Lee v. Kansas State University et al

Filing 21

MEMORANDUM AND ORDER granting in part and denying in part 12 Motion to Dismiss. Motion is granted with respect to counts 2-10 and with respect to all claims against KSU and against other defendants in their official capacities. Granting in part and denying in part with respect to count 1. Signed by District Judge Julie A. Robinson on 6/7/2013. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
)
)
Plaintiff,
)
)
v.
)
)
KANSAS STATE UNIVERSITY, et al.,
)
)
Defendants.
)
__________________________________________)
GRACE LEE,

12-cv-2638-JAR-DJW

MEMORANDUM AND ORDER
On September 28, 2012, Plaintiff Grace Lee filed a ten-count complaint against Kansas
State University (“KSU”), Dr. Carol W. Shanklin, Dr. James A. Guikema, Dr. Duane W.
Crawford, Dr. James W. Neill, Dr. Haiyan Wang, and Ms. Heather Reed (Defendants), seeking
damages related to her termination from a graduate teaching assistant (GTA) position and from
her graduate studies in statistics at KSU. Her claims include both state law claims under Kansas
law and several alleged constitutional violations under 42 U.S.C. § 1983. On November 6, 2012,
Defendants filed a Motion to Dismiss (Doc. 12), pursuant to Federal Rule of Civil Procedure
12(b)(6) and Rule 12(b)(1), which is currently before the Court. The motion is fully briefed and
the Court is prepared to rule. As described more fully below, the Court grants the motion in part
and denies the motion in part.
I. Legal Standard
The Court evaluates Defendants’ jurisdictional claim under Rule 12(b)(1). Federal courts
are courts of limited jurisdiction and, as such, must have a statutory or Constitutional basis to

exercise jurisdiction.1 A court lacking jurisdiction must dismiss the case, regardless of the stage
of the proceeding, when it becomes apparent that jurisdiction is lacking.2 The party who seeks to
invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper;3 here,
“[P]laintiff bears the burden of showing why the case should not be dismissed.”4 Mere
conclusory allegations of jurisdiction are not enough.5
Generally, a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction takes
one of two forms: a facial attack or a factual attack. “First, a facial attack on the complaint’s
allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In
reviewing a facial attack on the complaint, a district court must accept the allegations in the
complaint as true.”6 “Second, a party may go beyond allegations contained in the complaint and
challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual
attack on subject matter jurisdiction, a district court may not presume the truthfulness of the
complaint’s factual allegations. A court has wide discretion to allow affidavits, other documents,

1

Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002); see United States v. Hardage, 58 F.3d 569, 574
(10th Cir. 1995) (“Federal courts have limited jurisdiction, and they are not omnipotent. They draw their jurisdiction
from the powers specifically granted by Congress, and the Constitution, Article III, Section 2, Clause 1.”) (internal
citations omitted).
2

Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995).

3

Montoya, 296 F.3d at 955.

4

Harms v. IRS, 146 F. Supp. 2d 1128, 1130 (D. Kan. 2001).

5

United States ex rel. Hafter, D.O. v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir.

1999).
6
Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) (citing Ohio Nat’l Life Ins. Co. v. United States,
922 F.2d 320, 325 (6th Cir. 1990)) (internal citations omitted).

2

and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).”7
The Court evaluates Defendants’ non-jurisdictional arguments under Rule 12(b)(6),
which provides a vehicle for a party to challenge the legal sufficiency of a claim. The
requirements underlying the legal sufficiency of a claim stem from Rule 8(a), which requires “a
short and plain statement of the claim showing that the pleader is entitled to relief.”8 To survive
a motion to dismiss, a complaint must present factual allegations, assumed to be true, that “raise
a right to relief above the speculative level,” and must contain “enough facts to state a claim to
relief that is plausible on its face.”9 “[T]he complaint must give the court reason to believe that
this plaintiff has a reasonable likelihood of mustering factual support for these claims.”10 The
plausibility standard does not require a showing of probability that a defendant has acted
unlawfully, but requires more than “a sheer possibility.”11 “[M]ere ‘labels and conclusions,’ and
‘a formulaic recitation of the elements of a cause of action’ will not suffice; a plaintiff must offer
specific factual allegations to support each claim.”12 Finally, the Court must accept the
nonmoving party’s factual allegations as true and may not dismiss on the ground that it appears
unlikely the allegations can be proven.13

7

Id. at 1003 (citing Ohio Nat’l Life Ins. Co., 922 F.2d at 325); Davis ex rel. Davis v. United States, 343 F.3d
1282, 1296 (10th Cir. 2003).
8

Fed. R. Civ. P. 8(a).

9

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

10

Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in the original).

11

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

12

Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Twombly, 550 U.S.

at 555).
13

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

3

The Supreme Court has explained the analysis as a two-step process. For the purposes of
a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but]
we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”14 Thus,
the court must first determine if the allegations are factual and entitled to an assumption of truth,
or merely legal conclusions that are not entitled to an assumption of truth.15 Second, the court
must determine whether the factual allegations, when assumed true, “plausibly give rise to an
entitlement to relief.”16 “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.”17
II. Factual Allegations
Plaintiff’s Complaint alleges the following facts, which the Court construes in the light
most favorable to Plaintiff.
Plaintiff is a citizen of The People’s Republic of China and is a lawfully admitted
resident alien of the United States. In brief, Plaintiff Lee was a graduate student in the
Department of Statistics at KSU, but was recently dismissed from the Department of Statistics,
and, subsequently, from the KSU Graduate School. Plaintiff argues she was dismissed in
retaliation for filing formal grievances against her former major professor and for her
communications to Defendants reporting potential academic fraud on the part of a former KSU

14

Id.

15

Id. at 679.

16

Id.

17

Id. at 678.

4

Statistics PhD student. Defendants maintain Plaintiff was dismissed for failing to make adequate
academic progress, which resulted from her failure to find a replacement major professor to
supervise her doctoral research after she asked to have her other major professors removed.
Plaintiff had been enrolled in the doctoral program in the Department of Statistics of the
KSU Graduate School since the spring academic semester of 2006. Plaintiff had been in good
academic standing during the entirety of her tenure at KSU and received several academic
scholarships due to the quality of her work. Plaintiff has passed several important milestones in
pursuit of her PhD in Statistics from KSU, including passing her PhD Qualifying Exam in early
2008. Additionally, Plaintiff has completed a 225-page dissertation proposal and published three
papers. The Department of Statistics confirmed on January 30, 2012, that Plaintiff was on
schedule to graduate with her PhD in Statistics in Spring 2013. In most PhD programs, graduate
students must have a major professor who oversees their work and provides advice and
guidance; Dr. Haiyan Wang served in that role for Plaintiff.
While Plaintiff was a GTA, and thus an employee of a state agency, Wang asked her to
review and improve another KSU graduate student’s dissertation. That student was Wang’s
former advisee and had already graduated from KSU with a PhD, but the student’s dissertation
was deficient and not acceptable by any journal. After review, Plaintiff concluded that the other
student’s dissertation contained multiple instances of academic fraud. Plaintiff reported the
fraud to Wang, who asked her to fix the paper and did nothing to address the fraud itself.
Plaintiff does not identify when this episode took place.
Beginning in August 2009, Wang sometimes exhibited abusive and unprofessional
behavior toward Plaintiff Lee.

5

On October 5, 2011, Plaintiff filed a grievance with the Associate Vice President of the
KSU Office of Research and Sponsored Programs, Dr. James A. Guikema, against Wang,
requesting removal of Dr. Wang as her major professor and from the supervisory committee
overseeing and advising Lee in the pursuit of her PhD. This grievance followed months of
informal complaints by Plaintiff to the Head of the Department of Statistics, Dr. James W. Neill.
In response to the grievance, KSU failed to hold a hearing required by KSU Graduate
School grievance policies, but instead settled on a compromise suggested by the Interim
Associate Dean of the KSU College of Arts and Sciences, Dr. Joseph Aistrup. Under the
compromise solution, Neill assumed a “co-major professor” role with Wang, who requested to
continue as Plaintiff’s major professor. Neill was to act as a mediator between Wang and
Plaintiff.
Wang’s abusive and unprofessional behavior toward Plaintiff continued unabated for
several months, and, following consultation with the Associate Dean of the Graduate School, Dr.
Duane W. Crawford, Jr., Plaintiff filed another grievance against Wang on March 18, 2012,
again requesting Wang’s removal as her major professor. In response, the school granted
Plaintiff’s request and removed Wang from her role as Plaintiff Lee’s major professor and from
Plaintiff Lee’s supervisory committee.
Neill removed himself as Plaintiff’s co-major professor on or about April 9, 2012,
leaving Plaintiff without a major professor. Neill did so because he had only agreed to serve as
co-major professor in an attempt to mediate between Lee and Wang. Neil maintained that he
works in a different area of statistics and thus would not be an appropriate research supervisor.
Before Neill was removed, Plaintiff signed a form authorizing his removal, which she later

6

sought to vacate. She alleges she signed the form in error, without realizing that Department
Head Neill’s name was on the form. She also alleges that she was misled by unspecified
defendants into believing that his name was not on the form.
After Plaintiff’s two major professors were removed, she was required to find another
major professor in order to continue her studies. On April 19, 2012, Neill informed Plaintiff that
her summer GTA position was in jeopardy if she could not locate another major professor by
April 27, 2012, because GTA positions were only awarded to students making satisfactory
academic progress. Plaintiff contacted every professor within the Department of Statistics in an
attempt to locate another major professor, but was unable to secure a new major professor by
April 27, 2012, due to the complexity of her dissertation work and the high faculty turnover in
the Statistics Department. On or about April 27, 2012, Plaintiff was terminated from her
summer GTA position. Although Defendants told Plaintiff that she was terminated for her lack
of a major professor, many other graduate students within the Department of Statistics did not
have major professors at that time.
After her dismissal from the GTA position, Plaintiff continued to seek a new major
professor in the Statistics Department. Numerous professors suggested that she might have to
change to a new research topic or change to a new department in order to find a new major
professor. On April 30, 2012, Crawford told Plaintiff that he didn’t see any alternative to
Plaintiff starting her doctoral program and research anew on another topic with another major
professor, which she interpreted as a penalty for her grievances against Wang. On May 1, 2012,
Associate Vice President Guikema told Plaintiff that her chances of her completing her PhD in
the Statistics Department were “almost down to zero” and suggested Plaintiff should explore

7

discussions with graduate programs outside of the Department of Statistics.
On May 4, 2012, the Associate Dean and Director of Student Life, Heather Reed,
requested a meeting with Plaintiff and asked Plaintiff not to have any contact with faculty or
staff at the Department of Statistics or the Graduate School. When Plaintiff met with Reed and
Guikema on May 7, 2012, Guikema confirmed that Plaintiff no longer had any chances for
success in continuing her PhD in the Statistics Department. Guikema told Plaintiff that Plaintiff
could ask faculty members of other Graduate School departments if she could be a student in
their program, but stated that staying in the Department of Statistics was not an option, because
Plaintiff did not have a major professor by the April 27, 2012 deadline. Guikema told Plaintiff
that Plaintiff had approximately six weeks to be accepted into a different department within the
KSU Graduate School or she would be dismissed from the Graduate School entirely. The
Complaint does not allege any efforts by Lee to be accepted into a different department within
the KSU Graduate School.
On May 9, 2012, Plaintiff received a letter informing her that she had been recommended
for termination from the Statistics graduate program for failure to find a replacement professor.
On May 31, 2012, Plaintiff received a letter from Guikema informing Plaintiff that she was being
dismissed from the KSU Graduate School for failure to make satisfactory progress, on the
recommendation of the Statistics Department.
Plaintiff maintains that Defendants’ actions against her were retaliatory, were in bad
faith, and were in response to Plaintiff Lee’s filing of two grievances against Dr. Wang. Plaintiff
argues that her acknowledged superior academic performance at KSU’s Graduate School,
combined with the behavior of Defendants, demonstrate that Plaintiff Lee’s dismissal was not

8

due to “failure to make satisfactory progress” nor any other purported academic reason.
III. Discussion
Plaintiff alleges ten counts in her complaint.
In Count I, Plaintiff alleges a procedural due process violation, under 42 U.S.C. § 1983.
Plaintiff argues that Defendants, in their individual and official capacities, violated her
procedural due process right to continue her graduate education by dismissing her from graduate
school without providing adequate due process.
In Count II, Plaintiff alleges a substantive due process violation, also under 42 U.S.C. §
1983. Plaintiff argues that Defendants’ dismissal, based on her alleged failure to make
satisfactory academic progress, reflected poorly on Plaintiff’s good name, reputation, honor and
integrity. Plaintiff also argues that her dismissal from the program resulted in the taking of a
constitutionally protected property interest in her continued education, in violation of her
substantive due process rights, as guaranteed by the Fourteenth Amendment.
In Count III, Plaintiff alleges breach of Contract. She argues that, as an enrolled student
at KSU, she had an implied contract with KSU, which included the KSU Graduate Student
Handbook (“Handbook”). She alleges that she was not afforded the full due process rights in the
conduct of proceedings guaranteed her by the Handbook, that the Handbook is impermissibly
vague, and that, by failing to afford Plaintiff due process as per the Handbook before she was
dismissed, KSU breached its duty of good faith and fair dealing.
In Count IV, Plaintiff alleges Retaliatory Discharge. Plaintiff argues that her discharge
from her position as a Graduate Teaching Assistant was in retaliation for reporting her findings
of academic fraud, and for her filing grievances against Wang.

9

In Count V, Plaintiff alleges Defendants violated her First Amendment Right of Freedom
of Speech through Official Retaliation by Defendants, under 42 U.S.C. § 1983. Plaintiff argues
she was discharged from her employment as a GTA and dismissed from KSU as a direct result of
her protected speech as a public employee, and in direct retaliation for airing her conclusions
that another student’s dissertation contained academic fraud.
In Count VI, Plaintiff alleges intentional infliction of emotional distress, arguing that she
has suffered extreme emotional distress as a direct result of Defendants’ intentional or reckless
conduct.
In Count VII, Plaintiff alleges negligent infliction of emotional distress, arguing that she
has suffered qualifying physical injuries, as defined under Kansas law, as a result of Defendants’
conduct, including extreme and persistent abdominal pain, directly resulting from the emotional
distress caused by Defendants’ negligence.
In Count VIII, Plaintiff alleges fraudulent misrepresentation, arguing that unspecified
Defendants intentionally misled her into removing Neill as her major professor, leading to her
dismissal from the graduate school.
In Count IX, Plaintiff alleges common law civil conspiracy, arguing that Defendants
illegally conspired to dismiss Plaintiff from her PhD program. Plaintiff also alleges that
Defendants engaged in several unlawful overt acts in the course of their conspiracy, including
those alleged in Counts I, II, and V.
Finally, in Count X, Plaintiff alleges that Defendants engaged in a civil conspiracy in
violation of 42 U.S.C. § 1983. Plaintiff argues that Defendants engaged in an illegal conspiracy
to achieve their ultimate goal of dismissing Plaintiff from her PhD program, which deprived her

10

of her right to free speech and ongoing education.
The Court addresses two general arguments for dismissal by Defendants before
addressing the remaining counts on a count-by-count basis. Although Defendants also make
overarching Kansas Judicial Review Act (“KJRA”) and Kansas Tort Claims Act (“KTCA”)
arguments against Plaintiff’s state law counts, the Court dismisses those counts on other grounds
and so declines to address the KJRA and KTCA arguments.
A. Eleventh Amendment Immunity and Qualified Immunity

The Court must address two initial matters. First, Plaintiff concedes that her claims
against KSU and against the other defendants in their official capacities are barred by their
Eleventh Amendment immunity.18 This concession bars Count III, which was only alleged
against KSU, and Count IV, retaliatory discharge, because only an employer (i.e. KSU) may be
liable for retaliatory discharge under Kansas law.19 The Court notes that the Eleventh
Amendment immunity argument is Defendants’ only 12(b)(1) argument; the Court addresses the
remainder of Defendants’ arguments under 12(b)(6).
Second, Defendants also argue that the constitutional claims against Defendants in their
individual capacity are barred by qualified immunity. When a defendant claims qualified
immunity, the plaintiff bears the “heavy two-part burden” of showing (1) the defendant’s
violation of a constitutional right; and (2) that the “infringed right at issue was clearly
established at the time of the allegedly unlawful activity such that a reasonable official would

18

Doc. 19 at 10.

19

Rebarchek v. Farmers Co-op Elevator, 272 Kan. 546, 562 (2001).

11

have known that his or her challenged conduct was illegal.”20
The Court first addresses whether Plaintiff has alleged that Defendant violated a
constitutional right. The Plaintiff here argues that she has a constitutional right to due process
before she can be deprived of her property interest in her continued enrollment and graduate
education, and this argument appears to be well supported by Tenth Circuit precedent. In Goss
v. Lopez,21 the Supreme Court held that, once provided, public education becomes “a property
interest which may be protected by the Due Process Clause.” The Tenth Circuit extended and
expanded this right in Gaspar v. Bruton,22 where the court found that “in light of Goss . . . where
the Supreme Court recognized a property right in public school students, that certainly such a
right must be recognized to have vested [where a student] paid a specific, separate fee for
enrollment and attendance at [a technical] school.” Tenth Circuit decisions since then have
continued this trajectory and expanded it to a more generalized property interest in continuing
graduate education, with a concomitant procedural due process right.23 In light of these
decisions, the Court concludes that the Tenth Circuit recognizes a constitutional right to due
process before a student can be deprived of her property interest in her continued enrollment and
graduate education.

20

Martinez v. Carr, 479 F.3d 1292, 1295 (10th Cir. 2007).

21

419 U.S. 565, 574 (1975).

22

513 F.2d 843, 850 (10th Cir. 1975) (holding that an individual’s place in a post-secondary nursing
program constitutes a protected property interest).
23

Harris v. Blake, 798 F.2d 419, 422 (10th Cir. 1986) (graduate student had a property interest in his
graduate education which entitled him to due process); Gossett v. Oklahoma ex rel Bd. of Regents for Langston
Univ., 245 F.3d 1172 (10th Cir. 2001) (nursing student had a property right in his nursing education and was entitled
to due process under the U.S. Constitution); Byrnes v. Johnson County Cmty. Coll., No. 10–2690–EFM–DJW, 2011
WL 166715, at *1–*2 (D. Kan. Jan. 19, 2011) (“Defendants argue that Plaintiff has no constitutionally protected
property interest in her post-secondary education, but the law is clearly otherwise.”).

12

Defendants argue that the real alleged property interest in this case is narrower, styling it
as a Kansas graduate student’s interest in choosing a particular major professor or in maintaining
a particular research topic. But, the Complaint alleges that Defendants forced Plaintiff out of her
graduate program, not that they prevented her from choosing her own major professor or from
maintaining a particular research topic. At this stage, the facts alleged by the Plaintiff support
the broader property interest she proposes, a property interest in her continued graduate
education.
The Court next addresses whether the infringed right at issue was clearly established at
the time of the allegedly unlawful activity, such that a reasonable official would have known that
his or her challenged conduct was illegal. The Court “cannot find qualified immunity wherever
we have a new fact pattern.”24 The Tenth Circuit has “shifted the qualified immunity analysis
from a scavenger hunt for prior cases with precisely the same facts toward the more relevant
inquiry of whether the law put officials on fair notice that the described conduct was
unconstitutional.”25 “[A] general constitutional rule . . . can apply with obvious clarity to the
specific conduct in question, even though [such conduct] has not previously been held
unlawful.”26 In sum, the qualified immunity analysis requires that we determine whether a
reasonable official would have known that the conduct at issue was unconstitutional.
Defendant argues that there is no authority that would have put Defendants clearly on
notice that Lee could not be dismissed from the Graduate School for failure to make satisfactory

24

Casey v. City of Federal Heights, 509 F.3d 1278, 1284 (10th Cir. 2007).

25

Gomes v. Wood, 451 F.3d 1122, 1134 (10th Cir. 2006) (internal quotation marks and citation omitted).

26

Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006) (internal quotation marks and alteration omitted).

13

progress given her self-imposed lack of a major professor or refusal to consider changing her
research topic, but this argument again misconstrues the nature of the constitutional right in
question. Here, as the Court noted above, the right in question is the constitutional right to due
process before a student can be deprived of her property interest in her continued graduate
education. Based on the expansive precedent reviewed above, this right is clearly established,
and a reasonable official would have known that the conduct alleged by Plaintiff was
unconstitutional.
In light of the Court’s ruling on Defendants’ two immunity arguments, Counts I, II, V,
VI, VII, VIII, IX, and X remain, but only against the individual Defendants in their individual
capacities.
B. Count I - Procedural Due Process Claim, under 42 U.S.C. § 1983

Plaintiff alleges that she was deprived of two constitutionally protected interests, her
personal property right in her ongoing education and her liberty interest in her name and
reputation, each of which she claims are protected by the due process clause of the Fourteenth
Amendment to the Constitution.
To succeed on a procedural due process claim, an individual must prove two elements:
first, that she possessed a constitutionally protected liberty or property interest such that the due
process protections were applicable, and second, that she was not “afforded an appropriate level
of process.”27
Lee claims a liberty interest as one basis for her due process claim.
“[I]n order to present a viable liberty deprivation claim, the plaintiff
must demonstrate more than a mere injury to reputation; due process
27

Copelin-Brown v. N.M. State Pers. Office, 399 F.3d 1248, 1254 (10th Cir. 2005) (quotation omitted).

14

requirements are not triggered unless the injury to reputation is
entangled with the loss of a more tangible interest. The plaintiff is
also required to demonstrate that the publication of information was
false and stigmatizing. . . . [F]or a statement to be stigmatizing, a
statement must allege dishonesty, stealing or some other allegation
that gives rise to a badge of infamy, public scorn, or the like.”28
In short, the statement must be false, stigmatizing, published, and coupled with a loss of a more
tangible interest. Here, the Complaint does not allege that Defendants made a public statement
about her. Further, the school’s given reason for dismissing her, her alleged “failure to make
satisfactory progress,” is not stigmatizing; it does not allege dishonesty, stealing or some other
allegation that gives rise to a badge of infamy, public scorn, or the like. Thus, because she failed
to allege two elements of a liberty interest claim, Plaintiff cannot base her procedural due
process arguments on deprivation of a liberty interest.
Nevertheless, as indicated by the Court’s qualified immunity analysis, Plaintiff had a
protected property interest in her ongoing education. Because Plaintiff alleges she possessed a
constitutionally protected property interest such that the due process protections were applicable,
the Court turns to the question of whether she successfully alleges that was afforded an
inappropriate level of process before she was deprived of that property interest. Defendants
argue that the claim should be dismissed, because Plaintiff was provided the minimal due
process required when a school dismisses a student for academic reasons. But this argument
presupposes that the dismissal was for academic reasons. Plaintiff maintains that the purported
academic reasons were a pretext, and that the dismissal was actually disciplinary in nature,
which would require a higher standard. The question of whether the dismissal was academic or

28
Ndefru, 1993 WL 544563, at *5–*6. See also Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 579 (10th
Cir. 1996) (explicitly noting a publication requirement).

15

disciplinary is a fact question that cannot be resolved on a motion to dismiss; the facts, as alleged
by Plaintiff, suggest that the dismissal may have had some disciplinary aspect. Because the
nature of the dismissal cannot be resolved on a motion to dismiss, the Court will deny
Defendants’ motion to dismiss Count I with respect to the Defendants in their individual
capacities.
C. Count II - Substantive Due Process Claim, under 42 U.S.C. § 1983.
Plaintiff bases her substantive due process claim on her allegations that her dismissal
from graduate school, based on her alleged “failure to make satisfactory progress,” reflected
poorly on her good name, reputation, honor and integrity. Plaintiff also argues that her dismissal
constituted the kind of taking of a constitutionally protected property interest that amounts to a
substantive due process violation.
“Government action violates substantive due process when it either deprives an
individual of a fundamental right or interest or shocks the judicial conscience.”29 In this case,
Plaintiff argues the second approach, that Defendants acted in a manner shocking to the judicial
conscience. To state such a claim, a plaintiff must allege government action that is “arbitrary
and unrestrained by the established principles of private right and distributive justice.”30 “[O]nly
the most egregious official conduct can be said to be arbitrary in the constitutional sense.”31
“[A] plaintiff must do more than show that the government actor intentionally or recklessly

29

Heublein v. Wefald, 784 F. Supp. 2d 1186, 1195 (D. Kan. 2011).

30

Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10th Cir. 2008) (internal quotations omitted).

31

Id.

16

caused injury to the plaintiff by abusing or misusing government power.”32 “Plaintiffs must
show a ‘high level of outrageousness’ and a magnitude of potential or actual harm which is truly
conscience shocking.”33
Here, Plaintiff alleges in the complaint that her dismissal was arbitrary and capricious
and sufficient to shock the conscience of a reasonable person. She elaborates in her response,
arguing that Neill’s actions in having himself removed from the advisory committee should
shock the conscience of this Court and that her dismissal as a whole shocks the conscience. To
the extent that her dismissal lacked adequate process, Plaintiff may pursue her procedural due
process claim, discussed above. But more broadly, these alleged transgressions do not rise to a
level of outrageousness that shocks the conscience. A substantive due process violation requires
more than an ordinary tort, and the Court is aware of its obligation not to convert ordinary state
torts into constitutional claims. Because these allegations do not exhibit the high level of
outrageousness necessary to shock the conscience of federal judges, Defendants’ motion to
dismiss the second claim is granted.34
D. Count V - Freedom of Speech Claim, under 42 U.S.C. § 1983.
Plaintiff argues that Defendants dismissed her from graduate school in retaliation for her
statements to her advisor and other Defendants concerning academic fraud in another student’s
dissertation. Defendants make three arguments asking the Court to dismiss Plaintiff’s fifth
claim. First, Defendants argue that Plaintiff was acting as a public employee when she reported

32

Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 528 (10th Cir. 1998).

33

Taylor v. Byers, No. 10–1383–KHV, 2011 WL 3704736, *4 (D. Kan. Aug. 23, 2011) (citing Uhlrig v.
Harder, 64 F.3d 567, 574 (10th Cir. 1995)).
34

Ruiz v. McDonnell, 299 F.3d 1173, 1183 (10th Cir. 2002).

17

the academic misconduct, and that such speech is not constitutionally protected. Second,
Defendants argue that Plaintiff was not speaking on a matter of public concern, but rather was
motivated by personal concerns, such that her employment-related speech was not protected.
Third, Defendants argue that the temporal gap between the speech and the alleged retaliation was
too long to allow the Court to infer any kind of retaliation. Because the Court agrees with
Defendants’ first argument, the Court does not address the other two arguments.
In Garcetti v. Ceballos, the Supreme Court held that “when public employees make
statements pursuant to their official duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate their communications from
employer discipline.”35 Although Plaintiff now argues that she made her comments in her
individual capacity, her verified complaint clearly describes “Plaintiff Lee’s oral and written
communications to Dr. Wang, Department Head Neill and Associate Vice President Guikema,
undertaken in Plaintiff Lee’s role as a scholar and public employee of KSU.”36 She later
reiterates that the communications were “speech as a public employee.”37 In light of Plaintiff’s
own statements, the Court finds Plaintiff alleged that she was making statements pursuant to her
official duties, and thus her communications are not protected by the Constitution. For this
reason, Plaintiff’s fifth claim is dismissed.
E. Count VI - Intentional Infliction of Emotional Distress Claim.
Plaintiff argues that she has suffered extreme emotional distress as a direct result of

35

547 U.S. 410, 421 (2006).

36

Doc. 1 at 27 (emphasis added).

37

Id.

18

Defendants’ intentional or reckless conduct.
Intentional infliction of emotional distress comprises four elements:
(1) the challenged conduct was intentional or performed with reckless
disregard for the plaintiff; (2) the conduct was extreme and
outrageous; (3) a causal connection exists between the conduct and
the plaintiff’s mental distress; (4) the plaintiff’s mental distress was
extreme and severe. . . . Conduct is extreme and outrageous when it
goes beyond the bounds of decency and is utterly intolerable in a
civilized society.38
Defendants argue that the conduct of the university officials was not extreme or outrageous and
that the Complaint fails to plead facts sufficient to show that any distress suffered was severe,
extreme and continuous enough to support the tort.
Broadly, the Court agrees that Defendants’ conduct is not extreme or outrageous enough
to support a claim of intentional infliction of emotional distress. Based on Plaintiff’s own
allegations, she requested removal of her major professor and had some difficulty finding
another professor in her own department to supervise her research. She alleges that Neill
engineered his removal as her second major professor, but it is clear from the allegations that he
was not willing to continue serving in that role regardless of the method of his removal.
Although Defendants may not have provided sufficient process and may not have provided
Plaintiff with sufficient time to find a new major professor before terminating her, and although
this course of action may have been motivated by Defendants’ desire to discipline Plaintiff, such
a course of conduct is not “utterly intolerable in a civilized society.”
Moreover, Plaintiff’s allegations do not support a finding that she suffered extreme and
severe mental distress. Her complaint states states that “Plaintiff has suffered extreme and

38
Southern Star Cent. Gas Pipeline, Inc. v. Cline, 754 F. Supp. 2d 1257, 1263–64 (D. Kan. 2010)
(quotations omitted).

19

severe mental distress”39 and that “Plaintiff has suffered emotional distress to such an extreme
degree that the law must intervene because the distress inflicted has been so severe that no
reasonable person should be expected to endure it.”40 These statements do not allege facts
showing sufficient distress so much as merely state the legal conclusion that Plaintiff has
suffered sufficient distress. Such conclusory statements are insufficient to support a claim. For
these reasons, the Court will grant Defendants’ motion to dismiss with respect to Count VI.
F. Count VII - Negligent Infliction of Emotional Distress Claim.
Plaintiff also alleges that Defendants negligently caused her emotional distress. Under
Kansas law, “[t]o sustain a claim for negligent infliction of emotional distress, the plaintiff must
establish that the conduct complained of was accompanied by, or resulted in, immediate physical
injury.”41 “Physical symptoms of emotional distress such as headaches, insomnia, and general
physical upset are insufficient to state a cause of action.”42 Kansas courts have also rejected
physical effects such as diarrhea, nausea, trembling, weight gain, and sleep difficulties. A
federal court, applying Kansas law, rejected symptoms of difficult breathing, weakness, fatigue,
headaches, gastrointestinal discomfort, sexual dysfunction, knee injury, respiratory infection,
sleep disturbances, and “nerves” requiring a prescription for Paxil as insufficient to show
physical injury.43
Here, Plaintiff argues that she has suffered extreme and persistent abdominal pain,
39

Doc. 1 at 29.

40

Id.

41

Reynolds v. Highland Manor, Inc., 24 Kan. App. 2d 859, 861 (1998).

42

Id. (citing Hopkins v. State, 237 Kan. 601, 612–13 (1985)).

43

Holdren v. General Motors Corp., 31 F. Supp. 2d 1279, 1285–86 (D. Kan.1998).

20

directly resulting from the emotional distress caused by Defendants’ negligence. She also
alleges that she has had to seek medical attention for these pains. But this does not qualify as a
physical injury under Kansas law. Rather, the pain appears to be akin to headaches,
gastrointestinal discomfort, general physical upset, and other physical symptoms of emotional
distress rejected in the precedent discussed above. Defendants’ motion to dismiss Count VII is
granted.
G. Count VIII - Fraudulent Misrepresentation Claim.
Plaintiff next argues that Defendants intentionally misled her into removing Neill as her
major professor, and, as she was unable to procure a replacement advisor, this misrepresentation
led to her dismissal from the KSU Graduate School. Under Rule 9(b) of the Federal Rules of
Civil Procedure, a party alleging fraud or mistake “must state with particularity the
circumstances constituting fraud or mistake,” with general allegations only allowed for “malice,
intent, knowledge, and other conditions of a person’s mind.” Rule 9(b) applies to all claims of
fraud or mistake, including fraudulent misrepresentation.44 To survive a motion to dismiss, the
party alleging fraud must “‘set forth the time, place, and contents of the false representation, the
identity of the party making the false statements and the consequences thereof.’”45 In other
words, the alleging party must specify the “‘who, what, where, and when of the alleged fraud.’”46
Here, Plaintiff has failed to plead fraudulent misrepresentation with the required

44

See Fischerman Surgical Instruments, LLC v. Tri-Anim Health Servs., Inc., No. 06-2082-KHV, 2007 WL
85666, at *2–3 (D. Kan. Mar. 21, 2007).
45

Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246, 1252 (10th Cir. 1997) (quoting Lawrence Nat’l
Bank v. Edmonds (In re Edmonds), 924 F.2d 982, 987 (10th Cir. 1992)).
46
Jamieson v. Vatterott Educ. Ctr., Inc., 473 F. Supp. 2d 1153, 1156 (D. Kan. 2007) (quoting Plastic
Packaging Corp. v. Sun Chem. Corp., 136 F. Supp. 2d 1201, 1203 (D. Kan. 2001)).

21

specificity. Plaintiff alleged only that unspecified “Defendants” secretly added Neill’s name to
the advisor removal form and intentionally communicated to Plaintiff that only Wang would be
removed as her major advisor. Plaintiff does not allege the who, where, and when of the alleged
fraud, as required by the federal rules. Thus, the Court grants the motion to dismiss Count
VIII.47
Generally, when a pleading is insufficient under Rule 9(b), a court should allow the
offending party to amend its pleading to conform to the requirements of Rule 9(b), especially in
the early stages of litigation.48 But, in this case, additional details are unlikely to develop these
allegations into a meritorious claim. Even if Plaintiff had provided additional detail, this Court
would grant the motion to dismiss Count VIII on the merits. Under Kansas law, “[f]raudulent
misrepresentation involves an untrue statement of material fact, known to be untrue, made with
the intent to deceive or with reckless disregard for the truth, and upon which another party
justifiably relies to his or her detriment.”49 Plaintiff alleges that she justifiably relied on
Defendants’ statement, and executed the document in which she unknowingly approved the
removal of Wang and Neill. Plaintiff also alleges that Defendants hurried Plaintiff into signing
the approval form, without giving Plaintiff a meaningful opportunity to review the document.
But these allegations do not show justifiable reliance; Plaintiff signed a document that clearly
listed Neill in the “Professor(s) to be removed” column,50 and her reliance on the statements of

47

Fed. R. Civ. P. 12(f).

48

See Bowers v. Mortg. Elec. Registration Sys., No. 10-4141-JTM-DJW, 2011 WL 2149423, at *4 (D. Kan.
June 1, 2011).
49

Smith v. Stephens, 940 P.2d 68, 69–90 (Kan. App. 1997).

50

Doc. 1 at 77.

22

other people that she was not removing Department Head Neil was not justifiable in light of the
written document she signed.51
H. Counts IX and X - Common Law Civil Conspiracy and Civil Conspiracy in
Violation of 42 U.S.C. § 1983 Claims.
In Count IX, Plaintiff argues that Defendants engaged in an unlawful civil conspiracy
under state law to achieve their ultimate goal of dismissing Plaintiff from her PhD program.
Plaintiff also alleges that Defendants engaged in several unlawful overt acts in the course of their
conspiracy, including denial of Plaintiff’s substantive and procedural due process right and
violation of Plaintiff’s First Amendment right to free speech through retaliation; of these alleged
overt acts, only the procedural due process claim remains.
In Count X, her final count, Plaintiff argues that Defendants engaged in illegal civil
conspiracy under federal law to achieve their ultimate goal of dismissing Plaintiff from her PhD
program, which deprived her of her right to free speech and ongoing education.
Both a state civil conspiracy claim and a federal civil conspiracy claim require a meeting
of the minds— an agreement and concerted action amongst the defendants.52 For her state law
claim, Plaintiff alleges that “Defendants Neill, Wang, Guikema, Crawford and Shanklin overtly
conspired to participate in the unlawful acts described herein with the ultimate goal of removing
Department Head Neill as Plaintiff’s major advisor, and subsequently dismissing her from the
KSU [Graduate Program]”53 and that “[a]ll Defendants named herein were overtly involved in

51

See, e.g., Zobrist v. Coal-X, Inc., 708 F.2d 1511, 1517 (10th Cir. 1983) (holding that a purchaser may not
justifiably rely on a misrepresentation where falsity of the misrepresentation is palpable).
52

Stoldt v. City of Toronto, 678 P.2d 153, 161 (Kan. 1984).

53

Doc. 1 at 34.

23

the decision to dismiss Plaintiff from KSU.”54 These are bare, conclusory allegations. For her
federal civil conspiracy claim, Plaintiff additionally alleges that “Defendants had a ‘meeting of
the minds’ in the course of their action to dismiss Plaintiff Lee under false pretenses, as
evidenced by Defendants' consistent references to conversations with each other as to the
ultimate outcome of Plaintiff's status as a student and her planned dismissal; these references are
overt and noticeable throughout the e-mails offered as Exhibits in this case.”55 Again, these
allegations are conclusory and lack the details that would allow this Court to deny Defendants’
motion to dismiss this count.
The Tenth Circuit discussed the requirements for a Plaintiff to state a claim of civil
conspiracy in a similar case:
a plaintiff must allege specific facts showing an agreement and
concerted action amongst the defendants. Conclusory allegations of
conspiracy are insufficient to state a valid § 1983 claim.56
In that case, the court noted that conclusory allegations did not suffice. “We do not think it is
reasonable to infer, for example, that because certain . . . faculty members met with certain
administrators during the investigation, they were conspiring with one another.”57 If such facts
do not show a conspiracy under federal law, they also fail to show a meeting of the minds in
furtherance of a conspiracy under state law. In this case, Plaintiff has failed to allege sufficient
facts to show an agreement and a concerted action to deny Plaintiff the procedural due process

54

Id.

55

Id. at 35.

56

Tonkovich, 159 F.3d at 533.

57

Id.

24

rights to which she was entitled. Thus, the Court will dismiss Counts IX and X.
I. Plaintiff’s request for leave to amend the complaint

In her response, Plaintiff seeks leave to amend her Complaint in the event the Court
grants Defendants’ motion to dismiss in whole or in part. The Court declines to grant plaintiff
leave to amend absent a properly filed and supported motion for leave to amend the Complaint.58

IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motion to
Dismiss (Doc. 12) is GRANTED with respect to Counts II, III, IV, V, VI, VII, VIII, IX, and X,
and with respect to all claims against KSU and against the other defendants in their official
capacities. It is granted in part and denied in part with respect to Count I.
IT IS SO ORDERED.
Dated: June 7, 2013
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

58

See Fed. R. Civ. P. 15(a)(2); D. Kan. R. 15.1.

25