Dianne Down v. Ann Arbor Public Schs.

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 13, 2021
• Docket: 20-2114
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0578n.06

Case No. 20-2114

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED DIANNE DOWN, ) Dec 13, 2021 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellant, ) ) v. ON APPEAL FROM THE ) UNITED STATES DISTRICT ANN ARBOR PUBLIC SCHOOLS; CYNTHIA ) COURT FOR THE EASTERN ) RYAN; DAVID COMSA, DISTRICT OF MICHIGAN ) Defendants-Appellees. )

Before: SUTTON, Chief Judge; STRANCH and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge. Dianne Down appeals the district court’s dismissal of her

claims related to her employment at Ann Arbor Public Schools. The district court entered

judgment on the pleadings for some of her claims and granted summary judgment to Ann Arbor

Public Schools, Cynthia Ryan, and David Comsa on the rest of her claims. We affirm.

I.

Down was a high school teacher at Ann Arbor Public Schools, where she started in 1999.

In 2013, she was placed on paid administrative leave pending an investigation into allegations that

she verbally abused her students. Down was also instructed to undergo a psychological

examination at that time to determine whether “she was mentally fit for the professional duties

associated with teaching at the high school level.” Down v. Ann Arbor Pub. Schs., No. 14-10086,

2015 U.S. Dist. LEXIS 128982, at *2 (E.D. Mich. Sept. 25, 2015). She sought an injunction in Case No. 20-2114, Down v. Ann Arbor Pub. Schs. et al.

federal court prohibiting Ann Arbor Public Schools and its (since retired) executive director of

human resources, Cynthia Ryan, from requiring her to submit to this examination. Down asserted

claims under the Fourth Amendment and Michigan’s Persons with Disabilities Civil Rights Act

(PWDCRA), M.C.L. § 37.1101 et seq. Id. at *1–2. The district court granted summary judgment

to Ann Arbor Public Schools and Ryan, denying the injunction and dismissing Down’s claims,1

see id. at *16, and Down’s examination was conducted in October 2015.

Although the examination results revealed no basis to keep Down from teaching, Ann

Arbor Public Schools placed Down on another paid administrative leave. 2 During this time, in

June 2016, Down applied for a renewal of her teaching certificate. She alleged that Ryan refused

to certify the professional development hours she needed for a valid teaching certificate in

Michigan. See Mich. Admin. Code R. 390.1129b(2). Down was concerned that if she lost her

teaching certificate, she would not have the right to appeal a discharge or demotion or receive a

hearing as to her tenure. See Mich. Comp. Laws §§ 38.121, 38.71(4).

In October 2017, Down filed her current lawsuit against Ann Arbor Public Schools and

Ryan. She amended the complaint in March 2018, adding Ann Arbor Public Schools’ deputy

superintendent, David Comsa, as a defendant.3 She asserts multiple violations of her civil rights

and seeks injunctive and monetary relief. Her claims include: (1) Ann Arbor Public Schools’

1 The district court found it reasonable for Ann Arbor Public Schools to require Down to undergo a psychological examination because of her “long history of issues” and “long history of parent complaints and student difficulties.” Down v. Ann Arbor Pub. Sch., 29 F. Supp. 3d 1030, 1037 (E.D. Mich. 2014). The district court then held that the examination was not an unreasonable search under the Fourth Amendment and Down did not suffer from a disability recognized by the PWDCRA. Down, 2015 U.S. Dist. LEXIS 128982 at *12–13, 16. 2 Down testified that she did not learn of these results until the Spring of 2016. 3 Down alleges that a representative from Ann Arbor Public Schools contacted the Michigan Department of Education (MDE), expressing concern about the renewal of Down’s teaching certificate, and the department conducted an audit into her verifications of attendance at professional development courses. The MDE ultimately concluded that Down completed the requisite 150 hours of professional development and took no action on her teaching certificate that was renewed, but it did note that Down’s application for renewal contained inaccurate information. (Letter from the MDE, R. 16-1, PageID 135.)

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requirement for her to undergo the psychological examination violated the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; (2) Defendants retaliated against her in

violation of the ADA, PWDCRA, and the First Amendment by placing her on administrative leave,

threatening a tenure action against her, refusing to allow her to return to teaching, delaying

production of the examination results, delaying her access to records of her continuing education,

refusing to offer professional development hour opportunities, and refusing to verify her

professional development hours; and (3) Defendants refused to submit signed verification forms

of her professional development hours to the MDE, putting her teaching certification at risk of

suspension or revocation, in violation of the Due Process and Equal Protection clauses of the

Fourteenth Amendment and 42 U.S.C. § 1983. Defendants moved for judgment on the pleadings

and to dismiss for lack of jurisdiction, pursuant to Federal Rule of Civil Procedure 12(c) and

12(b)(1) respectively.

The district court partially granted Defendants’ motion for judgment on the pleadings,

leaving only Down’s retaliation claims for damages against Ann Arbor Public Schools under the

PWDCRA and ADA and her retaliation claim for damages against all Defendants under § 1983

based on an alleged violation of her First Amendment rights.4 The district court held that Down

was barred by issue and claim preclusion from bringing an ADA claim regarding her alleged

unlawful examination because of her first lawsuit. It then held that there is no individual liability

under the ADA—which Down conceded—and, because Michigan courts have found the

PWDCRA and ADA to be similar, the PWDCRA. However, the district court concluded that

although Down could not pursue her ADA and PWDCRA retaliation claims against Ryan and

Comsa, she could pursue them against Ann Arbor Public Schools, because government immunity

4 The district court denied Defendants’ motion to dismiss Down’s equal-protection and due-process claims for lack of subject matter jurisdiction.

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did not apply. It also held that Down sufficiently pleaded both an adverse action as the basis for

her retaliation claims and that her claims were not time-barred because they were based on her

second administrative leave that started in March 2016. Regarding her remaining § 1983 claims,

the district court held that her request for injunctive relief was moot, because her teaching

certificate was renewed. It also held that she did not state a claim for an equal-protection violation,

because the Supreme Court has held that a plaintiff may not bring a “class-of-one” claim in the

public employment context. Lastly, it held that Down did not state a claim for a due-process

violation, because Defendants’ failure to certify professional-development hours for her teaching

certificate did not rise to the level of a constitutional violation. After the discovery period

concluded, Defendants moved for summary judgment on the remaining retaliation claims.5

The district court granted summary judgment for Defendants on Down’s remaining claims.

It held that Down did not establish a prima facie case of retaliation, because she did not file a

timely response to Defendants’ motion. It further analyzed the retaliation claims, though, and

stated that even if Down could establish a prima facie case, Defendants articulated legitimate, non-

retaliatory, and non-pretextual reasons for their actions. Down timely filed a notice of appeal from

the district court’s opinion and order granting, in part, and denying, in part, Defendants’ motion

for judgment on the pleadings and motion to dismiss, as well as the district court’s opinion and

order granting Defendants’ motion for summary judgment.6 (Notice of Appeal, R. 64, PageID

761.)

5 Defendants also moved for sanctions for Down’s alleged failure to make the mandatory disclosures under Federal Rule of Civil Procedure 26 or file a witness list, but the district court noted their motion for sanctions within their motion for summary judgment was procedurally improper. 6 Down does not appeal the dismissal of her ADA challenge to the psychological examination. (Appellant’s Br. at 6– 7.)

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II.

We review a district court’s entry of judgment on the pleadings de novo. Sensations, Inc.

v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008). “[W]e take as true ‘all well-pleaded

material allegations.’” Bickley v. Dish Network, LLC, 751 F.3d 724, 733 (6th Cir. 2014) (quoting

United States v. Moriarty, 8 F.3d 329, 332 (6th Cir. 1993). Legal conclusions and conclusory

allegations will not suffice. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The

motion [for judgment on the pleadings] is granted when no material issue of fact exists and the

party making the motion is entitled to judgment as a matter of law.” Bickley, 751 F.3d at 733

(alteration in original) (quoting Paskvan v. City of Cleveland Civil Serv. Comm’n, 946 F.2d 1233,

1235 (6th Cir.1991)).

We also review a district court’s grant of summary judgment de novo. Coyer v. HSBC

Mortg. Servs., Inc., 701 F.3d 1104, 1107 (6th Cir. 2012). Summary judgment is appropriate where

“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). The moving party bears the initial burden of demonstrating

the absence of evidence supporting one or more essential elements of the nonmoving party’s case.

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden,

the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine

issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting First Nat’l

Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 270 (1968)). “Even where a party ‘offer[s] no

timely response to [a] [ ] motion for summary judgment, the District Court [may] not use that as a

reason for granting summary judgment without first examining all the materials properly before it

under Rule 56(c).’” F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611, 630 (6th Cir. 2014)

(alterations in original) (quoting Smith v. Hudson, 600 F.2d 60, 65 (6th Cir.1979)).

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A. EQUAL PROTECTION CLAIM

The Equal Protection Clause of the Fourteenth Amendment prohibits states from

“deny[ing] to any person within its jurisdiction the equal protection of the laws.” U.S. Const.

amend. XIV, § 1. “Thus, when it appears that an individual is being singled out by the government,

the specter of arbitrary classification is fairly raised, and the Equal Protection Clause requires a

‘rational basis for the difference in treatment.’” Engquist v. Oregon Dep’t of Agric., 553 U.S. 591,

602 (2008) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)).

However, the United States Supreme Court has found that this “class-of-one” theory of equal

protection “is simply contrary to the concept of at-will employment,” id. at 606, and “has no

application in the public employment context,” id. at 607. See also EJS Props., LLC v. City of

Toledo, 698 F.3d 845, 864 n.15 (6th Cir. 2012) (“The Supreme Court recently held that class-of-

one equal-protection claims cannot be raised in the public-employment context.”).

Down argues, though, that the district court erred in entering judgment on the pleadings on

her “class-of-one,”7 equal-protection claim because Defendants’ decision was nondiscretionary.

Specifically, she contends that Defendants’ refusal to certify her prior attendance at professional

development courses that Ann Arbor Public Schools offered was a decision by “a regulated public

body subject to the general supervision of MDE”—and not an employment decision. (Appellant

Br. at 24.) She further argues that the decision was based on “the objective record of whether

courses were completed,” so it was not subjective. (Id. at 25.) We find these arguments

unpersuasive.

“[E]mployment decisions based on characteristics unique to an individual,” like decisions

on whether to certify an individual teacher’s hours “are by their nature subjective and

7 Down does not contest that she is bringing a “class-of-one” theory of equal protection. (Appellant Br. at 21.)

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discretionary.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 539 (6th Cir. 2008).

And Down has not provided any authority to support her proposition that Ann Arbor Public

Schools is required to certify her hours to the MDE. The record instead shows that Defendnats

made an individualized decision based on their review of Down’s certification records. Engquist

is clear: “[W]e have never found the Equal Protection Clause implicated in the specific

circumstance where, as here, government employers are alleged to have made an individualized,

subjective personnel decision in a seemingly arbitrary or irrational manner.” 553 U.S. at 605.

Down’s equal-protection claim fails.

B. DUE PROCESS CLAIM

The Due Process Clause of the Fourteenth Amendment prohibits states from “depriv[ing]

any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.

To establish a due-process claim, Down must first show that she has “a protected property or

liberty interest.” Crosby v. Univ. of Ky., 863 F.3d 545, 552 (6th Cir. 2017) (quoting Johnston-

Taylor v. Gannon, 907 F.2d 1577, 1581 (6th Cir. 1990)). But “[t]he Constitution does not create

or define property interests[.]” Kaplan v. Univ. of Louisville, 10 F.4th 569, 577 (6th Cir. 2021)

(citing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). So the courts look to “independent

sources of entitlement, such as state law,” id. at 577. See also id. at 578 (“The hallmark of property

is an individual entitlement grounded in state law, which cannot be removed except for cause.”

(cleaned up)). After establishing possession of a property interest protected under the Constitution,

Down must show she was deprived of this protected interest without the process she was due. Id.

at 577.

Down argues that the district court erred in entering judgment on the pleadings on her due-

process claim, because Defendants “scheme[d] to deprive her of her teaching certificate.”

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(Appellant Br. at 29.) She claims that Defendants caused the MDE’s audits of her professional

development hours and refused to certify those hours, threatening her teaching certificate.8

However, Down did not allege a protected property interest. Down points to no state law or

contract entitling her to a verification of her professional development hours. See R.S.W.W., Inc.

v. City of Keego Harbor, 397 F.3d 427, 435–36 (6th Cir. 2005) (holding that Mich. Admin. Code

R. 436.1403(1)’s express entitlement of hours of operations to liquor license holders was a

constitutionally-protected property interest); see also EJS Props., LLC, 698 F.3d at 857 (“[A] party

cannot have a property interest in a discretionary benefit, even if that discretion had never been

exercised previously.”). So Down’s due-process claim also fails.

C. RETALIATION CLAIMS

When a plaintiff presents only circumstantial evidence of retaliation in violation of the

ADA or PWDCRA, as is the case here, we apply the McDonnell Douglas burden-shifting

framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973); see also

Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 283 (6th Cir. 2012). Under the McDonnell

Douglas framework, Down must first establish a prima facie case of retaliation. See 411 U.S. at

802. If she can establish a prima facie case, the burden shifts to Defendants “to proffer some

legitimate, non-retaliatory reasons” for the adverse action. EEOC v. New Breed Logistics,

783 F.3d 1057, 1066 (6th Cir. 2015). If Defendants make this showing then the burden shifts back

to Down to show that the proffered reasons were a pretext for retaliation. Id.

8 Down also argues that Defendants told her that she needed more hours than she did and denied her access to obtain these hours while on leave. (Appellant Br. at 31–32.) But she did not raise these arguments before the district court, so we will not consider them here. See Taft Broad. Co. v. United States, 929 F.2d 240, 243–45 (6th Cir. 1991); see also Plaintiff’s Am. Compl., R. 12, PageID 21–22; Resp. to Mot. to Dismiss, R. 22, PageID 232–34, 237–38; Resp. to Mot. to Dismiss Nunc Pro Tunc Per 12/4/2018 Order, R. 26, PageID 324–26.

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To establish a prima facie case of retaliation in violation of the ADA, see 42 U.S.C.

§ 12203(a), and PWDCRA, see Mich. Comp. Laws § 37.1602(a), Down must demonstrate that

(1) she was engaged in a protected activity, (2) this activity was known by Defendants, (3)

Defendants took an employment action adverse to Down, and (4) that there was a causal

connection between the protected activity and the adverse employment action. See Rorrer v. City

of Stow, 743 F.3d 1025, 1046 (6th Cir. 2014) (stating the standard for ADA retaliation claims);

Aho v. Dep’t of Corr., 688 N.W.2d 104, 108 (Mich. Ct. App. 2004) (stating the standard for

PWDCRA retaliation claims); see also Donald v. Sybra, Inc., 667 F.3d 757, 764 (6th Cir. 2012)

(“The PWDCRA ‘substantially mirrors the ADA, and resolution of a plaintiff’s ADA claim will

generally, though not always, resolve the plaintiff’s PWDCRA claim.’” (quoting Cotter v. Ajilon

Servs., Inc., 287 F.3d 593, 597 (6th Cir. 2002)). And for her First Amendment retaliation claim,

Down must show that “(1) [s]he engaged in constitutionally protected speech or conduct; (2)

[Defendants] took an adverse action against h[er] that would deter an ordinary person from

engaging in that conduct; and (3) there is a causal connection between elements one and two.

Rorrer, 743 F.3d at 1047 (citing Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 255 (6th

Cir. 2006)).

Down did not file a timely response to Defendants’ motion for summary judgment, 9 so we

turn to the “portions of the record submitted by” the Defendants to see if Down can first establish

a prima facie case. See E.M.A. Nationwide, Inc., 767 F.3d at 630; but see Guarino v. Brookfield

Twp. Trs., 980 F.2d 399, 404 (6th Cir. 1992) (“[We] will not entertain on appeal factual recitations

9 Defendants moved for summary judgment on March 3, 2020. Down filed a motion for an extension of time on the day her response was due (March 24). The district court granted her motion, giving her the additional seven days she asked for. On May 6, Down brought a second motion for an extension of time. The district court again granted her motion, giving her the additional five days she requested. Down did not file her response to Defendants’ motion for summary judgment until May 27, which the court did not accept.

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not presented to the district court any more readily than [we] will tolerate attempts to enlarge the

record itself.”). The district court and Defendants focused on the causation element of a prima

facie retaliation case under the ADA, PWDCRA, and First Amendment, so we will turn there first.

But see Taylor v. McKee, 649 F.3d 446, 450 (6th Cir. 2011) (“[T]his court may affirm the decision

of the district court if it is correct for any reason[.]”).

Down alleges that Defendants retaliated against her for bringing her earlier lawsuit on

January 9, 2014. However, the earliest adverse action alleged, conspiring with the psychologist to

delay production of her examination, happened from October 30, 2015 (when the examination

concluded) to spring 2016 (when Down said she was notified of the results). (See Plaintiff’s

Amended Complaint, R. 12, PageID 64, 73, 75, 77.) In the light most favorable to Down, about

22 months had elapsed from the allegedly protected activity to the adverse action. And “where

some time elapses between when the employer learns of a protected activity and the subsequent

adverse employment action, the employee must couple temporal proximity with other evidence of

retaliatory conduct to establish causality.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525

(6th Cir. 2008); see also Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 401 (6th Cir. 2010)

(“Even . . . where we articulated the principle that temporal proximity could hypothetically be

sufficient in a given case, we noted the presence of additional evidence.”); Nguyen v. City of

Cleveland, 229 F.3d 559, 566–67 (6th Cir. 2000) (“[P]revious cases that have permitted a prima

facie case to be made based on the proximity of time have all been short periods of time, usually

less than six months.” (quoting Parnell v. West, 114 F.3d 1188, 1997 WL 271751, at *3 (6th Cir.

May 27, 1997) (Table)). Down has not presented other evidence to establish causation. See

Williams v. Zurz, 503 F. App’x 367, 373 (6th Cir. 2012) (“[H]ere [Plaintiff] has not identified

evidence outside of the temporal gap to show causation.”). Furthermore, Defendants have

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proffered legitimate, nondiscriminatory reasons for their conduct and Down has not shown that

these reasons are pretextual or factually untrue. See Harper v. City of Cleveland, 781 F. App’x

389, 396 (6th Cir. 2019) (noting that “poor performance [is a] legitimate reason[ ] for an adverse-

employment action”); see also Peters v. Lincoln Elec. Co., 285 F.3d 456, 470 (6th Cir. 2002)

(citation omitted) (“To avoid summary judgment, the plaintiff is required to produce evidence that

the employer’s proffered reasons were factually untrue.”). Down’s ADA, PWDCRA, and First

Amendment retaliation claims fail.

Because Down cannot show a prima facie case of retaliation under the ADA, the

PWDCRA, or the First Amendment, her retaliation claims fail and we do not need to answer the

question of individual liability under the PWDCRA’s retaliation provision.

Down also argues that the district court abused its discretion in striking her response to

Defendants’ motion for summary judgment. Specifically, she asks us to review the district court’s

opinion and order denying her motions to file excess pages, extend her time to file a response to

the motion for summary judgment, and seal an exhibit, as well as “the related text-only order

striking certain pleadings filed by Down, each entered June 1, 2010.” (Appellant’s Br. at 1–2; see

also Op. and Order Denying Mot. for Leave to File Excess Pages, Mot. for Extension of Time, and

Mot. to Seal Ex., R. 61.) Although Down did not identify these orders in her notice of appeal,

such notice “encompasses all orders that, for purposes of appeal, merge into the designated

judgment or appealable order.” Fed. R. App. P. 3(c)(4). We have jurisdiction to consider this

issue.

If an act has a specific deadline, a court may extend the deadline for good cause if the party

failed to act because of “excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). This “is at bottom an

equitable” inquiry. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395

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(1993). Relevant considerations include the danger of prejudice to the opposing party, the length

of the delay, the reason for the delay, whether the delay was within the reasonable control of the

moving party, and whether the movant acted in good faith. Id.

No abuse of discretion occurred. As noted, Down brought her second and third motions

for an extension of time well after her filing deadlines passed. Her third request came over two

weeks past the deadline and after Down went on a “trip to northern Michigan.” (Op. and Order

Denying Mot. for Leave to File Excess Pages, Mot. for Extension of Time, and Mot. to Seal Ex.,

R. 61, PageID 747.) Down’s “recurring requests, along with the evolving reasons advanced for

the delay, indicate[d] a lack of respect for the Court’s deadlines and [led] the Court to question

whether [Down]. . . acted in good faith.” (Id.) Down’s reasons for and control over the delay

weigh against her. And although the extension Down sought was not “particularly lengthy,” the

court permissibly decided that Down’s previous delays supported finding her neglect inexcusable.

Id. at 748; see Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 523 (6th Cir. 2006) (reasoning that

that district court properly weighed “numerous instances of previous dilatory” conduct against

finding excusable neglect). Down argues that her counsel’s health concerns warranted another

extension, noting that counsel now believes he was affected by an early exposure to COVID-19.

The district court expressed empathy for counsel’s health concerns but noted that Down did not

provide “any detail or evidence to substantiate her counsel’s illness,” and Down’s counsel

admittedly did not know that he had COVID-19 at the time. (Op. and Order Denying Mot. for

Leave to File Excess Pages, Mot. for Extension of Time, and Mot. to Seal Ex., R. 61, PageID 747

n.3; see also Appellant’s Br. at 42.) Down is right that we favor determinations on the merits and

not determinations based on shortcomings by counsel. (See Appellant’s Br. at 42.) However,

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Down’s disagreement with the court’s weighing of the relevant factors does not establish an abuse

of discretion.

III.

For the foregoing reasons, we affirm the district court’s entry of judgment on the pleadings

for the Equal Protection and Due Process claims and we affirm the district court’s grant of

summary judgment on the retaliation claims.

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