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Robinson v. Wichita State University

United States District Court, D. Kansas

February 13, 2018

WADE ROBINSON, Plaintiff,
v.
WICHITA STATE UNIVERSITY, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         This matter comes before the court on defendants John Bardo and Wichita State University's Motion for Judgment on the Pleadings (Doc. 55). Defendants filed this Motion on May 15, 2017. The parties have filed responses and replies. For the reasons explained below, the court grants defendants' motion in part and denies it in part. After identifying the governing facts, this order explains the reasons for this holding.

         I. Facts

         The following facts come from plaintiff's First Amended Complaint (Doc. 48). Because the current dismissal motion relies on Federal Rule of Civil Procedure 12(c), the court must accept the pleaded facts as true and view them in the light most favorable to plaintiff. Ramirez v. Dep't of Corr., 222 F.3d 1238, 1240 (10th Cir. 2000). The court emphasizes that this standard controls the facts assumed at this stage of the case. In short, the court expresses no opinion whether they represent the facts that, ultimately, the factfinder would believe.

         Dr. Wade Robinson, plaintiff, brings this suit in response to the decision by defendant Wichita State University (“WSU”) to terminate his employment. Plaintiff began working at WSU in July 2009. He was WSU's Vice President for Campus Life & University Relations. As Vice President for Campus Life & University Relations, plaintiff provided the oversight function for Title IX compliance, student conduct, housing enrollment, and other related activities. On April 25, 2013, plaintiff learned that a member of WSU's basketball team allegedly had committed a rape. Two days later, plaintiff told defendant John Bardo, the University President, that WSU needed to investigate the incident to comply with WSU's Title IX obligations. On April 29, plaintiff took the lead on the Title IX investigation into the alleged rape. After conducting an initial investigation, plaintiff filed a formal Title IX complaint by submitting an incident report to WSU. Mr. Bardo later threatened plaintiff's employment status.

         About a year later, in January 2014, plaintiff learned of another alleged rape at WSU. Plaintiff again led the Title IX investigation and encouraged the putative victim to provide a formal statement. The victim declined. Plaintiff also met with the alleged perpetrator twice. On July 10, 2014, Mr. Bardo demoted plaintiff to Vice President of Student Engagement. Also, in August 2014, Mr. Bardo moved plaintiff into a small office space.[1]

         On January 12, 2015, plaintiff informed Mr. Bardo that the putative victim of the January 2014 rape would provide a formal statement. Because the victim was making a formal statement, plaintiff proceeded with a formal investigation, as required by Title IX. On January 15, 2015, plaintiff was verbally informed that WSU would terminate his employment effective June 30, 2015.[2]

         Over the next few months, plaintiff heard many things about his termination. Plaintiff met with a human resources employee who informed plaintiff that WSU had decided to terminate his employment because he “did not fit” and the administration was trying to find a reason for immediate termination. Also, plaintiff received two anonymous notes reporting that employees in the President's office secretly were telling others that WSU had decided to terminate plaintiff's employment. When plaintiff met with Mr. Bardo about his termination, Mr. Bardo explained that WSU had decided to terminate plaintiff's employment because he was too loyal to his staff, he was a big man with a loud voice, others perceived him as a bully, and he had allowed the costs for Shocker Hall[3] to balloon. On June 1, 2015, plaintiff learned that Mr. Bardo had told people[4] at WSU that plaintiff did not have the credentials for his job.

         On March 2, 2015, the Registry for College and University Presidents (“Registry”) published a job announcement for plaintiff's job. The announcement reported, “The incumbent is aware he is leaving at the end of the academic year or sooner; the incumbent does not fit with the culture of the executive leadership team” and “the current operation is too hierarchical and punishment-centered.” Doc. 48 ¶ 38. The Registry sent this announcement to their members, who are retired student affairs professionals available to fill university and college positions on an interim basis. Mr. Bardo provided this information to the Registry.

         Mr. Bardo also explained to WSU Student Body President Matt Conklin why he had terminated plaintiff. Mr. Bardo stated that: “[T]he conduct process overseen by [plaintiff] was too punitive in nature rather than educational as it should be;” “the Student Affairs Division improperly allocated finances in supporting the institution's goals;” and “the Student Affairs Division is too bureaucratic in nature.” Doc. 48 ¶ 40.[5] On May 9, 2015, The Wichita Eagle published an article where it asked Mr. Conklin why WSU fired plaintiff. Mr. Conklin answered by repeating the statements that Mr. Bardo made to him.[6] The Wichita Eagle also quoted the Registry's announcement about the position.

         WSU terminated plaintiff's employment on June 30, 2015. On July 10, 2015, plaintiff requested records from WSU under the Kansas Open Records Act (“KORA”). He requested documents referencing plaintiff's termination and WSU's attempt to use the Registry to find plaintiff's replacement. WSU eventually complied with plaintiff's KORA request 17 weeks later.

         II. Claims

         Plaintiff asserts five claims against defendants. First, plaintiff asserts a claim against WSU under Title IX for Retaliation (Count I). Next, plaintiff asserts a claim under 42 U.S.C. § 1983 against Mr. Bardo for depriving plaintiff of a liberty interest without due process (Count II). Third and fourth, plaintiff asserts a defamation claim (Count III) and an invasion of privacy claim against Mr. Bardo (Count IV). And last, plaintiff asserts a claim under KORA against WSU (Count VII).

         III. Legal Standard

         Defendants seek judgment on the pleadings under Fed.R.Civ.P. 12(c). Courts evaluate a Rule 12(c) motion using the same standard used to evaluate a motion to dismiss under Rule 12(b)(6). See Turner v. City of Tulsa, 525 F. App'x 771, 772 (10th Cir. 2013).

         The court will grant a motion for judgment on the pleadings only when the factual allegations in the complaint fail to “state a claim for relief that is plausible on its face, ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), or when an issue of law decides the case, Neitzke v. Williams, 490 U.S. 319, 326 (1989). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Under this standard, ‘the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.'” Carter v. United States, 667 F.Supp.2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)).

         IV. Analysis

         A. Title IX Retaliation Claim (Count I)

         Title IX prohibits educational institutions who receive federal financial assistance from discriminating against any individual based on sex. 20 U.S.C. § 1681. “Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX's private cause of action.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). Educational institutions thus can incur liability under Title IX if they retaliate against a person who has complained about discrimination aimed at the complainant. Id. at 179. In addition, and distinct from that kind of liability, educational institutions can incur liability if they retaliate against a person who has complained about allegedly discriminatory treatment directed at another. Id. at 179 (holding that a Complaint sufficiently alleged a Title IX violation when it alleged that a school fired a women's basketball coach who had complained that the women's team received less funding, equipment, and facility time than the men's team).

         In Title IX retaliation actions, the court applies the same standards as those applied to Title VII retaliation cases. See Hiatt v. Colo. Seminary, 858 F.3d 1307, 1315-16 (10th Cir. 2017) (applying the same test to resolve a Title VII and Title IX claim). To succeed on a Title IX retaliation claim, then, the plaintiff must establish that: (1) the employer took an adverse employment action against the plaintiff; (2) plaintiff engaged in protected activity; and (3) the employer adversely affected plaintiff's employment because of plaintiff's protected activity. Id. WSU argues that the court should enter judgment against plaintiff's Title IX claim because plaintiff never engaged in protected activity. Specifically, WSU argues that plaintiff could not have engaged in protected activity when all of his involvement with the alleged activity Title IX protects was part of his job duties.

         The theoretical premise of WSU's argument is correct. An employee cannot engage in protected activity while performing his job duties. Weeks v. Kansas, 503 F. App'x 640, 642 (10th Cir. 2012) (citing McKenzie v. Renberg's, Inc., 94 F.3d 1478, 1486-87 (10th Cir. 1996). This rule is known as the “manager rule.” Furr v. Ridgewood Surgery & Endoscopy Ctr., LLC, 192 F.Supp.3d 1230, 1248 (D. Kan. 2016) (discussing McKenzie, 94 F.3d at 1486-87).

         But if the plaintiff/employee steps outside the scope of his job duties and “file[s] (or threaten[s] to file) an action adverse to the employer, actively assist[s] other[s] in asserting [Title IX] rights, or otherwise engage[s] in activities that reasonably could be perceived as directed towards the assertion of rights protected by [Title IX], ” then the employee engages in protected activity. McKenzie, 94 F.3d at 1486-87. This protection reaches conduct as informal as filing a complaint with the employer. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (holding Title VII prohibits “employer actions that are likely ‘to deter victims of discrimination from complaining to the EEOC, ' the courts, and their employers” (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997))).[7]

         Here, plaintiff has alleged both that he actively assisted others in asserting Title IX rights and that he personally filed adverse actions against WSU. The Complaint alleges that plaintiff “took the lead on the investigation into the alleged rape incident” in April 2013. Doc. 48 ¶ 18. In addition, the Complaint alleges that plaintiff “filed a formal Title IX complaint into the alleged rape incident” shortly thereafter. Id. ¶ 19. Plaintiff also alleges he took the lead on a rape investigation in February 2014. Id. ¶ 23. The Complaint does not allege that plaintiff merely advised WSU of the best course of action or that WSU could face a Title IX claim if it did nothing. Instead, the Complaint alleges that plaintiff helped others assert rights under Title IX. Because the Complaint alleges plaintiff helped others assert rights under Title IX, the Complaint sufficiently alleges that plaintiff was engaged in protected activity.

         To support its argument that plaintiff cannot engage in protected activity when plaintiff's job duties included Title IX compliance, WSU analogizes this case to McKenzie, Weeks, and Atkinson v. Lafayette College, 653 F.Supp.2d 581 (E.D. Pa. 2009). WSU contends that all three of those cases involved employees whose job responsibilities included compliance with similar federal laws-just like plaintiff here-and so, the court should enter judgment against the Title IX claims. Those cases, however, differ from this one and those differences matter.

         In McKenzie, the employing company had terminated the plaintiff's employment in her role as the company's personnel director. McKenzie, 94 F.3d at 1481. Before plaintiff's termination, she had discussed possible FLSA violations with the company's president and its corporate attorney after she reviewed handouts from a seminar about wage and hour laws attended by a co-worker. Id. When the company fired plaintiff, she sued, asserting a FLSA retaliation claim. Id. The jury found for plaintiff but the district court granted the company's motion for judgment as a matter of law under Fed.R.Civ.P. 50. Id. at 1483. The district court concluded that plaintiff had failed to adduce evidence at trial negating the company's legitimate reasons for firing her. Id.

         The Tenth Circuit rejected the district court's rationale for granting the Rule 50 motion, but it nonetheless affirmed the district court's decision to enter judgment for the employer under Rule 50. Id. It reasoned that the evidence at trial could not support a finding that plaintiff “crossed the line from being an employee merely performing her job as personnel director to an employee lodging a personal complaint . . . and asserting a right adverse to the company.” Id. at 1486. Instead, she merely “informed the company that it was at risk of claims that might be instituted by others as a result of its alleged FLSA violations.” Id. So, the Circuit reasoned, the manager rule legally precluded a verdict for plaintiff. Id.

         Had the Complaint in this case merely alleged that plaintiff warned WSU that it could face liability for failing to investigate alleged sexual assaults, the court might enter judgment against plaintiff on Count I. Such conduct would resemble the conduct of the McKenzie plaintiff. But here, the Complaint alleges substantially more than that. It alleges that plaintiff started two investigations and filed a complaint. The Complaint thus sufficiently alleges that plaintiff “crossed the line from being an employee merely performing [his] job as [Title IX compliance overseer]” and “actively assisted other[s] . . . in asserting [Title IX] rights . . . .” Id. at 1486. These allegations preclude the court from applying the manager rule to plaintiff's claim and thus preclude judgment on the pleadings.

         Weeks also presents materially different facts. There, the district court granted summary judgment against a Title VII retaliation claim and the Tenth Circuit affirmed. The Circuit held that no genuine dispute existed whether plaintiff had engaged in protected activity because, as she conceded, she merely had performed her job duties. Weeks, 503 F. App'x at 642. Here, the Complaint has made no such concession.

         Last, WSU relies on Atkinson. In that case, the district court granted summary judgment to the employer on a Title IX retaliation claim because, in part, plaintiff could come forward with no evidence permitting a jury to find that she had engaged in protected activity. Id. at 602. The summary judgment facts established that plaintiff had done nothing more than advocate Title IX compliance. Id. at 599. The record showed that plaintiff and her employer quarreled only about the source of funding used to implement changes plaintiff deemed necessary to comply with Title IX and whether the employer should become a Division I or III school. Id. at 602. Because these disputes “only tangentially involved Title IX, ” plaintiff had failed to demonstrate a genuine dispute whether she had engaged in protected activity. Id. Here, the Complaint is quite different. It alleges that plaintiff and WSU disagreed about plaintiff's handling of Title IX investigations into alleged sexual assaults-a central component of Title IX compliance. See Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 633 (1999) (holding that schools cannot be deliberately indifferent to known acts of sexual harassment that interfere with a victim's ability to receive an education and comply with Title IX's mandate). This Complaint, unlike the summary judgment record in Atkinson, sufficiently alleges that plaintiff engaged in protected activity to prevent the court from entering judgment as a matter of law.

         WSU warns that allowing claims such as plaintiff's to go forward would allow any management, human resource, or legal employee to sue when fired. This fear is not well founded. If the Complaint simply had alleged that WSU fired plaintiff because of advice he had given the university about how best to comply with Title IX, plaintiff would have no retaliation claim. But the Complaint's allegations present much more than that. They allege that plaintiff took steps that made him adverse to WSU because he investigated alleged sexual assaults and made a related filing of a Title IX complaint against WSU. Not every terminated management, human resource, or legal employee can allege he took these steps before the employer fired him.

         WSU also worries that claims such as plaintiff's-if allowed to proceed-will allow courts to second-guess every decision made by a governmental employer. This hyperbole is not persuasive. Certainly, the court's reasoning will permit an employee who properly alleges facts capable of supporting a finding that the employee has engaged in protected activity to proceed to discovery. But that is precisely what Congress chose to protect. See Jackson, 544 U.S. at 180 (“Congress enacted Title IX not only to prevent the use of federal dollars to support discriminatory practices, but also to provide individual citizens effective protection against those practices. . . . [T]his objective would be difficult, if not impossible, to achieve if persons who complain about sex discrimination did not have effective protection against retaliation.”). The court is not free to reweigh the benefits and detriments of these policy decisions. In addition, Title IX does not apply just to governmental employers. Title IX applies to “any education program or activity receiving Federal financial assistance, ” including private educational institutions. 20 U.S.C. §1681(a) (emphasis added). The court thus denies WSU's Motion for Judgment on the Pleadings against plaintiff's Title IX claims.[8]

         B. Section 1983 Claims (Count II)

         Count II alleges that Mr. Bardo violated plaintiff's civil rights under 42 U.S.C. § 1983. Doc. 48 ¶ 92. A defendant is liable under § 1983 if, under color of state law, he deprives a person of a constitutional right. 42 U.S.C. § 1983. Specifically, the Complaint alleges that Mr. Bardo violated plaintiff's right to procedural due process under the Fourteenth Amendment by disparaging plaintiff, ruining his reputation, and foreclosing similar work opportunities otherwise available to plaintiff by making defamatory statements without due process of law. Doc. ¶¶ 82- 92. Plaintiff argues that four of Mr. Bardo's statements disparaged plaintiff and ruined plaintiff's reputation. After outlining the standard governing this theory, the court applies the law to the four statements.

         1. Governing Law

         A state official deprives a plaintiff of his liberty interest without due process of law when he makes a defamatory statement about plaintiff and that statement causes an alteration in plaintiff's legal status. Brown v. Montoya, 662 F.3d 1152, 1167 (10th Cir. 2011) (citing Paul v. Davis, 424 U.S. 693 (1976)). In Brown, the Tenth Circuit held that a Complaint sufficiently alleged that an officer deprived plaintiff of his liberty interest by alleging that the officer wrongly placed the plaintiff on the sex offender probation unit-which constituted defamation-and that his placement there required plaintiff to register as a sex offender and limited his travel, employment, and residency opportunities. Id. at 1169. This placement produced a change in the plaintiff's legal status. Id. In the context of public employment, the Tenth Circuit has held a governmental supervisor violates an employee's liberty interest when he defames the employee in the context of termination, foreclosing other employment opportunities for plaintiff. McDonald v. Wise, 769 F.3d 1202, 1212 (10th Cir. 2014) (quoting Workman v. Jordan, 32 F.3d 475, 480 (10th Cir. 1994)). To allege this claim sufficiently, plaintiff must allege facts to support four elements. Id.[9]

         The first element requires the Complaint to allege that the governmental employer made a repugnant statement about the plaintiff. See Monroe v. City of Lawrence, Kan., 124 F.Supp.3d 1097, 1124-25 (D. Kan. 2015) (granting summary judgment on plaintiff's deprivation of liberty claim because he produced no evidence that the allegedly defamatory statements concerned him).

         The second element requires the Complaint to allege that the statement was false. McDonald, 769 F.3d at 1212. Statements of opinion cannot be false and thus are not actionable unless they imply unstated falsehoods. Michaels v. City of McPherson, Kan., 71 F.Supp.3d 1257, 1260 (D. Kan. 2014).

         The third element requires the Complaint to allege that defendant made the defamatory statement “in the course of terminating the employee, ” and that the statement foreclosed other employment opportunities for plaintiff. McDonald, 769 F.3d at 1212. This element does not require that the defamatory statement occur strictly contemporaneously with the termination. Renaud v. Wyo. Dep't of Family Servs., 203 F.3d 723, 727 (10th Cir. 2000). For example, in McDonald, the Complaint alleged that defendant did not make the defamatory statement until more than a month after defendant had fired plaintiff. 769 F.3d at 1209. Despite this delay, the Tenth Circuit held that the defendant made the remark in the course of termination and thus sufficiently had alleged a liberty deprivation claim sufficient to survive a motion to dismiss under Rule 12(b)(6). Id. at 1212. In other cases, the Circuit has emphasized that a roughly contemporaneous remark that concerns the “ʻmanner or reasons for the employee's termination' may qualify as one made ‘in the course of termination of employment.'” Bjorklund v. Miller, 467 F. App'x 758, 768 (10th Cir. 2012) (quoting Renaud, 203 F.3d at 727).

         The third element also requires that defendant's statement forecloses other employment opportunities for plaintiff. Renaud, 203 F.3d at 728 n.1. The Tenth Circuit has held that “[o]nly where the stigmatization results in the inability to obtain other employment does [a government employment defamation] claim rise to a constitutional level.” Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 982 (10th Cir. 1991), disapproved of on other grounds, Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1228 (10th Cir. 2000). The Circuit also explained:

“To understand the tort you must go back to its origins in cases where public employees were fired for suspected Communist sympathies. In the atmosphere of those times, employees fired on such grounds found it difficult to land equally responsible jobs, public or private. The circumstances of discharge, at least if they were publicly stated, had the effect of blacklisting the employee from employment in comparable jobs. If a state or the federal government formally banned a person from a whole category of employment, it would be infringing liberty of occupation-a component of the liberty that the due process clauses of the Fifth and Fourteenth Amendment protect, and recognized as such almost since the beginning of this nation.”

Id. (emphasis added) (quoting Colaizzi v. Walker, 812 F.2d 304, 307 (7th Cir. 1987)).

         While Allen did not specify whether “foreclosing other employment” means an inability to secure any job or simply an inability to secure a job in the plaintiff's chosen field, later Tenth Circuit precedent appears to decide this question. See Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 579-80 (10th Cir. 1996) (holding that summary judgment against a deprivation of liberty claim was inappropriate in part because plaintiff presented evidence that she no longer worked in her chosen field as a labor and delivery nurse even though plaintiff had been hired as a nurse in a different field); see also Salazar v. City of Albuquerque, 776 F.Supp.2d 1217, 1241 (D.N.M. 2011) (holding that a Complaint sufficiently pleaded a deprivation of liberty claim when it alleged that plaintiff had been hired as a garbage truck driver instead of as a bus driver, which was plaintiff's chosen field). In short, that a plaintiff secured other employment does not bar his deprivation of liberty claim as a matter of law. What will bar a deprivation of liberty claim is evidence that his job is substantially similar to his previous one. See Isler v. N.M. Activities Ass'n, 893 F.Supp.2d 1145, 1156-57 (D.N.M. 2012) (granting summary judgment against plaintiff's deprivation of liberty claim because plaintiff could not show defendant's statements foreclosed employment opportunities when the summary judgment facts showed plaintiff accepted a comparable job with better salary and benefits).

         The fourth and final element requires the Complaint to allege that the defendant made the information public. Bell v. Bd. of Cty. Comm'rs of Jefferson Cty., 343 F.Supp.2d 1016, 1021 (D. Kan. 2004).

         In the motion, Mr. Bardo asserts that the court should enter judgment against Count II because the Complaint fails to allege sufficiently a deprivation of a liberty interest. He makes several arguments in support of this assertion. Some of these arguments address issues that affect the four allegedly defamatory statements equally. The other arguments address issues that affect just one or two of the statements. To simplify this complexity, subdivision 2-called “Common Issues”-addresses the arguments that affect all four of the alleged statements. Then, in subdivision 3, the court analyzes whether each of the statements deprived plaintiff of his liberty interest. Last, the court turns to the qualified immunity issue.

         2. Common Issues

         Mr. Bardo argues that Count II suffers from three flaws affecting each statement allegedly depriving plaintiff of his liberty interest. First, Mr. Bardo argues that the Complaint fails to allege that Mr. Bardo defamed plaintiff in the context of termination and thereby foreclosed other employment opportunities. Part a of this section addresses this theory. Next, Mr. Bardo argues that the Complaint fails to allege Mr. Bardo personally participated in the termination, freeing him from liability. Part b analyzes this argument. Last, Mr. Bardo argues that plaintiff never was deprived of due process. Part c discusses this assertion.

         a. Context of Termination and Foreclosure of Opportunities

         A § 1983 claim of the kind asserted here requires that the Complaint allege defendant made defamatory statements “in the course of terminating the employee” and the statements foreclosed other employment opportunities for plaintiff. McDonald, 769 F.3d at 1212. This element does not require that the defamatory statements occur strictly contemporaneously with the termination. Renaud, 203 F.3d at 727. Instead, roughly contemporaneous remarks about the reasons for the termination are enough to prevail on this requirement. Id. Here, plaintiff alleges that Mr. Bardo made allegedly defamatory statements as news spread of plaintiff's termination. And all of the statements involve the reasons WSU decided to terminate plaintiff. The Complaint thus alleges sufficiently that Mr. Bardo defamed plaintiff in the context of termination. Mr. Bardo makes two arguments that these contentions cannot support a finding that he violated plaintiff's liberty interest. Both miss the mark.

         First, Mr. Bardo argues that plaintiff has not alleged a liberty interest because he had no legal entitlement to a renewed contract. If plaintiff had just alleged that WSU did not renew his contract, Mr. Bardo's argument might prevail. See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 575 (1972) (holding an at-will employee did not have an entitlement to continued employment when the employer had not promised to renew the contract when it expired). But when a Complaint alleges defendant defamed plaintiff in the course of terminating the employment relationship, the rule is different. See McDonald, 769 F.3d at 1210-1212 (holding an at-will employee had no property interest in his employment but holding he had “a liberty interest in his good name and reputation as they relate to his continued employment”). So, this argument will not support the result sought by defendants' motion.

         Next, Mr. Bardo argues that plaintiff's procurement of another job means as a matter of law that no liberty deprivation occurred because defendant's statement did not foreclose other employment. But, as discussed above, plaintiff's procurement of another job does not nullify his claim. Instead, plaintiff's Complaint only needs to allege that he cannot find work in his chosen field. See Watson, 75 F.3d at 579-80 (holding that summary judgment was inappropriate on a deprivation of liberty claim in part because the plaintiff presented evidence that she no longer worked in her chosen field). Plaintiff's Complaint alleges that his new position is not comparable to his WSU position. Doc. 48 ¶ 52. Plaintiff's Complaint thus sufficiently pleads that Mr. Bardo defamed plaintiff in the context of termination, foreclosing other employment opportunities. That enables this claim to survive judgment on the pleadings.

         b. Personal Participation

         Defendant Bardo's next argument contends that because he did not participate personally in the alleged conduct depriving plaintiff's rights, plaintiff cannot prevail against him on Count II. He makes three subsidiary arguments to support this aspect of his motion.

         First, Mr. Bardo argues that many of the statements identified in the Complaint are not attributable to Mr. Bardo. Doc. 56 at 20. Plaintiff's Opposition brief clarified his position on this issue, explaining that the only statements he claims as defamatory are ones that the Complaint alleges were made by Mr. Bardo. Doc. 58 at 20.

         Next, Mr. Bardo argues that the Complaint cannot state a claim against him because WSU employed plaintiff-not Mr. Bardo. Doc. 56 at 19-20. He analogizes this case to two cases. But neither one applies here. The first case is Siegert v. Gilley, 500 U.S. 226 (1991). Mr. Bardo argues that Siegert stands for the proposition that a defamatory statement made by a former supervisor who was not the plaintiff's employer cannot support a claim for a deprivation of an employee's liberty interest. This characterization of Siegert misapprehends its holding.

         In Siegert, a psychologist resigned after his employer-a hospital run by the United States government-notified the psychologist that it was preparing to terminate his employment. Id. at 228. The hospital concluded that the psychologist was not dependable or reliable, did not comply with his supervisor's orders, and failed to appear for work without approval for the absence. Id. The psychologist resigned to avoid the embarrassment of the hospital terminating his employment and then found work at an Army hospital. Id. As a requirement to receive the necessary credentials to work for the Army hospital, the psychologist gave the Army permission to speak to his former employer-the federal hospital-about the psychologist's previous work history and his admitting privileges. Id. The psychologist's former supervisor at the federal hospital-the defendant in the case-responded to the Army's inquiry, saying that “he ‘considered [the psychologist] to be both inept and unethical, perhaps the least trustworthy individual I have supervised in my thirteen years at [the federal hospital].'” Id. (quoting the Complaint). The Army declined to give the psychologist the credential he needed to perform his new job and the psychologist left the Army hospital. Id. When the psychologist discovered ...


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