Jun Xiao, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0646

Jun Xiao,
Appellant,

vs.

Dr. Raquel Rodriguez, individually and in her official capacity, et al.,
Respondents.

Filed May 6, 2019
Affirmed
Florey, Judge

Hennepin County District Court
File No. 27-CV-16-12740

Zorislav R. Leyderman, The Law Office of Zorislav R. Leyderman, Minneapolis,
Minnesota (for appellant)

Douglas R. Peterson, General Counsel, Dan Herber, Senior Associate G eneral Counsel,
Brian J. Slovut, Deputy General Counsel, University of Minnesota, Minneapolis,
Minnesota (for respondents)

Considered and decided by Bjorkman, Presiding Judge; Connolly, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant Dr. Jun Xiao appeals the dismissal of his contractual and constitutional
claims against respondents Dr. Raquel Rodriguez, Dr. Todd Johnson, and Vice President
Brooks Jackson. He argues that, because the district court had subject-matter jurisdiction

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over the matter, his complaint included claims upon which relief could be granted, and
respondents were not entitled to qualified immunity, the district court erred by dismissing
his claims. We affirm.
FACTS
Appellant Dr. Jun Xiao is a graduate of the University of Minnesota (“UMN”)
College of Pharmacy (“the program”). He enrolled in the program in 2009, was dismissed
in 2013, and eventually completed the program at a later date. Appellan t is a Chinese
immigrant. He speaks with an accent, but passed the UMN’s English -proficiency exam.
He has a disability that impacts his mood, energy, and ability to interact with others.
Appellant’s initial complaint stem s from academic difficulties he experienced
beginning in September of 2012, which led to his dismissal f rom the program. The
following are the facts as alleged by appellant in his complaint, and recited, as alleged facts,
by the district court.
Facts as alleged
Appellant earned a 3.1 grade -point average in the first three years of the program.
In his final year, appellant was required to take eight courses, which were comprised of
rotations, lasting five weeks or 200 hours, at different pharmacies and supervised b y
pharmacists or “preceptors.”
Appellant alleges several wrongdoings by the program’ s faculty members. He
claims that, at some point during his fourth year, he requested a course syllabus from
Dr. Rodriguez. She did not provide him with one, or, when she did, she provided the
syllabus for a different course. Further, during his rotations, appellant claims his preceptor,

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Dr. Johnson, as well as two other preceptors, treated him in a disparate fashion because of
his disabilities, national origin, and race.
Appellant alleges that, in August 2012, he asked Dr. Rodriguez and another
professor to move him from the Medication History (PHAR 7126) class into the Leadership
Administration class, because that class did not involve patient interaction. Appellant
states that, despite his request, he was enrolled in the 7126 course anyway.
Appellant also alleges that, in August of 2012, one of his preceptors gave him a “C”
grade at his midterm evaluation for 7126 without first consulting with his supervising
pharmacist. As a resu lt, appellant asked the supervising pharmacist to give him “good
feedback.” This led, at least in part, to his ejection from the course for attempting to
interfere w ith the supervising pharmacist’s evaluation of appellant’s work . Appellant
claims he was never instructed how to interact as a pharmacist, so he should not have been
punished for not having the skills that were to be acquired from taking the class. Appellant
alleges other wrongdoings with regard to this course, including being placed at a hospital
where he had already worked, which, therefore, did not pro vide him with a “diverse
mixture of sites” for his rotations and that the course was an elective that UMN faculty
treated as required, contrary to school policy.
Appellant claims that, on September 12, 2012, Dr. Rodriguez informed him that a
patient had complained about him based on his “national dialect.” Appellant alleges that
he was immediately removed from his Infusion (PHAR 7211) course and prohibited from
completing it. At the time he was removed from the course, he had worked at the rotation
location for ab out three-and-a-half days. Shortly after appellant’s removal , he requested

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details regarding the patient’s complaint . Appellant was told that he was removed from
the course due to the affiliated pharmacy’s concern that he had compromised patient safety,
and that his removal was allowed under the affiliation agreement between the pharmacy
and UMN. Appellant requested a copy of the affiliation agreement, but never received one.
Appellant claims that he requested further information regarding his e jection from
the two courses, but did not receive these documents until more than a year after he
requested them. Appellant asserts that this delay violated UMN policy and did not afford
him due process. Further, appellant states that he paid over $17,70 0 for three courses at
the hospital pharmacy to which he was assigned and never received a refund for the 7126
course from which he was ejected or from the two courses he was allegedly prevented from
taking. In total, appellant claims he had paid UMN more than $163,000 for program -
related tuition and expenses at the time of his dismissal from the program.
Appellant also alleges that he was removed from 7126 and 7211 without notice and
given two “F” grades instead of “Incomplete” or “Withdrawn” grades. He claims this
allowed UMN to keep his tuition instead of reimbursing him or reapplying the fees to other
courses. Appellant states that UMN placed him on academic probation after he received
the two failing grades. He insists that, because it was a violati on of UMN policies to fail
him, it was also a violation to place him on probation.
Appellant claims that respondents’ actions violated his Fourteenth Amendment
right to equal protection. Spec ifically, he alleges that non-disabled, American-born, non-
minority students were given one to two extra weeks to complete their rotations, were given
syllabi when requested, were allowed to access patients’ medical records, were allowed to

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treat the “Fagron Compounding” course as a 7211 course, and were allowed to graduate
without taking a “patient care” elective. Appellant alleges that he was denied these
opportunities.
Appellant alleges that, i n December 2012, Dr. Rodriguez and appellant came to a
written agreement regarding the “time and manner” in which he would complete courses
qualifying as 7211 and 7126 and receive grades of “incomplete.” In January 2013, the
Academic Standing Committee (“ ASC”) informed appell ant that , once he successfully
completed the two courses , he would be removed from academic probation. Likewise,
appellant alleges that Dr. Rodriguez told appellant that he would be “automatically”
removed from academic probation once he passed 7126, whic h was scheduled to end on
March 29, 2013. Appellant states that in February 2013, he received a grade of “A” in his
7211 course. However, he alleges the course was registered as 7213 in his enrollment,
while it was registered as 7211 for other students. According to appellant, this was because
all electives are the same. Appellant successfully passed 7126 on March 29, 2013.
In April 2013, appellant began Acute Care I (PHAR 7122) with Dr. Johnson as the
preceptor. Appellant alleges that, on April 25, 20 13, Dr. Johnson, in the presence of
another student, held up appellant’s marked exam, called him “one of the worst students
he has had in 35 or 36 years of teaching,” and accused appellant of unprofessional behavior.
Additionally, Dr. Johnson, in front of others, allegedly accused appellant of cheating,
forced appellant to acknowledge the accusation, and threatened to send appellant to a
separate “small room.” Appellant alleges that Dr. Johnson’s behavior violated UMN ’s
policy to “be respectful, fair, and civil” and also discriminated against him because of his

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disability. Appellant reported Dr. Johnson directly to UMN, rather than reporting the
incident to Dr. Johnson’s supervisor, Dr. Rodriquez. Appellant claims that his decision to
bypass Dr. Rodriguez resulted in her initiating numerous retaliations against him.
Soon after these events, Dr. Johnson gave appellant a “D” for PHAR 7122.
Appellant request ed to be moved from Dr. Johnson’s rotation . Dr. Rodriguez denied
appellant’s request and told him that if he did not remain with Dr. Johnson, appellant would
need to go before the ASC and that Dr. Rodriguez would propose appellant’s dismissal
from the program. The next week, Dr. Johnson allegedly sent appellant two text messages
instructing appellant to move out of his apartment and contacted appellant’s landlord to
discuss the same topic . He then allegedly went to appellant’s apartment , confronted
appellant in a parking lot, and ordered him to move out.
Appellant alleges that Dr. Rodriquez made false statements that adversely affected
his enrollment in the program. He claims that, in May 2013, Dr. Rodriguez falsely
informed UMN that appellant had “never rep eated 7211” because “the three elective
courses are treated s ubstantially different.” He alleges that Dr. Rodriquez’s statement
caused him to be kept on probation past March 29, 2013. In June 2013, appellant was
allowed to briefly address the ASC regarding his potential dismissal from the program. At
the hearing, and outside the presence of appellant, Dr. Rodriguez allegedly proposed that
appellant be dismissed from the program. Consequently, according to appellant, he was
dismissed from the program in June 2013.
On July 22, 2013, appellant filed his first internal complaint with UMN. Appellant
alleged respondents violated university rules, policies, and established practices by

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removing him from 7211 and 7126, issuing non-passing grades, improperly continuing his
probation beyond March 29, 2013, and dismissing him from the pharmacy program. UMN
upheld Dr. Rodriguez’s finding that appellant never repeated the failed course.
On November 4, 2013, appellant requested extra time for completing rotations as a
disability accommodation . His request was denied , and no UMN employees engaged
appellant in “the interactive process.”
On April 30, 2014, appellant filed a second internal complaint with UMN . He
asserted that, because UMN violated its own rules, policies, and established practices,
particularly in regard to its anti-racial discrimination measures, he was entitled to a tuition
refund, monetary reimbursements, and an apology from respondents.
In September 2014, UMN held a nine -hour evidentiary hearing to address
appellant’s allegations. On October 8, 2014, the ASC found that UMN and its employees
did not violate any rules, policies, or established practice in relation to appellant’s
enrollment or education. Appellant appealed the decision to UMN Vice President Brooks
Jackson. Vice President Jackson reviewed the complaints and denied appellant’s appeal.
District court procedural history
In August 2016, appellant filed a complaint in district court based on the same
allegations presented to UMN. Respondents filed a motion to dismiss for failure to state a
claim and lack of subject -matter jurisdiction . See Minn. R. Civ. P. 12.02 (a), (e). The
district court dismissed all claims except appellant’s claim against respondents Rodriguez
and Johnson for retaliation.

8
In November 2017, respondents filed a motion for sum mary judgement on the
remaining retaliation claims . After a hearing, t he district court granted respondents’
summary-judgment motion, thus dismissing appellant’s last remaining claim. Appellant
appeals from the final judgment.
D E C I S I O N
I. The dist rict court did not err in dismissing , for lack of subject -matter
jurisdiction, appellant’s state -law claims for breach of contract, unjust
enrichment, and promissory estoppel.

Subject-matter jurisdiction refers to a court’s authority to consider an action or issue
a ruling that will decide the issues raised by the pleadings. See Cochrane v. Tudor Oaks
Condo. Project, 529 N.W.2d 429, 432 (Minn. App. 1995), review denied (Minn. May 31,
1995). Without subject-matter jurisdiction, a court must dismiss a claim. See Tischer v.
Hous. & Redev. Auth. of Cambridge, 693 N.W.2d 426, 427 (Minn. 2005) (holding that the
district court erred by failing to dismiss a claim for lack of subject -matter jurisdiction).
Whether subject-matter jurisdiction exists presents an issue of law, which we review de
novo. Id. at 428.
The district c ourt concluded that it did not have subject -matter jurisdiction over
appellant’s state -law claims for breach of contract, unjust enrichment, and promissory
estoppel. It ruled that the law required appellant to pursue these claims through a writ of
certiorari to the court of appeals . It reasoned that appellant’s claims implicated review of
an administrative body’s quasi-judicial decisions, which necessitated a deferential test, not
a de novo review. The district court determined that the two complaints appellant brought
before UMN contained the same claims that he brought in his complaint filed in district

9
court. We conclude that a ppellant’s failure to appeal UMN’s decision via a writ of
certiorari is fatal to the state-law claims in the matter before us.
Absent “an adequate method of review or legal remedy, judicial review of the quasi-
judicial decisions of administrative bodies, if available, must be invoked by writ of
certiorari.” Dietz v. Dodge County , 487 N.W.2d 237, 239 (Minn. 1992). “Because it
mandates nonintrusive and expedient judicial review, certiorari is compatible with the
maintenance of fundamental separation of power principles, and thus is a p articularly
appropriate method of limiting and coordinating judicial review of the quasi -judicial
decisions of executive bodies.” Id.
“If a writ of certiorari . . . is the exclusive method by which to challenge an
[administrative body’s] decision, then the district court lacks subject-matter jurisdiction to
hear the case.” County. of Washington v. City of Oak Park Heights, 818 N.W.2d 533, 538
(Minn. 2012) (citation omitted); see Shaw v. Bd. of Regents of Univ. of Minn., 594 N.W.2d
187, 1 90-92 (Minn. App. 1999) (holding that “[a] breach of contract claim based on a
termination decision by the University of Minnesota is reviewed only on a writ of
certiorari” and affirming the district court’s determination that it lacked subject -matter
jurisdiction to review the claim), review denied (Minn. July 28, 1999); see also Maye v.
Univ. of Minn. , 615 N.W.2d 383, 385 -87 (Minn. App. 2000) (affirming a district court’s
determination that it lacked subject-matter jurisdiction to review a breach-of-contract claim
based on the university’s failure to promote the appellant). A party must apply to the court
of appeals for a writ of certiorari “within 60 days after the party applying for such writ shall
have received due notice of the proceeding sought to be reviewed thereby.” Minn. Stat.

10
§ 606.01 (2018). And, when a litigant aggrieved by a quasi-judicial decision fails to obtain
a timely writ of certiorari, that litigant is not entitled to review on the merits of the challenge
by way of some other remedy. See in re Occupational License of Haymes , 444 N.W.2d
257, 259 (Minn. 1989) (reversing review on the merits of quasi -judicial decision because
of failure to timely petition for writ of certiorari).
Appellant argues that, contrary to the district court’s ruling, the court had subject-
matter jurisdiction over the matter. He contends that the court had jurisdiction for several
reasons: the complaint filed in district court alleged facts sufficient to establish a claim for
breach of educational contract, the contractual violations were not substantially related to
his dismissal from the program, the district court’s review of the claims would not
necessarily require a determination as to whether dismissal was appropriate, and that such
a review would not resu lt in a substantial intrusion or challenge to UMN’s int ernal
decision-making process.
We are not persuaded. T he district court properly dismissed appellant’s state -law
claims for lack of subject -matter jurisdiction. The allegations made by appellant in his
district court complaint, although he attempts to distinguish them, are substantially the
same as the claims adjudicated by UMN.
Further, UMN’s decision-making proce ss was quasi-judicial in nature and, thus,
necessitated certiorari review to maintain separation of powers principles . See id. Quasi-
judicial actions include the following: “(1) investigation into a disputed claim and weighing
of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding
decision regarding the disputed claim.” Minn. Ctr. for Env’t Advocacy v. Metro. Council,

11
587 N.W.2d 838, 842 (Minn. 1999). Appellant’s UMN complaints highlighted factual
allegations, disputed by respondents, which were then reviewed and weighed by an
administrative panel . Appellant was represented by counsel, presented evidence, and
cross-examined witnesses. The prescribed standard to which the facts were applied at the
hearing were the rules, policies, and established practices of the program. The panel issued
a decision, and appellant sought review. Vice President Jackson then reviewed the matter
and issued a final, binding decision denying appellant’s appeal.
Appellant’s assertion that the district court’s review of his claims would not result
in an intrusion upon U MN’s decision is without merit. The district court is not equipped
to review the types of academic decisions appellant asserts could be reviewed, such as the
program’s choice of rotation locations, the tasks appellant was assigned on rotation,
appellant’s access to patient s’ medical records, or whether courses satis fied graduation
requirements. See Zinter v. Univ. of Minn. , 799 N.W.2d 243, 246 (Minn. App. 2011)
(concluding courts are not equipped to analyze the goals of a UMN degree program),
review denied (Minn. Aug. 16, 2011).
Appellant further argues that the district court had subject -matter jurisdiction over
his claims because it could grant certain monetary damages that UMN does not have the
authority to award. This distinction does not extinguish the policy concern that a district
court should not be conducting a de novo review of issues already adjudicated before an
administrative body through a quasi -judicial proceeding. We, therefore, discern no error
by the district court in dismissing appellant’s state -law claims for lack of subject -matter
jurisdiction.

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II. The district court did not err in dismissing appellant’s 42 U.S.C. § 1983
Fourteenth Amendment equal -protection claims for failure to state a claim
upon which relief could be granted.

The United States and the Minnesota Constitutions guarantee citizens equal
protection of the laws. U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 2 . 42 U.S.C.
§ 1983 (2018) provides a private right of action for violations of constitutional provisions,
including the Equal Protection Clause, and a party bringing a section 1983 claim may seek
monetary damages for violations of their constitutional rights. An e qual-protection
challenge requires an initial showing by the plaintiff that “similarly situated persons have
been treated differently.” State v. Cox , 798 N.W.2d 517, 521 (Minn. 2011) (quotation
omitted). In determining whether two groups are similarly situated, we focus on “whether
they are alike in all relevant respects.” Id. at 522. Appellate courts routinely reject equal-
protection claims of parties who fail to establish that they are similarly situated to those
from whom they contend to be treated differently. Schatz v. Interfaith Care Ctr. , 811
N.W.2d 643, 656 (Minn. 2012).
A complaint must “contain a short and plain statement of the claim showing that the
pleader is entitled to relief and a demand for judgment for the relief sought.” Minn. R. Civ.
P. 8.01. A party may move to dismiss a complaint for failure to state a claim upon which
relief can be granted. See Minn. R. Civ. P. 12.02(e). “We review de novo whether a
complaint sets forth a legally sufficient claim for relief. ” Walsh v. U.S. Bank , N.A., 851
N.W.2d 598, 606 (Minn. 2014). We must accept the allegations contained in the complaint
as true; whether the plaintiff can prove the alleged facts is immaterial to our analysis. See
Elzie v. Comm’r of Pub. Safety , 298 N.W.2d 29, 32 (Minn. 1980). We will not uphold a

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dismissal “if it is possible on any evidence which might be produced, consistent with the
pleader’s theory, to grant the relief demanded.” Martens v. Minn. Mining & Mfg. Co., 616
N.W.2d 732, 739-40 (Minn. 2000) (quotation omitted).
The district court concluded that there was an insufficient basis for an equal -
protection claim. The district court ruled that appellant had not alleged a direct motive of
discrimination, failed to identify similarly situated persons who received accommodations
or passing grades that he did not receive, and did not provide precise descriptions of facts
explaining how non-disabled and non-minority students were treated more favorably. The
district court’s conclusion was not error.
Appellant disputes th at he failed to allege sufficient facts to s ustain his equal -
protection claim. Appellant points to allegations from his complaint of Caucasian students
being treated favorably. For example, the complaint alleged that appellant was not given
extra training on patient interaction when compared to other students, was denied access
to patient profiles while white students’ access was not similarly barred, was not given a
course schedule while white students received those materials, and was required to take a
“patient care” elective while other students were not. Appellant’s argument, however, does
not adequately address the district court’s conclusion that the allegations are too vague and
do not identify how the students in question were similarly situated to himself.
Our review of the complaint is consistent with the district court’s ruling. Appellant
failed to sufficiently allege that other students treated more favorably were similarly
situated to appellant and alike in all relevant ways. Therefore, the district court did not err
in dismissing appellant’s equal-protection claims pursuant to Minn. R. Civ. P. 12.02(e).

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III. The district court did not err in dismissing appellant’s 42 U.S.C. § 1983
Fourteenth Amendment due -process claims for failure to state a claim upon
which relief can be granted.

Appellant argues the district court’s dismissal of his due-process claims was error
because his complaint sufficiently alleged that he was deprived of both a property and
liberty interest. The state cannot “deprive any person of life, liberty, or property, without
due process of law.” U.S. Const. amend. XIV, § 1; see also Minn. Const. art. I, § 7.
However, the United States Supreme Court has held that “far less stringent procedural
requirements” are necessary “in the case of an academic dismissal.” Bd. Of Curators of
Univ. of Mo. v. Horowitz, 435 U.S. 78, 86, 98 S. Ct. 948, 953 (1978).
The district court determined that appellant failed to plead facts sufficient to support
a section 1983 d ue-process claim because h e was afforded more than the pre scribed
constitutional procedures require. We agree.
A. Property interest
Appellant concedes that , to show he was deprived of a property interest, he must
establish that UMN failed to provide him with written notice and an opportunity to be heard
prior to taking adverse action against him. However, he contends that he was deprived of
a property interest because he did not receive notice of his remo val from two courses or
notice of receiving failing grades. Appellant cites to no authority that qualifies these
actions as depriving him of a property interest an d consequently deserving of due-process
protections.
Regarding his dismissal, a ppellant was provided with notice, was represented by
counsel, was allowed to present evidence and cross-examine witnesses, and was allowed a

15
nine-hour hearing prior to being dismissed from the program. This was sufficient due
process to protect appellant’s constitutional rights. Therefore, the district court did not err
in ruling that appellant failed to state a claim upon which relief can be granted.
B. Liberty interest
Appellant cites Greenhill v. Bailey , 519 F.2d 5 (8th Cir. 1975) to support the
proposition that students attending public universities have a protected liberty interest in
their good name and reputation —both of which, according to appellant, he was deprived.
He alleges that both Dr. Johnson and Dr. Rodrig uez made several false statements about
him. Specifically, he alleges that Dr. Johnson falsely accused him of cheating and taking
a patient profile without permission. He alleges that Dr. Rodriguez falsely stated that he
had “never repeated 7211,” that failed rotations were pl aced “at the end of all scheduled
rotation[s],” and that appellant needed to complete a “patient care” elective in order to be
removed from academic probation.
As an initial matter, Greenhill is not controlling as i t predates Horowitz.
Additionally, Greenhill’s holding does not support appellant’s due -process claim. 519
F.2d at 8. The Greenhill court held that the plaintiff, who had been dismissed from medical
school, without the opportunity to be heard, was entitled to an administrative hearing based
on the broad and damaging dissemination of information denigrating his academic ability.
Id. at 7-8. The Greenhill court cautioned, however, that most academic dismissals do not
require more than “an informal give-and-take,” between the student and the administration,
and that “trial-type procedures” should be reserved for only particular circumstances. Id.
at 8 -9. Appellant’s circumstances are distinguishable from Greenhill, and , further, the

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amount of due process appellant received , including a lengthy evidentiary hearing before
an administrative panel, was sufficient under Horowitz. See 435 U.S. at 86, 98 S. Ct. at
953; 519 F.2d at 8 -9. We, therefore, conclude that the district court did not err in
dismissing, pursuant to Minn. R. Civ. P. 12.02(e), appellant’s due-process claims.
IV. The district court did not err in dismissing appellant’s 42 U.S.C. § 1983 First
Amendment retaliation claims.

Appellant argues that the district court erred in dismissing his retaliation claims. To
successfully establish a prima facie case of retaliation under the First Amendment ,
plaintiffs must demonstrate that (1) they engaged in statutorily protected conduct; (2) the
defendant committed an adverse action; and (3) a causal connection exists between the
two. Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 444 (Minn. 1983).
A. Vice President Jackson
Appellant argues that Vice President Jackson’s denial of his administrative appeal
was retaliatory in nature. Specifically, appellant alleged, in his district court complaint,
that Vice President Jackson issued his decision on appellant’s appeal past the 30 -day
deadline provided by UMN polic ies and that this delay demonstrate d a conspiracy to
prevent appellant’s complaint from reaching the next level of the UMN admini strative
process.
Rejecting appellant’s allegations, the district court determined that he had not
pleaded sufficient facts to implicate Vice President Jackson in a retaliation claim. The
district court’s rationale was that there were insufficient allegations that Vice President
Jackson acted adversely toward appellant, beyond denying his appeal on its merits . The

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district court reasoned that, if such allegations were enough to support a retaliation claim,
then any student who appealed UMN decisions would have a retaliation claim . Because
appellant failed to allege that Vice President’s adverse action was malicious in nature, or
outside the purview of his duties as vice president, the district court concluded that
qualified immunity was a bar to appellant’s claim against him. We agree.
Qualified immunity is intended to shield , in certain circumstances, government
officials from liability and the burdens of litigating a section 1983 claim for damages.
Robbins v. Becker , 794 F.3d 988, 993 (8th Cir. 2015). “State officials are entitled to
qualified immunity when ‘their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Elec. Fetus Co.,
Inc., v. City of Duluth , 547 N.W.2d 448, 452 (Minn. App. 1996) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)), review denied (Minn. Aug.
6, 1996). A clearly established right is one that is “sufficiently clear [so] that a reasonable
official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987). We review the applicability of immunity
de novo. Kariniemi v. City of Rockford, 882 N.W.2d 593, 599 (Minn. 2016).
The “allegations in a complaint may provide the basis for denying an immunity
defense.” Gleason v. Metro. Council Transit Operations , 563 N.W.2d 309, 318 (Minn.
App. 1997) (emphasis in original), aff’d in part , 582 N.W.2d 216 (Minn. 1998). Cases
implicating immunity, however, are subject to a somewhat heightened pleading standard.
See Elwood v. Rice Cty ., 423 N.W.2d 671, 676 (Minn. 1988) . That is, plaintiffs “should
supply in their complaints or other supporting materials greater factual speci ficity and

18
particularity than is usually required.” Id. (quotation omitted). And, immunity should be
determined “at the earliest possible stage to shield officers from disruptive effects of broad-
ranging discovery and effects of litigation.” Id. at 675.
On appeal, we “need not consider the correctness of the plaintiff’s version of the
facts, nor even determine whether the plaintiff’s allegations actually state a claim. ”
Mitchell v. Forsyth , 472 U.S. 511, 528, 105 S. Ct. 2806, 2816 (1985). Rather, we must
merely decide “whether the legal norms allegedly violated by the defendant were clearly
established at the time of the challenged actions.” Id.
Taking appellant’s allegations as true, Vice President Jackson’s alleged delay in the
decision-making process does not imply impropriety on a level that wo uld implicate him
in retaliation against appellant or bar him from qualified immunity. The relevant portions
of appellant’s complaint do not raise these theories of impropriety, and the record does not
support such an implication. As such, the district court did not err in dismissing appellant’s
retaliation claim against Vice President Jackson.
B. Dr. Johnson and Dr. Rodriguez
Appellant also argues that the conduct of Dr. Johnson and Dr. Rodriquez was
retaliatory in nature. In his district court complaint, appellant alleged that respondents
retaliated against him after he took the protected action of filing a complaint against
Dr. Johnson without first bringing the matter to Dr. Rodriguez. Appellant cl aims that
respondents’ retaliatory actions included issuing him poor grades, advocating for his
dismissal from the program , accusing him of cheating, ridiculing him in front of a peer ,
and attempting to force him to move out of his apartment.

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The district court concluded that appellant had alleged enough facts that, if true,
could potentially support a retaliation claim against Dr. Johnson and Dr. Rodriguez.
Accordingly, the court denied their motion to dismiss and allowed the parties to proceed
with discovery. Approximately one year later, however, the district court concluded that,
“[w]hile some of [respondents’] conduct was questionable, there [were] no pliable facts
establishing a retaliatory animus.” Thus, the district court granted respondents’ motion for
summary judgment.
Summary judgment is appropriate when “there is no genuine issue as to any material
fact and the movant is entitled to judgment as a matter of l aw.” Minn. R. Civ. P. 56.01.
No genuine issue for trial exists “[w]here the recor d taken as a whole could not lead a
rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60,
69 (Minn. 1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp. , 475 U.S. 574, 587, 106 S. C t. 1348, 1356 (1986)). A party moving for
summary judgment may support the motion by “ citing to particular parts of materials in
the record, including depositions, documents, electronically stored information, affidavits,
stipulations (including those mad e for purposes of the motion only), admissions,
interrogatory answers, or other materials.” Minn. R. Civ. P. 56.03(a)(1).
“The test for qualified immunity at the summary judgment stage is an objective
one.” Elec. Fetus, 547 N.W.2d at 452 ( quotation omitted). “The district court’s function
on a motion for summary judgment is not to decide issues of fact, but solely to determine
whether genuine factual issues exist.” DLH, 566 N.W.2d at 70. As such, “a court deciding
a summary-judgment motion must not make factual findings or credibility determinations

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or otherwise weigh evidence relevant to disputed facts.” Geist-Miller v. Mitchell , 783
N.W.2d 197, 201 (Minn. App. 2010).
On appeal, we review de novo a district court’s summary-judgment decision .
Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010).
“In doing so, we determine whether the district court properly applied the law and whether
there are genuine issues of material fact that preclude summary judgment.” Id. We “must
view the evidence in the light most favorable to the party against whom judgment was
granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
The district court proper ly granted respondents’ summary -judgment motion ,
concluding that there were no genuine issues of material fact and respondents were entitled
to qualified -immunity protection. In support of its decision, the court determined that
(1) appellant was unable to demonstrate that respondents deprived him of a constitutional
right and (2) the constitutional right was not clearly established at the time of the alleged
violation. See Elec. Fetus , 547 N.W.2d at 452. The district court reasoned that, while
appellant made allegations of “questionable conduct” by respondents, the alleged actions
took place either before appellant’s protected activity or the conduct was not of a type and
quality definitive of a retaliatory animus. We agree.
Appellant filed with UMN an internal complaint against Dr. Johnson on April 26,
2013. The record shows that the complaint was not discussed with Dr. Johnson until on or
about April 30, 2013 , when Dr. Rodriquez relayed the allegations to him . Viewing the
facts in the light most favorable to the nonmoving party, Dr. Johnson’s alleged conduct of
accusing appellant of cheating and ridiculing him in front of peers would have occurred

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before Dr. Johnson was made aware of appellant’s complaint . Therefore , appellant’s
evidence of these claimed adverse events do not show actions that were taken during the
pendency of his protected actions.
Dr. Johnson’s issuance of poor grades to appellant do not support a retaliation claim
either. Appellant received a grade of “D” from Dr. Johnson on May 3, 2013, the day grades
were due, and there is no evidence in the record that this grade was influenced by
appellant’s complaint. Appellant’s own allegation that Dr. Johnson considered him to be
“one of his worst students ” indicates that appellant was , in fact, struggling academically
before his complaint was filed. Nor do appellant’s allegations that Dr. Johnson contacted
appellant’s landlord and spoke condescendingly to appellant in a parking lot support a
retaliation claim, as neither action would chill a person of ordinary firmness from
continuing to engage in a protected activity. See Bernini v. City of St. Paul, 665 F.3d 997,
1007 (8th Cir. 2012).
Similarly, appellant’s evidence against Dr. Rodriquez does not support a retaliation
claim. While Dr. Rodriguez was present for the hearing before the ASC, the record does
not support the claim that she advocated for appellant’s dismissal.
Additionally, appellant’s “right to speak out” had not been “clearly established” at
the time of the alleged retaliation . See White v. Pauly , 137 S. Ct. 548, 55 2 (2017)
(reiterating the “longstanding principle that clearly established law should not be defined
at a high level of generality ”) (quotations omitted). To show that a r ight is “clearly
established,” a plaintiff must identify a case where state officials, acting under similar
circumstances, were held to have violated the right at issue. See id. at 552. Appellant has

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not met this burden. Instead of identifying a case in which state officials, acting under
similar circumstances, were held to violate First Amendment rights through retaliation, he
points to a Fourth Amendment case regarding an arrest and a claim regarding excessive
force and retaliation in the prison system.
In sum, the district court did not err in granting summary judgment on appellant’s
First Amendment retaliati on claims against Dr. Johnson and Dr. Rodriquez. There were
no genuine issues of material fact, and both respondents were entitled to qualified-
immunity protection.
Affirmed.