Finally, Plaintiff claims that the adverse action element is satisfied because the
“Provost unilaterally reversed the finding of discrimination by his own Office of Equity
and Inclusion.” Doc. #13, PAGIEID #119-20. However, there is no indication from the
Amended Complaint that Provost Sudkamp made his decision to reject OEI’s findings
on the basis of Plaintiff's disability. See Doc. #10, 57, PAGEID #74 (“No explanation
was given by WSU for the determination made by Provost Sudkamp.”). Accordingly,
Plaintiff's disability discrimination claim under both the ADA and Rehabilitation Act must

be dismissed under Rule 12(b)(6).°

2. Retaliation
Both the ADA and Section 504 prohibit retaliation against any individual
because of his or her opposing practices made unlawful by the Acts or
otherwise seeking to enforce rights under the Acts. The Acts have a

similar scope and aim; for purposes of retaliation analysis, cases
construing either Act are generally applicable to both.

A.C. ex rel. J.C. v. Shelby Cty. Bd. of Educ., 711 F.3d 687, 696-97 (citations omitted).
To survive a motion to dismiss, Plaintiff must plausibly allege that: (1) she engaged in
protected activity; (2) Defendants knew of that activity; (3) Defendants took a materially
adverse action against Plaintiff; and (4) a causal connection exists between the
protected activity and adverse action. /d. at 697 (citing Gribcheck v. Runyon, 245 F.3d
547, 550 (6th Cir. 2001). “The burden of establishing a prima facie case in a retaliation
action is not onerous, but one easily met.” Nguyen v. City of Cleveland, 229 F.3d 559,

563 (6th Cir.2000). However, “[t]o be adverse, a retaliatory action must be enough to

5 As Plaintiff has failed to set forth a plausible claim under either the ADA or Rehabilitation Act, the Court
need not evaluate Defendants’ argument that Plaintiff's ADA claim is barred by the Eleventh Amendment.
Doc. #14, PAGEID #133-134 citing U.S. v. Georgia, 546 U.S. 151, 159, 126 S.Ct. 877, 163 L.Ed.2d 650
(2006); Tennessee v. Lane, 541 U.S. 509, 533, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004); City of Boerne,
521 U.S. 507, 520-21, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997)).

14


On December 1, 2017, Plaintiff filed an Amended Complaint against WSU and
Evans, raising a First Amendment Retaliation Claim, brought under 42 U.S.C. § 1983,
against Evans in her Official and Individual Capacities (Claim II). Doc. #10, I] 76-83,
PAGEID #77-78.° Plaintiff also claims that WSU engaged in disability-based
discrimination and retaliation in violation of the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12131 et seq. (Claim Ill) and Section 504 of the Rehabilitation Act
of 1973, 29 U.S.C. § 794 (Claim IV). /d., 1] 84-99, PAGEID #78-79. Plaintiff also
brings three state common law claims: breach of contract against WSU (Claim V);
intentional infliction of emotional distress (“IIED”) against Evans in her individual and
official capacities (Claim VI); and tortious interference with contract against Evans in her
individual capacity (Claim VII). /d., {{] 100-25, PAGEID #80-83. Plaintiff seeks
declaratory and prospective injunctive relief, as well as money damages. /d., PAGEID

#83.

I. LEGAL STANDARDS

A. Rule 12(b)(1)

“The objection that a federal court lacks subject-matter jurisdiction may be raised
by a party, or by a court on its own initiative, at any stage in the litigation[.]”. Arbaugh v.
Y&H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (citing Feb. R.
Civ. P. 12(b)(1)). “[T]he party invoking federal jurisdiction has the burden to prove that

[subject matter] jurisdiction [exists].” Global Tech., Inc. v. Yubei (XinXiang) Power

5 Plaintiff also brought, under 42 U.S.C. § 1983, a Procedural Due Process claim against WSU (Claim 1).
Doc. #10, {| 65-75, PAGEID #75-76. However, in her memorandum contra, Plaintiff abandons that
claim, conceding that such a claim is barred by the Eleventh Amendment to the United States
Constitution. Doc. #13, PAGEID #107-08.


“confers on employees of the State of Ohio immunity from liability in civil actions arising
under Ohio law{,]” and “confers exclusive jurisdiction upon the Ohio Court of Claims to
make the threshold determination of whether an employee-defendant retains or forfeits
that immunity in a particular case.” /d., PAGEID #104 (citing Ohio Rev. Code §§ 9.86,
2743.02(F); Turker v. Ohio Dep't of Rehab. & Corr., 157 F.3d 453, 458 (6th Cir. 1998)).
Thus, Plaintiffs state law claims must be dismissed without prejudice to refiling in the

Ohio Court of Claims.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss, Doc. #12, is
SUSTAINED. Claims One and Two and the discrimination components of Claims Three
and Four in Plaintiff's Amended Complaint, Doc. #10, are DISMISSED WITH
PREJUDICE. The retaliation components of Claims Three and Four are DISMISSED
WITHOUT PREJUDICE. Within twenty-one days of this Entry, Plaintiff may file a
Second Amended Complaint, provided that she can set forth plausible claims of
retaliation under the ADA and Rehabilitation Act, subject, of course, to the requirements
of Rule 11. Claims Five through Seven are DISMISSED WITHOUT PREJUDICE,
subject to refiling in a state court of competent jurisdiction. Judgment will ultimately
enter in favor of Defendants and against Plaintiff on the entireties of Claims One and

Two, and as to the discrimination components of Claims Three and Four.

Date: June 26, 2018 bition kien

WALTER H. RICE
UNITED STATES DISTRICT JUDGE

18


reports, the CoNH reversed itself and granted her an extension of time to complete the
Program. Doc. #10, J] 25-27, PAGEID #67-68. CoNH’s favorable action toward
Plaintiff would seem to sever any causal connection between the protected activity and
her dismissal from the Program. See Brady v. Houston Indep. Sch. Dist., 113 F.3d
1419, 1424 (5th Cir. 1997) (setting aside jury verdict in favor of employee because,
“[d]uring the eighteen month period between [plaintiff's] protected statements and the
[defendants’] alleged retaliation, [defendants] gave Brady positive evaluations and twice
recommended that she be promoted. This fact is utterly inconsistent with an

inference of retaliation[.]’) (emphasis added). Here, the granting of Plaintiff's request for
an extension broke any alleged or inferred causal connection; it is facially implausible to
claim that, while Plaintiffs protected speech resulted in WSU taking a favorable action
toward her, that same protected speech resulted in an unfavorable action more than
one year later. As Plaintiff alleges no facts that would render a causal connection any

more plausible, her official capacity claim against Evans must be dismissed.

2: Evans Cannot be Held Liable for Claim Two in her Individual
Capacity, as she did not Undertake the Alleged Adverse Action
Against Plaintiff
Plaintiff alleges that Evans raising concerns to Pulley about Plaintiff's work
schedule—which she only did in retaliation for Plaintiff reporting Evans’s discriminatory
treatment of her—led to the adverse action, her dismissal from the Program. Thus,
Plaintiff claims, her individual capacity claim against Evans is viable. Doc. #13,
PAGIED #118-19 (citing Doc. #10, TI] 21, 26, 32, 37, 54-55, PAGEID 67-68, 69, 70, 73-

74. However, Plaintiff does not allege that Evans effected or was personally involved

with the decision to dismiss her from the Program, or with Dr. Sudkamp’s rejection of

10


Nevertheless, to survive a Rule 12(b)(6) motion to dismiss, the complaint must
contain “enough facts to state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570. Unless the facts alleged show that the plaintiff's claim crosses “the line
from conceivable to plausible, [the] complaint must be dismissed.” /d. Although this
standard does not require “detailed factual allegations,” it does require more than
“labels and conclusions” or “a formulaic recitation of the elements of a cause of action.”
Id. at 555. “Rule 8. . . does not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009). Legal conclusions “must be supported by well-pleaded
factual allegations. . . [that] plausibly give rise to an entitlement of relief.” /d. at 679.
“Although for the purposes of this motion to dismiss we must take all the factual
allegations in the complaint as true, we are not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106

S.Ct. 2932, 92 L.Ed.2d 209 (1986).

c. Leave to Amend Standard
While Rule 15(a)(2) directs this Court to give leave to amend freely “when justice
so requires[,]” it need not grant leave to amend if doing so would be futile. “A proposed
amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to
dismiss.” Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir.

2010) (citation omitted)


Steering Sys. Co., Ltd., 807 F.3d 806, 810 (6th Cir. 2015). As parties cannot waive the
requirement of subject matter jurisdiction,” Ammex, Inc. v. Cox, 351 F.3d 697, 702 (6th
Cir. 2003) (quoting Riggs v. Island Creek Coal Co., 542 F.2d 339, 343 (6th Cir. 1976)),

the Court must dismiss any claims over which it lacks jurisdiction.

B. Rule 12(b)(6)

Federal Rule of Civil Procedure 8(a) provides that a complaint must contain ‘a
short and plain statement of the claim showing that the [plaintiff] is entitled to relief.”
The complaint must provide the defendant with “fair notice of what the . . . claim is and
the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78
S.Ct. 99, 2 L.Ed.2d 80 (1957)).

Rule 12(b)(6) allows a party to move for dismissal of a complaint on the basis
that it “fail[s] to state a claim upon which relief can be granted.” The moving party “has
the burden of showing that the opposing party has failed to adequately state a claim for
relief.” DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citing Carver v.
Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991)). The purpose of a Rule 12(b)(6) motion to
dismiss “is to allow a defendant to test whether, as a matter of law, the plaintiff is
entitled to legal relief even if everything alleged in the complaint is true.” Mayer v.
Mylod, 988 F.2d 635, 638 (6th Cir. 1993). In ruling on a Rule 12(b)(6) motion, the Court
must “construe the complaint in the light most favorable to the plaintiff, accept its [well-
pleaded] allegations as true, and draw all reasonable inferences in favor of the plaintiff.”
Handy-Clay v. City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012) (quoting Treesh, 487

F.3d at 476).


State Univ., 282 F.3d 391, 395-96 (6th Cir. 2002); Thomson v. Harmony, 65 F.3d 1314,
1321 (6th Cir. 1995). Thus, the motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) is overruled.

However, for a claim of First Amendment retaliation to survive a motion to
dismiss under Rule 12(b)(6), a claimant must plausibly allege that: (1) she engaged in
protected conduct; (2) the defendants undertook some adverse action that would deter
a reasonable person from engaging or continuing to engage in such protected conduct;
and (3) a causal connection exists between the protected conduct and the adverse
action. Gaspers v. Ohio Dep't of Youth Servs., 648 F.3d 400, 412 (6th Cir. 2011)
(internal quotation marks and citation omitted). “[DJefendants acknowledge that
Plaintiff's purported report could be considered protected activity.” Doc. #14, PAGEID
#129. Moreover, Plaintiffs dismissal from the Program qualifies as an adverse action;
“[a] serious obstacle to the completion of an educational program is the kind of ‘injury
that would likely chill a person of ordinary firmness from continuing to engage in
[protected] activity.” Benison v. Ross, 765 F.3d 649, 659-60 (6th Cir. 2014) (quoting
Paige v. Coyner, 614 F.3d 273, 281 (6th Cir. 2010)).

However, for several reasons, Plaintiff has failed to allege a plausible causal
connection between her report of Evans’s discrimination, in August 2014, and her
dismissal from the Program, in November 2015. First, while the fifteen month gap
between her protected activity and adverse action does not, by itself, render a causal
connection implausible, it does provide ample opportunity for the causal connection to

be severed. Second, Plaintiff reported Evans's discrimination only after CoNH denied

her petition for an extension of time to complete the Program; upon receiving Plaintiff's


IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

PRATIBHA NIGAM,
Plaintiff,
v. , Case No. 3:17-cv-329

JUDGE WALTER H. RICE
WRIGHT STATE UNIV., et a/.,

Defendants.

DECISION AND ENTRY SUSTAINING DEFENDANTS WRIGHT STATE
UNIVERSITY AND VICKI EVANS’S MOTION TO DISMISS PLAINTIFF
PRATIBHA NIGAM’S AMENDED COMPLAINT (DOC. #12); CLAIMS ONE
AND TWO IN PLAINTIFF'S AMENDED COMPLAINT (DOC. #10) ARE
DISMISSED WITH PREJUDICE; CLAIMS THREE AND FOUR ARE
DISMISSED WITH PREJUDICE AS THEY PERTAIN TO DISABILITY
DISCRIMINATION; CLAIMS THREE AND FOUR ARE DISMISSED
WITHOUT PREJUDICE TO REFILING, SUBJECT TO THE STRICTURES
OF RULE 11, AS THEY PERTAIN TO RETALIATION UNDER THE
AMERICANS WITH DISABILITIES AND REHABILITATION ACTS;
CLAIMS FIVE THROUGH SEVEN ARE DISMISSED WITHOUT
PREJUDICE, SUBJECT TO REFILING IN A COURT OF COMPETENT
JURISDICTION; JUDGMENT SHALL ULTIMATELY ENTER IN FAVOR
OF DEFENDANTS AND AGAINST PLAINTIFF ON CLAIMS ONE AND
TWO IN THEIR ENTIRETIES, AND ON CLAIMS THREE AND FOUR AS
THEY PERTAIN TO DISABILITY DISCRIMINATION

Plaintiff Pratibha Nigam (“Plaintiff’) was a student in the Bachelor’s of Science in
Nursing program (“Program”) in Defendant Wright State University’s (“WSU”) College of
Nursing and Health (“CoNH”) from Fall 2011 until Fall 2015, when she was dismissed
from the Program. During her entire tenure at WSU, Plaintiff was under a disability, and

she claims that she suffered discrimination on the basis of that disability by Defendant


Progress Report; it was that modified report upon which Pulley based “her own Midterm
Evaluation of Plaintiff... which assigned Plaintiff with the lowest possible scores in each
rated category.” /d., | 42, PAGEID #71. Also, Plaintiff does not allege that Pulley was
involved with the decision to dismiss Plaintiff from the Program, and she claims Drs.
Matcham and Smith told her that she was dismissed due to an issue relating to her
administration of narcotics. /d., 1] 47-48, PAGEID #72. Yet, Plaintiff alleges only that
Evans contacted Pulley “about Plaintiff's work schedule, among other unknown issues.”
Id., 33, PAGEID #69. Plaintiff does not claim that Evans was even aware of a
narcotics issue, much less that she spoke with Pulley about it. In sum, the facts do not
permit the reasonable inference that any allegedly illegal act by Evans was the
proximate cause of any adverse action that is the subject of her Amended Complaint.
In light of the above, Plaintiff's failure to allege personal involvement by Evans in
the adverse action taken is fatal to the individual capacity claim, even at the motion to

dismiss stage, and Claim II must be dismissed in its entirety under Rule 12(b)(6).4

B. Plaintiff's Claims III (ADA) and IV (Rehabilitation Act) Claims Fail as
Matters of Law

fs Discrimination
Plaintiff alleges that Defendants engaged in disability-based discrimination of her

in violation of both the ADA and Rehabilitation Act. Doc. #10, J] 84-99, PAGEID #78-

79.

To establish her claim that she was dismissed because of her ADHD in
violation of the Rehabilitation Act [or] the ADA, . . . [P]laintiff must show

4 As Plaintiff's First Amendment rights were not violated by Evans, the Court need not consider whether
she would be entitled to qualified immunity. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172

L.Ed.2d 505 (2009).
12


the OEI finding of discrimination. Moreover, it is not reasonable, without additional
facts, to infer that a professor would have the authority to make such a decision.

Finally, any attempt to advance a claim against Evans under a “cat’s paw” theory
is unavailing. “Under the cat's paw theory, ‘if a supervisor performs an act motivated by
[discriminatory] animus that is intended by the supervisor to cause an
adverse . . . action, and if that act is a proximate cause of the ultimate . . . action, then

the [decision-maker] is liable.” Peirano v. Momentive Specialty Chem., Inc., No. 2:11-
cv-281, 2012 WL 4959429, at * 14 (S.D. Ohio Oct. 17, 2012) (Sargus, J.) (quoting Staub
v. Proctor Hosp., 562 U.S. 411, 422, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011)) (brackets
and emphasis in original). The viability of a cat's paw theory of liability for claims is an
open question within the Sixth Circuit. See Henderson v. Chrysler Grp., LLC, No. 14-
2032, No. 14-2032, 610 F. App’x 488, 497 (6th Cir. 2015) (noting that the Sixth Circuit
has “not yet extended the cat’s paw theory of liability to claims under the ADA.”); but
see Welsh v. Auto. Data Processing, Inc., 954 F. Supp. 2d 670, 681-82 (S.D. Ohio
2013) (Dlott, C.J.); Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032, 1036 n.5 (N.D.
Ohio 2012); Peirano, 2012 WL 4959429, at *14 (assuming that ADA discrimination or
retaliation claim could proceed on cat’s paw theory).

However, even assuming that Plaintiff may legally proceed under cat’s paw
theory for ADA and Rehabilitation Act claims, such a claim is not viable against Evans.
While Evans allegedly spoke with Pulley about Plaintiff's issues, Doc. #10, {J 32-33,
PAGEID #69, Plaintiff does not claim that Roberts was aware of Evans's conversation
with Pulley. This distinction is significant because it was Roberts, and not Evans, who

withdrew as Plaintiffs preceptor at the hospital, and submitted a modified Midterm

11


I. ANALYSIS

A. Plaintiff Lacks a Plausible First Amendment Retaliation (Claim Il)
against Evans

4 Evans Cannot be held liable in her official capacity

Plaintiff's claim against Evans in her official capacity is “in all respects other than
name, to be treated as a suit against the entity[,]” WSU. Kentucky v. Graham, 473 U.S.
159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). “[I]n the absence of consent{[,]” or
narrow exceptions provided for by the Constitution or statute, “a suit in which the State
or one of its or departments is named as the defendant is proscribed by the Eleventh
Amendment” to the United States Constitution Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 104, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Moreover, Section
1983 claims for money damages may only be brought against a “person,” and “neither a
State nor its officials acting in their official capacities are persons under [section] 1983.”
Will v. Michigan Dep't of State Police, 491 U.S. 58, 60, 71 109 S.Ct. 2304,105 L.Ed.2d
45 (1989). Thus, Plaintiff's prayer for money damages as to Claim Two, Doc. #10,
PAGEID #83, is not viable as to her official capacity claim against Evans.

Plaintiff argues that, because she is seeking prospective injunctive relief—
specifically, reinstatement into the Program, and removal of any negative evaluations or
notations in her student record—her claim qualifies as an exception to the Eleventh
Amendment bar against official capacity suits. Doc. #13, PAGEID #108 (citing Ex Parte
Young 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)). As the U.S. Court of Appeals
for the Sixth Circuit has held that both reinstatement to a school and the removal of
entries in a student record meet the Ex Parte Young exception, Plaintiff's official

capacity claim against Evans is not barred by the Eleventh Amendment. Carten v. Kent


apparently newfound concerns about Plaintiff's competency, knowledge of medications
and overall safety.” /d., ] 36.

On October 22, 2015, Roberts issued a new evaluation, Doc. #10, 37, PAGEID
#70, rating Plaintiff “as satisfactory in only four out of ten areas.” /d., 38. The next
day, “Pulley informed Plaintiff that she could not return to the clinical [rotation at GMC]
until the ‘narcotics issue” pertaining to her “was investigated.” /d., 41, PAGEID #71.
Pulley completed her own midterm evaluation of Plaintiff, assigning her “the lowest
possible scores in each category.” /d., ] 42. Plaintiff was never provided a remedial
action plan or offered a different clinical placement, and on November 10, 2015, Plaintiff
was dismissed from the Program. /d., I] 44-47, PAGEID #72.

On January 6, 2016, Plaintiff sent a letter to Matthew Boaz (“Boaz”), the OEI
Director, in which she alleged “ridicule, harassment, discrimination and retaliation based
on the foregoing circumstances.” Doc. #10, 52, PAGEID #73. Wright, on behalf of
OEI, conducted interviews of: Evans; Pulley; Roberts, Will Matcham, Ph.D., Course
Coordinator, and Sherrill Smith, Ph.D., Assistant Dean of Undergraduate Programs. /d.,
{ 53. From her investigation, Wright concluded that it was more likely than not that
WSU's Non-Discrimination Statement had been violated with respect to Plaintiff, and
she informed Thomas Sudkamp, Ph.D., Provost of CoNH, of same. /d., 4 55, PAGEID
#74. Nonetheless, on July 18, 2016, Dr. Sudkamp determined that Plaintiff had not
suffered discrimination or retaliation, and would not be permitted to re-enter the
Program. /d., 156. As Plaintiff was not permitted to appeal Dr. Sudkamp’s decision,
id., ] 58, she alleges that she was “dismissed from the CoNH without being afforded .. .

reasonable procedural process, for reasons that were purely pretextual.” /d., 60.


dissuade a reasonable person from engaging in the protected activity; ‘petty slights or
minor annoyances’ cannot qualify.” A.C., 711 F.3d at 697 (quoting Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)).

Plaintiff alleges that, “[a]s a direct result of Plaintiffs complaints to the CoNH
about Defendant Evans’[s] harassing and discriminatory treatment, and Defendant
Evans'[s] knowledge of those complaints, Plaintiff was retaliated against by Defendant
Evans and Provost Sudkamp[.]’ Doc. #10, [ 60, PAGEID #74. As discussed above,
Plaintiff's reports to CoNH about Evans's discrimination constituted protected activity,
and Plaintiff alleges that Evans was aware of the Complaints. /d., ] 26, PAGEID #67-
68. However, as discussed above, Evans reporting to Pulley her concerns regarding
Plaintiff's outside work during the clinical rotation, id., J] 32-33, PAGEID #69, was not
causally connected with any materially adverse action that was subsequently taken
against her. Moreover, Plaintiff does not allege that Evans was involved with the
decisions to dismiss her from the Program or reject the OEI findings. Thus, the
Amended Complaint does not allege that Evans undertook any materially adverse
action against Plaintiff; Evans's action was, at most, a “minor annoyance” that cannot
satisfy the adverse action element. White, 548 U.S. at 68.

As to Sudkamp, the Court may plausibly infer that his decision, on July 18, 2016,
to reject the OEI findings, and refusal to provide Plaintiff with any avenue to appeal his
decision, Doc. #10, {| 56, 59, PAGEID #74, were materially adverse actions.
However, Plaintiff has failed to allege a plausible causal connection between her
protected activity and those actions. Importantly, Plaintiff does not claim that her

complaint to OEI was a protected activity. Rather, the only protected activity she

15


possibility that she could set forth a plausible retaliation claim under the ADA and
Rehabilitation Act. Given its strong preference for resolving claims on their merits, the
Court will grant Plaintiff one final opportunity to do so. Thus, Claims Three and Four, as

to retaliation, are dismissed without prejudice.

D. Court Lacks Jurisdiction over Plaintiff's State Law Claims

Plaintiff argues that, even if her federal law claims (I through IV) are dismissed,
the Court should still exercise its supplemental jurisdiction and hear the merits of her
state law claims (V through VII). Doc. #13, PAGEID #124-25 (citing 28 U.S.C.

§ 1367(b); Venegas v. Wright State Univ., No. 3:16-cv-377, 2017 WL 3605438, at *15
(S.D. Ohio Aug. 21, 2017) (Rice, J.)). In Venegas, this Court acknowledged its
supplemental jurisdiction over Plaintiff's state law claim, but decided that “this lawsuit is
not one of the rare cases where ‘the interests of judicial economy and the avoidance of
multiplicity of litigation outweigh our concern over needlessly deciding state law issues,”
2017 WL 3605438, at *15 (quoting Moon v. Harrison Piping Supply, 465 F.3d 719, 728
(6th Cir. 2006)), and dismissed the state law claim without prejudice.

However, the issue of immunity as to state law claims was not before the Court in
Venegas. Moreover, as Defendants note, the Ohio Court of Claims is the only venue in
which an arm of the State of Ohio, such as WSU or Evans in her official capacity, may
be sued for state law claims without implicating sovereign immunity. Doc. #12, PAGEID
#102-03 (citing Ohio Const. art. 1, § 16; Ohio Rev. Code § 2743.02(A)(1)); see also
Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999) (Ohio’s limited consent to be
sued in the Ohio Court of Claims does not constitute a waiver of immunity from suit in

federal court). As to Plaintiff's individual capacity claims against Evans, Ohio law

17


on appeal, she was granted such an extension. /d., | 24-25. During the petition and
appeals process, Plaintiff reported to CoNH that Evans had verbally abused her in
public, and she submitted anonymous written statements from other students
corroborating her description of harassment. /d., | 26, PAGEID #67-68. Evans became
aware of Plaintiff's reports, and in an interview with Lindsay Wright (“Wright”), an
investigator with WSU’s Office of Equity and Inclusion (“OEI”), “Evans alleged that
Plaintiff ‘campaigned’ against her ‘by claiming her rights were violated.’ This was ‘very
frustrating’ to Ms. Evans.” /d., PAGEID #68.

Upon receiving an extension of time, Plaintiff re-enrolled in Nursing 4420 in
Summer 2015, with a different instructor, and “excelled in both the lecture and clinical
portions of the course[.]” Doc. #10, 27, PAGEID #68. In Fall 2015, Plaintiff enrolled in
Nursing 4460, “and was placed at the Grandview Medical Center (‘GMC’) in Dayton,
Ohiof,] for her clinical rotation. Liz Pulley [(‘Pulley’)] was assigned as Plaintiff's Clinical
Instructor[,] and Jessica Roberts [(‘Roberts’)] was assigned as Plaintiff's Preceptor? at
GMC.” /d., 9 28. In an evaluation dated October 17, 2015, Roberts indicated “that
Plaintiff's performance was satisfactory in all ten areas of evaluation.” /d., | 31,
PAGEID #69. However, on October 16, 2015, Plaintiff informed Evans that she was
working full-time outside of her clinical rotations for Nursing 4460. /d., | 30. Evans then
contacted Pulley to voice her concerns about Plaintiff working while performing clinical
rotations. /d., Jf] 32-33. In an October 19, 2015, meeting, Pulley informed Plaintiff of

Evans's concerns, id., | 34, PAGEID #70, and the next day, “Roberts relayed

? A preceptor is a practicing nurse who also helps and evaluates nursing students during their clinical
rotations.


Vicki Evans (“Evans”), one of Plaintiff's clinical professors in the CoNH, and suffered
retaliation by Evans as a result of her reporting that discrimination, culminating in her
dismissal from the Program. WSU and Evans (collectively “Defendants”) have filed a
Motion to Dismiss Plaintiff's Amended Complaint (“Motion”), arguing that “this Court
lacks subject matter jurisdiction over some of Plaintiff's claims, and the claims over
which this Court has jurisdiction fail to state a claim upon which relief can be granted.”
Doc. #12, PAGEID #86. For the reasons set forth below, Defendants’ Motion is

SUSTAINED.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff enrolled at WSU in Fall 2010 and matriculated into the Program in Fall
2011. Doc. #10, If] 14-15, PAGEID #66. In December 2012, Plaintiff was diagnosed
with ovarian cancer and withdrew from the Program while she underwent treatment. /d.,
{1 16-17. Plaintiff was readmitted to the Program in 2014, and enrolled in Nursing
4420, a clinical course taught by Evans, in Summer 2014. /d., 118. During the course,
Evans, who knew of Plaintiff's past cancer treatments, id., ] 20, PAGEID #67, “harassed
Plaintiff throughout the semester by regularly singling her out from the other students
based on actual and perceived weaknesses due to Plaintiff's disabilities.” /d., 21. “On
June 25, 2014, Plaintiff suffered a panic attack during a clinical shift immediately after
Defendant Evans admonished Plaintiff in her clinical.” /d., | 22. Plaintiff withdrew from

Nursing 4420 and petitioned CoNH for an extension of time to complete the Program;

‘ As Defendants’ Motion to Dismiss is brought under Rule 12(b)(6), the Court, for the purposes of the
motion, must treat Plaintiff's well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).


that (1) she is handicapped or disabled as defined in each statute, (2) she
is otherwise qualified to continue in the program, and (3) she was
dismissed from the program on the basis of her handicap or disability.

Kaltenberger v. Ohio Coll. of Podiatric Med., 162 F.3d 432, 435 (6th Cir. 1998) (internal
quotation marks and citation omitted). Defendants argue that, for two reasons, Plaintiff
has failed to set forth a plausible claim of disability discrimination. First, “Plaintiff fails to
allege that her disability, as opposed to her disability discrimination complaint, had
anything to do with her dismissal. Thus, Plaintiff fails to state a discrimination claim
under Title Il of the ADA upon which relief can be granted.” Doc. #14, PAGEID #136.
Second, “Plaintiff never identifies which university official(s) made the dismissal decision
or whether those officials had knowledge of Plaintiff's purported protected activity. This
omission is fatal.” /d., PAGEID #137 (citing Doc. #13, PAGEID #117-18, 120-21;
Mulhall v. Ashcroft, 287 F.3d 543, 552 (6th Cir. 2002)).

While Plaintiff alleges that she is disabled under both the ADA and Rehabilitation
Act, Doc. #10, I] 87, 90, 97, PAGEID #78, 79, the only allegations in her Amended
Complaint that pertain to actual discrimination, as opposed to retaliation, were Evans’s
treatment of her, and Plaintiff's reports of same to CoNH, both of which occurred in the
Summer of 2014. Doc. #10, J] 20-26, PAGEID #67-68. Further, upon becoming aware
of Evans's allegedly discriminatory conduct, CoNH granted her an extension of time to
complete Program requirements, ensuring that she would remain in good standing in
the program. /d., | 27, PAGEID #68. Moreover, Plaintiff's failure to identify the
individuals responsible for her dismissal makes it impossible for the Court to infer that
the decision-makers were even aware of Plaintiff's disability, much less that they

dismissed her from the Program because of said disability.

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alleges was her 2014 complaint about Evans's alleged disability discrimination.
Sudkamp’s rejection of the OE! findings occurred almost two years after Plaintiff
undertook that protected activity. Further, as discussed above, the decision to grant
Plaintiff an extension of time came after Plaintiff reported Evans’s discrimination, and
seemingly severed the causal chain between Plaintiff's protected activity and the later
adverse actions. Plaintiff does not allege that Sudkamp was motivated by those reports
in deciding to reject the OEI findings. The lack of causal connection is fatal to Plaintiffs
retaliation claims under both the ADA and Rehabilitation Act, and thus, Claims II] and IV

must be dismissed in their entireties under Rule 12(b)(6).®

Cc. Dismissal with Prejudice of Federal Law Claims except for
Retaliation Components of Claims Ill and IV

Plaintiff filed her original Complaint on September 21, 2017, Doc. #1, which
Defendants moved to dismiss under Rules 12(b)(1), (3) and (6) on November 14, 2017.
Doc. #6. Rather than respond to Defendants’ original motion, Plaintiff filed her
Amended Complaint—her second chance to set forth plausible claims for relief—on
December 1, 2017. Doc. #10. Her inability to do so—and, as discussed above, the
extent to which her claims fall short of satisfying Iqbal and Twombly—lead the Court to
conclude that further leave to amend is futile as to Claims One and Two, and the
disability discrimination components of Claims Three and Four. Accordingly, those
claims are dismissed with prejudice. Riverview Health, 601 F.3d at 512 (6th Cir. 2010).

However, if Plaintiff's filing of the OEI complaint was a protected activity, there is a

6 As with the discrimination claims, Plaintiff's failure to allege plausible claims of retaliation means the
Court need not consider Defendants’ argument that Plaintiffs ADA retaliation claim against WSU is
barred by the Eleventh Amendment. Doc. #12, PAGEID #98 (citing Bd. of Trustees, Univ. of Ala. v.
Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001)).

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