Fattaey v. Kansas State University et al

Filing 59

MEMORANDUM AND ORDER granting 56 Motion for Leave to Amend Complaint; granting 56 Motion for Extension of Time to File. Plaintiff is granted an extension of time of up to fourteen days from the filing of this Order to file his Third Amended Com plaint in conformity with the Court's January 24, 2017 Order, as clarified by this Order. The parties shall meet and confer prior to this deadline in an attempt to avoid further litigation over the contents of this pleading. There will be no further extensions of the amendment deadline. Signed by Chief District Judge Julie A Robinson on 5/24/2017. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ABDULLAH (“ABE”) FATTAEY,
Plaintiff,
v.

Case No. 15-9314-JAR-KGG

KANSAS STATE UNIVERSITY, ET AL.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff Abdullah (“Abe”) Fattaey’s Second Amended Complaint alleged claims against
his former employer, Kansas State University (“KSU”), and several University employees,
relating to the decision not to reappoint him when his annual employment contract with KSU
expired. On January 24, 2017, the Court issued an extensive Memorandum and Order on
Defendants’ Motion to Dismiss Second Amended Complaint, granting in part and denying in
part that motion.1 The Court denied the motion to dismiss as to his Title VII claims against
KSU, and granted the motion to dismiss civil rights claims under 42 U.S.C. §§ 1983 and 1985(3)
premised on violations of Plaintiff’s procedural and substantive due process rights under the
Fourteenth Amendment. Before the Court is Plaintiff’s Motion for Leave to File an Amended
Complaint and Motion to Extend Deadline to File Third Amended Complaint (Doc. 56). The
motion is fully briefed and the Court is prepared to rule. The Court grants Plaintiff’s motion as
explained more fully below.

1

Doc. 55.

I.

Background
Prior to the Court’s January 24 Order, Plaintiff amended his complaint twice. He

amended once as a matter of course, and amended a second time after Defendants filed their first
motion to dismiss. After Plaintiff was granted leave to amend, and after Defendants filed their
renewed motion to dismiss the Second Amended Complaint, Plaintiff voluntarily dismissed
certain claims that rendered moot several arguments raised in the motion to dismiss. This Court
ruled on the remaining claims briefed by the parties: Count I—Title VII discrimination and
retaliation claims against KSU based on race and national origin; Count IV—conspiracy claim
under 42 U.S.C. § 1985(3) against Defendants Schulz, Mason, Bontrager, and Swanson in their
individual capacities; and Count V—procedural and substantive due process claims under 42
U.S.C. § 1983 against Defendants Schulz, Mason, Bontrager, Swanson, and Franzen. The Court
denied Defendants’ motion as to Count I against KSU, and granted the motion as to the civil
rights claims under the doctrine of qualified immunity. In addition, due to the confusing
sequence of Plaintiff’s amendments and filings, the Court ordered Plaintiff to file a Third
Amended Complaint as follows:
After several rounds of amendments and other adjustments to his claims, Plaintiff
is left with Title VII claims of national origin discrimination and retaliation
against KSU. His civil rights claims against the individual Defendants are subject
to qualified immunity and must be dismissed. All other claims in the Second
Amended Complaint have been withdrawn. Plaintiff has requested leave to file
another amended pleading to make clear that he has voluntarily dismissed certain
claims since the Second Amended Complaint was filed, and to properly plead
administrative exhaustion on his Title VII claims. The Court agrees that an
amended pleading is warranted to make the record clear as to what remains.
Plaintiff’s Third Amended Complaint shall be filed within seven days and shall
omit the claims Plaintiff voluntarily dismissed, add his administrative exhaustion
allegations, and omit the civil rights claims dismissed herein based on the doctrine
of qualified immunity.2

2

Id. at 36.

2

On January 31, 2017, Plaintiff filed the instant motion for leave to amend, attaching a
proposed Third Amended Complaint. In this motion, he argues that the 42 U.S.C. § 1983 claim
in the Second Amended Complaint against the individual defendants included a claim that they
violated the Fourteenth Amendment’s equal protection clause. He asks for an extension of time
to file the Third Amended Complaint until the Court can rule on whether his proposed pleading,
which includes this civil rights claim, is permissible. Plaintiff seeks to allege this claim against
Defendant Bontrager in her individual capacity. Defendant objects, arguing that the amendment
is sought in bad faith, will cause undue delay, and that it would be subject to dismissal.
II.

Standard
The parties argue this motion as a motion for leave to amend, governed by Fed. R. Civ. P.

15(a). Under Rule 15(a), leave to amend a complaint is freely given when justice so requires.
Rule 15 is intended “to provide litigants ‘the maximum opportunity for each claim to be decided
on its merits rather than on procedural niceties.’”3 Courts may deny leave to amend, however,
based on “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [or] futility of amendment.”4
But this is not a typical motion for leave to amend. This Court has already granted leave
to amend under strict parameters, as set forth in the quoted passage above. As to the equal
protection claim, Plaintiff does not necessarily seek leave to amend to add that claim; he
contends that this claim was included in the Second Amended Complaint. Plaintiff concedes that
this claim was not clearly labeled as a separate claim for relief, but urges that Defendants are not

3

Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Hardin v. Manitowoc-Forsythe
Corp., 691 F.2d 449, 456 (10th Cir. 1982)).
4

Id. (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

3

prejudiced by allowing him to plead this claim because it is based on the same elements and facts
as the Title VII claims, which the Court allowed to proceed in the January 24 Order. The parties
also dispute whether some of the factual allegations in the proposed Third Amended Complaint
pertain strictly to the claims dismissed in the Court’s January 24 Order. Because the parties
appear to have interpreted the Court’s January 24 Order quite differently, the Court will first
clarify the scope of the Second Amended Complaint. The Court will then proceed to consider
Plaintiff’s proposed Third Amended Complaint under the Rule 15(a) factors.
III.

Scope of the Court’s January 24, 2017 Order
A.

Equal Protection Claim

Under Fed. R. Civ. P. 8(a)(2), a complaint only requires “a short and plain statement of
the claim showing that the pleader is entitled to relief.”5 It does not require the plaintiff to set
forth legal theories.6 Nonetheless, a complaint “must ‘give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.’”7 Plaintiff’s request to include the equal
protection claim in his Third Amended Complaint raises the issue of whether he fairly gave
Defendant notice of this claim in the Second Amended Complaint, given Plaintiff’s position that
it had been alleged all along.

5

Defendant makes several references in its response memorandum to the length of Plaintiff’s proposed
Third Amended Complaint, suggesting that its breadth somehow violates this precept. Of course, while a short and
plain statement of the claim is all that is required, there is no prohibition under the rule to pleading more than that.
And of course, the entire premise of Defendant’s motion to dismiss was that Plaintiff’s allegations were insufficient.
The Court will not penalize Plaintiff for providing Defendant with more detail about the basis for his claims than
what is required under the rule.
6

Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 347 (2014); Zokari v. Gates, 561 F.3d 1076, 1084 (10th
Cir. 2009).
7

Zokari, 561 F.3d at 1084 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Evans v.
McDonald’s Corp., 936 F.2d 1087, 1090–91 (10th Cir. 1991) (“As a general rule, a plaintiff should not be prevented
from pursuing a valid claim just because she did not set forth in the complaint a theory on which she could recover,
‘provided always that a late shift in the thrust of the case will not prejudice the other party in maintaining his
defense upon the merits.’” (quoting 5C Wright & Miller, Federal Practice & Procedure § 1219 at 194 (1990)).

4

The Court begins this discussion by acknowledging Defendant’s frustration with the
protracted nature of Plaintiff’s pleading in this case. Defendants are understandably frustrated
that they were required to litigate two motions to dismiss, the second of which addressed claims
ultimately abandoned by Plaintiff in a later filing, and that despite believing they had certainty
about the claims remaining, Plaintiff once again attempts to amend. Defendants claim that they
were not on notice of an equal protection claim in the Second Amended Complaint. To be sure,
despite moving for complete dismissal of those pleadings, the motions to dismiss did not address
an equal protection claim. Defendants moved to dismiss that pleading on February 19, 2016, at
which time Plaintiff was placed on notice of the many other deficiencies Defendants identified in
the First Amended Complaint. Defendants sought dismissal of the entire pleading, construing
Count V as asserting only procedural and substantive due process claims. This motion was
ultimately moot because Plaintiff sought and was granted leave to amend. The point of granting
leave to amend in this context is to allow the Plaintiff an opportunity to cure the deficiencies
identified in a motion to dismiss. Yet, Plaintiff filed his Second Amended Complaint with the
same misleading label on Count V, and Defendants moved to dismiss the civil rights claims on
the same grounds. In other words, Plaintiff did not point out in the briefing on the second motion
to dismiss (or the first, for that matter) that this Count included an equal protection claim. Had
Defendants been on actual notice that Plaintiff alleged an equal protection claim, they surely
would have addressed it in their motions to dismiss. And the Court is mystified as to why
Plaintiff would not advance this claim in his response to the motions to dismiss.
Nonetheless, the Court agrees that the Second Amended Complaint does indeed assert an
equal protection claim. Plaintiff labeled Count V of the Second Amended Complaint:
“CONSTITUTIONAL AND CIVIL RIGHTS VIOLATIONS PURSUANT TO 42 U.S.C. §§

5

1983, 1988; VIOLATION OF PROCEDURAL AND SUBSTANTIVE DUE PROCESS
RIGHTS AGAINST DEFENDANTS [] SCHULZ, MASON, BONTRAGER, SWANSON, AND
FRANZEN.”8 Under this Count’s heading, in paragraph 152, Plaintiff alleges:
Defendants Schulz, Mason, Bontrager, Swanson, and Franzen’s decision (in their
individual capacities and acting under color of state law) to deprive Plaintiff of his
property rights based on Plaintiff’s race, ancestry, and ethnicity, and based on his
complaint of unlawful discrimination, deprived Plaintiff of his equal protection
rights under the 14th amendment of the Constitution.9
Although Plaintiff failed to properly label Count V, that is not the dispositive inquiry.10 The
Court cannot ignore the substance of this claim, which alleged Plaintiff’s entitlement to relief
under the equal protection clause. The Court agrees that despite Plaintiff’s inexplicable failure to
draw attention to this claim during the briefing of the motion to dismiss, the Second Amended
Complaint should have placed Defendants on notice of his intent to assert such a claim under the
equal protection clause. To the extent Defendants argue that Plaintiff has alleged insufficient
facts to support an equal protection claim, the Court will address this argument below when
analyzing futility of amendment.
B.

Title VII Claims

In its previous Order, the Court denied Defendant’s motion to dismiss Plaintiff’s Title VII
claims of discrimination and retaliation. Defendant objects to certain allegations in Plaintiff’s
proposed Third Amended Complaint relating to these claims, arguing that they exceed the scope
of the Court’s Order. Defendants contend that Plaintiff’s proposed pleading violates the Court’s

8

Doc. 33 at 27–28. Plaintiff subsequently dismissed this claim as to KSU. Plaintiff used this same wording
to describe the claim in the First Amended Complaint. See Doc. 3 at 25.
9

Doc. 33 ¶ 152.

10

See Johnson, 135 S. Ct. at 347 (explaining that a civil rights plaintiff need not expressly invoke § 1983 in
order to state a claim); 5 Charles Alan Wright, et al., Federal Practice and Procedure § 1215 (3d ed. 1998 & Supp.
2017) (“this portion of Rule 8 indicates that a basic objective of the rules is to avoid civil cases turning on
technicalities.”).

6

Order by including: (1) references to “Defendants” throughout; (2) language about race, age, and
religious discrimination; (3) allegations regarding Defendant Franzen’s failure to investigate
Plaintiff’s complaints of discrimination; and (4) allegations that exceed the adverse employment
action upon which Plaintiff’s retaliation claim was allowed to proceed. Defendants urge that the
law of the case doctrine prohibits Plaintiff from reasserting claims that have been dismissed.
The Court need not delve into the law of the case doctrine because Defendants read this
Court’s ruling too narrowly on the Title VII claims. It is true that Plaintiff has no actionable
claim remaining for discrimination based on his age or religion, but the Court did not rule on
whether Plaintiff can maintain a Title VII claim on the basis of his race. The Second Amended
Complaint made clear that he alleged Title VII claims on the basis of both race and national
origin discrimination.11 Defendant did not challenge Plaintiff’s membership in a protected class,
so the Court was not required to consider whether Plaintiff alleged sufficient facts to support a
racial discrimination claim. Likewise, because the Court found that Plaintiff alleged sufficient
facts to demonstrate a claim of national origin discrimination, the Court was not required to
separately address his race discrimination claim.
As to Plaintiff’s allegations about KSU’s failure to investigate, the Court found that
Plaintiff could not maintain a claim of discrimination on the basis of Franzen’s failure to
investigate his internal discrimination complaint. Defendants are correct that the Court
dismissed Plaintiff’s discrete claim of discrimination on the basis of this adverse employment
action because Plaintiff failed to administratively exhaust. However, that does not mean that
Plaintiff’s allegations about KSU’s failure to investigate may not be relevant to his surviving
Title VII claims. Defendants’ complaints about relevance and prejudice are evidentiary, and
11

Doc. 33 at 21 (PLAINTIFF’S FIRST CAUSE OF ACTION (PLED AGAINST KSU): VIOLATION OF
TITLE VII—ILLEGAL DISCRIMINATION (BASED ON RACE AND NATIONAL ORIGIN) AND
RETALIATION).

7

questions of evidence are not properly before this Court on a motion for leave to amend.
To the extent the parties otherwise dispute whether Plaintiff’s factual allegations in the
proposed Third Amended Complaint exceed the scope of what the Court allowed to proceed in
its January 24 Order, the Court is confident that upon a meaningful meet and confer session, the
parties can work through their differences and Plaintiff can construct a Third Amended
Complaint that maintains his Title VII allegations in compliance with the Court’s Order.
Defendants are cautioned that the Court does not view Plaintiff’s pleading obligation in this
regard as a mathematical formula whereby the number of paragraphs in the Third Amended
Complaint correlate to the amount of claims that survive. To the extent Defendants believe
Plaintiff’s allegations are irrelevant, that issue is premature, particularly given that discovery has
been completely derailed while the parties endlessly litigate the operative pleading in this matter.
IV.

Amendment Factors
A.

Undue Delay and Prejudice

Undue delay alone is sufficient to deny a motion to amend; there need not be a showing
of prejudice.12 In the Tenth Circuit, undue delay may be found “when the party filing the motion
has no adequate explanation for the delay.”13 The Court may also deny leave to amend if the
moving party “knows or should have known of the facts upon which the proposed amendment is
based but fails to include them in the original complaint.”14 Moreover, motions for leave to
amend are correctly denied
when it appears that the plaintiff is using Rule 15 to make the
complaint “a moving target” to “salvage a lost case by untimely
suggestion of new theories of recovery,” present “theories
seriatim” in an effort to avoid dismissal, or to “knowingly delay[ ]
12

See, e.g., Cuenca v. Univ. of Kan., 205 F. Supp. 2d 1226, 1229–30 (D. Kan. 2002).

13

Minter v. Primer Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006).

14

Cuenca, 205 F. Supp. 2d at 1230.

8

raising [an] issue until the eve of trial.”15
While liberality of amendment is important, it is equally important that “there must be an end
finally to a particular litigation.”16
Although Plaintiff has caused significant delay in failing to make clear that he alleges an
equal protection claim in this matter, the Court has largely addressed this factor by finding that
the Second Amended Complaint should have placed Defendant on notice that Plaintiff asserts an
equal protection claim, despite its shortcomings in terms of clarity and Plaintiff’s failure to
outwardly pursue this claim. Because Plaintiff did include this claim in the prior pleading, the
Court declines to find that the proposed amendment is a moving target, or that he knew the facts
upon which the amendment is based and failed to allege them previously.17
Importantly, the Court also finds that allowing this amendment will not cause prejudice to
Defendant under the circumstances of this case because the elements of Plaintiff’s equal
protection claim are identical to the elements of his Title VII discrimination claim that survived
the motion to dismiss.18 Given this fact, and the fact that discovery has not yet begun, the Court
declines to find that the amendment will cause undue delay.

15

Minter, 451 F.3d at 1206 (quoting Viernow v. Euripides Dev. Corp., 157 F.3d 785, 800 (10th Cir. 1998);
Hayes v. Whitman, 264 F.3d 1017, 1027 (10th Cir. 2001); Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027
(10th Cir.1994); Walters v. Monarch Life Ins. Co., 57 F.3d 899, 903 (10th Cir. 1995)).
16

Pallottino, 31 F.3d at 1027.

17

Defendant argues that Plaintiff should have pled his Title VII claims earlier, but of course that is not the
question before the Court on this motion. Judge Gale found no undue delay in ruling on an earlier motion to amend
seeking to add the Title VII claims. Doc. 32 at 5.
18

See Carney v. City & Cty. of Denver, 534 F.3d 1269, 1273 (10th Cir. 2008) (quoting Baca v. Sklar, 398
F.3d 1210, 1218 n.3 (10th Cir. 2005)).

9

B.

Futility

Defendant argues that Plaintiff’s proposed equal protection claim is futile. “A proposed
amendment is futile if the complaint, as amended, would be subject to dismissal.”19 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.”20 “[T]he complaint must give the court reason to believe that
this plaintiff has a reasonable likelihood of mustering factual support for these claims.”21 The
plausibility standard does not require a showing of probability that a defendant has acted
unlawfully, but requires more than “a sheer possibility.”22 “[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.”23 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.24
First, Defendants argue that Plaintiff’s equal protection claim cannot survive dismissal
because such a claim is not cognizable in the public employment context, citing Engquist v.
Oregon Department of Agriculture.25 The Court disagrees with Defendants that the Engquist
decision applies to Plaintiff’s claim in this case. Engquist holds that a “class-of-one” equal

19

Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1018 (10th Cir. 2013).

20

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

21

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

22

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

23

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

24

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

25

553 U.S. 591, 602, 607–08 (2008).

555).

10

protection theory does not apply in the public employment context.26 Such a theory has been
recognized in some circumstances where a “plaintiff has not alleged class-based discrimination,
but instead claims that she has been irrationally singled out as a so-called ‘class of one.’”27 The
Supreme Court was careful to limit its decision to that theory of equal protection, distinguishing
it from class-based decisions, where the government treated distinct groups of individual
employees differently.28 Here, Plaintiff does not allege a claim under a class-of-one theory; he
claims discrimination on the basis of his membership in a protected class—race and national
origin. Engquist does not apply.
Defendants also argue that the equal protection claim fails to include factual allegations
that give rise to a plausible claim. Specifically, they argue that Plaintiff fails to allege that he
was treated differently than similarly situated employees. As the Court has already observed, the
elements of a racial discrimination claim under § 1983 are the same as those required under Title
VII.29 To establish a prima facie case of discrimination under Title VII, Plaintiff must show that
(1) he is a member of a protected class; (2) he suffered an adverse employment action;
and (3) the challenged action took place under circumstances giving rise to an inference of
discrimination.30 In the Tenth Circuit, the prima facie case no longer requires a “similarlysituated person” comparison.31 While the third element may be shown by evidence that the
employer treated similarly-situated employees more favorably, “such proof is just one sufficient

26

Id. at 607.

27

Id. at 601.

28

Id. at 605.

29

See Carney v. City & Cty. of Denver, 534 F.3d 1269, 1273 (10th Cir. 2008) (quoting Baca v. Sklar, 398
F.3d 1210, 1218 n.3 (10th Cir. 2005)).
30

EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 & n.5 (10th Cir. 2007).

31

See Bennett v. Windstream Commc’ns, Inc., 792 F.3d 1261, 1266 n.1 (10th Cir. 2015); Sorbo v. UPS, 432
F.3d 1169, 1173 (10th Cir. 2005).

11

means to do this and should not itself be mistaken as an indispensable element of the prima facie
case.”32 As the Court explained in ruling on the Title VII claim, Plaintiff has alleged sufficient
facts to give rise to a plausible claim of discrimination under Title VII, and thus, he has also
alleged sufficient facts to give rise to an equal protection claim.
Defendants suggest throughout their response brief that Plaintiff cannot maintain a claim
of race discrimination because he is “considered the same race as Bontrager, Swanson, Schulz,
Mason and everyone else about whom he complains—white or Caucasian.”33 Defendants
acknowledge that Title VII does not define race. Their argument hinges on a single citation to
the EEOC Compliance Manual.34 Defendant represents this authority as follows: “EEOC refers
to the Office of Management and Budget five racial categories: American Indian or Alaska
Native; Asian; Black or African American; Native Hawaiian or Other Pacific Islander; and
White.”35 Based on this authority, Defendant baldly proclaims that Plaintiff and his supervisor
Defendant Bontrager are of the same race—Caucasian, and thus, Plaintiff could not have been
subjected to race discrimination. The EEOC manual actually states as follows:
For the collection of federal data on race and ethnicity, the Office of
Management and Budget (OMB) has provided the following five racial
categories: American Indian or Alaska Native; Asian; Black or African American;
Native Hawaiian or Other Pacific Islander; and White; and one ethnicity category,
Hispanic or Latino. OMB has made clear that these categories are “socialpolitical constructs . . . and should not be interpreted as being genetic, biological,
or anthropological in nature.”36

32

Sorbo, 432 F.3d at 1173.

33

Doc. 57 at 10.

34

EEOC Compliance Manual, at 15-II, available at https://www.eeoc.gov/policy/docs/race-color.html#II
(Apr. 4, 2006).
35

Doc. 57 at 10.

36

EEOC Compliance Manual, at 15-II (emphasis added) (footnote omitted).

12

The manual makes clear that these are not the exclusive categories of races contemplated by the
statute, but instead, are simply used by the OMB when collecting federal data on race and
ethnicity. The manual goes on to explain that “Title VII’s prohibition of race discrimination
generally encompasses,” ancestry, physical characteristics, race-linked illness, culture,
perception, association, subgroup or “race plus,” and reverse race discrimination.37 For example,
the manual counsels that “[d]iscrimination against a person because of his or her ancestry can
violate Title VII’s prohibition against race discrimination,” and race discrimination can be
“based on a person’s physical characteristics associated with race, such as a person’s color, hair,
facial features, height and weight,” or “because of cultural characteristics often linked to race or
ethnicity, such as a person’s name, cultural dress and grooming practices, or accent or manner of
speech.”38 In sum, this authority does not support Defendant’s assertion that Plaintiff, who is
alleged to be an Iranian-born-and-raised United States citizen who speaks with a Persian accent,
is not a member of a protected class for purposes of asserting a race discrimination claim. In
fact, the cited authority stands for the opposite proposition.
Finally, Defendants argue that the equal protection claim against Bontrager would be
dismissed on the basis of qualified immunity. The Court disagrees. The Court incorporates by
reference its lengthy recitation in the January 24 Order of the standards that apply when deciding
qualified immunity at the motion to dismiss stage of the proceedings.39 Plaintiff must first allege
sufficient facts to demonstrate a constitutional violation.40 The Court has already determined
that Plaintiff has alleged sufficient facts to demonstrate a discrimination claim under Title VII.

37

Id. (footnotes omitted).

38

Id. (footnotes omitted).

39

Doc. 55 at 22–23.

40

See, e.g., Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).

13

Likewise, he has alleged sufficient facts to demonstrate a race discrimination claim. He alleges
that KSU decided not to reappoint him to the position he had held for years, that the abrupt and
unexpected decision was not based on poor performance, and that Plaintiff’s race or national
origin motivated the nonreappointment decision. Moreover, Plaintiff can demonstrate that such a
constitutional violation is clearly established.41
C.

Bad Faith

Defendants argue that Plaintiff seeks to amend in bad faith, citing his previous inclusion
of claims that were dismissed, a footnote in the proposed pleading in which Plaintiff indicates he
might seek leave to amend to reassert claims against dismissed Defendants if discovery supports
such claims, a state court action against Defendant Bontrager and the other previously-dismissed
individual Defendants, and Plaintiff’s failure to accept the Court’s prior rulings. Defendants
assert that “Plaintiff is simply out to get Ms. Bontrager (and the other individual defendants)
personally.”42 Asserting claims and lawsuits against an employer after an adverse employment
action, in and of itself, is not evidence of bad faith—a weighty accusation. The Court has
already cautioned Plaintiff that the only remaining claims in this case are for discrimination on
the basis of race and national origin, and retaliation under Title VII and § 1983. Once the Third
Amended Complaint is filed, this case will finally proceed through pretrial case management. A
deadline for amending the pleadings will likely be set by Judge Gale, who will be aware of the
many amended pleadings already allowed. The Court is confident that Judge Gale will fairly
manage this case through pretrial and discovery. Defendants have not demonstrated bad faith.

41

See, e.g., Poolaw v. City of Anadarko, Okla., 660 F.2d 459, 462 (10th Cir. 1981); Fulcher v. City of
Wichita, 445 F. Supp. 2d 1271, 1281 (D. Kan. 2006).
42

Doc. 57 at 23.

14

V.

Defendants’ Request to Strike Specific Paragraphs in the Proposed Third
Amended Complaint and Request for Costs
Defendants include an extensive list of paragraphs included in Plaintiff’s proposed Third

Amended Complaint that they argue include previously dismissed claims and theories and
exceed the scope of this Court’s January 24 Order. They argue this list is not exhaustive. The
Court is not inclined to conduct a paragraph-by-paragraph analysis of this proposed pleading,
particularly in light of the Court’s decision to grant Plaintiff leave to clarify that an equal
protection claim under § 1983 remains. Instead, the Court will grant Plaintiff an extension of
time of up to fourteen days from the filing of this Order to file his Third Amended Complaint in
conformity with the Court’s January 24, 2017 Order, as clarified by this Order. There will be no
further extensions of this deadline. The parties shall meet and confer prior to this deadline to
avoid yet another round of litigation over the contents of this operative pleading. Before meeting
with Defendants, Plaintiff is urged to read this Court’s January 24 Order carefully, and to
eliminate any contents of the proposed pleading that relate solely to dismissed claims.
Defendants’ motion for costs is denied. There is no basis for an award of costs under the
circumstances of this case.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion for Leave
to File an Amended Complaint and Motion to Extend Deadline to File Third Amended
Complaint (Doc. 56) is granted. Plaintiff is granted an extension of time of up to fourteen days
from the filing of this Order to file his Third Amended Complaint in conformity with the Court’s
January 24, 2017 Order, as clarified by this Order. The parties shall meet and confer prior to this
deadline in an attempt to avoid further litigation over the contents of this pleading. There will be
no further extensions of the amendment deadline.
IT IS SO ORDERED.

15

Dated: May 24, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

16