United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
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
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.
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.
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.
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.
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 to balloon. On June 1, 2015, plaintiff
learned that Mr. Bardo had told people at WSU that
plaintiff did not have the credentials for his job.
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.
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. 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. The Wichita Eagle also
quoted the Registry's announcement about the position.
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.
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
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).
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)).
Title IX Retaliation Claim (Count I)
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
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.
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).
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
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.
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
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.
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.
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.
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
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.
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.
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
Section 1983 Claims (Count II)
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
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.
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).
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).
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).
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
“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
Id. (emphasis added) (quoting Colaizzi v.
Walker, 812 F.2d 304, 307 (7th Cir. 1987)).
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).
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).
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
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.
Context of Termination and Foreclosure of
§ 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.
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.
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
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.
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.
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
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