United States District Court, D. Colorado
RECOMMENDATION ON MOTIONS TO DISMISS
B. Shaffer, United States Magistrate Judge
Grant Neal alleges that the Board of Governors of the
Colorado State University system (hereinafter referred to as
the “Board of Governors”), Colorado State
University-Pueblo (“CSU-Pueblo”) and five
individuals in their official capacities for CSU-Pueblo
(collectively, the “State Defendants”) violated
federal and state laws in erroneously finding him responsible
for sexual misconduct and suspending him from CSU-Pueblo. Mr.
Neal also claims that through its enforcement of a 2011
“Dear Colleague Letter” (“2011 DCL”),
the U.S. Department of Education (“DOE”), its
Office of Civil Rights (“OCR”) and related
federal Defendants pressured the State Defendants to
discipline males accused of sexual misconduct, such as
Plaintiff, regardless of whether the allegations had merit.
Plaintiff seeks judicial review of whether DOE violated the
Administrative Procedures Act in promulgating the 2011 DCL.
case is before the court on Judge Raymond P. Moore's
referral of Defendants' motions (docs. #27, 31) to
dismiss the Amended Complaint (“AC, ” doc. #8).
Plaintiff waived oral argument (doc. #75), and Defendants did
not oppose that waiver. For the reasons that follow, the
court recommends granting in part and denying in part the
State Defendants' motion. The court recommends granting
the Federal Defendants' motion.
court draws the following allegations from the AC, which it
must accept as true for purposes of the Rule 12(b)(6)
female student in the CSU-Pueblo athletic training program
(referred to anonymously as “Complainant”)
alleged to the director of athletic training (Dr. Roger
Clark) that on Saturday, October 25, 2015, Plaintiff had
raped another female student in the athletic training
program, referred to anonymously as Jane Doe. AC at
¶¶ 9-10, 90. Plaintiff alleges that his sexual
conduct with Ms. Doe was consensual and that Ms. Doe stated
and acknowledged several times that their sexual conduct was
consensual. AC at e.g., ¶¶ 1, 9, 85,
91-95, 98-99, 114. Plaintiff alleges that “[g]iven
Plaintiff's status as a high profile football player,
Complainant presumed that Plaintiff had engaged in
non-consensual contact with Jane Doe.” AC at ¶ 89.
made the allegations without informing Ms. Doe or Plaintiff.
Id. at ¶ 91. Her allegations were based upon a
conversation she had with Ms. Doe on October 26, occasioned
by Complainant noticing a “hickey” on Ms.
Doe's neck. Id. at ¶ 89. The athletic
training program prohibits trainers (such as Ms. Doe) from
“fraterniz[ing] with athletes, and … doing so
could result in severe consequences including removal from
the Athletic Training Program.” Id. at ¶
73. See also Id. at e.g., ¶¶ 80,
102. Ms. Doe allegedly had “described the encounter [in
which she received the hickey] to Complainant in a manner
that would conceal her relationship with Plaintiff, while
also protecting her position in the program.”
Id. at ¶ 113.
sometime on October 27, 2015, Dr. Clark reported the alleged
incident to his wife, Laura Clark, another faculty member in
the program (Id. at ¶ 97), and to Defendant
Roosevelt Wilson, the CSU-Pueblo director of the office of
equal opportunity/affirmative action and Title IX
coordinator. AC at ¶ 100. On October 27, 2015, Mr.
Wilson began investigating the allegations and met with Ms.
Doe. Id. at ¶¶ 112, 114. That same day,
Marie Humphrey issued a notice of investigation to Plaintiff.
The notice stated “that he was ‘being
investigated for possible alleged violation of the Code of
Student Conduct including Non-consensual Contact and
Non-Consensual Sexual Intercourse.' [sic].”
Id. at ¶ 117. The notice also prohibited him
from further contact with Jane Doe. Id.
alleges that the CSU-Pueblo Code of Student Conduct (the
“Code”) and Sexual Misconduct Policy (the
“Policy”) that he received upon acceptance to the
school provide accused students the following procedures
“The right to be fully informed of the nature and
extent of all alleged violations contained within the
complaint;” “The right to be present for all
testimony given and evidence presented before a hearing
authority;” “The right to present witnesses and
documentary evidence;” “The right to question
and/or challenge witnesses and documentary evidence presented
by others;” [and] “The right not to have any
personal information released by the University to the public
without prior consent.”
¶ 56 (in part). He further alleges that the
“Policy provides that students accused of sexual
misconduct are entitled to the hearing process set forth in
the Code.” Id. at ¶ 58. “During a
disciplinary hearing, both parties may provide information to
the hearing authority for consideration, including witness
statements and evidence.” Id. at ¶ 64.
“Determinations of responsibility are made using the
preponderance of the evidence standard, which is defined by
the Code as: ‘whether it is more likely than not that a
Respondent committed the alleged violation(s).'”
Id. at ¶ 65. The Policy also provides for
appeals on several grounds. Id. at ¶ 68.
alleges that from inception to completion, CSU-Pueblo
railroaded him in order to find him guilty of the accused
sexual misconduct regardless of the lack of evidence or merit
in the allegations. He alleges that CSU-Pueblo did so because
of gender bias against accused male athletes, the
school's self-interest in its reputation, and the
school's financial interest (i.e., its federal
funding) in demonstrating to Federal Defendants that it would
discipline accused males. He alleges for instance that
Wilson failed to consider Jane Doe's motivation for
insinuating to Complainant that something improper may have
occurred, when Complainant confronted Jane Doe about the
hickey on her neck. Namely, recognizing the potential
consequences of being disciplined for engaging in a
relationship with a football player, Jane Doe described the
encounter to Complainant in a manner that would conceal her
relationship with Plaintiff, while also protecting her
position in the program.
In fact, at no time did Jane Doe tell Defendant Wilson that
she was involved in non-consensual sex with Plaintiff. To the
contrary, at her meeting with Defendant Wilson on October 27,
Jane Doe informed Mr. Wilson: “our stories are the same
and he's a good guy. He's not a rapist, he's not
a criminal, it's not even worth any of this
hoopla!” Nonetheless, CSUP pursued an investigation
calculated to lead to the foregone conclusion that Plaintiff
was responsible for the misconduct alleged.
Defendant Wilson accepted the statements of subjective,
hearsay witnesses as credible and ignored evidence tending to
exculpate Plaintiff, all while demonstrating an inherent
prejudice against male athletes.
AC at ¶¶ 113-116.
the investigation, Wilson met with Plaintiff twice. In the
first meeting, October 29, 2015, Plaintiff alleges that
Wilson began the meeting by interrogating Plaintiff, asking
him three times: “Did you rape [Jane Doe]?” By
the third time, Defendant Wilson was standing up and looming
over Plaintiff, apparently intending to intimidate him. * * *
Defendant Wilson indicated to Plaintiff that the Complainant
had described the encounter as an egregious act of rape and
threatened that “he would get to the bottom of
AC at ¶¶ 122, 124. For the second meeting, November
20, 2015, Plaintiff brought the head football coach, John
Wristen, as his advisor. During the November 20 meeting
“Defendant Wilson indicated that there were ultimately
four individuals who came forward to report the encounter to
the Title IX office.” Id. at ¶ 132.
However, until Wilson completed the investigation, he failed
to inform Plaintiff who the four witnesses were. In addition,
at the November 20 meeting,
[w]hen Coach Wristen tried to make a statement in
Plaintiff's defense, Defendant Wilson responded that he
was “The Chief, ” in a clear effort to assert his
authority over a fellow CSUP colleague.
¶ 131. Plaintiff further alleges that during the
investigation, “Defendant Wilson professed that he was
in charge of the investigation and would be the only person
to declare someone a witness in this matter, ” which
“depriv[ed] Plaintiff of the opportunity to identify
witnesses in support of his defense.” Id. at
his investigation, Wilson prepared a report dated December 3,
2015. AC at ¶ 112. Wilson provided his report to
Defendant Jennifer DeLuna, the CSU-Pueblo director of
diversity and inclusion. That same day, Plaintiff was given
less than 24 hours' notice that Ms. DeLuna would hold an
“informal disciplinary hearing.” Id. at
¶ 133. Plaintiff alleges that the Code of Conduct does
not define such a procedure (Id.), and that the Code
required the notice of hearing to include “a detailed
description of the allegations to be considered.”
Id. at ¶ 135. The notice, however, stated only
the same description as the notice of investigation: that
Plaintiff “may have violated the Code of Student
Conduct, Sexual Misconduct (non-consensual sexual
intercourse).” Id. Plaintiff alleges that the
short notice deprived him of the ability to formulate a
December 4, 2015 DeLuna held the informal hearing with
Plaintiff and his advisor, Chris Turner. Plaintiff alleges
this “hearing” was “in actuality …
nothing more than an investigatory meeting …[and] a
sham” (Id. at ¶ 136) in which he was
handed Wilson's 14 page investigative report for the
first time, tasked with reviewing it, and was not permitted
to copy it or take notes. Id. at ¶ 139.
Plaintiff made “repeated requests [for a copy of the
report … but] he did not obtain a full copy of the
Report until after his appeal was denied.” Id.
at ¶ 151.
informal hearing was the first time that CSU-Pueblo informed
Plaintiff of the identities of the witnesses with whom Wilson
had spoken in the investigation. Id. and ¶ 149.
The witnesses identified in the Wilson report apparently
included the Complainant, Ms. Doe, Dr. Clark, and Mrs. Clark.
See, e.g., Id. at ¶¶ 141, 144, 145.
However, Plaintiff also alleges that the report “failed
to disclose to Plaintiff the identities of the remaining
adverse witnesses referenced in the Report, thus hindering
Plaintiff's ability to challenge their credibility and
confront all witnesses against him.” Id. at
DeLuna did not hear from any witnesses nor (apparently)
receive any documentary evidence at the December 4 meeting.
Plaintiff informed DeLuna in this meeting that while
Wilson's report mischaracterized Ms. Doe as not intending
to have sex at all the evening of October 25, “Jane Doe
clearly stated that she advised Plaintiff that she did not
want to have unprotected sex because she was not on birth
control; she never stated that she did not want to have sex
at all.” AC at ¶ 141.
the December 4 meeting, Plaintiff also alleges that
[u]pon learning that Dr. Clark and Mrs. Clark had reported
the most egregious and damaging allegations to CSUP's
Title IX office, Plaintiff expressed his concern regarding a
potential conflict of interest; namely, Dr. Clark and Mrs.
Clark hold Jane Doe's degree, as a member of the Athletic
¶ 148. Plaintiff alleges that both Dr. and Mrs. Clark
knew only what the Complainant had said to Dr. Clark, and
that both Dr. and Mrs. Clark coerced or pressed Ms. Doe into
believing or admitting that the sexual conduct in question
was inappropriate or improper. Id. at ¶¶
report included Ms. Clark's comment recognizing that Ms.
Doe did not want Plaintiff to be investigated. Id.
at ¶ 147.
December 8, 2015, Plaintiff had “a follow up meeting to
clarify the information provided by Plaintiff on December 4,
2015. Plaintiff reiterated that he did not penetrate Jane Doe
prior to putting on a condom, and that they engaged in
consensual sexual activity.” Id. at ¶
[W]hen Plaintiff questioned Defendant DeLuna at the meeting
of December 8, 2015 regarding whether he could identify
witnesses to her or whether she needed to speak with anyone
about his character, she declined, stating her review was
based only on what was in the file and the information
gathered at the Hearing.
Id. at ¶ 143.
December 18, 2015, Defendant DeLuna notified Plaintiff that
he had been found responsible for ‘Sexual
Misconduct' in violation of CSUP's Code of Conduct
(the ‘Decision'). CSUP assessed an unwarranted and
severe penalty of suspension for the duration of Jane
Doe's education at CSUP (the
‘Sanction').” AC at ¶ 11. The Decision
“repeatedly refers to Jane Doe as the complainant, when
in fact, the complainant was an uninvolved
third-party.” Id. at ¶ 153. Plaintiff
alleges the Decision was erroneous. The Decision imposed
sanctions, including “suspension pending Jane Doe's
graduation or disenrollment from campus.” Id.
January 6, 2016, Plaintiff appealed to Marie Humphrey, the
CSU-Pueblo Dean of Students and Residence Life. On January
19, 2016, Humphrey denied the appeal. Plaintiff alleges that
the procedural flaws and bias continued on his appeal when
the hearing officer did not consider material evidence that
Plaintiff offered from his roommates, of which Plaintiff had
been unaware prior to the Decision. AC at ¶ 186 (third
Because of the Decision and Sanction,
Plaintiff is unable to gain admission to another university
to obtain his degree and the significant monies spent on
obtaining a college education at CSUP have been squandered.
In addition to the damages sustained by Plaintiff, including
his inability to continue his education and receive his
degree, the loss of his wrestling and football scholarships,
and his removal from the football team Plaintiff has
sustained tremendous damages to his future education, career
and athletic prospects, and reputation.
Id. at ¶ 15.
alleges that the disciplinary matter was procedurally
inadequate. He identifies several procedures that he alleges
CSU-Pueblo should have provided but did not, among them:
adequate notice of the charges being investigated;
identification of the adverse witnesses; an evidentiary
hearing for witnesses to testify subject to cross-examination
and for Plaintiff to present other evidence in his defense;
and adequate notice of the allegations before such hearing.
Plaintiff further alleges that the evidentiary standard
CSU-Pueblo used - preponderance of the evidence - was unfair
and insufficient for the criminal-like charges and potential
also alleges several procedural irregularities,
i.e., deviations from the process that the Code or
Policy provided. For example, Plaintiff alleges
that on November 17, 2015, Humphrey assessed an interim
suspension against Plaintiff. AC at ¶¶ 127, 129.
Plaintiff alleges that the Code limits the circumstances in
which interim measures can be imposed, and none of the
criteria were applicable to him. Id. ¶¶
126, 130. Plaintiff alleges further facts in support
regarding an October 30, 2015 football trip for which
Humphrey and Wilson authorized Plaintiff and Jane Doe to
travel together and stay in the same hotel. Id. at
¶ 130. Plaintiff also alleges that DeLuna gave Plaintiff
less than 24 hours' notice that she would hold an
“informal disciplinary hearing” without a
description of either the specific allegations or evidence
that would be considered. Id. at ¶¶ 133,
135. Plaintiff alleges that the Code and Policy do not define
an informal hearing, required description of the fact
allegations to be considered (i.e., the Wilson
report), and more timely notice to allow him to prepare.
Id. at ¶¶ 133-135.
on these fact allegations, Mr. Neal claims that State
Defendants deprived him of procedural due process under the
14th Amendment of the U.S. Constitution. Plaintiff further
alleges that in conducting the disciplinary matter, State
Defendants discriminated against him on the basis of his
gender in violation of Title IX of the Civil Rights Act of
1964, 20 U.S.C. § 1681 et seq. (“Title
IX”), breached CSU-Pueblo's contract with
Plaintiff, and breached the covenant of good faith and fair
dealing. Plaintiff further claims promissory estoppel against
CSU-Pueblo. See AC at Counts I-V. In each of those
counts, Plaintiff seeks damages. Through a declaratory
judgment claim, Plaintiff also seeks injunctive relief:
restoral of his reputation, expungement of his disciplinary
record, expungement of his suspension, destruction of any
record of the complaint against Plaintiff, and readmission to
CSU-Pueblo. AC at Count VII, ¶¶ 415-19.
alleges that Federal Defendants coerced the State Defendants
to conduct the disciplinary matter in the manner that
Plaintiff alleges violated Title IX and his due process
rights. AC at ¶ 201-213. Plaintiff alleges that on April
4, 2011, OCR issued the 2011 DCL. Id. at ¶ 199.
He alleges that the 2011 DCL required schools, including
CSU-Pueblo, to conduct disciplinary matters regarding alleged
sexual violence as a form of sexual discrimination or
harassment subject to Title IX (a) without providing the
accused the right of cross-examination, (b) using the
preponderance of evidence standard, and (c) providing that an
unsuccessful complainant can appeal, which Plaintiff
characterizes as a form of double jeopardy. Id. at
¶¶ 6, 183, 202-204.
alleges that the 2011 DCL changed the substantive law, such
that DOE was required to follow notice and comment rulemaking
procedures to implement that change. AC at e.g.,
¶¶ 3, 7, 198, 201. DOE did not follow those
procedures. Plaintiff claims the 2011 DCL is therefore void
under the Administrative Procedure Act, 5 U.S.C. § 553.
Id. at ¶ 8.
also alleges that DOE aggressively enforced the 2011 DCL in a
manner that pressured schools (including CSU-Pueblo) to find
male students responsible for sexual misconduct and impose
severe sanctions regardless of the evidence. Plaintiff points
to DOE statements (by Defendant Lhamon) to a Senate committee
that DOE would revoke federal funding to schools found
noncompliant with the 2011 DCL (AC at ¶¶ 231,
234-236); “more than 249 investigations against
colleges and universities” for reviewing their
compliance with the DCL (Id. at ¶ 229); and
draconian settlement agreements in which DOE required schools
to admit that their disciplinary procedures or policies
violated the 2011 DCL to avoid the DOE revoking their federal
funding. Id. at ¶¶ 230, 237-238.
alleges that in his disciplinary matter, CSU-Pueblo
discriminated against him on the basis of gender, denied his
due process, and arrived at an erroneous outcome at least in
part because CSU-Pueblo was attempting to conform to
DOE/OCR's enforcement of the 2011 DCL:
In light of the evidence (or lack thereof), the Decision can
only be explained by CSUP's discriminatory bias against
males and its underlying motive to protect the
University's reputation and financial wellbeing, by
acting in compliance with the Dear Colleague Letter.
Upon information and belief, in response to the significant
pressure placed on the CSUP Defendants by the Federal
Defendants to comply with the mandates of the 2011 Dear
Colleague Letter, CSUP conducted a substantially flawed and
biased investigation process leading to an erroneous Decision
AC at ¶¶ 13-14.
Standards of Review
courts, as courts of limited jurisdiction, must have a
statutory basis for their jurisdiction. See Morris v.
City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994)
(citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th
Cir. 1994)). Pursuant to Federal Rule of Civil Procedure
12(b)(1), the court may dismiss a complaint for lack of
subject matter jurisdiction. The determination of a
court's jurisdiction over subject matter is a question of
law. Madsen v. U.S. ex rel. U.S. Army, Corps of
Eng'rs, 841 F.2d 1011, 1012 (10th Cir. 1987).
“A court lacking jurisdiction cannot render judgment
but must dismiss the cause at any stage of the
proceedings in which it becomes apparent that jurisdiction is
lacking.” Basso v. Utah Power & Light Co.,
495 F.2d 906, 909 (10th Cir. 1974).
motion to dismiss for a lack of subject matter jurisdiction
may take two forms. See Holt v. United States, 46
F.3d 1000, 1002 (10th Cir. 1995). It may facially attack or
it may challenge the facts upon which subject matter
jurisdiction depends. Id. at 1002-1003.
When reviewing a factual attack on subject matter
jurisdiction, a district court may not presume the
truthfulness of the complaint's factual allegations. A
court has wide discretion to allow affidavits, other
documents, and a limited evidentiary hearing to resolve
disputed jurisdictional facts under Rule 12(b)(1). In such
instances, a court's reference to evidence outside the
pleadings does not convert the motion to a Rule 56 motion.
Id. at 1003 (internal citations omitted); see
also Cooke v. Hickenlooper, No. 13-cv-01300- MSK-MJW,
2013 WL 6384218, at *2, n.4 (D. Colo. Nov. 27, 2013),
aff'd in part sub nom. Colo. Outfitters Ass'n v.
Hickenlooper, 823 F.3d 537 (10th Cir. 2016). “The
burden of establishing subject-matter jurisdiction is on the
party asserting jurisdiction.” Montoya v.
Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citing
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994)).
12(b)(6) states that a court may dismiss a complaint for
“failure to state a claim upon which relief can be
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
… 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. ... The plausibility standard is
not akin to a “probability requirement, ” but it
asks for more than a sheer possibility that a defendant has
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). In
the Tenth Circuit,
[t]he 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 formulaic recitation of the
elements of a cause of action, which the Court stated will
not do. In other words, Rule 8(a)(2) still lives.... Under
Rule 8, specific facts are not necessary; the statement need
only give the defendant fair notice of what the ... claim is
and the ground upon which it rests.
Pueblo of Jemez v. United States, 790 F.3d 1143,
1172 (10th Cir. 2015) (internal brackets omitted; quoting
Khalik v. United Air Lines, 671 F.3d 1188, 1191-92
(10th Cir. 2012)).
whether a complaint states a plausible claim for relief will
… be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679; see also
Pueblo of Jemez, 790 F.3d at 1172. The court must
construe the fact allegations and any reasonable inferences
from them in the light most favorable to Plaintiff.
Sanchez v. Hartley, 810 F.3d 750, 754 (10th Cir.
State Defendants' Motion to Dismiss
CSU-Pueblo's Capacity to Be Sued.
Defendants argue that CSU-Pueblo is only a campus of CSU and
is not an entity capable of being sued. They further argue
that the Board of Governors is the appropriate party to sue,
and that the claim against CSU-Pueblo should accordingly be
dismissed. Doc. #27 at p. 1, n.1. They rely upon Roberts
v. Colorado State Board of Agriculture, 998 F.2d 824,
826-27 (10th Cir. 1993); C.R.S. §§ 23-30-102(1) and
23-31-101 et seq. Plaintiff did not address this
argument. State Defendants are correct. Roberts, 998
F.3d at 827; Persik v. Colo. State Univ., 60
F.App'x 209, 211 (10th Cir. 2003) (citing
Roberts). The court recommends that CSU-Pueblo be
dismissed as a party, as the Board of Governors is the
appropriate person to sue.
Title IX Claim
Title IX of the Civil Rights Act, “[n]o person in the
United States shall, on the basis of sex,  be excluded from
participation in, be denied the benefits of, or be subjected
to discrimination under any education program or activity
receiving Federal financial assistance.” 20 U.S.C.
The statute's only express enforcement mechanism, §
1682, is an administrative procedure resulting in the
withdrawal of federal funding from institutions that are not
in compliance. In addition, this Court has recognized an
implied private right of action … [for which] both
injunctive relief and damages are available.
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246,
Defendants first argue that the Title IX claim should be
dismissed as to the individual Defendants (Wilson, DeLuna,
DiMare, Blakey and Humphrey) because “Title IX …
[does] not authorize[e] suit against school officials,
teachers, and other individuals.” Fitzgerald,
555 U.S. at 257. Plaintiff originally sued the individual
State Defendants in their official and individual capacities.
After the motions to dismiss were briefed, Plaintiff
dismissed the claims against Wilson, DeLuna, DiMare, Blakey
and Humphrey in their individual capacities. Doc. #77. This
leaves these Defendants only in their official capacities.
“Official capacity suits ... generally represent only
another way of pleading an action against an entity of which
an officer is an agent.” Kentucky v. Graham,
473 U.S. 159, 165-66 (1985) (internal quotation marks
omitted). Thus, “[c]laims brought against state
employees in their official capacities are equivalent to
claims brought against the state itself.” Johnson
v. W. State Univ., 71 F.Supp.3d 1217, 1229-30 (D. Colo.
2014) (citing Graham; McMillian v. Monroe Cty., 520
U.S. 781, 785 n. 2 (1997); Moss v. Kopp, 559 F.3d
1155, 1168 (10th Cir. 2009)). “As long as the
government entity receives notice and an opportunity to
respond, an official-capacity suit is, in all respects other
than name, to be treated as a suit against the entity.”
Graham, 473 U.S. at 166. The Board of Governors is a
Defendant. It appears that the Tenth Circuit has not decided
whether official capacity claims against government officials
are duplicative of a claim against the government agency.
See, e.g., London v. Beaty, 612 F.App'x 910, 912
n.2 (10th Cir. 2015); Brooks v. Bd. of Educ., Farmington
Mun. Sch., 617 F.App'x 887, 891, n.2 (10th Cir.
2015). This court and others have found official capacity
claims are duplicative of the claim against the agency and
should be dismissed on that basis. See, e.g., Ulibarri v.
City & Cty. of Denver, No. 07-cv- 01814-WDM-MJW,
2010 WL 5287495, at *1 (D. Colo. Dec. 7, 2010) (claims under
the Americans with Disabilities Act and the Rehabilitation
Act); Miller v. Brungardt, 916 F.Supp. 1096, 1098
(D. Kan. 1996) (Title VII claims brought against employees in
official capacities were duplicative of the claim against the
employer). Plaintiff's claim against Wilson, DeLuna,
DiMare, Blakey and Humphrey in their official capacities is
duplicative of the claim against the Board of Governors, and
on that basis, the court recommends dismissing the
individuals from the Title IX claim.
Board of Governors next argues that Plaintiff fails to
plausibly allege the gender discrimination element of a Title
IX claim because Plaintiff “does not and cannot allege
any actual nexus between his gender and his purported
mistreatment.” Doc. #27 at p. 6. Neither the Supreme
Court nor the Tenth Circuit has yet addressed a Title IX
claim for a school's alleged discrimination in a
disciplinary proceeding. ...