MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
On September 28, 2012, Plaintiff Grace Lee filed a ten-count complaint against Kansas State University ("KSU"), Dr. Carol W. Shanklin, Dr. James A. Guikema, Dr. Duane W. Crawford, Dr. James W. Neill, Dr. Haiyan Wang, and Ms. Heather Reed (Defendants), seeking damages related to her termination from a graduate teaching assistant (GTA) position and from her graduate studies in statistics at KSU. Her claims include both state law claims under Kansas law and several alleged constitutional violations under 42 U.S.C. § 1983. On November 6, 2012, Defendants filed a Motion to Dismiss (Doc. 12), pursuant to Federal Rule of Civil Procedure 12(b)(6) and Rule 12(b)(1), which is currently before the Court. The motion is fully briefed and the Court is prepared to rule. As described more fully below, the Court grants the motion in part and denies the motion in part.
I. Legal Standard
The Court evaluates Defendants' jurisdictional claim under Rule 12(b)(1). Federal courts are courts of limited jurisdiction and, as such, must have a statutory or Constitutional basis to exercise jurisdiction. A court lacking jurisdiction must dismiss the case, regardless of the stage of the proceeding, when it becomes apparent that jurisdiction is lacking. The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper; here, "[P]laintiff bears the burden of showing why the case should not be dismissed." Mere conclusory allegations of jurisdiction are not enough.
Generally, a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction takes one of two forms: a facial attack or a factual attack. "First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true." "Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)."
The Court evaluates Defendants' non-jurisdictional arguments under Rule 12(b)(6), which provides a vehicle for a party to challenge the legal sufficiency of a claim. The requirements underlying the legal sufficiency of a claim stem from Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." To survive a motion to dismiss, a complaint must present factual allegations, assumed to be true, that "raise a right to relief above the speculative level, " and must contain "enough facts to state a claim to relief that is plausible on its face." "[T]he complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." The plausibility standard does not require a showing of probability that a defendant has acted unlawfully, but requires more than "a sheer possibility." "[M]ere labels and conclusions, ' and a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim." Finally, the Court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.
The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court "must take all the factual allegations in the complaint as true, [but] we are not bound to accept as true a legal conclusion couched as a factual allegation.'" Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth. Second, the court must determine whether the factual allegations, when assumed true, "plausibly give rise to an entitlement to relief." "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
II. Factual Allegations
Plaintiff's Complaint alleges the following facts, which the Court construes in the light most favorable to Plaintiff.
Plaintiff is a citizen of The People's Republic of China and is a lawfully admitted resident alien of the United States. In brief, Plaintiff Lee was a graduate student in the Department of Statistics at KSU, but was recently dismissed from the Department of Statistics, and, subsequently, from the KSU Graduate School. Plaintiff argues she was dismissed in retaliation for filing formal grievances against her former major professor and for her communications to Defendants reporting potential academic fraud on the part of a former KSU Statistics PhD student. Defendants maintain Plaintiff was dismissed for failing to make adequate academic progress, which resulted from her failure to find a replacement major professor to supervise her doctoral research after she asked to have her other major professors removed.
Plaintiff had been enrolled in the doctoral program in the Department of Statistics of the KSU Graduate School since the spring academic semester of 2006. Plaintiff had been in good academic standing during the entirety of her tenure at KSU and received several academic scholarships due to the quality of her work. Plaintiff has passed several important milestones in pursuit of her PhD in Statistics from KSU, including passing her PhD Qualifying Exam in early 2008. Additionally, Plaintiff has completed a 225-page dissertation proposal and published three papers. The Department of Statistics confirmed on January 30, 2012, that Plaintiff was on schedule to graduate with her PhD in Statistics in Spring 2013. In most PhD programs, graduate students must have a major professor who oversees their work and provides advice and guidance; Dr. Haiyan Wang served in that role for Plaintiff.
While Plaintiff was a GTA, and thus an employee of a state agency, Wang asked her to review and improve another KSU graduate student's dissertation. That student was Wang's former advisee and had already graduated from KSU with a PhD, but the student's dissertation was deficient and not acceptable by any journal. After review, Plaintiff concluded that the other student's dissertation contained multiple instances of academic fraud. Plaintiff reported the fraud to Wang, who asked her to fix the paper and did nothing to address the fraud itself. Plaintiff does not identify when this episode took place.
Beginning in August 2009, Wang sometimes exhibited abusive and unprofessional behavior toward Plaintiff Lee.
On October 5, 2011, Plaintiff filed a grievance with the Associate Vice President of the KSU Office of Research and Sponsored Programs, Dr. James A. Guikema, against Wang, requesting removal of Dr. Wang as her major professor and from the supervisory committee overseeing and advising Lee in the pursuit of her PhD. This grievance followed months of informal complaints by Plaintiff to the Head of the Department of Statistics, Dr. James W. Neill.
In response to the grievance, KSU failed to hold a hearing required by KSU Graduate School grievance policies, but instead settled on a compromise suggested by the Interim Associate Dean of the KSU College of Arts and Sciences, Dr. Joseph Aistrup. Under the compromise solution, Neill assumed a "co-major professor" role with Wang, who requested to continue as Plaintiff's major professor. Neill was to act as a mediator between Wang and Plaintiff.
Wang's abusive and unprofessional behavior toward Plaintiff continued unabated for several months, and, following consultation with the Associate Dean of the Graduate School, Dr. Duane W. Crawford, Jr., Plaintiff filed another grievance against Wang on March 18, 2012, again requesting Wang's removal as her major professor. In response, the school granted Plaintiff's request and removed Wang from her role as Plaintiff Lee's major professor and from Plaintiff Lee's supervisory committee.
Neill removed himself as Plaintiff's co-major professor on or about April 9, 2012, leaving Plaintiff without a major professor. Neill did so because he had only agreed to serve as co-major professor in an attempt to mediate between Lee and Wang. Neil maintained that he works in a different area of statistics and thus would not be an appropriate research supervisor. Before Neill was removed, Plaintiff signed a form authorizing his removal, which she later sought to vacate. She alleges she signed the form in error, without realizing that Department Head Neill's name was on the form. She also alleges that she was misled by unspecified defendants into believing that his name was not on the form.
After Plaintiff's two major professors were removed, she was required to find another major professor in order to continue her studies. On April 19, 2012, Neill informed Plaintiff that her summer GTA position was in jeopardy if she could not locate another major professor by April 27, 2012, because GTA positions were only awarded to students making satisfactory academic progress. Plaintiff contacted every professor within the Department of Statistics in an attempt to locate another major professor, but was unable to secure a new major professor by April 27, 2012, due to the complexity of her dissertation work and the high faculty turnover in the Statistics Department. On or about April 27, 2012, Plaintiff was terminated from her summer GTA position. Although Defendants told Plaintiff that she was terminated for her lack of a major professor, many other graduate students within the Department of Statistics did not have major professors at that time.
After her dismissal from the GTA position, Plaintiff continued to seek a new major professor in the Statistics Department. Numerous professors suggested that she might have to change to a new research topic or change to a new department in order to find a new major professor. On April 30, 2012, Crawford told Plaintiff that he didn't see any alternative to Plaintiff starting her doctoral program and research anew on another topic with another major professor, which she interpreted as a penalty for her grievances against Wang. On May 1, 2012, Associate Vice President Guikema told Plaintiff that her chances of her completing her PhD in the Statistics Department were "almost down to zero" and suggested Plaintiff should explore discussions with graduate programs outside of the Department of Statistics.
On May 4, 2012, the Associate Dean and Director of Student Life, Heather Reed, requested a meeting with Plaintiff and asked Plaintiff not to have any contact with faculty or staff at the Department of Statistics or the Graduate School. When Plaintiff met with Reed and Guikema on May 7, 2012, Guikema confirmed that Plaintiff no longer had any chances for success in continuing her PhD in the Statistics Department. Guikema told Plaintiff that Plaintiff could ask faculty members of other Graduate School departments if she could be a student in their program, but stated that staying in the Department of Statistics was not an option, because Plaintiff did not have a major professor by the April 27, 2012 deadline. Guikema told Plaintiff that Plaintiff had approximately six weeks to be accepted into a different department within the KSU Graduate School or she would be dismissed from the Graduate School entirely. The Complaint does not allege any efforts by Lee to be accepted into a different department within the KSU Graduate School.
On May 9, 2012, Plaintiff received a letter informing her that she had been recommended for termination from the Statistics graduate program for failure to find a replacement professor. On May 31, 2012, Plaintiff received a letter from Guikema informing Plaintiff that she was being dismissed from the KSU Graduate School for failure to make satisfactory progress, on the recommendation of the Statistics Department.
Plaintiff maintains that Defendants' actions against her were retaliatory, were in bad faith, and were in response to Plaintiff Lee's filing of two grievances against Dr. Wang. Plaintiff argues that her acknowledged superior academic performance at KSU's Graduate School, combined with the behavior of Defendants, demonstrate that Plaintiff Lee's dismissal was not due to "failure to make satisfactory progress" nor any other purported academic reason.
Plaintiff alleges ten counts in ...