NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 14a0551n.06
No. 13-4313 FILED
Jul 23, 2014
DEBORAH S. HUNT, Clerk
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
DHARMA AGRAWAL, )
)
Plaintiff - Appellant, )
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
CARLO MONTEMAGNO, JOHN G. BRYAN, and ) COURT FOR THE SOUTHERN
UNIVERSITY OF CINCINNATI, ) DISTRICT OF OHIO
)
Defendants - Appellees. )
BEFORE: SUHRHEINRICH, MOORE, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Dr. Dharma Agrawal, a tenured professor at the
University of Cincinnati (UC), brought this action asserting constitutional violations under
42 U.S.C. § 1983; violation of 42 U.S.C. § 1981 with regard to terms and conditions of his
employment; and a state-law breach of contract claim. Defendants removed the case. On
Defendants’ motion, the district court dismissed all claims against UC. Following discovery, the
individual Defendants moved for and were granted summary judgment. We AFFIRM the
dismissal of the claims against UC. We AFFIRM the grant of summary judgment to the
individual Defendants except as to the § 1981 injunctive relief claim, as to which we REVERSE
and REMAND.
I. Grant of UC’s Motion to Dismiss
We review de novo the district court’s order granting UC’s motion to dismiss under Fed.
R. Civ. P. 12(b)(6). D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014). Agrawal argues
No. 13-4313, Agrawal v. Montemagno, et al.
that his state-law breach-of-contract claim against UC was an equitable action requesting
injunctive relief, not an action at law for damages, and that the district court erred by dismissing
it. He also argues UC waived its immunity by removing this action to federal court.
Although Agrawal concedes that the Ohio Court of Claims is the primary venue for
hearing cases involving money damages against the state, he argues that the Court of Claims
statute permits other courts of the state “to hear and determine a civil action in which the sole
relief that the claimant seeks against the state is a declaratory judgment, injunctive relief, or other
equitable relief.” Ohio Rev. Code § 2743.03. Pl. Br. at 66.
“[N]ot all relief falling under the rubric of restitution is available in equity.” Great-West
Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 214 (2002). Seeking recovery of a sum of
money caused by a breach of contractual duties is ultimately an action at law. Id. Cristino v.
Ohio Bureau of Workers’ Compensation, 886 N.E.2d 857, 861 (Ohio 2008) (“a claim against the
state for money due under a contract is not a claim of equitable restitution and must be brought in
the Ohio Court of Claims”). Agrawal’s amended complaint sought, among other relief, the
reinstatement “per his contract” of $360,000 in research funds and “control of research funds
and grants as well as other support promised in his contract of employment.” PID 96 (emphasis
added). He sought the award of monies he claims were granted to him under a contract, but not
paid by UC.
The district court properly determined that Agrawal’s breach-of-contract claim was a
“retrospective claim for damages” and that Defendants had not waived immunity by voluntarily
removing the case to federal court. Although Agrawal cites Lapides v. Board of Regents of
University System of Georgia, 535 U.S. 613 (2002), which held that the defendants (state
university officials) waived Georgia’s sovereign immunity from state law claims by voluntarily
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removing plaintiff’s case against them to federal court, Lapides is limited to state law claims for
which the state has waived or abrogated its immunity from damages claims in the state trial
courts. See Dantz v. Am. Apple Group, LLC, 123 F. App’x 702, 706-07 (6th Cir. 2005)
(unpublished) (Lapides “was limited to the context of state-law claims, in respect to which the
State has explicitly waived immunity from state-court proceedings”); see also, Indep. Living Ctr.
of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 661 (9th Cir. 2009) (holding that a state that
consents to suit in state court cannot invoke a sovereign immunity defense after removing the
suit to federal court); Stewart v. N. Carolina, 393 F.3d 484, 488 (4th Cir. 2005). Because that is
not the case here, Defendants’ removal from state court does not constitute a waiver of sovereign
immunity on the state-law contract claim against UC. That claim was properly dismissed.
II. Grant of Summary Judgment to Individual Defendants
We review de novo the district court’s grant of summary judgment, viewing the facts and
inferences therefrom in a light most favorable to Dr. Agrawal. Zomba Enters., Inc. v. Panorama
Records, Inc., 491 F.3d 574, 581 (6th Cir. 2007).
The district court’s order granting summary judgment sets forth the extensive pertinent
background, which we adopt and do not repeat here. Agrawal v. Univ. of Cincinnati, 977 F.
Supp. 2d 800, 805-18 (S.D. Ohio 2013). The district court agreed with the individual Defendants
that most of Agrawal’s challenges are time barred; that Agrawal established only one materially
adverse employment action, the denial of a merit pay increase in 2010, but failed to establish that
a similarly situated person was treated more favorably than he; and that Agrawal failed to show
that Defendants’ asserted legitimate reasons for their actions were pretextual. Alternatively, the
court determined that the individual Defendants are entitled to qualified immunity.
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A.
Agrawal argues that the district court “accepted the defendants’ rendition of facts in toto
... and ignore[d] the central theme of [his] case: Montemagno deliberately brought Agrawal up
on charges known to be false, causing Agrawal to spend tens of thousands of dollars on defense
lawyers.” Br. at 12. We disagree. The district court recognized Agrawal’s “central theme”:
Montemagno notified Dr. Agrawal that he was initiating an Article 9 investigation
. . . Dr. Agrawal responded . . . , protesting that he signed the labor verification
statements and that the issues about Xie had been aired and resolved by the first
grievance panel’s decision. He also objected to that hearing panel’s report . . . He
strenuously objected to a second disciplinary investigation, complaining that he
had already incurred attorney’s fees and suffered great emotional distress.
Notwithstanding Dr. Agrawal’s objections, Ackerman continued her office’s
investigation into Dr. Agrawal’s grants . . . .
PID 6210. The court stated several times that Agrawal maintained that Montemagno
intentionally set out to destroy his research career and intentionally discriminated against him,
and that Agrawal denied that his own wrongdoing brought on UC’s two investigations of him.
PID 6198, 6200-01, 6210, 6221, 6228-29, 6243, 6245.
Citing many examples, Agrawal claims that the district court improperly accepted the
defense’s view of the facts. Included in his claims is that the district court “adopted, without
scrutiny,” the grievance committee’s findings as uncontested facts. The court did no such thing.
It summarized the grievance panel’s findings, PID 6206-09, 6215-17, a logical and necessary
thing to do given that Agrawal’s grievances are central to his case. The court did not state or
suggest that it adopted as fact the grievance panel’s findings, only that it took them into account,
along with other evidence (see, e.g., PID 6245 “Based upon the facts discussed in the audit
reports, Dr. Agrawal’s own admissions at the disciplinary hearings, and the conclusions of two
hearing panels, the Court cannot conclude that the reasons Defendants have offered concerning
the denial of merit pay are mere pretext to disguise discrimination”; PID 6244 “The Internal
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Audit report, entirely separate from Bryan and Montemagno, recommended that the four controls
that Dr. Agrawal agreed to in December 2009 be made permanent. The second grievance panel
concluded that ‘respondents had good reason to distrust Dr. Agrawal and to restrict student
related grant activity. The internal controls are fully warranted administrative fiscal remedies ...’
The findings of two separate internal investigations fully support Defendants’ assertion that the
grant restrictions were imposed based on Dr. Agrawal’s own conduct.”)
Agrawal contends that the district court again usurped the jury’s role when it “cited
Harold Carter for the proposition that Agrawal’s funding proposals were not well written and
consequently rejected . . .” when “[t]here is no hint of this position in Carter’s letter.” Br. at 14,
n.32, 18. Carter testified on deposition regarding Dr. Agrawal’s first grant proposal:
[i]t was a terribly written proposal, I’m sad to say. It was very disjointed. It was
just kind of a collection of these disparate kinds of things that were loosely
connected because they were the same general area.
And the English was not good.
PID 1085. That Carter’s letter to Agrawal dated May 16, 2006, PID 1209, did not critique
Agrawal’s proposal writing does not negate Carter’s deposition testimony. These claims are
without merit, as are Agrawal’s remaining claims that the district court did not abide by its
obligation to view the facts in the light most favorable to him.
B. Time-barred Claims & Continuing Violation Theory
We review de novo the district court’s determination that many of Agrawal’s alleged
adverse employment actions are largely time-barred. See Banks v. City of Whitehall, 344 F.3d
550, 553 (6th Cir. 2003) (an Ohio plaintiff must bring a § 1983 case within two years of the
alleged adverse employment action.)
Agrawal filed his complaint in state court on October 1, 2010. The district court properly
concluded that the alleged adverse actions that occurred before October 1, 2008 were time
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barred, i.e., the transfer of OBR funds, transfer of office space, reduction of laboratory space and
reduction in the number of his graduate students. See Banks, 344 F.3d at 553.
The continuing-violation theory does not revive these time-barred claims. “This Circuit
employs the continuing violations doctrine most commonly in Title VII cases, and rarely extends
it to § 1983 actions.” Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir. 2003) (concluding that “the
Supreme Court’s recently imposed limits on the viability of the [continuing violation] doctrine”
in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002), apply to § 1983
claims). In Morgan, the Supreme Court reversed the court of appeals’ application of the
continuing violation doctrine, observing that “discrete discriminatory acts are not actionable if
time barred, even when they are related to acts alleged in timely filed charges,” and that
“[h]ostile environment claims are different in kind from discrete acts. Their very nature involves
repeated conduct.”)
This circuit recognizes two continuing-violation types, the first applies only to hostile-
environment claims. Sharpe, 319 F.3d at 267; Morgan, 536 U.S. at 114-15. Agrawal’s amended
complaint does not allege a hostile environment claim. See PID 84 (amended complaint filed in
Court of Common Pleas, Hamilton County, Ohio). On appeal, he nonetheless argues that a
review of the record makes clear “that the department overseen by Defendants was generally
hostile to Indians in particular, and “Easterners” in general. The two prime examples of this are
Montemagno’s mistreatment of Bhattacharya . . . and Dr. Purdy’s mostly-undisciplined
mistreatment of students.” Br. at 30-31. As the district court noted, Bhattacharya denied that
Montemagno discriminated against him; he described Montemagno as autocratic and “vicious,”
and that he appeared to be closer to several other department heads, but that “I don’t think it had
anything to do with national origin.” PID 2752. And, Dr. Purdy’s conduct (a professor who
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made inappropriate comments to students in 2000, including using the term “turbanheads” or
“towelheads”) cannot be attributed to either Montemagno or Bryan since the former arrived at
UC in 2006 and Bryan assumed the Vice-Provost post in or around early 2009. In addition,
neither of these examples suggest or establish that Agrawal himself suffered harassment that
unreasonably interfered with his work performance or created an intimidating, hostile, or
offensive work environment. See, e.g., Delaney v. Skyline Lodge, Inc., 642 N.E.2d 395, 399-400
(Ohio App. 1994). Because Agrawal did not allege a hostile-environment claim, the time-barred
claims are not revived under this continuing-violation theory.
Agrawal also claims the second type of continuing violation applies, under which discrete
discriminatory acts that are part of a longstanding and demonstrable policy of discrimination, toll
the statute of limitations. See Sharpe, 319 F.3d at 269. “To establish this category of continuing
violation, appellant must demonstrate something more than the existence of discriminatory
treatment in his case, Sharpe, 319 F.3d at 268 (internal quotations and citation omitted), such as
a continuing overarching policy of discrimination, see LRL Properties v. Portage Metro Hous.
Auth., 55 F.3d 1097, 1106 (6th Cir. 1995).
This claim fails as well, because Agrawal relies on the same instances: Montemagno’s
alleged discrimination toward Bhattacharya and Purdy’s inappropriate comments to students in
2000. Agrawal’s argument that the statute of limitations should be equitably tolled during the
pendency of the investigations is raised for the first time on appeal, and is thus waived. See, e.g.,
Geiger v. Tower Auto., 579 F.3d 614, 622 n.3 (6th Cir. 2009).
C. Race and National-Origin Discrimination
Agrawal alleged that the individual Defendants, acting under color of state law in their
capacities as UC officers, discriminated against him and violated his equal protection rights on
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the basis of his national origin and race. PID 6221. The district court properly determined that
Agrawal presented no direct evidence of discrimination. Direct evidence, “if believed, requires
the conclusion that unlawful discrimination was at least a motivating factor in the employer’s
actions.” Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 914 (6th Cir. 2013).
Agrawal relies on Montemagno’s remark alluding to a “cultural divide” at Agrawal’s second
grievance hearing, but the district court correctly concluded that this statement could be
interpreted several ways. Dr. Purdy’s statements about Asian students in the year 2000 cannot
be attributed to either Montemagno or Bryan, and Purdy played no role in Defendants’ decisions
regarding Agrawal.
Absent direct evidence, Agrawal must present circumstantial evidence under the burden-
shifting scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to survive
summary judgment. Sjostrand v. Ohio State Univ., 750 F.3d 596, 599 (6th Cir. 2014). Agrawal
established the first two prima facie elements, i.e., that he is a member of a protected class and
was qualified for his position. Adair v. Charter Cnty. of Wayne, 452 F.3d 482, 493 (6th Cir.
2006).
Dr. Agrawal must also establish that the actions he challenges were adverse employment
actions, that is, “more disruptive than a mere inconvenience or an alteration of job
responsibilities.” Mitchell v. Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir. 2004). The first
conduct within the two-year limitations period Agrawal points to is Montemagno’s October 3,
2008 letter initiating the first Article 9 proceeding. But employer investigations into suspected
wrongdoing, standing alone, are not generally considered actionable adverse employment
actions, see Arnold v. City of Columbus, 515 F. App’x 524, 531 (6th Cir. 2013), and
Montemagno’s proposed discipline was not implemented, see Mitchell, 389 F.3d at 182; PID
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6211. Finally, the letter of discipline that was to have been placed in Agrawal’s personnel file
has never been located, and a letter of reprimand is not a materially adverse employment action
unless accompanied by a loss such as demotion or salary reduction, neither of which occurred
here. See Taylor v. Geithner, 703 F.3d 328, 338 (6th Cir. 2013) (written reprimand that does not
lead to a materially adverse consequence such as lowered pay, demotion, suspension, or the like,
is not a materially adverse employment action); Jones v. Butler Metro Hous. Auth., 40 F. App’x
131, 137 (6th Cir. 2002).
Bryan’s temporary grant restrictions imposed in August 2009 were also within the two-
year limitations period. But the district court properly determined that these were not materially
adverse employment actions. See Mitchell, 389 F.3d at 182 (actions including reduction in the
plaintiff professor’s research lab space, revocation of mentor status, loss of graduate research
assistant, proposed but unimplemented reduction in pay, forced review of grant applications, and
removal from Director position were not materially adverse employment actions, independently
or collectively). The investigations that prompted these restrictions were brought on by Xie’s
letter and Agrawal’s own testimony, and Agrawal has not demonstrated that his material
responsibilities were diminished or that the temporary grant restrictions had a materially adverse
effect on his salary or status of employment at UC. See Mitchell, 389 F.3d at 183.
The district court properly determined that Agrawal failed to establish the third prima
facie element, that he suffered an adverse employment action, except as to the denial of a merit
pay increase in 2010. Id. Only the denial of a merit pay increase in 2010 constituted “a
significant change in employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a significant change in
benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Defendants concede that
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the 2010 denial of merit pay constituted a materially adverse employment action. See Szeinbach
v. Ohio State Univ., 493 F. App’x 690, 694-95 (6th Cir. 2012). The question then is whether
Agrawal established the fourth prima facie element, that he was less favorably treated than a
similarly situated person outside his protected class. See Noble v. Brinker Int’l, Inc., 391 F.3d
715, 728-29 (6th Cir. 2004). To be similarly situated a plaintiff and his proposed comparator
“must have engaged in acts of comparable seriousness.” Wright v. Murray Guard, 455 F.3d 702,
710-11 (6th Cir. 2006) (“Wright and Bradley are not similarly situated because their alleged acts
of misconduct are of a very different nature, and there are legitimate reasons why Murray Guard
would treat them differently.”).
Agrawal inadequately briefed this issue. He asserts simply that he “presented a multitude
of facts and charts to support his position that he out-performed every other member of his
department, yet the raise he was granted, unlike theirs, was reversed.” Even if the issue is not
waived, Geiger, 579 F.3d at 622 n.3, Agrawal has not presented evidence from which a jury
could conclude that any alleged comparator was treated more favorably than he for similar
misconduct.
D. Section 1981 Claim
Agrawal argues that the district court erred by granting summary judgment on his § 1981
claim. Agrawal’s amended complaint alleged that Defendants intentionally discriminated
against him with respect to compensation, terms, conditions and privileges of employment
because of his race and color.
Section 1981 prohibits discrimination in the making and enforcement of private contracts,
McCormick v. Miami Univ., 693 F.3d 654, 659 (6th Cir. 2012). A plaintiff must present
evidence sufficient to raise an inference of intentional race discrimination in a § 1981 action; that
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is, § 1981 reaches only purposeful discrimination. See Gen. Bldg. Contractors Ass’n v. Penn.,
458 U.S. 375, 389 (1982). “The express cause of action for damages created by § 1983
constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state
governmental units.” Arendale v. City of Memphis, 519 F.3d 587, 599-600 (6th Cir. 2008)
(quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989).
The district court properly determined that money damages are not available under
§ 1981; claims for money damages against state officers in their official capacities are barred by
the Eleventh Amendment. Id. at 662; Freeman v. Mich. Dep’t of State, 808 F.2d 1174, 1179 (6th
Cir. 1987).
However, the Eleventh Amendment does not bar continuation of a § 1981 action to the
extent it seeks injunctive relief from state officers sued in their official capacities. McCormick,
693 F.3d at 662; Freeman, 808 F.2d at 1179. In dismissing the claim for injunctive relief, the
district court stated that Agrawal named the individual Defendants only in their individual
capacities and went on to conclude that because neither Defendant remains at UC, any
prospective claim for relief against them is moot. The district court was mistaken; Agrawal
clearly named Montemagno and Bryan both in their individual and official capacities. In
addition, Agrawal asserts that the successor officers continue to enforce decisions made by
Montemagno and Bryan: that he remains ejected from his laboratory and office, the OBR money
remains under another’s control, he is still suffering under Bryan’s 4-point accounting structure,
and he is still lacking his merit-pay increase.
Under these circumstances, since Montemagno and Bryan left UC after Agrawal brought
this action, the successor officers are automatically substituted under Fed. R. Civ. P. 25(d). We
thus remand for substitution of Montemagno and Bryan’s successors and leave to the district
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court how to proceed on remand. See Spomer v. Littleton, 414 U.S. 514, 522-23 (1974)
(remanding to court of appeals for a determination “whether the former dispute regarding the
availability of injunctive relief against the State’s Attorney is now moot [because new State’s
Attorney was elected and respondents did not allege that he intends to continue his predecessor’s
practices] and whether respondents will want to, and should be permitted to, amend their
complaint to include claims for relief against the [new State’s Attorney].); Patterson v.
MacDougall, 506 F.2d 1 (5th Cir. 1975) (where State officer resigned after the plaintiff filed his
complaint, court of appeals remanded to district court to determine whether claims for injunctive
relief were moot and whether MacDougall’s successor should be substituted as a defendant to the
claims for injunctive and declaratory relief.).
E. Property Interest in Employment Contract and Reputation
The district court did not err in concluding that Agrawal’s procedural due process claims
failed. “A procedural due process claim requires a showing that the plaintiff has been deprived
of a protected property interest without adequate process.” City of Pontiac Retired Emps. Ass’n
v. Schimmel, 751 F.3d 427, *3 (6th Cir. 2014). When Bhattacharya recommended that Agrawal
receive a merit pay increase in 2010, no increase was implemented. A protected property
interest is one to which a plaintiff has a legitimate claim of entitlement under state law. See
Ferencz v. Hairston, 119 F.3d 1244, 1247 (6th Cir. 1997). Potential merit pay increases for
tenured professors are not property rights; Agrawal was not entitled to a hearing or other process
before a merit pay increase was denied. See Richardson v. Twp. of Brady, 218 F.3d 508, 517
(6th Cir. 2000) (“Simply put, [plaintiff] can have no legitimate claim of entitlement to a
discretionary decision.”) Similarly, Agrawal had no protected property interest in a particular
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office, laboratory space or control over the OBR funds, which funds were subject to the Board of
Regents’ discretion. Id.
F. Substantive Due Process
Agrawal asserts that the district court erred in determining that Defendants infringed none
of his substantive due process rights: “vindictive motives and arbitrary State action give rise to
constitutional causes of action,” arguing that Montemagno’s treatment of him “shocks the
conscience because bringing false, uninvestigated, malicious allegations would shock the
conscience even if not brought against fully-tenured senior university professors.” Br. at 59.
“Most, if not all, state-created contract rights, while assuredly protected by procedural
due process, are not protected by substantive due process.” Charles v. Baesler, 910 F.2d 1349,
1353 (6th Cir. 1990) (rejecting the plaintiff’s claim that denial of a promotion constituted a
violation of substantive due process). “Substantive due process affords only those protections so
rooted in the traditions and conscience of our people as to be ranked as fundamental . . . . It
protects those interests, some yet to be enumerated, implicit in the concept of ordered liberty.”
Id. (internal quotations and citations omitted).
Asserting that Montemagno’s conduct violated his right of equal protection, Agrawal
relies on Gutzwiller v. Fenik, 860 F.2d 1317 (6th Cir. 1990), which has been interpreted as
recognizing a narrow substantive due process right to protection against losing one’s job because
of an independent constitutional violation, Hopkins v. Canton City Bd. of Educ., 477 F. App’x
349, 365-66 (6th Cir. 2012). The district court properly disposed of Agrawal’s equal protection
claim with his discrimination claims under § 1983. “The elements for establishing an Equal
Protection claim under § 1983 and the elements for establishing a violation of Title VII disparate
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treatment claim are the same.” Deleon v. Kalamazoo Cnty Rd. Comm’n, 739 F.3d 914, 917-18
(6th Cir. 2014); Gutzwiller, 860 F.2d at 1325.
For these reasons, we AFFIRM the district court’s order granting UC’s motion to
dismiss, and AFFIRM the order granting the individual Defendants’ motion for summary
judgment with the exception of the § 1981 injunctive relief claim, as to which we REVERSE and
REMAND.
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