United States District Court, D. Colorado
T. Varholak United Stated Magistrate Judge.
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.
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. [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]
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]
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]
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.]
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]
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].
STANDARD OF REVIEW
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).
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).
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).
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.