This Court cannot conclude, as a matter of law or fact, that being prohibited from (1) serving as a faculty advisor; (2) participating in studies abroad; and (3) receiving no non-instructional faculty assignments or a salary increase for a year, while at the same time being required to (4) meet with the Dean yearly; and (5) undergo sensitivity training would not deter others from engaging in protected conduct. Summary judgment is not appropriate based upon a supposed lack of an adverse action.
- 3. Causal Connection
Dr. Bruce further argues that the content of the flyer had nothing to do with the punishment imposed and, hence, she has rebutted the causal connection necessary to establish the third element. After all, she wrote in her letter to each Plaintiff that “The disciplinary action in this matter are a result of your actions, not your beliefs or ideas,” and she reiterated as much in her deposition. (Doc. No. 70-7 at 44, 92 & Eh. 7, 8). “The employer’s rebuttal involves ‘issues of fact,’ however, and may not be decided on a motion for summary judgment unless the evidence ‘is so one-sided that one party must prevail as a matter of law.’” Cherry v. Pickell, 188 F. App’x 465, 69 (6th Cir. 2006) (quoting Leary v. Daeschner, 349 F.3d 888, 898 (6th Cir. 2003)). Dr. Bruce’s self-serving statements to the side, query whether, as Plaintiffs suggest, the same sanctions would have been imposed had the flyer told the reader about “a Hot Dog Eating Contest,” or expressed the opinion that “Pralines & Cream Ice Cream is better than Vanilla.” (Doc. No. 84 at 4). At a minimum, this presents a factual question making summary judgment inappropriate.
- 4. Constitutionally Protected Speech and Balancing Interests
Left for consideration is the first element of a retaliation claim, to wit, whether Plaintiffs engaged in constitutionally protected speech or conduct. This inquiry contains two “sub-elements”:
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Case 2:21-cv-00039 Document 90 Filed 12/01/22 Page 14 of 27 PageID #: 8926
