NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0639n.06
Fi LED
No. 13-3029
AU 1 8 2014
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT -
ENRIQUE SEOANE-VAZQUEZ,
Plaintiff-Appellant,
ON APPEAL FROM THE UNITED
THE riijr cmAmt? TTKTTUt?DQT9W STATES DISTRICT COURT FOR THE
1,
SOUTHERN DISTRICT OF OHIO
Defendant-Appellee.
BEFORE: SILER, BATCHELDER, and CLAY, Circuit Judges.
CLAY, J., delivered the opinion of the court in which SILER and BATCHELDER, JJ.,
concurred, except as to the issue discussed in Part III of the Discussion Section, “Ttile VII
Retaliation: Plaintiffs Internal Appeal.” BATCHELDER, J., delivered a separate opinion on that
issue, in which SILER, J., joined.
CLAY, Circuit Judge. Plaintiff Enrique Seoane-Vazquez appeals from the district
court’s grant of summary judgment in favor of Defendant The Ohio State University
(“University”) on Plaintiffs claims of retaliation, in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. We AFFIRM for the reasons set forth in this opinion and the
opinion of Chief Judge Batchelder.
No. 13-3029
BACKGROUND
I. FACTUAL BACKGROUND
A. Plaintiff’s Hiring, Complaints, and 2007 Lawsuit
In August 2002, Plaintiff a native of Spain, was hired as an assistant professor in the
University’s College of Pharmacy (“COP”), serving in the Pharmacy Practice and
Administration Division (“Division”). Plaintiff also had a courtesy appointment to the College
of Public Health, which did not pay any portion of Plaintiffs salary. Plaintiffs position was on
the tenure track. Whether Plaintiff would ultimately be awarded tenure depended on his
performance in three areas—scholarship, teaching, and service.
In 2004, as part of the service requirement, Dr. Milap Nahata, the Division’s chair,
appointed Plaintiff to serve on a search committee for a prestigious professorship. The search
came to focus on Dr. Raj esh Balkrishnan, then a professor at the University of Texas at Houston.
Plaintiff was concerned about Balkrishnan’s relationship with his colleagues in Texas, and asked
Nahata to request letters of recommendation before appointing him. Nahata declined and
Balkrishnan was hired. According to Plaintiff, Nahata and Balkrishnan—both of Indian origin—
waged a vindictive campaign against him within the COP. Plaintiffs graduate students were
allegedly told to stop working with him. One student of Indian origin was told he should not be
working with Plaintiff, he should be working with Balkrishnan instead. Nahata also tapped
Balkrisbnan to present Plaintiffs annual review to the Division’s faculty—a move that Plaintiff
claimed was designed to hinder his advancement in the COP. Plaintiff further accused Nahata of
poaching a valuable grant.
In August 2005, Plaintiff filed a complaint detailing these and other offenses with the
Dean of the COP, Dr. Robert Brueggemeier, who forwarded the complaint to an investigative
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committee. Following a lengthy process of investigation, report, and appeal, it was eventually
determined that relations were strained within the ‘s faculty and corrective measures should
be taken. Balkrishnan was singled out for his behavior and barred from tampering with other
faculty members’ students. Not satisfied with these results, Plaintiff filed a Charge of
Discrimination with the EEOC in September 2006. The EEOC closed its file on the matter in
May 2007, and in August 2007, Plaintiff filed suit in the Southern District of Ohio, charging the
University with three counts of Title VII discrimination, retaliation, and discrimination by
association (“2007 lawsuit”).
B. Plaintiffs Annual Reviews
Even as Plaintiff was participating in the dispute-resolution process at the University, he
was making fitful progress towards tenure. Plaintiffs progress was reviewed annually,
beginning in March 2004. In his first three reviews, Plaintiff was given high marks for his
service and mediocre marks on his teaching. Plaintiff also received mediocre-to-poor reviews
for his scholarship. Plaintiff, for his part, believed his reviews overlooked some scholastic
achievements, and also failed to account for a lengthy illness that hampered Plaintiffs ability to
work.
In early 2007, the COP conducted Plaintiffs fourth-year review, an important waypoint
on the road to tenure. The review encompassed several elements. First, the Division contacted
several professors from other institutions with expertise in Plaintiffs area of scholarship—
pharmaceutical economics and policy. Four replied with letters giving mixed reviews of
Plaintiffs scholarship and ability to obtain research funding. Dr. William Hayton, an associate
dean in the COP, then prepared a letter summarizing Plaintiffs progress in teaching, scholarship,
and service. Hayton noted that Plaintiffs teaching quality needed improvement, even if the
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quantity of Plaintiffs teaching and advising was acceptable. Plaintiffs service was appropriate
for a faculty member of his level. As for Plaintiffs scholarship, Hayton noted that Plaintiff had
only five articles to his name, and all had been completed recently. Plaintiffs lack of peer-
reviewed articles had been a driver of his negative marks in previous annual reviews. Hayton
also stated that faculty members in the Division believed that Plaintiffs research lacked focus.
Hayton further commented that Plaintiff’s funding had been adequate, but it was unclear if the
sources of funding were competitive.
After Hayton prepared his letter, the tenured faculty members of the COP met to discuss
Plaintiffs progress. Dr. James Dalton, then the chair of the COP’s tenure committee,
summarized this meeting in a letter to Brueggemeier dated March 14, 2007. Most of the meeting
focused on Plaintiffs research. As Dalton summarized, the faculty had a mixed response to
Plaintiffs research, and thought that Plaintiff should increase the number of his peer-reviewed
publications, focus his scholarship into a defined area, and gain funding from competitive
sources. The faculty voted just 12 to 8 in favor of a positive fourth-year review.
Finally, Brueggemeier submitted his own recommendation to the University provost.
Brueggemeier favored giving Plaintiff a positive fourth-year review, with clear expectations of
improvements to be made if Plaintiff hoped to secure tenure. Brueggemeier repeated the concern
about Plaintiffs late flurry of publications and the lack of focus in his work, and noted that the
quality of the journals that carried his articles was low or uncertain. Similarly, it was not clear if
Plaintiffs funding sources had a competitive application process. Brueggemeier concluded his
letter with several expectations for Plaintiffs future research and scholarship: more peer
reviewed publications on a more regular schedule; developing a theme or focus that unites his
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work; and securing research funding from federal agencies with peer-reviewed application
processes.
C. The Tenure Review Process
In the summer of 2008, preparations began for the tenure review process. The ultimate
decision of whether to grant or deny tenure lay with the University’s provost, Joseph Alutto.
According to University policy, Alutto would make this decision based on a dossier of materials
that would be assembled over the course of several months by Plaintiff and the COP. This
dossier should include, among other things, a summary of the applicant’s research prepared by
the applicant himself; representative publications that the applicant had written while at the
University; letters from external reviewers; and the recommendation of the college’s faculty as to
whether or not tenure should be awarded.
1. External reviewers
In August 2008, Nahata, as the chair of Plaintiff’s Division, contacted Plaintiff to
assemble a list of possible external reviewers. Although University procedures permitted
Plaintiff to suggest names, Plaintiff declined. Moreover, Plaintiff told Nahata that the
discriminatory and retaliatory conduct of Nahata and others made an unbiased tenure review
process impossible. Nahata would ordinarily play an important role in preparing Plaintiff’s
dossier, but given Plaintiff’s allegations, Nahata recused himself from the process. Dr. Robert
Buerki, a tenured professor in the Division and a member of the COP’s tenure committee, took
over Nahata’s responsibilities. Buerki assembled a group of professors in the Division to come
up with a list of external reviewers. Nahata attended the meeting of these professors, but did not
offer any suggestions. The meeting ended with a list of fifteen professors who were asked to
provide letters of review. Only five responded initially, and their reviews were mixed.
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Daniel Mullins of the University of Maryland, who had previously worked with Plaintiff,
spoke positively about Plaintiff’s scholarship. Plaintiff had a good balance of work, a reasonable
number of publications, and Mullins forecasted that Plaintiff’s rate and quality of scholarship
would increase in the future. Mullins noted that Plaintiff had fewer and smaller funding grants
than his peers, but chalked this up to Plaintiff’s lack of experience in applying for funding, and
possibly to his not needing as much funding as others in his field. Marvin Shepherd from the
University of Texas also had positive things to say. According to him, Plaintiff had produced
exceptional research on limited funding. Both Mullins and Shepherd reconmiended granting
Plaintiff tenure.
John Brooks from the University of Iowa had a more measured response to Plaintiff’s
work. Brooks observed that Plaintiff had published several papers recently, suggesting more to
come in the near future. But Brooks commented that Plaintiff’s research lacked a compelling
theme. Even Plaintiff’s own description of his research interests could not weave its disparate
topics into a single thematic arc. Brooks also believed that Plaintiff had produced too many
unpublished reports compared to published peer-reviewed papers. Brooks concluded that
Plaintiff’s work compared favorably to his peers, but could benefit from focus.
Two of the reviewers had distinctly negative opinions about Plaintiff. Joel Hay of the
University of Southern California commended Plaintiff for the number of peer-reviewed
publications he had produced, but found their content to be lacking. The articles Hay had
received were descriptive, not analytical, and therefore failed to show any expertise or
innovation in Plaintiff’s self-proclaimed area of research. David Kreling from the University of
Wisconsin—one of the professors who had provided a letter for Plaintiff’s fourth-year review—
was even more negative. Plaintiff had no main focus to his work, and had not published in the
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journals most associated with his field. The articles were not innovative or creative, and
scattered over too wide of an area. In sum, Plaintiff’s body of scholarship was mediocre at
best—possibly below par compared to his peers.
Once these five letters had been received, Buerki wrote a letter to Dr. Anthony Young,
chair of the COP’s tenure committee. Buerki principally summarized the external reviewers’
letters, but also briefly noted Plaintiff’s record of teaching, scholarship, and service. In addition,
several faculty members had discussed Plaintiff’s dossier, and noted that Plaintiff had not made
substantial progress in meeting the expectations set forth in Brueggemeier’s fourth-year review
letter. Buerki’ s letter included a sentence or two containing these thoughts. Nahata cosigned
Buerki’s letter, as the chair of Plaintiff’s Division, but did not contribute to its substance.
After Buerki had completed his letter, he received two more letters from external
reviewers. Abraham Hartzema of the University of Florida wrote positively about the number of
publications, and believed Plaintiff’s papers were clearly focused and of high quality. Hartzema
also noted that few sources of funding were available in Plaintiff’s area of expertise. Overall,
Hartzema believed that Plaintiff had developed his own brand, been productive, and had
produced important work. Caroline Gaither, of the University of Michigan, also had some
positive things to say. Gaither believed that Plaintiff had produced a sufficient number of papers
and that his area of research was valuable. However, Gaither found the quality of the work
somewhat wanting. She noted that Plaintiff’s papers were largely descriptive, but observed that
Plaintiff had used a variety of methods in these papers. In the end, Gaither thought that Plaintiff
compared favorably to his peers, and suggested that he select a few areas in which he could focus
his research.
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2. COP faculty vote
With all of these materials in hand, the COP scheduled a tenure meeting and vote for
December 1, 2008. In early November, Buerki, who was to present Plaintiffs application at the
meeting, spoke with Plaintiff about his dossier. Buerki shared the letter he had written about
Plaintiffs dossier. Plaintiff did not react positively. On November 24, 2008, he filed a motion
in the 2007 lawsuit to enjoin the tenure meeting. The district court denied the motion two days
later. Plaintiff then wrote a letter to Buerki dated November 29, 2008, detailing several errors
and omissions Plaintiff saw in Buerki’s letter. Plaintiff asked Buerki to distribute his letter at the
tenure meeting. Buerki agreed to do so.
On December 1, 2008, the COP faculty met to consider Plaintiffs application for tenure.
But before the faculty addressed the merits of Plaintiffs dossier, there was a lengthy discussion
about the propriety of circulating the letter from Plaintiff (we know because the meeting was
recorded). Some faculty members were concerned that their vote would be based on less than a
full picture of Plaintiffs dossier if the letter were not handed out. Several faculty members
opposed having the letter distributed on the ground that the University’s procedures allowed
Plaintiff to submit a rebuttal after the COP vote. Once two faculty members threatened to walk
out of the meeting, the discussion moved on without Plaintiffs letter being circulated.
The substantive portion of the faculty’s discussion focused on Plaintiffs publication
history, funding, and the comments from the external reviewers. The opinions were mixed.
Some faculty members believed that Plaintiffs funding record and publication were adequate,
and that the balance of the external reviews was positive. But several faculty members felt
strongly that Plaintiffs record was not up to snuff. One professor, Bob Curley, called the
external letters “the least favorable I’ve ever seen for any candidate at any level since” he had
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been at the COP. (R. 76-19, Tenure Comm. Tr., at 10,705.) Dr. Jessie Au commented that the
most important metric was peer-reviewed publications, and that Plaintiff had more than enough
to warrant tenure. The faculty’s conversation thus mirrored the disparate opinions contained in
the letters from external reviewers—ranging from positive to very negative.
Balkrishnan and Nahata made their own contributions to the meeting, chastising Plaintiff
for his poor relations with them and other faculty in the COP. Balkrishnan started the meeting
by asking if the faculty could face legal liability for their comments. Brueggemeier told
Balkrishnan that so long as his comments stuck to the facts, the University would offer
indemnification. Perhaps buoyed by this assurance, Balkrishnan proceeded to air the allegations
that Plaintiff had made against him. Balkrishnan thought his colleagues should consider
Plaintiffs internal complaints and EEOC claim when deciding if tenure was warranted. Au
objected to Balkrishnan’ s characterization of Plaintiffs complaints as meritless. Later, Nahata
vehemently denied Plaintiffs allegation that Nahata had misappropriated a grant.
At the end of the meeting, the faculty voted on Plaintiffs tenure application. Seven
voted in favor of granting tenure, ten voted against Plaintiff, and four abstained.
3. Letters from Young and Brueggemeier
On December 9, 2008, Young sent a letter to Brueggemeier summarizing the vote and
discussion that had taken place during the faculty’s meeting. Young noted that the discussion
was positive concerning Plaintiffs teaching and service, but that many faculty members had
serious concerns about Plaintiffs scholarship. Young briefly summarized the major
complaints—lack of focus, principally descriptive papers, and inadequate funding—but also
stated that these concerns were not unanimously held. Young’s letter also acknowledged
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Plaintiffs allegations of impropriety by some faculty members and the mixed result of the
investigative committee.
Next, Brueggemeier composed a letter to Alutto dated December 17, 2008. Brueggemeier
explained that Plaintiffs scholarship as a whole lacked focus, and that Plaintiffs recent spate of
publications was unexpected and worrying. As for finding, Brueggemeier expressed concern
that Plaintiffs funding sources were not competitive or peer-reviewed. Brueggemeier thus
recommended that Alutto deny tenure, in line with the faculty vote, principally based on the
concerns about Plaintiffs scholarship.
4. Plaintiffs complaints and Alutto ‘sfinal decision
Plaintiff did not take these setbacks lying down. On January 5, 2009, Plaintiff submitted
a rebuttal letter (which, with exhibits, stretched to over 150 pages) for inclusion in his dossier.
Plaintiff raised eight areas of concern. He claimed that Balkrishnan, aided and abetted by Nahata
and Brueggemeier, had used the 2007 lawsuit as a basis for recommending denial of tenure.
Nahata and Brueggemeier had allegedly poisoned the tenure process in other ways. Plaintiff
claimed that Nahata had selected biased external reviewers—in particular, Kreling and Gaither.
The alleged bias of these two reviewers stemmed from their relationship with Dr. Craig
Pedersen, a COP professor who left the University at the end of 2008. Plaintiff asserted that
Pedersen had spread vile comments about Plaintiff throughout Plaintiffs professional network,
including with Kreling. Plaintiff also claimed that Nahata’s letter (the one that had actually been
written by Buerki) painted Plaintiff in a false light, and in any event, it was inappropriate for
Nahata to allow Buerki to write it. As for Brueggemeier, Plaintiff asserted that he had
inappropriately prevented the COP faculty from seeing the letter Plaintiff wrote prior to the
tenure vote. Brueggemeier had also misrepresented the facts in his letter and set unreasonable
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expectations in his fourth-year review of Plaintiff. Young’s letter summarizing the faculty
meeting was also slanted against Plaintiff. In addition, Plaintiff complained that his dossier did
not include a letter from the College of Public Health, Plaintiff’s scholarly collaborators, or a full
list of Plaintiff’s publications. Plaintiff asked Alutto to restart the tenure process and bar
Balkrishnan, Nahata, and Brueggemeier from participating.
After Plaintiff’s rebuttal letter was included in the dossier, the entire package was
forwarded to Provost Alutto. But since the COP vote had been negative, Alutto referred the
dossier to the University Promotion and Tenure Committee (“UPTC”) for its review. This body
of seven faculty members from across the University was headed by Dr. Carole Anderson, Dean
of the College of Dentistry. The UPTC members reviewed Plaintiff’s dossier and reached the
same conclusion as the majority of the COP’s faculty and Brueggemeier—Plaintiff’s research
record was too weak to recommend tenure. Five of the UPTC members voted to strongly
recommend disapproval of tenure. Two members voted to weakly recommend disapproval. The
UPTC also responded to the numerous allegations raised in Plaintiff’s rebuttal letter and found
that Plaintiff’s claims either lacked merit or had no real impact on the tenure process. Anderson
noted, however, that the UPTC did not have the resources to investigate these matters fully.
Finally, the decision of whether to award or deny tenure came before Alutto. Alutto
reviewed Anderson’s report and all of the letters in the dossier, but did not read Plaintiff’s
publications. On April 8, 2009, Alutto denied Plaintiff tenure.
D. Plaintiff’s Internal Appeal
After hearing of Alutto’s decision, Plaintiff filed a complaint with the University Senate
Committee on Academic Freedom and Responsibility (“CAFR”), which was chaired by Dr.
Marilyn Blackwell. Plaintiff’s complaint essentially rehashed the allegations in his January 5,
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2009 rebuttal letter. Pursuant to the University’s policies, the CAFR had 60 days to investigate
Plaintiffs appeal. Blackwell and the CAFR interviewed Plaintiff and received comments from
Brueggemeier, Buerki, Nahata, and Young. Blackwell summarized the CAFR’s findings in a
letter dated June 28, 2009. The CAFR believed that five aspects of Plaintiffs tenure process
violated the University’s rules. The CAFR concluded that there was some reason to think that
Kreling and Gaither were not in a position to provide unbiased external reviews, that the COP
should have furnished Plaintiff with the list of proposed external reviewers before they were
contacted for letters, that Nahata should have found someone other than Buerki to assist him in
writing his letter, and that the College of Public Health should have supplied Plaintiff with a
letter of evaluation. CAFR found Plaintiffs other claims without merit.
CAFR passed Plaintiffs appeal on to the Faculty Hearing Committee (“FHC”), the final
level of appeal available within the University. The FHC convened a panel to hear Plaintiffs
claims, and the panel met six times between August and October 2009. Plaintiff apparently
believed he could not maintain his internal appeal at the same time as the 2007 lawsuit, which
was scheduled to go to trial in April 2010. On October 9, 2009, Plaintiff moved to voluntarily
dismiss the 2007 lawsuit. A week later, the district court granted the order and dismissed
Plaintiffs case without prejudice. On October 23, 2009, the FHC found that none of Plaintiffs
claims had merit. The FHC did despair at the breakdown in collegiality at the COP, and
recommended that the University develop rules to account for future such situations. But
Plaintiffs appeal was rejected.
II. PRocEDuRAL HISTORY
Once he had heard the final result of his internal appeal, Plaintiff returned to the EEOC.
On November 2, 2009, Plaintiff completed an EEOC intake questionnaire, highlighting alleged
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instances of retaliation during the tenure review process. On February 6, 2010, Plaintiff filed a
charge of discrimination with the EEOC, alleging that the FHC’s decision was made in
retaliation for Plaintiff’s protected activity. The EEOC notified Plaintiff of his right to sue on
these claims in June 2010.
A month later, Plaintiff filed this suit in the Southern District of Ohio. Plaintiff
reasserted the claims from the 2007 lawsuit, plus Title VII retaliation claims arising from his
denial of tenure and the denial of his internal appeal. The University moved to dismiss. The
district court held that Plaintiff’s claims arising from any event prior to January 6, 2009 were
time-barred and not subject to equitable tolling. Seoane-Vazquez v. Ohio State Univ. (Seoane I),
No. 10-CV-622, 2011 WL 249473 (S.D. Ohio Jan. 25, 2011). This left only Plaintiff’s
retaliation claims based on Alutto’s denial of tenure and the FHC’s denial of Plaintiff’s internal
appeal. After extensive discovery, the district court granted summary judgment on these final
claims and reaffinned its earlier decision concerning equitable tolling. Seoane-Vazquez v. Ohio
State Univ. (Seoane II), No. 10-CV-622, 2012 WL 6138661 (S.D. Ohio Dec. 11, 2012). This
appeal followed.
DISCUSSION
Title VII makes it unlawful for an employer to retaliate against an employee because the
employee has engaged in conduct protected by Title VII. See 42 U.S.C. § 2000e-3(a). Plaintiff
asserts that his tenure review process was rife with retaliation for his protected activity—internal
complaints and the 2007 lawsuit. The district court rejected Plaintiff’s claims and granted
summary judgment to Defendant on three grounds. First, the court held that Plaintiff could not
sue for many of the alleged acts of retaliation because those claims were time-barred and
Plaintiff could not benefit from equitable tolling. Second, the court determined that Provost
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Alutto did not act with retaliatory animus when he ultimately denied Plaintiff’s application for
tenure. And third, the court held that Plaintiff’s internal appeal of Alutto’s decision was not a
legally cognizable act of retaliation. Plaintiff asserts that all three of these conclusions were
wrong. We address each in turn.
1
I. EQUITABLE TOLLING
Before Plaintiff could initiate a Title VII suit in district court, he was required to file a
charge of discrimination “within three hundred days after the alleged unlawful employment
practice occurred.” 42 U.S.C. § 2000e-5(e)(l). Once the EEOC decided not to pursue the claim,
Plaintiff had ninety days to bring suit. See 42 U.S.C. § 2000e-5(f)(l). Applying these timing
rules, the district court concluded that Plaintiff could not sue for any acts of discrimination or
retaliation that happened before January 6, 2009. See Seoane I 2011 WL 249473, at *3; Seoane
II, 2012 WL 6138661, at *9 This cut-off barred the claims based on national-origin
discrimination originally asserted in the 2007 lawsuit, as well as any acts of retaliation prior to
Alutto’s final decision on Plaintiff’s tenure application.
Plaintiff does not argue against this conclusion. Instead, Plaintiff asserts that the court
should have equitably tolled his pre-2009 claims. “Equitable tolling [] permits a plaintiff to
avoid the bar of the statute of limitations if despite all due diligence he is unable to obtain vital
information bearing on the existence of his claim.” E.E.O.C. v. Ky. State Police Dep ‘t, 80 F.3d
1086, 1095 (6th Cir. 1996) (quotation marks omitted). “We consider five factors in determining
whether equitable tolling should be allowed: 1) lack of notice of the filing requirement; 2) lack
of constructive knowledge of the filing requirement; 3) diligence in pursuing one’s rights; 4)
‘Because we agree that equitable tolling does not apply and that Alutto’s decision to deny
tenure was not retaliatory, we need not address the University’s other ground for affirmance on
these claims—that they were not within the scope of Plaintiff’s EEOC intake questionnaire or
charge of discrimination.
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absence of prejudice to the defendant; and 5) the plaintiffs reasonableness in remaining ignorant
of the particular legal requirement.” Seay v. Tenn. Valley Auth., 339 F.3d 454, 469 (6th Cir.
2003) (quotation marks and alteration omitted). Since the district court denied equitable tolling
as a matter of law, we review this decision de novo. See id.
Plaintiffs theory supporting equitable tolling is hard to discern.
2 Plaintiff baldly asserts
that the University delayed its resolution of Plaintiffs internal appeal in 2009, which somehow
caused Plaintiff to delay filing a notice of claim with the EEOC and voluntarily dismiss the 2007
lawsuit. Even if true, these circumstances do not entitle Plaintiff to equitable tolling. Plaintiff
had all the information necessary to file a timely charge with the EEOC. Contra Dixon v.
Gonzales, 481 F.3d 324, 332 (6th Cir. 2007); Seay, 339 F.3d at 469—70. Plaintiff does not allege
that the EEOC committed some error that rendered his claims untimely. Contra Brown v.
Crowe, 963 F.2d 895, 898—900 (6th Cir. 1992). Plaintiff selected his course of action when
faced with the competing demands of his ongoing litigation and his application for tenure.
Equitable tolling is not designed to save litigants from the foreseeable consequences of their own
strategic choices. Plaintiffs claims arising out of pre-2009 conduct are therefore time-barred
and were properly dismissed.
II. TITLE VII RETALIATION: ALuTT0’s DENIAL OF PLAINTIFF’S APPLICATION FOR
TENuRE
Next, Plaintiff argues that summary judgment should not have been granted on his claim
that Provost Alutto denied Plaintiff tenure because of Plaintiffs protected conduct. We review a
district court’s grant of summary judgment de novo. See Shazor v. Prof’l Transit Mgmt., 744
F.3d 948, 955 (6th Cir. 2014). Summary judgment is appropriate “if the movant shows that there
2
P laintiff attempts to make a portion of his argument by citing the briefs he filed in the
district court. We have expressly prohibited this type of advocacy. See Northland Ins. Co. v.
Stewart Title Guar. Co., 327 F.3d 448, 452—53 (6th Cir. 2003).
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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). “In reviewing the district court’s grant of summary judgment, this
Court must view all the facts and the inferences drawn therefrom in the light most favorable to
the nonmoving party.” Birch v. Cuyahoga County Probate Court, 392 F.3d 151, 157 (6th Cir.
2004).
A. Cat’s Paw Liability and But-For Causation
Plaintiff does not argue that Alutto was personally motivated by retaliatory animus when
he rejected Plaintiff’s application for tenure. Rather, Plaintiff asserts that Alutto was the
unwitting tool of those who did harbor retaliatory animus—in other words, Plaintiff advances a
cat’s paw theory. The Supreme Court has recently defined this so-called “cat’s paw liability” as
follows: “if a supervisor performs an act motivated by [discriminatory] animus that is intended
by the supervisor to cause an adverse employment action, and if that act is a proximate cause of
the ultimate employment action, then the employer is liable.”
3 Staub v. Proctor Hosp., 131 5.
Ct. 1186, 1194 (2011) (footnote omitted).
The statute at issue in Staub required that the discriminatory action be a “motivating
factor” in the resulting adverse employment action. See id. at 1190—91. We have thus directly
applied Staub in Title VII discrimination actions, which are governed by a similar causation
standard. See Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 351 (6th Cir. 2012). But during
the pendency of this appeal, the Supreme Court established that Title VII retaliation claims
require but-for causation; that is, “proof that the unlawful retaliation would not have occurred in
3
S ince we hold that Plaintiff cannot establish cat’s paw liability, we need not consider
whether and to what extent cat’s paw liability fits into the framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Diaz v. Tyson Fresh Meats, Inc., 643 F.3d 1149, 1151
(8th Cir. 2011) (discussing, but not resolving, the “uneasy marriage” between Staub and
McDonnell Douglas).
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the absence of the alleged wrongful action or actions of the employer.” Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). The heightened standard of causation in Title VII
retaliation claims forces us to tailor the Staub rule to fit in this context, but the required alteration
is straight-forward. If the retaliatory actions of nondecisionmakers
4 were nothing more than a
motivating factor of Alutto’s decision, then retaliation could not have been a but-for cause of the
ultimate employment action. Therefore, we hold that cat’s paw liability will lie in this case if:
(1) nondecisionmakers took actions intended to deny Plaintiff tenure in retaliation for his
protected conduct, and (2) those retaliatory actions were a but-for cause of Alutto’ s decision to
deny tenure.
5 This is the same standard courts have announced when applying Staub to claims
for age discrimination—claims that require the plaintiff to establish but-for causation. See Sims
v. MVM’ Inc., 704 F.3d 1327, 1336 (11th Cir. 2013); Simmons v. Sykes Enters., Inc., 647 F.3d
943, 949—50 (10th Cir. 2011).
The but-for standard has an important impact in “overdetermined” cases—cases where
“two forces create an injury each alone would be sufficient to cause.” Nassar, 133 S. Ct. at 2546
(Ginsburg, J., dissenting). If a plaintiff is not required to establish but-for causation, she may
still be able to recover from a tortfeasor whose conduct was sufficient, but not necessary, to
4
S taub did not resolve whether cat’s paw liability can be predicated on actions taken by
co-workers, rather than supervisors. See Staub, 131 S. Ct. at 1194 n.4; Shazor v. Prof’l Transit
Mgmt., 744 F.3d 948, 956 (6th Cir. 2014). In the context of tenure decisions, “the line between
coworker and supervisor is significantly blurred,” Seoane II, 2012 WL 6138661, at *15, and
even a few colleagues can wield dispositive influence over a plaintiff’s academic future. See
Gutzwiller v. Fenik, 860 F.2d 1317, 1327 (6th Cir. 1988). We assume in this opinion that cat’s
paw liability can spring from the actions of Plaintiffs colleagues in the COP. Plaintiffs claim
still fails.
5
P laintiff points to our nonprecedential decision in Bishop v. Ohio Department of
Rehabilitation and Corrections, 529 F. App’x 685 (6th Cir. 2013), and asserts that the proximate
cause standard applies to his cat’s paw theory. Bishop was decided less than three weeks after
Nassar, and as a result, the panel did not have the opportunity to fully consider the interplay
between Nassar and Staub.
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cause her injury. See Restatement (Second) of Torts § 432(2). Not so where the standard is but-
for causation. Following Nassar, “a Title VII plaintiff alleging retaliation cannot establish
liability if her firing was prompted by both legitimate and illegitimate factors.” Nassar, 133 S.
Ct. at 2546 (Ginsburg, J., dissenting). Plaintiff’s claim will therefore fail if Alutto decided to
deny tenure based on factors untainted by retaliatory animus, even if Alutto’s decision was also
based on factors that were tainted by retaliation. So long as the untainted factors were sufficient
to justify Alutto’s ultimate decision, the University will be entitled to summary judgment.
B. Plaintiff’s Dossier
Alutto made his decision to deny Plaintiff tenure based on significant portions of
Plaintiff’s dossier: the fourth-year review evaluating Plaintiff’s progress as a professor, the
internal and external review letters, Plaintiff’s January 5, 2009 letter pointing out the flaws in the
tenure review process, and the UPTC report. For Plaintiff to prevail, he must establish a genuine
issue of fact that most, if not all, of these portions of his dossier were tainted. He cannot.
1. Fourth-year review
The record reveals that Plaintiff’s fourth-year review was not a vehicle for prohibited
retaliation. The fourth-year review was something of a mini-tenure review with a similar
number of steps. For the first step, Dr. William Hayton, an Associate Dean at the COP, prepared
a letter summarizing Plaintiff’s teaching, scholarship, and service. Hayton criticized the amount
and quality of Plaintiff’s scholarship, and noted that it was unclear if Plaintiff’s finding came
from peer-reviewed sources. Hayton recommended a positive fourth-year review, but noted that
“issues of significant concern require attention and should be resolved by the time of evaluation
for tenure.” (R. 38-8, Fourth-Year Review, at 1583.) Plaintiff does not accuse Hayton of
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harboring a retaliatory animus—important because Hayton’s critiques were echoed again and
again by internal and external reviewers of Plaintiff’s record.
With Hayton’ s letter and letters from four outside reviewers in hand, the COP faculty
discussed and voted on Plaintiffs record. Twelve faculty members voted for a positive review;
eight voted no. Dr. James Dalton, the Chair of the Tenure Committee (and another person whom
Plaintiff has not accused of harboring a retaliatory animus), summarized the faculty’s discussion
in a letter to Brueggemeier dated March 14, 2007. The letter noted that the faculty’s discussion
of Plaintiff had been mixed, and that even though the vote had been positive, several areas
required improvement before tenure review. Like Hayton, the faculty believed that Plaintiff
needed to publish more research in a clearly defined area of specialization. Also like Hayton, the
faculty believed that Plaintiff should work to obtain more funding from competitive funding
sources.
Finally, Brueggemeier wrote his own letter to the University Provost summarizing
Plaintiffs achievements. Brueggemeier’ s recommendations were essentially indistinguishable
from those of Hayton and the COP faculty—he recommended a positive fourth-year review
“with very clear expectations for critical improvements in teaching and research prior to the
tenure and promotion decision.” (Id at 1573.) Brueggemeier parroted the suggestions for
Plaintiffs future research and, like Hayton and the faculty, stressed the need to obtain funding
from competitive, peer-reviewed sources. However, unlike Hayton or the faculty, Brueggemeier
also urged that these sources of funding should be federal agencies. Plaintiff points out that
federal funding, which is considered the gold standard in the field, constitutes an unreasonable
expectation for a young professor. Indeed, Plaintiffs peers at the COP were not required to gain
federal funding at similar stages of their career.
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But Plaintiff overstates matters when he attempts to cast Brueggemeier’s push for federal
funding as evidence of retaliation. Brueggemeier’ s letter was almost entirely consistent with the
other evaluations that, combined, made up Plaintiffs fourth-year review. Brueggemeier’ s letter
also meshes with the numerous other reviews Plaintiff received during his time at the COP.
Plaintiffs research was repeatedly deemed either unsatisfactory or in need of improvement.
Only in his 2007 and 2008 reviews did Plaintiff receive “good/excellent” marks on his research.
There is no meaningful distinction between Brueggemeier’ s letter and the opinions of Hayton,
Dalton, the external reviewers, and the COP faculty. Plaintiff does not argue that Hayton,
Dalton, and many of the COP faculty members were attempting to retaliate against him. We fail
to see how Brueggemeier’s substantively identical letter could have been a vehicle for retaliation.
2. External review letters
Next, Plaintiff cannot show that the external review letters were products of retaliation.
For these letters to assist Plaintiff, he must show that nondecisionmakers at the COP selected
Plaintiffs external reviewers with the intent that those reviewers would report negatively about
Plaintiff, perhaps because the external reviewers were biased against Plaintiff, or perhaps
because they were invariably scathing in their assessments of others’ work. But there are simply
too many weak links in this causal chain.
Buerki and the other COP faculty members who had the responsibility of choosing
external reviewers selected fifteen scholars. Only seven responded, and most of them wrote
positively. In other words, Plaintiffs colleagues only managed to select three negative
reviewers, at most, out of fifteen—hardly circumstantial evidence of retaliatory intent. Plaintiff
asserts that the most negative external reviewers were personally biased against Plaintiff because
of their association with Plaintiffs former colleague Dr. Craig Pedersen. But Plaintiff has not
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produced any evidence, apart from his own speculation, that either the external reviewers were in
fact biased, or that the COP faculty that selected them knew of this hypothetical bias.
Furthermore, Plaintiff had the opportunity to select his own external reviewers, who presumably
would have had positive things to say. Plaintiff passed up the chance to help himself. Finally,
Plaintiff contends that the selection of reviewers violated University rules, since Plaintiff was not
told who the reviewers were before they were selected. The University’s rules did not require
this procedure; they only suggested it.
The most scathing external review letters did nothing more than parrot the scathing
reviews that Plaintiff had received internally from numerous sources over several years. Plaintiff
cannot point to substantive or procedural issues showing that the external letters were intended
by Plaintiffs colleagues to ensure that he did not receive tenure in retaliation for protected
conduct.
3. Internal review letters
Nor can Plaintiff show that the internal letters from Buerki, Young, and Brueggemeier
were tainted by retaliatory animus. Buerki’s October 10, 2008 letter simply summarized
Plaintiffs accomplishments in teaching, scholarship, and service, plus the letters that had been
received from external reviewers. The letter also included opinions about Plaintiff from five
other faculty members, including one who collaborated extensively with Plaintiff. Plaintiff
cannot point to evidence—as opposed to speculation—suggesting that these faculty members
were biased against him. Young’s letter is also bereft of retaliatory intent. Like the Buerki
letter, Young simply summarized the opinions of others—in Young’s case, the COP faculty at
the tenure meeting. Plaintiff argues that the retaliatory remarks Balkrishnan made during the
meeting tainted the proceedings and therefore Young’s letter. But while Balkrishnan’s remarks
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were indisputably retaliatory, Plaintiff has not proffered any evidence that they altered the vote
of a single faculty member. Finally, Brueggemeier’s December 17, 2008 letter does not reveal
retaliatory animus. Brueggemeier’s review of Plaintiff’s teaching and service was generally
positive, and his critiques of Plaintiffs research mirrored those that had been levied against
Plaintiff since his fourth-year review. Brueggemeier concluded that Plaintiff’s funding had been
inadequate—not because the funding sources were not federal agencies, but because they were
not obviously peer-reviewed.
C. Retaliation Was Not a But-For Cause of Alutto’s Decision
After all of Plaintiff’s invective, he cannot show that any significant portion of his dossier
was tainted by retaliatory animus. Since the factors that contributed to Alutto’ s decision were
not retaliatory, it follows that Alutto’s decision was not caused by retaliatory actions of
nondecisionmakers. See Staub, 131 S. Ct. at 1193.
The bevy of collateral arguments Plaintiff presents cannot distract us from this
conclusion. Plaintiff first asserts numerous procedural errors in the tenure review process, but
even if the COP failed to follow some University procedures, these errors did not affect the
elements of the dossier that actually influenced Alutto’s decision. Second, Plaintiffs argument
that Alutto was not qualified to review Plaintiffs dossier is not well taken. The University has
adopted tenure procedures that apply universally to a broad spectrum of academic disciplines.
We will not pass judgment over the propriety of this system of academic review as a whole in
this single case. Third, the district court’s treatment of Plaintiff’s proffered expert does not
require reversal. Plaintiff does not argue that the district court made any error of law by
excluding admissible portions of the expert’s testimony. Plaintiff simply asserts that the district
court failed to properly consider the expert’s testimony. Even if Plaintiffs contention were
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correct, it is moot. See Ralph ex rel. Ralph v. Nagy, 950 F.2d 326, 329 (6th Cir. 1991). We have
fully considered the expert report and deposition. Neither supports reversing the district court’s
judgment.
Finally, Plaintiff relies heavily on our opinion in Gutzwiller v. Fenik, 860 F.2d 1317 (6th
Cir. 1988), but this case does not ultimately support Plaintiff. The plaintiff in Gutzwiller was a
female professor of classics at the University of Cincinnati who was on the tenure track. See Id.
at 1320. She received high marks on her teaching and committee work, and had a book accepted
for publication, but the plaintiffs male superiors placed higher demands on her scholarly output.
See Id at 1320—21. When the plaintiff came up for tenure, her superiors rejected most of her
suggested external reviewers and selected some that the plaintiff explicitly warned against. See
Id. at 1322. The department then voted to deny tenure. See Id. at 1322—23. The dean, however,
noted that most of the evaluations of the plaintiffs scholarship had been laudatory and voted to
approve tenure. See Id at 1323. The provost ultimately overruled the dean and denied tenure
after considering more evidence from the department. See Id. The plaintiff sued numerous
members of the University, including individual members of the Classics Department who
considered her application. A jury found that two of the plaintiffs supervisors in her department
had denied her tenure because of her sex. See id. at 1324. There was no evidence that these
superiors had required male professors to publish two books before receiving tenure—in fact, the
plaintiff had met or exceeded the number of publications of other professors who received
tenure. See id. at 1326. Most damning, one supervisor claimed that the plaintiffs work was not
“rich enough or productive enough,” but “the evidence showed that he had not even read [the
plaintiff SI manuscript at the time he informed her of th[eI additional requirement.” Id.
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If Plaintiffs claims for pre-2009 conduct were still viable, Gutzwiller would have
relevance. But Gutzwiller has nothing to say about applying the elements of a cat’s paw claim to
a tenure decision. Plaintiff points to the parallel between the supervisor in Gutzwiller, who did
not read the plaintiff’s research, and Alutto, who likewise did not to read Plaintiff’s articles. In
Gutzwiller, this evidence was used to support the conclusion that the supervisor was motivated
by discrimination. Plaintiff has levied no such charge against Alutto. Since Plaintiff argues that
Alutto was simply a cat’s paw for the retaliation of others, Alutto’ s own motivations are
irrelevant.
One teaching of Gutzwiller is relevant to this case. We stressed in Gutzwiller that a court
must not sit as a “super tenure committee.” Id. at 1326 (quotation marks omitted). Indeed,
“federal courts have traditionally been wary of interfering with academic tenure decisions.”
Ford v. Nicks, 866 F.2d 865, 875 (6th Cir. 1989). In order to stave off summary judgment, it is
not enough for Plaintiff to show that he should have received tenure. Plaintiff must create a
genuine issue of fact that retaliation was a but-for cause of Alutto’ s denial of tenure. The
University’s tenure procedures are lengthy, detailed, and stringent. They attempt to ensure that
invidious or petty motives of individual faculty members do not affect the University’s ultimate
decision concerning the decades-long commitment it makes to tenured faculty. Conspiratorial
theories based on little more than speculation cannot save a claim from summary judgment. See
Muihall v. Ashcroft, 287 F.3d 543, 552 (6th Cir. 2002). Plaintiff cannot show that such an
extensive conspiracy to deny him tenure existed.
III. TITLE VII RETALIATION: PLAINTIFF’S INTERNAL APPEAL
Finally, I turn to Plaintiffs retaliation claim arising out of the FHC’s dismissal of
Plaintiffs internal appeal. The district court held that the denial of an internal appeal from an
adverse employment action was not a cognizable act of retaliation. See Seoane II 2012 WL
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6138661, at *10_13. This legal conclusion, which we review de novo, see Doe v. Salvation
Army in the US., 531 F.3d 355, 357 (6th Cir. 2008), is wrong.
The anti-retaliation provision of Title VII prohibits “discriminat[ing]” against an
employee because that employee had engaged in protected conduct. 42 U.S.C. § 2000e-3(a). An
employer’s action constitutes discrimination if “a reasonable employee would have found the
challenged action materially adverse, which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Burlington N &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotation marks omitted). As a result of this
standard, “a plaintiffs burden of establishing a materially adverse employment action is less
onerous in the retaliation context than in the anti-discrimination context.” Michael v. Caterpillar
Fin. Servs. Corp., 496 F.3d 584, 595—96 (6th Cir. 2007).
Once Alutto denied Plaintiffs application for tenure, Plaintiff sought relief through the
University’s internal appeals process. Plaintiff claims that he was denied the benefit of these
procedures—that the FHC dismissed his appeal in retaliation for Plaintiffs internal complaint
and federal lawsuit. In effect, Plaintiff argues that the FHC failed to investigate his complaint
concerning the tenure review process, which Plaintiff claimed was rife with discriminatory and
retaliatory animus. A failure to investigate a complaint can constitute an act of retaliation under
some circumstances—for example, “if the failure is in retaliation for some separate, protected act
by the plaintiff,” apart from the uninvestigated complaint itself. Fincher v. Depository Trust &
Clearing Corp., 604 F.3d 712, 722 (2d Cir. 2010) (citing Rochon v. Gonzales, 438 F.3d 1211,
1219—20 (D.C. Cir. 2006)). Plaintiff has alleged precisely this type of conduct. Plaintiff asserts
that the FHC failed to investigate his complaint in retaliation for Plaintiffs earlier complaints
about national-origin discrimination, plus the 2007 lawsuit. Plaintiffs accusation is of particular
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note since we have stressed the importance of internal appeal processes in the context of
university tenure decisions. See Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542, 545 (6th
Cir. 1999), overruled in part by White v. Burlington N & Santa Fe Ry. Co., 364 F.3d 789 (6th
Cir. 2004) (en banc). At the very least, there is a factual dispute as to whether a tainted internal
appeal “well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington N, 548 U.S. at 68 (quotation marks omitted).
The district court reached the opposite conclusion based on its finding that the FHC did
not have the power to order a new tenure process. The court believed this to be the relevant
question based on two cases that addressed claims arising out of grievance procedures following
denial of tenure: Delaware State College v. Ricks, 449 U.S. 250 (1980), and Lever v.
Northwestern University, 979 F.2d 552 (7th Cir. 1992). The grievance procedures in these cases
were purely remedial, and therefore their outcomes were not independently cognizable
employment actions. See Ricks, 449 U.S. at 261; Lever, 979 F.2d at 556. But neither of these
cases involved a claim for Title VII retaliation, and neither employed the standard from
Burlington Northern. See Ricks, 449 U.S. at 254; Lever, 979 F.2d at 553. “The ‘materially
adverse action’ element of a Title VII retaliation claim is substantially different from the
‘adverse employment action’ element of a Title VII race discrimination claim.” Laster v. City of
Kalamazoo, 746 F.3d 714, 719 (6th Cir. 2014). As a result, neither Ricks nor Lever provides
relevant instruction for this case.
Despite the district court’s legal error, a majority of this panel affirms the court’s
judgment on the basis that Plaintiff failed to develop this argument either below or on appeal.
While I disagree with this assertion, I note that the panel’s majority raises no dispute with the
lead opinion’s legal analysis of Plaintiff’s claim. Contrary to the majority’s holding on this
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issue, I would therefore remand to allow the district court to consider whether the retaliatory acts
of nondecisionmakers were a but-for cause of the FHC’s denial of Plaintiff’s internal appeal.
CONCLUSION
For the reasons set forth above and in the opinion that follows, we AFFIRM the district
court in full.
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Alice M. Batchelder, Circuit Judge, concurring in part and dissenting in part.
I concur in this opinion except for Part III of the DISCUSSION section, “Title VII
Retaliation: Plaintiffs’ Internal Appeal.” The Appellant devotes one brief and cursory paragraph
of his brief, to what he referred to in his factual statement as “Item 8” of OSU
s allegedly
t
discriminatory actions. He repeats this cursory paragraph, without any further development or
argument, in his reply brief. It is this item that the majority opinion frames as whether the denial
of an internal appeal can be a cognizable act of retaliation under the new standard for an adverse
material action in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).
But Appellant never developed this argument in the district court or on appeal, and thus it is
waived. As we have repeatedly held, “[w]e require parties to develop their arguments in a non-
perfunctory manner at the risk of having them deemed waived.” United States v. Catlan, 499
F.3d 604, 606 (6th Cir. 2007). We have cautioned that “{i]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation, are deemed waived,” and
that “[i]t is not sufficient for a party to mention a possible argument in the most skeletal way,
leaving the court to . . . put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995—96 (6th
Cir. 1997) (internal quotations and citation omitted); see also United States v. Robinson, 390
F.3d 853, 885-86 (6th Cir. 2004); United States v. Reed, 167 F.3d 984, 993 (6th Cir. 1999)
(invoking this rule to deem an issue forfeited). In my view, because Appellant failed to raise and
develop the issue, he has waived it.
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Enrique Seoane-Vazquez v. The Ohio State University
Combined Opinion