                 NOT RECOMMENDED FOR FULL TEXT PUBLICATION
                            File Name: 14a0551n.06

                                         No. 13-4313                                 FILED
                                                                                 Jul 23, 2014
                                                                            DEBORAH S. HUNT, Clerk
                         UNITED STATES COURTS OF APPEALS
                              FOR THE SIXTH CIRCUIT

DHARMA AGRAWAL,                                            )
                                                           )
       Plaintiff - Appellant,                              )
v.                                                         )   ON APPEAL FROM THE
                                                           )   UNITED STATES DISTRICT
CARLO MONTEMAGNO, JOHN G. BRYAN, and                       )   COURT FOR THE SOUTHERN
UNIVERSITY OF CINCINNATI,                                  )   DISTRICT OF OHIO
                                                           )
       Defendants - Appellees.                             )



BEFORE: SUHRHEINRICH, MOORE, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Dr. Dharma Agrawal, a tenured professor at the

University of Cincinnati (UC), brought this action asserting constitutional violations under

42 U.S.C. § 1983; violation of 42 U.S.C. § 1981 with regard to terms and conditions of his

employment; and a state-law breach of contract claim. Defendants removed the case. On

Defendants’ motion, the district court dismissed all claims against UC. Following discovery, the

individual Defendants moved for and were granted summary judgment.           We AFFIRM the

dismissal of the claims against UC. We AFFIRM the grant of summary judgment to the

individual Defendants except as to the § 1981 injunctive relief claim, as to which we REVERSE

and REMAND.

                                I.   Grant of UC’s Motion to Dismiss

       We review de novo the district court’s order granting UC’s motion to dismiss under Fed.

R. Civ. P. 12(b)(6). D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014). Agrawal argues
No. 13-4313, Agrawal v. Montemagno, et al.


that his state-law breach-of-contract claim against UC was an equitable action requesting

injunctive relief, not an action at law for damages, and that the district court erred by dismissing

it. He also argues UC waived its immunity by removing this action to federal court.

       Although Agrawal concedes that the Ohio Court of Claims is the primary venue for

hearing cases involving money damages against the state, he argues that the Court of Claims

statute permits other courts of the state “to hear and determine a civil action in which the sole

relief that the claimant seeks against the state is a declaratory judgment, injunctive relief, or other

equitable relief.” Ohio Rev. Code § 2743.03. Pl. Br. at 66.


       “[N]ot all relief falling under the rubric of restitution is available in equity.” Great-West

Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 214 (2002). Seeking recovery of a sum of

money caused by a breach of contractual duties is ultimately an action at law. Id. Cristino v.

Ohio Bureau of Workers’ Compensation, 886 N.E.2d 857, 861 (Ohio 2008) (“a claim against the

state for money due under a contract is not a claim of equitable restitution and must be brought in

the Ohio Court of Claims”). Agrawal’s amended complaint sought, among other relief, the

reinstatement “per his contract” of $360,000 in research funds and “control of research funds

and grants as well as other support promised in his contract of employment.” PID 96 (emphasis

added). He sought the award of monies he claims were granted to him under a contract, but not

paid by UC.


       The district court properly determined that Agrawal’s breach-of-contract claim was a

“retrospective claim for damages” and that Defendants had not waived immunity by voluntarily

removing the case to federal court. Although Agrawal cites Lapides v. Board of Regents of

University System of Georgia, 535 U.S. 613 (2002), which held that the defendants (state

university officials) waived Georgia’s sovereign immunity from state law claims by voluntarily

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removing plaintiff’s case against them to federal court, Lapides is limited to state law claims for

which the state has waived or abrogated its immunity from damages claims in the state trial

courts.    See Dantz v. Am. Apple Group, LLC, 123 F. App’x 702, 706-07 (6th Cir. 2005)

(unpublished) (Lapides “was limited to the context of state-law claims, in respect to which the

State has explicitly waived immunity from state-court proceedings”); see also, Indep. Living Ctr.

of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 661 (9th Cir. 2009) (holding that a state that

consents to suit in state court cannot invoke a sovereign immunity defense after removing the

suit to federal court); Stewart v. N. Carolina, 393 F.3d 484, 488 (4th Cir. 2005). Because that is

not the case here, Defendants’ removal from state court does not constitute a waiver of sovereign

immunity on the state-law contract claim against UC. That claim was properly dismissed.


                   II. Grant of Summary Judgment to Individual Defendants

          We review de novo the district court’s grant of summary judgment, viewing the facts and

inferences therefrom in a light most favorable to Dr. Agrawal. Zomba Enters., Inc. v. Panorama

Records, Inc., 491 F.3d 574, 581 (6th Cir. 2007).

          The district court’s order granting summary judgment sets forth the extensive pertinent

background, which we adopt and do not repeat here. Agrawal v. Univ. of Cincinnati, 977 F.

Supp. 2d 800, 805-18 (S.D. Ohio 2013). The district court agreed with the individual Defendants

that most of Agrawal’s challenges are time barred; that Agrawal established only one materially

adverse employment action, the denial of a merit pay increase in 2010, but failed to establish that

a similarly situated person was treated more favorably than he; and that Agrawal failed to show

that Defendants’ asserted legitimate reasons for their actions were pretextual. Alternatively, the

court determined that the individual Defendants are entitled to qualified immunity.




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                                                A.

       Agrawal argues that the district court “accepted the defendants’ rendition of facts in toto

... and ignore[d] the central theme of [his] case: Montemagno deliberately brought Agrawal up

on charges known to be false, causing Agrawal to spend tens of thousands of dollars on defense

lawyers.” Br. at 12. We disagree. The district court recognized Agrawal’s “central theme”:

       Montemagno notified Dr. Agrawal that he was initiating an Article 9 investigation
       . . . Dr. Agrawal responded . . . , protesting that he signed the labor verification
       statements and that the issues about Xie had been aired and resolved by the first
       grievance panel’s decision. He also objected to that hearing panel’s report . . . He
       strenuously objected to a second disciplinary investigation, complaining that he
       had already incurred attorney’s fees and suffered great emotional distress.
       Notwithstanding Dr. Agrawal’s objections, Ackerman continued her office’s
       investigation into Dr. Agrawal’s grants . . . .

PID 6210.      The court stated several times that Agrawal maintained that Montemagno

intentionally set out to destroy his research career and intentionally discriminated against him,

and that Agrawal denied that his own wrongdoing brought on UC’s two investigations of him.

PID 6198, 6200-01, 6210, 6221, 6228-29, 6243, 6245.

       Citing many examples, Agrawal claims that the district court improperly accepted the

defense’s view of the facts. Included in his claims is that the district court “adopted, without

scrutiny,” the grievance committee’s findings as uncontested facts. The court did no such thing.

It summarized the grievance panel’s findings, PID 6206-09, 6215-17, a logical and necessary

thing to do given that Agrawal’s grievances are central to his case. The court did not state or

suggest that it adopted as fact the grievance panel’s findings, only that it took them into account,

along with other evidence (see, e.g., PID 6245 “Based upon the facts discussed in the audit

reports, Dr. Agrawal’s own admissions at the disciplinary hearings, and the conclusions of two

hearing panels, the Court cannot conclude that the reasons Defendants have offered concerning

the denial of merit pay are mere pretext to disguise discrimination”; PID 6244 “The Internal

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Audit report, entirely separate from Bryan and Montemagno, recommended that the four controls

that Dr. Agrawal agreed to in December 2009 be made permanent. The second grievance panel

concluded that ‘respondents had good reason to distrust Dr. Agrawal and to restrict student

related grant activity. The internal controls are fully warranted administrative fiscal remedies ...’

The findings of two separate internal investigations fully support Defendants’ assertion that the

grant restrictions were imposed based on Dr. Agrawal’s own conduct.”)

       Agrawal contends that the district court again usurped the jury’s role when it “cited

Harold Carter for the proposition that Agrawal’s funding proposals were not well written and

consequently rejected . . .” when “[t]here is no hint of this position in Carter’s letter.” Br. at 14,

n.32, 18. Carter testified on deposition regarding Dr. Agrawal’s first grant proposal:

       [i]t was a terribly written proposal, I’m sad to say. It was very disjointed. It was
       just kind of a collection of these disparate kinds of things that were loosely
       connected because they were the same general area.
       And the English was not good.

PID 1085. That Carter’s letter to Agrawal dated May 16, 2006, PID 1209, did not critique

Agrawal’s proposal writing does not negate Carter’s deposition testimony. These claims are

without merit, as are Agrawal’s remaining claims that the district court did not abide by its

obligation to view the facts in the light most favorable to him.

                   B. Time-barred Claims & Continuing Violation Theory

       We review de novo the district court’s determination that many of Agrawal’s alleged

adverse employment actions are largely time-barred. See Banks v. City of Whitehall, 344 F.3d

550, 553 (6th Cir. 2003) (an Ohio plaintiff must bring a § 1983 case within two years of the

alleged adverse employment action.)

       Agrawal filed his complaint in state court on October 1, 2010. The district court properly

concluded that the alleged adverse actions that occurred before October 1, 2008 were time

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No. 13-4313, Agrawal v. Montemagno, et al.


barred, i.e., the transfer of OBR funds, transfer of office space, reduction of laboratory space and

reduction in the number of his graduate students. See Banks, 344 F.3d at 553.

       The continuing-violation theory does not revive these time-barred claims. “This Circuit

employs the continuing violations doctrine most commonly in Title VII cases, and rarely extends

it to § 1983 actions.” Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir. 2003) (concluding that “the

Supreme Court’s recently imposed limits on the viability of the [continuing violation] doctrine”

in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002), apply to § 1983

claims).   In Morgan, the Supreme Court reversed the court of appeals’ application of the

continuing violation doctrine, observing that “discrete discriminatory acts are not actionable if

time barred, even when they are related to acts alleged in timely filed charges,” and that

“[h]ostile environment claims are different in kind from discrete acts. Their very nature involves

repeated conduct.”)

       This circuit recognizes two continuing-violation types, the first applies only to hostile-

environment claims. Sharpe, 319 F.3d at 267; Morgan, 536 U.S. at 114-15. Agrawal’s amended

complaint does not allege a hostile environment claim. See PID 84 (amended complaint filed in

Court of Common Pleas, Hamilton County, Ohio). On appeal, he nonetheless argues that a

review of the record makes clear “that the department overseen by Defendants was generally

hostile to Indians in particular, and “Easterners” in general. The two prime examples of this are

Montemagno’s mistreatment of Bhattacharya . . . and Dr. Purdy’s mostly-undisciplined

mistreatment of students.” Br. at 30-31. As the district court noted, Bhattacharya denied that

Montemagno discriminated against him; he described Montemagno as autocratic and “vicious,”

and that he appeared to be closer to several other department heads, but that “I don’t think it had

anything to do with national origin.” PID 2752. And, Dr. Purdy’s conduct (a professor who



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No. 13-4313, Agrawal v. Montemagno, et al.


made inappropriate comments to students in 2000, including using the term “turbanheads” or

“towelheads”) cannot be attributed to either Montemagno or Bryan since the former arrived at

UC in 2006 and Bryan assumed the Vice-Provost post in or around early 2009. In addition,

neither of these examples suggest or establish that Agrawal himself suffered harassment that

unreasonably interfered with his work performance or created an intimidating, hostile, or

offensive work environment. See, e.g., Delaney v. Skyline Lodge, Inc., 642 N.E.2d 395, 399-400

(Ohio App. 1994). Because Agrawal did not allege a hostile-environment claim, the time-barred

claims are not revived under this continuing-violation theory.

       Agrawal also claims the second type of continuing violation applies, under which discrete

discriminatory acts that are part of a longstanding and demonstrable policy of discrimination, toll

the statute of limitations. See Sharpe, 319 F.3d at 269. “To establish this category of continuing

violation, appellant must demonstrate something more than the existence of discriminatory

treatment in his case, Sharpe, 319 F.3d at 268 (internal quotations and citation omitted), such as

a continuing overarching policy of discrimination, see LRL Properties v. Portage Metro Hous.

Auth., 55 F.3d 1097, 1106 (6th Cir. 1995).

       This claim fails as well, because Agrawal relies on the same instances: Montemagno’s

alleged discrimination toward Bhattacharya and Purdy’s inappropriate comments to students in

2000. Agrawal’s argument that the statute of limitations should be equitably tolled during the

pendency of the investigations is raised for the first time on appeal, and is thus waived. See, e.g.,

Geiger v. Tower Auto., 579 F.3d 614, 622 n.3 (6th Cir. 2009).

                         C. Race and National-Origin Discrimination

       Agrawal alleged that the individual Defendants, acting under color of state law in their

capacities as UC officers, discriminated against him and violated his equal protection rights on



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No. 13-4313, Agrawal v. Montemagno, et al.


the basis of his national origin and race. PID 6221. The district court properly determined that

Agrawal presented no direct evidence of discrimination. Direct evidence, “if believed, requires

the conclusion that unlawful discrimination was at least a motivating factor in the employer’s

actions.” Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 914 (6th Cir. 2013).

Agrawal relies on Montemagno’s remark alluding to a “cultural divide” at Agrawal’s second

grievance hearing, but the district court correctly concluded that this statement could be

interpreted several ways. Dr. Purdy’s statements about Asian students in the year 2000 cannot

be attributed to either Montemagno or Bryan, and Purdy played no role in Defendants’ decisions

regarding Agrawal.

         Absent direct evidence, Agrawal must present circumstantial evidence under the burden-

shifting scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to survive

summary judgment. Sjostrand v. Ohio State Univ., 750 F.3d 596, 599 (6th Cir. 2014). Agrawal

established the first two prima facie elements, i.e., that he is a member of a protected class and

was qualified for his position. Adair v. Charter Cnty. of Wayne, 452 F.3d 482, 493 (6th Cir.

2006).

         Dr. Agrawal must also establish that the actions he challenges were adverse employment

actions, that is, “more disruptive than a mere inconvenience or an alteration of job

responsibilities.” Mitchell v. Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir. 2004). The first

conduct within the two-year limitations period Agrawal points to is Montemagno’s October 3,

2008 letter initiating the first Article 9 proceeding. But employer investigations into suspected

wrongdoing, standing alone, are not generally considered actionable adverse employment

actions, see Arnold v. City of Columbus, 515 F. App’x 524, 531 (6th Cir. 2013), and

Montemagno’s proposed discipline was not implemented, see Mitchell, 389 F.3d at 182; PID



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6211. Finally, the letter of discipline that was to have been placed in Agrawal’s personnel file

has never been located, and a letter of reprimand is not a materially adverse employment action

unless accompanied by a loss such as demotion or salary reduction, neither of which occurred

here. See Taylor v. Geithner, 703 F.3d 328, 338 (6th Cir. 2013) (written reprimand that does not

lead to a materially adverse consequence such as lowered pay, demotion, suspension, or the like,

is not a materially adverse employment action); Jones v. Butler Metro Hous. Auth., 40 F. App’x

131, 137 (6th Cir. 2002).

       Bryan’s temporary grant restrictions imposed in August 2009 were also within the two-

year limitations period. But the district court properly determined that these were not materially

adverse employment actions. See Mitchell, 389 F.3d at 182 (actions including reduction in the

plaintiff professor’s research lab space, revocation of mentor status, loss of graduate research

assistant, proposed but unimplemented reduction in pay, forced review of grant applications, and

removal from Director position were not materially adverse employment actions, independently

or collectively). The investigations that prompted these restrictions were brought on by Xie’s

letter and Agrawal’s own testimony, and Agrawal has not demonstrated that his material

responsibilities were diminished or that the temporary grant restrictions had a materially adverse

effect on his salary or status of employment at UC. See Mitchell, 389 F.3d at 183.

       The district court properly determined that Agrawal failed to establish the third prima

facie element, that he suffered an adverse employment action, except as to the denial of a merit

pay increase in 2010. Id. Only the denial of a merit pay increase in 2010 constituted “a

significant change in employment status, such as hiring, firing, failing to promote, reassignment

with significantly different responsibilities, or a decision causing a significant change in

benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Defendants concede that



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the 2010 denial of merit pay constituted a materially adverse employment action. See Szeinbach

v. Ohio State Univ., 493 F. App’x 690, 694-95 (6th Cir. 2012). The question then is whether

Agrawal established the fourth prima facie element, that he was less favorably treated than a

similarly situated person outside his protected class. See Noble v. Brinker Int’l, Inc., 391 F.3d

715, 728-29 (6th Cir. 2004). To be similarly situated a plaintiff and his proposed comparator

“must have engaged in acts of comparable seriousness.” Wright v. Murray Guard, 455 F.3d 702,

710-11 (6th Cir. 2006) (“Wright and Bradley are not similarly situated because their alleged acts

of misconduct are of a very different nature, and there are legitimate reasons why Murray Guard

would treat them differently.”).

         Agrawal inadequately briefed this issue. He asserts simply that he “presented a multitude

of facts and charts to support his position that he out-performed every other member of his

department, yet the raise he was granted, unlike theirs, was reversed.” Even if the issue is not

waived, Geiger, 579 F.3d at 622 n.3, Agrawal has not presented evidence from which a jury

could conclude that any alleged comparator was treated more favorably than he for similar

misconduct.

                                     D. Section 1981 Claim

         Agrawal argues that the district court erred by granting summary judgment on his § 1981

claim.    Agrawal’s amended complaint alleged that Defendants intentionally discriminated

against him with respect to compensation, terms, conditions and privileges of employment

because of his race and color.

         Section 1981 prohibits discrimination in the making and enforcement of private contracts,

McCormick v. Miami Univ., 693 F.3d 654, 659 (6th Cir. 2012). A plaintiff must present

evidence sufficient to raise an inference of intentional race discrimination in a § 1981 action; that



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is, § 1981 reaches only purposeful discrimination. See Gen. Bldg. Contractors Ass’n v. Penn.,

458 U.S. 375, 389 (1982).       “The express cause of action for damages created by § 1983

constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state

governmental units.” Arendale v. City of Memphis, 519 F.3d 587, 599-600 (6th Cir. 2008)

(quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989).

       The district court properly determined that money damages are not available under

§ 1981; claims for money damages against state officers in their official capacities are barred by

the Eleventh Amendment. Id. at 662; Freeman v. Mich. Dep’t of State, 808 F.2d 1174, 1179 (6th

Cir. 1987).

       However, the Eleventh Amendment does not bar continuation of a § 1981 action to the

extent it seeks injunctive relief from state officers sued in their official capacities. McCormick,

693 F.3d at 662; Freeman, 808 F.2d at 1179. In dismissing the claim for injunctive relief, the

district court stated that Agrawal named the individual Defendants only in their individual

capacities and went on to conclude that because neither Defendant remains at UC, any

prospective claim for relief against them is moot. The district court was mistaken; Agrawal

clearly named Montemagno and Bryan both in their individual and official capacities.            In

addition, Agrawal asserts that the successor officers continue to enforce decisions made by

Montemagno and Bryan: that he remains ejected from his laboratory and office, the OBR money

remains under another’s control, he is still suffering under Bryan’s 4-point accounting structure,

and he is still lacking his merit-pay increase.

       Under these circumstances, since Montemagno and Bryan left UC after Agrawal brought

this action, the successor officers are automatically substituted under Fed. R. Civ. P. 25(d). We

thus remand for substitution of Montemagno and Bryan’s successors and leave to the district



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No. 13-4313, Agrawal v. Montemagno, et al.


court how to proceed on remand.         See Spomer v. Littleton, 414 U.S. 514, 522-23 (1974)

(remanding to court of appeals for a determination “whether the former dispute regarding the

availability of injunctive relief against the State’s Attorney is now moot [because new State’s

Attorney was elected and respondents did not allege that he intends to continue his predecessor’s

practices] and whether respondents will want to, and should be permitted to, amend their

complaint to include claims for relief against the [new State’s Attorney].); Patterson v.

MacDougall, 506 F.2d 1 (5th Cir. 1975) (where State officer resigned after the plaintiff filed his

complaint, court of appeals remanded to district court to determine whether claims for injunctive

relief were moot and whether MacDougall’s successor should be substituted as a defendant to the

claims for injunctive and declaratory relief.).

                E. Property Interest in Employment Contract and Reputation


       The district court did not err in concluding that Agrawal’s procedural due process claims

failed. “A procedural due process claim requires a showing that the plaintiff has been deprived

of a protected property interest without adequate process.” City of Pontiac Retired Emps. Ass’n

v. Schimmel, 751 F.3d 427, *3 (6th Cir. 2014). When Bhattacharya recommended that Agrawal

receive a merit pay increase in 2010, no increase was implemented. A protected property

interest is one to which a plaintiff has a legitimate claim of entitlement under state law. See

Ferencz v. Hairston, 119 F.3d 1244, 1247 (6th Cir. 1997). Potential merit pay increases for

tenured professors are not property rights; Agrawal was not entitled to a hearing or other process

before a merit pay increase was denied. See Richardson v. Twp. of Brady, 218 F.3d 508, 517

(6th Cir. 2000) (“Simply put, [plaintiff] can have no legitimate claim of entitlement to a

discretionary decision.”) Similarly, Agrawal had no protected property interest in a particular




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office, laboratory space or control over the OBR funds, which funds were subject to the Board of

Regents’ discretion. Id.


                                   F. Substantive Due Process


       Agrawal asserts that the district court erred in determining that Defendants infringed none

of his substantive due process rights: “vindictive motives and arbitrary State action give rise to

constitutional causes of action,” arguing that Montemagno’s treatment of him “shocks the

conscience because bringing false, uninvestigated, malicious allegations would shock the

conscience even if not brought against fully-tenured senior university professors.” Br. at 59.


       “Most, if not all, state-created contract rights, while assuredly protected by procedural

due process, are not protected by substantive due process.” Charles v. Baesler, 910 F.2d 1349,

1353 (6th Cir. 1990) (rejecting the plaintiff’s claim that denial of a promotion constituted a

violation of substantive due process). “Substantive due process affords only those protections so

rooted in the traditions and conscience of our people as to be ranked as fundamental . . . . It

protects those interests, some yet to be enumerated, implicit in the concept of ordered liberty.”

Id. (internal quotations and citations omitted).


       Asserting that Montemagno’s conduct violated his right of equal protection, Agrawal

relies on Gutzwiller v. Fenik, 860 F.2d 1317 (6th Cir. 1990), which has been interpreted as

recognizing a narrow substantive due process right to protection against losing one’s job because

of an independent constitutional violation, Hopkins v. Canton City Bd. of Educ., 477 F. App’x

349, 365-66 (6th Cir. 2012). The district court properly disposed of Agrawal’s equal protection

claim with his discrimination claims under § 1983. “The elements for establishing an Equal

Protection claim under § 1983 and the elements for establishing a violation of Title VII disparate


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treatment claim are the same.” Deleon v. Kalamazoo Cnty Rd. Comm’n, 739 F.3d 914, 917-18

(6th Cir. 2014); Gutzwiller, 860 F.2d at 1325.


       For these reasons, we AFFIRM the district court’s order granting UC’s motion to

dismiss, and AFFIRM the order granting the individual Defendants’ motion for summary

judgment with the exception of the § 1981 injunctive relief claim, as to which we REVERSE and

REMAND.




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