United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING INDIVIDUAL DEFENDANTS'
MOTION TO DISMISS (ECF No. 29)
F. Cox United States District Judge.
September 2016, racist graffiti appeared on the campus of
Eastern Michigan University. Students protested, and the
University instituted disciplinary action 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 brought 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 brought 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
February 14, 2019, the Individual Defendants filed a motion
to dismiss the § 1983 claims, arguing that they are
entitled to qualified immunity. (ECF No. 28). For the reasons
below, the Court will deny the Individual Defendants'
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.
first page of the Individual Defendants's brief in
support of their motion to dismiss, they argue that “HN
in C” is commonly understood to mean “Head
Ni**ers in Charge.” Individual Defs.' Br. 1 (ECF
No. 29, PageID 217) (redaction added). 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). Higbee asserts that this
phrase has a non-offensive, academic definition. Higbee Aff.
¶ 6-7 (ECF No. 35, PageID 611).
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 temporarily banned
Higbee from campus and from using its email system.
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 the first two counts, Higbee alleged state-law claims of
retaliatory discharge against the University and the Board of
Regents, respectively. In the other fifteen counts, Higbee
alleged First Amendment retaliation claims, by way of §
1983, against the individual Regents and University
administrators who made the decision to suspend
February 14, 2019, the Individual Defendants filed their
pending motion to dismiss, arguing that they are entitled to
qualified immunity because they did not violate a clearly
established First Amendment right by disciplining Higbee for
his use of the term “HN in C.” Higbee filed a
response to this motion. (ECF No. 33). The Individual
Defendants filed a reply. (ECF No. 37). The Court heard oral
argument on this motion on May 30, 2019.
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of a case where the complaint fails to state a claim upon
which relief can be granted. The Court must construe the
complaint in the light most favorable to the plaintiff and
accept its allegations as true. DirectTV, Inc. v.
Treesh, 487 F.3d 471, 476 (6th Cir. 2007). To survive a
motion to dismiss, the complaint must offer sufficient
factual allegations that make the asserted claims plausible
on their face. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). Legal conclusions couched as factual
allegations will not suffice. Rondigo, LLC v. Township of
Richmond, 641 F.3d 673, 670 (6th Cir. 2011). Rather,
“[a] claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
addition to the allegations in the complaint, the Court may
also consider “other materials that are integral to the
complaint, are public records, or are otherwise appropriate
for the taking of judicial notice.” Ashland, Inc.
v. Oppenheimer & Co., Inc., 648 F.3d 461, 467 (6th
The Individual Defendants' Motion
Counts III through XVII, Higbee alleges § 1983 claims
against the Individual Defendants for First Amendment
retaliation. The Individual Defendants argue that qualified
immunity shields them from these claims. “Government
officials who perform discretionary functions are entitled to
qualified immunity from civil damage suits arising out of the
performance of their official duties unless they violate
clearly established constitutional rights of which a
reasonable person would have known.” Purisch v.
Tennessee Technological University, 76 F.3d 1414, 1423
(6th Cir. 1996) (internal citations omitted). In other words,
public officials are eligible for qualified immunity if (1)
they did not violate any constitutional guarantees or (2) the
guarantee, even if violated, was not “clearly
established” at the time of the alleged misconduct.
Pearson v. Callahan, 555 U.S. 223, 232 (2009). Both
inquiries are “objective, ” as they turn on what
the law is today and whether it was clearly established at
the time of the challenged action. Harlow v.
Fitzgerald, 457 U.S. 800, 818-819 (1982).
purpose of a qualified immunity defense is not only
protection from civil damages but protection from the rigors
of litigation itself, including the potential disruptiveness
of discovery.” Summers v. Leis, 368 F.3d 881,
886 (6th Cir. 2004). Accordingly, “a qualified immunity
defense can be raised at various stages of the litigation[, ]
including at the pleading stage in a motion to dismiss, after
discovery in a motion for summary judgment, or as a
affirmative defense at trial.” English v.
Duke, 23 F.3d 1086, 1089 (6th Cir. 1994). However, even
though entitlement to qualified immunity “is a
threshold question to be resolved at the earliest possible
point, that point is usually summary judgment and not
dismissal under Rule 12.” Wesley v. Campbell,
779 F.3d 421, 433-434 (6th Cir. 2015) (internal citations
omitted) (collecting ...