Robinson v. Wichita State Univ.
| Decision Date | 13 February 2018 |
| Docket Number | Case No. 16-2138-DDC-GLR |
| Parties | WADE ROBINSON, Plaintiff, v. WICHITA STATE UNIVERSITY, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
This matter comes before the court on defendants John Bardo and Wichita State University's Motion for Judgment on the Pleadings (Doc. 55). Defendants filed this Motion on May 15, 2017. The parties have filed responses and replies. For the reasons explained below, the court grants defendants' motion in part and denies it in part. After identifying the governing facts, this order explains the reasons for this holding.
The following facts come from plaintiff's First Amended Complaint (Doc. 48). Because the current dismissal motion relies on Federal Rule of Civil Procedure 12(c), the court must accept the pleaded facts as true and view them in the light most favorable to plaintiff. Ramirez v. Dep't of Corr., 222 F.3d 1238, 1240 (10th Cir. 2000). The court emphasizes that this standard controls the facts assumed at this stage of the case. In short, the court expresses no opinion whether they represent the facts that, ultimately, the factfinder would believe.
Dr. Wade Robinson, plaintiff, brings this suit in response to the decision by defendant Wichita State University ("WSU") to terminate his employment. Plaintiff began working at WSU in July 2009. He was WSU's Vice President for Campus Life & University Relations. As Vice President for Campus Life & University Relations, plaintiff provided the oversight function for Title IX compliance, student conduct, housing enrollment, and other related activities. On April 25, 2013, plaintiff learned that a member of WSU's basketball team allegedly had committed a rape. Two days later, plaintiff told defendant John Bardo, the University President, that WSU needed to investigate the incident to comply with WSU's Title IX obligations. On April 29, plaintiff took the lead on the Title IX investigation into the alleged rape. After conducting an initial investigation, plaintiff filed a formal Title IX complaint by submitting an incident report to WSU. Mr. Bardo later threatened plaintiff's employment status.
About a year later, in January 2014, plaintiff learned of another alleged rape at WSU. Plaintiff again led the Title IX investigation and encouraged the putative victim to provide a formal statement. The victim declined. Plaintiff also met with the alleged perpetrator twice. On July 10, 2014, Mr. Bardo demoted plaintiff to Vice President of Student Engagement. Also, in August 2014, Mr. Bardo moved plaintiff into a small office space.1
On January 12, 2015, plaintiff informed Mr. Bardo that the putative victim of the January 2014 rape would provide a formal statement. Because the victim was making a formal statement, plaintiff proceeded with a formal investigation, as required by Title IX. On January 15, 2015, plaintiff was verbally informed that WSU would terminate his employment effective June 30, 2015.2
Over the next few months, plaintiff heard many things about his termination. Plaintiff met with a human resources employee who informed plaintiff that WSU had decided to terminate his employment because he "did not fit" and the administration was trying to find areason for immediate termination. Also, plaintiff received two anonymous notes reporting that employees in the President's office secretly were telling others that WSU had decided to terminate plaintiff's employment. When plaintiff met with Mr. Bardo about his termination, Mr. Bardo explained that WSU had decided to terminate plaintiff's employment because he was too loyal to his staff, he was a big man with a loud voice, others perceived him as a bully, and he had allowed the costs for Shocker Hall3 to balloon. On June 1, 2015, plaintiff learned that Mr. Bardo had told people4 at WSU that plaintiff did not have the credentials for his job.
On March 2, 2015, the Registry for College and University Presidents ("Registry") published a job announcement for plaintiff's job. The announcement reported, "The incumbent is aware he is leaving at the end of the academic year or sooner; the incumbent does not fit with the culture of the executive leadership team" and "the current operation is too hierarchical and punishment-centered." Doc. 48 ¶ 38. The Registry sent this announcement to their members, who are retired student affairs professionals available to fill university and college positions on an interim basis. Mr. Bardo provided this information to the Registry.
Mr. Bardo also explained to WSU Student Body President Matt Conklin why he had terminated plaintiff. Mr. Bardo stated that: "[T]he conduct process overseen by [plaintiff] was too punitive in nature rather than educational as it should be;" "the Student Affairs Division improperly allocated finances in supporting the institution's goals;" and "the Student Affairs Division is too bureaucratic in nature." Doc. 48 ¶ 40.5 On May 9, 2015, The Wichita Eaglepublished an article where it asked Mr. Conklin why WSU fired plaintiff. Mr. Conklin answered by repeating the statements that Mr. Bardo made to him.6 The Wichita Eagle also quoted the Registry's announcement about the position.
WSU terminated plaintiff's employment on June 30, 2015. On July 10, 2015, plaintiff requested records from WSU under the Kansas Open Records Act ("KORA"). He requested documents referencing plaintiff's termination and WSU's attempt to use the Registry to find plaintiff's replacement. WSU eventually complied with plaintiff's KORA request 17 weeks later.
Plaintiff asserts five claims against defendants. First, plaintiff asserts a claim against WSU under Title IX for Retaliation (Count I). Next, plaintiff asserts a claim under 42 U.S.C. § 1983 against Mr. Bardo for depriving plaintiff of a liberty interest without due process (Count II). Third and fourth, plaintiff asserts a defamation claim (Count III) and an invasion of privacy claim against Mr. Bardo (Count IV). And last, plaintiff asserts a claim under KORA against WSU (Count VII).
Defendants seek judgment on the pleadings under Fed. R. Civ. P. 12(c). Courts evaluate a Rule 12(c) motion using the same standard used to evaluate a motion to dismiss under Rule 12(b)(6). See Turner v. City of Tulsa, 525 F. App'x 771, 772 (10th Cir. 2013).
The court will grant a motion for judgment on the pleadings only when the factual allegations in the complaint fail to "state a claim for relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), or when an issue of law decides the case,Neitzke v. Williams, 490 U.S. 319, 326 (1989). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "Under this standard, 'the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.'" Carter v. United States, 667 F. Supp. 2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)).
Title IX prohibits educational institutions who receive federal financial assistance from discriminating against any individual based on sex. 20 U.S.C. § 1681. "Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX's private cause of action." Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). Educational institutions thus can incur liability under Title IX if they retaliate against a person who has complained about discrimination aimed at the complainant. Id. at 179. In addition, and distinct from that kind of liability, educational institutions can incur liability if they retaliate against a person who has complained about allegedly discriminatory treatment directed at another. Id. at 179 ().
In Title IX retaliation actions, the court applies the same standards as those applied to Title VII retaliation cases. See Hiatt v. Colo. Seminary, 858 F.3d 1307, 1315-16 (10th Cir.2017) (). To succeed on a Title IX retaliation claim, then, the plaintiff must establish that: (1) the employer took an adverse employment action against the plaintiff; (2) plaintiff engaged in protected activity; and (3) the employer adversely affected plaintiff's employment because of plaintiff's protected activity. Id. WSU argues that the court should enter judgment against plaintiff's Title IX claim because plaintiff never engaged in protected activity. Specifically, WSU argues that plaintiff could not have engaged in protected activity when all of his involvement with the alleged activity Title IX protects was part of his job duties.
The theoretical premise of WSU's argument is correct. An employee cannot engage in protected activity while performing his job duties. Weeks v. Kansas, 503 F. App'x 640, 642 (10th Cir. 2012) (citing McKenzie v. Renberg's, Inc., 94 F.3d 1478, 1486-87 (10th Cir. 1996). This rule is known as the "manager rule." Furr v. Ridgewood Surgery & Endoscopy Ctr., LLC, 192 F. Supp. 3d 1230, 1248 (D. Kan. 2016) (discussing McKenzie, 94 F.3d at 1486-87).
But if the plaintiff/employee steps outside the scope of his job duties and "file[s] (or threaten[s] to file) an action adverse to the employer, actively assist[s] other[s] in asserting [Title IX] rights, or otherwise engage[s] in activities that reasonably could be perceived as...
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