McGettigan v. Di Mare

• Decision Date: 24 March 2016
• Docket Number: Civil Action No. 15-cv-00097-PAB-KLM
• Citation: 173 F.Supp.3d 1114
• Parties: Timothy McGettigan, Plaintiff, v. Lesley Di Mare, President of the Colorado State University—Pueblo, in her individual and official capacities and Board of Governors of the Colorado State University System, by and on behalf of Colorado State University, Defendants.
• Court: U.S. District Court — District of Colorado

173 F.Supp.3d 1114

Timothy McGettigan, Plaintiff,

v.Lesley Di Mare, President of the Colorado State University—Pueblo, in her individual and official capacities and Board of Governors of the Colorado State University System, by and on behalf of Colorado State University, Defendants.

Civil Action No. 15-cv-00097-PAB-KLM

United States District Court, D. Colorado.

Signed March 24, 2016

Daniel Moore Twetten, Elizabeth C. Wang, Loevy & Loevy, Boulder, CO, for Plaintiff.

Stephanie Lindquist Scoville, Colorado Attorney General's Office, Denver, CO, for Defendants.

ORDER

PHILIP A. BRIMMER

, United States District Judge

This matter is before the Court on the Motion to Dismiss [Docket No. 16] filed by defendants Lesley Di Mare and the Board of Governors of the Colorado State University System.¹ This case arises out of an email sent by plaintiff Timothy McGettigan, a sociology professor at Colorado State University—Pueblo (“CSU-P”) and CSU-P President Di Mare's ensuing limitation of plaintiff's university email and computer access. Docket No. 1 at 1, 3, ¶¶ 1, 7. This Court has subject matter jurisdiction over plaintiff's federal claims pursuant to 28 U.S.C. § 1331

and supplemental jurisdiction over plaintiff's state law claims pursuant to 28 U.S.C. § 1367.

I. BACKGROUND²

In December 2013, Colorado State University System Chancellor Michael Martin announced a budget shortfall for 2015. Id. at 4, ¶ 10. After CSU-P President Di Mare announced a plan to address the budget shortfall that could eliminate up to fifty CSU-P positions, Professor McGettigan sent a series of mass emails in December 2013 and January 2014 to members of the CSU-P community expressing his opposition to the CSU-P plan. Id. , ¶¶ 10, 12. Chancellor Martin announced that he would visit CSU-P on January 17, 2014 to hold a public meeting to discuss the budget and termination plan. Id. , ¶ 14.³

On December 23, 2013, Professor McGettigan sent an email to faculty, staff, and students challenging CSU-P's determination that there was a budget shortfall and arguing that the termination plan would be detrimental to CSU-P students. Id. at 5, ¶ 16. On December 23, 2013, Professor McGettigan also circulated to faculty members a report from an independent analyst concluding that termination of staff was not necessary to resolve the budget shortfall. Id. , ¶ 17. Professor McGettigan encouraged students to attend Chancellor Martin's January 17, 2014 meeting. Id. , ¶ 15.

On January 14, 2014, Professor McGettigan sent an email to all students regarding comments made by Chancellor Martin at a January 6, 2014 meeting about the termination plan. Id. at 5–6, ¶ 18. Professor McGettigan summarized the meeting as follows:

According to Chancellor Martin, here's what CSU-Pueblo must do to dig itself out of the ugly mess it's in and achieve its grandest and most glorious aspirations:

1. Quit wasting money on CSU-Pueblo students. They are losers who live in a worthless corner of Colorado.

2. Divert money that would otherwise be wasted on CSU-Pueblo students to Chancellor Martin's brainchild, CSU-Denver.

3. Subsidize higher education for wealthier, more populous and (let's face it) altogether superior students in Denver.

4. Since CSU-Pueblo students are going to fail anyway, they won't really miss out on the educational opportunities that their brainier CSU System administrators are stealing from them. Anyway, CSU-Pueblo-types are going to be much happier working for minimum wage at McDonald's than in professions that (let's face it) would overtax their limited mental faculties.

So there it is. The future in a nutshell. Chancellor Martin is committed to transferring educational resources that would be wasted on CSU-Pueblo students to create more and better educational opportunities for rich kids who can (let's face it) make better use of them.

Id. at 6, ¶ 18.

The next day, on January 15, 2014, Professor McGettigan sent an email encouraging faculty, staff, and friends of CSU-P to gather at the university's central fountain on January 17, 2014, demonstrate against the termination decision, and call for a “no confidence” vote in Chancellor Martin. Id. , ¶ 19.

The next day, on January 16, 2014, Professor McGettigan sent an email to “members of the university community” notifying them of a lunch hour protest that same day against the termination plan and reminding them of the January 17, 2014 demonstration. Id. at 7, ¶ 20.

On January 17, 2014, Professor McGettigan sent an email to members of the CSU-P community titled “Children of Ludlow.” In that message, he drew an analogy between Chancellor Martin's termination decision and the actions of the militia and camp guards who massacred striking coal miners and their families in Ludlow, Colorado in 1914. Id. , ¶ 21. Professor McGettigan's email states in part:

The hitmen massacred those people. Coldly and methodically, the hitmen turned their guns on women and children. The hitmen riddled the little tent village in Ludlow with bullets, and then they set that village alight. Amidst the screams of helpless, defenseless souls, the hitmen stood back and watched in satisfaction as the hopes and dreams of southern Coloradoans went up in smoke.

**

Today, the people of southern Colorado are still struggling to get their own little piece of the American Dream. They aren't looking for handouts or special treatment. They just want to make a decent living and give their kids a chance at a brighter future.

In recompense for this unpardonable sin, CSU Chancellor Michael Martin has assembled a hit list. Today, Michael Martin is traveling to CSU-Pueblo to terminate the 50 people who are on his hit list. In his own way, Michael Martin is putting a gun to the head of those 50 hard-working people while he also throws a burning match on the hopes and dreams of their helpless, defenseless families.

**

When the hitman returns today, the Children of Ludlow will once again be called upon to withstand the onslaught of a merciless enemy. I can't roll back the clock to help children who died at the hands of pitiless hitmen a hundred years ago. But I swear to God, I will not abandon the Children of Ludlow when they face the latest in a long history of hitmen who have terrorized southern Colorado.

Docket No. 16–1 at 1.

Less than an hour after reading Professor McGettigan's “Children of Ludlow” email, and before Chancellor Martin's public meeting, President Di Mare terminated Professor McGettigan's access to electronic resources at CSU-P, including his email account, without any notice to him. Docket No. 1 at 9, ¶ 28. Professor McGettigan's ability to send group emails has not been restored. Id. at 10, ¶ 33. Less than two weeks after Professor McGettigan sent his “Children of Ludlow” email, President Di Mare rescinded approval of a one-term sabbatical for which Professor McGettigan had previously been approved. Id. , ¶ 34.

A few days after the suspension of Professor McGettigan's access to CSU-P electronic resources, a spokeswoman for CSU-P sent an email to Inside Higher Ed , a national news publication, indicating that plaintiff had violated a university policy, and which attached a statement from President Di Mare. Id. at 11–12, ¶ 42; see also Docket No. 16–2. Inside Higher Ed published this information on January 20, 2014 as follows:

UPDATE: On Monday afternoon, a spokeswoman for Colorado State-Pueblo sent an email to Inside Higher Ed saying that McGettigan had violated the policy on use of electronic communications. Further, she released a statement from President Lesley Di Mare, in which she invoked recent incidents of violence in education. “Considering the lessons we've all learned from Columbine, Virginia Tech, and more recently Arapahoe High School, I can only say that the security of our students, faculty, and staff are our top priority,” Di Mare said. “CSU-Pueblo is facing some budget challenges right now, which has sparked impassioned criticism and debate across our campus community. That's entirely appropriate, and everyone on campus—no matter how you feel about the challenges at hand—should be able to engage in that activity in an environment that is free of intimidation, harassment and threats. CSU-Pueblo has a wonderful and vibrant community, and the university has a bright future. I'm confident that we can solve our challenges with respectful debate and creative problem-solving so that we can focus on building that future together.”

Docket No. 17–1 at 2-3.

On January 14, 2015, Professor McGettigan filed his complaint. Docket No. 1. Professor McGettigan asserts a 42 U.S.C. § 1983

claim for alleged violations of his First Amendment rights and a state common law defamation claim against President Di Mare. Id. at 2, ¶ 4.⁴ On March 17, 2015, President Di Mare moved to dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6). Docket No. 16. President Di Mare argues that she is entitled to qualified immunity on Professor McGettigan's First Amendment claims, Docket No. 16 at 4, and that Professor McGettigan's defamation claim fails as a matter of law because her statement was not libel per se . Id. at 11.

II. STANDARD OF REVIEW

The Court's function on a Rule 12(b)(6)

motion for failure to state a claim upon which relief can be granted is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is sufficient to plausibly state a claim. Fed. R. Civ. P. 12(b)(6) ; see also

Dubbs v. Head Start, Inc. , 336 F.3d 1194, 1201 (10th Cir.2003).

In doing so, the Court “must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.” Alvarado v. KOB – TV, LLC , 493 F.3d 1210, 1215 (10th Cir.2007)

(quotation marks and citation omitted). At the same time, however, a court need not accept conclusory allegations. Moffett v. Halliburton Energy Servs., Inc. , 291 F.3d 1227, 1232 (10th Cir.2002).

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6)

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