Mills v. Iowa Bd. of Regents

• Decision Date: 09 March 2011
• Docket Number: No. 3:10–cv–112.,3:10–cv–112.
• Citation: 268 Ed. Law Rep. 812,770 F.Supp.2d 986
• Parties: Marcus MILLS, Plaintiff,v.IOWA BOARD OF REGENTS; State of Iowa; the University of Iowa; James Bryant; the Stolar Partnership, LLP; and Sally Mason and Bonnie Campbell, in their official and individual capacities, Defendants.
• Court: U.S. District Court — Southern District of Iowa

770 F.Supp.2d 986

268 Ed. Law Rep. 812

Marcus MILLS, Plaintiff,

v.IOWA BOARD OF REGENTS; State of Iowa; the University of Iowa; James Bryant; the Stolar Partnership, LLP; and Sally Mason and Bonnie Campbell, in their official and individual capacities, Defendants.

No. 3:10–cv–112.

United States District Court, S.D. Iowa, Davenport Division.

March 9, 2011.

Gregory M. Lederer, Lederer Weston Craig PLC, Diane Kutzko, Mark L. Zaiger, Shuttleworth & Ingersoll, Cedar Rapids, IA, for Defendants.Kelly R. Baier, Bradley & Riley, Cedar Rapids, IA, for Plaintiff.

ORDER

ROBERT W. PRATT, Chief Judge.

Before the Court are the following motions: 1) “Defendant State of Iowa's Motion to Dismiss Counts II, [VII],¹ and VIII of Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1)” (Clerk's No. 5); 2) “Combined Motion to Dismiss of the Iowa Board of Regents pursuant to Federal Rule 12(b)(6) and Partial Motion to Dismiss of the University of Iowa pursuant to Federal Rules 12(b)(1) and 12(b)(6)” (Clerk's No. 6); 3) “Defendant Sally Mason's Motion to Dismiss Counts III and VII pursuant to Federal Rule of Civil Procedure 12(b)(1) and Counts I, II, and VI pursuant to Federal Rule 12(b)(6)” (Clerk's No. 7); and 4) “Defendant Bonnie Campbell's Motion to Dismiss Counts II and III pursuant to Federal Rule 12(b)(1) and Count VI pursuant to Federal Rule 12(b)(6)” (Clerk's No. 8). Marcus Mills (“Plaintiff”) filed a resistance to each of the Motions (Clerk's Nos. 13–16), and Defendants replied (Clerk's Nos. 19, 24–26). The Court held a hearing on the pending motions on January 27, 2011. Clerk's No. 28. The matters are fully submitted.

I. FACTUAL ALLEGATIONS

On August 2, 2010, Plaintiff filed a Petition (hereinafter “Complaint”) in the Iowa District Court for Johnson County against the Iowa Board of Regents (“Board of Regents”), the State of Iowa (“State of Iowa” or the “State”), the University of Iowa (the “University”), James Bryant (“Bryant”), the Stolar Partnership, LLP (“Stolar”), Sally Mason (“Mason”), and Bonnie Campbell (“Campbell”). According to Plaintiff's Complaint, Plaintiff was the Vice President of Legal Affairs and General Counsel for the University until September 23, 2008. Compl. ¶ 8. Plaintiff was appointed as General Counsel on August 1, 2005 by then-University President David Skorton (“Skorton”). Id. ¶ 9. According to Plaintiff, he accepted the position based, in part, on Skorton's representation that Plaintiff would serve in the position for at least five years. Id. Plaintiff received excellent performance reviews and regular pay increases during his term of service with the University. Id. ¶ 10.

In October 2007, a female University student (“the victim”) alleged that she had been sexually abused by other University students. Id. ¶ 11. The University undertook an investigation into the matter. Id. ¶ 12. Four University departments—Athletics, Office of Equal Opportunity and Diversity, Student Services, and Public Safety—had direct responsibilities with respect to the investigation. Id. ¶ 17. Each department managed its own part of the investigation and was responsible for keeping the University's president, Mason, informed of any actions and findings. Id. Plaintiff's job duties did not require him to supervise the investigation, and Plaintiff was neither in charge of, nor directed by anyone to take charge of, the investigation. Id. ¶¶ 13–15. Rather, Plaintiff represented and provided legal advice to Mason and to other University employees during the investigation, and in so doing, owed ethical duties of confidentiality to those individuals. Id. ¶ 16.

On October 24, 2007, Betsy Altmaier (“Altmaier”), the Faculty Athletic Representative to the Big Ten Conference and the NCAA, contacted Mills and asked him to contact the victim's father to explain the University's procedures. Id. ¶ 18. Plaintiff contacted the victim's father on the same date, stated his position with the University, and summarized the University's procedures. Id. Plaintiff further explained to the victim's father the steps that the University had taken in its investigation thus far, and answered questions. Id. Plaintiff explicitly denies telling the victim's father that he would be the family's “liaison with the University.” Id.

On November 16, 2007, Regent Michael Gartner (“Gartner”) sent Mason an email requesting certain information relating to the alleged assault. Id. ¶ 19. Gartner wanted the Board of Regents to review the University's policies and procedures regarding the matter, and also wanted a timeline detailing events from October 14 through November 6, 2007. Id. Mason forwarded Gartner's request to Senior Vice President and Treasurer Doug True (“True”), Assistance Vice President and Director of Public Safety Charles Green (“Green”), and Plaintiff. Id. ¶ 20. Mason later forwarded a second email from Gartner specifying that Gartner did “not want names ... only process and timeline.” Id.

On November 21, 2007, a letter dated November 19, 2007 was faxed to University Vice President Phillip Jones and to Green. Id. ¶ 21. The letter was not addressed to anyone in particular and contained a typed signature from the “victim and her family.” Id. Green faxed the letter to Plaintiff and to Director of University Relations Steve Parrot (“Parrot”), and also informed Plaintiff, Parrot, True, Jones, and Mason of the existence of the letter via email. Id. ¶ 22. Green stated in his email that the victim's mother was planning to send the letter to the Board of Regents and possibly to the Governor. Id. On November 26, 2007, however, Green informed Plaintiff that the victim's father had informed Green that the family would not be sending the letter to additional parties. Id. ¶ 23.

Later on November 26, 2007, Board of Regents General Counsel Tom Evans (“Evans”), who was gathering the information sought by Gartner, made an inquiry to Plaintiff about various University policies and procedures and related documents. Id. Plaintiff informed Evans of a November 14, 2007 District Court Order which Plaintiff believed precluded him from releasing information about the assault. Id. Plaintiff's belief that he was prohibited from releasing the information requested by Evans was reinforced, according to the Complaint, by both consultation with Marcella David, an attorney and Director of the Office of Equal Opportunity and Diversity, and the Attorney General's Office, and by Mason's November 16, 2007 email directing that only process and timeline were to be provided in response to Gartner's information requests. Id.

Evans did not ask for any additional information or interview the victim or her family after being informed that Plaintiff would not provide him with specific information relating to the alleged sexual assault and the University's investigation thereof. Id. Rather, on June 11, 2008, Evans issued a report to the Board of Regents stating, among other things, that the University had “fully complied” with internal procedural requirements. Id. ¶ 24. On July 19 and 21, 2008, however, letters written by the victim's parents were made public. Id. ¶ 25. The letters were highly critical of the University. Id.

On July 28, 2008, the Board of Regents hired Stolar to conduct an investigation into the handling of the victim's complaint by the University, its administration, departments, and personnel. Id. ¶ 26. Stolar's report, issued September 18, 2008, stated that Plaintiff's responses to the incident were consistent with a culture of a lack of a transparency at the University General Counsel's Office. Id. ¶¶ 27–28. The report further stated that Plaintiff contacted the victim's father “out of the blue” and told him Plaintiff was a “liaison for the University” and that “[Plaintiff] would be the [victim's family's] contact for information on the investigation.” Id. ¶¶ 29, 31. The Stolar report also stated that Plaintiff's “involvement in micromanaging the University's response to the incident presented a serious conflict of interest.” Id. ¶ 30. On September 23, 2008, Mason fired Plaintiff, based at least in part on the Stolar report. Id. ¶ 32. Plaintiff was not provided with notice or a hearing prior to his termination. Id. Since his termination, Plaintiff has applied with several employment positions with the University, but has been told that, despite his qualifications, he will not be considered for any employment position with the University. Id. ¶ 33.

Plaintiff's Complaint asserts eight claims. Specifically, Count I sets forth a claim for wrongful termination, in violation of 42 U.S.C. § 1983 and the United States Constitution, against the University and Mason. Count II asserts a claim for a § 1983 due process violation against the University and Mason. Count III alleges an Iowa state law claim for false light invasion of privacy and defamation against Mason, Campbell, Bryant and Stolar. Count IV alleges that the University is liable to Plaintiff for breach of contract. Count V asserts a failure to pay wages claim against the University. Count VI sets forth a claim for “violation of liberty interest” against the University, Mason, Campbell, Stolar, and Bryant. Count VII alleges an intentional interference with contract claim against Mason, Campbell, Bryant, Stolar. Finally, Count VIII asserts a claim for “blacklisting” against the University.

II. STANDARDS OF REVIEW

A. Federal Rule of Civil Procedure 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss an action for lack of subject matter jurisdiction. In order for the Court to dismiss a claim under Federal Rule of Civil Procedure 12(b)(1), the moving party must successfully challenge the claim “on its face or the factual truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.1993). Facial challenges, such as in the present case, are limited to analyzing the face of the complaint. Biscanin v. Merrill Lynch & Co., Inc., 407 F.3d 905, 907 (...