Ghareeb v. Board of Trustees at the University of Northern Colorado

          ORDER

          Scott T. Varholak United Stated Magistrate Judge.

         This matter is before the Court on Defendant Board of Trustees at the University of Northern Colorado's Motion to Dismiss Plaintiff's Second Amended Complaint (the “Motion”). [#34] The parties have consented to proceed before the undersigned United States Magistrate Judge for all proceedings, including entry of a final judgment. [##9, 15-16] The Court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Motion is GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND^[1]

         Plaintiff is from the United Arab Emirates (“UAE”) and was studying for his Ph.D. in Applied Statistics and Research Methods at the University of Northern Colorado (“UNC”). [#32 at 5] He was the only student from the UAE in the department. [Id. at 9] During the spring 2014 semester, Plaintiff had a class with Professor Trent Lalonde.^[2] [Id. at 5] Professor Lalonde was aware of Plaintiff's national origin because the students introduced themselves during the first class, and also because during the semester, Plaintiff informed Professor Lalonde that he had to travel home to the UAE due to a death in the family. [Id. at 9] In the spring of 2014, Plaintiff was in his mid-40s, Plaintiff's classmates were in their early 30s, and Professor Lalonde was in his mid-30s. [Id. at 12]

         Throughout the spring 2014 semester, Professor Lalonde avoided eye contact with Plaintiff, and no other students, though Plaintiff sat in the middle of the front row. [Id. at 9] Professor Lalonde also graded Plaintiff's work differently than his classmates', despite the fact that the students worked in a group to complete the homework and Plaintiff provided the same answers as his groupmates. [Id. at 10] For example, in two out of eight homework assignments, Professor Lalonde counted Plaintiff's wrong answers twice and dismissed his correct answers. [Id.] Professor Lalonde also questioned Plaintiff's abilities and integrity by asking whether Plaintiff sought assistance in completing a take-home exam. [Id.] Professor Lalonde gave Plaintiff a D in the class-a failing grade. [Id.] Plaintiff realized that the final grade excluded two homework assignments, and was able to raise his grade to a C-, but Plaintiff nevertheless faced expulsion if he was unable to raise his grade point average (“GPA”). [Id. at 10-11] According to Plaintiff, the only difference between him and his groupmates was his age and national origin. [Id. at 10, 12]

         Following the spring 2014 semester, Plaintiff reached an agreement with UNC's administration that he would not have further academic interactions with Professor Lalonde. [Id. at 6, 13] During the subsequent semester, Plaintiff was able to achieve a 4.0 GPA, raising his overall GPA above passing. [Id. at 6]

         In January 2017, Plaintiff took a comprehensive exam, which students must pass in order to graduate. [Id. at 11] The comprehensive exam is divided into a theory section on the first day and a method section on the second day. [Id.] Professor Lalonde was the faculty member assigned to watch Plaintiff during the exam, which put him “in an uncomfortable and stressful environment.” [Id. at 14] Plaintiff did not take the exam with any other students. [Id.] During the first day of the exam, Plaintiff was given a methods question by Professor Lalonde, which caused disruption and anxiety since Plaintiff had only prepared for the theory section of the exam. [Id.] This had never happened to any other students in the past. [Id.] Plaintiff failed the theory portion of the exam. [Id. at 7-8, 14] Plaintiff provided the same answer to a question that appeared on both the midterm and the comprehensive exam, and while he received a 100% on the midterm response, he was failed on the same answer for the comprehensive exam. [Id.]

         In October 2017, Plaintiff discovered that Professor Lalonde participated in the making and grading of the majority of the questions on Plaintiff's comprehensive exam, while the rest of the exam was created and graded by Plaintiff's advisor. [Id. at 7] This arrangement violated Plaintiff's agreement with UNC that he would not have any further academic contact with Professor Lalonde, and also went against a department manual stating that each professor writes and grades questions only for the classes they teach, and that four to five professors should create and grade the exam in total. [Id. at 13-15] Plaintiff was the only student to have two professors (rather than four to five) grade his exam. [Id. at 11]

         Plaintiff, proceeding pro se, filed the instant action on January 28, 2019 [#1], and filed his Amended Complaint on May 29, 2019 [#32]. The Amended Complaint asserts three causes of action: national origin discrimination in violation of Title VI of the Civil Rights Act; age discrimination in violation of the Age Discrimination Act; and breach of contract. [Id. at 9-15] Defendant filed the instant Motion on June 12, 2019, arguing that Plaintiff's Amended Complaint should be dismissed in its entirety pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [See generally #34] Plaintiff has responded to the Motion [#35], and Defendant has replied [#36].

         II. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).

         Under Federal Rule of Civil Procedure 12(b)(6), 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). In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Cassanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         “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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 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.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

         III. ...