UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

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

)

Plaintiff, )

)

v. ) No. 3:13 CV 1239

)

THE UNIVERSITY OF NOTRE DAME )

DU LAC, and ERIN HOFFMAN-HARDING, )

INDIVIDUALLY AND IN HER )

OFFICIAL CAPACITY, )

)

Defendants. )

OPINION and ORDER

In this action plaintiff Dr. G. David Moss, Ph.D. (“Moss”) alleges that The

University of Notre Dame Du Lac, acting through its employee, Erin Hoffman Harding1

denied him a promotion and demoted him on the basis of his race and as unlawful

retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§ 2000e et seq. (“Title VII”), and in addition violating the First and Fourteenth

Amendments enforceable via 42 U.S.C. § 1983. UND has moved to dismiss the bulk of

Moss’s complaint (all except Count I) pursuant to Federal Rule of Civil Procedure

12(b)(6) for failing to state a claim upon which relief can be granted. 

The court applies this standard to the motion: With the complaint’s well-pleaded

factual allegations accepted as true, dismissal for failure to state a claim pursuant to

1

 For convenience, the defendants will be referred to collectively as “UND.”

When it is necessary to refer to one of them individually, that will be made clear by the

text, typically by using the terms “Notre Dame” and the surname Hoffman-Harding.
Rule 12(b)(6) is appropriate when those facts are not enough to make a right to relief

plausible, meaning more than speculative. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007); Vinson v. Vermilion Cty., Illinois, 776

F.3d 924, 928 (7th Cir. 2015). To avoid dismissal, the complaint’s factual content must

allow the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged. Iqbal, 556 U.S. at 678. The court notes, however, that the basis of

UND’s attack on Moss’s complaint is not so much based on the facts he alleges as it is

on the legal theories he invokes.

Describing the complaint’s allegations most briefly, Moss, an African-American

male whom Notre Dame employed for over a decade as an Assistant Vice President of

Student Affairs, was denied a promotion, demoted, and threatened with termination

after he publicly spoke out against incidents of racial harassment on campus directed

against an African-American student organization named “Call to Action.” The

incidents and Moss’s reaction to them received significant publicity in the community,

causing Notre Dame embarrassment. Moss also alleges that Notre Dame’s campus is

open to the public and has stores, restaurants, a church which is Indiana’s secondlargest tourist attraction, a post office, a police force, a fire department, a health center

public roads, and more, which features and services make Notre Dame equivalent to a

“company town” as in Marsh v. Alabama, 326 U.S. 501 (1946).

Moss’s complaint contains five counts. Count I alleges that UND’s adverse

employment actions violated Title VII on the basis of Moss’s race. Count II alleges that

2
UND’s adverse employment actions constituted unlawful retaliation in violation of Title

VII. Count III alleges that UND’s actions violated Moss’s First Amendment right to free

speech in violation of 42 U.S.C. § 1983. Count IV alleges that UND’s actions violated

Moss’s First Amendment right to free association in violation of 42 U.S.C. § 1983. Last,

Count V alleges that UND’s actions deterred Moss’s First Amendment rights of free

speech and free association in violation of 42 U.S.C. § 1983.2

 UND has moved to dismiss

the retaliation claim in Count II as being beyond the scope of the charge filed with the

Equal Employment Opportunity Commission (“EEOC”), and because Moss did not

allege that he engaged in statutorily-protected activity. UND has moved to dismiss

Moss’s § 1983 claims in Counts II, IV and V because it is a private actor not acting under

color of state law, and because Moss’s speech was work-related and so not a

constitutional activity protected by § 1983.3

Count II – Retaliation

When Moss filed his charge with the EEOC, he did not check the box for

“retaliation,” only that for discrimination on the basis of race. (DE # 12-1 at 1.) The socalled “scope-of-the-charge” rule prohibits plaintiffs from bringing claims in federal

2

 In addition, the introductory paragraph of Moss’s complaint and ¶ 2, alone,

mention 42 U.S.C. § 1981. The inclusion of this statutory reference is addressed briefly

near the conclusion of this opinion and order.

3

 UND also moves to dismiss Counts I and II of the complaint to the extent, if

any, that they apply to Hoffman-Harding individually. Moss agrees that dismissal of

any individual claims against her in those counts is appropriate (DE # 14 at 1), so the

court need not discuss the matter further.

3
court that were not included in their EEOC charge, because doing so frustrates the

EEOC’s role to investigate and settle claims, and deprives the charged party of notice.

Alexander v. Gardner–Denver Co., 415 U.S. 36, 47 (1974). However, claims which are “like

or reasonably related to” the allegations in the charge and would be expected to grow

out of the EEOC’s investigation of the allegations in the charge are not beyond the

scope, and may be litigated. Vela v. Village of Sauk Village, 218 F.3d 661, 664 (7th Cir.

2000); Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). 

In response to UND’s motion, Moss argues that, although he did not check the

box for retaliation or mention his demotion, he did not understand the significance of

failing to do so because he is not a lawyer. Instead, in the “particulars” section of his

charge he gave a “brief but detailed . . . description of his tenure with Notre Dame, the

titles he held over the course of his fourteen year tenure with the University, the name

and position of his then supervisor, Defendant Erin Hoffman-Harding, and indicated

that he felt he had been passed over for a promotion in favor of a less qualified white

candidate on the basis of racial discrimination from the period of June 2012 to August

2012.” (DE # 14 at 4.) He then argues that given the publicity surrounding the

harassment incidents at UND and of his reaction to them, and the fact that all of the

events were closely related in “time, people and substance,” it was reasonable for him

to assume that the EEOC’s investigation of the events would encompass everything and

that his charge was sufficient to give UND formal notice of a problem that included

retaliation. (Id. at 5.) 

4
Moss compares his charge to that in Kristufek v. Hussmann Foodservice Co., 985

F.2d 364 (7th Cir. 1993), where plaintiff Kristufek alleged age discrimination but not

retaliation in his EEOC charge, and the Court of Appeals affirmed the district court’s

decision not to dismiss the retaliation charge as beyond the scope. Kristufek had been

told by his supervisor, Mosteller, to fire an older employee, McPherson, but refused to

do so, telling Mosteller that doing so would be age discrimination. Kristufek, 985 F.2d at

367. Kristufek himself was then fired a short time later. Both Kristufek and McPherson

filed charges and brought suit. The Court of Appeals explained:

 After Kristufek argued McPherson’s case before Mosteller on the basis of

age discrimination, he suffered retaliation. Kristufek testified that to

mention age discrimination to Mosteller only infuriated him. These

charges, his and hers, were all related in time and substance and both

focused on Mosteller’s conduct as president of Hussmann. Mosteller, the

company president, McPherson, his executive secretary, and Kristufek, the

personnel officer of Hussmann, were the people directly involved in the

charges, all part of the company’s inner circle. That should have been

enough even in a perfunctory investigation of the charges to have

revealed the retaliation aspect as part of the whole. Kristufek’s retaliation

charge grew out of McPherson’s age problem. 

Id. at 368. Observing that cases dealing with the scope-of-the-charge rule are narrowly

based on their facts and “not easy to reconcile,” the court concluded:

[I]n the present case, the factual relationship of the age and discrimination

charges of the parties is so related and intertwined in time, people, and

substance that to ignore that relationship for a strict and technical

application of the rule would subvert the liberal remedial purposes of the

Act. [Employer] Hussmann had formal notice of a problem though not

complete notice, but that should have been enough.

5
Id. at 368-69. Notably, however, the Court of Appeals said that its decision was “a close

call . . . based on these particular facts Kristufek’s EEOC filing limited to age

discrimination without mention of his retaliatory allegation was enough.” Id. at 368.

In the present case, Moss’s characterization of his EEOC charge’s particulars as

“brief but detailed” implying that he did enough to give notice of retaliation stretches

things too far. The paragraph in the charge that Moss refers to states: 

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.

As Moss admits, nothing in this paragraph mentions his demotion. More critically,

however, nothing in this paragraph hints at UND having denied him the promotion,

demoted him, and threatened him with termination, for speaking out against incidents

of racial harassment on campus and thereby causing unflattering publicity—events

which would seem to be of obvious significance whether or not one is a lawyer. Instead,

Moss’s EEOC charge reads like a straightforward charge of racial discrimination: He

was passed over for a promotion because preference was given to a less-qualified white

person.

6
If the Kristufek case was a “close call,” 985 F.2d at 368, that makes the present case

come up short. Nothing in Moss’s EEOC charge suggests that he thought he was being

discriminated/retaliated against for engaging in protected activities. Count II of Moss’s

complaint will be dismissed.

Counts III, IV and V – 42 U.S.C. § 1983

As stated earlier, UND makes two arguments. First, that it is a private, not state,

actor, and § 1983 applies only to actions taken under color of state law. Second, that

Moss’s speech was work-related and so not a constitutional activity protected by § 1983.

a. Action Under Color of State Law

As is relevant here, § 1983 provides:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory . . . subjects, or causes to be

subjected, any citizen of the United States . . . to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law . . . 

42 U.S.C. § 1983. The parties are in complete agreement as to what this means: The

essential elements a plaintiff must plausibly allege to state a claim pursuant to § 1983

are that a person “acting under color of state law” deprived the plaintiff of a “right

secured by the Constitution or federal law.” Wilson v. Warren Cty., Illinois, No. 15-1939,

2016 WL 3878215, at *2 (7th Cir. July 18, 2016). “[T]he under-color-of-state-law element

of § 1983 excludes from its reach ‘”merely private conduct, no matter how

discriminatory or wrongful.”’” American. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50

(1999) (internal citations omitted).

7
Notre Dame, as Moss admits, is privately owned. (DE # 1 at 2, ¶ 7.) He asserts,

however—as he alleged in his complaint—that Notre Dame’s campus is so open to the

public and so similar to a traditional town, containing public roads, stores, restaurants,

a post office, a police department and so forth, that it should be viewed as a municipal

entity like the company town was in Marsh v. Alabama. In moving for dismissal, UND

tackles this assertion by arguing on “Plaintiff’s ‘you let the public visit your campus to

eat Burger King and watch football games’ state action theory is not supported by the

law.” (DE # 12 at 8.) UND then cites, in the following sequence, cases which it believes

show the lack of support for plaintiff’s theory: McFadyen v. Duke Univ., 786 F. Supp. 2d

887 (M.D.N.C. 2011); Cohen v. Illinois Institute of Technology, 581 F.2d 658, 663 (7th Cir.

1978); London v. RBS Citizens, N.A., 600 F.3d 742, 748 (7th Cir. 2010); and Alcantar v.

Bridegroom, No. 2:07CV299-PRC, 2008 WL 2097575, at *1 (N.D. Ind. May 16, 2008). 

None of those cases—except Cohen—cites Marsh or discusses its “company town”

theory, and so are not persuasive. Although Cohen mentions Marsh, it does so only to

point out that unlike a previous case (Illinois Migrant Council v. Campbell Soup Co., 519

F.2d 391 (7th Cir. 1975), which is discussed below), the complaint at issue did not plead

“specific facts” intended to “establish that a ‘residential community’ maintained by the

defendants was a ‘company town’ within the meaning of Marsh.” Cohen, 581 F.2d at 663.

Here, Moss does plead specific facts which he argues show that Notre Dame is

tantamount to a company town, so Cohen also fails to persuade that Moss has a legally

unsupported theory.

8
UND then argues that Marsh itself does not specifically address the issue of what

constitutes “state action” for the purposes of a § 1983 claim, which is true, but then

asserts that “other courts have expressly ruled that Marsh does not, and cannot, apply to

private universities.” (DE # 12 at 9.) The “cannot” portion of the assertion is not

necessarily borne out by the three examples UND cites: Blackburn v. Fisk Univ., 443 F.2d

121, 124 (6th Cir. 1971); Browns v. Mitchell, 409 F.2d 593, 594 (10th Cir. 1969); and

Grossner v. Trustees of Columbia University, 287 F. Supp. 535 (S.D.N.Y. 1968). 

UND cites first, and relies most heavily, on Grossner v. Trustees of Columbia

University. In that case the plaintiffs argued that the university was performing a public

function merely by educating people, and the court explained “nothing supports the

thesis that university (or private elementary) ‘education’ as such is ‘state action.’”

Grossner, 287 F. Supp. at 549. This is a great deal different than Moss’s contention that

many aspects of Notre Dame’s campus that make it like a typical municipality. 

Browns serves UND’s argument better. In Browns, university students were

suspended after occupying a university building and refusing to leave. The students

argued that the university was like the company town in Marsh, so their suspension was

a state act. In disposing of that argument, the court stated that Marsh was “concerned

only with the delineation of public places for purposes of First Amendment activities,”

and its holding did not mean that dismissing an employee or student could “in any

sense of the word, be deemed state action.”Browns, 409 F.2d at 596. Blackburn is in the

9
same vein as Brown, and so both cases do support UND’s contention that Marsh says

nothing about what constitutes “state action” for the purposes of § 1983. 

The problem with this line of reasoning is that it runs up against the Campbell

Soup Co., decision in this circuit, a case in which the plaintiffs sought damages for

limitations on their exercise of First Amendment rights by an alleged company town.

The court reversed the district court’s dismissal, stating that the plaintiffs “alleged

sufficient facts upon which it could be concluded that the Campbell Soup Company’s

town of Prince Crossing was a company town within the meaning of Marsh v. Alabama,

and accordingly when the defendant Company acted, it did so under color of state law.”

Campbell Soup Co., 519 F.2d at 395 (emphasis added). Thus, this court does not think it

can say that Marsh could never be applied to UND4 or any private university if it can be

shown to be operating as a company town, and taking actions designed to deter and

chill activities protected by the First Amendment.

The caveat “if it can be shown” in the preceding sentence leads to Moss’s main

argument against dismissal of his complaint. He maintains that his allegations that

UND is a company town are plausible, and so sufficient, to withstand dismissal: It

would simply be premature to dismiss his complaint without letting him attempt to

prove that UND is a company town. In its reply memorandum, relying almost entirely

4

 Although not a fact relied on in any way in arriving at this decision, it is

interesting that Notre Dame’s website lists its address as “University of Notre Dame[,] 

Notre Dame, Indiana 46556.” https://www.nd.edu/about/contact/ (last accessed

September 27, 2016).

10
on the same cases cited in its opening memorandum in support of dismissal, UND

argues that dismissal is not premature, reiterating its argument that no court has

applied Marsh to a university and that it is impossible for Marsh to be used to reason

that UND might be a company town/state actor. 

As explained above, the court thinks that Campbell Soup Co. is contrary to this

claim of impossibility. Moreover, because “[d]etermining the threshold of components

necessary to constitute a company town under Marsh requires a detailed factual

analysis,” Illinois Migrant Council v. Campbell Soup Co., 574 F.2d 374, 376 (7th Cir. 1978)

the court agrees with Moss that dismissal would be premature. This court has

previously said as much. Torres v. Univ. of Notre Dame du Lac, No. 3:11-CV-209, 2012 WL

12292946, at *9 (N.D. Ind. Mar. 23, 2012) (“Court expresses doubt that the facts of this

case fit squarely within either Marsh or Burton, . . . and at a minimum, given the fact

sensitive nature of the issue, these questions are more appropriately addressed at a later

stage of the proceedings.”) The court will state clearly, however, that “not impossible”

falls far on the spectrum from “likely.” Nothing above should be taken to mean it is

likely that there will be enough facts to show that Notre Dame is a Marsh-type company

town. It is not possible now, however, to say that Moss’s allegations are so speculative

and unsupported by law that they should be dismissed.5

5

 Another argument Moss makes is that “a finding that Defendant Notre Dame is

a state actor also opens the door to personal liability for its officer and agent, Defendant

Hoffman-Harding, such that dismissal of these counts against either Defendant is

improper at this time.” (DE # 14 at 10). As UND points out in its reply, this is simply

contrary to logic. Keeping the individual defendant in the case is not a reason to find

11
b. Non-protected Work-related Speech

In paragraphs 22, 35, and 47 of his complaint, Moss alleges that his association

with and speech concerning the Call to Action student group was appropriately done

pursuant to his job duties. UND makes this one-sentence argument: 

Section 1983 does not protect acts performed pursuant to an employee’s

job responsibilities. See Garcetti v. Ceballos, 547 U.S. 410 (2006) (“We hold

that when public employees make statements pursuant to their official

duties, the employees are not speaking as citizens for First Amendment

purposes, and the Constitution does not insulate their communications

from employer discipline.”)

(DE # 12 at 10.) In Garcetti a deputy prosecutor was disciplined for statements made in a

memo he wrote pursuant to his job duties. The Court held that he could be disciplined

for the memo, because he “did not speak as a citizen by writing a memo that addressed

the proper disposition of a pending criminal case,” instead he “acted as a government

employee.” Garcetti, 547 U.S. at 422. If, however, an “employee spoke as a citizen on a

matter of public concern,” then “the possibility of a First Amendment claim arises.” Id.

at 418. 

Moss has come perilously close to pleading himself out of court. However, he

also alleges in his complaint that his speech and conduct regarding Call to Action was

“vocal and comprehensive . . . which garnered significant publicity both on and off

campus,” and that UND’s actions deterred his right to free speech and association “both

that Notre Dame is a state actor. However, because the court has not yet held that Notre

Dame cannot be a state actor, the individual claims against Hoffman-Harding will not

be dismissed.

12
inside and outside of work.” (DE # 1 at ¶¶ 21, 52.) Thus, his complaint includes

allegations that (barely) indicate that he also spoke and acted outside of his role as a

Notre Dame employee. Moss’s complaint will not be dismissed on the basis that he

alleges only non-protected speech and association.

42 U.S.C. § 1981

 As mentioned supra at 3 n.2, the introductory paragraph of Moss’s complaint

and its ¶ 2 mention 42 U.S.C. § 1981. After that, the statute goes missing from the

complaint, and UND did not address it in its motion to dismiss. In responding to the

motion, however, Moss included an argument that a “prima facie case of race or ethnicity

discrimination under § 1981 is predicated on the same elements as an ethnicity

discrimination claim under Title VII,” and because he has “sufficiently alleged his Title

VII claims against Defendant Notre Dame, he has also sufficiently alleged his 42 U.S.C.

§ 1981 claims.” (DE # 14 at 16, 17.) This caused UND to argue in its reply:

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. 

As explained above, it is too early to definitively declare that Notre Dame is a state

actor. 

In addition, although the court agrees with UND that it is not at all clear from the

complaint what role Moss intends for § 1981 to play in this litigation:

13
[M]atching facts to a legal theory was an aspect of code pleading interred

in 1938 with the adoption of the Rules of Civil Procedure. See Bartholet v.

Reishauer A.G. (Zurich), 953 F.2d 1073, 1077-78 (7th Cir. 1992). A complaint

must narrate a claim, which means a grievance such as “the City violated

my rights by preventing me from renovating my apartments.” Having

specified the wrong done to him, a plaintiff may substitute one legal

theory for another without altering the complaint.

Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir. 1997). Because the court is not

dismissing the claims asserted in Counts I, III, IV and V of Moss’s complaint, and

because legal theories are not claims, there is no reason to “dismiss” § 1981 from the

complaint.

Conclusion

For the foregoing reasons, defendants’ motion to dismiss plaintiff’s complaint is

GRANTED in part and DENIED in part; Count I of the Complaint is DISMISSED

against Erin Hoffman Harding, only; Count II of the complaint is DISMISSED.

SO ORDERED.

Date: September 27, 2016

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT