Hull v. Colorado Bd. of Governors of the Colorado State Univ. Sys.

• Decision Date: 28 March 2011
• Docket Number: Civil Action No. 08–cv–00198–PAB–MJW.
• Citation: 275 Ed. Law Rep. 680,805 F.Supp.2d 1094
• Parties: Langston D. HULL, D.V.M., PH.D., Plaintiff, v. COLORADO BOARD OF GOVERNORS OF the COLORADO STATE UNIVERSITY SYSTEM, as governing body of Colorado State University, Larry Edward Penley, individually, Anthony Frank, PH.D., individually and in his official capacity, Lance Perryman, individually and in his official capacity, Stephen A. Benjamin, DVM, PH.D., individually and in his official capacity, Patrick J. Brennan, PH.D., individually and in his official capacity, Carol D. Blair, PH.D., individually and in her official capacity, John T. Belisle, PH.D., individually and in his official capacity, Robert P. Ellis, PH.D., individually and in his official capacity, Barry J. Beaty, PH.D., individually and in his official capacity, Julia M. Inamine, PH.D., individually and in her official capacity, Jeffrey Wilusz, PH.D., individually and in his official capacity, Edward A. Hoover, DVM, PH.D., individually and in his official capacity, Anne C. Avery, DVM, PH.D., individually and in her official capacity, Roselyn Cutler, individually, John D. Root, Esq. and Wick & Trautwein, LLC, Defendants.
• Court: U.S. District Court — District of Colorado

275 Ed. Law Rep. 680

805 F.Supp.2d 1094

Langston D. HULL, D.V.M., PH.D., Plaintiff,

v.COLORADO BOARD OF GOVERNORS OF the COLORADO STATE UNIVERSITY SYSTEM, as governing body of Colorado State University, Larry Edward Penley, individually, Anthony Frank, PH.D., individually and in his official capacity, Lance Perryman, individually and in his official capacity, Stephen A. Benjamin, DVM, PH.D., individually and in his official capacity, Patrick J. Brennan, PH.D., individually and in his official capacity, Carol D. Blair, PH.D., individually and in her official capacity, John T. Belisle, PH.D., individually and in his official capacity, Robert P. Ellis, PH.D., individually and in his official capacity, Barry J. Beaty, PH.D., individually and in his official capacity, Julia M. Inamine, PH.D., individually and in her official capacity, Jeffrey Wilusz, PH.D., individually and in his official capacity, Edward A. Hoover, DVM, PH.D., individually and in his official capacity, Anne C. Avery, DVM, PH.D., individually and in her official capacity, Roselyn Cutler, individually, John D. Root, Esq. and Wick & Trautwein, LLC, Defendants.

Civil Action No. 08–cv–00198–PAB–MJW.

United States District Court, D. Colorado.

March 28, 2011.

Lisa R. Sahli, Darold W. Killmer, Mari Anne Newman, Killmer, Lane & Newman, LLP, Denver, CO, Mary Ewing, Ewing & Ewing, P.C., Englewood, CO, for Plaintiff.

Douglas J. Cox, Jane R. Christman, Stephanie Lindquist Scoville, Colorado Attorney General's Office–Department of Law, Ellis Jay Mayer, Nathan, Bremer, Dumm & Myers, PC, Denver, CO, for Defendants.

ORDER

PHILIP A. BRIMMER, District Judge.

This matter is before the Court on the State Defendants' Motion to Dismiss Plaintiff's Third Amended Complaint [Docket No. 136].¹ The motion is fully briefed and ripe for disposition.

I. BACKGROUND ²

In 2001, certain members ³ of the Program and Oversight Committee of the Rocky Mountain Regional Center of Excellence (“RCE”), the Management and Oversight Committee, and the Program and Oversight Committee (“RCE Committees”) at Colorado State University (“CSU”) submitted a grant application to the National Institute of Allergies & Infectious Diseases (“NIAID”). The grant was not funded, at least in part, because of a lack of minority participation in the proposed project. Following the denial of the application, members of the RCE Committees agreed to recruit a minority scientist to join both the Department of Microbiology, Immunology, and Pathology (“MIP”) and the Rocky Mountain RCE at CSU. Defendants Frank, Brennan, Belisle, Ellis, Beaty, and Inamine were members of the RCE Committees. Defendant Benjamin was the Department Head of the MIP at the time. He appointed defendant Avery to serve on the selection committee for the prospective hiring of a minority scientist.

Plaintiff Langston D. Hull, D.V.M., Ph.D., received his Ph.D. in Microbiology from Louisiana State University in 2002. Defendants Benjamin, Brennan, and Blair recruited plaintiff for the position in the MIP. They promised him support for his research program, which was to be included in the grant proposals, and that he would serve as the liaison between CSU and the Centers for Disease Control and Prevention (“CDC”) facility in Fort Collins, Colorado. Defendants knew that the research plaintiff planned on conducting required a Biosafety Level 3 (“BSL–3”) laboratory and Select Agent Registration with the CDC. Plaintiff was offered a one-year appointment, with the potential for reappointment, as a Research Scientist at CSU. Plaintiff accepted the offer of employment in January of 2003 and began his employment on February 1, 2003.

Plaintiff was unable, however, to engage in his research program upon arrival at CSU. Defendants had not arranged for Select Agent Registration. Plaintiff therefore worked with defendant Ellis, the Chief Biosafety Officer, to obtain the Select Agent Registration, a process that ultimately was not completed until November 2003. Upon its completion, however, plaintiff was not able to begin work because defendant Belisle had not prepared required Standard Operating Procedures (“SOPs”) for the BSL–3 laboratory. In the interim, instead of being placed in an appropriate laboratory for his microbiology research, plaintiff was assigned to work in the immunology laboratory of defendant Anne C. Avery, a professor at CSU. Working in Avery's laboratory isolated plaintiff from collaborators and mentors in his area of expertise. Defendant Brennan, a professor and member of the Management and Oversight Committee of the Rocky Mountain RCE, told plaintiff the assignment to Avery's laboratory would be temporary. While working in the laboratory, defendant Avery expressed hostility toward plaintiff, saying to him: “You don't even and never had a chance at a long term position here,” and “get it out of your mind that you were brought here to fulfill a void in the department; we don't need you here ...” Docket No. 147 at 14, ¶ 65. Furthermore, defendant Avery joked with other faculty members about the circumstances surrounding plaintiff's recruitment.

In January 2004, defendant Jeffrey Wilusz, who was the head of the MIP at the time, proposed that Hull's employment contract be renewed. Despite assurances that Hull would be able to pursue his independent research, defendants Wilusz, Avery, and Edward A. Hoover, who currently serves as the head of MIP, assigned Hull to a position requiring that he spend approximately 75% of his time on Avery's research. Moreover, defendants prevented Hull from gaining the access to a BSL–3 laboratory required for him to conduct his research.

The lack of support for plaintiff's research agenda continued. Hull applied for a grant (“K08 grant”) from the National Institutes of Health (“NIH”) on September 31, 2004. The grant review committee believed Hull to be an “excellent candidate,” Docket No. 147 at 17, ¶ 77, but defendants Wilusz, Hoover, and/or Avery expressed the view that he was not. That lack of support by his colleagues was cited by the NIH as a weakness in plaintiff's application. The grant review committee also cited a lack of focus to his research, which Hull contends resulted from the requirement that he spend so much time working for Avery.

Upon renewal of Hull's contract in January 2005, defendants Wilusz, Hoover, and Avery determined that Hull would not resubmit his K08 grant application and would instead spend all of his time on Avery's research.⁴ Yet his January 11, 2005 renewal letter stated that “the MIP Department remains sincerely interested in assisting [Hull's] professional development and [his] establishment of an independent research program.” Docket No. 147 at 18, ¶ 85. The letter also informed Hull that he would be eligible for reappointment if he were able to find funding.

In January 2005, Hull began working on his own research after hours and on weekends. While Hull was working full time for Avery and engaging in his after hours research, the Rocky Mountain RCE received a $40 million grant in June 2005 from NIAID based, in part, on the fact that defendants wrote Hull into the application as a minority participant.

Hull achieved a breakthrough in his research in August 2005 and, by September 2005, believed that he had enough data to resubmit his K08 grant application. Defendant John T. Belisle, a professor and the director of the Program and Oversight and Management and Oversight Committees of the Rocky Mountain RCE, agreed to mentor Hull during the resubmission process. Belisle and Wilusz reviewed drafts of the application during September and, on September 28, 2005, Belisle and defendant Julia M. Inamine, a professor and member of the Management and Oversight Committee of the Rocky Mountain RCE, both signed a letter supporting Hull's K08 grant application. Belisle, however, then changed his mind and withdrew his support of the application.⁵ Belisle also denied that he had ever agreed to mentor plaintiff. Without faculty support, Hull could not resubmit his application.

On September 23, 2005, Wilusz told Hull that Hoover and Avery had “little enthusiasm” for having him continue on the grant which funded his year to year employment. Upon realizing that he would not be funded past January 2006, Hull began searching for alternative funding. Wilusz showed outward support for that effort while discouraging MIP faculty members from providing support to Hull.⁶

No later than October 2005, Hull believed he “was being treated less favorably than other similarly situated scientists at MIP.” Docket No. 136–2 (EEOC Charge of Discrimination) at 3. He reported his concerns to the Assistant Provost, Thomas Gorell. Dr. Gorell told Wilusz to treat Hull fairly.

Hull continued to work on his research and began preparing two manuscripts. He was unable, however, to complete two necessary experiments prior to the termination of his appointment on January 31, 2006. Wilusz denied Hull's request for a two-week unpaid extension in order to complete the two experiments.⁷ When Hull informed Gorell of his termination as of January 31, 2006, Gorell said, “I told [Wilusz] to take care of this, but it looks like he didn't.” Docket No. 147 at 23, ¶ 120. Gorell told Hull on February 3, 2006 that he believed the problem “went deeper” and advised Hull to contact Roselyn Cutler in CSU's Office of Equal Opportunity and Diversity (“OEOD”). Hull thereafter provided a letter to defendant Larry Edward Penley, the President of the University, describing the unfair treatment and requesting that Penley intervene.⁸ Hull met with Cutler on February 7, 2006 to report his complaints of race discrimination in the MIP. On July 15, 2006, he filed a grievance with the OEOD. Cutler issued a report of her findings on February 6, 2007, which was reviewed and accepted by defendant Anthony Frank, the CSU provost and a member of the Program and Oversight Committee of the Rocky Mountain RCE, on March 5, 2007. After plaintiff...