McGettigan v. DiMare et al

Filing 34

ORDER. ORDERED that defendant's Motion to Dismiss 16 is GRANTED inpart and DENIED in part. ORDERED that plaintiff's defamation claim is DISMISSED. ORDERED that plaintiff's claims against defendants Board of Governors of the Colorado State University System and Lesley Di Mare in her official capacity are DISMISSED without prejudice. Signed by Judge Philip A. Brimmer on 03/24/16.(jhawk, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00097-PAB-KLM
TIMOTHY McGETTIGAN,
Plaintiff,
v.
LESLEY Di MARE, President of the Colorado State University - Pueblo, in her individual
and official capacities and
BOARD OF GOVERNORS OF THE COLORADO STATE UNIVERSITY SYSTEM, by
and on behalf of COLORADO STATE UNIVERSITY,

Defendants.

ORDER

This matter is before the Court on the Motion to Dismiss [Docket No. 16] filed by
defendants Lesley Di Mare and the Board of Governors of the Colorado State
University System.1 This case arises out of an email sent by plaintiff Timothy
McGettigan, a sociology professor at Colorado State University - Pueblo (“CSU-P”) and
CSU-P President Di Mare’s ensuing limitation of plaintiff’s university email and
computer access. Docket No. 1 at 1, 3, ¶¶ 1, 7. T his Court has subject matter
jurisdiction over plaintiff’s federal claims pursuant to 28 U.S.C. § 1331 and
supplemental jurisdiction over plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.

1

Since defendants filed the instant motion to dismiss, the parties have conferred
and agree that the only remaining claims are against President Di Mare in her individual
capacity. See Docket No. 25 at 1 n.1. Accordingly, the Court treats plaintiff’s claims
against the Board of Governors of the Colorado State University System and President
Di Mare in her official capacity as abandoned.

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I. BACKGROUND2
In December 2013, Colorado State University System Chancellor Michael Martin
announced a budget shortfall for 2015. Id. at 4, ¶ 10. After CSU-P President Di Mare
announced a plan to address the budget shortfall that could eliminate up to fifty CSU-P
positions, Professor McGettigan sent a series of mass emails in December 2013 and
January 2014 to members of the CSU-P community expressing his opposition to the
CSU-P plan. Id., ¶¶ 10, 12. Chancellor Martin announced that he w ould visit CSU-P on
January 17, 2014 to hold a public meeting to discuss the budget and termination plan.
Id., ¶ 14.3
On December 23, 2013, Professor McGettigan sent an email to faculty, staff, and
students challenging CSU-P’s determination that there was a budget shortfall and
arguing that the termination plan would be detrimental to CSU-P students. Id. at 5,
¶ 16. On December 23, 2013, Professor McGettigan also circulated to faculty members
a report from an independent analyst concluding that termination of staff was not

2

The following facts are taken from plaintiff’s complaint and are presumed true
for purposes of resolving this motion. Plaintiff’s factual allegations are presumed true
unless, as noted herein, they are legal conclusions, conclusory, or contradicted by other
allegations of plaintiff. See Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir.
2012) (“conclusory and formulaic recitations” of the elements “are insufficient to survive
a motion to dismiss”); DPWN Holdings (USA), Inc. v. United Air Lines, Inc., 747 F.3d
145, 152 (2d Cir. 2014) (holding that “general allegations that are contradicted by more
specific allegations in the Complaint” need not be accepted as true (quotation omitted)).
3

Although plaintiff does not directly acknowledge it, the emails that he sent in this
case were sent through CSU-P’s email system. This fact is implied through the action
that he alleges President Di Mare took – suspending his access to CSU-P’s email and
electronic resources, Docket No. 1 at 9, ¶ 28. His use of CSU-P’s email system to send
the emails in question is also the predicate to his challenge to the university’s Computer
Resource Access Policy. See id. at 11, ¶¶ 39-41.
2

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necessary to resolve the budget shortfall. Id., ¶ 17. Professor McGettigan encouraged
students to attend Chancellor Martin’s January 17, 2014 meeting. Id., ¶ 15.
On January 14, 2014, Professor McGettigan sent an email to all students
regarding comments made by Chancellor Martin at a January 6, 2014 meeting about
the termination plan. Id. at 5-6, ¶ 18. Professor McGettigan summarized the meeting
as follows:
According to Chancellor Martin, here’s what CSU-Pueblo must do to dig
itself out of the ugly mess it’s in and achieve its grandest and most
glorious aspirations:
1. Quit wasting money on CSU-Pueblo students. They are losers who
live in a worthless corner of Colorado.
2. Divert money that would otherwise be wasted on CSU-Pueblo students
to Chancellor Martin’s brainchild, CSU-Denver.
3. Subsidize higher education for wealthier, more populous and (let’s face
it) altogether superior students in Denver.
4. Since CSU-Pueblo students are going to fail anyway, they won’t really
miss out on the educational opportunities that their brainier CSU Sy stem
administrators are stealing from them. Anyway, CSU-Pueblo-types are
going to be much happier working for minimum wage at McDonald’s than
in professions that (let’s face it) would overtax their limited mental
faculties.
So there it is. The future in a nutshell. Chancellor Martin is committed to
transferring educational resources that would be wasted on CSU-Pueblo
students to create more and better educational opportunities f or rich kids
who can (let’s face it) make better use of them.
Id. at 6, ¶ 18.
The next day, on January 15, 2014, Professor McGettigan sent an email
encouraging faculty, staff, and friends of CSU-P to gather at the university’s central
fountain on January 17, 2014, demonstrate against the termination decision, and call
for a “no confidence” vote in Chancellor Martin. Id., ¶ 19.

3

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The next day, on January 16, 2014, Professor McGettigan sent an email to
“members of the university community” notifying them of a lunch hour protest that same
day against the termination plan and reminding them of the January 17, 2014
demonstration. Id. at 7, ¶ 20.
On January 17, 2014, Professor McGettigan sent an email to members of the
CSU-P community titled “Children of Ludlow.” In that message, he drew an analogy
between Chancellor Martin’s termination decision and the actions of the militia and
camp guards who massacred striking coal miners and their families in Ludlow, Colorado
in 1914. Id., ¶ 21. Professor McGettigan’s email states in part:
The hitmen massacred those people. Coldly and methodically, the hitmen
turned their guns on women and children. The hitmen riddled the little
tent village in Ludlow with bullets, and then they set that village alight.
Amidst the screams of helpless, defenseless souls, the hitmen stood back
and watched in satisfaction as the hopes and dreams of southern
Coloradoans went up in smoke.
**
Today, the people of southern Colorado are still struggling to get their own
little piece of the American Dream. They aren’t looking for handouts or
special treatment. They just want to make a decent living and give their
kids a chance at a brighter future.
In recompense for this unpardonable sin, CSU Chancellor Michael Martin
has assembled a hit list. Today, Michael Martin is traveling to CSUPueblo to terminate the 50 people who are on his hit list. In his own way,
Michael Martin is putting a gun to the head of those 50 hard-working
people while he also throws a burning match on the hopes and dreams of
their helpless, defenseless families.
**
When the hitman returns today, the Children of Ludlow will once again be
called upon to withstand the onslaught of a merciless enemy. I can’t roll
back the clock to help children who died at the hands of pitiless hitmen a
hundred years ago. But I swear to God, I will not abandon the Children of
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Ludlow when they face the latest in a long history of hitmen who have
terrorized southern Colorado.
Docket No. 16-1 at 1.
Less than an hour after reading Professor McGettigan’s “Children of Ludlow”
email, and before Chancellor Martin’s public meeting, President Di Mare terminated
Professor McGettigan’s access to electronic resources at CSU-P, including his email
account, without any notice to him. Docket No. 1 at 9, ¶ 28. Professor McGettigan’s
ability to send group emails has not been restored. Id. at 10, ¶ 33. Less than two
weeks after Professor McGettigan sent his “Children of Ludlow” email, President
Di Mare rescinded approval of a one-term sabbatical for which Professor McGettigan
had previously been approved. Id., ¶ 34.
A few days after the suspension of Professor McGettigan’s access to CSU-P
electronic resources, a spokeswoman for CSU-P sent an email to Inside Higher Ed, a
national news publication, indicating that plaintiff had violated a university policy, and
which attached a statement from President Di Mare. Id. at 11-12, ¶ 42; see also Docket
No. 16-2. Inside Higher Ed published this information on January 20, 2014 as follows:
UPDATE: On Monday afternoon, a spokeswoman for Colorado StatePueblo sent an email to Inside Higher Ed saying that McGettigan had
violated the policy on use of electronic communications. Further, she
released a statement from President Lesley Di Mare, in which she invoked
recent incidents of violence in education. “Considering the lessons we’ve
all learned from Columbine, Virginia Tech, and more recently Arapahoe
High School, I can only say that the security of our students, faculty, and
staff are our top priority,” Di Mare said. “CSU-Pueblo is facing some
budget challenges right now, which has sparked impassioned criticism
and debate across our campus community. That’s entirely appropriate,
and everyone on campus–no matter how you feel about the challenges at
hand–should be able to engage in that activity in an environment that is
free of intimidation, harassment and threats. CSU-Pueblo has a
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wonderful and vibrant community, and the university has a bright future.
I’m confident that we can solve our challenges with respectful debate and
creative problem-solving so that we can focus on building that future
together.”
Docket No. 17-1 at 2-3.
On January 14, 2015, Professor McGettigan filed his complaint. Docket No. 1.
Professor McGettigan asserts a 42 U.S.C. § 1983 claim for alleged violations of his First
Amendment rights and a state common law defamation claim against President
Di Mare. Id. at 2, ¶ 4. 4 On March 17, 2015, President Di Mare moved to dismiss
plaintiff’s complaint pursuant to Fed. R. Civ. P. 12(b)(6). Docket No. 16. President Di
Mare argues that she is entitled to qualified immunity on Professor McGettigan’s First
Amendment claims, Docket No. 16 at 4, and that Professor McGettigan’s defamation
claim fails as a matter of law because her statement was not libel per se. Id. at 11.
II. STANDARD OF REVIEW
The Court’s function on a Rule 12(b)(6) motion for failure to state a claim upon
which relief can be granted is not to weigh potential evidence that the parties might
present at trial, but to assess whether the plaintiff’s complaint alone is sufficient to
4

Plaintiff also challenged the CSU-P Computer Resource Access Policy under
the First Amendment and the Due Process Clause of the Fourteenth Amendment,
seeking a declaration of its unconstitutionality and an injunction against its enforcement.
Docket No. 1 at 11, ¶ 41. President Di Mare states that CSU-P has rev ised the
Computer Resource Access Policy and the newly revised policy does not include the
language referenced in the complaint. Docket No. 16 at 11 n.3. Plaintiff does not
dispute this assertion. See Docket No. 17 at 5 n.1. “[A] superseding statute or
regulation moots a case. . . to the extent that it removes challenged features of the prior
law.” Citizens for Responsible Gov’t State Political Action Comm. v. Davidson, 236 F.3d
1173, 1182 (10th Cir. 2000) (quoting Coalition for the Abolition of Marijuana Prohibition
v. City of Atlanta, 219 F.3d 1301, 1310 (11th Cir. 2000)). Accordingly, plaintiff’s
challenges have been mooted by CSU-P’s implementation of a new Computer
Resources Access Policy.
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plausibly state a claim. Fed. R. Civ. P. 12(b)(6); see also Dubbs v. Head Start, Inc.,
336 F.3d 1194, 1201 (10th Cir. 2003). In doing so, the Court “must accept all the wellpleaded allegations of the complaint as true and must construe them in the light most
favorable to the plaintiff.” Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir.
2007) (quotation marks and citation omitted). At the same time, however, a court need
not accept conclusory allegations. Moffett v. Halliburton Energy Servs., Inc., 291 F.3d
1227, 1232 (10th Cir. 2002).
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must
allege enough factual matter that, taken as true, makes the plaintiff’s “claim to relief . . .
plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W ]here the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged–but it has not shown–that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration
marks omitted); see also Khalik, 671 F.3d at 1190 (quoting Twombly, 550 U.S. at 570)
(“A plaintiff must nudge [his] claims across the line from conceivable to plausible in
order to survive a motion to dismiss.”). If a complaint’s allegations are “so general that
they encompass a wide swath of conduct, much of it innocent,” then plaintiff has not
stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted). Thus, even
though modern rules of pleading are somewhat forgiving, “a complaint still must contain
either direct or inferential allegations respecting all the material elements necessary to

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sustain a recovery under some viable legal theory.” Bryson v. Gonzales, 534 F.3d
1282, 1286 (10th Cir. 2008) (alteration marks omitted).
III. ANALYSIS
A. Qualified Immunity
Under the doctrine of qualified immunity, “government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Upon a public official’s assertion of a qualified immunity defense, plaintiff
bears a “heavy burden” under a two-pronged analysis. Buck v. City of Albuquerque,
549 F.3d 1269 (10th Cir. 2008). Under the f irst prong of the analysis, a plaintiff is
required to “establish that the defendant’s actions violated a constitutional or statutory
right.” Smith v. Cochran, 339 F.3d 1205, 1211 (10th Cir. 2003) (quoting Holland ex rel.
Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001)). T he determination of
whether a violation occurs under the first prong of the qualified immunity analysis turns
on substantive law regarding that right. See, e.g., Casey v. City of Fed. Heights, 509
F.3d 1278, 1282-83 (10th Cir. 2007).
Under the second prong, the plaintiff must show that the constitutional right at
issue was “clearly established” at the time of the defendant’s alleged misconduct.
Saucier v. Katz, 533 U.S. 194, 201 (2001), abrogated on other grounds by Pearson v.
Callahan, 555 U.S. 223, 236 (2009). “A plaintiff can demonstrate that a constitutional
right is clearly established by reference to cases from the Supreme Court, the Tenth

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Circuit, or the weight of authority from other circuits.” Gann v. Cline, 519 F.3d 1090,
1092 (10th Cir. 2008) (quoting Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006))
(internal quotation marks omitted). A plaintiff need not identify “a case directly on point,
but existing precedent must have placed the statutory or constitutional question beyond
debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. Ct. 2074, 2083 (2011). “[C]ontrary
authority from other circuits does not preclude a finding that the law in this circuit was
clearly established, if the contrary authority can be distinguished.” Currier v. Doran, 242
F.3d 905, 923 (10th Cir. 2001). “If the plaintiff fails to carry either part of his two-part
burden, the defendant is entitled to qualified immunity.” Albright v. Rodriguez, 51 F.3d
1531, 1535 (10th Cir. 1995). A court may exercise its discretion in “deciding which of
the two prongs of the qualified immunity analysis should be addressed first in light of
the circumstances.” Pearson, 555 U.S. at 236.
Defendant argues that the proper test for determining whether a government
employee’s First Amendment rights have been violated is the “Garcetti/Pickering” test.
Docket No. 16 at 6. See Garcetti v. Ceballos, 547 U.S. 410 (2006); Pickering v. Bd. of
Educ., 391 U.S. 563 (1968). Plaintiff disagrees and asserts that Worrell v. Henry, 219
F.3d 1197 (10th Cir. 2000), provides the relevant test because defendant is not
plaintiff’s employer and she is sued only in her individual capacity. The Court agrees
with defendant. A state statute establishes that the CSU-P president is the “chief
executive officer” whose “duty [is] to see that the rules and regulations of the board of
governors of the Colorado state university system and the faculty are observed and
executed.” Colo. Rev. Stat. § 23-31.5-105. Moreover, plaintiff alleges that defendant

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had the authority to curtail his access to CSU-P’s electronic resources and to cancel his
sabbatical. Accordingly, the Garcetti/Pickering test is the proper standard for evaluating
President Di Mare’s assertion of qualified immunity for suspending and limiting
Professor McGettigan’s access to CSU-P’s electronic resources. See Leverington v.
City of Colo. Springs, 643 F.3d 719, 728 (10th Cir. 2011) (“The framework set forth in
Pickering and Garcetti is traditionally applied in free-speech cases in which the public
employer is the same individual or entity that takes the adverse action at issue against
the employee”) (citing Worrell, 219 F.3d at 1209-10 (“the Pickering balancing has been
most frequently applied to adverse actions taken by employers–individuals. . . who have
the authority to make hiring and firing decisions and take other personnel actions.”)).
The five-prong Garcetti/Pickering test considers:
(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.
Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009) (citation om itted).
Defendant emphasizes the lack of clearly established law suggesting that what
she did would violate plaintiff’s constitutional rights. Docket No. 16 at 8-9; Docket No.
20 at 5-6. In so doing, defendant overlooks the importance of developing the facts
necessary for understanding the context in which the speech occurred. As noted in
Mullenix v. Luna, --- U.S. ----, 136 S. Ct. 305, 308 (Nov. 9, 2015), the “dispositive
question is ‘whether the violative nature of particular conduct is clearly established.’”
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(quoting al-Kidd, 131 S. Ct. at 2074 (emphasis added)). “This inquiry ‘must be
undertaken in light of the specific context of the case, not as a broad general
proposition.’” Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)).
With the importance of understanding the context of the speech and the nature of
defendant’s conduct in mind, the Court turns to application of the Garcetti/Pickering
test.
Defendant does not suggest that plaintiff was acting pursuant to his official duties
when he sent the email, which is the first prong of the Garcetti/Pickering test.
Moreover, for purposes of the motion to dismiss, defendant does not contest that
plaintiff’s speech was on a matter of public concern, which is the second prong. Docket
No. 20 at 3. Defendant offers no reasons that plaintiff has not also satisfied the fourth
and fifth prongs of the Garcetti/Pickering test. Thus, as in Dixon, 553 F.3d at 1304, the
third prong is the nub of defendant’s motion.
After determining that the employee’s speech is protected by virtue of passing
the first two prongs, the court in step three decides “whether the employee’s interest in
commenting on the issue outweighs the interest of the state as employer.” Id. (citing
Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192, 1203 (10th Cir.
2007)). “Although this element is framed as a ‘balancing’ test, this Court has held that
First Amendment rights are protected unless the employer shows that some restriction
is necessary to prevent the disruption of official functions or to insure effective
performance by the employee.” Id. (citing Gardetto v. Mason, 100 F.3d 803, 815 (10th
Cir. 1986)) (quotation marks omitted). Thus, the employer must demonstrate that the

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restrictions at issue were necessary. As Dixon explained, “unless the government
employer can show that the termination was based on legitimate reasons grounded in
the efficient conduct of public business, there is no need to proceed to balancing , and
the First Amendment interest of the plaintiff prevails.” Id. When assessing the third
prong, “a court should generally consider ‘whether the [speech] impairs discipline . . .,
has a detrimental impact on close working relationships . . ., or impedes the
performance of the speaker’s duties or interferes with the regular operation of the
enterprise.” Id. at 1304 (citing Gardetto v. Mason, 100 F.3d 803, 815 (10th Cir. 1996)).
“[A] public employer does not have to wait for speech actually to disrupt core operations
before taking action.” Kent v. Martin, 252 F.3d 1141, 1145 (10th Cir. 2001). T he
employer, however, “cannot rely on purely speculative allegations that certain
statements caused or will cause disruption.” Gardetto, 100 F.3d at 815.
Defendant asserts that she restricted plaintiff’s access to online resources based
on her belief that plaintiff’s speech could be disruptive and pose a safety or security
concern. Docket No. 16 at 9. Specifically, defendant contends that she was concerned
that his email “could have incited violence on campus.” Id.
The email directly calls the Chancellor a “hitman” and calls on readers to
“withstand the onslaught of a merciless enemy” and “face the latest in a
long history of hitmen who have terrorized southern Colorado. The email
compares the Chancellor to hitmen who “massacred those people. Coldly
and methodically, the hitmen turned their guns on women and children.
The hitmen riddled the little tent village in Ludlow with bullets, and then
they set that village alight.” The email uses violent imagery, contending
that the Chancellor was “putting a gun to the head” of staff members
“while he also throws a burning match on the hopes and dreams of their
helpless, defenseless families.

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Id. (internal citations omitted).5
Before a court even applies the balancing test in the third prong of the
Garcetti/Pickering test, defendant must show “legitimate reasons grounded in the
efficient conduct of public business.” Dixon, 553 F.3d at 1304. Defendant does not do
this. For example, in the course of identifying her reasons for limiting plaintiff’s access
to the university’s electronic resources, defendant does not explain, as required by
Dixon, id., that her actions were “necessary to prevent” the harm that she feared.
According to the complaint, “[l]ess than an hour after reading Professor McGettigan’s
‘Children of Ludlow’ email, and prior to Chancellor Martin’s public meeting, [President
Di Mare] terminated Professor McGettigan’s access to electronic resources at CSU-P,
including his email account.” Docket No. 1 at 9, ¶ 28. Plaintiff does not allege, and
defendant does not suggest, that the university somehow withdrew the “Children of
Ludlow” email. Since it was not withdrawn, the email would continue to have whatever
effect of inciting violence that it had when first issued. Given that fact, defendant does
not explain how cutting off plaintiff’s university email privileges helped prevent the
possibility of violence and why it was necessary to go further and terminate, albeit
temporarily, plaintiff’s access to all CSU-P electronic resources. There is also no

5

When asserting her motivations for imposing the restrictions on plaintiff,
defendant’s motion does not cite plaintiff’s violation of any university policy and, in fact,
denies that the restrictions were based on a violation of the Computer Resource Access
Policy. Docket No. 16 at 10 (“Plaintiff’s as-applied challenges [to the Computer
Resource Access Policy] should be dismissed under Rule 12(b)(6) because he has not
plausibly alleged – nor could he – that the challenged language in the policy was ever
applied to him.”). Although the motion does not cite it as a justification for defendant’s
actions, defendant states that a letter sent to plaintif f identified the Electronic
Communication Policy as the basis for her actions. Docket No. 16 at 11 n.4.
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explanation of what operative assumptions defendant had about how widely
disseminated plaintiff’s “Children of Ludlow” email was, how likely it was for plaintiff to
send another email that could further incite violence, and what type of violence the
email could incite.
The Tenth Circuit in Trant v. State of Oklahoma, 426 F. App’x 653 (10th Cir.
2011) (unpublished), was faced with similar unanswered questions. Like this case, the
defendants filed a motion to dismiss based on qualified immunity. Id. at 655. Like this
case, the defendants asked the court to focus its inquiry on the third prong of the
Garcetti/Pickering test. Id. at 661. The court of appeals, however, refused to do so. It
noted that the inquiry necessary under the third prong of the Garcetti/Pickering test “is
not a simple matter. While it is framed as a ‘balancing test,’ it actually places a
substantial threshold burden on the employer before balancing is even considered.” Id.
The court observed, “[a]s indicated by the repeated references in the quoted passage
[of Dixon] to the need for a ‘showing’ of the employer’s interest, this is a true burden of
demonstration, not a mere matter of hypothetical articulation.” Id. (emphasis in
original). The court then considered the facts, or lack of facts, on which the defendants
asked the court to resolve the third prong and observed:
There are certainly instances in which this court has disagreed with a
district court’s initial determination that a government employee’s speech
was unprotected but gone on to determine whether the disposition in favor
of the employer might still be affirmed at the balancing step of the inquiry.
But, in light of the considerations noted above, it should not be surprising
that such cases have involved the appeal from summary judgment —
where an adequate factual record had been developed to actually “show,”
rather than merely speculate about, the employer’s interest and to weigh it
in an informed manner against the First Amendment interests involved.

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Id. at 661-62 (citing Thomas v. City of Blanchard, 548 F.3d 1317, 1327-28 (10th Cir.
2008), and Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1333-34 (10th Cir.
2007)) (emphasis in original). The court remanded the issue to the district court for
further proceedings. Id. at 662.
In Thompson v. District of Columbia, 428 F.3d 283 (D.C. Cir. 2005), the appellate
court reviewed a district court’s order granting a municipal employer’s motion to dismiss
plaintiff’s claim that he was terminated in retaliation for exercising his First Amendment
rights. Like this case, the defendants in Thompson only contested that step in the
analysis requiring the court to balance the government’s interests against those of the
plaintiff. Id. at 286. Noting that “the balancing test calls for a fact-intensive inquiry,” the
court stated that “[t]he district court could not conduct this ‘searching review’ based on
this record, nor can we. Consisting only of the complaint, the record contains no
evidence regarding the extent of Thompson’s alleged disruptiveness.” Id. In reversing,
the court held that the defendant “cannot prevail in a balancing test with no record
evidence on its side of the scale.” Id. at 287.
Here, defendant makes no attempt to confine herself to the allegations of the
complaint concerning her reasons for imposing the restrictions on plaintiff’s speech. On
a motion to dismiss, however, the Court must accept as true all well-pleaded facts.
Trant, 426 F. App’x at 659. Professor McGettigan alleges that defendant’s goal was to
“shut him up at the very time when public attention to CSU-P’s budgetary issues was at
its height,” Docket No. 1 at 9, ¶ 31, and that her actions were done in retaliation for his
email. Id. at 10, ¶ 35. Defendant does not suggest that the allegations of the

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complaint alone allow the Court to perform the balancing test for the third prong.
Nevertheless, defendant states that “the law did not clearly establish that President
Di Mare’s actions violated the third prong of this test.” Docket No. 16 at 7. W ithout a
better developed factual record, the relevance of various cases to defendant’s actions
cannot be determined. Because defendant offers only assertions of her motives
without any demonstration of her interests or of the necessity for the actions she took,
defendant’s motion to dismiss plaintiff’s First Amendment claim must be denied.
B. Defamation
As noted earlier, President Di Mare moves to dismiss Professor McGettigan’s
defamation claim because her press statement is not libelous per se.
In Colorado, “[d]efamation is a communication that holds an individual up to
contempt or ridicule thereby causing him to incur injury or damage.” Keohane v.
Stewart, 882 P.2d 1293, 1297 (Colo. 1994) (citing W. Page Keeton et al., Prosser &
Keeton on the Law of Torts § 111, at 771-85 (5th ed. 1984)). “A statem ent may be
defamatory ‘if it tends so to harm the reputation of another as to lower him in the
estimation of the community or to deter third persons from associating or dealing with
him.” Burns v. McGraw-Hill Broadcasting Co., Inc., 659 P.2d 1351, 1357 (Colo. 1983)
(quoting Restatement (Second) of Torts § 559 (1976)). A written defamatory statement
is libel. Stump v. Gates, 777 F. Supp. 808, 825 (D. Colo. 1991). “The elements of a
libel claim are: (1) a written defamatory statement of and concerning the plaintiff; (2)
published to a third party; (3) with the publisher’s fault amounting to at least negligence;
and (4) either actionability of the statement irrespective of special damages or the

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existence of special damages caused by the publication.” Id. (citing Walters v. Linhof,
559 F. Supp. 1231, 1235 (D. Colo. 1983)).
A defamatory statement may be defamation per se or defamation per quod.
“The distinction between libel per se and libel per quod is that to be libel per se the libel
must carry its defamatory imputation on its face and is actionable without an allegation
or proof of damages; but any libel which does not carry such imputation on its face is
libel per quod and is actionable only where special damages are pleaded and proved.”
Inter-State Detective Bur., Inc. v. Denver Post, Inc., 484 P.2d 131, 133 (Colo. App.
1971) (citing Bernstein v. Dun & Bradstreet, Inc., 368 P.2d 780, 782 (Colo. 1962)). In
order to establish a defamation per quod claim, specific, quantifiable monetary losses
must be pled. Bernstein, 368 P.2d at 782. Plaintiff’s complaint contains no allegations
of special damages and thus alleges only defamation per se.
“Whether a statement is defamatory per se. . . is a question of law” for the Court.
Miles v. National Enquirer, Inc., 38 F. Supp. 2d 1226, 1228 (D. Colo. 1999) (citing
Keohane, 859 P.2d at 301). “In evaluating a statement or article alleged to be libelous
per se, ‘the court must interpret alone, without aid of inducements, colloquialisms,
innuendos, and explanatory circumstances.’” Sunward Corp. v. Dun & Bradstreet, Inc.,
811 F.2d 511, 517 (10th Cir. 1987) (citing Inter-State Detective Bur., 484 P.2d at 133).
First, it is necessary for the Court to identify the statement at issue. The
complaint identifies the statement as a “prepared comment” that defendant published to
a national news publication. Docket No. 1 at 11-12, ¶ 42. T he complaint does not
quote the statement and only generally refers to its content. Defendant’s motion

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attaches the entirety of the spokeswoman’s email, which included President Di Mare’s
statement. See Docket No. 16-2. However, that is not exactly what was published in
the article. Plaintiff’s response attaches the Inside Higher Ed article, which contains the
“UPDATE” quoted earlier in this order. Docket No. 17-1. Neither party argues that the
spokeswoman’s email or the brief synopsis of such email which prefaced defendant’s
written statement in the article should be considered a part of the allegedly defamatory
statement. As a result, the Court will only consider defendant’s statement.
Defendant argues that her statement is not libel per se because it is not
defamatory on its face. Docket No. 16 at 13. Plaintiff responds that the statement is
defamatory on its face because it states that he posed “the sam e kind of security threat
as a school shooter” and it “imputes criminal activity, tends to hold Plaintiff up to public
hatred, contempt, or ridicule and reflects adversely on his character or reputation.”
Docket No. 17 at 14. Defendant replies that “[n]one of the mentioned instances of
school violence involved violence by faculty members; as a result, her reference to
those events could not be reasonably construed as inferring that Plaintiff was similar to
the perpetrators of violence in those events.” Docket No. 20 at 8 n.3.
The first sentence of the defendant’s statement says: “Considering the lessons
we’ve all learned from Columbine, Virginia Tech, and more recently Arapahoe High
School, I can only say that the security of our students, faculty, and staff are our top
priority.” Docket No. 16-2. The references to Columbine, Virginia Tech, and Arapahoe
High School would be familiar to almost any reader of the article as school shooting
incidents, but the “lessons we’ve all learned” from them is not clear. Each of those
incidents involved student shooters who had a variety of motives and varying degrees
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of mental health issues. It would be difficult to discern a lesson from those events
considered together other than that almost any school could be the scene of such a
tragedy. The second half of the sentence may shed light on the meaning of the first
half; it says that “I can only say that the security of our students, faculty, and staff are
our top priority.” Id. Thus, whatever the phrase the “lessons we’ve all learned” means,
which the Court will not attempt to use “explanatory circumstances” to interpret,
Sunward Corp., 811 F.2d at 517, the point of the first sentence seems simply to be that
the university and the university community must be vigilant about security issues.
The second sentence states that “CSU-Pueblo is f acing some budget challenges
right now, which has sparked impassioned criticism and debate across our campus
community.” Docket No. 16-2. This sentence references the subject of the
controversy, the “budget challenges,” and notes that members of the “campus
community” have become “impassioned” about this issue, which reaction the beginning
of the next sentence states is “entirely appropriate.” See id. The rest of the third
sentence, however, discusses what is not appropriate: “everyone on campus – no
matter how you feel about the challenges at hand – should be able to engage in that
activity in an environment that is free of intimidation, harassment and threats.” See id.
The last two sentences of defendant’s statement strike a note of optimism and suggest
that, instead of conducting the debate over the budget inappropriately, people should
use “respectful debate and creative problem-solving.” See id.
Assuming, without deciding, that President Di Mare’s statement referred to
plaintiff, the statement, at most, suggests that plaintiff used “intimidation, harassment

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and threats” during the debate over the budget. Plaintiff does not claim those words
defamed him.6 The statement does not link Professor McGettigan to school shooters or
suggest that “intimidation, harassment and threats” leads to school shootings. Rather,
the gist of the statement is that the debate over the budget, while impassioned, should
be free of intimidation, harassment, and threats.
The Court finds that defendant’s statement on its face is not unmistakably
injurious to plaintiff and thus is not defamatory per se. Thus, dismissal of plaintiff’s
defamation claim is proper.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that defendant’s Motion to Dismiss [Docket No. 16] is GRANTED in
part and DENIED in part. It is further
ORDERED that plaintiff’s defamation claim is DISMISSED. It is further
ORDERED that plaintiff’s claims against defendants Board of Governors of the
Colorado State University System and Lesley Di Mare in her official capacity are
DISMISSED without prejudice.

6

The complaint does not allege that the words “intimidation, harassment and
threats” were defamatory. Rather, the basis of plaintiff’s defamation claim is that
President Di Mare “asserted that Professor McGettigan posed the same kind of threat
as the mass shooters at Columbine High School, Virginia Tech, and Arapahoe High
School.” Docket No. 1 at 12.
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DATED March 24, 2016.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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