Kilborn v. Amiridis
| Decision Date | 15 February 2023 |
| Docket Number | 22 C 475 |
| Parties | JASON J. KILBORN, Plaintiff, v. MICHAEL AMIRIDIS, CARYN A. BILLS, JULIE M. SPANBAUER, DONALD KAMM, AND ASHLEY DAVIDSON Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
University of Illinois Chicago (“UIC”) School of Law professor Jason Kilborn, formerly the subject of an investigation by UIC's Office of Access and Equity (“OAE”), brings this suit against Defendants Michael Amiridis, Caryn Bills, Julie Spanbauer, Donald Kamm and Ashley Davidson, all UIC employees, in their official and individual capacities. Based on the investigation and resulting punishments, Kilborn alleges violations of the First Amendment, Fourteenth Amendment, and state law. As to his state law claims, Kilborn alleges defamation, false light, and intentional infliction of emotional distress (“IIED”). Defendants move to dismiss all claims and for sanctions under Rule 11.
Because Kilborn has not sufficiently pleaded that his speech involved matters of public concern, the Court dismisses his First Amendment retaliation claim. The Court also dismisses Kilborn's First Amendment compelled speech claim against Defendants in their official capacities because he fails to adequately allege an ongoing violation of federal law. However, Kilborn may proceed with his compelled speech claim against Defendants in their individual capacities. Kilborn may also proceed with his due process claim on the basis that UIC's Nondiscrimination Policy Statement (the “Nondiscrimination Policy”) is unconstitutionally void. With respect to his state law claims, Kilborn may proceed with his defamation and false light claims predicated on only certain allegedly false statements, as explained in more detail below. The Court dismisses Kilborn's IIED claim because he fails to allege extreme and outrageous conduct by Defendants. Finally, the Court denies Defendants' motion for sanctions.
BACKGROUND[1]
Kilborn teaches law as a tenured professor at UIC School of Law. In December of 2020, Kilborn gave his Civil Procedure II class a final exam, which included a hypothetical employment discrimination scenario that Kilborn had used on his exam for ten years. To describe the scenario, Kilborn wrote that an employee “quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a ‘n' and ‘b' (profane expressions for African Americans and women) and vowed to get rid of her.” Doc. 9 ¶ 15. The exam question generated student criticism, including a petition circulated by the Black Law Students Association (“BLSA”) (the “BLSA Petition”).
On January 4, 2021, Kilborn emailed a former student expressing his sadness and pain as a result of the controversy; Kilborn saw the student's name on the BLSA “attack letter” against him and conveyed that it was “[s]uch a shame to see all of [his] efforts to offer comfort and encouragement . . . only to be now vilified in the most vicious, cruel, and uncompassionate way.” Doc 9-1 at 10. Kilborn explained that he felt “heart broken.” Id. A few days after sending the email, Kilborn met with a member of BLSA to discuss the controversy. About an hour into the over four-hour conversation with the student, the student asked Kilborn why the law school dean did not show him the BLSA Petition. Kilborn responded, in jest, that she might not have shared the petition because she feared that if Kilborn saw what students said about him, he might “become homicidal.” Doc. 9 ¶ 20. The conversation continued with no indication that the student felt distressed or threatened.
As a result of this conversation, Kilborn alleges that “the law school dean and other Defendants” invoked UIC's Violence Prevention Plan and convened a Behavioral Threat Assessment Team to assess the purported threat of physical violence. Id. ¶ 22. On January 12, 2021, the first day of Kilborn's classes for the spring semester, the dean told Kilborn that he must take an “indefinite administrative leave,” cancelled his classes for the semester, forbade him from coming onto campus or engaging in UIC activities, and prohibited him from meeting with colleagues, students, or alumni. Id. ¶ 24. If Kilborn sought to speak at external conferences, he had to seek prior approval. Additionally, the dean asked that Kilborn “not discuss” the events with anyone associated with UIC. Id. When Kilborn asked for the reason behind these actions, the dean conveyed that students raised additional concerns regarding possible violations of UIC policies, including UIC's Nondiscrimination Policy. The dean informed Kilborn that OAE would explain more in the coming days.
On January 15, Kilborn met with OAE. Caryn Bills, OAE's Associate Chancellor, told him that his comment about becoming homicidal predicated his administrative leave. Kilborn admitted that he made the comment but emphasized that he said it in jest. To clear the administrative leave, Kilborn had to meet with UIC health officials and undergo drug testing and examination by a nurse, social worker, and doctor. A few days later, Kilborn was no longer on administrative leave and began unrestricted duty. His classes remained cancelled.
On February 17, 2021, OAE provided Kilborn with a notice of investigation related to allegations of race-based discrimination and harassment. They included a list of allegations from unidentified sources to which Kilborn attempted to respond in writing and at an interview, although he objected that he could not respond to the vague allegations. Three months later, on May 28, 2021, OAE provided a findings letter (the “Findings Letter”) to Kilborn. The Findings Letter reflected that OAE did not substantiate the allegations of race-based discrimination against Kilborn. It did, however, conclude that Kilborn violated the Nondiscrimination Policy as it relates to harassment. OAE based its determination on a variety of purported statements and actions taken by Kilborn, including that he interfered with Black students' participation in UIC's programs; in the course of one class, made references to “cockroaches” and “lynching,” used an “African American Vernacular English” (“AAVE”) accent when referencing a Black artist's lyrics, and referenced having an “implicit bias” after a Black student confronted him during the class; used an exam question that included an explicit (abbreviated) reference to a racial epithet; expressed anger and displeasure when he learned students had objected to the exam question; and discussed the possibility that he might become “homicidal” as a result of BLSA's Petition, among other findings. Doc. 9-1 at 3-5. All Defendants participated in creating the Findings Letter, which Kilborn believes they published by sending to BLSA members and others. The entire Findings Letter eventually made its way into an ABA Journal article and other news sources picked up the story. Stories reported that Kilborn described minorities as “cockroaches” and used racial slurs. Protests and a press conference were held to “denounce” Kilborn. Doc. 9 ¶ 40.
A few weeks later, on June 18, Kilborn met with Julie Spanbauer, Interim Dean of UIC's law school, to discuss next steps for Kilborn resulting from the Findings Letter. Kilborn agreed to allow someone from UIC to review his class recordings for instances of potential racial harassment, report if any instance of potential racial harassment arose, and speak with Spanbauer before responding to any race-based student complaint. Based on this conversation, Spanbauer provided Kilborn with a “final resolution.” Id. ¶ 45. The resolution consisted of requirements and recommendations for Kilborn to meet. One requirement mandated that, if a review of his class recordings over four semesters revealed that Kilborn maintained a harassing classroom environment, Kilborn would have to undergo sensitivity training.
Kilborn alleges that Spanbauer “reneg[ed]” on their “agreed settlement arrangement,” which Kilborn accepted “to avoid a lawsuit,” when Kilborn did not receive an across-the-board 2% merit raise and Defendants required him to complete an eight-week diversity course. Id. ¶¶ 45-47. As part of the course, Kilborn had to meet with a trainer who would provide feedback regarding Kilborn's engagement with and commitment to the program. Kilborn could not teach his courses until he satisfactorily completed the program. He alleges that he “complied with” the training program but does not indicate whether he returned to the classroom. Id. ¶ 51.
In November, UIC released the investigation report upon which OAE based its Findings Letter. It did so in response to a Freedom of Information Request. Kilborn received the report, drafted by Ashley Davidson, a Title IX and Equity Compliance Specialist in OAE during the relevant time period, for the first time on November 11, 2021. On November 30, Michael Amiridis, the Chancellor of UIC, released the report to the UIC community along with a cover letter (together, the “UIC Community Letter”). The report included many of the same statements as the Findings Letter.
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed.R.Civ.P 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. Kubiak v. City of Chicago, 810 F.3d 476, 480-81 (7th Cir. 2016). To survive a Rule 12(b)(6) motion, the complaint must assert a facially plausible claim and provide fair notice to the defendant of the claim's basis. Ashcroft...
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