NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a1018n.06
No. 10-6123
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
L EE ANN T I

NCHER, Plaintiff-Appellant,

v.
L ARRY OWS L EY, et a l.,

Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR T H E W E S T E RN D I S T R I C T OF KENTUCKYAT L OUI SVI L L E

Be fore : SI L ER and GRI FF I N, Circuit J udg es; TARNOW, District J udg e. * TARNOW, District J udg e. Appellant L ee A nn Tincher appea ls the decision of the U nited
S t ates District Court for the Western District of Kentucky g ranting dismiss al to Def en d an t s i n Plaintiff’s suit alleg ing a violation of a proper ty interest in her employ

ment and a deprivation of her due proc ess rig hts.
For the re asons set for

th below, we AF F IRM the district court’s dismissal.

BACK GR OUND
Plaintiff L ee Ann Tincher is a former employ ee of Def endant University of L ouisvill e. She

was a Nurse Specialist in its Medica l School’s Depa rtment of Pediatrics, Division of Pediatric Endocrinolog y (“Ped- Endo”). She worke d there from 1987-1989 and from 1997-Nove mber 2007.
I n November 2007, Plaintiff’s emplo y m ent was terminated for two rea sons: (1) a three -day

The Honor able Ar

thur J . Tarnow , United States District J udg e for the Easter

n District of * Michig an, sitting by

desig nation.No. 10-6123, Tincher v. Owsley , et al. Pag e 2 suspension due to inappropriate comments she made ab o u t d o ct ors at the University ; and (2) compl aints from Ped-Endo patients’ pare nts alleg ing discourteous, rude, and unprofessional
behavior by Plaintiff towards them.
The University has a handbook (“Policy”) that descr ibes offe nses for which employ ees may be disciplined and the appea ls proce ss fo l l o wi n g empl oy ment termination. ( See R. 1., Ex

. A.)
Section PER 501 of the Policy descr ibes forms of disciplinary actions and lists specific offe nses for which employ ees of

the Univer sity

may be disciplined. I t states: Disciplinary action may take the form of oral war ning, written repr imand, suspension without pay , demotion or termination. The specific action taken will depend on the nature of the offe nse, the circ umstances surrounding the offe nse, and the employ ee’ s previous rec ord. Suspending an employ ee with pay or assig ning an employ ee to use his or her paid annual leave is not disciplinary action; the university rese rves the rig ht to take such action as it deems approp ri at e. Copies of written repr imands must be forwa rded to the H uman Resourc es De partment. Any personne l action to suspend or terminate a regular status staff member must be revie wed by the Affir

mative Action/Employ ee Relations Offic e, Human Resource s Depa rtment befor e any action is taken. In case s of t er m i n at i on, a pre- termination hear ing will be conducte d in the Human Resource s Depa rtment with a repr esentative of the Employ ee Re lations Office prese nt. ( Id. )
Section PER 504 of the Policy states the Univer sity

policies and proc edure s for appeals of suspensions and dismissals from employ ment. ( Id. ) PER 504 provides that:
An appea lable action may be reve rsed on appea l for only two rea sons: (1) there was no rea sonable basis for the university action; or (2) there was a substantial depar ture from university proce dures which prejudice d the employ ee ag ainst whom the action was take n. (R. 1, Ex . A, PER 504, § I I I .) I t goe s on to state:No. 10-6123, Tincher v. Owsley , et al. Pag e 3
I. P OLICY ST ATEMENT A re g ular status employ ee ma y appea l a suspension without pay , an involuntary

demotion, or a dismissal.

... IV. P ROCEDURES

... D. P re- Hearing Conf ere nces and Hearings 1. There shall be an initial pre- hear ing confe renc e at which the parties to the appea l and the hear ing office r in consultation wi t h t h e Associate Vice President for Human Resource s or his or her desig nee shall decide the issues to be addr essed in the appeal, t he advisors to be pre sent at the he aring s, the extent of the advisors’ p articipation at the hear ings, and any other rele vant proce dures. The final decision on these and all other proce dural matters rests with the Associate Vice Presi d en t for Human Resource s or his or her desig nee. 2. There shall be a hearing at which the employ ee and the university shall have the opportunity to p r e s e nt evidenc e reg arding the action taken, including t es t imony of witnesses. The hear ing shall be informal; strict rules of evidenc e shall not apply

. 3. The Associate Vice President for Human Resource s or his or her desig nee shall be p re s en t at all hear ings and pre- hear ing confe renc es. The Staff Grieva nce Offic er shall be informed in writing of all hearings and pre- hearing confe renc es and ma

y attend all such me eting s at his or her dir ection. 4. The employ ee and t he appropriate supervisor may ea ch h av e an advisor prese nt at all pre- hear ing conf e r e n c e s a n d hear ings. And advisor may only be: a. a lice nsed attorne y , or b. a univer sity

fac ulty or staff member. 5. I f an employ ee wishes to be assisted by an advisor but is unable to locate an advisor, the em ploy ee may contac t either the Staff Grieva nce Offic er or the Associate Vice President for Human Resource s or his or her d es i gn ee, who will help the employ ee locate a university fac ulty or staff member to act as the employ ee’ s advisor. The advisor may not participate in the prehear ings unle ss: a. the a dvisor is an attorney ; or b. the employ ee has rec eived permission for the advisor’s participation from the Associate Vice Presid e n t f o r H u man Resource s or his or her

desig nee. E. Hearing Of

fi cer ’s Report 1

. Af t er the hear ing has been completed, the hearing office r shall issu e a written re port which shall: a. summarize the evide nce pr esente d at the hea ring ; b. state the hear ing office r’s Finding s of Fa ct and the basis for those finding s; andNo. 10-6123, Tincher v. Owsley , et al. Pag e 4

c. state the heari n g o ffice r’s Recommendations for Action. This written repor

t shall be submitt ed to the Associate Vice President for Human Resource s or his or her desig nee w ithin ten wor

kday s of the completion of the hea ri n g, unless the Associate Vice President for Human Resourc es extends that time period F . Appeal Decision 1. The Hea

ring Offic er ’s R eport shall become the Appea l Dec ision seven workda y s afte r the Report has been submitt ed to the President or his or her desig nee, unless the President or his or her desig nee deter mines t h at t he Report, or a

ny part of it is not in the best interest of the university

. 2
. If the P resident or his or her designee deter m ines that the heari n g Of fi ce r’s Report , or any part of it, is not in the best intere st of the uni versity, the P resident or hi s or her designee shall issue an Appeal Dec ision wi thin seve n w orkdays of rec eipt of the Hearing Of fi cer ’s Report . 3. The Associate Vice President for Human Resource s or his or her desig nee shall forwa

rd the Hea

ring Offic er’ s Report or Appea l Dec ision, if any , to the employ ee, to employ ee’ s supervisors, and any other appropr iate individuals. 4. The Associate Vice President for Human Resource s or his or her desig nee s h al l b e in char g e of implementing the Appea l Dec ision and may take whateve r ac tion is necessar y to do so. 5. The App eal Dec ision shall be fi nal. (R. 1, Notice of

Removal, 9/09/2009, Ex hibit A, Part I , Complaint Ex hibit B) (e mphasis added)

. On October 15-16, 2008, a post-discharg e due proce ss hear ing was held befor e Mr. Michae l
Hea d, Assistant Attorney Gene ral, Offic e of Administrative Hea ring s. On October 27, 2008, Hea d
issued a repor

t and Recommende d Orde r. In the repor t, Hea d made finding s of fac t and conclusions
of law. Hea d sug g ested that the University reve rse Plaintiff’s discharg e of employ ment and reinstate
her w ith back pay

and bene fits.
On November 17, 2 0 0 8 , Def endant L arr

y L

. Owsley , acting as a desig nee of Def endant J ames Ramsey , reje cted the Recommende d Or d er an d aff irmed the Def

endant University ’s decision to
terminate Plaintiff’s e mploy ment. The de cision by

Owsley states: Upon revie w of the hear ing rec ord, F ind ings of F a ct , Conclusion s of Law , and Rec om m ended Order and the E x ce p ti o ns filed by counsel for the Department ofNo. 10-6123, Tincher v. Owsley , et al. Pag e 5 Pediatrics, I here by find that the Recommende d Orde r issued by the Hea ring Offic ers is not in the best interest of the University

. As the Presid ent’s Desig nee, it is my ruling that the Recommende d Orde r shall not be adopted as the Appea l Dec ision in this matter. Acc ording ly , I am aff irming the decision to term i n at e P eti tioner Tincher ’s employ

ment eff ective November 17, 2007, as previously rende red by the University

of L ouisvill e. (R. 1, Ex . C) (empha sis in original).
On August 14, 2009, Plaintiff filed a Complaint in J eff erson Circuit Court in Kent u ck y
ag ainst Def

endants University of L ouisvill e, L arr y Owsley , an d J ames Ramsey

. Plaintiff alleg ed deprivation of a prope rty

interest in her employ

ment and a violation of her rig ht to procedur al due
proce ss under the Fifth and Four teenth Amendments under a § 1983 theory of liability

. Def endants

remove d the action to the United States Di s t ri ct C o u rt for the Western District of Kentucky on September 8, 2009. Plaintiff a ppeale d that Court’s decision. The a ppeal is now be fore us. Standard of Review
“Whether an action is barr ed by the Eleventh Amendment is a question of law, and is
revie wed de novo .” Barton v. Summers , 293 F.3d 944, 948 (6th Cir. 2002) (interna l citation omitted). States “possess[] cer tain immunit ies from s u i t in

. . . fede ral courts.” Ernst v. Rising , 427 F.3d 351, 358 (6th Cir. 2005)

. The amendment applies to suits broug ht a g ainst a state ag ency

or state office rs, and the action is for rec overy of money from the state trea sury
. Martin v. Univ. of
Louisvill e , 541 F.2d 1171, 1173- 74 (6th Cir. 1976).
Public universities are protec ted under the Eleve nth Amendment. Hutsell v. Sayre , 5 F.3d 996, 999 (6th Cir. 1993). “Gove rnment off icials who per form discre tionary functions ar e entitled

to qualified immunit y from civil damag es suits arising out of the perf ormanc e of their officia l duties

. . . .” Salehp our v. Univ. of Tenn. , 159 F.3d 199, 207-08 (6th Cir. 1998) (interna l quotation andNo. 10-6123, Tincher v. Owsley , et al. Pag e 6 citation omitted).
Her e, Appellant brought suit ag ainst the University , Owsley i n his officia l capa city , and Ramsey in his officia l capa city

. Such claims wer e proper ly dismiss ed by the district court as barr ed by the Eleve nth Amendment. Appellant also broug ht claims ag ainst Ramsey and Owsley in their individual capa ci t i es
. Those claims wer e proper ly dismiss ed. “Whether the district court proper ly dismiss ed [a plaintiff’s]
claims pursuant to Rule 12(b)( 6) is a question of law, which we revie w de novo .” Hensley Mfg., Inc.

v. ProPride, Inc. , 579 F.3d 60 3 , 608-09 (6th Cir. 2009) (interna l quotation marks and citations omitted). “A complaint must contain a ‘short and plain statement of the clai m s h o wi n g that the pleade r is entitled to relief .’” Ctr. For Bio-Ethical Reform Inc. v. Nap o litano , 648 F.3d 365, 369 (6th Cir. 2011) (quoting Fe d. R. Civ. P. 8(a) (2))

. Although the standard does not r equire “deta iled
fac tual alleg ations,” it does require more than “labe ls and conclusions” or a “for mulaic rec itation of
the elements of a cause of action.” Hensley , 579 F.3d at 609 (interna l quotation marks omitted); see also Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). A complain t t h at s i mply “cr eate s a suspicion of a l ega l l y cog nizable rig ht of action is insufficient.” Bishop v. Lucent Tech., Inc. , 520 F.3d 516, 519 ( 6th Cir. 2008) (emphasis omitted).
Plaintiff failed to state claims for prospec t i ve injunctive relief ag ainst Def endants Owsley
and Ramsey

. Plaintiff states in her complaint that the actions wer e “[u] ndertaken under color of the
laws of the Commonwealth of Kentucky in the individual and officia l capa cities of

. . . Def endants Owsley and Ramsey

. . . .” Comp., at ¶10(a ). As noted by the district judge , the only fac tual alleg ation in the complaint with respe ct to Def endants Owsley and Ramsey is contained in para g raph
8 of the c omplaint. I t states:No. 10-6123, Tincher v. Owsley , et al. Pag e 7 On November 17, 2008, the Def endant L arr

y L

. Owsley , acting as the desig nee of the Def endant J ames Ramsey , reje cted the Finding s an d C o nclusions and “Rec ommended Orde r”

. . . and “af firmed” the decision of the Def endant University of L ouisvill e to discharg e the Plaintiff from her employ ment with it, orig inally made on November

17, 2007.
Id. at ¶ 8. Appellant’s statement that Def endants Owsley and R amsey aff irmed her terminati o n d o es
not establish fac ial plausibilit y of a constitutional violation. Be cause Appellant simply stated a leg al
conclusion with no fac tual support, we a ffirm the district c ourt’s dismissal.
CONCLUSION
For the re asons stated a

bove, we AF F IRM the dismissal by the district court.