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Joritz v. University of Kansas

United States District Court, D. Kansas

April 8, 2019

UNIVERSITY OF KANSAS, et al., Defendants.


          Sam A. Crow, U.S. District Senior Judge.

         This case is before the court upon motions to dismiss plaintiff's pro se amended complaint. The motions are made on behalf of the defendant University of Kansas (Doc. No. 54) and the individual defendants (Doc. No. 70). Plaintiff's motion to withdraw and dismiss her breach of contract claim (Doc. No. 66) is also before the court. The individual defendants are: Bernadette Gray-Little, a former chancellor at KU; Carl Lejuez, a former Dean of the College of Liberal Arts and Sciences (CLAS); Stuart Macdonald, a former Chair of the College Committee on Appointments, Promotion and Tenure (CCAPT); and Michael Baskett, Chair of the Film and Media Studies Department. The University's motion to dismiss is brought pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The individual defendants' motion to dismiss is brought pursuant to Fed.R.Civ.P. 12(b)(6).


         The amended complaint (“AC”)(Doc. No. 49) asserts five Title VII claims against the defendant University. Count I alleges national origin discrimination. Count II alleges sex discrimination. Count III alleges retaliation. Count IV alleges hostile work environment. Count V alleges wrongful termination. “Count VII” (which is before “Count VI” in the amended complaint) alleges due process and First Amendment constitutional violations under 42 U.S.C. § 1983 against the individual defendants. “Count VI” alleges breach of contract claims against the defendant University.


         Plaintiff makes the following factual allegations in the amended complaint and attached exhibits. Plaintiff is an animator and educator who was an assistant professor at the KU Department of Film & Media Studies in the School of Arts from 2012 to 2017. She is an American citizen. She is fluent in German and lived and worked in Germany for more than 30 years before starting at KU.

         Plaintiff was a tenure-track professor who received good or very good ratings and merit pay increases during her first two years at K U.She asserts that: she received an award for her work as an academic advisor; she was an active member of her department; she received national and international recognition for her creative work; and she was awarded three competitive University grants and other University funding for her research.

         In the Spring semester of 2014, plaintiff taught a Basic Video Production course. Some of her student evaluations included “angry, aggressive, anti-German comments” which criticized plaintiff, even calling for her to be fired. AC ¶ 43. Plaintiff alleges that these comments were made part of her permanent performance record, indicated a hostile work environment, and tainted all further evaluations. Plaintiff made requests that the comments be removed to the individual defendants (except Macdonald) and others. Plaintiff alleges that despite a duty to report “discrimination”, none of the individual defendants acted upon plaintiff's concerns.

         In December/January 2014-2015, preparation took place for plaintiff's first Progress Toward Tenure Review (PTTR), where a departmental committee conducts an initial review of a tenure-track professor's progress as measured by certain criteria. Plaintiff was informed via a letter on March 16, 2015 that: “improvement is required for continued progress towards tenure”; that she must submit to another review in 2015-2016; and that failing that review would result in “non-reappointment”, i.e., termination. AC ¶ 55.

         The first PTTR stated that, for promotion to an associate professor's position, plaintiff should increase her service commitments on a national and international level. Plaintiff asserts this was contrary to the Promotion and Tenure Procedures set forth by the Film and Media Studies Department. According to plaintiff there were other procedural and policy violations in the evaluation. This included adding a “long form animation works” expectation which created misleading and unobtainable research expectations in the minds of committee members and administrators unfamiliar with animation production, guaranteeing that plaintiff's creative work would fall short of their expectations. AC ¶ 67. The evaluation also contained the following statement:

Some of the student observations may also be due to the fact that she taught extensively in Germany for many years before teaching at KU, and she has had some difficulty in adjusting her communicative and teaching skills to her new teaching environment and culture.

AC ¶ 69. Plaintiff alleges this statement placed unfair blame upon plaintiff and failed to acknowledge the positive contributions plaintiff made because of her background.

         Plaintiff alleges that there was no means to appeal the PTTR decision (denying plaintiff due process) and that the review made it impossible for any subsequent reviewer to make a fair and valid evaluation of plaintiff. None of the individual defendants are alleged to have been responsible for the first PTTR review.

         Plaintiff alleges that prior to her second PTTR, on January 14, 2016, she was awarded a highly competitive Hall Center for the Humanities Creative Fellowship. This was a first for a KU Film and Media Studies faculty member. Plaintiff alleges that this and other achievements were ignored, misrepresented or improperly considered by the individual defendants during her second PTTR review.

         Plaintiff claims that defendant Baskett, the department chair in November 2015 and beyond, refused to allow plaintiff to see the report of his observation of plaintiff's classroom performance prior to the second PTTR review, in violation of University policy and prior practice. She asserts this led to a hostile work environment. She further claims that defendant Baskett denied her an opportunity to have a semester off from teaching in Spring 2016 to concentrate on research, although similarly situated professors were given such an opportunity.

         Plaintiff alleges that the process for the second PTTR review was muddled and violated University procedures. One of the violations was that defendant Baskett served as the PTTR Committee chairman. This was corrected, however, on or about January 26, 2016, after plaintiff had a meeting with the Interim Dean and Associate Dean of CLAS and provided a list of alleged PTTR violations. AC ¶ 96. The impropriety was noted by the University Faculty Rights Board in a letter to defendant Gray-Little dated May 11, 2016. The letter noted that the violation was especially pertinent where the department chair did not concur with the committee evaluation. AC ¶ 85.

         Plaintiff asked that the former chair of the department who had served as chair on the first PTTR committee be recused from serving on the second PTTR committee. This was denied by defendant Baskett. She claims that she was denied direct access to committee members by defendant Baskett, contrary to usual practice and policy, and was ordered instead to communicate exclusively through Baskett or his assistant.

         The day after plaintiff's meeting with the interim dean and associate dean of CLAS, defendant Baskett told plaintiff: “You're not doing yourself any favors by making the department look (bad)!” AC ¶ 98. In early February, when plaintiff asked if a prior procedure would be followed in forwarding her dossier to CLAS, she alleges that defendant Baskett replied in a hostile manner that plaintiff should not assume she knows everything. AC ¶ 102.

         Plaintiff notified defendant Lejuez that one of plaintiff's animated shorts was accepted by a German short film festival. She claims that he ignored this achievement when he determined that her research indicated serious deficits. AC ¶ 103.

         On April 2, 2016, plaintiff emailed an Associate Dean regarding sex and national origin discrimination, including what she had experienced. She stated she had not seen these issues addressed. The Associate Dean replied on April 5, 2016 that he had referred the matter to the Office of Institutional Opportunity and Access for review.

         The second PTTR Committee recommended finding that plaintiff had made satisfactory progress toward tenure. See Doc. No. 49-2, Ex. G and Ex. L. The CCAPT Committee, however, disagreed with this suggestion and on April 7, 2016 recommended plaintiff's termination in a letter from defendant Macdonald to defendant Lejuez. Id. On April 8, 2016, plaintiff received a letter from defendant Lejeuz stating that he was recommending her termination to the Provost. The letter repeated comments from the CCAPT Committee including the conclusion that plaintiff's research record indicated serious deficits. Plaintiff claims this charge is unsubstantiated and that Lejuez ignored the positive review of plaintiff's research made by the 2015/2016 PTTR Committee members. Plaintiff asserts that Lejuez relied upon a letter written by defendant Baskett which made unsubstantiated allegations regarding inappropriate behavior and said that it weakened her service record. Plaintiff claims this ignored multiple examples of service and was contrary to policy and procedure. Plaintiff asserts that she was unaware of Baskett's letter until she received the Lejeuz letter.

         Plaintiff claims that defendant Baskett refused her request for a copy of the letter and other documents, as did the executive assistant to the Dean. She emailed defendant Lejuez with questions about his April 8, 2016 letter and asked him to justify using “behavior” as a PTTR evaluation standard. She also asked him for documents. Defendant Lejuez refused to provide the documents and instructed plaintiff to direct her questions to the Vice Provost. Plaintiff claims her request for details regarding any alleged complaints about inappropriate behavior were stonewalled by University personnel and administrators, including the Vice Provost.

         The Vice Provost provided plaintiff a copy of the April 7, 2016 letter from the CCAPT chairperson, defendant Macdonald, to defendant Lejuez. The letter is very similar to the letter plaintiff received from Lejuez and suffers from the same flaws in plaintiff's opinion.

         Plaintiff further alleges that defendant Lejuez wrongly directed or influenced the deliberations of the CCAPT Committee by encouraging it to focus on plaintiff's existing record and documented evidence of progress toward completion of her proposed book.

         The Lejuez letter indicates some aspects of plaintiff's input into the pre-tenure review process. The letter states that plaintiff:

raised a number of concerns with me (and several others), including that prejudicial statements were included in the departmental review. I note that the departmental committee gave you a favorable recommendation. In addition, CCAPT did not have access to any information that stemmed from issues you raised and the faculty member you identified as biased was recused from the discussion at CCAPT so that the individual could not impact the CCAPT review.

Doc. No. 49-2, Ex. L.

         Provost Sara Rosen was the next person to consider plaintiff's termination. On April 13, 2016, plaintiff asked for a meeting with Rosen, but was told by the Vice Provost that it was not appropriate for plaintiff to talk with Rosen while Rosen was reviewing the recommendation. Plaintiff alleges this violated her freedom of speech and contributed to a hostile working environment. Six hours later, Provost Rosen emailed plaintiff with a recommendation in favor of termination. This communication repeated the allegation regarding plaintiff's behavior, again without proof. It also referred to defendant Lejuez's statement regarding plaintiff's research.

         Plaintiff appealed the Provost's recommendation to the Faculty Rights Board. Plaintiff claims her ability to appeal was hamstrung by the University's refusal to supply access to specific documents.

         On April 15, 2016, plaintiff met with defendant Gray-Little for 15 minutes. Plaintiff described the procedural violations and the student discrimination she had experienced. She told Gray-Little that there was an extremely detrimental but untrue letter written by defendant Baskett and kept secret from plaintiff.

         The University's response to plaintiff's appeal to the Faculty Rights Board included many of the documents plaintiff had been requesting. Plaintiff alleges that she first received a copy of defendant Baskett's letter on April 30, 2016. AC ¶ 193. The Board, without conducting a hearing, made findings which were communicated to defendant Gray-Little. These findings recommended that inaccurate statements made by defendant Baskett be disregarded. The Board noted that the statements were repeated in the CCAPT recommendation and likely influenced defendant Lejuez's conclusion. AC ¶ 130. Plaintiff sought permission to include newly discovered violations in an amended appeal to the Board, but this was denied. Plaintiff alleges that defendant Baskett was required by University policy to schedule a formal feedback conference with plaintiff within two weeks of plaintiff receiving her non-reappointment letter. This was not done. Plaintiff also alleges that policies required before administering discipline were not followed, although she does not describe facts indicating that disciplinary actions were taken against her.

         On May 13, 2016, plaintiff received a letter signed by Provost Rosen informing plaintiff that her appointment for the 2016-2017 academic year would be a terminal appointment. The letter stated that: “Even excluding consideration of the information in the Chair's [defendant Baskett's] letter, the Chancellor [defendant Gray-Little] determined that your research record demonstrated insufficient progress toward tenure, warranting non-reappointment.” AC ¶ 139. Plaintiff asked for a more detailed explanation but there was no response. Plaintiff claims that there is no foundation in fact for defendant Gray-Little's conclusion. Plaintiff claims that defendants Baskett and Lejuez and others refused to inform plaintiff of the allegations made against her, denied her the opportunity to refute the allegations against her, and denied plaintiff the means to defend herself. Plaintiff further contends that defendants improperly applied school policies and criteria.


         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A pro se litigant, however, is not relieved from following the same rules of procedure as any other litigant. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). A district court should not “assume the role of advocate for the pro se litigant.” Hall, supra. Nor is the court to “supply additional factual allegations to round out a plaintiff's complaint.” Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

         IV. RULE 12(b)(6) STANDARDS

         Most of defendants' arguments contend that plaintiff has failed to state a claim and therefore the amended complaint should be dismissed pursuant to Rule 12(b)(6). The court will focus almost entirely on those arguments in this order.[1]

         When deciding whether plaintiff's amended complaint “fails to state a claim upon which relief may be granted” under Rule 12(b)(6), the court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint will not “suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 557).

The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line ...

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