Dixon V Univtoledo Complaint 12 08

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO CRYSTAL DIXON, Civil Case No. ________________ Plaintiff, v.

UNIVERSITY OF TOLEDO; LLOYD JACOBS, individually and in his official capacity, President, University of Toledo; WILLIAM LOGIE, individually and in his official capacity Vice President for Human Resources and Campus Safety, University of Toledo;

COMPLAINT Hon. _______________

Defendants. Plaintiff Crystal Dixon (“Plaintiff”), by and through her undersigned counsel, brings this Complaint against the above-named Defendants, their employees, agents and successors in office, and in support thereof, alleges the following: INTRODUCTION 1.

This action asserts Plaintiff’s fundamental constitutional rights protected

by the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. Defendants, by means of their acts, omissions, policy, practice, and/or custom, have punished Plaintiff’s private political speech on account of its viewpoint by terminating her government employment at the University of Toledo in violation of Plaintiff’s right to freedom of speech protected by the First Amendment. Furthermore, Defendants have in place a policy, practice, and/or custom that grants them unbridled discretion to subjectively determine which political speech is permitted and which

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political speech is restricted in violation of the First Amendment. Finally, Defendants have denied Plaintiff access to a forum for her speech based on its viewpoint, thereby depriving Plaintiff of the equal protection of the law guaranteed by the Fourteenth Amendment. 2.

As a result of Defendants’ violations of Plaintiff’s fundamental rights,

Plaintiff seeks declaratory and injunctive relief as well as nominal, compensatory, and punitive damages, and attorneys’ fees and costs. JURISDICTION AND VENUE 3.

This action arises under the First and Fourteenth Amendments to the

United States Constitution and 42 U.S.C. § 1983. Jurisdiction is conferred on this court pursuant to 28 U.S.C. §§ 1331 and 1343. 4.

Plaintiff’s claims for declaratory and injunctive relief are authorized

pursuant to 28 U.S.C. §§ 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal and equitable powers of this court. 5.

This court is authorized to award nominal, compensatory, and punitive

damages for the past loss of Plaintiff’s constitutional rights and the harm caused by Defendants’ actions pursuant to 42 U.S.C. § 1983. 6.

This court is authorized to award reasonable costs of litigation, including

attorneys’ fees and expenses, pursuant to 42 U.S.C. § 1988. 7.

Venue is appropriate in the Northern District of Ohio pursuant to 28

U.S.C. § 1391(b), because a substantial part of the events or omissions giving rise to Plaintiff’s claims occurred within this district.

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PLAINTIFF 8.

Plaintiff is and was at all relevant times herein a resident of Maumee,

9.

Plaintiff was at all relevant times herein employed by the University of

Ohio.

Toledo, a government institution. DEFENDANTS 10.

The University of Toledo (“University”), located in Toledo, Ohio, is a

public entity established and organized under the laws of Ohio, with the authority to sue and be sued in its own name. 11.

The University is charged with carrying out its own administrative and

educational operations and promulgates the policies, practices, and/or customs in furtherance thereof. 12.

At all relevant times herein the University was a “person” acting under

the color of state law pursuant to 42 U.S.C. § 1983. 13.

Defendant Lloyd Jacobs, at all relevant times herein, was President of the

University and acting under color of state law. Defendant Jacobs is responsible for creating, adopting, and implementing University policies, practices, and/or customs, including those challenged within this Complaint. Defendant Jacobs is sued individually and in his official capacity. 14.

Defendant William Logie, at all relevant times herein, was the Vice

President for Human Resources and Campus Safety at the University and acting under color of state law.

Defendant Logie is responsible for creating, adopting, and

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implementing University policies, practices, and/or customs, including those challenged within this Complaint. Defendant Logie is sued individually and in his official capacity.

STATEMENT OF FACTS 15.

Prior to July 1, 2006, Plaintiff was employed full-time as the Acting

Administrator for Human Resources at the Medical University of Ohio (“MUO”). Plaintiff was recruited by Defendant Logie to MUO and Plaintiff’s career at MUO was one of upward career advancement based upon her stellar job performance. 16.

On or about July 1, 2006, the University merged with MUO, creating the

University as it exists today, with approximately 22,000 students and 7,700 employees. 17.

From about July 2006 to July 2007, Plaintiff was employed full-time by

the University as Associate Vice President for Human Resources—Health Science Campus (formerly MUO). 18.

On or about July 2007, Plaintiff was promoted to the position of interim

Associate Vice President for Human Resources over all University campuses. 19.

On or about April 3, 2008, Plaintiff read an opinion piece published in the

Toledo Free Press authored by Michael Miller titled “Lighting the Fuse: Gay Rights and Wrongs.” Miller’s opinion piece equated homosexual activity with the struggles of African-American civil rights victims. Plaintiff disagreed with the viewpoint advanced by Miller’s piece and decided to submit her own opinion piece to the Toledo Free Press in order to express her personal viewpoint on this matter of public concern. 20.

Plaintiff, an African-American woman and sincere practicing Christian,

believes that homosexuality is a grave offense against the Law of God and that comparing homosexual activity with the struggles of African-American civil rights

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victims is absurd and untenable because she believes homosexuality is a lifestyle choice and not an immutable or inherent genetic and biological characteristic like skin or eye color. 21.

On or about April 15, 2008, Defendant Logie made Plaintiff the

permanent Associate Vice President for Human Resources over all University campuses. Defendants Jacobs and Logie were Plaintiff’s direct supervisors. 22.

On or about April 18, 2008, Plaintiff’s opinion piece, titled “Gay Rights

and Wrongs: Another Perspective,” was published in the Toledo Free Press online edition.

Plaintiff expressed her opinion, stating “I respectfully submit a different

perspective for Miller and Toledo Free Press readers to consider. … I take great umbrage at the notion that those choosing the homosexual lifestyle are civil rights victims.” Plaintiff signed off on her opinion piece as “Crystal Dixon.” 23.

Plaintiff did not write her opinion piece as part of her official duties at the

University and she did not intimate that she was writing on behalf of the University. Plaintiff wrote her opinion piece as a private citizen addressing a matter of public concern. 24.

On or about April 18, 2008, Defendant Logie informed Plaintiff that “he

knew her article was printed online, that he had a steady stream of people in his office complaining about it, that he was considering placing her on administrative leave pending his review of University policies and procedures, and that he was concerned with her leadership,” or words to that effect. Plaintiff asked Defendant Logie what she had done wrong and he stated that “he did not yet know,” or words to that effect.

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On or about April 21, 2008, Defendant Logie placed Plaintiff on

administrative leave pending an investigation. Defendant Logie informed Plaintiff “he did not yet know what the investigation would entail but that it could take about three weeks to complete because Defendant Jacobs was in China,” or words to that effect. 26.

On or about May 2, 2008, an opinion piece authored by “Dr. Lloyd

Jacobs, University of Toledo President” was published in the Toledo Free Press. Defendant Jacobs stated in relevant part “Crystal Dixon is associate vice president for Human Resources at the University of Toledo, her comments do not accord with the values of the University of Toledo. … It is necessary, therefore, for me to repudiate much of her writing. ... We (the University) will be taking certain internal actions in this instance to more fully align our utterances and actions with this value system. … It is my hope there may be no misunderstanding of my personal stance, nor the stance of the University of Toledo, concerning the issues of “Gay Rights and Wrongs. … Dr. Lloyd Jacobs is president of the University of Toledo.” 27.

On May 5, 2008, Plaintiff was ordered by Defendants to appear at a

hearing where Defendant Jacobs informed her “he was considering disciplinary action in view of the letter you (Plaintiff) wrote and the reaction to it,” or words to that effect. 28.

On May 12, 2008, Plaintiff received a letter from Defendants dated May 8,

2008, indicating that effective immediately her employment at the University was terminated in relevant part because “the public position you have taken in the Toledo Free Press is in direct contradiction to University policies and procedures as well as the Core Values of the Strategic Plan which is mission critical.”

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29.

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In about June 2008, Defendant Jacobs stated further that “Plaintiff was

fired for her speech and that her termination was not based upon her job performance,” or words to that effect. 30.

In July 2008, Defendants filled Plaintiff’s former position with a deposed

former University Dean who had recently resigned after Defendants’ faculty publicly voiced concerns about his leadership. Defendants pay this individual $40,000 more annually than Plaintiff was paid to perform the same or similar duties. 31.

On numerous other occasions Defendants’ employees have publicly

expressed personal opinions and viewpoints about various political and social issues. Excluding Plaintiff, not once have Defendants terminated any employee for publicly expressing personal views on public issues. Consequently, there are no narrowly drawn, reasonable, and definite standards or objective factors guiding the decisions of Defendants, thereby granting Defendants unbridled discretion to subjectively determine on an ad hoc basis which speech is permitted and which speech is prohibited. 32.

Pursuant to Defendants’ acts, omissions, policy, practice, and/or custom,

Defendants made a subjective determination based upon Plaintiff’s private political speech to terminate Plaintiff’s public employment, while other employees at the University were allowed to express various messages without being punished. 33.

Plaintiff expressed her personal opinion about homosexuality and civil

rights. Plaintiff’s political speech was not expressed as part of her official duties at the University; however, Plaintiff’s protected speech was a substantial or motivating factor in Defendants terminating her employment at the University.

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34.

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Public employees do not surrender their First Amendment rights by reason

of their employment. The First Amendment protects a public employee’s right to speak as a citizen addressing matters of public concern. Plaintiff’s opinion piece in the Toledo Free Press was political speech, constituting personal expression, and is therefore subject to the highest degree of First Amendment protection. 35.

Defendants, by their acts, omissions, policy, practice, and/or custom, have

punished Plaintiff for expressing her political messages while allowing other University employees to speak freely, thereby restricting speech based upon its content and viewpoint. 36.

Defendants’ acts, omissions, policy, practice and/or custom do not

comport with constitutional safeguards protecting speech and were enforced against Plaintiff merely upon Defendants’ desire to avoid the discomfort or unpleasantness that sometimes might accompany what could constitute an unpopular viewpoint. 37.

Defendants’ acts, omissions, policy, practice, and/or custom are

unconstitutional as applied to Plaintiff’s speech as set forth in this Complaint. 38.

Defendants’ policy is unconstitutional because it allows for ad hoc

suppression of speech based upon Defendants’ subjective assessments made under impermissibly vague standards of determining which messages are acceptable and which are not. 39.

Defendants’ policy is unconstitutional because it reaches more broadly

than is reasonably necessary to protect legitimate state interests at the expense of protected First Amendment freedoms.

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40.

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Plaintiff’s political messages cannot be banned by Defendants. The mere

expression of the ideas and viewpoint in Plaintiff’s opinion piece did not—and as a matter of law could not—warrant the punishment meted out by Defendants. 41.

Plaintiff, an African-American Christian, took umbrage with a newspaper

opinion piece equating homosexuality with the civil rights struggles of racial minorities. Plaintiff rebutted this opinion by submitting her own opinion piece in the same newspaper, only to be fired from her job by the government for doing so—a University nonetheless, supposedly a marketplace for ideas—who then, without any adverse consequences, published its own opinion piece in the same newspaper to rebut Plaintiff’s opinion piece. To add insult to injury, Defendants—the government—then replaced Plaintiff with a less qualified and officially disgraced person and paid him substantially more than the Plaintiff. 42.

Defendants’ outrageous, reckless, and wanton actions and omissions have

chilled Plaintiff’s constitutionally protected speech, and caused her emotional distress, lost wages and income, and substantially affected her future earning capacity and potential. FIRST CLAIM FOR RELIEF Freedom of Speech—First Amendment (42 U.S.C. § 1983) 43.

Plaintiff hereby incorporates by reference all above-stated paragraphs.

44.

By reason of the aforementioned acts, omissions, policy, practice, and/or

custom, engaged in under color of state law, Defendants have deprived Plaintiff of her right to freedom of speech under the First Amendment to the United States Constitution as applied to the states and their political subdivisions under the Fourteenth Amendment 9

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to the United States Constitution and 42 U.S.C. § 1983, in that Defendants have punished Plaintiff by terminating her government employment based upon the viewpoint of her political speech, expressed as a private citizen on a matter of public concern, with no compelling state interest that could justify such action. 45.

Defendants have in place a policy, practice, and/or custom that grants

them unbridled discretion to subjectively determine which political speech is permitted and which political speech is not permitted in violation of the First Amendment and by reason of the acts, omissions, policy, practice and/or custom, as set forth in this Complaint, Defendants have violated Plaintiff’s right to freedom of speech under the First Amendment to the United States Constitution as applied to the states and their political subdivisions under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 46.

As a direct and proximate result of Defendants’ violation of the Free

Speech Clause of the First Amendment, Plaintiff has suffered injury and irreparable harm, including the loss of her constitutional rights, entitling her to declaratory and injunctive relief and damages. SECOND CLAIM FOR RELIEF Equal Protection—Fourteenth Amendment (42 U.S.C. § 1983) 47.

Plaintiff hereby incorporates by reference all above-stated paragraphs.

48.

By reason of the aforementioned acts, omissions, policy, practice, and/or

custom, engaged in under the color of state law, Defendants have deprived Plaintiff of the equal protection of the law guaranteed under the Fourteenth Amendment to the United States Constitution by punishing Plaintiff for expressing her political viewpoint as a 10

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private citizen on a matter of public concern in a local newspaper, while permitting government employees to express the government’s viewpoint on the same matter in the same local newspaper, thereby denying the use of this forum to those viewpoints which Defendants find unacceptable. 49.

As a direct and proximate result of Defendants’ violation of the Equal

Protection Clause of the Fourteenth Amendment, Plaintiff has suffered injury and irreparable harm, including the loss of her constitutional rights, entitling her to declaratory and injunctive relief and damages. PRAYER FOR RELIEF WHEREFORE, Plaintiff asks that this Court: A)

declare Defendants have violated Plaintiff’s constitutional rights by

censoring her speech and by punishing her by terminating her employment for engaging in protected speech activities based on the viewpoint of her speech as set forth in this Complaint; B)

declare Defendants’ acts, omissions, policy, practice and/or custom are

unconstitutional as set forth in this Complaint; C)

order that Plaintiff be reinstated to the position she held at the time of her

termination, or in the alternative, order that Plaintiff receive front pay for a reasonable period of time; D)

order that Plaintiff receive full back pay;

E)

retain jurisdiction of this matter for the purpose of enforcing this Court’s

orders;

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F)

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award nominal and compensatory damages against all Defendants and

punitive damages against Defendants Jacobs and Logie in their individual capacities pursuant to 42 U.S.C. § 1983 and other applicable law; G)

award Plaintiff reasonable attorneys’ fees, costs and expenses pursuant to

42 U.S.C. § 1988 and other applicable law; H)

to grant such other relief as this Court should find just and proper. DEMAND FOR JURY TRIAL

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff hereby demands a trial by jury of all issues triable of right by a jury. Respectfully Submitted, THOMAS MORE LAW CENTER By: /s/Brandon M. Bolling Brandon M. Bolling, Esq. (MI P60195; RI 7728) P.O. Box 393 24 Frank Lloyd Wright Drive Ann Arbor, MI 48106 Phone: 734.827.2001 Fax: 734.930.7160 E-mail: [email protected] *Admission Pro Hac Vice Pending LAW OFFICE OF THOMAS A. SOBECKI By: /s/ Thomas A. Sobecki Thomas A. Sobecki (OH 0005210) 405 Madison Avenue, Suite 910 Toledo, Ohio 43604 Phone: 419-242-9908 Fax: 419-242-9937 E-mail: [email protected] Attorneys for Plaintiffs Dated: December 1, 2008

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