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Case 5:16-cv-04183-DDC-KGG Document 25 Filed 07/14/17 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MELVIN HALE,

Plaintiff,

vs.
Case No. 16-4183-DDC-KGG
EMPORIA STATE UNIVERSITY,
JACKIE VIETTI,
DAVID CORDLE,
JUDY ANDERSON,
KEVIN JOHNSON,
RAY LAUBER,
MIRAH DOW, and
GARY WYATT,

Defendants.

MEMORANDUM AND ORDER

Plaintiff Melvin Hale brings this action pro se against defendants Emporia State

University (“ESU”) and seven individual defendants. He alleges that his former employer, ESU,

retaliated against him by placing him on a “Cooling Off Period” and terminating his employment

because he complained about racial discrimination. He asserts a Title VII retaliation claim

against ESU. Plaintiff also alleges that the individuals he has sued retaliated against him after

plaintiff exercised his right to speak out against discrimination and racism. He asserts a First

Amendment retaliation claim under 42 U.S.C. § 1983 against these seven individuals.

Defendants have filed a Motion for Judgment on the Pleadings under Fed. R. Civ. P.

12(c). Doc. 21. Plaintiff has filed an Opposition to defendants’ motion. Doc. 23. And,

defendants have submitted a Reply. Doc. 24. After considering the parties’ arguments, the court

grants defendants’ motion in part and denies it in part. The court grants defendants’ motion

against plaintiff’s Title VII claim because it is time-barred. The court also grants defendants’
Case 5:16-cv-04183-DDC-KGG Document 25 Filed 07/14/17 Page 2 of 21

motion against plaintiff’s official capacity claims under § 1983 asserted against the individual

defendants. The court denies the motion in all other respects.

I. Factual Background

The following facts are taken from plaintiff’s Complaint (Doc. 1), accepted as true, and

viewed in the light most favorable to him. See Ramirez v. Dep’t of Corr., 222 F.3d 1238, 1240

(10th Cir. 2000). The court also construes plaintiff’s allegations liberally because he proceeds

pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Plaintiff is an African-American male. ESU hired plaintiff as an Assistant Professor in

the School of Library and Information Management (“SLIM”) on July 1, 2014. Also on July 1,

2014, ESU hired plaintiff’s wife, Angelica Hale, as an Assistant to the Dean of the SLIM for

Marketing.

In December 2014, plaintiff complained to Dr. Gwen Alexander, Dean of SLIM, about

Debra Rittgers, Office Manager and Assistant to the Dean of SLIM. Plaintiff accused Ms.

Rittgers of committing an act of racial discrimination directed at his wife. Plaintiff also

described several instances of perceived discriminatory conduct by Ms. Rittgers directed at either

him or his wife since they arrived at ESU. Dr. Alexander did not believe plaintiff’s claim. Dr.

Alexander told plaintiff that Ms. Rittgers never had discriminated against him or his wife based

on their race. Dr. Alexander also told plaintiff that he and his wife probably were too sensitive,

and, and according to plaintiff’s allegations, she asked if his wife was going through menopause.

Plaintiff told Dr. Alexander that his wife would not return to work at the SLIM unless

ESU satisfied certain conditions, including moving his wife to a private office on the fourth floor

of the building, away from Ms. Rittgers. In response to this request, plaintiff’s wife moved to

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the second largest office on the fourth floor. Plaintiff believes that his wife’s move to the fourth

floor office then created “unspoken tensions in the workplace.” Doc. 1 ¶ 30.

After this conversation, Dr. Alexander began to speak negatively about plaintiff and his

wife to ESU faculty, staff, and administrators. According to plaintiff, Dr. Alexander “started a

course of termination for [plaintiff and his wife] because she opposed their views on racial

discrimination.” Id. ¶ 23. Dr. Alexander would debate plaintiff and his wife about their

complaints of racial discrimination. Dr. Alexander also did not take those complaints seriously.

After plaintiff’s wife moved to the fourth floor office, Ms. Rittgers stopped

communicating with her unless necessary. Ms. Rittgers also failed to transfer his wife’s phone to

her new office for almost six months. And, Ms. Rittgers interfered with his wife’s assignments

to a graduate assistant by giving the graduate assistant assignments that conflicted with his wife’s

assignments.

On April 8, 2015, the graduate assistant arrived at work to find that someone had

unlocked her office, tampered with its contents, and wrote the word “NIGGAZ” on a notepad on

her desk. The graduate assistant reported what she found to Ms. Hale. Plaintiff believes that the

racial slur was directed at him and his wife because “of their boldness, which is uncommon at

ESU.” Id. ¶ 42. Plaintiff also believes that the graduate assistant who reported the racial slur to

Ms. Hale merely served as a conduit for the message.

Plaintiff and his wife reported the racial slur to Dr. Alexander and requested that she

investigate it. Plaintiff also told SLIM’s Faculty Chair, Dr. Dow, about the racial slur a few days

later. He asked Dr. Dow why “nothing apparently was being done” about it. Id. ¶ 53. Plaintiff’s

wife spoke with Dr. Dow after her husband’s conversation. Plaintiff’s wife expressed her

concerns about the incident and the manner in which ESU was addressing it. Dr. Dow told Ms.

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Hale that she was amazed that Dr. Alexander had done nothing about the incident more than a

month after it had happened. Dr. Dow agreed to talk to Dr. Alexander and Human Resources

about the matter.

In late June 2015, plaintiff and his wife reported the racial slur incident to Dr. David

Cordle, ESU’s Provost, and Judy Anderson, Director of Human Resources. Plaintiff and his wife

also reported the matter to the ESU Police Department and attempted to file a police report.

According to plaintiff, the ESU Police Department refused to investigate the matter. Plaintiff

also called the Lyon County Attorney and left a message asking that he call him to discuss a

possible hate crime at ESU. The Lyon County Attorney never returned plaintiff’s phone call.

According to plaintiff, the Lyon County Attorney chose not to investigate the matter and

concluded that no crime had occurred after relying on information provided by ESU.

Plaintiff then wrote a letter to Dr. Jackie Vietti, ESU’s Interim President, asking her to

investigate the April 8, 2015 incident and reporting his belief that he and his wife were victims of

retaliation. Shortly after sending the letter, Ray Lauber, a Human Resources employee of ESU,

contacted the Hales. Mr. Lauber explained that he was assembling a report about the incident for

Dr. Vietti. The Hales met with Mr. Lauber separately. During their conversations, they each

discussed their concerns about the April 8, 2015 racial slur incident. They also reported the

earlier incidents of discrimination by Ms. Rittgers to Mr. Lauber.

The Hales later learned that Mr. Lauber was a family friend of Ms. Rittgers. Plaintiff

accused Mr. Lauber of bias and asked that he recuse himself from the investigation. He refused.

Dr. Vietti also refused to remove Mr. Lauber from reporting the matter.

Plaintiff alleges that Dr. Alexander began to treat him and his wife differently than others

in the SLIM after they reported the April 8, 2015 incident to Provost Cordle and the ESU Police

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Department. On July 7, 2015, Dr. Alexander came to the fourth floor to visit all of the faculty

members on that floor. But she refused to visit the Hales. Afterwards, plaintiff went to Dr.

Alexander’s office to ask her about how things were going. During this conversation, Dr.

Alexander expressed disappointment that the Hales had reported the April 8, 2015 incident to the

Provost and the ESU Police Department. Dr. Alexander said that the Hales’ performance had

been stellar leading up to their complaints, but that she felt blindsided by their allegations that

she and Ms. Rittgers had engaged in misconduct. Dr. Alexander told plaintiff that she had hoped

he would have overlooked the April 8, 2015 incident because he could have served as a model

for professional behavior by an African-American. Dr. Alexander also expressed frustration that

the Hales wanted something done about the incident. She told plaintiff that he should accept the

incident because “this is Kansas.” Id. ¶ 82.

Ms. Hale was a contractual employee when she started working for the SLIM. According

to plaintiff, Dr. Alexander promised that she would make Ms. Hale a permanent employee

because she was doing an excellent job. Dr. Alexander encouraged Ms. Hale to complete her

Bachelor’s degree so that she could earn a higher salary and have the opportunity for promotions

at ESU. Ms. Hale enrolled in classes at ESU starting in the fall of 2015, so that she could work

toward her degree. But, after the Hales complained to the Provost and the ESU Police

Department about the April 8, 2015 incident, Dr. Alexander told Ms. Hale that ESU would not

renew her contract and that she would not become a permanent employee. In response, Ms. Hale

wrote an “Open Letter to Dean Alexander” about her feelings and resigned from ESU two weeks

before her contract ended. Id. ¶ 94. Ms. Hale also resigned because Dr. Alexander had asked

her to interact with Ms. Rittgers in what she perceived as a demeaning and subservient manner.

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According to plaintiff, Ms. Hale’s Open Letter “created a firestorm of controversy on the

ESU campus.” Id. ¶ 99. The Associated Press covered the story on July 29, 2015. Plaintiff

continued to demand that ESU investigate the bias incident properly. Plaintiff accuses

defendants Jackie Vietti (former Interim President of ESU), David Cordle (ESU Provost), Gary

Wyatt (Dean of the Honors College and Assistant Provost of ESU), Judy Anderson (ESU

Director of Human Resources), Kevin Johnson (ESU General Counsel), and Ray Lauber (the

Human Resources employee charged with writing the report) of reporting to the media, campus,

and public that ESU had conducted a fair, logical, and thorough investigation of the racial slur

incident and that no crime had occurred.

On September 9, 2015, plaintiff and his attorney met with Dr. Vietti. Dr. Vietti told

plaintiff that ESU had determined that no hate crime had occurred. Dr. Vietti also asked plaintiff

to sign a document stating that he would seek counseling and refrain from discussing his

concerns about discrimination in the SLIM. According to plaintiff, his lawyer advised him not to

sign anything. His lawyer also told Dr. Vietti that signing the document would have a chilling

effect to employees who report hate crimes. Also during this meeting, Dr. Vietti “introduced the

subject of [plaintiff’s] termination.” Id. ¶ 131.

On September 16, 2015, ESU sent a letter to plaintiff. It stated that plaintiff must retract

his allegation that Ms. Rittgers was the probable author of the racial slur or face termination.

According to plaintiff, ESU intended its treatment of plaintiff to have a chilling effect on future

whistleblowers trying to expose racism at ESU.

Plaintiff accuses defendants Cordle, Vietti, Johnson, Anderson, Wyatt, and Lauber of

developing and extending a “Cooling Off Period” for plaintiff. Id. ¶ 156. The “Cooling Off

Period” began in August 2015, and continued until plaintiff’s termination in May 2016. Plaintiff

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describes this “Cooling Off Period” as effectively banishing him from his workplace and his

colleagues. He also asserts that he was prohibited from discussing racial discrimination during

the “Cooling Off Period.” Plaintiff also could not access his office during the “Cooling Off

Period.” Before the “Cooling Off Period,” plaintiff had received excellent student and

professional evaluations at ESU.

Plaintiff’s inability to access his office prevented him from creating a portfolio of his

research and service contributions. ESU then used plaintiff’s failure to create the portfolio as a

reason for his termination. Plaintiff accuses ESU of terminating his employment unlawfully

because he complained about racial discrimination and retaliation. He also accuses ESU and

some of the individual defendants of ignoring his complaints about racial discrimination and

failing to investigate his complaints properly. Also, plaintiff alleges that the individual

defendants subjected him to extreme hostility and negative publicity. And, plaintiff accuses the

individual defendants of retaliating against him for exercising his right to speak out against

discrimination.

Plaintiff filed administrative charges of discrimination with the Department of Justice and

received right to sue letters. Id. ¶ 5. On December 8, 2016, plaintiff filed his Complaint in this

case. Doc. 1. Plaintiff describes this case as a “refiling of Case No. 15-CV-4947-SAC-KGS . . .

which was voluntarily dismissed without prejudice upon the condition ‘that all pleadings,

discovery, testimony, orders or rulings, or any other substantive matters from this case, will be

binding in any later filed action of the same claims so as not to prejudice either party to this

action, with costs to be borne by the party incurring it.’” Id. ¶ 1 (quoting Hale v. Emporia State

Univ., No. 15-4947-SAC-KGS (D. Kan. Sept. 30, 2016), ECF No. 93 at 6).

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II. Rule 12(c) Motion for Judgment on the Pleadings Standard

A party may move for judgment on the pleadings under Fed. R. Civ. P. 12(c) after the

pleadings are closed but early enough not to delay trial. Fed. R. Civ. P. 12(c). Courts evaluate a

Rule 12(c) motion under the same standard that governs a Rule 12(b)(6) motion to dismiss.

Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002).

The court will grant a motion for judgment on the pleadings only when the factual

allegations in the complaint fail to “state a claim to relief that is plausible on its face,” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007), or when an issue of law is dispositive, Neitzke v.

Williams, 490 U.S. 319, 326 (1989). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550

U.S. at 556). “Under this standard, ‘the complaint must give the court reason to believe that this

plaintiff has a reasonable likelihood of mustering factual support for these claims.’” Carter v.

United States, 667 F. Supp. 2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red Hawk, L.L.C. v.

Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)).

Although the court must assume that the factual allegations in the complaint are true, it is

“not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 1263

(quoting Iqbal, 556 U.S. at 678). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice” to state a claim for relief. Bixler v.

Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at 678).

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III. Analysis

Defendants assert that plaintiff’s Complaint fails to state a claim sufficient to survive a

motion for judgment on the pleadings under Rule 12(c). The court addresses plaintiff’s two

claims separately, below.

A. Plaintiff’s Title VII Claim Against ESU

Defendants assert that plaintiff’s Title VII claim is time-barred. Title VII requires a

plaintiff to file a civil action within 90 days of receiving a right to sue letter. 42 U.S.C. § 2000e-

5(f)(1); Croy v. Cobe Labs., Inc., 345 F.3d 1199, 1202 (10th Cir. 2003); Scott v. Boeing Co., 48

F. App’x 730, 731 (10th Cir. 2002). Here, plaintiff’s Complaint alleges that he received right to

sue letters, but never identifies the dates he received them. Doc. 1 ¶ 5. Plaintiff, however,

attached the right to sue letters to his Complaint in another case that he filed in our court.1

Plaintiff filed a Complaint in Case No. 15-4947 on October 14, 2015. Hale v. Emporia

State Univ., No. 15-4947-SAC-KGS (D. Kan. Oct. 14, 2016), ECF No. 1. He submitted two

right to sue letters with his Third Amended Complaint in that case. Id., ECF No. 20-1. The

Department of Justice issued the first right to sue letter on January 21, 2016, and the second right

to sue letter on March 18, 2016. Id., ECF No. 20-1 at 2, 4. Plaintiff received these letters no

later than March 23, 2016—the date when he filed them in Case No. 15-4947. On September 16,

2016, plaintiff moved to dismiss Case No. 15-4947 voluntarily and without prejudice. Id., ECF.

No. 89. Judge Crow granted plaintiff’s motion and dismissed the case without prejudice on

September 30, 2016. Id., ECF No. 93.

1
The court takes judicial notice of the filings in Case No. 15-4947, including the right to sue
letters. See Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006) (explaining that a court may “take
judicial notice of its own files and records” on a motion to dismiss under Rule 12(b)(6) without
converting the motion to dismiss into a motion for summary judgment (citations and internal quotation
marks omitted)).

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Plaintiff then filed this case some two months later on December 8, 2016 (Doc. 1), more

than 90 days after he received the two right to sue letters. Plaintiff’s Complaint concedes that he

voluntarily dismissed Case No. 15-4947 without prejudice. Doc. 1 ¶ 1. And, plaintiff’s

Complaint characterizes this lawsuit as a “re-filing” of Case No. 15-4947. Id. But, “the filing of

a complaint that is dismissed without prejudice does not toll the statutory filing period of Title

VII.” Brown v. Hartshorne Pub. Sch. Dist. No. 1, 926 F.2d 959, 961 (10th Cir. 1991), abrogated

on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). Instead,

a voluntary dismissal without prejudice generally “leaves the parties as though the action had

never been brought.” Id. (citations omitted). The statute of limitations thus bars plaintiff’s re-

filed Title VII claim here because he did not file his claim within 90 days of receiving the right

to sue letters. See id. (affirming dismissal of a plaintiff’s re-filed Title VII claim as time-barred);

Brown v. Kempthorne, 190 F. App’x 590, 591 (10th Cir. 2006) (affirming dismissal of a pro se

plaintiff’s re-filed Title VII complaint because it “was clearly not filed within 90 days of her

receipt of the final agency decision” and thus “the statute of limitations barred” plaintiff’s claim);

Scott, 48 F. App’x at 731 (same).

Plaintiff argues that equitable tolling should save his Title VII claim here. He explains

that defendants’ actions have caused him to lose income which, in turn, created physical stress

and illness requiring medical treatment. Plaintiff asserts that his health condition prevented him

from litigating Case No. 15-4947. So, he asked the court for a voluntary dismissal of that case.

Plaintiff contends that these circumstances permit the court to apply equitable tolling to his Title

VII claim here. The court disagrees.

The Tenth Circuit has recognized that equitable tolling can apply to Title VII’s statute of

limitations, but it reserves the doctrine for a narrow band of circumstances. It applies “only if

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the circumstances of the case rise to the level of active deception which might invoke the powers

of equity to toll the limitations period.” Biester v. Midwest Health Servs., Inc., 77 F.3d 1264,

1267 (10th Cir. 1996) (citations and internal quotation marks omitted). The Circuit has noted

that equitable tolling may apply “where a plaintiff has been lulled into inaction by [his] past

employer, state or federal agencies, or the courts” or if the plaintiff is “actively misled” or “in

some extraordinary way [has] been prevented from asserting his or her rights.” Id. (citation and

internal quotation marks omitted). The Circuit also has acknowledged the possibility of applying

equitable tolling when the plaintiff has suffered a mental incapacity, but “exceptional

circumstances” must exist for even that exception to apply. Id. And, so far, the Circuit never has

applied this exception in any case. Del Rantz v. Hartley, 577 F. App’x 805, 810 (10th Cir. 2014)

(citations omitted).

Plaintiff has not alleged facts sufficient to permit use of equitable tolling here. No one

actively misled him or prevented him from asserting his rights. Plaintiff chose to dismiss Case

No. 15-4947 voluntarily, after the statute of limitations had run on his Title VII claim. Although

plaintiff proceeds pro se, the court cannot change the consequences of plaintiff’s decision to

dismiss his earlier case voluntarily. See Montoya v. Chao, 296 F.3d 952, 958 (10th Cir. 2002)

(holding that difficulties faced by many litigants such as “limited education and little

understanding of the law or of the intricacies of the procedural framework of Title VII actions”

do not suffice to justify equitable tolling); see also Brown, 190 F. App’x at 591 (affirming

dismissal of a pro se plaintiff’s Title VII claim and refusing to apply equitable tolling because

“no evidence . . . support[ed] her assertion that she was misled to believe her case would be

timely if re-filed within one year”); Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840

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(10th Cir. 2005) (explaining that pro se litigants must comply with procedural rules that govern

other litigants).

Finally, the Kansas savings statute, Kan. Stat. Ann. § 60-518, cannot save plaintiff’s Title

VII claim from the statute of limitations. A state’s savings statute does not apply to Title VII

claims. See Brown, 926 F.2d at 961 (explaining that the Oklahoma savings statute did not apply

to plaintiff’s Title VII claim); see also Cady v. Golden Arch of Kan., Inc., No. 02-2601-KHV,

2003 WL 21241422, at *2 (D. Kan. May 27, 2003) (dismissing plaintiff’s Title VII claim as

untimely and refusing to apply the Kansas savings statute to revive the claim because “state

tolling and savings provisions do not apply where Congress has provided a federal statute of

limitation for a federal claim”); Smith v. First Am. Inv. Grp., Inc., No. 89-2209-S, 1990 WL

81032, at *1 (D. Kan. May 8, 1990) (same). The court thus dismisses plaintiff’s Title VII claim

because the statute of limitations bars it from going forward.

B. Plaintiff’s § 1983 Claim Against the Individual Defendants

Defendants assert that three arguments support dismissal of plaintiff’s § 1983 retaliation

claim against the seven individual defendants. First, defendants argue that plaintiff’s Complaint

fails to state a claim under § 1983 because his alleged speech is not a matter of public concern

entitled to First Amendment protection. Second, defendants assert that even if plaintiff’s speech

is a matter of public concern, the individual defendants are entitled to qualified immunity against

plaintiff’s § 1983 claim. Finally, defendants contend that Eleventh Amendment immunity bars

plaintiff’s official capacity claims against the seven individual defendants. The court addresses

each argument, in turn, below.

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1. Does plaintiff’s Complaint allege protected speech that is a
matter of public concern?
The Supreme Court has held that “a public employee does not relinquish First

Amendment rights to comment on matters of public interest by virtue of government

employment.” Connick v. Myers, 461 U.S. 138, 140 (1983) (citing Pickering v. Bd. of Educ.,

391 U.S. 563, 568 (1968)). But, at the same time, the Supreme Court recognizes that “[w]hen a

citizen enters government service, the citizen by necessity must accept certain limitations on his

or her freedom” because “[g]overnment employers, like private employers, need a significant

degree of control over their employees’ words and actions; without it, there would be little

chance for the efficient provision of public services.” Garcetti v. Ceballos, 547 U.S. 410, 418

(2006) (citations omitted). The Supreme Court thus instructs courts to balance carefully the

competing “interests of the [employee], as a citizen, in commenting upon matters of public

concern and the interest of the State, as an employer, in promoting the efficiency of the public

services it performs through its employees.” Helget v. City of Hays, Kan., 844 F.3d 1216, 1221

(10th Cir. 2017) (quoting Lane v. Franks, 134 S. Ct. 2369, 2374 (2014) (further quotation

omitted)).

To balance those competing interests carefully, the court applies the five step

Garcetti/Pickering test to determine whether plaintiff has stated a First Amendment retaliation

claim. Id. The five steps are:

(1) whether the speech was made pursuant to an employee’s official duties; (2)
whether the speech was on a matter of public concern; (3) whether the
government’s interests, as employer, in promoting the efficiency of the public
service are sufficient to outweigh the plaintiff’s free speech interests; (4) whether
the protected speech was a motivating factor in the adverse employment action;
and (5) whether the defendant would have reached the same employment decision
in the absence of the protected conduct.

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Id. at 1221–22 (quoting Trant v. Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014) (further

quotation omitted)). The first three steps are questions of law for the court to decide. Id.

(citation omitted). The last two steps are questions of fact. Id. (citation omitted).

Defendants argue that plaintiff fails to allege facts to support the second step of this

test—that plaintiff’s speech involved a matter of public concern. This step requires the

employee to allege that his speech “involves a matter of public concern and not merely a

personal issue internal to the workplace.” Moore v. City of Wynnewood, 57 F.3d 924, 931 (10th

Cir. 1995) (citing Connick, 461 U.S. at 146–47); see also Morris v. City of Colo. Springs, 666

F.3d 654, 661 (10th Cir. 2012) (“[S]peech relating to internal personnel disputes and working

conditions ordinarily will not be viewed as addressing matters of public concern.” (citation and

internal quotation marks omitted)). In other words, “speech that simply airs ‘grievances of a

purely personal nature’ typically does not involve matters of public concern.” Brammer-Hoelter

v. Twin Peaks Charter Acad., 492 F.3d 1192, 1205 (10th Cir. 2007) (quoting Connick, 461 U.S.

at 147–48).

Speech is a matter of public concern “when it can be fairly considered as relating to any

matter of political, social, or other concern to the community, or when it is a subject of legitimate

news interest; that is, a subject of general interest and of value and concern to the public.” Lane,

134 S. Ct. at 2380 (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). “The inquiry turns on

the ‘content, form, and context’ of the speech.” Id. (quoting Connick, 461 U.S. at 147–148). In

Connick v. Myers, the Supreme Court stated that “racial discrimination” is “a matter inherently

of public concern.” 461 U.S. at 148 n.8; see also Quigley v. Rosenthal, 327 F.3d 1044, 1060

(10th Cir. 2003) (explaining that Connick stated that “‘racial discrimination,’ at least in the

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context of public-employment, is ‘a matter inherently of public concern.’” (quoting Connick, 461

U.S. at 148 n.8)).

Plaintiff alleges that the individual defendants violated his First Amendment free speech

rights when they placed him in a “Cooling Off Period” beginning in August 2015. Defendants

assert that plaintiff never alleges that his speech involved a matter of public concern before the

implementation of the “Cooling Off Period.” Instead, defendants contend that plaintiff’s speech

was internal in scope and personal in nature. Defendants also assert that this court is not the

appropriate forum to review the wisdom of a personnel decision taken by a public agency in

response to an employee’s behavior. Defendants’ assertions might provide a basis to rule for

them on a summary judgment motion. And they might not. But here, the court must decide the

case on the facts as plaintiff has alleged them. Plaintiff’s Complaint alleges facts sufficient to

state a § 1983 claim against the individual defendants. It thus survives defendants’ motion for

judgment on the pleadings.

Construing the Complaint’s allegations liberally and viewing them in the light most

favorable to plaintiff, it appears that plaintiff’s speech addressed both his personal grievances

and a purported culture at ESU that allegedly discriminates against African-Americans. For

example, the Complaint alleges that “ESU fosters a white-dominated culture that does not appear

to feel the need to diversify, starting from the top down.” Doc. 1 ¶ 43. The Complaint also

alleges that plaintiff and his wife’s complaints “represented a threat to the racial lens at the

SLIM.” Id. ¶ 37; see also id. ¶ 153 (stating that defendants’ actions were intended to have “a

chilling effect on future whistle-blowers inclined to expose racism at ESU”); id. ¶ 162

(characterizing plaintiff’s complaints as a “protest against racism”).

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Plaintiff’s Complaint also asserts that the individual defendants ignored and “turned a

deaf ear” to the Hales’ complaints about racial discrimination and retaliation for reporting the

same. Id. ¶¶ 97, 106. And, it asserts that the Hales attempted to report the racial slur incident as

a hate crime with the ESU Police Department but that the ESU Police Department Chief refused

to investigate the matter and concluded that no crime had occurred. Id. ¶¶ 59, 61. The

Complaint also accuses the individual defendants of retaliating against him because he exercised

his right to speak out against discrimination and racism. Id. ¶ 236. And, the Complaint alleges

that ESU prevented him from speaking about an upcoming march against racism. Id. ¶ 206.

Construing these allegations liberally and in the light most favorable to plaintiff, the

Complaint alleges that plaintiff’s complaints about racial discrimination involved both personal

complaints and speech about a matter of public concern. At this stage, plaintiff’s Complaint

need only assert facts that, accepted as true, allege plaintiff’s speech addressed a matter of public

concern. Plaintiff has satisfied this pleading standard sufficient to survive defendants’ motion.

2. Are defendants entitled to qualified immunity?
“Qualified immunity ‘gives government officials breathing room to make reasonable but

mistaken judgments about open legal questions.’” Lane, 134 S. Ct. at 2381 (quoting Ashcroft v.

al–Kidd, 563 U.S. 731, 743 (2011)). This doctrine “protects ‘all but the plainly incompetent or

those who knowingly violate the law.’” al-Kidd, 563 U.S. at 743 (quoting Malley v. Briggs, 475

U.S. 335, 341 (1986)). Qualified immunity shields a government official from a money damages

award in his or her personal capacity “unless ‘the official violated a statutory or constitutional

right,’ and ‘the right was “clearly established” at the time of the challenged conduct.’” Lane,

134 S. Ct. at 2381 (quoting al-Kidd, 563 U.S. at 735). So, on a motion to dismiss based on

qualified immunity, a court must consider, first, “whether the facts that a plaintiff has alleged . . .

make out a violation of a constitutional right,” and second “whether the right at issue was clearly

16
Case 5:16-cv-04183-DDC-KGG Document 25 Filed 07/14/17 Page 17 of 21

established at the time of defendant’s alleged misconduct.” Leverington v. City of Colo. Springs,

643 F.3d 719, 732 (10th Cir. 2011) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).

The Supreme Court has held that courts have discretion to decide “which of the two prongs of

the qualified immunity analysis” to address “first in light of the circumstances in the particular

case at hand.” Pearson, 555 U.S. at 236.

“Although qualified immunity defenses are typically resolved at the summary judgment

stage, district courts may grant motions to dismiss on the basis of qualified immunity.” Thomas

v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). Asserting a qualified immunity defense in a

Rule 12(b)(6) motion, however, “subjects the defendant to a more challenging standard of review

than would apply on summary judgment.” Id. (quoting Peterson v. Jensen, 371 F.3d 1199, 1201

(10th Cir. 2004)). This is so because at the motion to dismiss stage, the court scrutinizes

defendants’ conduct as alleged in the complaint for “objective legal reasonableness.” Behrens v.

Pelletier, 516 U.S. 299, 309 (1996). But, on summary judgment, the plaintiff no longer can rest

on the pleadings, and the court considers the evidence in the summary judgment record when

conducting the qualified immunity inquiry. Id.

Here, the Complaint alleges facts, if proven true, that suffice to establish the individual

defendants violated a clearly established constitutional right. The Complaint alleges that the

individual defendants placed plaintiff on a “Cooling Off Period” and terminated his employment

in retaliation for exercising his First Amendment rights to speak out against discrimination and

racism. As explained above, Supreme Court precedent clearly establishes that “a state cannot

condition public employment on a basis that infringes the employee’s constitutionally protected

interest in freedom of expression.” Connick, 461 U.S. at 142; see also Lane, 134 S. Ct. at 2377

(“[P]ublic employees do not renounce their citizenship when they accept employment, and this

17
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Court has cautioned time and again that public employers may not condition employment on the

relinquishment of constitutional rights.” (citations omitted)). Indeed, the Supreme Court has

found it “essential that public employees be able to speak out freely [on matters of public

concern] without fear of retaliat[ion].” Connick, 461 U.S. at 149; see also Lane, 134 S. Ct. at

2377 (“Speech by citizens on matters of public concern lies at the heart of the First

Amendment,” and “[t]his remains true when speech concerns information related to or learned

through public employment.”).

The court thus concludes that plaintiff’s Complaint alleges that the individual defendants

violated a clearly established constitutional right when they placed him on a “Cooling Off

Period” and terminated his employment to retaliate for exercising his First Amendment rights.

Plaintiff’s Complaint sufficiently alleges facts to support this claim. So, defendants are not

entitled to qualified immunity at this stage in the proceedings.

3. Does Eleventh Amendment immunity bar plaintiff’s official
capacity claims?
Finally, defendants assert that the Eleventh Amendment bars plaintiff’s official capacity

claims against the individual defendants. The Eleventh Amendment generally bars suits against

states and their agencies based on their sovereign immunity. Levy v. Kan. Dep’t of Soc. &

Rehab. Servs., 789 F.3d 1164, 1168 (10th Cir. 2015) (quoting Bd. of Trs. of Univ. of Ala. v.

Garrett, 531 U.S. 356, 363 (2001) (“The ultimate guarantee of the Eleventh Amendment is that

nonconsenting States may not be sued by private individuals in federal court.”)). But, three

exceptions to Eleventh Amendment immunity exist:

First, a state may consent to suit in federal court. Second, Congress may abrogate
a state’s sovereign immunity by appropriate legislation when it acts under Section
5 of the Fourteenth Amendment. Finally, under Ex parte Young, 209 U.S. 123, 28
S. Ct. 441, 52 L.Ed. 714 (1908), a plaintiff may bring suit against individual state
officers acting in their official capacities if the complaint alleges an ongoing
violation of federal law and the plaintiff seeks prospective relief.

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Id. (quoting Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012)).

Here, defendants assert that the Eleventh Amendment bars plaintiff’s official capacity

claims against the individual defendants (who all are state officials) because the State never has

consented to suit under § 1983, Congress never has abrogated the states’ sovereign immunity

from those suits, and plaintiff’s Complaint just seeks retroactive money damages as relief. The

court agrees. See Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1196 & n.13 (10th Cir. 1998)

(explaining that the Eleventh Amendment barred plaintiffs’ §§ 1981, 1983, and 1985 claims for

money damages against state officials in their official capacities); see also Hale v. Emporia State

Univ., No. 15-4947-SAC-KGS, 2016 WL 917896, at *3 (D. Kan. Mar. 8, 2016) (holding that the

Eleventh Amendment barred plaintiff’s § 1983 claims for money damages against ESU and the

individual defendants in their official capacities).

Plaintiff’s Opposition to defendants’ motion asserts that his claims fall within the Ex

Parte Young exception to the Eleventh Amendment’s guarantee of sovereign immunity. Doc. 23

at 24. Ex Parte Young held that “the Eleventh Amendment generally will not operate to bar suits

so long as they (i) seek only declaratory and injunctive relief rather than monetary damages for

alleged violations of federal law, and (ii) are aimed against state officers acting in their official

capacities, rather than against the State itself.” Hill v. Kemp, 478 F.3d 1236, 1255–56 (10th Cir.

2007) (citing Ex Parte Young, 209 U.S. at 159–60). But, plaintiff concedes that his Complaint

never requests the requisite declaratory or injunctive relief, as the Ex Parte Young exception

demands. Plaintiff’s Opposition provides “preliminary proposals” of injunctive relief but

contends “that the specific mode of any injunctive relief should be deferred until after

discovery.” Doc. 23 at 25. And, importantly, plaintiff’s Complaint never asks for prospective

injunctive relief that would allow him to assert his official capacity claims against the individual

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defendants consistent with Ex Parte Young. Thus, the Ex Parte Young exception does not apply

here.

To the extent plaintiff seeks to amend his Complaint to include a request for injunctive

relief, he may file the appropriate motion under Fed. R. Civ. P. 15 and D. Kan. Rule 15.1. The

court cautions, however, that any requested injunctive relief must seek prospective relief that the

named individual defendants have the power to perform. See Klein v. Univ. of Kan. Med. Ctr.,

975 F. Supp. 1408, 1417 (D. Kan. 1997) (explaining that a federal court may grant prospective

injunctive relief against a state official acting in his or her official capacity but “the state official

must have the power to perform the act required in order to overcome the jurisdictional bar of the

Eleventh Amendment” (citing Ex Parte Young, 209 U.S. at 157)).

Many of plaintiff’s “preliminary proposals” for injunctive relief seek retroactive relief.

See Doc. 23 ¶ A (seeking an order that “Defendants engage[d] in conduct subject to penalty

under 42 U.S.C. § 1983 and Title VII”), ¶ B (seeking an order that “Defendants engaged in a

sham investigation and a cover-up involving allegations of a bias incident at ESU” and requiring

defendants to “retract their claim that at fair, logical and thorough investigation was done”), ¶ D

(seeking an order requiring the ESU Bulletin (a student newspaper) to retract “false statements

attributed to [plaintiff], and admit to publishing false narratives and allegations against

[plaintiff]”), ¶ E (seeking an order requiring defendants “ to contact all media entities previously

contacted by them to inform them that their ‘investigation’ into the allegations made by

[plaintiff] was biased and falsified to make it appear that ESU was discrimination and hate-

free”). Also, many of plaintiff’s “preliminary proposals” seek relief that the named individual

defendants lack the power to implement. See id. ¶ C (seeking an order requiring Ms. Rittgers

(who is not a defendant in the case) “to submit to a forensic handwriting examination and

20
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polygraph test to determine whether she wrote the racial epithet”), ¶ D (seeking an order

requiring the ESU Bulletin (not a defendant in this case) to retract statements). Plaintiff cannot

assert such claims and avoid application of the Eleventh Amendment immunity bar.

Thus, if plaintiff seeks leave to amend his Complaint to request injunctive relief of this

kind, the request would be futile because the Ex Parte Young exception does not exempt these

claims from the Eleventh Amendment’s sovereign immunity bar. See Foman v. Davis, 371 U.S.

178, 182 (1962) (explaining that a court may deny leave to amend based on the futility of the

proposed amendment).

IV. Conclusion

For the reasons explained above, the court grants in part and denies in part defendants’

Motion for Judgment on the Pleadings. The court grants defendants’ motion against plaintiff’s

Title VII claims and his official capacity claims against the individual defendants. The court

denies the motion to the extent it seeks dismissal of plaintiff’s § 1983 claim against the

individual defendants in their individual capacities.

IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ Motion for

Judgment on the Pleadings (Doc. 21) is granted in part and denied in part.

IT IS SO ORDERED.

Dated this 14th day of July, 2017, at Topeka, Kansas.

s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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Case 5:16-cv-04182-DDC-TJJ Document 30 Filed 07/14/17 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANGELICA HALE,

Plaintiff,

vs.
Case No. 16-4182-DDC-TJJ
EMPORIA STATE UNIVERSITY,
GWEN ALEXANDER,
DAVID CORDLE, and
JACKIE VIETTI,

Defendants.

MEMORANDUM AND ORDER

Plaintiff Angelica Hale brings this action pro se against defendants Emporia State

University (“ESU”), Gwen Alexander, David Cordle, and Jackie Vietti. Plaintiff alleges that her

former employer, ESU, retaliated against her by terminating her employment because she

complained about racial discrimination. She asserts a Title VII retaliation claim against ESU.

Plaintiff also alleges that defendants Alexander, Cordle, and Vietti retaliated against her after she

exercised her right to speak out against discrimination and racism. She asserts a First

Amendment retaliation claim under 42 U.S.C. § 1983 against these three individuals.

Defendants have filed a Motion to Dismiss all of plaintiff’s claims under Fed. R. Civ. P.

12(b)(6). Doc. 17. Plaintiff has filed an Opposition to defendants’ Motion. Doc. 19. And,

defendants have submitted a Reply. Doc. 15. After considering the parties’ arguments, the court

grants defendants’ motion in part and denies it in part. The court grants defendants’ Motion to

Dismiss the official capacity claims asserted against defendants Alexander, Cordle, and Vietti.

The court denies the motion in all other respects.
Case 5:16-cv-04182-DDC-TJJ Document 30 Filed 07/14/17 Page 2 of 19

I. Factual Background

The following facts are taken from plaintiff’s Complaint (Doc. 1). The court accepts the

facts asserted in the Complaint as true and views them in the light most favorable to plaintiff.

Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citing

Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The court also construes

plaintiff’s allegations liberally because she proceeds pro se. See Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991) (holding that courts must construe pro se litigant’s pleadings liberally and

hold them to a less stringent standard than formal pleadings drafted by lawyers).

Plaintiff is an African-American female. On July 1, 2014, ESU hired plaintiff as an

Assistant to the Dean for Marketing in the School of Library and Information Management

(“SLIM”) at ESU. Also on July 1, 2014, ESU hired plaintiff’s spouse, Dr. Melvin Hale, as an

Assistant Professor in the SLIM.

In December 2014, Dr. Hale complained to Dr. Gwen Alexander, Dean of SLIM, about

Debra Rittgers, Office Manager and Assistant to the Dean of SLIM. Dr. Hale accused Ms.

Rittgers of racial discrimination directed at him as well as his wife (plaintiff). Dr. Alexander

refuted Dr. Hale’s claim. Dr. Alexander told Dr. Hale that Ms. Rittgers had not committed any

acts of racial discrimination. Dr. Alexander also told Dr. Hale that he and his wife probably

were too sensitive, and she asked if his wife was going through menopause.

Dr. Hale told Dr. Alexander that plaintiff would not return to work at the SLIM unless

her employer satisfied certain conditions, including moving plaintiff to a private office on the

fourth floor of the building, away from Ms. Rittgers. Plaintiff believes that her move to the

fourth floor office then created “unspoken tensions in the workplace.” Doc. 1 ¶ 26. After

plaintiff’s office move, Ms. Rittgers stopped communicating with plaintiff unless necessary. Ms.

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Case 5:16-cv-04182-DDC-TJJ Document 30 Filed 07/14/17 Page 3 of 19

Rittgers also failed to transfer plaintiff’s phone to the upstairs office for almost six months. And,

Ms. Rittgers interfered with plaintiff’s assignments to a graduate assistant by giving the graduate

assistant conflicting assignments.

On April 8, 2015, the graduate assistant arrived at work to find that someone had

unlocked her office, tampered with its contents, and wrote the word “NIGGAZ” on a notepad on

her desk. The graduate assistant reported what she found to plaintiff. Plaintiff believes that the

racial slur was directed at her and her husband, and that the graduate assistant who reported it to

her merely served as a conduit to deliver the message.

Plaintiff and Dr. Hale reported the incident to Dr. Alexander and requested that she

investigate it. Plaintiff believes that Dr. Alexander did nothing to investigate the matter. In late

June 2015, the Hales reported the incident to Dr. David Cordle, ESU’s Provost, and Judy

Anderson, Director of Human Resources. The Hales also reported the incident to the ESU Police

Department and attempted to file a police report. According to plaintiff, the ESU Police

Department refused to investigate the matter. The Hales also called the Lyon County Attorney

and left a message asking that he call them to discuss a possible hate crime at ESU. The Lyon

County Attorney never returned this phone call. According to plaintiff, the Lyon County

Attorney chose not to investigate the matter and concluded that no crime had occurred after

relying on information that ESU provided.

Dr. Hale then wrote a letter to Dr. Jackie Vietti, ESU’s Interim President, asking her to

investigate the April 8, 2015 incident and reporting his belief that he and his wife were victims of

retaliation. Shortly after Dr. Hale sent the letter, a Human Resources employee contacted the

Hales, explaining that he was assembling a report about the incident for Dr. Vietti. The Hales

met with the Human Resources employee separately. During their conversations, they each

3
Case 5:16-cv-04182-DDC-TJJ Document 30 Filed 07/14/17 Page 4 of 19

discussed their concerns about the April 8, 2015 incident. They also reported the earlier

incidents of discrimination by Ms. Rittgers.

The Hales later learned that the Human Resources employee charged with writing the

report about the incident was a family friend of Ms. Rittgers. The Hales accused the employee

of bias and asked that he recuse himself from the investigation. The employee refused to recuse.

Dr. Vietti also refused to remove the employee from reporting the matter.

Plaintiff alleges that Dr. Alexander began to treat her and her husband differently than

others in the SLIM after they reported the April 8, 2015 incident to Provost Cordle and the ESU

Police Department. On July 7, 2015, Dr. Alexander came to the fourth floor to visit all of the

faculty members on that floor but refused to visit the Hales. Afterwards, Dr. Hale went to the

third floor to talk to Dr. Alexander. During this conversation, Dr. Alexander expressed

disappointment that the Hales had reported the April 8, 2015 incident to the Provost and the ESU

Police Department. Dr. Alexander said that the Hales’ performance had been stellar leading up

to their complaints, but that she felt blindsided by their allegations that she and Ms. Rittgers had

engaged in misconduct. Dr. Alexander told Dr. Hale that she had hoped he would have

overlooked the April 8, 2015 incident because he could have served as a model for professional

behavior by an African-American. Dr. Alexander also expressed frustration that the Hales

wanted something done about the incident. She told him that he should accept the incident

because “[t]his is Kansas.” Doc. 1 ¶ 78.

Plaintiff was a contractual employee when she started working for the SLIM. According

to plaintiff, Dr. Alexander promised that she would make plaintiff a permanent employee

because she was doing an excellent job. Dr. Alexander encouraged plaintiff to complete her

Bachelor’s degree so that she could earn a higher salary and have the opportunity for promotions

4
Case 5:16-cv-04182-DDC-TJJ Document 30 Filed 07/14/17 Page 5 of 19

at ESU. Plaintiff enrolled in classes at ESU starting in the fall of 2015, so that she could work

toward her degree. But, after the Hales complained to the Provost and the ESU Police

Department about the April 8, 2015 incident, Dr. Alexander told plaintiff that ESU would not

renew her contract and that she would not become a permanent employee. Because of this

decision, plaintiff had to drop her enrollment in the college courses at ESU.

Plaintiff resigned from ESU two weeks before her contract ended. She did so because

Dr. Alexander had asked her to interact with Ms. Rittgers in what plaintiff perceived as a

demeaning and subservient manner. After plaintiff resigned, Dr. Alexander sent an email to the

SLIM faculty praising plaintiff’s work, informing them of her resignation, and asking for

recommendations to fill the vacant position. Plaintiff alleges that this email shows that Dr.

Alexander did not terminate plaintiff’s contract based on her performance or a budget shortfall.

Instead, plaintiff asserts that Dr. Alexander terminated her contract as retaliation for plaintiff

complaining about racial discrimination. Plaintiff also alleges that Dr. Cordle and Dr. Vietti

ignored her and her husband’s complaints about racial discrimination and retaliation for

reporting discrimination.

II. Motion To Dismiss Standard Under Fed. R. Civ. P. 12(b)(6)

Fed. R. Civ. P. 8(a)(2) provides that a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Although this Rule “does

not require ‘detailed factual allegations,’” it demands more than “[a] pleading that offers ‘labels

and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” which, as the

Supreme Court explained, “will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

5
Case 5:16-cv-04182-DDC-TJJ Document 30 Filed 07/14/17 Page 6 of 19

“To survive a motion to dismiss [under Fed. R. Civ. P. 12(b)(6)], a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Id. (quoting Twombly, 550 U.S. at 570). “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.” Id. (citing Twombly, 550 U.S. at 556). “Under

this standard, ‘the complaint must give the court reason to believe that this plaintiff has a

reasonable likelihood of mustering factual support for these claims.’” Carter v. United States,

667 F. Supp. 2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red Hawk, L.L.C. v. Schneider,

493 F.3d 1174, 1177 (10th Cir. 2007)).

Although the court must assume that the factual allegations in the complaint are true, it is

“not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 1263

(quoting Iqbal, 556 U.S. at 678). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice” to state a claim for relief. Bixler v.

Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at 678).

III. Analysis

Defendants assert that the two claims plaintiff asserts in her Complaint fail to state a

claim sufficient to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6). The court

addresses plaintiff’s two claims separately, below.

A. Plaintiff’s Title VII Claim Against ESU

Title VII prohibits an employer from discriminating against an employee “because [she]

has opposed any practice made an unlawful employment practice by this subchapter, or because

[she] has made a charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To state a retaliation

6
Case 5:16-cv-04182-DDC-TJJ Document 30 Filed 07/14/17 Page 7 of 19

claim under Title VII, a plaintiff must allege: “(1) that [she] engaged in protected opposition to

discrimination, (2) that a reasonable employee would have found the challenged action

materially adverse, and (3) that a causal connection existed between the protected activity and

the materially adverse action.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193,

1202 (10th Cir. 2006) (citations and footnote omitted).

Defendants assert that plaintiff’s Complaint fails to allege facts sufficient to satisfy the

first element of a Title VII retaliation claim against ESU. That is, defendants argue that

plaintiff’s Complaint never alleges that she engaged in protected opposition to discrimination.

Defendants contend that plaintiff made just one complaint of racial discrimination—when she

and her husband reported the racial slur found in her graduate assistant’s office on April 8, 2015.

Relying on an unpublished Tenth Circuit decision, defendants assert that this one complaint is

insufficient to constitute protected opposition to discrimination and support a Title VII retaliation

claim. See Robinson v. Cavalry Portfolio Servs., LLC, 365 F. App’x 104, 112 (10th Cir. 2010)

(“A complaint of a single racist remark by a colleague, without more, is not “opposition

protected by Title VII.” (citing Jordan v. Alt. Res. Corp., 467 F.3d 378, 380 (4th Cir. 2006)).

In Robinson, the plaintiff brought a Title VII retaliation claim against her former

employer. The plaintiff alleged that the employer had fired her as retaliation for providing a

witness statement about a conversation she had with a co-worker who repeatedly used the word

“nigger” and then made a racist comment. 365 F. App’x at 108. After trial, the jury returned a

verdict for plaintiff on the retaliation claim, and the district court denied the employer’s motion

for directed verdict. Id. at 110. The Tenth Circuit reversed, concluding that the plaintiff had

failed to establish a prima facie case of retaliation with her one complaint about a single racist

remark. Id. at 113–14. The Circuit explained: “No reasonable person could have believed that

7
Case 5:16-cv-04182-DDC-TJJ Document 30 Filed 07/14/17 Page 8 of 19

the single . . . incident violated Title VII’s standard. It is undisputed that the employees’ reports,

including [plaintiff’s] do not claim [the employer] did anything wrong.” Id. at 113.

Robinson differs from the facts alleged in plaintiff’s Complaint here for several reasons.

First, Robinson involved a report of just a single racial remark. But, plaintiff’s Complaint in this

case alleges more than that. First, plaintiff alleges that her husband complained to Dr. Alexander

in December 2014 about Debra Rittgers and “several instances” of racially discriminatory

conduct directed at either him or his wife. Doc. 1 ¶ 15. Second, plaintiff alleges that she and her

husband reported the racial slur found in the graduate assistant’s office to Dr. Alexander and

requested that she investigate it. Third, plaintiff alleges that she and her husband reported the

racial slur to Dr. Cordle, ESU’s Provost. Fourth, plaintiff alleges that her husband wrote a letter

to Dr. Jackie Vietti, ESU’s Interim President, asking her to investigate the racial slur and

reporting his belief that he and his wife were victims of retaliation. Fifth, plaintiff alleges that

she met with the Human Resources employee charged with writing a report about the racial slur.

Plaintiff asserts that she discussed with the Human Resources employee both her concerns about

the April 8, 2015 incident and earlier incidents of discrimination by Ms. Rittgers. Finally,

plaintiff alleges that, when Dr. Hale met with Dr. Alexander on July 7, 2015, Dr. Alexander said

“she was ‘blindsided’ by allegations of misconduct direct towards her and Rittgers.” Id. ¶ 76

(emphasis added). This allegation confirms that plaintiff complained not only about the April 8,

2015 incident but also about Dr. Alexander and Ms. Rittgers.

Viewing all of these facts in the light most favorable to plaintiff, the Complaint alleges

that plaintiff reported more than just one incident of racial discrimination to ESU on more than

one occasion. The court recognizes that plaintiff’s husband made some of the reports, but

viewing the allegations in plaintiff’s favor, the Complaint alleges that plaintiff’s husband was

8
Case 5:16-cv-04182-DDC-TJJ Document 30 Filed 07/14/17 Page 9 of 19

complaining for her. See O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1255 (10th Cir. 2001)

(concluding that “whether [plaintiff] or his attorney wrote the letter is wholly irrelevant” when

“[t]he letter was an informal complaint which disclosed [plaintiff’s] dissatisfaction with his new

position” and characterized it “as retaliatory conduct”). For example, with the first complaint in

December 2014, plaintiff’s husband told Dr. Alexander that plaintiff would not return to work at

the SLIM unless ESU met certain conditions, including that plaintiff move to a different office,

away from Ms. Rittgers—a request that Dr. Alexander accommodated, according to the

Complaint’s allegations. These facts are sufficient to show that plaintiff complained about more

than just a single racist remark.

Second, Robinson differs from the facts alleged here because, in Robinson, the plaintiff

conceded in her witness statement that, at first, she was not offended by the comment. She said

that she didn’t think her co-worker had used the racial slur negatively but was “just using the

term to describe a certain situation.” Id. at 108. In contrast, here, plaintiff’s Complaint describes

the alleged discriminatory acts as hostile and hate speech. Robinson also emphasized that

plaintiff’s report did not claim that the employer did anything wrong; instead, it was the co-

employee making the racist comment. Id. at 113. But, here, plaintiff accuses ESU of

wrongdoing—she contends that ESU administrators either failed to investigate her complaints

properly or ignored them.

Finally, the Tenth Circuit considered plaintiff’s retaliation claim in Robinson in the

context of a post-trial motion for a directed verdict, and not a motion to dismiss. In contrast,

here, plaintiff’s allegations are sufficient at this early stage of the litigation if they “nudge[ ] [her]

claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 555. Plaintiff’s

Complaint in this case has satisfied that standard.

9
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Defendants also cite a Supreme Court case holding that an employer was entitled to

summary judgment against a plaintiff’s retaliation claim when she alleged only a single

discriminatory act. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (per curium)

(holding that “[n]o reasonable person could have believed that the single incident recounted

above violated Title VII’s standard” when plaintiff’s “job required her to review the sexually

explicit statement in the course of screening job applicants[,]” “[h]er co-workers who

participated in the hiring process were subject to the same requirement,” and plaintiff “conceded

that it did not bother or upset her to read” the discriminatory statement). Breeden differs from

the facts alleged here for many of the same reasons that Robinson is different. Most importantly,

Breeden involved just one discriminatory remark. In contrast, plaintiff’s Complaint here alleges

more than a single complaint about the use of one racial slur in the workplace. Plaintiff alleges

that she and her husband complained about that incident and several other alleged discriminatory

acts by Ms. Rittgers on several, independent occasions. These allegations suffice to state a

retaliation claim under Title VII and thus survive a Rule 12(b)(6) motion to dismiss.

B. Plaintiff’s § 1983 Claim Against the Individual Defendants

Defendants assert that three arguments support dismissal of plaintiff’s retaliation claim

under § 1983 against the three individual defendants. First, defendants argue that plaintiff’s

Complaint fails to state a claim under § 1983 because her alleged speech is not a matter of public

concern entitled to First Amendment protection. Second, defendants assert that even if

plaintiff’s speech is a matter of public concern, defendants Alexander, Cordle, and Vietti are

entitled to qualified immunity against plaintiff’s § 1983 claim. Finally, defendants contend that

Eleventh Amendment immunity bars plaintiff’s official capacity claim against defendants

Alexander, Cordle, and Vietti.

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1. Does plaintiff’s Complaint allege protected speech that is a
matter of public concern?
The Supreme Court has held that “a public employee does not relinquish First

Amendment rights to comment on matters of public interest by virtue of government

employment.” Connick v. Myers, 461 U.S. 138, 140 (1983) (citing Pickering v. Bd. of Educ.,

391 U.S. 563, 568 (1968)). But, at the same time, the Supreme Court recognizes that “[w]hen a

citizen enters government service, the citizen by necessity must accept certain limitations on his

or her freedom” because “[g]overnment employers, like private employers, need a significant

degree of control over their employees’ words and actions; without it, there would be little

chance for the efficient provision of public services.” Garcetti v. Ceballos, 547 U.S. 410, 418

(2006) (citations omitted). The Supreme Court thus instructs courts to balance carefully the

competing “interests of the [employee], as a citizen, in commenting upon matters of public

concern and the interest of the State, as an employer, in promoting the efficiency of the public

services it performs through its employees.” Helget v. City of Hays, Kan., 844 F.3d 1216, 1221

(10th Cir. 2017) (quoting Lane v. Franks, 134 S. Ct. 2369, 2374 (2014) (further quotation

omitted)).

To balance those competing interests carefully, the court applies the five step

Garcetti/Pickering test to determine whether plaintiff has stated a First Amendment retaliation

claim. Id. The five steps require the court to consider these five factors:

(1) whether the speech was made pursuant to an employee’s official duties; (2)
whether the speech was on a matter of public concern; (3) whether the
government’s interests, as employer, in promoting the efficiency of the public
service are sufficient to outweigh the plaintiff’s free speech interests; (4) whether
the protected speech was a motivating factor in the adverse employment action;
and (5) whether the defendant would have reached the same employment decision
in the absence of the protected conduct.

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Id. at 1221–22 (quoting Trant v. Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014) (further

quotation omitted)). The first three steps are questions of law for the court to decide. Id.

(citation omitted). The last two steps are questions of fact. Id. (citation omitted).

Defendants argue that plaintiff fails to allege facts to support the second element of this

test—that plaintiff’s speech involved a matter of public concern. This element requires the

employee to allege that her speech “involves a matter of public concern and not merely a

personal issue internal to the workplace.” Moore v. City of Wynnewood, 57 F.3d 924, 931 (10th

Cir. 1995) (citing Connick, 461 U.S. at 146–47); see also Morris v. City of Colo. Springs, 666

F.3d 654, 661 (10th Cir. 2012) (“[S]peech relating to internal personnel disputes and working

conditions ordinarily will not be viewed as addressing matters of public concern.” (citation and

internal quotation marks omitted)). In other words, “speech that simply airs ‘grievances of a

purely personal nature’ typically does not involve matters of public concern.” Brammer-Hoelter

v. Twin Peaks Charter Acad., 492 F.3d 1192, 1205 (10th Cir. 2007) (quoting Connick, 461 U.S.

at 147–48).

Speech is a matter of public concern “when it can be fairly considered as relating to any

matter of political, social, or other concern to the community, or when it is a subject of legitimate

news interest; that is, a subject of general interest and of value and concern to the public.” Lane,

134 S. Ct. at 2380 (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). “The inquiry turns on

the ‘content, form, and context’ of the speech.” Id. (quoting Connick, 461 U.S. at 147–148). In

Connick v. Myers, the Supreme Court stated that “racial discrimination” is “a matter inherently

of public concern.” 461 U.S. at 148 n.8; see also Quigley v. Rosenthal, 327 F.3d 1044, 1060

(10th Cir. 2003) (explaining that Connick stated that “‘racial discrimination,’ at least in the

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context of public-employment, is ‘a matter inherently of public concern.’” (quoting Connick, 461

U.S. at 148 n.8)).

Defendants assert that plaintiff never alleges that her speech involved a matter of public

concern because the Complaint only alleges that plaintiff spoke of a personal grievance arising

out of her own working conditions. The court doesn’t read plaintiff’s Complaint so narrowly.

Instead, construing the Complaint’s allegations liberally and viewing them in the light most

favorable to plaintiff, it appears that plaintiff’s speech addressed both her personal grievances

and a purported culture at ESU that allegedly discriminates against African-Americans. For

example, the Complaint alleges that “ESU fosters a white-dominated culture that does not appear

to feel the need to diversify, starting from the top down.” Doc. 1 ¶ 39. The Complaint also

alleges that plaintiff and her husband’s complaints “represented a threat to the racial lens at the

SLIM.” Doc. 1 ¶ 33. And, the Complaint alleges that the Hales attempted to report the racial

slur incident as a hate crime with the ESU Police Department but that the ESU Police

Department Chief refused to investigate the matter and concluded that no crime had occurred.

Construing these allegations liberally and in the light most favorable to plaintiff, the Complaint

alleges that plaintiff’s complaints about racial discrimination involved both her own personal

complaints and speech about a matter of public concern sufficient to survive a Rule 12(b)(6)

motion to dismiss.

The court recognizes that discovery eventually may support or fail to support the

Complaint’s allegations. But, at this stage, plaintiff’s Complaint only needs to assert facts that,

accepted as true, allege plaintiff’s speech addressed a matter of public concern. Plaintiff has

satisfied this pleading standard sufficient to survive defendants’ motion to dismiss.

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2. Are defendants entitled to qualified immunity?
“Qualified immunity ‘gives government officials breathing room to make reasonable but

mistaken judgments about open legal questions.’” Lane, 134 S. Ct. at 2381 (quoting Ashcroft v.

al–Kidd, 563 U.S. 731, 743 (2011)). This doctrine “protects ‘all but the plainly incompetent or

those who knowingly violate the law.’” al-Kidd, 563 U.S. at 743 (quoting Malley v. Briggs, 475

U.S. 335, 341 (1986)). Qualified immunity shields a government official from a money damages

award in his or her personal capacity “unless ‘the official violated a statutory or constitutional

right,’ and ‘the right was “clearly established” at the time of the challenged conduct.’” Lane,

134 S. Ct. at 2381 (quoting al-Kidd, 563 U.S. at 735). So, on a motion to dismiss based on

qualified immunity, “a court must consider ‘whether the facts that a plaintiff has alleged . . .

make out a violation of a constitutional right,’ and ‘whether the right at issue was clearly

established at the time of defendant’s alleged misconduct.’” Leverington v. City of Colo.

Springs, 643 F.3d 719, 732 (10th Cir. 2011) (quoting Pearson v. Callahan, 555 U.S. 223, 232

(2009)). The Supreme Court has held that courts have discretion to decide “which of the two

prongs of the qualified immunity analysis” to address “first in light of the circumstances in the

particular case at hand.” Pearson, 555 U.S. at 236.

“Although qualified immunity defenses are typically resolved at the summary judgment

stage, district courts may grant motions to dismiss on the basis of qualified immunity.” Thomas

v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). Asserting a qualified immunity defense in a

Rule 12(b)(6) motion, however, “subjects the defendant to a more challenging standard of review

than would apply on summary judgment.” Id. (quoting Peterson v. Jensen, 371 F.3d 1199, 1201

(10th Cir. 2004)). This is so because at the motion to dismiss stage, the court scrutinizes

defendants’ conduct as alleged in the complaint for “objective legal reasonableness.” Behrens v.

Pelletier, 516 U.S. 299, 309 (1996). But, on summary judgment, the plaintiff no longer can rest

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on the pleadings, and the court considers the evidence in the summary judgment record when

conducting the qualified immunity inquiry. Id.

Here, the court concludes that plaintiff’s Complaint alleges facts sufficient to establish

that the individual defendants violated a clearly established constitutional right. The Complaint

alleges that defendants Alexander, Cordle, and Vietti terminated plaintiff’s employment contract

in retaliation for exercising her First Amendment rights to speak out against discrimination and

racism. As explained in the above section, Supreme Court precedent clearly establishes that “a

state cannot condition public employment on a basis that infringes the employee’s

constitutionally protected interest in freedom of expression.” Connick, 461 U.S. at 142; see also

Lane, 134 S. Ct. at 2377 (“[P]ublic employees do not renounce their citizenship when they

accept employment, and this Court has cautioned time and again that public employers may not

condition employment on the relinquishment of constitutional rights.” (citations omitted)).

Indeed, the Supreme Court has found it “essential that public employees be able to speak out

freely [on matters of public concern] without fear of retaliat[ion].” Connick, 461 U.S. at 149; see

also Lane, 134 S. Ct. at 2377 (“Speech by citizens on matters of public concern lies at the heart

of the First Amendment,” and “[t]his remains true when speech concerns information related to

or learned through public employment.”).

The court thus concludes that plaintiff’s Complaint alleges that the individual defendants

violated a clearly established constitutional right when they terminated plaintiff’s employment

contract as retaliation for her exercise of First Amendment protected speech. Plaintiff’s

Complaint sufficiently alleges facts to support this claim. So, defendants are not entitled to

qualified immunity at this stage in the proceedings.

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3. Does Eleventh Amendment immunity bar plaintiff’s official
capacity claims?
Finally, defendants assert that the Eleventh Amendment bars plaintiff’s official capacity

claims against defendants Alexander, Cordle, and Vietti. The Eleventh Amendment generally

bars suits against states and their agencies based on their sovereign immunity. Levy v. Kan.

Dep’t of Soc. and Rehab. Servs., 789 F.3d 1164, 1168 (10th Cir. 2015) (quoting Bd. of Trs. of

Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001) (“The ultimate guarantee of the Eleventh

Amendment is that nonconsenting States may not be sued by private individuals in federal

court.”)). But, three exceptions to Eleventh Amendment immunity exist:

First, a state may consent to suit in federal court. Second, Congress may abrogate
a state’s sovereign immunity by appropriate legislation when it acts under Section
5 of the Fourteenth Amendment. Finally, under Ex parte Young, 209 U.S. 123, 28
S. Ct. 441, 52 L.Ed. 714 (1908), a plaintiff may bring suit against individual state
officers acting in their official capacities if the complaint alleges an ongoing
violation of federal law and the plaintiff seeks prospective relief.

Id. (quoting Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012)).

Here, defendants assert that the Eleventh Amendment bars plaintiff’s official capacity

claims against the three individual defendants (who are state officials) because the State never

has consented to suit under § 1983, Congress never has abrogated the states’ sovereign immunity

from those suits, and plaintiff’s Complaint just seeks retroactive money damages as relief. The

court agrees. See Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1196 & n.13 (10th Cir. 1998)

(explaining that the Eleventh Amendment barred plaintiff’s §§ 1981, 1983, and 1985 claims for

money damages against state officials in their official capacities); see also Hale v. Emporia State

Univ., No. 15-4947-SAC-KGS, 2016 WL 917896, at *3 (D. Kan. Mar. 8, 2016) (holding that the

Eleventh Amendment barred plaintiff’s § 1983 claims for money damages against ESU and the

individual defendants in their official capacities).

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In her Opposition to defendants’ Motion to Dismiss, plaintiff asserts that her claims fall

within the Ex Parte Young exception to the Eleventh Amendment’s guarantee of sovereign

immunity. Doc. 19 at 18. Ex Parte Young held that “the Eleventh Amendment generally will

not operate to bar suits so long as they (i) seek only declaratory and injunctive relief rather than

monetary damages for alleged violations of federal law, and (ii) are aimed against state officers

acting in their official capacities, rather than against the State itself.” Hill v. Kemp, 478 F.3d

1236, 1255–56 (10th Cir. 2007) (citing Ex Parte Young, 209 U.S. at 159–60). But, plaintiff

concedes that her Complaint never requests the requisite declaratory or injunctive relief, as the

Ex Parte Young exception demands. Plaintiff’s Opposition provides “preliminary proposals” of

injunctive relief but contends “that the specific mode of any injunctive relief should be deferred

until after discovery.” Doc. 19 at 19. And, importantly, her Complaint never asks for

prospective injunctive relief that would allow her to assert her official capacity claims against the

individual defendants consistent with Ex Parte Young. Thus, the Ex Parte Young exception does

not apply here.

To the extent plaintiff seeks to amend her Complaint to include a request for injunctive

relief, she may file the appropriate motion under Fed. R. Civ. P. 15 and D. Kan. Rule 15.1. The

court cautions plaintiff, however, that any requested injunctive relief must seek prospective relief

that the three named individual defendants have the power to perform. See Klein v. Univ. of

Kan. Med. Ctr., 975 F. Supp. 1408, 1417 (D. Kan. 1997) (explaining that a federal court may

grant prospective injunctive relief against a state official acting in his or her official capacity but

“the state official must have the power to perform the act required in order to overcome the

jurisdictional bar of the Eleventh Amendment” (citing Ex Parte Young, 209 U.S. at 157)).

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Many of plaintiff’s “preliminary proposals” for injunctive relief seek retroactive relief.

See Doc. 19 ¶ A (seeking an order that “Defendants engaged in conduct subject to penalty under

42 U.S.C. § 1983 and Title VII”), ¶ B (seeking an order that “Defendants engaged in a sham

investigation and a cover-up involving allegations of a bias incident at ESU” and requiring

defendants to “retract their claim that at fair, logical and thorough investigation was done”), ¶ D

(seeking an order requiring the ESU Bulletin (a student newspaper) to retract “false statements

attributed to [plaintiff] or her husband, and admit to publishing false narratives and allegations

against [plaintiff]”). Also, many of plaintiff’s “preliminary proposals” seek relief that the three

named individual defendants lack the power to implement. See id. ¶ C (seeking an order

requiring Ms. Rittgers (who is not a defendant in the case) “to submit to a forensic handwriting

examination and polygraph test to determine whether she wrote the racial epithet”), ¶ D (seeking

an order requiring the ESU Bulletin (not a defendant in this case) to retract statements), ¶ E

(seeking reinstatement for plaintiff as Assistant to the Dean for Marketing in SLIM). Plaintiff

cannot assert such claims and avoid application of the Eleventh Amendment immunity bar.

Thus, if plaintiff seeks leave to amend her Complaint to request injunctive relief of this

kind, the request would be futile because the Ex Parte Young exception does not exempt these

claims from the Eleventh Amendment’s sovereign immunity bar. See Foman v. Davis, 371 U.S.

178, 182 (1962) (explaining that a court may deny leave to amend based on the futility of the

proposed amendment).

IV. Conclusion

For the reasons explained above, the court grants in part and denies in part defendants’

Motion to Dismiss. The court grants defendants’ Motion to Dismiss plaintiff’s official capacity

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claims against defendants Gwen Alexander, David Cordle, and Jackie Vietti, but denies the

motion in all other respects.

IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ Motion to

Dismiss (Doc. 17) is granted in part and denied in part.

IT IS SO ORDERED.

Dated this 14th day of July, 2017, at Topeka, Kansas.

s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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