NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0523n.06
Nos. 16-4084/4086
FILED
UNITED STATES COURT OF APPEALS Sep 12, 2017
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
JEAN LIFTER; SHELDON GELMAN, )
)
Plaintiffs-Appellants/Cross-Appellees, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE
CLEVELAND STATE UNIVERSITY; CRAIG )
NORTHERN DISTRICT OF
BOISE, )
OHIO
)
Defendants-Appellees/Cross-Appellants. )
)
BEFORE: BOGGS, GRIFFIN, and WHITE, Circuit Judges.
BOGGS, Circuit Judge. This is a First Amendment retaliation case. Married plaintiffs
Sheldon Gelman and Jean Lifter were employees of the Cleveland-Marshall College of Law.
When, after the 2008 financial crisis, the law school faced mounting pressure to trim class sizes
and reduce enrollment, Gelman, a tenured professor, spearheaded a successful union-organizing
campaign among the law faculty. The following spring, Gelman and several other pro-union
faculty received a low and allegedly symbolic $666 merit raise. Just over a year later, Lifter’s
employment was terminated. Both filed claims against the university and law-school dean Craig
Boise under 42 U.S.C. § 1983, alleging that Gelman’s raise, his being deprived of committee
appointments, and Lifter’s termination constituted retaliation for Gelman’s protected First
Amendment conduct. The defendants filed a motion for summary judgment, which the court
granted. The plaintiffs appeal the district court’s decision, and the defendants have filed a cross-
Nos. 16-4084/4086, Lifter v. Cleveland State University
appeal. For the following reasons, we affirm the district court as to Gelman, dismiss Lifter’s
claim for lack of standing, and dismiss the defendants’ cross-appeal as moot.
I
A
In June 2011, Cleveland State University (CSU) appointed Defendant Craig Boise as
Dean of the Cleveland-Marshall College of Law. During this time, law schools nationwide were
experiencing a sharp decline in the number of applicants, and the Cleveland-Marshall College of
Law was no exception. Both parties agree that the law school’s application decline exceeded
national averages during this time period. See Lifter v. Cleveland State Univ., 202 F. Supp. 3d
779, 781 (N.D. Ohio 2016).
In an effort to combat declining applicant numbers and boost its standing in the ranking
of law schools published by U.S. News & World Report, Boise announced a “140 Plan” in April
2012. Ibid. The plan called for a reduction of the law school’s entering class size from 200 to
140 students, along with corresponding expense reductions, faculty attrition, and a tuition
increase. As originally proposed, however, the plan did not call for any faculty or staff reduction
in excess of the anticipated rate of attrition.
Boise’s “140 Plan,” in conjunction with the diminishing rate of law-school enrollment led
Plaintiff Sheldon Gelman, then a tenured professor at the law school, to consider unionizing the
faculty. Gelman, with Boise’s permission, began holding meetings at the law school in April
2012 with faculty members interested in unionizing. Ibid. Faculty debated the merits of
unionizing over the summer, and by November 2012, Gelman announced that the union-
organizing drive at the law school was a success. Ibid. CSU President Ronald Berkman and
Boise agreed to “take no hard stance against the unionization effort,” and Gelman indicated that
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a request had been made to the State Employment Relations Board (SERB) to recognize the
bargaining unit as the exclusive representative of the law-school faculty. Id. at 781-82. By June
2013, SERB granted the petition and certified the bargaining unit.
Although Boise never formally opposed the faculty-unionization effort, he did make it
clear that he felt that it was causing friction within the law school. In a November 28, 2012
faculty meeting, Boise expressed feeling a “continuing disconnect” between himself and some
members of the faculty. Boise specifically criticized Gelman at the meeting for allegedly
approaching one of his staff members and asking for information to “go after” Boise. Id. at 781.
“Shame on you Sheldon Gelman,” Boise declared, “Shame on you.” Boise called for unity at the
law school, reminding faculty members that “[w]e have students to teach and a reputation to
uphold.” After the meeting, several professors wrote Boise to express dismay at Boise’s “public
attack on Prof. Gelman at the faculty meeting,” which they felt “should have been dealt with in
private between [Boise] and [Gelman].”
B
In the spring of 2013, following Gelman’s successful union drive, Boise determined the
amount of merit raises that faculty members would receive in the following year. Gelman, as
well as several other faculty members involved in organizing the law-faculty union, received
raises of $666, while other faculty members received raises of $3,000 and $5,000.1 In a June 17,
2013 email, Boise explained that the pay raises were the result of a meritocratic mathematical
calculation:
I initially set two merit raise categories based on faculty performance in the areas
of scholarship, teaching and service, with the most meritorious faculty receiving a
1
The pay-raise divide did not fall precisely on pro-union and anti-union lines. Both parties agree
that several faculty members who were not active in unionizing received the $666 raises and that several
faculty members who were active in unionizing received raises of $3,000 and $5,000.
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merit increase of $6,000 each, and the next most meritorious group of faculty
receiving $3,000 each. Given a total merit pool of 2%, this would have resulted
in about 14 of the 35 non-administrative faculty members not receiving any
increase at all. Although these 14 faculty members did not merit a raise on the
order of that received by the remaining 21 faculty members, I was reluctant to not
provide any pay increase to 10 of these faculty members, as most faculty
members received at least a $500 merit increase in FY13. Accordingly, I asked
my Budget Director, Jeane White, to reduce the top merit raise to $5,000 and
divide the surplus among the 10 faculty members to achieve a merit increase close
to $500 per faculty member. After calculating all merit raises and two equity
adjustments, the resulting merit amount was $666 per faculty member.
Id. at 782.
Although Boise’s subsequent explanations differ slightly from this account,2 his overall
narrative has remained essentially the same. In March 2013, Boise ranked the faculty based on
information that they had provided him regarding their scholarship production, teaching, and
service to the community. Gelman received two points for publishing one article, one point for
his teaching, and zero points for his service.3 Gelman’s total of three points left him in the
bottom tier of merit raises. According to the initial calculation of the merit raises, which Boise
submitted to CSU on March 29, individuals in this bottom tier were to receive raises of $727.4
Four days after Boise submitted his proposal, he was informed that he needed to recalculate the
merit raises because he relied on an inaccurate merit-pool figure.5 One day later, Boise
2
In his brief and in his declaration submitted to the court below, Boise’s account omits any
reference to an initially proposed $6,000 merit raise. Rather, Boise mentions only the merit-raise tiers of
$3,000 and $5,000. See Boise’s Br. at 32.
3
Gelman alleges in his complaint that Boise refused to appoint him to several faculty committees
in retaliation for his union-organizing activities, resulting in his low service score.
4
Boise’s calculation was based on a raise pool of $102,569, which represented 2.5% of the total
salaries of the law-school faculty. Lifter, 202 F. Supp. 3d at 789. Boise created merit-raise tiers of
$3,000 and $5,000 for the top-ranked faculty and then divided the rest of the pool among the remaining
faculty.
5
The initial figure had included the salary of a faculty member whose employment had been
terminated. With his salary removed, the total merit-pool decreased by $3,067.
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submitted a recalculated proposal in which the faculty members in the bottom tier received raises
of $666. According to Boise, he arrived at that figure by reducing one clinical faculty member’s
raise by ten percent, reducing the raises of three faculty members in the lowest tier from $727 to
$0, and subtracting the remaining reduction from the faculty members in the lowest tier. These
additional equitable adjustments were designed to “incentivize outstanding performance” by
requiring the faculty members in the lowest merit tier to shoulder the brunt of this last reduction
in the merit-raise pool.
Gelman remained at the law school until 2015, when Boise offered him and other faculty
members an incentive buyout of approximately $100,000 to retire.
C
Despite implementation of Boise’s “140 Plan,” the number of applicants to Cleveland-
Marshall College of Law continued to plummet. Enrollment at the law school similarly suffered.
By the fall of 2015, the number of student credit hours taken at the law school had decreased by
28% since 2011. Ibid. This marked the continuation of a trend in declining student enrollment
at CSU that traces back over a decade. Ibid.
Because the law school’s annual budget is tied to student enrollment, falling enrollment
numbers led to projected budget shortfalls. Every college at CSU was required to submit its
annual budget for the following academic year in April. In February 2014, the law school
projected an incoming-class size of just 90 to 100 students for the fall of 2014. Tim Long,
CSU’s Assistant Vice President of Finance and Technology, advised Boise that, given the small
projected class size, he needed to “examin[e] budget reductions of at least $1 million” for the
2014–15 fiscal year. Boise assembled a budget task force in February that included various
faculty and staff members. He apprised the task force of the law school’s financial situation,
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provided them a list of proposed budget cuts, and asked them to “identify budget reductions to
meet targets of $500,000 and $1,000,000” without increasing tuition “above the $25,000 level
identified in the 140 Plan.” The task force responded with a list of proposed budget cuts, but it
also noted that, despite budget reductions of over $1.2 million made to full-time instructional
faculty positions since 2011, total administrative salaries had actually increased over the same
period.
At roughly the same time that Boise created the budget task force, he also emailed
Associate Dean Mark Sundahl and requested information about the job duties of Plaintiff Jean
Lifter, the Assistant Dean for Academic Affairs and wife of Sheldon Gelman. There is some
ambiguity about the substance of Boise’s request, however. Both Boise and Sundahl claim that
Boise’s request took place in the larger context of a conversation regarding “where potential
personnel efficiencies at Cleveland-Marshall could be realized through reassigning or
eliminating job responsibilities,” and that it was Sundahl’s suggestion to fire Lifter because “her
duties [could be reallocated] among other existing staff members without disrupting operations.”
The record before us, however, only contains Sundahl’s email to Boise that includes Lifter’s job
responsibilities. Although Boise’s account is corroborated in the record by Sundahl’s affidavit,
Gelman and Lifter argue that the absence of any additional evidence pertaining to the larger
conversation regarding personnel efficiencies at the law school indicates that Boise targeted
Lifter in his plan to reduce administrative redundancies.
What is clear is that Boise spent most of April assembling his budget for the upcoming
fiscal year. By mid-April, applicant numbers were down 28% and offers were down 18%
compared to 2013. Based on these numbers and on a desire to compete with higher-tiered law
schools, Boise set a target class size of 125 students for the fall class. Based on this target class
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size, which was 15 students smaller than the previous year’s class, Boise determined that
$735,000 needed to be cut from the law school’s budget. To reach this goal, Boise accepted all
of the task force’s recommendations that resulted in immediate savings. This included reducing
travel expenses, reducing summer-research grant support, reducing the number of adjunct-taught
courses, and eliminating several administrative and clinical faculty positions by attrition. Some
of the task force’s recommendations, however, would not realize savings until the subsequent
fiscal year, particularly those that depended on personnel attrition for faculty members whose
contracts had not yet expired. With all of the taskforce’s immediate-savings recommendations
approved, Boise still found himself short of the $735,000 in cuts that he needed to meet the
reduced 125-student class size. To make up this shortfall, Boise decided to terminate Lifter’s
position and transfer her duties to other employees in her department, realizing $132,116 in
annual savings for the law school. Boise submitted his final budget, which included the
termination of Lifter’s position, in April 2014. Boise stated that the budget could not be changed
once submitted to CSU.
In June 2014, Lifter was notified that her position was terminated effective July 31, 2014.
Faculty and staff reacted negatively to the announcement of Lifter’s termination. On June 30,
2014, Boise wrote an email to the law-school faculty explaining his decision to terminate Lifter:
On the day that I was required to make a final decision about what I expected our
entering class for this year would be, we had received second deposits from 142
students. Based on our historical summer melt percentage, which has been
around 10%, that would leave us with 127 students this fall. Thus, that we would
enroll a class of 125 students seemed to be a prudent assumption to make based
on the information that was available when I had to make the final budget
decision.
These numbers are consistent with the law school’s enrollment data as of June 6, 2014, over a
month after “the day that [Boise] was required to make a final decision” about the following
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Nos. 16-4084/4086, Lifter v. Cleveland State University
year’s budget in April. In addition, Boise later admitted in a deposition that the “historic summer
melt percentage” was not 10% as he had originally stated, but in fact was closer to 3%. Boise
called these conflicting details a “misstatement” in his deposition, noting that they nevertheless
accurately reflected the law school’s 2014 admission data.6 Boise’s subsequent communications
with faculty, including the following statements made at a faculty meeting on September 11,
2014, and recorded in the meeting minutes, correct these numbers:
Dean Boise distributed the Admissions Report for the week ending April 11,
2014. (See attached.) He stated that the College of Law must submit our budget
to the administration on April 15, 2014. He must make the most realistic,
conservative projection based on the data before him at that time. He based the
projected class size on the numbers in this report. At that time we had 130 first
seat deposits. Our historic melt rate from first deposits is 17%. That means that
our projected class size on April 11th would have been 108 students. Even that
projection would have been overly optimistic since our applications were down
28% and there were only 142 other applications still with no action.
At no point during this time did Boise’s stated reason for terminating Lifter—i.e., out of
budgetary necessity—change.
D
In July 2014, Lifter filed a grievance with CSU after she learned of her impending
termination. This grievance was denied. Lifter and Gelman then filed Unfair Labor Practice
Charges with SERB over Lifter’s termination. They argued that Lifter was terminated by Boise
in retaliation for Gelman’s protected union-organizing activities. Lifter, 202 F.Supp.3d at 784.
SERB rejected both Gelman’s and Lifter’s charges. It found that neither Lifter nor Gelman
could establish a prima facie case of discrimination because they could not demonstrate a nexus
6
Specifically, Boise claims that the 10% figure, which was given to him by another CSU
employee, did not represent the historic summer-melt percentage, but rather the projected summer-melt
percentage for 2014. This projected figure closely matched the actual 2014 summer-melt percentage of
9%.
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between Gelman’s protected activities and Lifter’s termination and that, even if a prima facie
case could be established, CSU provided a “persuasive rebuttal . . . that [Lifter’s] layoff was
implemented due to the need to reorganize because of budgetary issues.”
Lifter and Gelman subsequently brought suit in federal district court under 42 U.S.C.
§ 1983, arguing that CSU and Boise violated their First and Fourteenth Amendment rights by
terminating Lifter’s employment, giving Gelman only a $666 raise, and curtailing his committee
appointments in retaliation for Gelman’s protected union-organizing conduct.7 After a short
period of discovery, both CSU and Boise filed a motion for summary judgment, arguing that
CSU was entitled to Eleventh Amendment immunity, Boise was entitled to qualified immunity,
the plaintiffs’ claims were meritless, and the plaintiffs were estopped from bringing suit by virtue
of their unsuccessful SERB complaints. The district court awarded summary judgment to the
defendants. It first noted that, by the time summary judgment was rendered, the plaintiffs had
conceded that CSU was entitled to Eleventh Amendment immunity. Id. at 781. It then held that
the plaintiffs’ SERB complaint was not preclusive because decisions of that administrative body
were not appealable to any state court. Id. at 785–87. Reaching the merits of the plaintiffs’
claims, the district court held that neither Lifter nor Gelman could make out a prima facie First
Amendment retaliation claim because neither could prove that Gelman’s protected conduct was a
“substantial or motivating factor” behind their respective adverse employment actions. Id. at
789, 793.
7
Although referenced in their complaint, the plaintiffs failed to advance any arguments regarding
an alleged Fourteenth Amendment violation in the court below. The district court therefore treated the
case solely as a First Amendment retaliation claim.
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Lifter and Gelman filed this timely appeal challenging the district court’s award of
summary judgment. CSU8 and Boise also filed a cross-appeal, arguing that, should we overturn
the district court on the merits, we should also overturn the district court’s determination that the
plaintiffs’ SERB complaint was not preclusive. Because the district court’s dismissal was
correct, we have no reason to reach the defendants’ cross-appeal regarding claim preclusion.
II
“We review a grant of summary judgment de novo, construing the evidence and drawing
all reasonable inferences in favor of the nonmoving party.” Hirsch v. CSX Transp., Inc.,
656 F.3d 359, 362 (6th Cir. 2011) (citation omitted). Our job is not “to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). This does not mean that even the
most insignificant factual dispute can defeat a party’s motion for summary judgment. “The 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.” Id. at 252. Stated
succinctly, “[w]here the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party, there is no ‘genuine issue for trial.’” Hirsch, 656 F.3d at 362 (alteration
in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)).
A
To establish a claim of retaliation for protected First Amendment conduct, a plaintiff
must make out the following three elements: “1) the plaintiff engaged in constitutionally
8
Although the district court indicated that the plaintiffs had conceded that CSU was entitled to
immunity, and although the plaintiffs do not challenge that determination on appeal, CSU is still listed as
a party to this suit. The defendants/cross-appellees request that, at a minimum, CSU be dismissed from
the litigation.
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Nos. 16-4084/4086, Lifter v. Cleveland State University
protected speech; 2) the plaintiff was subjected to adverse action or was deprived of some
benefit, and 3) the protected speech was a ‘substantial’ or a ‘motivating factor’ in the adverse
action.” Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891, 897 (6th Cir. 2001) (citing Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). A plaintiff need not
establish that the protected speech was the sole factor in the adverse action, but must show that
the adverse action was “motivated at least in part by the plaintiff’s protected conduct.” Handy-
Clay v. City of Memphis, 695 F.3d 531, 539 (6th Cir. 2012) (citations omitted). If the plaintiff
establishes a prima facie case, “the burden then shifts to the employer to demonstrate by a
preponderance of the evidence that the employment decision would have been the same absent
the protected conduct.” Benison v. Ross, 765 F.3d 649, 658 (6th Cir. 2014) (quoting Dye v.
Office of the Racing Comm’n, 702 F.3d 286, 294–95 (6th Cir. 2012)). Once the burden shifts,
summary judgment is still appropriate “if, in light of the evidence viewed in the light most
favorable to the plaintiff, no reasonable juror could fail to return a verdict for the defendant.”
Benison, 765 F.3d at 658 (quoting Dye, 702 F.3d at 294–95). There is no dispute that Gelman’s
union-organizing activities amount to protected speech and that the plaintiffs’ alleged injuries—
i.e., Gelman’s decreased raise and reduced committee appointments and Lifter’s termination—
satisfy the adverse-action element. The only issue contested on appeal is whether the plaintiffs
have produced an issue of material fact with respect to the third element. As it turns out,
however, Lifter’s claim suffers a fatal flaw that neither party raises but that dooms her appeal: a
lack of standing.
B
Gelman states in his complaint that CSU retaliated against him for exercising his First
Amendment rights “by reducing the size of the merit raise to which he was otherwise entitled, by
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depriving him of faculty committee appointments, and taking other adverse action against him.”
Construing the facts in the light most favorable to Gelman, he cannot show that his union-
organizing activities were a substantial or motivating factor in these alleged injuries.
Gelman first argues that Boise retaliated against him by failing to appoint him to several
law school committees, as Boise had done previously. Pl. Br. at 31. He argues both that his non-
appointment is an injury in and of itself, see Bryson v. Chicago State Univ., 96 F.3d 912, 916
(7th Cir. 1996) (holding that “[a] sudden loss of all committee responsibilities . . . would be a
loss of tangible employment benefits just as serious as moving an office to an undesirable
location, relocating someone’s personal files, or isolating the employee from others”), and that
his non-appointment affected his merit raise. Gelman points to three specific appointments that
he believes Boise denied him on account of his union organizing: the Awards Committee, the
Cleveland-Marshall Fund Committee, and his position as a Faculty Advisor to the Journal of
Law and Health. Although Gelman was, in fact, denied these appointments in the year following
his successful union-organizing campaign, the record does not indicate that they were denied on
account of Gelman’s protected First Amendment activity.9 To begin with, Boise appointed many
pro-union faculty members to these committees, including a pro-union faculty member who
replaced Gelman on the Cleveland-Marshall Fund Committee. In addition, Boise did appoint
Gelman to a search committee in the spring of 2013, after Gelman had successfully organized the
union campaign, and Boise hired the individual that the committee recommended. These facts
significantly undermine Gelman’s theory that Boise’s anti-union animus led him to take the
appointment actions against Gelman. Taken in conjunction with Gelman’s tepid support for his
claim, which consists of nothing more than the temporal proximity between his union organizing
9
We therefore need not decide whether Gelman’s lost committee appointments are injuries in and
of themselves.
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and the loss of his committee appointments, no reasonable juror could conclude that Gelman’s
lost committee appointments were the result of his union organizing.
Gelman next argues that, notwithstanding his committee appointments, Boise retaliated
against him by awarding him only a $666 raise. He advances two related arguments on this
point: 1) that his raise of $666 was an intentional invocation of the biblical “mark of the beast”
and was intended to punish him and other union organizers; and 2) that under Boise’s objective
metric, he deserved at least a $3,000 merit raise. Neither argument withstands the defendants’
motion for summary judgment.
First, there is no material issue of fact as to how Boise reached the $666 figure. After
ranking the law school faculty based on objective, self-reported indices of performance, he
divided the faculty into three performance tiers: a $5,000 merit-raise tier, a $3,000 merit-raise
tier, and a third “catch-all” tier. After distributing the larger merit raises, Boise divided the
remaining merit-raise pool among the third-tier faculty members. Evidence in the record
supports Boise’s account that, at least initially, third-tier faculty members were supposed to
receive $727, a number that has no biblical significance. Only after the merit pool was reduced,
and only after Boise made several minor equitable adjustments to the merit-raise distribution,10
did Gelman receive a raise of $666. Moreover, the $0 and $666 raises fell on pro-union and anti-
union faculty members alike, undermining Gelman’s claim that the raise amount was specifically
chosen to send a message to union organizers.
Second, there is no material issue of fact as to whether Gelman deserved a higher raise
under Boise’s performance metric. Gelman argues that Boise failed to count two of the three
10
Specifically, Boise reduced one clinical faculty member’s raise by 10% and reduced three
faculty members’ raises to $0. Of the three that Boise reduced to $0, two received an average ranking of
zero on Boise’s faculty-ranking chart and one had a deficient performance that “nearly resulted in the
Legal Aid Clinic she was responsible for administering being removed from Cleveland-Marshall.”
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articles that had been published or accepted for publication during the relevant time frame,
robbing him of merit points that would have placed him in the $3,000 merit-raise tier. Pl. Br. at
13. But it is undisputed that the merit raises were based on scholarship completed during the
past two calendar years, i.e., 2011 and 2012. Only one of the three articles that Gelman listed
was written and published in 2011 and 2012—one of the articles Gelman mentioned was
“[p]ublished in 2011, but written earlier,” and the other article was listed as “forthcoming, 2013.”
Gelman argues that Boise’s stringent metric—i.e., counting only those articles that were written
and published during a given timeframe—is discriminatory because some articles would never
count towards a professor’s merit evaluation. Even assuming this is true,11 nothing in the record
suggests that Boise applied this policy solely to Gelman. On the contrary, the record indicates
that Boise applied this policy to all faculty members. A flawed policy, if applied to all
evenhandedly, could not permit a reasonable juror to conclude that Boise was specifically
targeting Gelman or union supporters for punishment.
The facts of this case are similar to those of Scott v. Eastman Chem. Co., 275 F. App’x
466 (6th Cir. 2008). In Scott, we dealt with a sex-discrimination and retaliation claim brought by
a female employee who alleged that her employer failed to promote her in favor of promoting a
less-qualified male employee. Id. at 472–73. The employee also presented evidence showing
that, during the time period in question, her employer failed to promote a single female employee
to a management position. Id. at 469. Her employer responded to the latter claim with evidence
showing that promotions were made based on a numeric rating system that graded employees
from 1–9 on a range of subjective and objective criteria. Id. at 476–77. We held that the
11
It would appear that Boise’s metric would still count those articles over time. For example,
consider the uncounted article that Gelman listed as “forthcoming, 2013.” If Boise’s subsequent 2014
faculty-merit evaluation also looked at articles written and published in the previous two years—i.e., 2012
and 2013—then Gelman’s 2013 article, if written in 2012, would count in the following year’s merit
evaluation.
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employer’s rating system qualified as “a legitimate, non-discriminatory reason” for not
promoting her and that “others were promoted ahead of her because they were more qualified,
based on criteria which included both an objective as well as a subjective component.” Id. at
477.
Gelman’s situation is similar to the plaintiff’s in Scott—Boise used a numeric rating
system that only used objective criteria. If anything, Gelman’s case is weaker than the case we
confronted in Scott because there the claimant could show that the employer’s objective system
failed to promote a single member of the protected class during the relevant time period. Here,
several pro-union faculty members received substantial merit raises, including one faculty
member (Brian Ray) who served as the union’s chief negotiator and received the highest possible
raise.
Based on the foregoing, there is no issue of material fact as to the motivation behind
Gelman’s committee appointments or his 2013 merit raise. Therefore, we affirm the district
court with respect to Gelman’s retaliation claim.
C
Lifter also argues that her termination was retaliation for Gelman’s protected First
Amendment activity. Although not addressed by the district court and not briefed by either of
the parties, our precedent makes clear that Lifter lacks standing to raise a claim for the alleged
violation of her husband’s constitutional rights.12
“Standing is a threshold issue for bringing a claim in federal court and must be present at
the time the complaint is filed.” Moody v. Mich. Gaming Control Bd., 847 F.3d 399, 402 (6th
12
At oral argument, Plaintiffs’ counsel was questioned by the panel regarding the standing issue.
He argued that our decision in Benison, 765 F.3d 649, governed and permitted standing. Although that
case involved a similar retaliation claim advanced by a married couple, that panel never explicitly
addressed standing. The panel instead avoided the issue by referring to the plaintiffs with the collective
“they” throughout the opinion. We do not consider their pronoun usage to binding upon us here.
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Cir. 2017) (citation omitted). It is well established that federal courts have the power to
adjudicate only “cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1. That jurisdictional
limitation requires this court to ensure that the parties before it have “standing,” which is loosely
defined as a sufficiently strong “‘personal stake in the outcome of the controversy’ as to . . .
justify exercise of the court’s remedial powers on [a litigant’s] behalf.” Warth v. Seldin,
422 U.S. 490, 498–99 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
Although “[a] plaintiff may assert [her] ‘own legal rights and interests,’” she may not
generally sue to protect the constitutional rights of a third party. Moody, 847 F.3d at 402
(quoting Kowalski v. Tesmer, 543 U.S. 125, 129 (2004)). She may sue where she can prove
“(1) injury-in-fact to the plaintiff, (2) a close relationship between the plaintiff and the third party
whose rights [she] asserts, and (3) a hindrance preventing the third party from raising [her] own
claim.” Moody, 847 F.3d at 402 (citations omitted). There is little doubt that Lifter can satisfy
the first two requirements of third-party standing—her termination certainly qualifies as an
injury-in-fact, and her marriage to Gelman satisfies the close-relationship requirement. Where
Lifter fails, however, is in demonstrating that Gelman is prevented from raising his own First
Amendment claim.
Lifter’s failing mirrors that of the plaintiff in our recent decision in Moody, 847 F.3d 399.
There, a Michigan horse trainer brought a § 1983 suit against the state gaming control board,
alleging that he suffered unconstitutional retaliation when he was disqualified from racing on
account of his father’s legal action against the board. Id. at 400–02. We held that Moody could
not bring a retaliation suit on the basis of his father’s First Amendment rights because nothing
hindered his father from litigating his own rights in the first instance. Id. at 402–04. This was
the case even though Moody’s father could no longer bring his own First Amendment claim
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Nos. 16-4084/4086, Lifter v. Cleveland State University
because of a procedural barrier,13 and even though his father did not have the same incentive to
litigate the claim on his behalf. Id. at 403. Here, as in Moody, Gelman had every opportunity to
litigate the alleged violation of his First Amendment rights. His presence as a party in this
appeal is a testament to the fact that he did so. Simply because he failed to raise his wife’s
termination as a component of his own First Amendment retaliation claim in the complaint does
not permit Lifter to do so on his account. In order for Lifter to bring a First Amendment claim
arising from her termination, she could have asserted that the termination violated her First
Amendment right to association. See Sowards v. Loudon Cty., 203 F.3d 426, 433 (6th Cir. 2000)
(a spouse who alleged that she was fired as a result of her husband’s political speech allowed to
bring retaliation claim alleging her own First Amendment right to association). At oral
argument, Lifter repeatedly stated that she was only asserting her claim through Gelman’s First
Amendment speech and conceded that “there was no protected activity by Lifter.”
Because Lifter lacks third-party standing to raise a First Amendment retaliation claim
premised on her husband’s constitutional rights, the district court’s dismissal of Lifter’s
termination claim was correct.
III
For the foregoing reasons, we AFFIRM the district court’s dismissal of Gelman’s claim
and VACATE the grant of summary judgment on Lifter’s claim and REMAND with instructions
that her claim be dismissed for lack of jurisdiction. Because the plaintiffs’ claims fail, the
defendants’ cross-appeal is moot.
13
Moody’s father had filed a motion to amend his complaint to include the claim, but the district
court deemed it untimely. Moody, 847 F.3d at 403.
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