                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 18-2951
                                      _____________

                           SNJEZANA JELACA BAGIC, DDS,
                                            Appellant

                                              v.

                              UNIVERSITY OF PITTSBURGH;
                   BERNARD J. COSTELLO, DMD, MD, individually,
              and in his official capacity as Associate Dean for Faculty Affairs
                 of the University of Pittsburgh School of Dental Medicine
                                      _______________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                 (D.C. No. 2-18-cv-0511)
                         District Judge: Hon. Arthur J. Schwab
                                    _______________

                        Submitted Under Third Circuit LAR 34.1(a)
                                      June 3, 2019

           Before: SMITH, Chief Judge, JORDAN, and MATEY, Circuit Judges.

                                   (Filed: June 11, 2019)
                                     _______________

                                        OPINION
                                     _______________




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       Snjezana Bagic appeals the District Court’s dismissal of her complaint under 42

U.S.C. §§ 1981 and 1983 alleging ethnic discrimination. For the reasons that follow, we

will vacate and remand.

I.     BACKGROUND1

       Beginning in 2008, Bagic was an instructor and faculty member at the University

of Pittsburgh’s School of Dental Medicine (the “University” or “Dental School”). Long

before that, in the early 1990s, she had fought in what she calls “the Patriotic War in

Croatia.” (App. at 79.) At some point after she began working at the University, she

came into conflict with her colleague Sean Noonan, an Assistant Professor at the Dental

School. Bagic became concerned that Noonan had been “abus[ing] his privileges as a

faculty member,” so, “on more than one occasion, [she] made complaints and/or

informed” her Department Chair about Noonan’s actions. (App. at 77-78.) Bagic also

personally raised her concerns with Noonan.

       As a result of their dispute, “Noonan undertook a settled plan for the purpose of

discrediting Bagic and preventing [her] from interfering with his activities.” (App. at 78.)

To that end, “Noonan falsely stated to several University related individuals that Bagic

threatened to kill him.” (App. at 79.) Specifically, “Noonan alleged to University

personnel that Bagic [had] indicated [that] she had killed before in the war and would kill

       1
          The facts are based upon Bagic’s amended complaint, with all reasonable
inferences drawn in her favor. See Blanyar v. Genova Prods. Inc., 861 F.3d 426, 431 (3d
Cir. 2017) (“When considering a Rule 12(b)(6) motion, we ‘accept all factual allegations
as true, [and] construe the complaint in the light most favorable to the plaintiff[.]’”
(citation omitted)).
                                             2
him.” (App. at 79.) And Noonan asked Bagic, in front of University faculty members, if

“she was armed[.]” (App. at 79 (quotation marks omitted).)

       Noonan’s allegations resulted in an investigation, and another faculty member,

Bernard Costello, was tasked with investigating the alleged threats. According to Bagic,

however, Costello “undertook a biased investigation” “with a predetermined result.”

(App. at 79.) That bias was in part proven, she says, by handwritten notes from that

investigation showing an emphasis on her ethnicity and her time on “the front lines” of

the Croatian war. (App. at 81 (quotation marks omitted).) The investigation led to

Costello “falsely represent[ing] [to the University] that Bagic had admitted on several

occasions to threatening to kill Noonan[.]” (App. at 80.) Following the investigation, the

University terminated Bagic’s employment.

       She then pursued an internal appeal. The hearing panel assigned to the appeal

recommended, and the University Chancellor found, that: (1) “[t]he information provided

by Costello to [the University] was not reliable;” (2) “Costello’s investigation was

flawed;” (3) “[t]he Dental School was unable to establish Bagic had threatened to kill

Noonan;” (4) “Bagic’s termination was unreasonable;” and (5) “Bagic’s alleged threats to

kill Noonan could not be substantiated.” (App. at 81.) Nonetheless, the University

refused to reinstate Bagic.

       Bagic then filed suit in the United States District Court for the Western District of

Pennsylvania, claiming that the University and Costello (the “Defendants”) discriminated

against her on the basis of her Croatian ethnicity, in violation of 42 U.S.C. § 1981. The

Defendants moved to dismiss Bagic’s claim and that motion was granted, but Bagic was

                                             3
given leave to amend. She did so,2 and the Defendants again moved to dismiss.

Attached to that motion were excerpts from the University internal appeal proceeding and

Costello’s investigation. Based on those documents and the allegations in Bagic’s

complaint, the District Court concluded that Bagic had failed to adequately plead

discrimination based on her Croatian ethnicity, despite observing that it was “somewhat

unclear what the specific threat [made by Bagic] was” and that Costello’s references to

her time “‘on the front lines’ in the Croatian war seemingly would indicate a bias against

her on the basis of her ethnicity[.]” (App. at 8 n.2, 10 (citation omitted).)

       Bagic timely appealed.

II.    DISCUSSION3

       Invoking 42 U.S.C. §§ 1981 and 1983, Bagic alleges that, based on Costello’s

biased investigation, the University terminated her employment because of her ethnicity.

To establish a right to relief, Bagic “must show … an intent to discriminate on the basis

of race by the defendant[.]”4 Pryor v. Nat’l Collegiate Athletic Ass’n., 288 F.3d 548, 569


       2
        In her amended complaint, Bagic made clear that her claims were under both 42
U.S.C. §§ 1981 and 1983.
       3
         The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have
jurisdiction pursuant to 28 U.S.C. § 1291. “We exercise plenary review of a district
court’s decision to grant a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6).” Blanyar, 861 F.3d at 431.
       4
         In all, Bagic “must show (1) that [s]he belongs to a racial minority;” (2)
discriminatory intent; “and (3) discrimination concerning one or more of the activities
enumerated in § 1981, including the right to make and enforce contracts.” Pryor v. Nat’l
Collegiate Athletic Ass’n., 288 F.3d 548, 569 (3d Cir. 2002) (citations and internal
quotation marks omitted). Ethnicity is covered by the category of race. See e.g., Fisher
v. Univ. of Texas at Austin, 570 U.S. 297, 310 (2013) (discussing equal protection claims,
                                              4
(3d Cir. 2002) (citation and internal quotation marks omitted). But she is not required to

prove discriminatory intent at the motion to dismiss stage, rather she “need only put forth

allegations that raise a reasonable expectation that discovery will reveal evidence of [it].”

Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (citation and internal

quotation marks omitted).

       The District Court concluded that Bagic’s allegations were “wholly unsupported”

(App. at 8), and that she failed to “set forth sufficient allegations, beyond mere

conclusory and speculative statements, that her Croatian ethnicity was the basis for the

University’s actions.” (App. at 7.) But the pleadings and associated documents paint a

different picture, if viewed from Bagic’s perspective. It appears that, at the pleading

stage, enough has been alleged to raise a question of fact about the severity of her

supposed threat, and the District Court failed to draw reasonable inferences in her favor.

       A.     The District Court Erred in Granting the University’s Motion to Dismiss

       Bagic argues that the District Court, in granting the University’s motion to

dismiss, “improperly weighed evidence” and “ignored … evidence … that no threat ever

occurred.” (Opening Br. at 13.) We agree that the Court did not give her allegations

their due.

       When considering a dismissal pursuant to Rule 12(b)(6), “we must accept as true

all plausible facts alleged in [the plaintiff’s] complaint and draw all reasonable inferences

in her favor[,]” In re Asbestos Prods. Liab. Litig. (No. VI), 822 F.3d 125, 131 (3d Cir.


“any official action that treats a person differently on account of his race or ethnic origin
is inherently suspect” (citation omitted)).
                                              5
2016), “constru[ing] the complaint in the light most favorable to [her.]” Blanyar v.

Genova Prod. Inc., 861 F.3d 426, 431 (3d Cir. 2017) (citation and internal quotations

omitted); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a

claim to relief that is plausible on its face.” (citation omitted)). A district court may not

“weigh[] the credibility of the parties’ positions on” “a question of disputed material

fact[]” at the motion to dismiss stage, but rather “should … le[ave] such considerations to

a jury.” Anjelino v. New York Times Co., 200 F.3d 73, 97 (3d Cir. 1999).

       Here, there was a question of fact pertaining to whether Bagic threatened

Noonan’s life. Based on certain excerpts from the record of the University’s internal

appeal,5 the District Court said that Bagic admitted to “Costello that she had threatened

her colleague.” (App. at 8.) We do not read the record that way, and perhaps the District

Court actually does not either, at least not that starkly. The Court acknowledged that,

after “[v]iewing this sworn testimony … in the light most favorable to Plaintiff, it seems

there may have been a misunderstanding[,]” as Bagic “may have been trying to explain

that her ‘threat’ towards Dr. Noonan was [only] a threat to write a letter of complaint

about him.” (App. at 8 n.2 (emphasis added).) Nevertheless, despite it being “somewhat


       5
         Those excerpts were attached in support of Defendants’ Motion to Dismiss and
were central to and referenced in Bagic’s complaint. Thus, the District Court did not err
in its consideration of those documents. See Santomenno ex rel. John Hancock Tr. v.
John Hancock Life Ins. Co. (U.S.A), 768 F.3d 284, 291 (3d Cir. 2014) (“[D]ocuments that
the defendant attaches to the motion to dismiss are considered part of the pleadings if
they are referred to in the plaintiff’s complaint and are central to the claim.” (citation and
internal quotation marks omitted)). Bagic concedes that “the law clearly allows the
District Court to review th[o]se documents.” (Reply Br. at 3-4.)
                                               6
unclear what the specific threat was[,]” the Court concluded that it could not “find that

Dr. Costello’s actions in recommending the termination of Plaintiff’s contract were the

result of purposeful discrimination.” (App. at 8 n.2.) There are two problems with that

conclusion.

       First, the resolution of “what the specific threat was” is a material question of fact

that should have prevented dismissal. See Anjelino, 200 F.3d at 97 (concluding that the

district court, on a motion to dismiss, improperly weighed the credibility of the parties’

positions on a disputed material fact); Marks v. CDW Comput. Ctrs., Inc., 122 F.3d 363,

367 (7th Cir. 1997) (stating that whether plaintiffs had sufficient information to put them

on notice of their claims is a question of fact and is “often inappropriate for resolution on

a motion to dismiss under Rule 12(b)(6)”). The District Court explicitly noted the

ambiguity regarding the threat, but did not recognize its import. Bagic alleges that

Costello reported her statements as a legitimate threat against Noonan “solely based on

her Croatian nationality and background[,]” and that, upon learning of that allegation,

others at the University “would jump to the conclusion that as a Croatian, [she] would be

likely to harm a staff member[.]” (App. at 82.) Therefore, if the threat was indeed

falsely reported, its propagation throughout the University’s investigation and subsequent

appellate procedures raises a question of discriminatory intent. And, lest we forget, the

hearing panel on the University’s internal appeal recommended, and the Chancellor

found, that the existence of a death threat was unsubstantiated. The false accusation of a

death threat, exaggerated from a mere professional complaint, may be a symptom of deep



                                              7
animus based on Bagic’s ethnicity, and, depending on other evidence, could bolster

Bagic’s claim.

       Second, to the extent there was ambiguity about the nature of Bagic’s threat, the

District Court was required to draw all inferences in her favor.6 Similarly, Costello’s

emphasis on Bagic’s time fighting in Croatia could lead to an inference in Bagic’s favor.

As the District Court said, the notes “seemingly would indicate a bias against her on the

basis of her ethnicity[.]” (App. at 10 (emphasis added).) At the pleading stage, she’s

entitled to the benefit of that inference. It was error for the Court to go on and say,

“viewed in context … the notes seem to merely be references to the actual subjects

discussed[.]”7 (App. at 10 (emphasis added).) When considering a motion to dismiss, a

district court cannot weigh competing inferences and forgo drawing a reasonable one in

the plaintiff’s favor.8


       6
         The complaint’s allegations regarding the University’s internal appeal findings
can support the conclusion that Bagic’s alleged threat was a permissible professional
complaint. For example, based on the University Hearing Panel’s findings, a fact-finder
in this case could conclude that: (1) Costello was unreliable; (2) “Bagic’s alleged threats
to kill Noonan could not be substantiated” and (3) that her “termination was
unreasonable[.]” (App. at 81.) Thus, after the University concluded that the alleged
threat to kill was unfounded – and the threat is alleged to be the only reason offered for
the termination – one might anticipate that Bagic would be reinstated. The University,
however, “refused to reinstate Bagic’s employment contract[.]” (App. at 81.) Again, at
the pleading stage, with all inferences drawn in her favor, Bagic can properly argue that
the stated reason was therefore not the real reason for her firing.
       7
        That context being solely the documents attached to the University’s motion to
dismiss. See supra note 5.
       8
        Nothing in this opinion prevents the defendants from raising on remand
arguments about the reach of § 1983 or other arguments previously raised in the District
Court (see App. at 7 n.1, District Court Opinion (“Because the Court has found that
                                              8
III.   CONCLUSION

       For the foregoing reasons, we will vacate and remand the District Court’s

dismissal of Bagic’s complaint.




Plaintiff has failed to state a claim of purposeful discrimination, the Court has not
considered the other arguments raised by Defendant regarding whether Dr. Costello is a
state actor and whether Plaintiff’s Amended Complaint is time-barred.”)), and we imply
nothing about the merit any such arguments may have.
                                            9
