RECOMMENDATION

Plaintiff Andrea Goldblum filed suit against her former employer, the University of Cincinnati, alleging that Defendant violated Title VII and Title IX by forcing her to resign and/or constructively discharging her based upon her engagement in protected activity. In lieu of an answer, Defendant filed a motion to dismiss for failure to state a claim. (Doc. 7). Plaintiff filed a response in opposition to that motion, (Doc. 9), to which Defendant has filed a reply. (Doc. 10). I now recommend that UC's motion be DENIED as to Plaintiff's Title IX claim but GRANTED as to her Title VII claim.

I. Standard of Review

Unlike a motion for summary judgment, a motion to dismiss is directed to the sufficiency of the pleadings, with the Court's review limited accordingly. Thus, in evaluating the pending motion under Rule 12(b)(6), the Court is required to "accept all well-pleaded factual allegations of the complaint as true and construe the complaint in the light most favorable to the plaintiff." Dubay v. Wells, 506 F.3d 422, 426 (6th Cir. 2007) (internal quotation marks and additional citation omitted). A complaint must contain more than "labels and conclusions" under the standards established in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009). At the same time, Rule 8(a) of the Federal Rules of Civil Procedure sets forth only a "notice pleading" standard and does not require detailed factual allegations. For that reason, all reasonable inferences are to be construed in favor of the plaintiffs, and a complaint generally will survive under Rule 12(b)(6) standards if it contains sufficient factual content "that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1949).

II. Factual Allegations of Complaint

Because Defendant's motion asserts that the complaint fails to state a claim, the Court first reviews the factual allegations alleged in the complaint, all of which are assumed to be true at this early stage of the proceedings.

Plaintiff served as UC's Title IX Coordinator from June 2018 until March 15, 2019, when she was informed she would be terminated for insubordination and chose to resign in lieu of termination. (Complaint at ¶¶2, 39-40, 44-45). As part of her duties at UC, Plaintiff was required "to provide consultation strategy, and communications to senior management, including her direct supervisor, Dr. Bleuzette Marshall... as to issues and responses to them falling within her job description." (Id. at ¶15).

In January 2019, the UC College of Arts and Sciences published an online article highlighting UC "students who show the passion and drive to complete their degree despite facing... roller-coaster challenges." The highlighted students were honored with a "triumph cord" at graduation. One of the profiled students was William Houston. (Id. at ¶¶17-18). Houston was a former Bowling Green State University football player who hadbeen indicted on one count of attempted rape following a July 2014 incident that occurred during his sophomore year at Bowling Green. He was suspended by Bowling Green State University after an investigation and full hearing, and ultimately was convicted of the lesser charge of gross sexual imposition after entering into a plea agreement in state court. (Id. at ¶17).

Following publication of the on-line article profiling Houston on various social media accounts including UC's Twitter and Facebook accounts, many students, including survivors of sexual assault, responded very negatively. (Id. at ¶¶19-21). Some of the students felt that the article showed that UC did not take the issue of sexual assault on campus seriously. (Id. at ¶¶20-21). Plaintiff became aware of the student complaints about the Houston article on or about February 5, 2019, and believed she was obligated to respond "by posting a letter in the school newspaper listing resources [for victims of sexual assault] and offering help for the students." (Id. at ¶22). On the same date, Plaintiff told Dr. Marshall and UC's Director of Communications that UC could be violating Title IX "if resources were not specifically offered to students who may have negative responses to UC giving an award to a convicted sex offender." (Id. at ¶23). Plaintiff also shared her belief that "UC may have created a hostile environment" by giving an award to Houston, and her concern that UC's actions "could create a hostile environment in violation of Title IX...." (Id.) Dr. Marshall advised Plaintiff that the matter "was being considered" and that "a response would be forthcoming"; he also told Plaintiff that she would be contacted by a university dean on how to handle the matter. (Id. at ¶24). Plaintiff attempted to speak to UC's legal department about the matter and potential obligations of the school under Title IX but received no response. (Id. at ¶26).

After waiting some period of time without receiving any response, Plaintiff drafted a letter addressed to students who had complained about the award and recognition given to Houston, which letter listed possible resources for victims of sexual assault. Plaintiff provided a copy to Dr. Marshall, who advised Plaintiff that the letter was not satisfactory and directed her not to send it. (Id. at ¶¶27-28). Plaintiff revised the letter but Dr. Marshall provided no further response despite repeated requests. (Id. at ¶29).

On February 11, 2019, the student newspaper ran an article stating that UC "is facing backlash for not removing an article on its website that highlights a recent graduate who was charged with a sex crime in 2014." (Id. at ¶30). On February 12, 2019, Plaintiff advised Dr. Marshall that she intended to send the revised letter to the student newspaper, despite the prior instruction not to do so, because Plaintiff believed she was "required to do so in order to fulfill her role as Title IX Coordinator...." (Id. at ¶31). Having waited for a further response from Dr. Marshall until after 5:00 p.m. but receiving none, Plaintiff emailed the letter to the student newspaper. (Id. at ¶32)

The letter was never published. (Id. at ¶33). Instead, Dr. Marshall subsequently contacted Goldblum and expressed her dissatisfaction with Plaintiff's actions. Dr. Marshall advised Plaintiff never to "do anything like that again," and Plaintiff agreed she would not. (Id. at ¶¶34-35).

On February 15, 2019, the UC student newspaper ran another article about the Houston controversy, noting that a portion of the original article promoting Houston had been redacted by UC "[a]fter facing backlash on social media...." (Id. at ¶37). The article included a statement attributed to UC that "faculty nominators, [the] student writer and editor were all unaware of Houston's criminal history before the [original] piece was published." (Id. at ¶37). Plaintiff started an "informal investigation into the admission ofHouston," in part to determine whether UC personnel had knowledge that Houston was a convicted sex offender either prior to his admission or prior to his receipt of an award." (Id. at ¶38). As a result of her initial inquiries, Plaintiff learned that admissions staff and the Assistant Dean of Students were all aware of Houston's background prior to his admission, as were UC Police, shortly after his admission. (Id. at ¶41).

On or about March 15, 2019, Plaintiff was called into a meeting in Dr. Marshall's office and informed that since she had sent the letter to the student newspaper a month earlier, she was insubordinate and would be terminated. (Id. at ¶40). Plaintiff alleges that the charge of "insubordination" was pretextual. (Id. at ¶42). She alleges that she was fired based upon her investigation, which "threatened to cause significant embarrassment to UC and various UC administrators," and "threatened to expose misconduct by UC personnel." (Id. at ¶42). Plaintiff further alleges that she was subjected to an adverse employment action - the forced resignation in lieu of termination - "subsequent to or contemporaneous with" her exercise of "protected activity" in violation of both Title IX and Title VII. (Id. at ¶¶55, 65).

III. Defendant's Motion to Dismiss

In order to make out a retaliation claim under either Title IX or Title VII, a plaintiff generally must show that: (1) she engaged in a protected activity; (2) the exercise of protected rights was known to the defendant; (3) the defendant thereafter took an action that was materially adverse to the plaintiff; and (4) there was a causal connection between the protected activity and the adverse action. Hubbell v. FedEx SmartPost, Inc., 933 F.3d 558, 568 (6th Cir. 2019) (Title VII); Doe v. University of Tenn., 186 F. Supp.3d 788, 809 (M.D. Tenn. 2016) (Title IX). UC first argues in its motion to dismiss that the complaint fails to contain sufficient factual allegations to show that Plaintiff engaged in any qualifying"protected activity" prior to her resignation in lieu of termination. As a second basis for dismissal, UC argues that Plaintiff has failed to sufficiently allege any causal connection between her alleged "protected activity" and her constructive discharge. For the reasons that follow, the undersigned finds UC's arguments to be unpersuasive as to the Title IX claim, but persuasive as to the Title VII claim.

A. Protected Activity

1. The Manager Rule

UC argues that when an employee is also a manager, as Plaintiff was in this case, federal courts apply a "manager rule" that holds that "in order to state a retaliation claim, complaints made within the scope of an employee's job cannot constitute protected...