UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION

SHALOM IFEANYI

Plaintiff,

-vMOLLY ALVEY, et al 

Defendants.

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Case No. 1:18-cv-193 

Judge Susan J. Dlott

Magistrate Judge Karen L. Litkovitz

PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR LEAVE TO AMEND 

COMPLAINT

I. BACKGROUND 

Plaintiff filed her Complaint in this matter on March 20, 2018 alleging causes of action 

against the University of Cincinnati (“UC”), its head volleyball coach Molly Alvey (“Alvey”), 

and its associate athletic director, Maggie McKinley (“McKinley”) for, inter alia, discrimination 

and retaliation. (Doc. 1). On May 17, 2018, Defendants moved to dismiss Plaintiff’s Complaint

pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 10.). 

Plaintiff opposed the motion to dismiss but sought leave to amend her Complaint in the 

alternative pursuant to Rule 15 of the Federal Rules of Civil Procedure. (Doc. 12, 12-1, and 12-

2). In seeking leave to amend her Complaint, Plaintiff dismissed her causes of action against the 

University of Cincinnati and against Alvey and McKinley in their official capacities. (Doc. 12 at 

Page ID 47). She also sought to add an additional cause of action against Alvey and McKinley, 

in their individual capacities, for retaliation in violation of the First Amendment after UC’s Title 

IX Office concluded that they retaliated against Plaintiff for objecting to Alvey’s constant body 

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shaming and violated written university policies by not reporting Plaintiff’s complaint about 

mistreatment immediately to the Title IX office. (Doc. 12-1 at PageID 68). In their opposition to 

Plaintiff’s motion to amend, Defendants essentially reargue their motion to dismiss. 

Unfortunately, their logic remains flawed and ignores binding precedent in this Circuit. 

Plaintiff’s motion to amend should therefore be granted.1

II. DISCUSSION

a. Fed.R.Civ.P. 15

Pursuant to Fed.R.Civ. P. 15(a), a party may amend its pleading with the court's leave. 

Leave should freely be given when justice so requires. Fed.R.Civ.P. 15(a)(2). In determining 

whether to grant a motion to amend under Rule 15(a), a court looks to a number of factors, 

including undue delay in filing, lack of notice to the opposing party, bad faith by the moving 

party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the 

opposing party, and futility of amendment. Wade v. Knoxville Utilities Bd., 259 F.3d 452, 458-59 

(6th Cir. 2001); see also Coe v. Bell, 161 F.3d 320, 341-42 (6th Cir. 1998); Head v. Jellico Hous. 

Auth., 870 F.2d 1117, 1123 (6th Cir. 1989). Here, none of the factors support Defendants’

opposition. This case is in its infancy, there has been no delay or prejudice to Defendants, and 

Defendants’ lone argument – that the amendment would be futile – simply is not supported by 

binding precedent. It further cannot be forgotten that at this stage of the proceedings, the court 

must construe the amended complaint in the light most favorable to the plaintiff, accept her 

factual allegations as true, and draw all reasonable inferences in her favor. Hogan v. Jacobson, 

823 F.3d 872 (6th Cir. 2016).

 

1 For the Court’s convenience, Plaintiff incorporates her Memorandum in Opposition to Defendants’ Motion to 

Dismiss (Doc. 12) as if fully rewritten herein rather than reciting it fully. Plaintiff will, however, briefly address each 

argument raised by Defendants. 

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b. Plaintiff’s Title VII Causes of Action are Valid

Defendant argues – as it did in its motion to dismiss – that Plaintiff’s Title VII claims are 

not viable because she was not an employee of UC. (Compare Doc. 10 at PageID 35-36 and

Doc. 14 at PageID 85). Unfortunately for Defendants, the United States Court of Appeals for the 

Sixth Circuit has directly examined this argument and completely rejected it. In Heike v. 

Guevara, 519 Fed.Appx. 911, 918 (6th Cir. 2013), the Court explicitly held that equal-protection 

scrutiny applied to collegiate scholarship renewal decisions because college coaches were not

permitted to impose their own racial prejudices on college athletes. Id. at 918. Thus, Defendants’ 

would not be entitled to dismissal and amendment would not be futile. 

c. Plaintiff has not even remotely abandoned her 42 U.S.C. § 1981 Causes of 

Action

In both her Complaint (Doc. 1) and proposed Amended Complaint (Doc. 12-2), Plaintiff 

alleges, inter alia, disparate treatment on the basis of race/color and sex as well as unwanted 

sexual harassment in violation of 42 U.S.C. § 2000(e) et seq., 42 U.S.C. § 1981, and O.R.C. § 

4112.02. (Doc. 1 at ¶¶ 50-65; Doc. 12-2 at ¶¶ 52-67) (emphasis added). As stated in her 

opposition to Defendants’ motion to dismiss, Plaintiff has more than satisfied the notice pleading 

requirement for these causes of action and construing the allegations in the light most favorable 

to her, amendment of the Complaint would not be futile. 

d. Plaintiff has a property interest in her scholarship

In their opposition to Plaintiff’s motion to amend, Defendants again suggest that Plaintiff 

has no property interest in her scholarship. The Sixth Circuit’s decision in Heike – which 

explicitly concluded that athletes at public universities have a property interest in their 

scholarships and are entitled to due process under the law – directly contradicts Defendants’ 

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argument. Heike, 519 Fed. Appx. at 918 (6th Cir. 2013). See also Reyes v. Bauer, 2013 WL 

3778938, No. 11-15267 (E.D. Mich. July 18, 2013) (finding that medical student had property 

interest in her continued enrollment at the school); Doe v. Univ. of Cincinnati, 872 F.3d 393, 399 

(6th Cir. 2017) (quoting Doe v. Cummins, 662 Fed.Appx. at 445) (finding that disciplinary 

decisions in higher education clearly implicate a protected property interest). Amendment of 

Plaintiff’s Complaint would therefore not be futile. 

e. Plaintiff’s sets forth a valid cause of action for First Amendment Retaliation 

To survive dismissal, a plaintiff pleading a First Amendment retaliation claim must allege 

that (1) she engaged in constitutionally protected conduct; (2) an adverse action was taken 

against the her that would deter a person of ordinary firmness from continuing to engage in that 

conduct; and (3) the adverse action was motivated at least in part by her protected conduct.

Kesterson v. Kent State University, Memorandum Opinion, 2017 WL 995222, 5:16-cv-298 (N.D. 

Ohio March 15, 2017) (citations omitted). A simple review of Plaintiff’s Amended Complaint 

clearly shows that she has sufficiently pled these elements. Specifically, she alleges the 

following in her Amended Complaint:

• She engaged in protected activity by objecting to Alvey’s body shaming and 

discrimination. (Doc. 12-2 at ¶ 69).

• Alvey and McKinley were aware of Plaintiff’s exercise of her protected rights and 

objection to the body shaming and discrimination. (Id. at ¶ 70).

• Plaintiff was dismissed from the team for her exercise of her protected rights. (Id. at ¶ 

71). 

• Plaintiff’s dismissal was motived by her objection to the body shaming and 

discrimination. (Id. at ¶ 72). 

Ignoring these allegations, Defendants also suggest that Plaintiff cannot meet the first 

element because her text message to Alvey objecting to the body shaming and discrimination is 

not a matter of public concern. (Doc. 14 at PageID 88). Unfortunately for Defendants, the Sixth 

Circuit has held that the “public concern” test does not apply outside the context of public 

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employment. Kesterson, supra at p .8 (citing Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d 580 

(6th Cir. 2008)). 

In Kesterson, a softball player at Kent State University told her coach that she was 

sexually assaulted by the coach’s son. Id. at 1-2. Rather than report the assault to the school, 

according to the student-athlete, the coach began “a campaign of intimidation and control to 

suppress [her] victimization and punish her for exercising her constitutional right to complaint 

about discrimination.” Id. at p. 3. As a result of the student-athlete’s reporting of the sexual 

assault, the coach ignored her, benched her, and changed her position. Id. Eventually, the 

mistreatment reached a level where the student-athlete quit the softball team. Id.

In concluding that the student set forth a valid cause of action for retaliation, the court 

held that the “public concern” test did not apply outside of the context of public employment

within the Sixth Circuit. Id. at p. 8. It further held that while a coach has broad discretion to 

determine things like playing time and positions, such discretion did not extend to retaliating 

against a student-athlete for exercising her First Amendment rights. Id. at p. 9. As a result, the 

court concluded that the student-athlete’s retaliation claim was viable since temporal proximity 

alone between the exercise of protected activity and the adverse action was enough to set forth a 

retaliation claim. Id. 

The facts of this case are virtually identical to those in Kesterson. Plaintiff objected to 

Alvey’s body shaming and discrimination via text message. Alvey admitted that she received the 

text message.2 Following receipt of the text message, Plaintiff was dismissed from the volleyball 

team. Defendants themselves admit that dismissal from the team constitutes an adverse action. 

 

2

In their opposition to Plaintiff’s motion to amend, Defendants oddly suggest that Plaintiff did not allege that Alvey 

or McKinley knew about the text message prior to her dismissal from the team. Defendants have apparently ignored 

the actual allegations in the Complaint and Amended Complaint which clearly state that Alvey admitted to receiving 

the text message prior to Plaintiff’s dismissal. (Doc. 1 at ¶¶ 37, 41; Doc. 12-2 at ¶¶ 37-38, 42, 44).

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(Doc. 14 at PageID 89). Therefore, construing the allegations in the light most favorable to 

Plaintiff, she has clearly set forth a valid cause of action for retaliation and amendment of her 

Complaint would not be futile. 

f. This Court has supplemental jurisdiction over Plaintiff’s state law causes of 

action. 

Pursuant to 28 U.S.C. § 1367(a), this Court can also clearly exercise supplemental 

jurisdiction over Plaintiff’s state law causes of action against Alvey and McKinley in their 

individual capacities.

III. CONCLUSION

For the foregoing reasons, Plaintiff requests that the Court grant her leave to file her 

Amended Complaint. 

Respectfully submitted,

/s/ Ryan J. McGraw

Konrad Kircher (0059249)

Ryan J. McGraw (0089436)

RITTGERS & RITTGERS

12 E. Warren St.

Lebanon, Ohio 45036

(513) 932-2115

(513) 934-2201 Facsimile 

konrad@rittgers.com

ryan@rittgers.com

Attorneys for Plaintiff

Robert D. Martinez, Esq. 

Robert D. Martinez, PLLC

4201 Wingren Drive, Suite 108

Irving TX 75062

Tel: (214) 534-7808

Fax: (214) 614-4629

Rmartinez@rdm-law.us

Co-Counsel for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that the foregoing was electronically filed using the Court’s CM/ECF 

system and that a copy was served electronically via that system this 3rd day of July, 2018:

/s/ Ryan J. McGraw

Ryan J. McGraw (0089436)

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