United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING INSTITUTIONAL
DEFENDANTS' MOTION TO DISMISS (ECF No. 28)
F. Cox United States District Court Judge
September 2016, racist graffiti appeared on the campus of
Eastern Michigan University. Students protested, and the
University instituted disciplinary actions against the
protestors. Almost a year later, a former student was
arrested for the vandalism. In the arrest's aftermath,
Plaintiff-a history professor at the University-posted a
message in a public Facebook group, criticizing the
University's response to the graffiti and referring to
African American administrators as ‘‘HN in C'
functionaries.” The University interpreted this phrase
as a racial slur and suspended Plaintiff, without pay, for
one semester. Plaintiff filed a grievance through his union,
and an arbitrator reversed his suspension.
December 4, 2018, Plaintiff filed this lawsuit, alleging two
sets of claims. First, Plaintiff brings retaliatory discharge
claims under Michigan's Elliott-Larsen Civil Rights Act
(“ELCRA”) against the University and its Board of
Regents (“the Institutional Defendants”). Second,
Plaintiff brings First Amendment retaliation claims, under 42
U.S.C. § 1983, against the individual Regents and other
administrators who decided to punish him for the post
(“the Individual Defendants”).
February 14, 2019, the Institutional Defendants filed a
motion to dismiss the ELCRA claims. (ECF No.
For the reasons below, the Court will grant the Institutional
Defendants' motion and dismiss the ELCRA claims.
Mark Higbee is a Professor of American History at Eastern
Michigan University. Defs. Stat. of Material Facts ¶ 1.
(ECF No. 27, PageID 94). Higbee teaches courses on African
American History. Id. at ¶ 2.
September 2016, racist messages were spray-painted on a
residence hall at the University. Id. at ¶ 13;
Ex. 3 (ECF No. 27-4). More racist graffiti appeared the next
month. Id. Students protested the graffiti by
organizing a peaceful sit-in at a University building.
Id. After the protesters refused to leave the
building at closing time, the University disciplined them by
issuing formal reprimands and deferred suspensions.
Id. The University later dropped all disciplinary
action against the protesters. Id. Pl.'s
Counter-Stat. Of Material Facts ¶ 15. (ECF No. 35,
than a year after the first act of vandalism, an African
American former student of the University was arraigned on
criminal charges for creating the graffiti. Defs. Stat. of
Material Facts. ¶ 16. In the aftermath of the
arraignment, Higbee wrote the following post in
“EMUTalk, ” a public Facebook group:
EMU administrators, a small group of well paid white guys in
suits (plus one woman and a few lower level “HN in
C” functionaries), lacked the insight to imagine that
they could ever, possibly, be remotely seen as responsible
for institutional racist practices. And so they continued to
act as the aggrieved party, needlessly alienating students
who objected to racism. Why EMU officials, earning six
figures or more, took this stance can only be explained by a
combination of 1. ignorance about what racism is, 2.
overconfidence that they are the good guys, 3. a lack of
knowledge of EMU specifically and of higher education
Compl. ¶ 26.
their motion to dismiss, the Institutional Defendants argue
that “HN in C” is commonly understood to stand
for “Head Nigger in Charge.” Institutional
Defs.' Br. 4, n.5 (ECF No. 28, PageID 142) (collecting
cases in which a court has noted this meaning). In response,
Higbee contends that, among scholars of the African American
experience, “HN in C” is commonly understood to
mean “Head Negro in Charge.” Higbee Aff. ¶
5. (ECF No. 34, PageID 524-525).
December 13, 2017, the University suspended Higbee, without
pay, for one semester and required him to attend and complete
a one-on-one training session with a professional consultant.
Compl. at ¶ 27. The University also banned Higbee from
campus and from using its email system. Id.
member of the University's Chapter of the American
Association of University Professors, Higbee grieved his
suspension and discipline. Id. at ¶ 29. On July
23, 2018 arbitrator Barry Goldman reversed the
University's sanctions. Id. at ¶ 31.
December 4, 2018, Higbee filed his seventeen-count complaint
in this action. In the first two counts, Higbee alleges
state-law claims of retaliatory ...