UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

DR. G. DAVID MOSS, PH.D., Plaintiff,

v.

THE UNIVERSITY OF NOTRE DAME DU

LAC, AND ERIN HOFFMAN-HARDING,

INDIVIDUALLY AND IN HER OFFICIAL

CAPACITY, Defendant.

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Case No. 3:13-cv-1239

Hon. James T. Moody

DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF THEIR

MOTION TO DISMISS COUNT I (IN PART)

AND COUNTS II, III, IV, AND V OF PLAINTIFF’S COMPLAINT

Pursuant to Federal Rule of Civil Procedure 12(b)(6), the University of Notre Dame and

Erin Hoffmann Harding (collectively, “Defendants” or “Notre Dame”) ask this Court to dismiss,

in part, Dr. G. David Moss’ (“Plaintiff”) Complaint.1In support of their Motion to Dismiss, and

in reply to Plaintiff’s Response in Opposition to Defendant’s Motion to Dismiss, Defendants

state as follows:

I. Plaintiff’s Title VII Retaliation Claim (Count II) Must Be Dismissed Because

Plaintiff Has Not Exhausted His Administrative Remedies.

Plaintiff’s attempt to characterize the allegations in the Equal Employment Opportunity

Commission (hereinafter “EEOC”) charge as “intricately linked in time, people, and substance”

to the new allegations in the Complaint is misplaced. The allegations in Count II of Plaintiff’s

Complaint are outside the ambit of the predicate EEOC charge and could not have put the EEOC

or Notre Dame on notice regarding the conduct about which Plaintiff was concerned. See

1 In Section I of Plaintiff’s response, he admits that his Title VII Counts I and II against Defendant Erin Hoffman- Harding should be dismissed.

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Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir. 1985) (stating that the purpose of the

limitation is to give the employer a warning of the conduct about which the charging party is

concerned, as well as to allow the employer and the EEOC an opportunity to engage in

conciliation efforts without resorting to the courts).

Plaintiff’s EEOC charge alleged as follows:

I am a black employee hired by the University of Notre Dame in the Fall of 1998

as a Special Assistant to the Vice President of Student Affairs. I held the position

of Assistant Vice President of Student Affairs from 1999 until 2010. From 2010

until 2012, I became Assistant Vice President for Student Affairs for Student

Services. I applied for the Associate Vice President for Student Affairs in June

2012. My supervisor is Erin Hoffman-Harding, Student Affairs Vice President,

White. I was denied the position, which was a lateral promotion. Dr. William

Stockman, White, was hired for the position. I believe that I was more qualified

for the position than Dr. William Stockman, White.

(See Mot. to Dismiss, Ex. A.) Plaintiff’s EEOC charge claimed that Notre Dame did not

promote him to a new position because of his race. Plaintiff did not identify a “protected

activity,” a requirement of a retaliation claim. Nor did Plaintiff attempt to assert that he suffered

an adverse action as a result of a protected activity. Retaliation is a separate and distinct claim

from discrimination and Plaintiff made no attempt to articulate any type of retaliation claim in

his EEOC charge.

Count II alleges, for the first time, that Notre Dame demoted and retaliated against

Plaintiff because he worked with a student group (the Call to Action initiative) that sought to

respond to an insidious incident wherein unidentified individuals placed “chicken-parts” into the

mailboxes of two African-American student organizations. Plaintiff’s EEOC charge and

retaliation claim contain completely different and unrelated claims. Accordingly, the allegations

in Count II are not within the ambit of the predicate EEOC charge. See Auston v. Schubnell, 116

F.3d 251, 254 (7th Cir. 1997) (dismissing plaintiff’s retaliation claim where plaintiff did not

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check the retaliation box on the Charge form, “nor did his account of the facts include any

reference at all to retaliatory conduct”).

Plaintiff argues that: (i) his “EEOC charge of race discrimination was sufficient to ensure

that Defendants had formal notice of a problem”; (ii) Plaintiff is not a lawyer; and (iii) the

general publicity surrounding the “chicken-part” incident should have placed Notre Dame and

the EEOC on notice. (Resp. at 4-6.) Plaintiff has not provided any legal authority for his theory

that a plaintiff can fulfill the EEOC exhaustion requirement if he puts the defendant on notice

that there is some general “problem.” Likewise, Plaintiff has not cited, nor could he, any support

for his theory that Title VII lawsuits may proceed even if the underlying EEOC charge does not

describe the same conduct, so long as the person who completed the underlying EEOC charge

form was not a lawyer. Moreover, the fact that an issue with the student body at Notre Dame

made national news does not excuse Plaintiff’s failure to comply with the requirement that he put

both the EEOC and Notre Dame on notice. Such a holding would require the EEOC to monitor

every national news story to know what claims it may have to investigate.

As noted in Babrocky, “[a]llowing a complaint to encompass allegations outside the

ambit of the predicate EEOC charge would circumvent the EEOC’s investigatory and

conciliatory role, as well as deprive the charged party of notice of the charge. . . .” Babrocky, 773 F.2d at 863 (7th Cir. 1985). The allegations in Count II are outside the ambit of the

predicate EEOC charge and therefore, must be dismissed.

II. Plaintiff’s Title VII Retaliation Claim (Count II) Must Be Dismissed Because

Plaintiff Does Not Allege that He Engaged in Statutorily Protected Activity.

42 U.S.C. § 2000e-3 provides:

[i]t shall be an unlawful employment practice for an employer to

discriminate against any of his employees. . .because he has

opposed any practice made an unlawful employment practice by

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this subchapter, or because he has made a charge, testified,

assisted, or participated in any manner in any investigation,

proceeding, or hearing under this subchapter.

(emphasis added). A “statutorily protected” activity includes only those acts that an employee

took to oppose unlawful Title VII conduct. Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014,

1029 (7th Cir. 2013); Berg v. LaCrosse Cooler, 612 F.2d 1041, 1043 (7th Cir. 1980) (“Unless the

practice opposed is in truth a ‘practice made an unlawful employment practice’ by [Title] VII . . .

the employee enjoys no protection . . . .”). Thus, an employer can be held liable only for

restricting their employees from opposing the employer’s unlawful employment practices.

In his Complaint, Plaintiff does not allege that he made a charge, testified, assisted, or

participated in any manner in any investigation, proceeding, or hearing under 42 U.S.C. § 2000e.

Nor does he allege that he opposed Notre Dame’s unlawful employment practices. Rather,

Plaintiff alleges that Notre Dame retaliated against him because he worked with, and supported,

the Call to Action initiative. (Compl. ¶ 25.) Supporting a student initiative does not qualify as

“statutorily protected” activity under Title VII. See Bonn v. City of Omaha, 623 F.3d 587 (8th

Cir. 2010) (finding that the employee did not engage in statutorily protected activity when she

published a report alleging that her employer engaged in discriminatory policing tactics). In his

response, Plaintiff concedes that his speech dealt with “racial discrimination towards students

rather than Notre Dame employees,” but argues that “Title VII would be disserved by parsing

such a distinction.” (Resp. at 6-7.) It is not surprising that Plaintiff provided no legal authority

for his position as 42 U.S.C. § 2000e-3 creates liability only against employers who restrict their

employees from opposing the unlawful employment practices of their employees. 2 Thus, what

Plaintiff describes as an unnecessary distinction is precisely the distinction that Title VII makes.

2 Title VII defines “employee” in pertinent part as “an individual employed by an employer.” 42 U.S.C. § 2000e(f).

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Because Plaintiff alleges he was opposing racially discriminatory practices directed at students,

his claim must be dismissed.

Finally, Plaintiff’s argument that Notre Dame can be held liable because the “chicken- part” incident created a racially hostile environment also lacks merit. If Plaintiff’s theory was

accepted, any institution could be liable pursuant to Title VII whenever an inappropriate incident

occurred on that institution’s premises, regardless of whether an employee of that institution

played any role in the incident. The law does not countenance such an absurd result.

III. Plaintiff’s Section 1983 Claims (Counts III, IV, and V) Must Be Dismissed Because

Section 1983 Does Not Apply to Private Entities Unless They Act Under the Color of

State Law.

A. Notre Dame’s Motion to Dismiss Is Not Premature.

Notre Dame argues that Counts III, IV, and V of Plaintiff’s Complaint must be dismissed

because Notre Dame is a private institution and there are no facts upon which this Court could

conclude that Notre Dame has acted under the color of state law. In response, Plaintiff argues

that Notre Dame’s arguments are premature and suggests that this Court should allow Plaintiff to

conduct discovery with respect to whether Notre Dame is a private institution or has acted under

the color of state law.

Notre Dame’s arguments are not premature. Courts routinely dismiss cases where, as

here, the complaint does not allege facts sufficient to establish that the defendant is a public

institution or has acted under the color of state law. See London v. RBS Citizens, N.A., 600 F.3d

742, 748 (7th Cir. 2010) (dismissing the plaintiff’s Section 1983 claim for failure to indicate how

the defendant acted under color of law); Tucovic v. Hogan, 2011 WL 3421418, at *3 (N.D. Ind.

Aug. 4, 2011) (same); Blackburn v. Fisk University, 443 F.2d 121 (6th Cir. 1971) (upholding

dismissal because facts averred did not “evidence such State involvement as to transform the

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actions of the Fisk University officials into ‘State action.’”). Furthermore, courts have expressly

ruled that Marsh v. Alabama, 326 U.S. 501 (1946), does not apply to private universities. See

Grossner v. Trustees of Columbia University in City of N.Y., 287 F. Supp. 535, 549 (S.D.N.Y.

1968) (“No case anywhere, and no acceptable extension of any pertinent principle, indicates that

a University like Columbia is engaged in ‘state action’”); Browns v. Mitchell, 409 F.2d 593, 596

(10th Cir. 1969) (distinguishing Marsh and rejecting a finding of state action by a private

university); Blackburn, 443 at 124 (rejecting the public function concept in upholding dismissal

of a plaintiff’s Section 1983 allegations against a private university).

Plaintiff’s claim that discovery on the Marsh factors is needed is a red herring. None of

the cases cited in Plaintiff’s response precludes dismissal of Plaintiff’s Section 1983 claims

because those cases involved situations where some form of government entity worked with, or

was involved with, the defendant (the alleged state actor). See e.g. Lugar v. Edmonson Oil Co.,

Inc., 457 U.S. 922 (1982) (examining whether the defendant’s actions, along with those of the

court and sheriff’s office, in an action involving the prejudgment possession of property

conferred state actor status on the defendant); Burton v. Wilmington Parking Auth., 365 U.S. 715

(1961) (examining whether a restaurant had state actor status when the restaurant was located in

a government owned building and enjoyed benefits that the government enjoyed since it was

located in the government building); Dunham v. Frank’s Nursery & Crafts, Inc., 919 F.2d 1281

(7th Cir. 1990) (examining the court’s role in connection with the defendant’s preemptory

challenges for jury selection to see if the court’s actions after jurors were stricken would have

conferred state actor status on defendant). These cases simply do not apply to this case. In light

of the case law cited by Notre Dame, the allegations in the Complaint are insufficient and should

be dismissed. Notre Dame’s motion is not premature.

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B. Plaintiff Has Failed to Allege Facts Sufficient to Establish that Notre Dame

Has Acted Under the Color of State Law.

Plaintiff’s main argument, that Marsh v. Alabama, 326 U.S. 501 (1946), should apply in

this case and that under Marsh, Notre Dame is a state actor, is wrong. Courts have held that

Marsh does not apply to private universities. See Grossner v. Trustees of Columbia University in

City of N.Y., 287 F. Supp. 535, 549 (S.D.N.Y. 1968) (“No case anywhere, and no acceptable

extension of any pertinent principle, indicates that a University like Columbia is engaged in

‘state action’”); Browns v. Mitchell, 409 F.2d 593, 596 (10th Cir. 1969) (distinguishing Marsh

and rejecting a finding of state action by a private university); Blackburn, 443 at 124 (rejecting

the public function concept in upholding dismissal of a plaintiff’s Section 1983 allegations

against a private university). Furthermore, the issues in Marsh are unrelated to those in this case.

In Marsh, the court addressed the limited question of whether a private owner could abridge the

First Amendment rights of the plaintiff when those rights were technically exercised on private

property right outside of a post office. Marsh did not address whether that same private entity

can be considered a state actor for the purpose of a Section 1983 claim.

None of the cases cited by Plaintiff holds that a private university is a state actor. Nor do

any of these cases support Plaintiff’s extreme position that not only is Notre Dame a state actor,

but it is a state actor for all purposes. (Resp. at 9). Thus, the cases can all be easily

distinguished. For example, in Velez v. Amenta, 370 F. Supp. 1250 (D. Conn. 1974), the court

did not address whether a private university was a state actor, but addressed a narrow issue

related to access to and use of privately-owned premises by visitors of migrant and seasonal farm

workers living at a privately-owned camp while the workers were organizing a union. Indeed,

the court did not even determine whether the camp was a “company town.” Plaintiff simply has

provided no legal authority for his position that the company town analysis extends to a private

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university or that a private university is akin to a company town when the focus of a religious

based private university is educating its students consistent with his religious beliefs and

objectives.

Despite no case law supporting his position, Plaintiff argues that he has pled enough to

establish that Notre Dame is a state actor. As explained in its opening brief, Notre Dame is not a

state actor merely because (accepting Plaintiff’s allegations as true): (i) businesses open to the

public, such as Burger King and FedEx Kinkos,3 sit on Notre Dame’s campus; (ii) public roads

run through Notre Dame’s campus; (iii) a federal post office and two federal reserve depository

libraries allegedly sit on Notre Dame’s campus; and (iv) “85,000” football fans wander around

Notre Dame’s campus on game days. Nor is Notre Dame a state actor because people visit the

Sacred Heart Basilica and has alleged “enforcement mechanisms” available for it students and

faculty. (Resp. at 14). The University of Notre Dame is a Catholic academic community of

higher learning that traces its origins to the Congregation of Holy Cross. Notre Dame’s mission

is to transmit knowledge through teaching and mentoring, to foster the discovery of knowledge

through research and scholarship and, above all, to support the holistic formation of its students –

intellects, hearts and souls. While the educational, living, and worship services provided on

Notre Dame’s campus support the University’s mission, these services do not render the

University a state actor.

Finally, Plaintiff’s argument that this Court should allow his “Notre Dame is a state actor

for all purposes” theory to proceed because it will “open the door to personal liability” for Ms.

Hoffmann Harding is also baseless. (Resp. at 10.) Plaintiff does not cite any support for his

3 Burger King and FedEx Kinkos are also private entities.

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theory. Plaintiff’s argument merely reflects his desire to keep Ms. Hoffmann Harding named as

an individual defendant in a case despite the absence of legal authority to do so.

IV. Plaintiff Has Not Properly Pled Section 1981 Claims.

Plaintiff’s Complaint mentions 42 U.S.C. §1981 twice (once in the opening paragraph

and again in paragraph two). Plaintiff does not assert any counts pursuant to Section 1981, nor

does he claim discrimination under Section 1981. (Compl. at ¶ 30, 36, 42, 48). Accordingly,

Plaintiff has not properly pled a claim under Section 1981.

Plaintiff now references Section 1981 in the header to his arguments addressing Notre

Dame’s challenges to the Section 1983 claims. (Resp. at 8, 10, 15). He also contends that Count

III (titled “Section 1983 – First Amendment (Speech)”); Count IV (titled “Section 1983 First

Amendment (Association)”); and Count V (titled “Section 1983 – First Amendment

(Retaliation)”) should be construed as prima facie Section 1981 claims. (Id. at 16). Thus, while

Plaintiff’s alleged Section 1981 claims were not pled in his Complaint, he now attempts to

bootstrap his alleged Section 1981 claims into Counts III, IV, and V.

Notre Dame maintains that Plaintiff has not properly pled his Section 1981 claims. To

the extent this Court allows Plaintiff to claim that his Section 1981 claims were actually included

within Counts III, IV, and V, as Plaintiff now alleges, they still fail to state a claim upon which

relief can be granted. Notre Dame does not dispute that Section 1983 constitutes the exclusive

remedy against state actors for Section 1981 violations. See Greater Indianapolis Chapter of the

NAACP v. Ballard, 741 F. Supp. 2d 925, 941 (S.D. Ind. 2010). Based on Plaintiff's erroneous

theory that Notre Dame is a state actor, this is likely why Plaintiff now argues that his Section

1981 claims fall within the scope of his Section 1983 claims. However, as demonstrated above,

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Notre Dame is not a state actor. Plaintiff’s belated attempt to assert a state actor Section 1981

claim through his Section 1983 claims must fail.

Furthermore, although Section 1981 allows suits against private entities, Counts III, IV,

and V all involve claims for alleged First Amendment violations. The First Amendment, which

limits government action, does not “restrict a private employer's ability to terminate an employee

for exercising their right of free speech or right to petition the government.” Ryan v.

Underwriters Labs., Inc., 2007 U.S. Dist. LEXIS 58452 at * 29 (S.D. Ind. Aug. 8, 2007). Thus,

as a private entity, Notre Dame cannot be liable for First Amendment claims. Because Plaintiff's

sole contention, although not pled in his Complaint, is that he has properly pled Section 1981

claims in Counts III, IV, and V, and because those claims involve First Amendment claims,

those counts cannot form a basis for Section 1981 liability. Plaintiff's erroneous citation to

Lalvani v. Cook Cnty., Illinois, 269 F.3d 785 (7th Cir. 2001) does not dictate otherwise given that

Plaintiff's response brief indicates that he believes his Section 1981 claims are those that were

pled in Counts III, IV, and V.

Plaintiff’s Section 1981 claims should be dismissed because he did not properly plead

them. Alternatively, since Plaintiff now claims that his Section 1981 claims fall under Counts

III, IV, and V, which all involve Section 1983 First Amendment claims, those claims should also

be dismissed because Notre Dame is not a state actor.

CONCLUSION

WHEREFORE, Defendants respectfully ask this Court to grant their Motion to Dismiss

and order as follows:

(i) Plaintiff’s Title VII race discrimination and retaliation claims against Erin

Hoffmann Harding are dismissed. (Counts I and II, in part);

(ii) Plaintiff’s Title VII retaliation claims against the University of Notre Dame and

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Erin Hoffmann Harding are dismissed. (Count II);

(iii) Plaintiff’s Section 1983 claims against the University of Notre Dame and Erin

Hoffmann Harding are dismissed. (Counts III, IV, and V);

(iv) Plaintiff’s unpled Section 1981 claims are dismissed, or in the alternative,

Plaintiff’s Section 1981 claims are dismissed (Counts III, IV, and V); and

(v) Because all claims against Erin Hoffmann Harding have been dismissed, the case

caption shall be modified to exclude the name of Erin Hoffmann Harding from all

future pleadings.

Dated: February 10, 2014 Respectfully submitted,

BARNES & THORNBURG LLP

/s/ Alice J. Springer

Alice J. Springer

600 1st Source Bank Center

100 North Michigan

South Bend, Indiana 46601

Phone: (574) 233-1171

Facsimile: (574) 237-1125

Lindsey D. G. Dates, pro hac vice

One North Wacker Drive

Suite 4400

Chicago, Illinois 60606-2833

Phone: (312) 357-1313

Facsimile: (312) 759-5646

Kathleen K. Brickley

Associate General Counsel

UNIVERSITY OF NOTRE DAME

203 Main Building

Notre Dame, Indiana 46556

Phone: (574) 631-6411

Facsimile: (574) 631-8233

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CERTIFICATE OF SERVICE

I hereby certify that on February 10, 2014, I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF system which sent notification of such filing to the

following:

Thomas M. Dixon

Dixon, Wright & Associates, P.C.

55255 Birchwood Court

Osceola, Indiana 46561

/s/ Alice J. Springer

Alice J. Springer

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