Kaufman v. University of Colorado at Boulder et al

Filing 62

ORDER denying 34 Motion to Stay. By Magistrate Judge Nina Y. Wang on 8/12/15.(nywlc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00406-LTB-NYW
DANIEL P. KAUFMAN,
Plaintiff,
v.
UNIVERSITY OF COLORADO AT BOULDER, through its Board, the Regents of the
University of Colorado,
DR. ANDREW COWELL, in his Individual Capacity, and
BRONSON HILLIARD, in his Individual Capacity,
Defendants.

ORDER DENYING INDIVIDUAL DEFENDANTS’ MOTION TO STAY
Magistrate Judge Nina Y. Wang
This action is before the court on the Joint Motion to Stay Discovery (“Individual
Defendants’ Motion to Stay”) [#34] filed by the individual Defendants Dr. Andrew Cowell
(“Defendant Cowell” or “Dr. Cowell”) and Bronson Hilliard (“Defendant Hilliard” or “Mr.
Hilliard”)1 on June 3, 2015. The Individual Defendants’ Motion to Stay was referred to the
undersigned Magistrate Judge for disposition pursuant to the Order of Reference dated April 24,
2015 [#20] and the memorandum dated June 4, 2015 [#35]. Having reviewed the Parties’ briefs,
entertained argument on August 6, 2015, and considered the applicable law, the court DENIES
the Individual Defendants’ Motion to Stay.

1

Since the filing of the Motion, Plaintiff dismissed claims against two additional Defendants, Dr.
Russell Moore and Dr. Steven Leigh, who had also moved for a stay on the basis of qualified
immunity. [#46].

DISCUSSION
This case arises from the employment relationship between Plaintiff Daniel P. Kaufman
(“Plaintiff” or “Dr. Kaufman”) and Defendant University of Colorado at Boulder (“CUBoulder”), at which Plaintiff serves as a tenured Associate Professor of Philosophy. In his
Second Amended Complaint and Jury Demand, Dr. Kaufman alleges (and the court takes as true
for the purposes of considering this instant motion) that he suffers from major depressive
disorder and severe anxiety since 2006.

[#46 at ¶ 2].

In 2012, he requested reasonable

accommodation for his disability, which included limiting his teaching duties to two days per
week in addition to his other duties. [Id.] In 2013, after concerns regarding systemic gender
discrimination and/or sexual harassment were raised, the former Chair of CU-Boulder’s
Philosophy Department, Graeme Forbes, identified Dr. Kaufman as a problem employee to Dr.
Cowell, who had assumed the position of Interim Chair of the Philosophy Department. [Id. at ¶
3]. Dr. Cowell then met with Dr. Kaufman, at which time Dr. Cowell inquired as to Dr.
Kaufman’s disability. [Id. at ¶ 4]. It is undisputed that during that meeting, Dr. Kaufman
remarked that he would not kill anyone unless they were “truly evil” or had “Hitler’s soul.” [Id.]
It is highly contested between the Parties whether such comment warranted the subsequent
actions by the part of Defendant CU-Boulder.
Dr. Kaufman was subsequently excluded from the campus, which was reported by the
Boulder Daily Camera. [Id. at ¶ 6]. Mr. Hilliard, with input from Defendant Cowell, was
responsible for the press release that led to media coverage. [Id. at ¶ 7]. As a result of his
treatment, Dr. Kaufman filed repeated Notices of Claim pursuant to the Colorado Governmental
Immunity Act in which he accused Defendants CU-Boulder, Cowell, and Hilliard of disability

2

discrimination. [Id. at ¶ 6]. In the Second Amended Complaint, Plaintiff asserts the following
claims for relief: (1) disability discrimination in violation of the federal Rehabilitation Act
against Defendant CU-Boulder; (2) unlawful retaliation in violation of the Rehabilitation Act
against Defendant CU-Boulder; (3) violation of his “due process liberty” pursuant to 42 U.S.C. §
1983 against Defendants Cowell and Hilliard; (4) state law claims for outrageous conduct and
intentional infliction of emotional distress against Defendants Cowell and Hilliard; and (5)
defamation per quod against Defendant Hilliard. [#46].
Defendants Hilliard and Cowell subsequently moved for the dismissal of all claims
against them. [#51, # 55]. However, in considering their respective motions, qualified immunity
can only apply to the third claim for relief – i.e., the violation of “due process liberty” pursuant
to 42 U.S.C. § 1983. [#51 at 8-10; #55 at 6-9]. Otherwise, dismissal of the state law claims is
argued based on Plaintiff’s purported failure to state a claim. [#51 at 11-15; # 55 at 9-13]. CUBoulder also moved to dismiss the claims against it, based on failure to state a cognizable claim.
[#52].
In the Individual Defendants’ Motion to Stay, the Individual Defendants argue that the
court should stay this action because they are entitled to a stay once they assert qualified
immunity. [#34]. They also argue that “[i]t will be unduly burdensome on the Individual
Defendants to require their continued participation in the discovery process unless or until the
Court has ruled upon the immunity issues raised in the Motions to Dismiss.” [Id. at ¶ 15]. CUBoulder did not file a Motion to Stay, nor did it join the Individual Defendants’ Motion to Stay,
but made an oral motion at the August 8 hearing that all discovery should be stayed pending the
determination of the respective Motions to Dismiss.

3

This court disagrees with the Individual Defendants’ position. Qualified immunity, at
most, affects one of the claims asserted against Defendants Cowell and Hilliard, and as counsel
conceded at argument, does not apply to CU-Boulder at all. It is well settled in this District that
the invocation of qualified immunity is not a bar to all discovery, and there is no other identified
basis for any stay with respect to CU-Boulder.. Rome v. Romero, 225 F.R.D. 640, 643 (D. Colo.
2002). In addition, even if the Individual Defendants prevail on a qualified immunity defense,
there is no guarantee that Defendants will prevail on their respective arguments that Plaintiff has
failed to plead sufficient facts to survive a dismissal pursuant to Rule 12(b)(6) on his claims
arising under the Rehabilitation Act or state law. Because the claims share a common core of
facts, the court agrees with Defendants that there appears no effective way of staying discovery
with respect to the section 1983 claim and permitting discovery to move forward on the other
claims. But contrary to Defendants’ arguments that all discovery should therefore be stayed, the
court is not convinced that Defendants have made the requisite showing that this court should
depart from the District’s general disfavor of a stay of all discovery. See String Cheese Incident,
LLC v. Stylus Shows, Inc., No. 1:02–cv–01934–LTB–PAC, 2006 WL 894955, at *2 (D. Colo.
Mar. 30, 2006). A party’s generalized statements regarding burden are insufficient to warrant a
stay of discovery. See United Financial Cas. Co. v. Lapp, Civil Action No. 12-cv-00432-MSKMEH, 2012 WL 2450217, at *2 (D. Colo. June 26, 2012). And while this court understands that
discovery may burden the individuals involved in this action and distract from their core
professional responsibilities, such is always the case for witnesses in civil litigation. Defendants
have established no particularized facts that demonstrate there will be a clearly defined and
serious harm associated with moving forward with discovery. Id.; Chavez v. Young Am. Ins. Co.,

4

Civil Action No. 06–cv–02419–PSF–BNB, 2007 WL 683973 (D. Colo. Mar. 2, 2007) (denying a
stipulated motion to stay pending a motion to dismiss pursuant to Rule 12(b)(6)). Finally,
staying discovery pending Defendants’ respective Motions to Dismiss could substantially
lengthen the duration of this case, filed in February 2015, based on actions that occurred as early
as 2013.
CONCLUSION
Therefore, based on the reasons set forth in this Order, IT IS ORDERED that:
(1) The Individual Defendants’ Joint Motion to Stay Discovery is DENIED.

DATED August 12, 2015

BY THE COURT:

s/ Nina Y. Wang
Nina Y. Wang
United States Magistrate Judge

5