Vanderhurst v. Colorado Mountain College Dist., Civil No. 97-B-563.
| Decision Date | 18 August 1998 |
| Docket Number | Civil No. 97-B-563. |
| Citation | 16 F.Supp.2d 1297 |
| Parties | Stuart R. VANDERHURST, Plaintiff, v. COLORADO MOUNTAIN COLLEGE DISTRICT, a Colorado junior college district, and Colorado Mountain College Board of Trustees, a Colorado junior college board of trustees, Defendants. |
| Court | U.S. District Court — District of Colorado |
Bradley C. Bartels, Martha R. Houser, Gregory J. Lawler, Sharyn E. Dreyer, Colorado Education Association, Denver, CO, for Plaintiff.
Daniel R. Satriana, Jr., Hall & Evans, L.L.C., Denver, CO, for Defendants.
In this employment termination dispute, defendants Colorado Mountain College District (CMC District) and Colorado Mountain College Board of Trustees (CMC Board)(collectively, CMC or defendants) move to dismiss claim seven and seek summary judgment on claims one, two, three, four, seven and eight brought by plaintiff Stuart R. Vanderhurst (Vanderhurst). Also pending is defendants' motion to strike certain allegations of Vanderhurst's Second Amended Complaint. Vanderhurst filed a cross-motion for summary judgment on claims three and four. I will deny the motion to dismiss and the motion to strike. I will grant defendants' summary judgment motion in part and deny it in part and will deny Vanderhurst's cross-motion.
The following facts are undisputed. Vanderhurst was employed by CMC as Professor and Clinician in Veterinary Technology (Vet Tech) for over 22 years pursuant to a series of annually renewable employment contracts. Pltf. Ex. 1-2. The Vet Tech program is a two-year program designed to train students to be veterinary assistants. Vanderhurst's 1995-1996 employment contract provides, in pertinent part, that Pltf. Ex. 1.
On December 14, 1995, CMC notified Vanderhurst that it was considering terminating his employment based upon the following allegations of misconduct:
A. Student allegations:
1. In or about October 1995, during a freshman class, Vanderhurst made reference to a "tampon" in the sewage plant, describing it as appearing to be a mouse or a rat;
2. In the same lecture period, Vanderhurst made a reference to oral and anal sex;
3. On another occasion, Vanderhurst stated "I will not make any blonde jokes" in response to a question posed by a female student and in the past has made other comments about blondes;
4. At various times, Vanderhurst used in class the terms "big chair," "big dog," and "floaters and sinkers" when discussing human feces;
5. On one occasion, Vanderhurst referred to a student as "Rosebud" and then attempted to cover up the comment by a similar reference to all other students;
6. Vanderhurst discussed in class, without the student's permission, a situation involving a student being bitten by a pig;
7. Vanderhurst used or referred to comments made by students on test evaluations in an inappropriate manner;
8. Vanderhurst requested students not to make comments regarding his classroom comments and behavior on their evaluations;
9. Vanderhurst made statements or comments about how "dumb" his students were;
10. Vanderhurst directed negative comments to students about staff member Laura Van Dyne (Van Dyne);
11. Vanderhurst used class time to discuss matters not relevant to course content;
12. Vanderhurst allowed sophomore students to address his freshman class during class time about matters that upset some students.
Pltf. Exs. 13-14. Also, there was an allegation that Vanderhurst withheld class lecture materials from Van Dyne.
The CMC administration investigated each complaint and determined that Vanderhurst had violated CMC's sexual harassment policy and Code of Ethics. After considering the severity of the violations and Vanderhurst's history of warnings and disciplinary action based on similar behavior, CMC determined that it would recommend Vanderhurst's dismissal.
B. Prior warnings and disciplinary actions
According to CMC, it relied on the following prior incidents in reaching its decision to recommend Vanderhurst's dismissal:
1. In 1989, Vanderhurst's supervisor, Assistant Dean of Instruction Thomas McBrayer (McBrayer) warned Vanderhurst about complaints received from students about his use of profanity and offensive language during classes. Apparently, Vanderhurst assured McBrayer that the behavior would stop. Pltf. Exs. 6; 7, p. 153; and
2. In 1991, Vanderhurst was suspended for part of the academic year because of acts of sexual harassment. Vanderhurst grieved the suspension through the CMC grievance policy. The suspension was upheld by CMC and, ultimately, the United States District Court for the District of Colorado in case number 91-S-2091.
On December 22, 1995, CMC notified Vanderhurst that he was suspended without pay pending further proceedings and that CMC intended to proceed with the dismissal recommendation. Pltf. Ex. 15. Vanderhurst grieved the dismissal recommendation pursuant to the CMC Board policy. Pltf. Ex. 13. His grievance proceeded through all levels of review, culminating in the CMC Board's October 23, 1996 finding that Vanderhurst's dismissal was justified. Pltf. 13, p. 6. On February 27, 1997, Vanderhurst filed an action in the Garfield County District Court, Colorado which was removed on March 20, 1997.
Defendants' motions to dismiss and strike certain allegations
In July 1997, CMC filed a motion to dismiss claims five, six, and seven. On March 13, 1998, pursuant to a stipulated motion to dismiss, I entered an Order dismissing, with prejudice, claims five and six and the individual defendants named in the complaint. Order, March 13, 1998. Hence, I will deny as moot the motion to dismiss as to claims five and six.
1. Claim seven for deprivation of the constitutional right to equal protection under state law and 42 U.S.C. § 1983
Defendants move to dismiss claim seven on the grounds that Vanderhurst does not allege that he was a member of a constitutionally protected group or that he was treated differently than other similarly situated employees. Rather, Vanderhurst alleges that defendants deprived him of his constitutionally protected right to equal protection of the law by "intentionally and vindictively carrying out a campaign to divest Vanderhurst, as a member of an individual class, of his employment...." Second Amended Complaint ¶ 161. I will deny the motion to dismiss claim seven.
"The equal protection clause is triggered when the government treats someone differently than another who is similarly situated." Buckley Constr., Inc. v. Shawnee Civic & Cultural Develop. Auth., 933 F.2d 853, 859 (10th Cir.1991) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). The more familiar equal protection claim asserts some invalid classification within which the plaintiff falls and typically fails where a plaintiff "does not allege a classification sufficient to invoke the equal protection clause." Buckley Construction, 933 F.2d at 859.
Here, a class-based equal protection infringement is not alleged. However, that does not end my analysis. "The question ... is whether the Equal Protection Clause protects not only against discrimination where victims are within an identifiable group, but also where the plaintiff alleges he is an individual victim of purposeful discrimination." Norton v. Village of Corrales, 103 F.3d 928, 933 (10th Cir.1996).
As the Tenth Circuit recognized in Buckley, the Equal Protection Clause protects not only against discrimination where victims within an identified classification or group are injured, but also where the plaintiff alleges "an element of intentional or purposeful discrimination" so as to invoke the clause to protect an individual victim. Buckley, 933 F.2d at 859, quoting Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944). In holding the claim defective in Buckley, the Tenth Circuit noted specifically that there was no allegation of such intentional or purposeful discrimination. Id. at 859.
Several years later, in an unpublished opinion, the Tenth Circuit relied on Snowden and Buckley in reversing the dismissal of an equal protection claim founded on allegations amounting to intentional or purposeful discrimination of an individual. Smith v. Eastern New Mexico Medical Center, 72 F.3d 138, 1995 WL 749712 (10th Cir.1995).
Generally, unpublished orders and judgments of the Tenth Circuit Court of Appeals are not binding precedents, except under the doctrines of law of the case, ...
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