Fattaey v. Kan. State Univ.
| Decision Date | 24 January 2017 |
| Docket Number | Case No. 15-9314-JAR-KGG |
| Parties | ABDULLAH ("ABE") FATTAEY, Plaintiff, v. KANSAS STATE UNIVERSITY, ET AL., Defendants. |
| Court | U.S. District Court — District of Kansas |
Plaintiff Abdullah ("Abe") Fattaey alleges claims against his former employer, Kansas State University, and University employees, relating to the decision not to reappoint him when his annual employment contract expired. Before the Court is Defendants' Motion to Dismiss Second Amended Complaint (Doc. 36). The motion is fully briefed and the Court is prepared to rule. As described more fully below, Defendants' motion is granted in part and denied in part.
Plaintiff originally filed this action on October 13, 2014, and amended the complaint once as a matter of course on November 10, 2015. On May 11, 2016, Plaintiff filed his Second Amended Complaint, after Magistrate Judge Gale granted his motion for leave to amend—the same proposed pleading that had been attached to his motion for leave to amend. It included official capacity claims against Kansas State University, and it contained state law claims against all Defendants. On May 24, 2016, Defendants moved to dismiss the Second Amended Complaint, addressing all of the claims alleged in the Second Amended Complaint.1 On June 12, 2016, Plaintiff filed a Notice of Voluntary Dismissal (Doc. 45), which states as follows:
Plaintiff, Abe Fattaey, by and through undersigned counsel, pursuant to F.R.C.P. 41(a)(1)(A)(i) hereby dismisses, without prejudice, his claims under the Kansas Act Against Discrimination and Section 1983 against Kansas State University. Plaintiff also dismisses without prejudice his Kansas common law civil conspiracy claim and his Kansas common law tortious interference claim.
In the response to Defendants' motion to dismiss, Plaintiff asks this Court for leave to amend, arguing that he was constrained by Judge Gale's Order to file the proposed pleading attached to his motion for leave to amend, despite his willingness to voluntarily dismiss certain claims contained therein. He also wishes to add allegations to the Title VII claims that he exhausted his administrative remedies. Defendants object to any further amendment, and question the propriety of Plaintiff's notice of voluntary dismissal under Fed. R. Civ. P. 41, which speaks to dismissal of "actions" and not claims. They ask that the Court deem the voluntarily dismissed claims as dismissals with prejudice, instead of without prejudice. The Court declines. The basis for dismissal argued by Defendants for several of these claims was lack of jurisdiction under Fed. R. Civ. P. 12(b)(1). Dismissal on such grounds would be without prejudice. The Court declines to conduct a claim-by-claim analysis based on Defendants' bare request in the reply to determine whether dismissal of certain claims against certain Defendants should be with prejudice, and is satisfied with Plaintiff's notice that these claims will no longer be prosecuted by Plaintiff. As described more fully below, the Court will order Plaintiff to amend once again to eliminate these claims and otherwise conform his Complaint to the Court's rulings in this Order.
Once again, Plaintiff has failed to seek leave to amend in conformity with the local rules.2 This Court declines to consider Plaintiff's request outside of the context of a properly supported motion. Nonetheless, the Court will order Plaintiff to file another amended pleading that conforms to this Order within ten days, for purposes of making a clear record. The Court alsoassumes for purposes of Defendant's exhaustion argument that Plaintiff has properly alleged exhaustion in the Complaint.
Defendants argue that Plaintiff failed to administratively exhaust certain Title VII claims, which is a jurisdictional bar to suit. Federal courts are courts of limited jurisdiction and, as such, must have a statutory or constitutional basis to exercise jurisdiction.3 A court lacking jurisdiction must dismiss the case, regardless of the stage of the proceeding, when it becomes apparent that jurisdiction is lacking.4 The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper.5 Mere conclusory allegations of jurisdiction are not enough.6
Generally, a subject-matter jurisdiction challenge under Fed. R. Civ. P. 12(b)(1) takes one of two forms: a facial attack or a factual attack. 7
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 widediscretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).8
The rest of Defendants' motion argues that Plaintiff's Second Amended Complaint fails to state a claim upon which relief may be granted. To survive a motion to dismiss for failure to state a claim, 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."9 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."10 The plausibility standard does not require a showing of probability that "a defendant has acted unlawfully," but requires more than "a sheer possibility."11
The plausibility standard enunciated in Bell Atlantic Corp. v. Twombly12 seeks a middle ground between heightened fact pleading and "allowing complaints that are no more than 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action,' which the Court stated 'will not do.'"13 Twombly does not change other principles, such as that a court must accept all factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.14
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.'"15 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.16 Second, the court must determine whether the factual allegations, when assumed true, "plausibly give rise to an entitlement to relief."17 "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."18
The following facts are alleged in the Complaint, or contained in attachments to the Complaint,19 and are assumed to be true for purposes of deciding this motion.
Plaintiff Abdullah "Abe" Fattaey was born and raised in Iran; he came to the United States in 1968 to attend college at Defendant Kansas State University ("KSU"). Plaintiff is Muslim, he speaks Farsi and English, and he speaks with a Persian accent. Plaintiff became a licensed professional engineer and architect after his education at KSU. He also received a Master's degree in Regional and Community Planning.
Plaintiff began a career at KSU in 1971 as a part-time employee in the Campus Planning and Development Department. He rose through the ranks and became an Engineering Technician III, then an Engineering Manager, then a Senior Facilities Planning Manager/University Engineer, then an Associate Director/University Engineer, and finally, in2006, he became Director and University Architect. His job duties included being the "face" of the Campus Planning and Facilities Management Department, and managing all building projects throughout the KSU Manhattan campus. He consistently interacted with departments throughout KSU, as well as with outside contractors and inspectors working on campus building projects.
Plaintiff always met or exceeded KSU's performance expectations. His performance evaluation for the calendar year 2011 was positive. His former supervisor Edward Rice noted: "You do a great job," "your ability to work with supervisors and the Vice President of Administration and Finance speak highly of your capabilities," and "You are a leadership example to the Facilities Planning Operation."20
After this performance evaluation was conducted, in October 2012, Defendant Kirk Schulz, who was KSU's President, named Defendant Cindy Bontrager Interim Vice President. Bontrager became Plaintiff's direct supervisor. She had previously worked in the KSU Budget Office and had no previous experience working in Plaintiff's department, or in the fields of engineering or architecture.
In April 2013, Plaintiff was formally nominated by one of his colleagues to become the Associate Vice President for Campus Planning and Facilities Management at KSU. Former Vice President of KSU, Bruce A. Shubert, had previously told Plaintiff that Plaintiff should be the next Associate Vice President for Campus Planning and Facilities Management—this was Plaintiff's goal, and he fully expected to fill the position when Rice, the current Vice President, retired.
Defendants Schulz, Bontrager, and April Mason (KSU's Provost and Senior Vice President), were all aware of Plaintiff's desire to assume this position, but were opposed to...
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