Cowden v. Bd. of Governors of Colo. State Univ. Sys.
| Docket Number | Civil Action No. 1:20-cv-03197-RMR-STV |
| Decision Date | 23 August 2022 |
| Citation | 622 F.Supp.3d 1019 |
| Parties | Kimberly COWDEN and Joanne Gula, Plaintiffs, v. The BOARD OF GOVERNORS OF the COLORADO STATE UNIVERSITY SYSTEM, BY AND THROUGH COLORADO STATE UNIVERSITY-PUEBLO, et al., Defendants. |
| Court | U.S. District Court — District of Colorado |
Julian G.G. Wolfson, Claire E. Hunter, Hkm Employment Attorneys LLP, Denver, CO, for Plaintiffs.
Allison R. Ailer, J. Patrick Hizon Warwick-Diaz, Skippere Stewart Spear, Colorado Attorney General's Office, Denver, CO, Elizabeth Lauren Phillips, Colorado Department of Law, Ralph L. Carr Colorado Judicial Center, Denver, CO, for Defendants Board of Governors of the Colorado State University System, William Folkestad, Mohamed Abdelrahman, Timothy Mottet.
Allison R. Ailer, J. Patrick Hizon Warwick-Diaz, Skippere Stewart Spear, Colorado Attorney General's Office, Denver, CO, for Defendants William (I) Folkestad, Timothy (I) Mottet.
Allison R. Ailer, Skippere Stewart Spear, Colorado Attorney General's Office, Denver, CO, for Defendant Mohamed (I) Abdelrahman.
AMENDED ORDER
Pending before the Court is the Motion to Dismiss of Defendants William Folkestad, Mohamed Abdelrahman, and Timothy Mottet, ECF No. 47. For the reasons stated below, the motion is GRANTED IN PART and DENIED IN PART.
Plaintiffs Dr. Kimberly Cowden and Dr. Joanne Gula were Assistant Professors in the Department of Mass Communications within the College of Humanities and Social Sciences at the Colorado State University-Pueblo ("CSUP") from August of 2016 and August of 2015, respectively, until May 30, 2019, when they allege that they received letters "stating that they would not be assigned a teaching course load, nor would they have any service or research obligations to CSUP for the 2019-2020 academic year." ECF No. 44 ¶¶ 20-22, 107. In their Third Amended Complaint, which is now the operative complaint in this action, see ECF Nos. 41-45, Plaintiffs allege that they received these letters "after they each spoke out about gender discrimination." ECF No 44 ¶ 109. They bring six claims of relief against various Defendants. Id. ¶¶ 123-217. Against Defendant the Board of Governors of the Colorado State University System, by and through Colorado State University-Pueblo ("CSUP"), they bring the following four claims:
Against the individual Defendants William Folkestad, Dean of the College of Humanities, Arts and Social Sciences; Mohamed Abdelrahman, Provost and Executive Vice President for Academic Affairs; and Timothy Mottet, CSUP President, in their individual and official capacities, Plaintiffs bring the remaining two claims pursuant to 42 U.S.C. § 1983:
The individual Defendants Folkestad, Abdelrahman, and Mottet have moved to dismiss the Third Amended Complaint; therefore, only the last two claims for First Amendment violations are at issue in their present Motion to Dismiss.1 See ECF No. 47.
Plaintiffs allege the following facts pertinent to Defendants' motion to dismiss these First Amendment claims. In September of 2018, CSUP cancelled several classes within the Department of Mass Communications, citing low student enrollment as the cause. ECF No. 44 ¶ 23-24. Defendant Dean Folkestad directed Sam Lovato, the Mass Communications Chair and Professor, to request that the professors within the Department of Mass Communications submit a teaching or research idea. Id. ¶ 25. Although Dr. Cowden submitted a teaching and research idea, Mr. Lovato and Defendant Dean Folkestad denied the suggested idea. Id. ¶¶ 26-27. Dr. Cowden and Dr. Gula were assigned to complete a mandatory administrative project that was unrelated to their faculty positions and that was not required of a male faculty member of the College of Humanities and Social Sciences, who "was permitted to pursue a non-administrative project that was relevant to his research and teaching goals." Id. ¶¶ 28-30.
Subsequently, "[a]t the beginning of 2019, Dr. Cowden complained on behalf of herself and Dr. Gula about gender discrimination due to disparate treatment between female and male faculty." Id. ¶ 31. On January 15, 2019, Dr. Cowden emailed Defendant Provost Abdelrahman and Defendant Dean Folkestad "regarding her complaints of gender discrimination on behalf of the female faculty based on recent events that occurred within the College of Humanities and Social Sciences Mass Communications Department." Id. ¶¶ 40-52. Defendant Provost Abdelrahman "directed Dr. Cowden to discuss her complaints of discrimination with Joshua Ernst, Director & Title IX Coordinator" but, according to Plaintiffs, "did not take action to protect Dr. Cowden and Dr. Gula from further discrimination and retaliation after their protected complaints of discrimination." Id. ¶¶ 53, 60. "The next day, on January 16, 2019, Dr. Cowden and Dr. Gula met with Mr. Ernst and filed a formal complaint of gender discrimination." Id. ¶¶ 61. CSUP opened an investigation regarding Plaintiffs' complaints of discrimination. Id. ¶¶ 85, 89, 105. Plaintiffs allege that after their complaints about Mr. Lovato's discriminatory conduct, "he began retaliating against Plaintiffs even further by creating a more hostile work environment and treating them less favorably than their male colleagues." Id. ¶ 64.
On or around February 11, 2019, Dr. Cowden and Dr. Gula received their annual performance reviews from Professor and Dean of the College of Humanities and Social Sciences, Leticia Steffen, and those reviews indicated that the Plaintiff professors "m[et] expectations." Id. ¶¶ 72, 74. Plaintiffs allege that Dr. Gula had previously "exceed[ed] expectations"; that Dr. Cowden's performance review "did not acknowledge [her] achievements related to her research"; that in March of 2018, prior to her complaints of discrimination, Dr. Cowden "received positive feedback and encouragement at her pre-tenure review" and she was told to "improve her student evaluations"; and that she "met her goal of improved student feedback." Id. ¶¶ 70, 74, 76, 80, 82. According to Plaintiffs, "[t]he negative and intentional shift toward Dr. Cowden and Dr. Gula and their contributions to CSUP occurred after their complaints of discrimination and was a direct result of the protected complaints of discrimination." Id. ¶ 84. On February 24, 2019, Dr. Cowden "filed a written objection to her 2018 performance review due to its discriminatory and retaliatory nature." Id. ¶ 86.
On April 10, 2019 "CSUP informed Dr. Cowden and Dr. Gula, through letter communication, that they were each recommended for termination from their tenure-track Associate Professor positions" by Mr. Lovato and Dean Folkestad. Id. ¶¶ 88-89. "The April 10, 2019 letter stated that the recommendation was made due to "budgetary issues, including 'declining enrollment' and 'over staffing' " and that the recommendation was made pending approval by the President, [Defendant] Timothy Mottet." Id. ¶¶ 92-93. On April 11, 2019 "and the days following," Dr. Cowden and Dr. Gula posted on social media and made statements to "news outlets in the Pueblo area" "that [College of Humanities and Social Sciences] female faculty members were being terminated while male faculty members were permitted to keep their jobs." Id. ¶¶ 96-97. They also discussed the impact that CSUP's decisions and alleged gender discrimination would have on students. Id. ¶ 114.
On May 13, 2019, Plaintiffs received a letter from Defendant Mottet, approving the recommendation of Defendant Provost Abdelrahman that Plaintiffs should not be re-appointed to their tenure-track positions. Id. ¶ 100. Then on May 30, 2019, Defendant Dean Folkestad sent Plaintiffs each "a letter stating that they would not be assigned a teaching course load, nor would they have any service or research obligations to CSUP for the 2019-2020 academic year." Id. ¶¶ 107, 109. However, CSUP would pay Plaintiffs' salary and benefits for the 2019-2020 academic year. Id. ¶ 111. CSUP "admitted" that Plaintiffs' "statements in . . . public postings and newspaper articles are the reason CSU-Pueblo decided to pay [them] but not have them teach further classes." Id. ¶ 115. Plaintiffs allege that "[i]n June 2019, [they] received communications that evidenced additional funds were available, contrary to CSUP's allegations that faculty cuts were necessary for 'over staffing.' " Id. ¶ 120.
As stated above, Plaintiffs bring claims against Defendants Folkestad, Abdelrahman, and Mottet, in their official and individual capacities, for violations of Plaintiffs' First Amendment right to freedom of speech and right to petition. Id. ¶¶ 154-217. Those individual Defendants move for dismissal of these claims against them in their official capacities for lack of subject matter jurisdiction because they have Eleventh Amendment immunity. ECF No. 47 at 3-4, 13-14. They also move for dismissal under Rule 12(b)(6), arguing that Plaintiffs fail to state a First Amendment claim and that Defendants enjoy qualified immunity. Id. at 4-12.
A defendant may move to dismiss a complaint for "lack of subject matter jurisdiction" under Rule 12(b)(1). Fed. R. Civ. P. 12(b)(1). "The Eleventh Amendment is a jurisdictional bar that precludes unconsented suits in federal court against a state and arms of the state." Peterson v. Martinez, 707 F.3d 1197, 1205...
To continue reading
Request your trial