Moore v. Univ. of Kan.

• Decision Date: 21 August 2015
• Docket Number: No. 14–2420–SAC.,14–2420–SAC.
• Citation: 124 F.Supp.3d 1159
• Parties: David S. MOORE, Ph.D., Plaintiff, v. UNIVERSITY OF KANSAS, et al., Defendants.
• Court: U.S. District Court — District of Kansas

124 F.Supp.3d 1159

David S. MOORE, Ph.D., Plaintiff,

v.UNIVERSITY OF KANSAS, et al., Defendants.

No. 14–2420–SAC.

United States District Court, D. Kansas.

Signed Aug. 21, 2015.

Daniel R. Cofran, Kansas City, MO, for Plaintiff.

David R. Cooper, Sarah A. Morse, Fisher, Patterson, Sayler & Smith, LLP, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

The case comes before the court on the motion to dismiss filed by the defendant The University of Kansas Center for Research ("KUCR") (Dk. 61) and the motion to dismiss filed by the defendant Dr. Bernadette Gray–Little (Dk. 63). This action arises from plaintiff David S. Moore's suspension, allegations of a hostile work environment, and eventual termination from the position of Assistant Scientist and Director of the Microscopy Analysis and Imaging Laboratory ("MAI Lab") at the University of Kansas ("KU"). In his 116–page complaint that contains 231 numbered paragraphs, Moore alleges the violations of his rights under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12,101 et seq. (Count One) for discrimination based on his disability and retaliation for exercising his disability rights; the Rehabilitation, Comprehensive Services and Developmental Disabilities Act ("Rehabilitation Act"), 29 U.S.C. § 701 et seq. (Count Two) for discrimination based on his disability and retaliation for exercising his disability rights; National Defense Authorization Act, Pilot Program for Enhancement of Contractor Protection from Reprisal for Disclosure of Certain Information ("NDAA"), 41 U.S.C. § 4712 et seq., (Count Three) for being a whistleblower in disclosing mismanagement, waste, abuses and noncompliance with federal grants and contracts; False Claims Act, ("FCA"), 31 U.S.C. § 3730 et seq., (Count Four) for being a whistleblower in investigating and requesting information reasonably believed to evidence fraud and mismanagement of federal grants and contracts; Federal Civil Rights Act, 42 U.S.C. § 1983 (Count Five) for sustaining adverse employment action in retaliation for speaking on matters of public concern protected by the First Amendment, namely the violation of federal laws governing the federal funds; Federal Civil Rights Act, 42 U.S.C. § 1983, (Count Six) for sustaining adverse employment in violation of his constitutional right to substantive due process; and the whistleblower exception for retaliatory discharge to the Kansas common-law policy on employment at will (Count Seven) for being a whistleblower and disclosing what he reasonably believed were violations of law and KU policy.

The plaintiff names KUCR as a defendant to the following four counts: Count Two (Rehabilitation Act), Count Three (NDAA), Count Four (FCA), and Count Seven common law unlawful termination. On the latter three counts, KUCR seeks dismissal on Eleventh Amendment grounds first and argues other issues in the alternative. On Count Two, KUCR seeks dismissal of any claim for monetary damages. The plaintiff names Dr. Gray–Little in her official capacity as a defendant to Count One (ADA), Count Three (NDAA), Count Four (FCA) and Count Seven common law unlawful termination. She seeks dismissal of all claims except for Count One's claim for prospective injunctive relief based on arguments made by other defendants in earlier motions.

BRIEF SUMMARY OF RELEVANT FACTUAL ALLEGATIONS

KU employed Moore who was appointed and worked as an Assistant Scientist and Director of the MAI Lab on its Lawrence Campus from 2005 until he was discharged on October 18, 2013. The MAI Lab is one of 11 Core Labs doing scientific research at the University "conducted by and through" KUCR. (First Amended Complaint, Dk. 30, ¶ 14). The plaintiff describes the MAI Lab in these terms:

The MAI Lab includes over $6.5 million in highly sophisticated electron and other advanced microscopy and scanning instruments acquired with federal grant funds used to examine, evaluate, analyze and manipulate cells and molecules images down to the single-atom level to support sophisticated research work conducted by University professors, researchers and graduate students for scientific training, education and research funded with University funds, federal research grants and contracts, and private sector industry sponsored work, primarily in materials and life sciences, including grants, contracts and fee-for-services work to produce income for the University in addition to providing scientific training, education and research for University students and researchers.

Id. at ¶ 15. The plaintiff's first amended complaint alleges the following as to KUCR:

39. The KU Center for Research is a contractor, subcontractor or grantee of federal contracts and grants in that is has been the recipient, custodian or administrator of numerous federal grants from the Public Health Service, the National Institutes of Health and the National Science Foundation, and has been and/or continues to be a contracting party with the Public Health Service, the National Institutes of Health and the National Science Foundation for significant funds in the hundreds of millions of dollars used to conduct scientific research, including the purchase of scientific instruments and compensation of scientific personnel to operate such instruments in Core Labs in the University, the Research and Graduate Studies program or otherwise has been the agent of the University for the administration and operation of the Core Labs and the University's Research and Graduate Studies program.

40. The KU Center for Research is an independent, separate entity from the University and the State of Kansas. On information and belief, it is not an "arm of the state" in that, inter alia, it derives significant sums for its operation from sources other than the University, it operates autonomously from the University, it has the right to sue and be sued in its own name and it owns property in its own name.

Id. at ¶¶ 39–40). Moore alleges his action arises from KU suspending him for four weeks without pay in September of 2013 for "disruptive" and "unprofessional" behavior and then terminating him the next month when his appeal of the suspension was still pending. The court's prior order briefly summarized the factual backgrounds on discrimination, retaliation and whistleblowing, and that court incorporates that here by reference. (Dk. 79).

STANDARDS GOVERNING RULE 12(b)(1) and (b)(6) MOTIONS

A court may dismiss a complaint under Rule 12(b)(1) for lack of subject matter jurisdiction. "Federal courts are courts of limited jurisdiction." Montoya v. Chao, 296 F.3d 952, 955 (10th Cir.2002). The burden is with the plaintiff to establish subject matter jurisdiction. Rule 12(b)(1) motions generally will take either of two forms: one, a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or two, a factual attack that goes beyond complaint's allegations and challenges the facts upon which subject matter jurisdiction depends. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.1995). With a facial attack, the "district court must accept the allegations in the complaint as true."Id. With a factual attack, "the district court may not presume the truthfulness of the complaint's factual allegations," but it "has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id.; see Los Alamos Study Group v. U.S. Dept. of Energy, 692 F.3d 1057, 1064 (10th Cir.2012).

In deciding a Rule 12(b)(6) motion, a court accepts as true "all well-pleaded factual allegations in a complaint and view[s] these allegations in the light most favorable to the plaintiff." Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009), cert. denied, 558 U.S. 1148, 130 S.Ct. 1142, 175 L.Ed.2d 973 (2010). This duty to accept a complaint's allegations as true is tempered by the principle that "mere ‘labels and conclusions,’ and ‘a formulaic recitation of the elements of a cause of action’ will not suffice; a plaintiff must offer specific factual allegations to support each claim." Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir.2011) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). As recently clarified by the Supreme Court, the standard under 12(b)(6) is that to withstand a motion to dismiss, " ‘a complaint must contain enough allegations of fact, taken as true, to state a claim to relief that is plausible on its face.’ " Al–Owhali v. Holder, 687 F.3d 1236, 1239 (10th Cir.2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). Thus, "a plaintiff must offer sufficient factual allegations to ‘raise a right to relief above the speculative level.’ " Kansas Penn Gaming, 656 F.3d at 1214 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). It follows then that if the "complaint pleads facts that are ‘merely consistent with’ a defendant's liability it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ' " Id. " ‘A claim has facial plausibility when the [pleaded] factual content ... allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ " Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1178 (10th Cir.2012). "Thus, in ruling on a motion to dismiss, a court should disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable." Kansas Penn Gaming, 656 F.3d at 1214.

ELEVENTH AMENDMENT IMMUNITY—KUCR—ARM OF THE STATE

The Eleventh Amendment provides, ...