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Jemaneh v. The University of Wyoming

United States District Court, D. Colorado

March 11, 2015

THE UNIVERSITY OF WYOMING, THE UNIVERSITY OF WYOMING COLLEGE OF HEALTH SCIENCES, THE UNIVERSITY OF WYOMING SCHOOL OF PHARMACY, TOM BUCHANAN, in his official and individual capacity, NELL RUSSELL, in her official and individual capacity, JOSEPH F. STEINER, in his official and individual capacity, DAVID L. JONES, in his official and individual capacity, JOHN H. VANDEL, in his official and individual capacity, BEVERLY A. SULLIVAN, in her official and individual capacity, JAIME R. HORNECKER, JANELLE L. KRUEGER, in her official and individual capacity, CARA A. HARSHBERGER, in her official and individual capacity, AMY L. STUMP, in her official and individual capacity, AGATHA CHRISTIE NELSON, in her official and individual capacity, KATHLEEN A. THOMPSON, in her official and individual capacity, and MARIA A. BENNET, in her official and individual capacity, Defendants

Tewodros G. Jemaneh, Plaintiff, Pro se.

For The University of Wyoming, The University of Wyoming College of Health Sciences, The University of Wyoming School of Pharmacy, Tom Buchanan, in his official capacity, Tom (I) Buchanan, in his individual capacity, Nell Russell, in her official capacity, Nell (I) Russell, in her individual capacity, Joseph F. Steiner, in his official capacity, Joseph (I) F. Steiner, in his individual capacity, David L. Jones, in his official capacity, David (I) L. Jones, in his individual capacity, John H. Vandel, in his official capacity, John (I) H. Vandel, Beverly A. Sullivan, in her official capacity, Beverly (I) A. Sullivan, Jaime R. Hornecker, in her official capacity, Jaime (I) R. Hornecker, Janelle L. Krueger, in her official capacity, Janelle (I) L. Krueger, in her individual capacity, Cara A. Harshberger, in her official capacity, Cara (I) A. Harshberger, in her individual capacity, Amy L. Stump, in her official capacity, Amy (I) L. Stump, in her individual capacity, Agatha Christie Nelson, in her official capacity, Agatha (I) Christie Nelson, in her individual capacity, Kathleen A. Thompson, in her official capacity, Kathleen (I) A. Thompson, in her individual capacity, Maria A. Bennett, in he official capacity, Maria (I) A. Bennett, in her individual capacity, Defendant: Melinda Sue McCorkle, LEAD ATTORNEY, Stephen H. Kline, Kline Law Office, Cheyenne, WY.


RAYMOND P. MOORE, United States District Judge.

Plaintiff Tewodros G. Jemaneh, an Ethiopian-American, filed this action alleging he was wrongfully terminated from the pharmacy program at the University of Wyoming in violation of various federal and state laws. By Order dated May 30, 2013, some of Plaintiff's claims were dismissed. (ECF Nos. 71 & 83.) This matter is now before the Court on Defendants' Motion to Dismiss all Remaining Claims (" Motion" ) (ECF No. 91), filed pursuant to Fed.R.Civ.P. 12(b)(1), (b)(2), and 12(b)(6), seeking dismissal based on failure to state a claim, qualified immunity, Eleventh Amendment immunity, and the Wyoming Governmental Claims Act (" WGCA" ). Upon consideration of Defendants' Motion, Plaintiff's Response (ECF No. 128-1), Defendants' Reply, all relevant parts of the Court's file, and the applicable statutes, rules, and case law, the Court GRANTS the Motion, but grants Plaintiff leave to refile certain claims as against Defendant Kathleen A. Thompson only.


On September 7, 2012, Plaintiff filed this action asserting 14 claims for relief. In the Complaint, Claims 1 through 9 allege various violations of 42 U.S.C. § 1983. Claims 10 and 11 allege violations of 42 U.S.C. § 1985(3). Claim 12 alleges a violation of 42 U.S.C. § 1986. Claim 13 alleges intentional infliction of emotional distress, and Claim 14 alleges negligent infliction of emotional distress. (ECF No. 1.)

On February 8, 2013, Defendants filed a motion to dismiss. (ECF No. 49.) In this first motion, Defendants argued that: (1) Plaintiff's § 1983 and § 1985 claims (Claims 1-11) should be dismissed against the University defendants and individual defendants in their official capacities based on Eleventh Amendment immunity; and (2) Plaintiff's § 1986 claim (Claim 12) should be dismissed as time-barred. The first motion to dismiss was referred to the Magistrate Judge for a report and recommendation.

In response to the first motion, Plaintiff asserted that he mislabeled the Fourth and Fifth Claims as § 1983 claims when they are 42 U.S.C. § 2000d claims, and the Seventh and Eighth Claims as § 1983 claims when they are § 1981 claims. (ECF No. 61.) In his recommendation on the first motion to dismiss, the Magistrate Judge accepted Plaintiff's categorization of the four claims. As categorized, the Magistrate Judge recommended the claims brought under § § 1983 and 1985 be dismissed based on Eleventh Amendment immunity as against the University entities and the individual defendants in their official capacities. The Magistrate Judge also recommended the § 1986 claim be dismissed as time-barred. (ECF No. 71.) No party filed an objection to the recommendation. Thereafter, the Court accepted and adopted the recommendation, dismissing Claims 1, 2, 3, 6, 9, 10, and 11 against the University defendants and individual defendants in their official capacities; and Claim 12 against all defendants. (ECF No. 83.)

The Motion currently before the Court is filed pursuant to Fed.R.Civ.P. 12(b)(1) (lack of subject matter jurisdiction), (b)(2) (lack of personal jurisdiction), and (b)(6) (failure to state a claim), seeking a dismissal of all remaining claims.[1] As the Motion does not address personal jurisdiction, that issue will not be considered.

The Motion was filed over the Plaintiff's objections that a " second" Rule 12(b)(6) motion to dismiss may not be filed under the Federal Rules of Civil Procedure. Those objections and arguments have been addressed and rejected. Plaintiff continues to object but, as before, the Court finds the objection without merit. See Albers v. Bd. of Cnty. Comm'rs of Jeff. Cnty., 771 F.3d 697, 703 (10th Cir. 2014) (Recognizing " Rule 12(h)(2) allows parties to bring the defense of failure to state a claim in post-answer motions or at trial, and Rule 12(h)(1) expressly exempts Rule 12(b)(6) motions from its waiver rule." ) Although Defendants' Motion should have been filed pursuant to Rule 12(c) rather than Rule 12(b)(6), the standards for reviewing a Rule 12(c) and 12(b)(6) motion are the same and the misnomer does not affect Plaintiff's substantive rights. See Ramirez v. Dep't of Corr., 222 F.3d 1238, 1240 (10th Cir. 2000); Albers, 771 F.3d at 703-04. Accordingly, the Defendants' Motion is properly before this Court for consideration.

Plaintiff's Response also argues Defendants' current Eleventh Amendment immunity argument as to the § 1981 claims (Seventh and Eighth Claims) is time barred because it was not brought in the first motion to dismiss. Plaintiff's argument, however, fails for a number of reasons. First, as shown by the procedural history, the Eleventh Amendment argument as to the § 1981 claims could not have been raised in the first motion to dismiss as it was not until the Magistrate Judge issued its Order that Plaintiff's Seventh and Eighth Claims, stated as § 1983 claims in the Complaint, were categorized as § 1981 claims. Next, as discussed above, Defendants may assert a Rule 12(b)(6) defense under Rule 12(c). Finally, an analysis of Eleventh Amendment immunity is considered under Rule 12(b)(1), not Rule 12(b)(6). See Elephant Butte Irrig. Dist. of N.M. v. Dep't of Interior, 160 F.3d 602, 607 (10th Cir. 1998) (" We review de novo a district court's consideration of subject matter jurisdiction in the context of a Fed.R.Civ.P. 12(b)(1) motion to dismiss based on Eleventh Amendment immunity." ); Webb v. Jones, No. 12-6250, 525 F.App'x 773, 775, 2013 WL 2168143, at *1 (10th Cir. May 21, 2013) (same) (unpublished). As such, Defendants are not precluded from raising the defense in their Motion.


Plaintiff alleges that the persons with whom he came into contact academically during his last year at the pharmacy program at the University of Wyoming engaged in discriminatory or other unlawful conduct. The persons at issue are three entities and 13 individuals. Those entities are defendants the University of Wyoming (" UOW" ), the University of Wyoming College of Health Sciences (" UWCHS" ), and the University of Wyoming School of Pharmacy (" UWSOP" ) (collectively, the " University" ). The individuals are nine " Supervisory Defendants," i.e., Defendants Buchanan, Russell, Steiner, Jones, Vandel, Sullivan, Krueger, Harshberger, and Bennett (Complaint, p. 8), and four instructors (Defendants Hornecker, Stump, Nelson and Thompson) (collectively, " Individual Defendants" ) (the University and Individual Defendants will collectively be referred to herein as " Defendants" ). During the relevant time period, except for Defendant Thompson, the Individual Defendants worked for UOW or UWSOP in Wyoming. Defendant Thompson is a Caucasian female who worked for the UWSOP as a Clinical Assistant Professor of Pharmacy Practice at the Swedish Family Medicine Residency Program in Colorado. (Complaint, pp. 7, 39.)

Plaintiff was one of 49 pharmacy students at the UWSOP program. Plaintiff is an Ethiopian-American, three of the other students are Caucasians, but the 45 other students' races or national origins are unknown. (Complaint, e.g., pp. 37-39, 49, 67.) Defendant Thompson taught the Internal Medicine I rotation course at Swedish from May 7, 2010[3] to April 1, 2011. (Complaint, p. 7.) She was apparently the preceptor for three interns, Plaintiff and two Caucasians. (Complaint, e.g., pp. 37-39, 49, 67.)

Plaintiff alleges he was subjected to two " discriminatory terminations." The first termination allegedly occurred in the spring of 2010, while the second allegedly occurred in April 2011. (Complaint, pp. 10, 33, 34, 50, 69.)

Plaintiff asserts his first " discriminative termination" was caused by instructors Stump, Hornbecker, and Nelson,[4] and the Dean of UWSOP, Vandel. (Complaint, pp. 5, 10-12.) According to Plaintiff, in the spring of 2010, he took the Pharmacokinetics course in which three examinations were given. Plaintiff received a 91% on his first examination, but his instructors, Defendants Stump, Hornbecker, and Nelson, denied Plaintiff credit for his correct works in the second and third examinations, resulting in a failing grade for the course. (Complaint, pp. 10-11.) Dean Vandel thereafter notified Plaintiff that he was terminated from the pharmacy program. (Complaint, p. 11.)

Plaintiff, however, complained to Defendant Steiner, Dean of UWCHS. (Complaint, pp. 5, 11.) He also complained to Dean Vandel and threated to sue unless he was given additional credit and his termination withdrawn. Thereafter, Plaintiff was advised that his grade had been changed from a " D" to " C," a passing grade, and Dean Vandel withdrew Plaintiff's termination from the pharmacy program. (Complaint, pp. 11-12.)

The second alleged " discriminative termination" was made by Defendant Thompson in the Internal Medicine I rotation course. Defendant Thompson was new, inexperienced, and prone to making mistakes in teaching Plaintiff's class. (Complaint, pp. 13-15.) Indeed, Plaintiff's classmates complained about Defendant Thompson's errors which she then had to correct. (Complaint, p. 15.) With respect to Plaintiff specifically, Defendant Thompson gave Plaintiff " arbitrary and capricious" grades and then made random changes to such grades. (Complaint, p. 16.) She also assigned Plaintiff a failing grade in the clinical and non-clinical sections of the Internal Medicine I course. (Complaint, p. 17.) According to Plaintiff, this is how the grade was assigned.

The Internal Medicine course had a midpoint and final evaluation. (Complaint, p. 17.) On March 17, 2011, just before the midpoint evaluation, Plaintiff met with Defendant Thompson at her request so that she could observe him working on one of his patients. (Complaint, pp. 23-24, 39-40.) Defendant Thompson told Plaintiff that she wanted to do so in order to help him with the course. Plaintiff's Caucasian classmates were not required to participate in an " observational meeting," but there are no factual allegations showing how his classmates were performing academically. (Complaint, pp. 39-41.)

After the observation, Plaintiff met with Defendant Thompson in her office where, instead of providing objective criticism or feedback, Defendant Thompson insulted Plaintiff with statements such as he was the " worst" student. (Complaint, p. 26.) When Defendant Thompson asked Plaintiff how he thought he was doing academically, Plaintiff expressed his " personal opinion" that Defendant Thompson had " very high expectations for interns." (Complaint, pp. 26-27.)

On the next day, Friday, March 18, 2011, Defendant Thompson met with Plaintiff for his midpoint evaluation meeting where she gave Plaintiff a failing grade. (Complaint, e.g., pp. 19, 20, 22, 72.) Plaintiff's failing midpoint grade was based in part on Defendant Thompson's observations. (Complaint, pp. 24, 26.) During the evaluation, Defendant Thompson " required" Plaintiff to sign a remediation plan. (Complaint, p. 32.) The remediation plan's provisions, essentially, requested Plaintiff to acknowledge that he was failing his rotation and to accept responsibility for the same; that he would be assessed each week following patient care; that he would not pass if he did not adhere to the plan; and that he understood the magnitude of the plan. (Complaint, pp. 32-33.) Plaintiff, however, refused to sign the plan. (Complaint, pp. 33, 83.)

Plaintiff thereafter submitted " to almost all of the Defendants" complaints of " unfair and discriminative treatment," seeking removal of the failing midpoint grade. (Complaint, pp. 29, 30.) " Defendants," however, rejected Plaintiff's complaints. (Complaint, p. 30.)

On or about April 1, 2011, Defendant Thompson assigned Plaintiff a final failing grade. Plaintiff was officially terminated from the pharmacy program by letter dated April 20, 2011. (Complaint, p. 69.)

Plaintiff asserts that, from the outset, Defendant Thompson denied Plaintiff " equal learning opportunities" based on his race and national origin, as compared to his two Caucasian classmates who were also pharmacy interns. (Complaint, pp. 34-36.) In support of this assertion, Plaintiff alleges that Defendant Thompson did not timely provide Plaintiff and his classmates with passwords (Complaint, pp 34-35); did not allow him to take notes earlier than his scheduled time at Swedish Medical Center (Complaint, pp. 35-36)[5]; did not allow him to print pages other than the medication list, but believes that Defendant Thompson allowed his classmates to print pages other than the medication list page because she " should have seen" them doing so from her office (Complaint, p. 37); did not allow Plaintiff and his classmates to come to the pharmacy interns' office before 7:00 a.m. (Complaint, p. 37); and did not allow Plaintiff and his classmates to keep their early hour's access door key (Complaint, p. 71). Plaintiff also believes that Defendant Thompson assigned his two Caucasian classmates a better grade for the Non-Clinical Section of the course, even though his presentation was " far better." (Complaint, p. 37.)

Plaintiff also asserts that, after the March17, 2011, examination and/or observation, Defendant Thompson asked Plaintiff for the specific patient's monitoring forms from her observation. Thereafter, Plaintiff overheard his two Caucasian classmates discussing selecting patient monitoring forms they wished to submit to Defendant Thompson. Defendant Thompson, however, did not allow Plaintiff to select and submit an additional monitoring form, telling him she had enough documents. (Complaint, p. 38.)

Plaintiff also alleges Defendant Thompson used a " New Point Assignment System," a more stringent system, to evaluate Plaintiff's academic performance but used the USWOP standardized evaluation to evaluate Plaintiff's Caucasian classmates. (Complaint, pp. 17, 29, 43.) Under this system, Plaintiff would be assigned a grade of 100%, 50%, or minus 100%, as the system does not allow any grade in between those three percentages. (Complaint, p. 44.) However, according to Plaintiff, Defendant Thompson assigned Plaintiff a failing midpoint grade of 66% (Complaint, p. 42 at ¶ 122) and a failing final grade of 64% (Complaint, p. 23 at ¶ 63(i)), showing the more stringent system was not used to grade Plaintiff. The New Point System was also not approved or provided by the UWSOP. (Complaint, p. 18.)

Because of his termination, Plaintiff did not complete Internal Medicine II and, therefore, could not graduate. ( See Complaint, p. 68.) Plaintiff asserts that a female pharmacy intern had failed Internal Medicine Rotation II and, in order to accommodate her, the UWSOP terminated Plaintiff from the pharmacy program so that she could take his place. (Complaint, p. 68.) That rotation was scheduled for April 4-April 29, 2011. (Complaint, p. 68.)

Plaintiff alleges he was not notified of the UWSOP Grievance Policies, which included a right to appeal his grades, until after he received his final grade. (Complaint, e.g., p. 52.) Nonetheless, the policies were received, and Plaintiff utilized them to file complaints of discrimination and to challenge his grades. Plaintiff was apparently afforded hearing(s) on his complaints. (Complaint, pp. 55-59, 62-64.) Defendants Thompson, Krueger, Vandel, Sullivan, and Bennett, however, did not follow one or more of the Grievance Polices. Further, Defendants Vandel and Krueger had only bachelor's degrees, and Defendant Russell had no formal legal education, but they investigated and decided Plaintiff's disputes. (Complaint, e.g., pp. 52-55, 57, 59, 60.) In summary, Plaintiff challenges the qualifications of the final decision makers, and disagrees with the decisions on his complaints, alleging one or more Defendants improperly believed Defendant Thompson's assessment of Plaintiff's performance in affirming his academic dismissal.


A. Fed.R.Civ.P. 12(b)(6) and 12(c)

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain " a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A motion for judgment on the pleadings under Rule 12(c) is determined under the same standard as a motion to dismiss under Rule 12(b)(6). Ramirez, 222 F.3d at 1240. Pursuant to Rule 12(b)(6), a complaint must be dismissed if it does not plead " enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . ." Id. at 555 (internal citations and brackets omitted). " Factual allegations must be enough to raise a right to relief above the speculative level." Id. " [A] plaintiff must 'nudge [ ] [his] claims across the line from conceivable to plausible' in order to survive a motion to dismiss. . . . Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (internal citation and quotation omitted; italics in original).

The Tenth Circuit Court of Appeals has held " that plausibility refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible." Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotation marks and citation omitted). The Tenth Circuit has further noted " that [t]he nature and specificity of the allegations required to state a plausible claim will vary based on context." Id. (Internal quotation marks omitted.) Thus, the Tenth Circuit " concluded the Twombly/Iqbal standard is 'a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the [Supreme C]ourt stated will not do.'" Id. (quoting Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008)).

For purposes of a motion to dismiss pursuant to Rule 12(b)(6), the court must accept all well-pled factual allegations in the complaint as true and resolve all reasonable inferences in the plaintiff's favor. Morse v. Regents of the Univ. of Colo., 154 F.3d 1124, 1126-27 (10th Cir. 1998); Seamons v. Snow, 84 F.3d 1226, 1231-32 (10th Cir. 1996). However, " when legal conclusions are involved in the complaint 'the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to [those] conclusions' . . . ." Khalik, 671 F.3d at 1190 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). " Accordingly, in examining a complaint under Rule 12(b)(6), [the court] will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable." Id.

B. Plaintiff's Pro Se Status

Plaintiff is proceeding pro se. The court, therefore, reviews his pleadings and other papers liberally and holds them to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (holding a pro se complainant's allegations to less stringent standards than formal pleadings drafted by lawyers); Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). A pro se litigant's conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983); see Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (stating a court may not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf) (citation omitted); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (stating a court may not construct ...

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