Agrawal v. University of Cincinnati (977 F. Supp. 2d 800, 2013)

ORDER

SANDRA S. BECKWITH, Senior District Judge.

Before the Court is the motion for summary judgment filed by Defendants John Bryan and Carlo Montemagno. (Doc. 84) Plaintiff opposes the motion (Doc. 90), and Defendants have filed a reply. (Doc. 96).

Plaintiff is a tenured Professor at the University of Cincinnati College of Engineering. Defendant Carlo Montemagno was the Dean of that College, and John Bryan was the Vice Provost of the University, during the salient events giving rise to Plaintiff’s complaint. Plaintiff generally alleges that both of the Defendants violated his constitutional rights and discriminated against him on the basis of his national origin and/or race. His original complaint was filed in state court and included a breach of contract claim against the University. Defendants removed the case and filed a motion to dismiss, which this Court granted in part. (See Doc. 13) The federal claims against the University were dismissed with prejudice, and the state law breach of contract claim was dismissed for lack of federal jurisdiction.

Plaintiffs remaining claims in this case are brought against Defendants Montemagno and Bryan under 42 U.S.C. §§ 1981 and 1983, and seek damages against both Defendants in their individual capacities. In addition to his discrimination claims, Plaintiff contends that Defendants violated his procedural and substantive due process rights. Defendants seek summary judgment on all of Plaintiffs claims, and alternatively contend that they are entitled to qualified immunity.

For the following reasons, the Court will grant Defendants’ motion.

FACTUAL BACKGROUND

Professor Dharma Agrawal is a tenured member of the Computer Science Department in the UC College of Engineering. Dr. Agrawal is of Indian descent; he became a faculty member at the University in 1998, when he accepted UC’s offer to become the Ohio Board of Regents Distinguished Professor of Computer Science and Computer Engineering. In the mid-1990’s, the Board of Regents had earmarked funds to be awarded for the purpose of enhancing state universities’ computer science Ph.D. programs, including the University of Cincinnati’s program. Dr. Agrawal was hired to foster and encourage the creation of “an interdepartmental center for distributed computing.” (Agrawal Ex. J at 1) He testified that “the overall objective was to create a research environment in a given concentration area so that a lot more activities of Ohio could be visible throughout the country[,] creating more Ph.D. graduates from Ohio universities.” (Agrawal Dep. at 132-33) The interdepartmental center was intended to be a physical presence on campus, initially supported with OBR funds, and a place that would encourage cooperative efforts among various faculty members to foster the goals of the Regents’ initiative. (Id. at 135-137) OBR funding was not a permanent commitment, as the goal was to develop a center that was ultimately self-sustaining. (Carter Dep. at 18) Dr. Agrawal’s initial offer from UC provided that he “will have spending discretion over the OBR Computer Science Ph.D. enhancement funds and discretion with consultation with other faculty over UC approved matching funds.” (Agrawal Ex. J at 1)

Harold Carter was a tenured Professor in the College of Engineering until he retired in 2008. He was the chair of the Electrical Engineering Department beginning in April 2004, and was involved in initially obtaining the OBR funds. Carter testified that the computer engineering faculty initially welcomed Dr. Agrawal due to his distinguished background and prior academic career, but that the welcome waned after a few years. Carter described some problems with Dr. Agrawal’s funding proposals that were not well written and were rejected. He also said that a disproportionate amount of available funding was being allocated solely to Dr. Agrawal and not shared with other faculty projects. (Carter Dep. at 57-60) As early as the spring of 2000, the Dean and other UC officials were addressing the fact that Dr. Agrawal’s salary would need to be paid from UC general funds if and when the OBR funding ceased. Dr. Agrawal was aware of these concerns. (Agrawal Dep. at 163-64, and Exs. P and R) In March 2002, the then-Dean of Engineering denied Dr. Agrawal’s request to use OBR funds to pay for his own extra compensation, concluding it would be improper to use those funds for that purpose. (Agrawal Ex. Q)

The Dean of Engineering resigned sometime in 2005; after a search, the University hired Carlo Montemagno, whose term began July 1, 2006. On May 16, 2006, Harold Carter sent Dr. Agrawal a letter informing him that his discretionary authority over the use of OBR funds was being reduced. The letter stated that the change was being implemented to provide all faculty with access to the incentive funds. Carter noted that while the original intent of the OBR funds was for Dr. Agrawal to

... create and manage a research center, external funding to support such a center has failed to materialize. Thus, rather than create a research center involving other faculty, I recommend your research activities center upon creating and managing your own laboratory.... As you acquire increasing research funding through sources external to the department and university, the support funds you now receive from the OBR CS Investment fund should be diverted instead to enhancing the research activities of the rest of the CS/CompE faculty in the department.

(Carter Ex. 6) Carter testified that he began reviewing Dr. Agrawal’s use of OBR funds when he became the department head in 2004, and that he expressed concerns to Dr. Agrawal about his management of those funds and the large number of graduate students that he intended to support. (Carter Dep. at 84-88) Carter said that his May 2006 letter was intended to foster an “attitudinal change” in Dr. Agrawal, that is, “to not depend on OBR funding for his own research but to, over a three-year period, move to obtain funding outside the OBR to lighten the load on the OBR funds,” and to make them more available to other faculty. (Carter Dep. at 133-134) Dr. Agrawal alleges that Montemagno instigated this decision to reduce Dr. Agrawal’s access to OBR funds even before Montemagno arrived on campus, and argues it was the start of a “determined and deliberate effort” by Montemagno (later joined by Bryan) to destroy Dr. Agrawal’s research career. (Doc. 90 at 3)

After Montemagno’s term began, he made other changes at the College. In September 2006, he decided to create separate departments for Computer Science and Electrical Computer Engineering, which had previously been one larger department. Montemagno believed that the reorganization would reduce the time spent on “internal disagreements” and would improve faculty scholarship, resulting in a better student environment. (Montemagno Dep. at 75-76) Carter testified that the computer science professors and the electrical computer engineers were “... like Republicans and Democrats, like conservatives and liberals. However you want to classify them, they just saw the world differently in terms of their professional activities.” Carter had assumed the position as department chair in hopes of bringing the two groups together, but admitted that he “was never successful.” (Carter Dep. at 72-73)

In October 2006, while Dr. Agrawal was on sabbatical at Carnegie Mellon University, Montemagno moved Dr. Agrawal’s office furniture and furnishings from his office to another office and moved into the space himself, without notice to Dr. Agrawal. (Doc. 90, Ex. 28, Agrawal Aff. at ¶ 5) That same month, Montemagno decided to accelerate the transfer of the OBR funds (which Carter’s May 2006 letter had stated would occur over a three-year period) and immediately transferred those funds from Dr. Agrawal’s discretionary control to Carter and Paul (the computer science and electrical engineering department heads). Carter and Paul then sent a memo to Dr. Agrawal on October 20, 2006, stating that effective January 1, 2007, the funds would be used to “support more broad-based computing initiatives” in both departments. The letter also stated that commitments to Dr. Agrawal’s currently funded research students (who were identified in the memo) would be maintained through June 2007, and that Dr. Agrawal’s own salary and benefits would continue to be paid by the OBR funds. (Montemagno Ex. 4a) Montemagno said that when he became Dean, the College was facing a significant financial crisis due to an impending budget cut of $600,000 to $900,000, and he was expected to take steps to address this crisis. (Montemagno Dep. at 134-135) He also testified that the OBR funds were going to expire within three years, and he disagreed with Carter’s decision to phase out Dr. Agrawal’s discretion over a three-year span: “So my position was that, we know these funds are going away. We have a short period of time where we’re going to have those funds. If we wait for three years, they are no longer going to be available, and we are not going to be able to leverage them to lift up the rest of the faculty.” (Id. at 106)

Dr. Agrawal alleges that Montemagno purposefully discriminated against him because Montemagno “waited” to announce his decision until Dr. Agrawal had left campus for his sabbatical. Dr. Agrawal objected in writing to Montemagno, pointing out that his original appointment letter stated that he would have discretion over the use those funds. (Agrawal Ex. BB)

Dr. Agrawal is a member of UC’s AAUP bargaining unit and subject to the grievance procedures in the collective bargaining agreement between the University and the AAUP. Article 8 of the CBA describes a multi-step procedure for resolving faculty members’ grievances. The procedure encourages informal resolution at the outset; if that is unsuccessful, the procedure concludes with a final and binding decision of an appointed Grievance Panel composed of non-involved faculty members. Dr. Agrawal filed a grievance and sought mediation about Montemagno’s transfer of the OBR funds, and his decision to split the Electrical and Computer Engineering department from the Computer Science department. (Agrawal Ex. DD) The informal mediation was not successful, and Dr. Agrawal submitted a formal Grievance Form on March 28, 2007. (Agrawal Ex. FF) Dr. Agrawal withdrew this grievance because he concluded that the CBA procedure was not the proper forum in which to resolve his objections about the OBR funds; instead, he later filed a breach of contract lawsuit in state court. (Doc. 90 at 11, n. 53)

Dr. Agrawal had planned to spend approximately $50,000 of the OBR funds in 2006-2007 for the salary of Dr. Yoo, a post-doctoral fellow. Yoo left that position sometime in the spring of 2006, and Bin Xie, a recent doctoral graduate at the University of Louisville, arrived in Cincinnati. Xie was not recruited by UC or by Dr. Agrawal, but Dr. Agrawal said that he knew Xie and knew that Xie hoped to work with him. Dr. Agrawal wanted to hire Xie to fill Yoo’s post-doctoral slot effective June 1, 2006, and said that Carter knew of and approved his appointment. Carter admitted that he knew of Dr. Agrawal’s plan, but testified that Dr. Agrawal did not need his approval because Dr. Agrawal still had control over the OBR funds at that time. (Carter Dep. at 114.) On September 1, 2006, Dr. Agrawal sent an email to Jerry Paul (who had just been appointed as the interim head of Dr. Agrawal’s department), asking Paul to “release” Xie’s appointment,

... which has been pending since June 1, 2006 and was approved by Dr. Hal Carter (it is with our new Dean). It is hard to wait anymore and the person has been working in my absence without any salary for 3 months now. The Dean said, he will wait for the Interim Head to be appointed and now that it done, it is now time to release that. I am strictly following the guidelines established by Hal [Carter] in terms of spending limits.

(Carter Ex. 8) Jerry Paul testified that he “assumed” Dr. Agrawal’s request would have gone to the College’s business manager; for reasons that are not entirely clear from the record, the request was not processed. But the ultimate result was that Xie began work in Dr. Agrawal’s program in late May 2006 but was not paid until sometime in November 2006.

In 2007, the University’s Office of Sponsored Research Services (SRS) implemented new and more stringent rules concerning its role in the submission of faculty grant proposals to outside funding sources. SRS generally oversees the grant process for all UC faculty, and is specifically charged with obtaining appropriate internal approvals and ensuring compliance with state regulations. Beginning in early 2007, Deborah Galloway and other SRS staff made a series of formal presentations to groups of faculty about the new rules, and particularly one requiring faculty members to submit their applications to SRS five days prior to the submission deadlines imposed by funding agencies. (Galloway Dep. at 138-139; Degen Dep. at 43-45, 48) Dr. Agrawal attended one of the SRS presentations. He disagreed with some of the new rules, and he criticizes the 5-day deadline because it put too much pressure on him. He also accuses SRS of discriminating against him because SRS could not finish processing one of his proposals in five days, but was able to complete another faculty member’s proposal in one day; that faculty member was a Caucasian woman. (Agrawal Dep. at 227-231)

In the spring quarter of 2007, Montemagno reduced the amount of Dr. Agrawal’s student laboratory space. And in August 2008, UC Provost Anthony Perzigian wrote to Assistant Professor (and Agrawal protégé) Quing-An Zeng, notifying Zeng that his non-tenured appointment would not be renewed effective with the term ending August 31, 2009. Dr. Agrawal contends that both of these actions were also part of Montemagno’s plan to “ruin” his research program.

Bin Xie’s Complaint

On July 10, 2008 (after he left UC), Xie sent a lengthy letter to the University Provost’s office to complain that he had not been paid by Dr. Agrawal, and accusing Dr. Agrawal of “self-plagiarism” and inappropriately using his students on Dr. Agrawal’s SBIR grants. At the end of his letter, Xie asked the University to investigate his allegations, and to protect the students he identified as witnesses to some of the incidents he described. (Agrawal Ex. QQ) Jane Strasser, the Vice President for Research Compliance, testified that Sandra Degen (Vice President of Research), Karen Faaborg (Vice Provost) and Montemagno each received certified letters from Xie. (Strasser Dep. at 17) On July 25, 2008, Montemagno sent a letter to Dr. Agrawal, stating that he was initiating an Article 9 disciplinary proceeding under the CBA, based upon information that Agrawal may have improperly used foreign students holding F-l visas to help write grants for his private company, Global Information Solutions. (Agrawal Ex. RR)

Article 9 of the CBA sets out a multistep process governing the resolution of accusations of faculty misconduct. That process begins with a meeting between an appropriate university official and the faculty member to discuss the charges to try to informally and mutually resolve them. Failing that, a written statement of the formal charges must be sent to the faculty member; any disciplinary measures must be proposed within 60 days of the faculty member’s notice of an investigation. No disciplinary action may be taken before the faculty member’s right to a formal Grievance Panel hearing has either expired or been waived. The procedures for convening and conducting a panel hearing mirror the Article 8 process, beginning with outside mediation and ending in a final and binding panel decision.

The required initial meeting took place between Dr. Agrawal, Montemagno, and Karen Faaborg (UC’s Vice Provost at the time) on August 14, 2008. Montemagno testified that in addition to the Article 9 charges, they discussed issues concerning Dr. AgrawaPs submission of grant proposals to funding agencies prior to SRS review and approval. According to Montemagno, Dr. Agrawal said that working within the SRS guidelines was a “waste of time,” and he decided to ignore them. Montemagno believed this conduct could expose the University to potential liability. (Montemagno Dep. at 177-178) The parties could not reach an informal resolution, and on October 3, 2008, Montemagno formally notified Dr. Agrawal of alleged misconduct to be addressed in the Article 9 proceeding:

1. You have not gone through the appropriate Sponsored Research Services channels to submit proposals for your research; rather you have submitted them through your private company.

2. In using students to work on these proposals you have exploited them for your personal gain with no commitment to benefit them.

3. In the case of your post-doctoral employee Bin Xie, you have permitted him to begin working for you before you secured the funding for his position. As a result, Dr. Xie was not paid for six months of the time he worked for you. Dr. Xie is owed $24,000 for his work, and the college will provide that amount to him immediately, and will hold you responsible for repaying it.

4. Five additional international graduate students on F-l visas who did not have training (OPT) permits were assigned by you to work on proposals for your company.

5. You have rarely reported the work you do for your private company on the outside activity report that is required of all employees annually and that must be resubmitted whenever new commitments or potential conflicts arise.

6. You have never submitted a conflict management plan to the university to disclose the relationship between your research for the University and your research for your own company, or to make it possible to determine ownership in any intellectual property involved.

(Montemagno Ex. 10) Montemagno proposed that the following disciplinary actions be taken against Dr. Agrawal: suspension for one quarter with his salary maintained; a deduction of $24,000 from his salary to reimburse the College for the payment it made to Xie; a change in Dr. Agrawal’s title from OBR Distinguished Professor to Professor of Computer Science; and assignment of the same workload as other professors with such titles. (During the subsequent Grievance Panel hearing, Montemagno withdrew the recommendation with respect to changing Dr. Agrawal’s title. See Doc. 79-1 at 58.)

Dr. Agrawal sought outside mediation of Montemagno’s proposed discipline, and a series of sessions were facilitated by a mediator (Jerry Lawson). When a mediated resolution could not be achieved, Dr. Agrawal formally requested a hearing before a Grievance Panel. Dr. Agrawal and the College submitted written position statements to the Panel prior to the April 10, 2009 formal hearing, at which both parties were represented by legal counsel. (Doc. 79-1, Transcript of April 10, 2009 Hearing) Witnesses at the April 10, 2009 hearing included Dr. Agrawal, Montemagno, Harold Carter, Jerry Paul, and two of Dr. Agrawal’s students who had helped write grant proposals. Much of the questioning at the hearing dealt with the circumstances surrounding Bin Xie, whom Dr. Agrawal admitted had started work in his laboratory sometime in May 2006. Dr. Agrawal explained that he initiated paperwork to get approval for Xie’s salary in early June, because Dr. Agrawal thought that Xie’s interactions with Dr. Agrawal’s other students was good. The following exchange then took place:

Dr. Agrawal: Let me make one point clear at this point. When you’re asking Bin Xie salary — he worked for 18 month, and he got paid for 18 month. He did not work from December 2007 to May 2008. He was not there in Cincinnati during that period. And as a — as a gesture of goodwill, I let him pay that money.

Dr. Lipton: So if I’m to understand you, you knew that he wasn’t working during that time, but you allowed the university ... to continue to pay him as if he was there .. During that time—

Dr. Agrawal: Yes. I’m sorry.

Dr. Lipton: — as a method of compensation—

Dr. Agrawal: Yes, sir.

Dr. Lipton: — for the uncovered time?

Dr. Agrawal: Yes, sir.

Dr. Lipton: All right. Do you understand the implications of doing that?

Dr. Agrawal: I know.

(Doc. 79-1 at 97-98)

Later on, Dr. Agrawal explained that he secured grant funding for Xie’s position beginning on November 1, 2006, but not for the period from May through November 1:

Panel Member: Was that, then, subsequently addressed in an ongoing fashion or that was—

Dr. Agrawal: There was no way to pay backward ... from my grant.

Panel Member: But what about through other channels? Did you continue to pursue how he was going to be reimbursed for the work he had already done?

Dr. Agrawal: The only other channel was the OBR money, and that was already closed by the dean.

Dr. Lipton: Okay. And then you came up with the solution that he — where [Xie] went back to China in November of 2007. And you said, you can go for six months and that will cover you, and we’ll continue to pay you?

Dr. Agrawal: Right.

Dr. Lipton: And you said that would substitute for his pay from May to November of 2006?

Dr. Agrawal: Yes.

Dr. Lipton: And that’s your contention?

Dr. Agrawal: Right.

...

Panel Member: My question, then, is the charge that’s being made against you by the respondent that [Xie] was not paid for six months of time that he worked for you, and your answer, or your solution was that in — and, again, in agreement with Dr. Xie that he could leave for six months to go back to China, and that’s how you were able to recover those six months that didn’t get paid initially?

Dr. Agrawal: That’s right.

Dr. Lipton: So during those six months you did not work with him at all, he was not working?

Dr. Agrawal: He was not working.

(Id. at 118-119) Several questions later, the issue arose again:

Dr. Lipton: And the funding during the six months was from the STTR [grant]?

Dr. Agrawal: Yes.

Dr. Lipton: Okay. So he was not working on the project associated with the STTR during those six months?

Dr. Agrawal: Yes.

Dr. Lipton: Okay. You understand that that’s using federal money to do — and saying that he’s working on a federal project that he’s not working on?

Dr. Agrawal: I understand that, yes, sir....

Dr. Lipton: Well, I understand why you were doing it, I’m just saying you understand ... the problem of doing that—

Dr. Agrawal: Yes, sir.

Dr. Lipton: — and the level of — of scrutiny that the federal government could bring down for doing that knowingly?

...

(Id. at 120-121)

Following the hearing, the grievance panel issued a written decision on May 9, 2009. (Agrawal Ex. AAA) That decision states: (1) The panel unanimously agreed that Dr. Agrawal consistently and knowingly failed to obtain SRS approval in advance for his grant proposals in violation of UC policy, as he had readily admitted during the hearing.

(2) They unanimously concluded that Dr. Agrawal did not exploit students for personal gain with no commitment to benefit the students, based on the questions posed to Dr. Agrawal and two of his students who appeared at the hearing.

(3) They agreed that Dr. Bin Xie was owed $24,000 for the period May-November 2006. They further agreed that Dr. Agrawal had no right to promise Bin Xie a position without securing prior approval, but they also agreed that the administration was knowledgeable and complicit in this episode. They rejected Montemagno’s proposal to extract funds from Dr. Agrawal’s personal salary to compensate Xie, finding that no faculty member should be held personally liable, including Dr. Agrawal, Carter, Paul, or Montemagno. On this subject the panel further concluded:

Additional troubling information regarding Dr. Xie’s compensation came to light during the hearing. Professor Agrawal contended that while Dr. Xie was employed at UC and paid exclusively from an STTR grant, he had spent 6 months in China, and was therefore not owed any compensation for the 6 months of missing compensation prior to November 2006. Professor Agrawal fully admitted his knowledge of paying an employee from federal funds and certifying Labor Verification Statements when the employee was not working. This activity was not part of the charges or the proposed discipline. However, the panel unanimously agrees that this is a serious breach of federal guidelines that the university should fully investigate this finding and propose appropriate remediation and disclosure to the appropriate federal agency.

(Agrawal Ex. AAA at 5)

(4) The panel unanimously agreed that students on F-l visas did not violate their visas by working on Dr. Agrawal’s grant proposals.

(5) They unanimously agreed that Professor Agrawal historically failed to file his Outside Activity Reports, but that he had recently been more compliant. The evidence also indicated that general faculty compliance prior to 2007 was relatively low, demonstrating “historically poor oversight by the university.”

(6) They concluded that because there was no evidence of a conflict between Dr. Agrawal’s private company and the university, he had not failed to file a conflict management plan.

The panel also found that the College administration did not follow appropriate progressive discipline procedures to address what the panel described as “Agrawal’s pattern of poor student supervision,” and skirting university rules for his own convenience. But they found that increasing a faculty member’s teaching load should not be used as a punitive action. The panel concluded that a letter of reprimand outlining the offenses that had been established by the evidence should be placed in Dr. Agrawal’s file, including a warning that any new violations would be met “with the severest consequences at the discretion of the administration.” Id. at 6. They also recommended that the engineering administration develop a mandatory training plan for Dr. Agrawal, which would permit him to share the information with other engineering faculty members. In its conclusion, the panel noted that the College’s investigation of the charges that began with Xie’s letter was incomplete because critical witnesses had not been interviewed. They found that Dr. Agrawal was wrong to permit Xie to begin work without a firm funding commitment, but also found that situation arose “as an epiphenomenon of a leadership vacuum during 2006 in the College of Engineering.” Id. at 6-7. Ultimately, none of Montemagno’s proposed disciplinary measures were actually imposed upon Dr. Agrawal.

Xie’s accusation of self-plagiarism against Dr. Agrawal was separately investigated by Jane Strasser and Melissa Colbert, who both work in the University’s Research Compliance group. They essentially concluded that Dr. Agrawal had improperly replicated some of his own previously published work in a subsequent professional publication, but that the issue was not worth further pursuit by UC based on the type of publication that was involved. So far as Strasser knew, that publication did not take any action about the issue.

The Second Article 9 Investigation

Prior to the May 2009 final panel decision, Montemagno and John Bryan (who had recently assumed the post of Interim Vice Provost following Karen Faaborg’s appointment as the University’s Chief Human Resources Officer) began an investigation into Dr. Agrawal’s testimony that he paid Xie for approximately six months that Xie was not actually working on his grant. Bryan approached the UC General Counsel’s office, and they subsequently contacted Christine Ackerman, UC’s Director of Internal Audit. Ackerman testified that she did not open a formal investigation immediately because she believed that Bryan was conducting one. In August 2009, however, Ackerman was informed by UC’s Office of Government Cost Compliance that Dr. Agrawal had shifted the payment of two student stipends from one grant to a second grant; the co-principal investigator of the second grant, Mingming Lu, refused to sign labor verification statements for those students because they were not working on that grant. (Ackerman Ex. 3 at 2) Ackerman’s office then began a formal investigation of all grants for which Dr. Agrawal was either the principal or co-principal investigator, given “the serious nature of the circumstances that have already occurred ... as well as the fact that this occurred more than once, thereby indicating a pattern of behavior.” Id.

On August 12, 2009, Montemagno notified Dr. Agrawal that he was initiating an Article 9 investigation concerning these issues. (Agrawal Ex. CCC) Dr. Agrawal responded on August 31, 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, stating that he had admitted paying Xie for time he was not working; he said that issue was not part of the formal charges considered by the first grievance panel, and so he did not “respond” to the report at that time. He strenuously objected to a second disciplinary investigation, complaining that he had already incurred attorney’s fees and suffered great emotional distress. (Agrawal Ex. FFF) Notwithstanding Dr. Agrawal’s objections, Ackerman continued her office’s investigation into Dr. Agrawal’s grants; she obtained documents from the Office of Government Cost Compliance and interviewed a sample of Dr. Agrawal’s students. She looked at documents that Xie had given to Bryan, and she interviewed Mingming Lu. Bryan continued his own investigation into the grants and the proper accounting for Xie’s salary. Bryan met with several faculty members on August 25, 2009, including Galloway, Sandra Sanders from the Cost Compliance office, and Associate Dean for Financial Affairs Schraffenberger. Bryan was concerned that UC had exposure to a federal investigation or possible loss of federal funding due to Dr. Agrawal’s testimony concerning Xie, and his reported refusal to sign proper labor verification statements. Frank Gerner, Associate Dean of the College of Engineering, testified that he was very concerned about the verification statements because, without a properly certified statement, UC would have to either recoup the funds or reimburse the government; he believed that Dr. Agrawal’s failure to properly certify labor statements ultimately cost UC almost $100,000. (Gerner Dep. at 110)

Bryan personally interviewed Xie in Louisville, Kentucky on August 27, 2009. Xie showed him documents reflecting the fact that Xie returned from China in January 2008 and worked for Dr. Agrawal until May 2008, which contradicted Dr. Agrawal’s hearing testimony. Bryan believed that Xie’s documents also confirmed that his actual work effort was not entirely related to the grant from which Dr. Agrawal reported paying him at that time. While Xie explained that he was working on some of Dr. Agrawal’s grants, Bryan was concerned that Dr. Agrawal had not signed proper labor certifications attesting to Xie’s specific work on any specific grant.

At some point, Dr. Agrawal did sign a labor verification statement for Xie for the fourth quarter of FY 2008 (April-June 2008), stating that Xie’s work was 100% related to a Systran Air Force grant. Dr. Agrawal crossed out. the printed words on the form that stated “wages charged are reasonable in relation to the work performed during the period indicated above.” He wrote in the words, “He did not perform as he was not here in Cincinnati.” Dr. Agrawal did not date this form. (Agrawal Ex. NNN, at CM/ECF PAGEID # 3972) Bryan believes that Dr. Agrawal signed this form after his April 10, 2009 hearing testimony because he did not want to contradict his testimony about Xie’s whereabouts during this time. (Bryan Dep. at 94)

At this point, despite continuing doubts about whether Xie’s work had been properly reported, Montemagno decided not to pursue any Article 9 discipline against Dr. Agrawal regarding Xie. (Bryan Dep. at 95; Montemagno Dep. at 204) However, based on the information he had obtained, Bryan decided to impose temporary restrictions on Dr. Agrawal with respect to his grants pending the outcome of the second Article 9 proceeding and the audit investigation. These restrictions were set forth in an August 28, 2009 letter to Dr. Agrawal, and were based on what Bryan described as the University’s forced decision to replace the grant funds used to pay Xie with local funds “in order to preclude any possibility of institutional complicity in the fraudulent use of federal funds.” Id. The restrictions were:

1. The University will cancel your Purchasing Card(s).

2. The University will not approve University-funded or grant-funded travel for you.

3. The University will not approve your receiving extra compensation from any grant.

4. The University will not approve your submission of new grant proposals as a Principal Investigator or Co-Principal Investigator.

5. The University will not approve your awarding graduate assistantships to any student unless existing grant funds are available to support those students’ stipends and/or scholarships.

6. The University will not assign any additional graduate students to you as your advisees.

7. The University will not approve your hiring undergraduate students unless existing grant funds are available to support those students’ pay.

8. The University will not approve further expenditures on the InfoScitex Mesh Express Phase II-FEO grant.

9. The University may, at its discretion, suspend any or all grants on which you are currently a PI or your activities on any grants on which you are Co-PI.

(Bryan Ex. 11)

Dr. Agrawal filed a formal grievance objecting to these restrictions on September 4, 2009. On October 27, he wrote to Bryan to demand that the restrictions be lifted because the 60-day period provided by Article 9 had expired without a notice of proposed discipline. A few days later, he sought permission to attend a pre-proposal meeting with the Air Force; that request was granted but Bryan refused to lift the restrictions until the Internal Audit of Dr. Agrawal’s grants was completed. The parties then began mediation on the grant restrictions. In December 2009, with the mediator’s assistance, Dr. Agrawal agreed to accept four grant-related controls, Bryan agreed that Dr. Agrawal could submit an NSF grant, and the parties agreed to continue mediation efforts in January. The four agreed-upon controls were: (1) Dr. Agrawal must inform his students about the scope of work associated with every grant on which the students worked; (2) he must inform his students of how their duties coincide with the grant’s scope of work; (3) his students must keep and sign time sheets on which they describe the work that they do by the hour (aggregated across a day) and certify that the work that they do is directly associated with the grant to which that time is being charged; and (4) Dr. Agrawal must sign the students’ time sheets and the resulting labor verification statements, certifying that the students did the work described and that such work was in furtherance of the grant. (Agrawal Ex. KKK)

The outside mediator closed the mediation in February 2010 because the parties could not reach a global resolution. Dr. Agrawal then requested a grievance panel hearing. He submitted his written position statement a few days later, and was interviewed by Ackerman and Bryan on March 16, 2010. Dr. Agrawal admitted that his first hearing testimony was erroneous, and that Xie had in fact worked for him in the first half of 2008. But he told Ackerman that he would “have to think about” signing new labor verification statements to properly document Xie’s work, and permit UC to recoup the costs that had been transferred from Dr. Agrawal’s federal grant to UC internal funds. (Ackerman Ex. 1 at 9)

The final Internal Audit Report was released on May 10, 2010. (Ackerman Ex. 1) The Executive Summary states:

In general, we recommend the additional internal controls put in place by Dr. John Bryan in an email dated December 15, 2009 be made permanent.... The university relies upon individual faculty members to understand the principles and processes of accurate effort reporting. At a minimum, this means that each faculty member must have personal knowledge of the amount and nature of the work that students under their supervision are performing, and that the faculty member review, complete, sign and submit Labor Verification Statements (LVS) for personnel under his or her supervision by published deadlines. The results of the audit demonstrate that Dr. Agrawal has not fulfilled these responsibilities and that, at best, the methods used by him to account for and verify effort are unreliable....

In light of the above, the permanent adoption of the additional internal controls imposed by Dr. Bryan would appear prudent.

We believe that Bin Xie did work for the university during the period December 2007-June 2008 and that Dr. Agrawal’s original grievance hearing testimony given in April 2009 was inaccurate. Therefore, we believe that Dr. Agrawal should certify accurate LVS forms for Bin Xie for that period, which may enable the university to pay a portion of Bin Xie’s salary from Dr. Agrawal’s grants ...

We also believe that the university may be able to obtain sufficient documentation to support paying the salary of two students amounting to $9,308 from grant # 1006451 ... The university removed salary of $9,308 for two students ... from grant # 1006451 ... because the PI on the award, Mingming Lu, refused to certify two LVS for two of Dr. Agrawal’s students (Dr. Agrawal is the Co-PI on this award).

Id. at 3-4. In the section of the report addressing the situation concerning Xie, the report concluded that “Dr. Agrawal has demonstrated that he cannot be relied upon to accurately accomplish these tasks [of proper effort reporting and supervising students]; therefore, the additional internal controls imposed by Vice Provost Dr. John Bryan appear to be a prudent permanent control measure for the university to take.” (Id. at 9)

The report also reviewed Dr. Agrawal’s payments for “intersession” or extra compensation from grant funds from July 2007 through June 2009. The auditor concluded: “One could infer that Dr. Agrawal does not understand the university’s intersession compensation policy, especially the policy that the work he certifies actually has to take place during the period certified. The university should consider implementing additional internal controls over the intersession compensation Dr. Agrawal could apply for in the future.” (Id. at 11) The report recommended that Dr. Agrawal should be trained about proper effort reporting because he regularly submitted LYS forms that were either late or were not dated. And it noted some concerns about whether Dr. Agrawal had actually implemented the four steps he had agreed to in December 2009, because his responses to questions about the actual steps he was taking to monitor his students’ time and the work they performed were inconsistent and (according to the auditors) were not entirely credible. The report recommended that the business office should ensure that those controls were implemented and utilized. (Id. at 12)

The second Article 9 grievance panel held its hearing on May 17, 2010; the witnesses included Ackerman, Deborah Galloway (from Sponsored Research), Montemagno, Bryan, and Dr. Agrawal. (Doc. 79-2) The panel’s June 11, 2010 written decision unanimously found:

1. The internal controls on effort reporting imposed in December 2009 are necessary measures of sound fiscal administration that do not in any way violate Article 9 and should be made permanent.

2. As a result the nine university restrictions imposed in August 2009 are redundant of college authority and should be discontinued until any forthcoming Article 9 proceeding establishes a basis for discipline.

(Montemagno Ex. 27 at 1) With respect to the four agreed-upon internal controls, the panel found they were “fully warranted administrative measures imposed to satisfy the university’s fiscal responsibilities. The grievant failed to demonstrate that those controls constitute discipline that improperly single out Dr. Agrawal in violation of Article 9’s due process requirements.” (Id. at 3) The panel found that the original nine restrictions contained in Bryan’s August 2009 letter to Dr. Agrawal were largely redundant because the university has extensive authority to place restrictions on all faculty members on a case by case basis. Two of the restrictions (#5 and # 7, requiring existing grant funds to be available for hiring any graduate or undergraduate assistants) apply to all faculty; # 1 (restricting the purchasing card) and # 9 (UC’s discretion to suspend grants) did not impose any unique limitation on Dr. Agrawal that was not true of other faculty members. Restriction # 8 was moot because that grant was closed. The panel then addressed the remaining four restrictions; they concluded that restriction # 2 (no grant funded travel) and # 3 (ban on extra compensation) should be discontinued because UC must pre-approve both travel and extra compensation for all faculty. Restriction # 4 regarding new grant proposals appeared to be moot because Dr. Agrawal submitted an NSF proposal in December 2009, and the University conceded that he could submit others if he fully complied with the four agreed controls. Moreover, the College must pre-approve all grant proposals so there was no need for the blanket restriction. Restriction # 6 (no new graduate students assigned) was no longer needed “unless imposed after a future Article 9 disciplinary proceeding,” because the college had full authority under standard policy to assign advisors to all graduate students. The panel found no evidence that Dr. Agrawal was abusing his students, as the administration had argued in a rebuttal statement. The report concluded that based upon Dr. Agrawal’s “improper effort reporting, the respondents had good reason to distrust Dr. Agrawal and to restrict student related grant activity.” (Id. at 5)

Computer Science 2010 Merit Pay

Dr. Agrawal alleges that Montemagno denied him a merit pay increase in 2010, another adverse employment action that he contends was based on his national origin and his race.

Pertinent facts concerning this issue are set forth in Montemagno’s affidavit. (Doc. 84, Ex. 4) Article 10.3 of the CBA for the period 2010 through 2013 provided for merit pay increases for bargaining unit members, based on faculty performance during the period September 1, 2008 to December 30, 2009. (Id. at Ex. 1) This was the first time that merit pay was made available under the CBA since Montemagno came to UC in 2006. Article 10.3 established a pool of funds equal to one-half of one percent of the total salaries of bargaining unit faculty. The Dean of each College had discretion to award merit increases disproportionately, based upon an assessment of the faculty member’s teaching, research and service. A “Superior” performance rating would be awarded a 1% increase, and an “Excellent” rating would receive a 0.5% increase. Faculty rated as “Other” would receive no increase.

Professor Prabir Bhattacharya (of Indian descent) was appointed the Chairman of the Computer Science Department in September 2009. Bhattacharya completed his recommendations to the Dean for his faculty’s merit raises, ranking Berman, Purdy and Annexstein as “Superior” and ranking Agrawal, Schlipf and Bhatnagar as “Excellent” (which would entitle all of them to merit increases). Montemagno rejected those recommendations because he believed that every faculty member should not receive a merit increase, and that faculty members’ current salaries should be considered when awarding any increases. Dr. Agrawal’s salary was roughly $70,000 higher than all other Computer Science faculty members. Montemagno appointed two Associate Deans to review and revise the recommendations. Annexstein, Schlipf, Bhattacharya, and Bhatnagar each received 0.5% based on reassessed “Excellent” ratings. Professors Berman, Purdy and Agrawal were given “Other” ratings and received no pay increase. Annexstein, Schlipf, Berman and Purdy are Caucasian; Bhatnagar, Bhattacharya and Dr. Agrawal are of Indian descent.

Dr. Agrawal alleges that Montemagno’s merit pay revisions and the denial of a raise to Dr. Agrawal were also part of Montemagno’s series of attacks on Professor Bhattacharya. These “attacks” included Montemagno’s decisions to “gut” the Computer Science faculty, to block new hiring in the department, to terminate the undergraduate computer science program (a decision that was later reversed by UC), and eventually the removal of Professor Bhattacharya as head of the department. Dr. Agrawal suggests that this conduct is further evidence of Montemagno’s discriminatory animus towards Indians.

ANALYSIS

I. Standard of Review

The court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An assertion of a undisputed fact must be supported by citations to particular parts of the record, including depositions, affidavits, admissions, and interrogatory answers. The party opposing a properly supported summary judgment motion “ ‘may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.’ ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal quotation omitted).

The Court is not duty bound to search the entire record in an effort to establish a lack of material facts. Guarino v. Brookfield Township Trs., 980 F.2d 399, 404 (6th Cir.1992). Rather, the burden is on the non-moving party to “present affirmative evidence to defeat a properly supported motion for summary judgment ...,” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989), and to designate specific facts in dispute. Anderson, 477 U.S. at 250, 106 S.Ct. 2505. The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court construes the evidence presented in the light most favorable to the non-movant and draws all justifiable inferences in the non-movant’s favor. United States v. Diebold Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

The court’s function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. The court must assess “whether there is the need for trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250, 106 S.Ct. 2505. “If the evidence is merely colorable, ... or is not significantly probative, ... the court may grant judgment.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).

II. Section 1981

Defendants contend that claims for money damages against individual defendants are not cognizable under 42 U.S.C. § 1981. While claims for prospective or injunctive relief may be prosecuted under that section, Dr. Agrawal has sued both Defendants in their individual capacities only. Neither of the Defendants remain at the University of Cincinnati, which moots any prospective claim for relief Dr. Agrawal might assert against either of them. Dr. Agrawal suggests that the Sixth Circuit’s decision in McCormick v. Miami Univ., 693 F.3d 654 (6th Cir.2012), holding that Section 1983’s express cause of action against state-actor defendants precludes damage claims under Section 1981, is merely one decision by “one panel in a much larger circuit.” (Doc. 90 at 45) This' Court cannot so cavalierly ignore controlling authority from the appellate court; and Dr. Agrawal eventually concedes that McCormick bars his damages claims under Section 1981. Defendants are therefore entitled to judgment on those claims.

III. Section 1983

Dr. Agrawal contends that Montemagno and Bryan, acting under color of state law in their capacities as officers of the University, discriminated against him and violated his equal protection rights on the basis of his national origin and his race. Defendants raise a number of arguments in support of their motion for summary judgment on these claims: (A) many of the alleged discriminatory acts occurred more than two years before Dr. Agrawal filed his complaint and are time-barred; (B) he has no direct evidence of discrimination; (C) he cannot establish a prima facie case based on indirect evidence; and (D) even if he could establish a prima facie case, he has no evidence of pretext.

(A) Statute of limitations and continuing violations. Dr. Agrawal relies on the continuing violations theory to argue that so long as the last alleged discriminatory act (the denial of his merit pay increase in 2010) occurred within two years of his October 1, 2010 complaint, he may recover for all other events that he alleges constitute a series of related discriminatory actions. He contends that Montemagno embarked on a course of discrimination against him that began when Montemagno arrived at UC in the summer of 2006, including the withdrawal of the OBR funds, the transfer of his office space and reduction in lab space, the incidents surrounding Xie’s employment, the subsequent Article 9 investigations, the temporary grant restrictions, and denial of merit pay.

In Sharpe v. Cureton, 319 F.3d 259 (6th Cir.2003), several firefighters brought Section 1983 claims against a fire chief and other local officials alleging a series of discriminatory and retaliatory acts. The court held that plaintiffs could not recover for discrete acts (in that case, transfers to less desirable duty stations) that occurred outside the applicable limitations period. Plaintiffs argued that the continuing violations theory permitted them to recover for all adverse acts irrespective of the statute of limitations. The Sixth Circuit had previously recognized two “distinct categories of continuing violations, namely, those alleging serial violations and those identified with a longstanding and demonstrable policy of discrimination.” Id. at 266. The court also cautioned that the doctrine most commonly applies to Title VII claims, and “rarely extends” to Section 1983 actions. Then in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), the Supreme Court held: “Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act.” Sharpe, 319 F.3d at 267, quoting Morgan, 536 U.S. at 113, 122 S.Ct. 2061. Finding no basis upon which to restrict Morgan to discrimination claims brought under Title VII, the Sixth Circuit held that the continuing violations doctrine did not apply to preserve the firefighters’ Section 1983 claims arising from discrete acts that occurred outside the limitations period. Dr. Agrawal argues that the incidents of discriminatory conduct that he alleges occurred are sufficiently related that he may rely on a continuing violations argument. Morgan and Sharpe foreclose that argument.

Dr. Agrawal also relies on the second strand of the continuing violations theory, that Defendants (and perhaps other departments in the College) engaged in a continuous and long-standing policy of discrimination against individuals of Indian descent. He argues that his department “was generally hostile to Indians in particular, and ‘Easterners’ in general.” (Doc. 90 at 47-48) He cites two examples of this purported long-standing policy: Montemagno’s alleged mistreatment of Professor Bhattacharya, and Professor Purdy’s class conduct of asking “Easterners” to sit in the back, using the offensive phrase “turbanheads” to describe some students, and making generally disparaging comments about “foreigners.” This evidence is insufficient to establish or reasonably suggest the existence of a “longstanding and demonstrable policy of discrimination” engaged in by the Defendants or by UC in general. Such a policy was present in Alexander v. Local 496, Laborers’ Int’l Union, 177 F.3d 394, 408-409 (6th Cir.1999), involving a challenge to a union’s longstanding “working in the trade” rule that clearly served to perpetuate the exclusion of African-Americans from union membership. Dr. Agrawal has no evidence of a discriminatory policy at UC or the College of Engineering or within his department, much less a policy perpetuated or enforced by either of the Defendants. Montemagno’s alleged mistreatment of Professor Bhattacharya does not suffice, especially considering that Montemagno was the Dean of the College of Engineering when Professor Bhattacharya was hired as departmental chair, and that Bhattacharya refused to attribute what he agreed was Montemagno’s “autocratic” decision-making style to discriminatory animus towards individuals of Indian or Asian descent. With regard to Professor Purdy, Defendants persuasively argue that his offensive comments cannot be attributed to either Montemagno or Bryan (or to UC generally). The documents from his disciplinary file reflect that an allegation against Purdy of using such discriminatory language was made in 2000, long before Montemagno arrived at UC and Bryan assumed the post of Vice Provost. (Doc. 94, Ex. 13 at CM/ECF PAGE ID 5740-5779)

The Court agrees with Defendants that Dr. Agrawal may not rely on the continuing violations theory to recover for any alleged discriminatory acts that occurred more than two years before he filed his complaint.

(B) Direct Evidence of Discrimination. While he concedes that “most” of the evidence he proffers is of the indirect variety, Dr. Agrawal also contends that he has offered direct evidence of Montemagno’s discriminatory animus. At the second grievance panel hearing in May 2010, Montemagno was asked about the restriction imposed of not assigning new graduate students to Dr. Agrawal; he responded that the restriction:

... has to do with funding. The idea was that Professor Agrawal has a number of students, some of whom are very, very late in their career who are unemployed in terms of financially and they have no money to finish getting their degrees [sic]. And in the engineering programs, you have to pay your students, and it’s necessary for them to graduate in the appropriate manner.

And I believe that there is a cultural divide between the way I believe graduate students should be mentored and taken care of and the way Professor Agrawal believes graduate students should be mentored and taken care of.

(Doc. 79, Ex. 2, TR at 73) Later in the hearing, he was asked what he meant by a “cultural divide” and he explained:

I think graduate students are junior colleagues, people who you bring in ... to mentor, you care about their welfare, you do the very, very best to ensure their success and ensure that their education is absolutely the best that you can deliver to them.

And I think that there is some thought that people treat graduate students as second-class citizens who are lucky to be in your laboratory and lucky to have— be graced with your presence and are left to their own devices to be successful. And I choose to have a college that’s more nurturing and that embraces an attitude towards my students, which I think is not consistent with the history that Professor Agrawal has demonstrated.

{Id. at 77-78)

In his deposition, Montemagno further explained his comment:

A. I believe to — I believe to get the best out of students, you need to treat them as peers, and you need to try to provide resources and opportunities for them that allow them to grow and flourish. And I don’t recall speaking about this specifically to Dr. Agrawal. But I have a number of faculty who view their graduate students as labor and who— they get their education while they’re providing services for the faculty members. But their primary job is to provide research service for the faculty members, and they have to gather their education while they’re doing this process. It’s a — it’s a way of — a way students are addressed. I’ve had a large number of students who have come from all over the world. I have graduate students from China, from India, from Armenia, from Singapore. And they all come with a set of cultural differences that are — within their previous experience that are different than U.S. universities. They are much more — they have a much more deferential position in dealing with their faculty members. And I work very hard to have the responsibility to make them into my peer. And that’s really what the difference is.

Q. Are you suggesting that Agrawal was in that category?

A. I’m not making any suggestion at all. Because I don’t think I referred that directly to Professor Agrawal. I think I was talking about the fact that there was a cultural difference in many of my faculty on how they believe graduate students should behave. And I think it impacts the quality of the students that you end up getting, and how you’re able to place those students once they graduate.

(Montemagno Dep. at 230-231)

“Direct evidence is evidence that proves the existence of a fact without requiring any inferences.” Rowan v. Lockheed Martin Energy Systems, 360 F.3d 544, 548 (6th Cir.2004). In the context of discrimination claims, direct evidence is

evidence of conduct or statements by persons involved in making the employment decision directly manifesting a discriminatory attitude, of a sufficient quantum and gravity that would allow the factfinder to conclude that attitude more likely than not was a motivating factor in the employment decision. Erickson v. Farmland Indus., Inc., 271 F.3d 718, 724 (8th Cir.2001) (citations omitted). Only the most blatant remarks, whose intent could be nothing other than to discriminate ..., satisfy this criteria. Carter v. City of Miami 870 F.2d 578, 582 (11th Cir.1989).

Scott v. Potter, 182 Fed.Appx. 521, 525-26 (6th Cir.2006). Dr. Agrawal suggests that Montemagno’s “cultural divide” statements directly manifest his discriminatory “racial opinions about Eastern slave labor vs. Western ‘peers.’ ” (Doc. 90 at 51) The Court disagrees. Montemagno’s statements can be interpreted to mean several different things, and several inferences would be necessary to conclude that Montemagno’s observation of “cultural differences” about the appropriate education and development of graduate students directly manifests a discriminatory animus towards “Eastern” (e.g., Indian) faculty members. This is particularly true because Montemagno did not use the terms “Eastern” or “Western” or suggest anything about “slave labor.” The same sort of argument was made in Scott, where plaintiff alleged that his supervisor’s statement to him, “Why don’t you retire and make everybody happy,” was direct evidence of age discrimination. The Sixth Circuit rejected his argument because “retire” is not synonymous with “old” or “age,” and there was no evidence that the supervisor used the term as a proxy for discriminatory bias due to plaintiffs age. Montemagno’s comment about a “cultural divide” between faculty members is even more removed from any suggestion of national origin discrimination.

Dr. Agrawal also cites Professor Purdy’s discriminatory comments about Asian students to suggest that Montemagno’s “cultural divide” comment was anything but an innocuous “stray remark.” The Court already rejected the attempt to imput