David S. Moore v. University of Kansas et al

Filing 79

MEMORANDUM AND ORDER granting in part and denying in part 35 Motion to Dismiss. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 7/28/15. (msb)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS
DAVID S. MOORE, Ph.D,
Plaintiff,
Vs.

No. 14-2420-SAC

UNIVERSITY OF KANSAS, et al.,
Defendants.
MEMORANDUM AND ORDER
The case comes before the court on the motion to dismiss filed by the
defendants Joseph A. Heppert, University of Kansas, Jeffrey S. Vitter, and
Steven Warren. (Dk. 35). This action arises from plaintiff David S. Moore’s
suspension, allegations of a hostile work environment, and eventual
termination from the position of Assistant Scientist and Director of the
Microscopy Analysis and Imaging Laboratory (“MAI Lab”) at the University of
Kansas (“KU”). In his 116-page complaint that contains 231 numbered
paragraphs, Moore alleges the violations of his rights under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12,101, et seq. (Count One) for
discrimination based on his disability and retaliation for exercising his
disability rights; the Rehabilitation, Comprehensive Services and
Developmental Disabilities Act (“Rehabilitation Act”), 29 U.S.C. § 701, et
seq. (Count Two) for discrimination based on his disability and retaliation for

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exercising his disability rights; National Defense Authorization Act, Pilot
Program for Enhancement of Contractor Protection from Reprisal for
Disclosure of Certain Information (“NDAA”), 41 U.S.C. § 4712, et seq.,
(Count Three) for being a whistleblower in disclosing mismanagement,
waste, abuses and non-compliance with federal grants and contracts; False
Claims Act, (“FCA”), 31 U.S.C. § 3730, et seq., (Count Four) for being a
whistleblower in investigating and requesting information reasonably
believed to evidence fraud and mismanagement of federal grants and
contracts; Federal Civil Rights Act, 42 U.S.C. § 1983 (Count Five) for
sustaining adverse employment action in retaliation for speaking on matters
of public concern protected by the First Amendment, namely the violation of
federal laws governing the federal funds; Federal Civil Rights Act, 42 U.S.C.
§ 1983, (Count Six) for sustaining adverse employment in violation of his
constitutional right to substantive due process; and the whistleblower
exception for retaliatory discharge to the Kansas common-law policy on
employment at will (Count Seven) for being a whistleblower and disclosing
what he reasonably believed were violations of law and KU policy.
The individual defendants, Heppert, Vitter and Warren, are sued in
their official capacities for prospective injunctive relief in four counts: ADA
(Count One), NDAA (Count Three), FCA (Count Four), and Kansas common
law retaliatory discharge action (Count Seven). They are sued in their
individual capacities for money damages and injunctive relief on the two §

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1983 counts (Counts Five and Six). The plaintiff names KU as a defendant
only in Count Two--the Rehabilitation Act and seeks reinstatement, back pay
and other equitable relief.
BRIEF SUMMARY OF FACTUAL ALLEGATIONS
KU employed Moore as an assistant scientist and director of the MAI
Lab on its Lawrence Campus from December 1, 2004, until he was
discharged on October 18, 2013. Moore alleges his action arises from KU
suspending him for four weeks without pay in September of 2013 for
“disruptive” and “unprofessional” behavior and then terminating him the
next month when his appeal of the suspension was still pending.
Both as a student at KU and an employee in different departments,
Moore informed his advisors and superiors that he had been diagnosed with
Attention Deficit Disorder/Attention Deficit and Hyperactivity Disorder
(“ADD/ADHD). And upon his employment at the MAI Lab, Moore told his
superiors/supervisors at the MAI Lab about the ADD/ADHD diagnosis. Moore
alleges he has experienced symptoms consistent with this diagnosis and has
managed them with medications, counseling, and behavioral management
skills and learning. The plaintiff asserts his ADD/ADHD may explain his
behavior that others label as unprofessional and that KU refused to discuss
or make work accommodations for his condition but only increased the work
which exacerbated his condition. The plaintiff incorporates his disability
allegations into count one (ADA), count two (Rehabilitation Act), and counts

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five and six (42 U.S.C. § 1983—First Amendment and Substantive Due
Process).
For his whistleblowing claims, the plaintiff alleges that he had made
“long-standing and repeated expressions of concern about the Federal Funds
Waste and Mismanagement, MAI Lab Renovation Project Waste and
Mismanagement and Research Misconduct-Plagiarism,” and his concerns
“were not welcomed by his superiors,” but they were “tolerated.” (Dk. 30, ¶
65). He apparently expressed his concerns in memoranda, emails and
meetings over a period of years without them being addressed as he
expected. “[F]rustrated with his superiors’ refusal to even consider, let alone
take action, regarding his concerns about . . .” these areas, the plaintiff in
April of 2013 went “outside the University . . . , and communicated” his
concerns to a significant funder of the medical research program, the
Federal Bureau of Investigation, and the Kansas City Star. Id. at ¶ 72. The
plaintiff brings his whistleblower allegations in count three (NDAA), count
four (FCA), counts five and six (42 U.S.C. § 1983—First Amendment and
Substantive Due Process), and count seven (state retaliatory discharge).
The three individual defendants moving for dismissal, as named and
identified in the amended complaint, are Dr. Jeffrey Vitter, KU’s Provost and
Executive Vice Chancellor for KU; Dr. Stephen Warren, KU’s Vice Chancellor
for Research and Graduate Studies; and Dr. Joseph Heppert, KU’s Associate
Vice Chancellor for Research and Graduate Studies.

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STANDARDS GOVERNING RULE 12(B)(6) MOTION
In deciding a Rule 12(b)(6) motion, a court accepts as true “all wellpleaded factual allegations in a complaint and view[s] these allegations in
the light most favorable to the plaintiff.” Smith v. United States, 561 F.3d
1090, 1098 (10th Cir. 2009), cert. denied, 558 U.S. 1148 (2010). This duty
to accept a complaint's allegations as true is tempered by the principle that
“mere ‘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.” Kansas Penn Gaming, LLC v. Collins, 656
F.3d 1210, 1214 (10th Cir. 2011) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)). As recently clarified by the Supreme Court, the
standard under 12(b)(6) is that to withstand a motion to dismiss, “’a
complaint must contain enough allegations of fact, taken as true, to state a
claim to relief that is plausible on its face.'” Al–Owhali v. Holder, 687 F.3d
1236, 1239 (10th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). Thus, “a plaintiff must offer sufficient factual allegations to ‘raise a
right to relief above the speculative level.’” Kansas Penn Gaming, 656 F.3d
at 1214 (quoting Twombly, 550 U.S. at 555). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 556). It follows then that if the “complaint
pleads facts that are ‘merely consistent with’ a defendant's liability it ‘stops

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short of the line between possibility and plausibility of ‘entitlement to relief.’”
Id. “‘A claim has facial plausibility when the [pleaded] factual content . . .
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.’” Rosenfield v. HSBC Bank, USA, 681 F.3d 1172,
1178 (10th Cir. 2012). “Thus, in ruling on a motion to dismiss, a court
should disregard all conclusory statements of law and consider whether the
remaining specific factual allegations, if assumed to be true, plausibly
suggest the defendant is liable.” Kansas Penn Gaming, 656 F.3d at 1214.
ADA-Count One—Official Capacity Claims--Individual Defendants
It is well established that official capacity “claims for back pay,
monetary damages, and retroactive declaratory relief are barred by the
Eleventh Amendment.” Meiners v. University of Kansas, 359 F.3d 1222,
1232 (10th Cir. 2004). At the same time, “[i]n Ex parte Young, [209 U.S.
123 (1908)], the Court held that the Eleventh Amendment generally will not
operate to bar suits so long as they (i) seek only declaratory and injunctive
relief rather than monetary damages for alleged violations of federal law,
and (ii) are aimed against state officers acting in their official capacities,
rather than against the State itself.” Hill v. Kemp, 478 F.3d 1236, 1255-56
(10th Cir. 2007), cert. denied, 552 U.S. 1096 (2008). The plaintiff believes
count one comes within these terms as count one is a suit against the
individual state officers, “Drs. Bernadette-Gray Little, Jeffery Vitter, Stephen
Warren and Joseph Heppert in their official capacities for prospective, non-

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monetary injunctive relief, namely, reinstatement, for employment
discrimination and retaliation.” (Dk. 48, p. 12).
The twist here comes in how the defendants argue for the court to
apply this holding:
The continuing violation exception to Eleventh Amendment immunity is
not without limitations. In Ex Parte Young, the Supreme Court noted
that the state official must have the power to perform the act required
in order to overcome the jurisdictional bar of the Eleventh
Amendment. Ex Parte Young, 209 U.S. at 157, 28 S.Ct. at 452–53.
None of the individuals that Klein has sued has the power to provide
him with the relief he seeks—reinstatement. The Medical Center is part
of the University of Kansas. Under K.S.A. § 76–714, the chief
executive officer of the University is the Chancellor. The Chancellor
serves “at the pleasure of” the Kansas Board of Regents. K.S.A. § 76–
714. As chief executive officer, the Chancellor appoints all employees
of the University, and those employees serve at the pleasure of the
Chancellor. K.S.A. § 76–715. The court concludes that the current
Chancellor is the only person with the authority to reinstate Klein to
his former position if so ordered. Therefore, Klein's claims for
injunctive relief against the individual defendants in their official
capacities are dismissed.
Klein v. University of Kansas Medical Center, 975 F. Supp. 1408, 1417 (D.
Kan. 1997). Applying Klein here means the KU “Chancellor is the only person
with the authority to reinstate” Moore, and the other individual defendants
must be dismissed for not having the authority to reinstate the plaintiff. Id.
The plaintiff counters first with the amended complaint’s allegation
that, “on information and belief, Dr. Gray-Little’s authority to make hiring
and firing decisions, including reinstatement of discharged employees, has
been delegated under University policies and procedures to Dr. Vitter.” (Dk.
30, ¶ 42). With regard to the defendant Warren, the plaintiff points to the

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allegation that Warren signed the plaintiff’s termination letter. (Dk. 30, ¶
82). As for all three individual defendants, including Heppert, the plaintiff
says count one properly names all three based on that count’s general
prayer for “(c) equitable relief as may be appropriate to eliminate any
patterns and practices of discrimination against faculty and academic staff of
the University . . . .” (Dk. 30, p. 90).
In reply, the defendants argue the plaintiff apparently concedes
Heppert lacks the authority to reinstate. They also summarily restate their
position that they are not proper defendants unless they possess the
authority to reinstate, and they do not address the plaintiff’s other points.
This issue was recently addressed in Klaassen v. University of Kansas
School of Medicine, ---F. Supp.3d---, 2015 WL 437747 (D. Kan. Feb. 3,
2015), clarified on reconsideration on other grounds, 2015 WL 2400773 (D.
Kan. May 15, 2015), with the court holding that the KU “Chancellor had
delegated authority to make KUMC faculty appointments to the Executive
Vice Chancellor” making the Executive Vice Chancellor “a proper defendant
who can provide prospective relief.” 2015 WL 437747 at *13. Moore similarly
alleges here that the KU Chancellor delegated reinstatement authority to
Vitter who is identified as the Executive Vice Chancellor. Based on the
complaint’s allegations and the parties’ arguments, Vitter remains a properly
named defendant. The amended complaint does not allege or provide any
legal or factual bases for inferring that Warren has the authority to reinstate

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Moore. Nor does the complaint allege any such authority resting with
Heppert. The court fails to see how the defendants Warren and Heppert
should remain as defendants to this count on a claim for reinstatement.
Warren and Heppert have not offered any arguments for the plaintiff’s
alternative claim of other “equitable relief . . . to eliminate any patterns and
practices of discrimination.” (Dk. 30, p. 90). The court finds that Warren and
Heppert are not proper parties on a claim of reinstatement, and the motion
to dismiss is otherwise denied.
Rehabilitation Act—Count Two--Defendant KU
The plaintiff concedes that punitive damages and compensatory
damages are unavailable under the Rehabilitation Act. The plaintiff agrees
his prayer for relief on this count should state, “all other appropriate relief as
may be appropriate under” the Rehabilitation. Thus, the plaintiff is not
seeking and is not entitled to recover compensatory or punitive damages on
count two.
NDAA--Count Three-- Official Capacity Claims--Individual Defendants
Count three alleges a violation of 41 U.S.C. § 4712 under the NDAA.
Effective 180 days after January 2, 2013, for a four-year period, this NDAA
amendment entitled the “Pilot Program for Enhancement of Contractor
Protection from Reprisal for Disclosure of Certain Information” provides for
enhanced whistleblower protection for federal contractor employees:
An employee of a contractor, subcontractor, or grantee may not be

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discharged, demoted, or otherwise discriminated against as a reprisal
for disclosing to a person or body described in paragraph (2)
information that the employee reasonably believes is evidence of gross
mismanagement of a Federal contract or grant, a gross waste of
Federal funds, an abuse of authority relating to a Federal contract or
grant, a substantial and specific danger to public health or safety, or a
violation of law, rule, or regulation related to a Federal contract
(including the competition for or negotiation of a contract) or grant.
41 U.S.C. § 4712(a)(1). Persons covered by this provision include, “a
management official or other employee of the contractor, subcontractor, or
grantee who has the responsibility to investigate, discover, or address
misconduct.” § 4712(a)(2). On this count, the plaintiff seeks to recover
money damages/back pay and equitable relief “to enjoin and eliminate any
patterns and practices . . . of falsely accusing faculty and academic staff of
improper conduct in order to intimidate, discipline, discharge . . . .” (Dk. 30,
p. 98).
The defendants contend first the claim of money damages is foreclosed
as Congress did not waive the state’s sovereign immunity in § 4712. The
plaintiff concedes he is not suing the individual defendants for monetary
relief and is bringing only Ex Parte Young claims against them for “nonmonetary, prospective injunctive relief, namely, reinstatement for a
continuing wrong.” (Dk. 48, ¶ 41). The parties are at odds over the
defendant’s second argument that seeks to bar the plaintiff’s claim for failure
to exhaust his administrative remedies under § 4712.
The defendants look at the plain terms of § 4712(c)(2) as requiring

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the exhaustion of administrative remedies before an aggrieved employee
may bring a de novo action of law:
(c) Remedy and enforcement authority.
....
(2) Exhaustion of remedies. If the head of an executive agency
issues an order denying relief under paragraph (1) or has not issued
an order within 210 days after the submission of a complaint under
subsection (b), or in the case of an extension of time under paragraph
(b)(2)(B), not later than 30 days after the expiration of the extension
of time, and there is no showing that such delay is due to the bad faith
of the complainant, the complainant shall be deemed to have
exhausted all administrative remedies with respect to the complaint,
and the complainant may bring a de novo action at law or equity
against the contractor or grantee to seek compensatory damages and
other relief available under this section in the appropriate district court
of the United States, which shall have jurisdiction over such an action
without regard to the amount in controversy. Such an action shall, at
the request of either party to the action, be tried by the court with a
jury. An action under this paragraph may not be brought more than
two years after the date on which remedies are deemed to have been
exhausted.
41 U.S.C. § 4712(c). As summarized by the defendants, subsection (b)
establishes a complaint procedure that begins with the employee submitting
a complaint “to the Inspector General of the executive agency involved.” §
4712(b)(1). Within 180 days, but subject to agreed extensions, the
Inspector General is to either determine that the complaint is frivolous, fails
to state a violation, or has been addressed in another proceeding, or
investigate the complaint and submit a report of its findings to complainant,
contractor, and the head of the agency. § 4712(b). Upon receiving this
report, the agency head has 30 days to decide if there is a “sufficient basis
to conclude that” retaliation has occurred. § 4712(c)(1). At this point, the

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above quoted provision clarifies that the complainant “shall be deemed to
have exhausted all administrative remedies with respect to the complaint”
and “may bring a de novo action” if the agency head has issued an order
denying relief or if the time for the agency head to issue an order has
expired. § 4712(c)(2).
The defendants argue that § 4712(c)(2) plainly links exhaustion of
administrative remedies with the bringing of the action: “the complainant
shall be deemed to have exhausted all administrative remedies with respect
to the complaint, and the complainant may bring a de novo action at law or
equity against the contractor or grantee . . . .” (bolding added). Arguing the
exhaustion requirement is plain on the face of the statute, the defendants
ask the court to enforce the statute as written. The defendants note the
similarity between § 4712 and the civil whistleblower provision of the
Sarbanes-Oxley Act, 18 U.S.C. § 1514A, which has been interpreted by the
courts to have an exhaustion of administrative remedy requirement. Zhu v.
Fed. Hous. Fin. Bd., 389 F. Supp. 2d 1253, 1272 (D. Kan. 2005) (Because
the “plaintiff does not allege that she exhausted her administrative remedies
under Sarbanes-Oxley,” the court “lacks jurisdiction over her claims under
18 U.S.C. § 1514A.”)
In response, the plaintiff argues against reading § 4712 as imposing
an exhaustion requirement because the statute reads that a complaint “may
submit a complaint to the Inspector General” and because the Inspector

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General may decline to investigate a complaint if it has been addressed in a
prior state or federal proceeding. While conceding his amended complaint
contains no allegations on exhaustion, he states that he did file a complaint
with the “Offices of Inspectors General of the National Science Foundation
and the United States Department of Health and Human Services by certified
mail, return receipt requested, on December 1, 2014.” (Dk. 48, p. 19). He
notes that the 210 days expires on July 1, 2015 and summarizes
conversations his counsel has had with the two Offices of Inspectors
General. The plaintiff asks the court to stay action on this claim pending a
final investigation ruling by the offices.
The defendants reply that the plaintiff has not alleged exhaustion and
that facts not alleged in the complaint may not be considered in a Rule
12(b)(6) motion. The defendants argue a new ground for dismissal based on
reasons given to the plaintiff’s counsel in his conversations with one Office of
Inspector General.
The court agrees with the defendants that § 4712 is properly read to
require the complainant to exhaust administrative remedies in the described
ways prior to filing an action. The federal regulation implementing the NDAA
statutory remedies is consistent with the defendants’ interpretation:
(b) Complainant’s right to go to court. If the head of the agency issues
an order denying relief or has not issued an order . . ., and there is no
showing that such delay is due to the bad faith of the complainant—
(1) The complainant shall be deemed to have exhausted all
administrative remedies with respect to the complaint; and

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(2) The complainant may bring a de novo action at law . . . .
48 C.F.R. 3.908-6 (2013). The relevant parallel language between § 4712
and whistleblower provision of Sarbanes-Oxley supports reading the former
as imposing a statutory requirement of exhaustion. Cf. Jones v. Southpeak
Interactive Corp. of Delaware, 777 F.3d 658, 668-669 (4th Cir. 2015) (“By
statute, a Sarbanes-Oxley Act whistleblower cannot go straight to court.”).
Just as Judge Vratil said in Zhu, “[t]his exhaustion requirement is
jurisdictional.” JDS Uniphase Corp. v. Jennings, 473 F. Supp. 2d 705, 710
(E.D. Va. 2007); see Mart v. Forest River, Inc., 854 F. Supp. 2d 588, 599
(N.D. Ind. 2012). This reading is consistent with the express terms of §
4712(c)(2) which require first exhaustion of “administrative remedies with
respect to the complaint” and which then permit “bring[ing] a de novo action
at law . . . in the appropriate district court of the United States, which shall
have jurisdiction over such an action without regard to the amount in
controversy.” Moreover, the NDAA provisions mirror those in the Defense
Contractor Whistleblower Protection Act, 10 U.S.C. § 2409, which have been
interpreted as having an exhaustion requirement of a jurisdictional
character. Manion v. Spectrum Healthcare Resources, 966 F. Supp. 2d 561,
565 (E.D.N.C. 2013).
Because exhaustion is a jurisdictional requirement, the court should
treat the defendants’ motion here as brought under Rule 12(b)(1) seeking
dismissal for lack of subject matter jurisdiction. See Sizova v. Nat. Institute

14

of Standards & Technology, 282 F.3d 1320, 1325 (10th Cir. 2002) (“a failure
to file an administrative charge at all, . . ., is a jurisdictional bar.”). Rule
12(b)(1) motions are typically either facial attacks on the sufficiency of
jurisdictional allegations or factual attacks on the accuracy of those
allegations. Holt v. United States, 46 F.3d 1000, 1002–03 (10th Cir.1995). A
facial attack questions the sufficiency of the allegations in the complaint as
they relate to subject matter jurisdiction. See Holt, 46 F.3d at 1002. In
reviewing a facial attack on the complaint, the court must accept all
allegations in the complaint as true. Id. The defendants’ motion is a facial
attack pointing to the absence of exhaustion allegations.
The plaintiff concedes he has not alleged exhaustion but offers that he
has presented proper administrative complaints which should be
administratively closed soon. The Tenth Circuit has held:
We recognize that “[t]he existence of federal jurisdiction ordinarily
depends on the facts as they exist when the complaint is filed.”
Newman–Green, Inc. v. Alfonzo–Larrain, 490 U.S. 826, 830, 109 S.Ct.
2218, 104 L.Ed.2d 893 (1989). But like most rules, “this one is
susceptible to exceptions.” Id. One such exception arises when a
district court allows an amendment by the parties to cure an
exhaustion problem—the precise situation in Diaz, 426 U.S. at 75, 96
S.Ct. 1883; Duplan v. Harper, 188 F.3d 1195, 1199–1200 (10th
Cir.1999); and here.
Mires v. U.S., 466 F.3d 1208, 1212 (10th Cir. 2006). There are
circumstances here to justify an exception. This is a newer statute without
any direct precedent on the issue of exhaustion. The plaintiff is currently
working to satisfy the exhaustion requirement. Thus, the court will give the

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plaintiff some reasonable time to cure this pleading deficiency. The plaintiff
will have 20 days from this order to file either an amended claim with
curative allegations for this exhaustion requirement or a report as to the
status of the administrative proceedings with an estimate on when curative
allegations may be offered. As for the defendants’ latest argument for
dismissal of this claim first raised in their reply brief, the court will not
address it.
FCA-Count Four-Suits Against States—“In Furtherance Of”
The defendants seek dismissal on two grounds, that the FCA does not
authorize suits against states and that the plaintiff has not alleged he took
any action in furtherance of an FCA claim. Their first argument is summarily
rejected, because it over-reads the holding in Klaassen v. University of
Kansas School of Medicine, ---F. Supp.3d---, 2015 WL 437747 (D. Kan. Feb.
3, 2015). The district court held that 31 U.S.C. § 3730(h) does not authorize
an FCA suit against the state or its agencies relying on the Supreme Court’s
analysis in Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989), and Vt.
Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765 (2000), and
citing decisions from other courts “that have concluded that subsection
3730(h) does not reflect the requisite congressional intent to waive state
sovereign immunity.” 2015 WL 437747 at *6-*7. The defendants want this
holding to bar the plaintiff’s official capacity suits for injunctive relief. The
holding in Klaaseen, however, must be framed within this understanding:

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States enjoy sovereign immunity from suit under the Eleventh
Amendment. See Va. Office for Prot. & Advocacy v. Stewart, ––– U.S.
––––, 131 S.Ct. 1632, 1637, 179 L.Ed.2d 675 (2011); P.R. Aqueduct &
Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct.
684, 121 L.Ed.2d 605 (1993) (“This withdrawal of jurisdiction
effectively confers an immunity from suit. Thus, this Court has
consistently held that an unconsenting state is immune from suits
brought in federal courts by her own citizens as well as by citizens of
another state.” (quotations omitted)).
But Eleventh Amendment immunity is not absolute. See Port Authority
Trans–Hudson Corp. v. Feeney, 495 U.S. 299, 304, 110 S.Ct. 1868,
109 L.Ed.2d 264 (1990). There are three exceptions. First, a state may
consent to suit in federal court. Id. Second, Congress may abrogate a
state's sovereign immunity by appropriate legislation when it acts
under Section 5 of the Fourteenth Amendment. See Va. Office for Prot.
& Advocacy, 131 S.Ct. at 1638 & n. 2. Finally, under Ex parte Young,
209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), a plaintiff may bring
suit against individual state officers acting in their official capacities if
the complaint alleges an ongoing violation of federal law and the
plaintiff seeks prospective relief. Verizon Md. Inc. v. Pub. Serv.
Comm'n of Md., 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871
(2002).
Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012).
Thus, the holding in Klaassen discusses the second of the three exceptions
and does not speak to the third exception. The defendants mistakenly argue
that an official capacity action for prospective relief is a suit against the state
for purposes of the Eleventh Amendment and sovereign immunity. (Dk. 36,
p. 15). Clearly, the law is to the contrary:
However, a suit against a state official in his or her official capacity
seeking prospective injunctive relief is not considered a suit against
the state for Eleventh Amendment purposes. See Will v. Michigan
Dep't of State Police, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 105
L.Ed.2d 45 (1989) (“Of course a state official in his or her official
capacity, when sued for injunctive relief, would be a person under §
1983 because ‘official-capacity actions for prospective relief are not
treated as actions against the State.’ ”) (quoting Kentucky, 473 U.S. at

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167 n. 14, 105 S.Ct. 3099); ANR Pipeline v. Lafaver, 150 F.3d 1178,
1188 & n. 10 (10th Cir.1998).
Branson v. School Dist. RE-82 v. Romer, 161 F.3d 619, 631-32 (10th Cir.
1998), cert. denied, 526 U.S. 1068 (1999). Thus, FCA official-capacity
claims for prospective relief are not barred by state sovereign immunity.
See, e.g., Bell v. Dean, 2010 WL 1856086, at *4 (M.D. Ala. May 4, 2010);
Wilkins ex rel. United States v. State of Ohio, 885 F. Supp. 1055, 1067 (S.D.
Ohio 1995), aff’d, 145 F.3d 1333 (6th Cir. 1998) (Table). The defendants
raise new arguments in their reply brief against the Ex parte Young
exception, specifically that the plaintiff has not alleged an ongoing violation
of federal law and that only the Chancellor has the authority to provide the
injunctive relief sought. The court will not address these arguments, as they
were first raised against this count in the defendants’ reply brief.
The second of the defendants’ original two arguments is that the
plaintiff’s alleged protected activity was not done “in furtherance” of an FCA
claim. The FCA provides at § 3730(h)(1) that, “any employee” who “is
discharged, demoted, suspended, harassed, or in any other manner
discriminated against in the terms and conditions of employment because of
lawful acts done by the employee in furtherance of an action under this
section or other efforts to stop one or more violations of” the Act may bring
suit. Thus, “[a]n employee need not actually file a qui tam action to qualify
for whistleblower protection.” McBride v. Peak Wellness Center, Inc., 688

18

F.3d 698, 704 (10th Cir. 2012).
In arguing that the plaintiff’s allegations do not meet the “in
furtherance” requirement, the defendants rely on the following propositions
found in Tenth Circuit case law. The plaintiff employee has the burden of
alleging facts that show his employer “’had been put on notice that [the
employee] was either taking action in furtherance of a private qui tam action
or assisting in an FCA action brought by the government.’” McBride v. Peak
Wellness Center, Inc., 688 F.3d at 704 (quoting United States ex rel.
Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1522 (10th Cir.
1996). Notice may be accomplished in different ways, from “informing the
employer of illegal activities that would constitute fraud on the United
States,” to “warning the employer of regulatory noncompliance and false
reporting of information to a government agency,” and to “explicitly
informing the employer of an FCA violation.” McBride, 688 F.3d at 704
(internal quotation marks and citations omitted). The notice is insufficient if
it “merely inform[s] the employer of regulatory violations, without more, . . .
because doing so gives the employer no suggestion that [the plaintiff is]
going to report such noncompliance to government officials or bring her own
qui tam action. Id. (internal quotation marks and citations omitted).
The defendants insist the plaintiff’s amended complaint does not meet
the McBride/Ramseyer standards. The amended complaint’s relevant
allegations span more than 50 pages and address fraud, misconduct and

19

mismanagement, noncompliance, waste, fictitious billing, violations of the
law and plagiarism. From that, the defendants characterize the plaintiff as
having “merely” alleged that he “’continually expressed his concerns . . . to
his superiors’ or he informed his superiors of mismanagement or
noncompliance,” that he lawfully investigated what he reasonably believed
was violations, and that he suffered retaliation after making his investigation
and informing his superiors of the suspected mismanagement and
noncompliance. (Dk. 36, pp. 16-17). These allegations, according to the
defendants, are insufficient because the plaintiff has not alleged that he
intended to make a qui tam claim or to assist with a government
investigation or that University knew the plaintiff had any such intention.
(Dk. 36, p. 17).
The plaintiff argues the McBride/Ramseyer precedent predates the
2009 and 2010 amendments to § 3730(h) which he contends have
broadened the scope of “protected activity” and relaxed the “notice” to the
employer. The plaintiff argues the prior definition of protected activity was
litigation oriented, while the current definition is not so oriented but is
expanded to include “other efforts to stop 1 or more violations.” See 31
U.S.C. § 3730(h) (2009 amendment history). This amendment became
effective on May 20, 2009. Id. A fair reading of the amendment certainly
shows the circle of protected activity has been extended from just acting in
furtherance of or assisting a FCA action to encompass “other efforts to stop”

20

a FCA violation. The amendment seems to sweep within its scope all
conduct, complaints and reports intended to stop a FCA violation. After
taking a broad look at the amended complaint, which is all that the
defendants’ motion justifies, the court is satisfied for now that the plaintiff’s
allegations meet the FCA pleading requirements for protected activity under
either definition.
It should be noted first that the amended complaint does plead many
of the plaintiff’s communications in the form of conclusions or conclusory
characterizations, as in, “expressions of concern.” See Randazzo v. CH2M
Hill, Inc., 2014 WL 4697131, at *5 (D. Colo. 2014), appeal pending, (10th
Cir. Nov. 3, 2014). The amended complaint here, however, accompanies
these “expressions of concern” with a context based on what the plaintiff
had observed or investigated and what the plaintiff had regarded as a
violation of law based on illegal or fraudulent conduct. The sheer possibility
of a gap between what was said and what was observed does not detract
from plausibility of the plaintiff’s allegations here. Moreover, there are
instances where the amended complaint does provide more detail on the
communications, “[p]laintiff informed his immediate superior, Dr. Heppert,
of his good faith and reasonable belief that use of the aforesaid instruments
would be unlawful uses and dispositions of federally funded instruments.”
(Dk. 54, ¶ 101(g).
The court’s reasons for now denying the defendants’ motion are as

21

follows. Because the defendants’ motion relies on a bird’s eye view of the
amended complaint, the court questions whether the motion even offers a
serviceable framework for deciding its merits. Assuming it does, the court is
satisfied with what it sees from this view. The court does not read and apply
the pre-2009 amendment standard found in McBride/Ramseyer as have the
defendants. Some of the analysis found in McBride is suggestive of a
heightened standard in which the employee threatens an FCA action. The
court, however, reads this decision as reviewing a summary judgment order
as distinct from the Rule 12(b)(6) stage here in which the plaintiff’s
allegations need only permit a reasonable inference of facts to support this
element of protected activity/notice. See Lipka v. Advantage Health Group,
Inc., 2013 WL 5304013 at *5 n. 4 (D. Kan. 2013). The Tenth Circuit also
looks at this heightened language as the employees’ way of making “’clear
their intention of bringing or assisting in an FCA action in order to overcome
the presumption that they are merely acting in accordance with their
employment obligations.’” McBride, 688 F.3d at 704 (quoting Ramseyer, 90
F.3d at 1523 n. 7); see U.S. ex rel. Sikkenga v. Regence Bluecross, 472 F.3d
702, 729 (10th Cir. 2006). The defendants do not argue such a justification
for this heightened standard here. See Lipka v. Advantage Health Group,
Inc., 2013 WL 5304013 at *5-*6. It is enough for the plaintiff to allege now
that he:
identif[ied]particular conduct to the employer that could constitute a

22

false claim and clearly inform[ed] the employer of . . . [his] belief that
such conduct is both unlawful and a fraud against the United States
(as opposed to merely being inconsistent with corporate policy—i.e.
“regulatory violations” that McBride deems insufficient).
Randazzo, 2014 WL 4697131, at *4; see also Lipka v. Advantage Health
Group, Inc., 2013 WL 5304013 at *5 (reasonable inference arises from
allegations that the employee complained of illegal actions and also warned
them of incurring civil and criminal liability). At this time, the court finds that
the plaintiff has sufficiently pleaded facts as to demonstrate the defendants
had the requisite notice.
§ 1983-Count Five-Freedom of Speech and Liberty
Count five alleges the following First Amendment right:
to speak out on matters of public concern regarding activities of the
University of Kansas, the KU Center for Research and the Research
and Graduate Studies program, including compliance with federal laws
governing the use of federal grants to the University and other federal
funds and the conduct of academicians and other personnel using
those and other funds and programs and facilities using those funds,
including speaking out on the Federal Funds Mismanagement and
Noncompliance, the MAI lab Renovation Project Waste and the
Academic Conduct as aforesaid.
(Dk. 30 ¶ 195). The defendants seek dismissal arguing the plaintiff’s alleged
speech was pursuant to or part of his official duties and, therefore, is not
protected public speech. Alternatively, the defendants argue for qualified
immunity.
In Pickering v. Board of Ed. of Township High School Dist. 205, Will
Cty., 391 U.S. 563, 568 (1968), the Court provided “the framework for

23

analyzing whether the employee’s interest or the government’s interest
should prevail in cases where the government seeks to curtail the speech of
its employees.” Lane v. Franks, 134 S. Ct. 2369, 2377 (2014). This means
balancing the employee’s interests as a citizen to comment on public issues
and the state employer’s interest for promoting public service efficiency. Id.
The Court in Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), 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.” Thus, there are five elements to the test governing public
employees’ retaliation claims for exercising their right to speak, and the first
element is “whether the speech was made pursuant to an employee’s official
duties.” Seifert v. Unified Government of Wyandotte County/Kansas City,
779 F.3d 1141, 1151 (10th Cir. 2015) (internal quotation marks and citation
omitted). This element is one of the issues of law “resolved by the district
court.” Rohrbough v. University of Colorado Hosp. Auth., 596 F.3d 741, 745
(10th Cir. 2010) (internal quotation marks and citation omitted). The
defendants commend the court to resolve that element now from the
detailed allegations found in the first amended complaint.
According to the defendants, “[t]here is no question but that plaintiff’s
alleged speech was speech pursuant to his official duties as Assistant
Scientist and the Director of the MAI Lab.” (Dk. 36, p. 19). Their

24

memoranda, however, do not describe any pleaded official duties unique to
those positions with a scope that would include such speech. Instead, the
defendants cite general university policies that are mentioned in the
amended complaint and argue they “required that plaintiff report known or
suspected incidents of fraud, including theft and misappropriation of
University Assets and to report and take action with respect to academic or
scholarly misconduct—including plagiarism.” (Dk. 36, p. 20). The policies
also direct all employees to comply with applicable state and federal law and
various policies and makes employees “responsible for immediately reporting
known or suspected incidents of fraud, including theft and misappropriation
of University Assets.” Id. at p. 21. The defendants also cite a recent federal
court decision from this district for its holding that a professor’s complaints
of mismanagement or misappropriation of grant funds was unprotected
speech because it contributed to the professor’s performance of official
duties.
The plaintiff defends by pointing to his amended complaint and two
detailed paragraphs that spell out what were and were not his duties as
Director of the MAI lab. (Dk. 30, ¶¶ 16 and 17). The plaintiff denies that his
job duties included responsibility “for financial accounting, reporting or
internal controls in the Research and Graduate Studies program. (Dk. 48, p.
31). As for defendants’ using the university’s general personnel policies, the
plaintiff cites decisions which have looked askance when employers have

25

used broad job description or workforce-wide policies to restrict an
employee’s speech rights. Alternatively, the plaintiff argues the defendants
cannot use the policies as a sword and a shield in that his actual reporting
under the policy was ignored by his superiors and his emails went unread, so
he ultimately disclosed his concerns to outside parties which included a
major private contributor, the FBI and a newspaper.
In looking at this element after Garcetti, the Tenth Circuit has “taken a
broad view of the meaning of speech that is pursuant to an employee’s
official duties.” Thomas v. City of Blanchard, 548 F.3d 1317, 1324 (10th Cir.
2008) (quotations omitted). The Thomas decision offers a useful summary of
the governing propositions most relevant to the issues here:
The question under Garcetti is not whether the speech was made
during the employee's work hours, or whether it concerned the subject
matter of his employment. See id. at 421, 126 S.Ct. 1951. Merely
because an employee's speech was made at work and about work does
not necessarily remove that employee's speech from the ambit of
constitutional protection. See Brammer–Hoelter, 492 F.3d at 1204.
Rather, it is whether the speech was made pursuant to the employee's
job duties or, in other words, whether the speech was “commissioned”
by the employer. Garcetti, 547 U.S. at 421–22, 126 S.Ct. 1951. In
addressing that question, the Supreme Court deliberately refrained
from defining a “comprehensive framework for defining the scope of an
employee's duties.” Id. at 424, 126 S.Ct. 1951. It instead emphasized
that the inquiry was “a practical one,” and that a court cannot simply
read off an employee's duties from a job description because “formal
job descriptions often bear little resemblance to the duties an
employee actually is expected to perform.” Id. at 424–25, 126 S.Ct.
1951.
....
. . . In Brammer-Hoelter, we stated that “speech may be made
pursuant to an employee’s official duties even if it deals with activities
that the employee is not expressly required to perform. 492 F.3d

26

1192, 1203. . . . Indeed, in Brammer-Hoelter, we held that if speech
“reasonably contributes to or facilitates the employee’s performance of
the official duty, the speech is made pursuant to the employee’s
official duties.” Id. at 1203 (citing Williams v. Dallas Indep. Sch. Dist.,
480 F.3d 689, 693 (5th Cir. 2007)) (per curiam). See also Green v.
Bd. of County Comm'rs, 472 F.3d 794, 801 (10th Cir. 2007) (Green's
activities not protected because they “stemmed from and were the
type of activities that she was paid to do”).
548 F.3d at 1323-24. On whether an employee’s job duties include
reporting and filing complaints and grievances, the Circuit in BrammerHoelter v. Twin Peaks Charter Academy, 492 F.3d 1192 (10th Cir. 2007),
also observed:
Although the record indicates that Plaintiffs were encouraged to
present their views to improve the Academy and did so in the form of
complaints and grievances to the Board, we cannot deem such a
generalized grievance policy to be an official duty without eviscerating
Garcetti and the general constitutional principle that “public employees
do not surrender all their First Amendment rights by reason of their
employment.” 126 S.Ct. at 1957; see id. at 1961 (“We reject ... the
suggestion that employers can restrict employees' rights by creating
excessively broad job descriptions.”).
492 F.3d at 1204.
The defendants’ approach is overbroad. It fails to lay out the matters
that need to be linked up. It does not group the plaintiff’s alleged speech by
occasion, content and audience. It does not analyze how the general
university policies are implicated by these particular instances of speech.
Finally, it does not point to the duties and responsibilities with the plaintiff’s
position, as formally described or actually performed, under which such
speech would fall. Instead, the defendant stands on a general university

27

policy for reporting fraud and mismanagement and acknowledges it applies
to all KU employees, customers, vendors, contractors and all universityrelated parties. On its face, the defendants’ approach would dispense with
evaluating job duties and performance whenever a public institution had a
general policy for reporting fraud and mismanagement. The defendants offer
the court no authority for this approach which would preclude all First
Amendment retaliation claims for any speech arguably within this reporting
policy’s broad scope regardless of the employee’s job duties or performance.
The precedent they cite stands for taking a different approach. Specifically,
the court in Klaassen grouped the plaintiff’s alleged protected statements,
noted that all statements were made internally to colleagues or officials, and
then described the plaintiff’s work duties and performance:
Plaintiff alleges that he ‘applied for and received, as a principal
investigator, an average of three NIH grants per year over the course
of his career’ and that his ‘financial compensation from KUMC was
directly tied to his ability to successfully obtain NIH grants as a
[principal investigator].’ Doc. 101-1 at ¶¶ 25, 27. For those reasons,
plaintiff had an active interest in ensuring proper grant administration,
proper use of KUMC funds, and prudent governance at KUMC. Those
things affected his ability to keep receiving NIH grants, and thus
plaintiff’s statements ‘reasonably contribute[d] to’ the performance of
his official duties. Garcetti does not protect them.
2015 WL 437747 at *18. The arguments and facts are simply not before the
court at this time for it to make this analysis now. Cf. Renken v. Gregory,
541 F.3d 769, 774 (7th Cir. 2008) (College professor’s comments about the
University’s misuse of grant funds was speech as a faculty member,

28

“because administering the grant as a PI [principal investigator] fell within
the teaching and service duties that he was employed to perform.”);
Klaassen, 2015 WL 437747 at *18 (Medical school professor’s comments on
mismanagement of grant money were made pursuant to official duties as all
statements were internal and “as principal investigator, plaintiff had
supervisory and technical authority over several grants, so he had an
interest in seeing that grant funds were used properly.”). Simply put, the
court is not in a position at this time to determine as a matter of law
whether all instances and occasions of the plaintiff’s speech alleged in the
amended complaint were made pursuant to the plaintiff’s official duties.
Having determined that it cannot apply Garcetti at this time, the court need
not take up the qualified immunity argument. The defendants’ reply brief
recasts their qualified immunity argument, and this new argument will not
be taken up.
§ 1983-Counts Five/Six-Liberty Interest/Substantive Due Process
Count five includes an allegation that the plaintiff was denied “his
constitutional right to substantive due process simpliciter as acts that were
arbitrary, capricious and without a rational basis” were also taken for
discriminatory reasons related to his disability and for retaliatory reasons
related to his disability and whistleblowing activity. (Dk. 30, ¶ 197). This
very same allegation is found in count six. (Dk. 30, ¶ 206). The plaintiff
apparently regards his substantive due process claims as pleaded principally

29

in count six. He explains his allegations as bringing two forms of substantive
due process: “(a) deprivation of liberty substantive due process, ECF No.
30, paras. 205, 210 and 129, and (b) due process simpliciter for acts that
are so arbitrary, unreasonable and without rational basis that they ‘shock
the conscience,’ ECF No. 30, paras. 206, 207 and 208.” (Dk. 48, p. 39).
As to the deprivation of liberty claim, the defendants argue the plaintiff
has failed to allege the following elements for such a claim: (a) defendants
made false statements, (b) which impugned the plaintiff’s good name,
reputation, honor or integrity, (c) which were made in course of termination
or must foreclose other employment, and (d) which were published. The
defendants also argue that the plaintiff was provided the opportunity for a
name-clearing hearing under the Kansas Judicial Review Act (“KJRA”) but
that he dismissed this action on his motion. (Dk. 30, ¶ 94). As to the
substantive due process for denial of a fundamental right or shocking official
misconduct, the defendants argue for dismissal because the plaintiff’s claims
do not involve matters relating to marriage, family, procreation or bodily
integrity and do not allege circumstances so egregious as to shock the
judicial conscious.
For the liberty claim, the plaintiff summarily stands on the allegations
in ¶¶ 204, 205, and 210, and denies that he was afforded a name clearing
hearing and relies on his allegations in count seven. On his other substantive
due process claim, the plaintiff cites allegations found in his amended

30

complaint that his superiors ignored his whistleblowing reports, belittled his
concerns, ignored his request for disability accommodation, increased his
workload as to exacerbate his condition, terminated him while his
suspension appeal was pending, and presented a “cherry-picked” record for
judicial review. (Dk. 48, pp. 42-43). The plaintiff stands on these allegations
as sufficient to claim the defendants’ arbitrary and capricious actions were so
egregious as to shock the conscience “at every turn.” (Dk. 48, ¶ 108).

The

plaintiff admits his allegations on these substantive due process claims are
not as detailed as his other claims and would welcome the chance to make
these claims more definite and certain.
A person’s liberty interest is infringed when the government: “(1) . . .
makes a statement that impugns the good name, reputation, honor, or
integrity of the employee; (2) the statement is false; (3) the statement is
made during the course of termination and forecloses other employment
opportunities; and (4) the statement is published, in other words disclosed
publically.” McDonald v. Wise, 769 F.3d 1202, 1212 (10th Cir. 2014). Count
six fails to allege a statement made during the course of termination that
was false and that was disclosed publically. The court is reluctant to give the
plaintiff another opportunity to amend his complaint to make his claim “more
definite and certain.” (Dk. 48, p. 44). Despite the already unusual length
and detail to his amended complaint, the plaintiff points to nothing in it that
suggests he will be able to plead these elements. It presently alleges, at

31

most, that the defendants “branded plaintiff . . . by discharging the plaintiff
before his concerns could be spread upon the record before his peers in a
Faculty Rights Board hearing.” (Dk. 30, ¶ 210). Moreover, the plaintiff
alleges his termination letter stated the reasons for his discharge were
“considerations of the future of the MAI Lab” and “a determination that it
was in the best interest of the Research and Graduate Studies program.”
(Dk. 30, ¶ 207). Based on the vagueness which he has alleged these
matters, as well as, the innocuous contents of the termination letter, the
court fails to see the plaintiff’s optimism for alleging a liberty interest claim.
See Fox-Rivera v. Colorado Dept. of Public Health & Environment, ---Fed.
Appx. ---, 2015 WL 1840915 at *2-*3 (10th Cir. Apr. 23, 2105). The court
dismisses this claim, but it will be subject to the plaintiff filing a separate
motion for leave to amend.
“The Due Process Clause of the Fourteenth Amendment protects
individuals against state action that either shocks the conscience, or
interferes with fundamental rights implicit in the concept of ordered liberty.”
Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10th Cir. 2008) (internal
quotation marks and citations omitted). The Tenth Circuit has held that, “[a]
public employee with a property interest in continued employment has a
substantive-due-process right not to be terminated for arbitrary or
capricious reasons.” Darr v. Town of Telluride, Colo., 495 F.3d 1243, 1257
(10th Cir. 2007). The plaintiff here does not allege a property interest. While

32

the Tenth Circuit has “not determined whether public employment is a
fundamental liberty interest protected by substantive due process, Potts v.
Davis County, 551 F.3d 1188, 1193 n. 1 (10th Cir.2009),” the plaintiff here
does not assert and identify an alternative fundamental liberty interest claim
but argues only that the defendants’ conduct shocks the conscience. See
Koessel v. Sublette County Sheriff’s Dept., 717 F.3d 736, 749-750 (10th Cir.
2013). The plaintiff has not argued or alleged anything that demonstrates a
fundamental liberty interest being denied here.
In a case where a plaintiff deputy sheriff had been terminated because
of “concerns about the lingering effects of a stroke he suffered” and then
had sued the sheriff’s department for ADA violations, breach of contract and
§ 1983 violations of procedural and substantive due process, the Tenth
Circuit gave this summary of the “shock the conscience” law:
To show the Defendants' conduct is conscience shocking, Koessel must
prove a government actor abused his or her authority or “employ[ed]
it as an instrument of oppression” in a manner that shocks the
conscience. Williams [v. Berney], 519 F.3d [1216] at 1220 [(10th Cir.
2008)] The Supreme Court has stated there is “no calibrated yard
stick” for assessing whether conduct is conscience shocking, but that it
depends on the circumstances of each case. County of Sacramento v.
Lewis, 523 U.S. 833, 847, 850, 118 S.Ct. 1708, 140 L.Ed.2d 1043
(1998). Substantive due process prohibits “only the most egregious
official conduct.” Seegmiller, 528 F.3d at 767. Even most intentionally
inflicted injuries caused by misuse of government authority will not
meet this standard. Ward v. Anderson, 494 F.3d 929, 937–38 (10th
Cir.2007); see also Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775,
787–88, No. 11–6194, 2013 WL 1730882, at *20 (10th Cir. April 23,
2013) (teacher conduct did not meet standard of “brutal and inhumane
abuse of official power” to make out substantive due process claim).
Whether an action was an abuse of authority depends on several

33

“non-exhaustive factors,” such as: (1) the harm results from
misconduct by a government official; (2) the official has some
authority over the victim; (3) the official abuses that authority; (4) the
misconduct exceeds run-of-the-mill negligent conduct, and is
intentional or reckless; and (5) the injury suffered is so egregious or
outrageous that it shocks the conscience. Williams, 519 F.3d at 1224
(discussing excessive force claim).
Koessel v. Sublette County Sheriff's Dept., 717 F.3d at 750. The Tenth
Circuit also noted “the employment injury suffered—the loss of a job—was
not so egregious as to shock the judicial conscience.” Id. “To satisfy this
standard, a plaintiff must do more than show that the government actor
intentionally or recklessly caused injury to the plaintiff by abusing or
misusing government power.” Tonkovich v. Kan. Bd. of Regents, 159 F.3d
504, 528 (10th Cir. 1998). The issue whether specific conduct “shocks the
conscience” is a question of law for the Court. See Perez v. Unified Gov't of
Wyandotte Cnty./Kansas City, Kan., 432 F.3d 1163, 1168 n. 4 (10th Cir.
2005), cert. denied, 548 U.S. (2006).
“The doctrine of qualified immunity shields government officials from
liability, . . ., when ‘their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.’” McDonald, 769 F.3d at 1215 (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). “In resolving a motion to dismiss based on qualified
immunity, a court must consider whether the facts that a plaintiff has
alleged . . . make out a violation of a constitutional right,” and “whether the
right at issue was clearly established at the time of defendant's alleged

34

misconduct.” Leverington v. City of Colorado Springs, 643 F.3d 719, 732
(10th Cir. 2011) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
“For a right to be clearly established, ‘[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right.’” Brammer–Hoelter v. Twin Peaks Charter
Academy, 602 F.3d 1175, 1184 (10th Cir. 2010) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). “Clearly this standard does not
require a precise factual analogy to pre-existing law; however, the plaintiff
must demonstrate that the unlawfulness of the conduct was apparent in light
of pre-existing law.” Id. (internal quotation marks and citation omitted). Preexisting law is “either a Supreme Court or Tenth Circuit decision on point, or
the clearly established weight of authority from other courts. Id.
The plaintiff has not come forward with any authority amounting to
“pre-existing law” that has recognized employment actions and
consequences similar to this case as being “so egregious that they ‘shock the
conscience.’” Klaassen, 2015 WL at 437747 at *26. Having failed to establish
the contours of a substantive due process right under the alleged
circumstances here, the court dismisses this claim against the individual
defendants in their individual capacities based on qualified immunity.
State Common-law Retaliatory Discharge—Count Seven
Sued in their official capacities for prospective injunctive relief on this
count, the defendants repeat their Eleventh Amendment arguments, seek to

35

apply the alternative remedies doctrine to the Kansas Whistleblower Act,
K.S.A. 75-2973, and ask the court to follow the Kansas case law precluding
a supervisor’s liability for the retaliatory discharge tort. The court’s Eleventh
Amendment rulings on count one are the court’s rulings on this count as
well. While discussing the alternative remedies doctrine at length, the
plaintiff does address or contest the defendants’ last issue of supervisory
liability.
The recent Klaassen decision summarizes the Kansas Supreme Court’s
holding in Rebarchek v. Farmers Coop. Elevator, 272 Kan. 546, 35 P.3d 892
(2001) (“only the employer is liable for retaliatory discharge”), and the
different constructions of that holding by the federal courts in this district,
Ruisinger v. HNB Corp., 2012 WL 3758656 (D. Kan. Aug 29, 2012)
(Rebarchek holding applies “only when the firing supervisor lacks a role in
the corporation beyond his managerial position”), and Ragsdale v. Amsted
Rail Co., Inc., 2013 WL 6729788 (D. Kan. Dec. 19, 2013) (the “status of the
supervisor is ‘irrelevant’” in applying Rebarchek). 2015 WL 437747 at *29.
This court concurs with the reasoning in Klaassen and “follows Ragsdale and
decides that the Kansas Supreme Court would recognize a common law
cause of action for retaliatory discharge against only an employer.” Id. at
30. Because the plaintiff has not alleged that the three individual movants
were his employer, the court concludes the plaintiff has failed to state a
claim for retaliatory discharge against the movants.

36

IT IS THEREFORE ORDERED that the motion to dismiss (Dk. 35) filed
by the defendants Joseph A. Heppert, University of Kansas, Jeffrey S. Vitter,
and Steven Warren is granted in part and denied in part, as hereby
summarized, Count One: the defendants Warren and Heppert are dismissed
from a claim of relief for reinstatement, and the motion is otherwise denied;
Count Two: the claim for relief does not include compensatory or punitive
damages; Count Three: the claim for relief against the movants is limited to
non-monetary, prospective injunctive relief, and the plaintiff will have 20
days from this order to file either an amended complaint that alleges
exhaustion of administrative remedies or a report on the status of the
pending administrative proceedings; Count Four: the motion is denied;
Count Five: the motion is denied on the First Amendment claim; Counts
Five/Six: on the substantive due process claim for deprivation of liberty, the
motion is granted but subject to the plaintiff filing a separate motion for
leave to amend, and on the substantive due process simpliciter claim, the
motion is granted; Count Seven: the motion is granted.
Dated this 28th day of July of 2015, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

37