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Kaufman v. University of Colorado

United States District Court, D. Colorado

November 5, 2015

UNIVERSITY OF COLORADO AT BOULDER, through its Board, the Regents of the University of Colorado, DR. ANDREW COWELL, in his Individual Capacity, and BRONSON HILLIARD, in his Individual Capacity, Defendants.



This case is before me on motions to dismiss filed by the captioned Defendants (whom I will call CU, Cowell, and Hilliard), in which they seek dismissal of the claims asserted against them in Plaintiff Daniel P. Kaufman’s Second Amended Complaint [Doc. # 46] (“complaint”). I have reviewed all briefing on the motions and determined that oral argument would not materially assist me in deciding them. I have jurisdiction under 28 U.S.C. § 1331.

As detailed below, I GRANT CU’s motion [Doc. # 54] and dismiss with prejudice the Rehabilitation Act claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6). I GRANT IN PART AND DENY IN PART Hilliard’s [Doc. # 51] and Cowell’s [Doc. # 55] motions; I dismiss with prejudice the 42 U.S.C. § 1983 claim against them pursuant to Rule 12(b)(6) but decline to exercise supplemental jurisdiction over, and therefore dismiss without prejudice, the state law claims against them.

I. Background

This lawsuit arises out of CU’s decision to exclude Kaufman, an Associate Professor of Philosophy at CU, from campus for 12 weeks in 2014, with pay, after he told Cowell, his department chair, that he would not kill himself, Cowell, or anyone else unless they were “truly evil” or “had Hitler’s soul.” See 2d Am. Compl. ¶¶ 4, 27, 29, 37 [Doc. # 46]. This comment followed years of other reported threats and disruptive behavior by Kaufman, including comments when CU was considering him for tenure regarding killing himself and others. See Ex. A to CU Mot. at 2 [Doc. # 53-1]. CU allowed Kaufman to return to campus after a risk assessment found insufficient evidence to conclude that he posed a risk of proactive violence toward people or property. 2d Am. Compl. ¶ 33 [Doc. # 46]; Ex. B to CU Mot. at 2 [Doc. # 53-2]. After some back-and-forth, CU allowed Kaufman to retain an accommodation it had previously granted him-a twice-weekly teaching schedule-based on his anxiety and depression. 2d Am. Compl. ¶¶ 22-24, 34, 43-46 [Doc. # 46]. The Boulder Daily Camera wrote about the exclusion and risk assessment, and Kaufman alleges that Hilliard (a CU spokesman) provided information to the paper. Id. ¶¶ 7, 41.

Although Kaufman remains employed by CU, he was humiliated by the episode. Id. ¶¶ 1, 47. He also alleges that he has lost some of his outside income, such as for speaking engagements, due to his damaged reputation. Id. ¶ 47. Kaufman now sues CU and, in their individual capacities, Cowell and Hilliard. Against CU, he brings discrimination and retaliation claims under the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. (Counts 1 and 2); against Cowell and Hilliard, claims for depriving him of his liberty interest in his good name and reputation without due process of law under 42 U.S.C. § 1983 (Count 3) and for intentional infliction of emotional distress under state law (Count 4); and against Hilliard alone, a state law claim for defamation per quod (Count 5). Id. ¶¶ 48-94.

II. Standard of Review

A court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To withstand a motion to dismiss, a complaint must contain enough allegations of fact “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plaintiff must plead “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 570). “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. The plausibility requirement serves to “weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success.” Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008). The requirement also helps to “avoid ginning up the costly machinery associated with our civil discovery regime on the basis of a largely groundless claim.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011) (citation omitted).

“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.” Twombly, 550 U.S. at 555 (internal quotations, citation, and brackets omitted). In deciding such a motion, the court assumes that the plaintiff’s well-pleaded factual allegations are true and views them in the light most favorable to the plaintiff. Iqbal, 556 U.S. at 679; Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012). By contrast, the court does not accept legal conclusions as true. Khalik v. United Airlines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Iqbal, 556 U.S. at 677). “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.” Khalik, 671 F.3d at 1191. In addition to considering the allegations contained within the four corners of the complaint, “the district court may consider documents referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do not dispute the documents’ authenticity.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002).

III. Facts

A. Complaint

The following facts are drawn from the complaint. Kaufman alleges that he began working at CU in 2004 as an Assistant Professor of Philosophy. 2d Am. Compl. ¶ 17 [Doc. # 46]. In 2006, he was diagnosed with major depression with psychotic features and severe anxiety. Id. ¶ 19. He has taken various medications and has been hospitalized multiple times as a result of these conditions. Id. “[B]eginning in 2006 and continuing to the present time, ” Kaufman “disclosed his major depression to his CU managers.” Id. ¶ 21. In 2009, CU granted Kaufman tenure and promoted him to Associate Professor. Id. ¶ 18. In 2012, CU granted Kaufman’s request for a “twice weekly (Tuesday/Thursday) teaching schedule” so he could attend medical appointments and “participate in wellness activities, some of which were only available on Mondays, Wednesdays, or Fridays, ” although he alleges that Graeme Forbes, the chair of his department at the time, was “hostile” toward this accommodation. Id. ¶¶ 22-24.

In 2013, Cowell became chair of the Philosophy Department. Id. ¶ 25. In January 2014, Cowell sent an email identifying Kaufman as “one of three problem people (the one with the ADA issues).” Id. ¶ 26. On February 18, 2014, Cowell and Kaufman “met for the first time.” Id. ¶ 27. Cowell “questioned Dr. Kaufman at length regarding his depression and anxiety, including asking whether Professor Kaufman had ever attempted suicide.” Id. Kaufman told Cowell that he “was seeing a psychiatrist and a psychologist and that he was taking medications that were effective in treating his symptoms.” Id. Kaufman then made the remarks that are at the center of this case, stating that he would not kill himself, Cowell, or anyone else unless they were “truly evil” or “had Hitler’s soul.” Id. ¶¶ 4, 27. At the end of the meeting, Cowell informed Kaufman that although Dr. Kaufman had been receiving an accommodation, it was not “official.” Id.

While “Dr. Cowell acknowledged that he did not consider Kaufman’s comments to be a threat, ” he nonetheless “conferred with various CU offices including the Office of Discrimination and Harassment, the CU risk assessment group, Dean Leigh, Provost Moore, and the Office of University Counsel.” Id. ¶ 28. “CU and Cowell decided that [he] should be excluded and banished from campus” and required to “undergo a ‘violence assessment’ by professional psychologists before he would be allowed to return to work.” Id. Kaufman alleges that they did so “because they stereotyped [him] as mentally ill and dangerous due to his disabilities of depression and anxiety.” Id. Kaufman alleges that “non-disabled faculty members had engaged in alarming behavior before, ” but “CU has rarely excluded or banished a faculty member from campus or required a ‘violence assessment.’” Id.

CU notified Kaufman of his exclusion on March 4, 2014. Id. ¶ 29. Cowell stopped by Kaufman’s office and summoned him to a meeting with administrators at which he was given a letter from CU Provost Russell Moore explaining this decision. Id. ¶ 30; see also infra Sec. III.B. On the way to the meeting, Cowell and Kaufman stopped by Kaufman’s classroom and Kaufman “turned the class over to one of his teaching assistants.” Id. ¶ 29. Police officers stood around the classroom (in view of students), were at the meeting with administrators, and accompanied Kaufman (again, in view of students) after the meeting to retrieve his laptop and bike from a student lounge. Id. ¶¶ 29-30. That same day, Cowell sent an email to faculty in the Philosophy Department stating that Kaufman was on leave, that he had been excluded from campus, and that anyone who saw him on campus should “dial 911 and report [it] to the CU Police Department immediately.” Id. ¶ 31.

On March 6, 2014, the Camera reported that CU spokesman Ryan Huff “confirmed that a ‘personnel action [occurred] on our campus’ and that CU had their ‘police department in the area in case they’re needed.’” Id. ¶ 32. The “reason for the exclusion was not discussed, ” but Kaufman alleges that readers “believed that [he] must have engaged in gender discrimination/sexual misconduct” because a report by the American Philosophical Association had identified problems in this regard in CU’s Philosophy Department. Id.

During his exclusion, Kaufman underwent the risk assessment (or violence assessment, as he sometimes refers to it) with two psychologists, John Nicoletti and Sara Garrido. Id. ¶ 33. “CU demanded this assessment even though Dr. Kaufman provided letters from his treating physicians confirming that he did not pose a threat to himself or others and was in possession of this material prior to or during the assessment.” Id. Also during his exclusion, Kaufman appealed the exclusion order. Id. ¶ 35. In addition, he filed a charge of discrimination with the Equal Employment Opportunity Commission and a notice of intent to sue pursuant to the Colorado Governmental Immunity Act, see Colo. Rev. Stat. § 24-10-109, both alleging disability discrimination and retaliation by CU. 2d Am. Compl. ¶ 36 [Doc. # 46]. Kaufman later amended his EEOC charge and notice of intent to sue. Id. ¶¶ 40, 42.

On May 21, 2014, CU’s chancellor lifted the exclusion order. Id. ¶ 37. On July 31, 2014, the Camera published an article with information provided by Hilliard regarding the risk assessment that Kaufman underwent. Id. ¶ 41. That article is described in more detail below. See infra Sec. III.B. On January 30, 2015, CU told Kaufman that he would be required to teach three times a week beginning in the fall of 2015; however, before the semester began, and after receiving more information about his conditions from his psychiatrist, CU agreed that he could retain his twice-weekly teaching schedule. Id. ¶¶ 44-46. Kaufman does not allege that his twice-weekly teaching schedule ever actually changed.

Kaufman was “severely humiliated as a result of his exclusion and Defendant CU’s subsequent press releases and the press coverage.” Id. ¶ 47. He alleges that faculty members at another university told him that there was “little interest in his candidacy” for a visiting professor position “given the media reports regarding his exclusion.” Id. He alleges that he was disinvited from giving a particular presentation for the same reason, resulting in the loss of travel expenses and an honorarium. Id. He alleges that he has received no invitations to give presentations for the 2014-2015 academic year even though he normally receives at least two or three. Id. He alleges that he has had to “pay out-of-pocket approximately $100 to date” for a new medication to treat posttraumatic stress disorder and anxiety resulting from Defendants’ conduct. Id. Finally, he alleges that he has had trouble finishing an editing project, causing a “delay in being paid” for the project. Id.

B. Additional Documents

In addition to the complaint, I will consider the following four documents that Defendants have submitted with their briefing because Kaufman references them in his complaint, he has not disputed their authenticity, and they are central to his claims. See Jacobsen, 287 F.3d at 941; VanLandingham v. Grand Junction Reg’l Airport Auth., 603 F. App’x 657, 661 (10th Cir. 2015) (unpublished) (district court properly considered document attached to defendant’s Rule 12(b)(6) motion without converting motion into one for summary judgment where document was referred to in complaint, was central to ...

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