Douglas v. The Bd. of Trs. of Cloud Cmty. Coll.

DR. ADRIAN DOUGLAS and DR. BRUCE DOUGLAS, Plaintiffs, v. THE BOARD OF TRUSTEES OF CLOUD COMMUNITY COLLEGE, and GREGORY P. ASKREN, in his individual capacity Defendants.

Civil Action No. 21-2400-KHV

United States District Court, D. Kansas

May 16, 2022

MEMORANDUM AND ORDER

KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE

Dr Adrian Douglas and Dr. Bruce Douglas filed suit against the Board of Trustees of Cloud Community College and Gregory Askren, alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000 et seq., and 42 U.S.C. §§ 1981 and 1983. See Amended Complaint (Doc. #21) filed January 21, 2022. This matter is before the Court on Defendants' Motion To Dismiss Amended Complaint (Doc. #25) filed February 4, 2022. For the reasons stated below, the Court overrules defendants' motion.

Legal Standard

In ruling on defendants' motion to dismiss for failure to state a claim under Rule 12(b)(6), Fed. R. Civ. P., the Court assumes as true all well-pleaded factual allegations and determines whether they plausibly give rise to an entitlement for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim which is plausible-and not merely conceivable-on its face. Id. at 679-80; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether a complaint states a plausible claim for relief, the Court draws on its judicial experience and common sense. Iqbal, 556 U.S. at 679.

The Court need not accept as true those allegations which state only legal conclusions. See id.; United States v Herring, 935 F.3d 1102, 1110 (10th Cir. 2019). Plaintiffs bear the burden of framing their claims with enough factual matter to suggest they are entitled to relief it is not enough to make threadbare recitals of a cause of action accompanied by conclusory statements. See Twombly, 550 U.S. at 556. Plaintiffs make a facially plausible claim by pleading factual content from which the Court can reasonably infer that defendants are liable for the alleged misconduct. Iqbal, 556 U.S. at 678. Plaintiffs must show more than a sheer possibility that defendants have acted unlawfully-it is not enough to plead facts that are “merely consistent” with defendants' liability. Id. (quoting Twombly, 550 U.S. at 557). A pleading which offers labels and conclusions, a formulaic recitation of the elements of a cause of action or naked assertions devoid of further factual enhancement will not stand. Id. Similarly, where the well-pleaded facts do not permit the Court to infer more than mere possibility of misconduct, the pleading has alleged-but has not “shown”-that the pleader is entitled to relief. Id. at 679. The degree of specificity necessary to establish plausibility and fair notice depends on context, because what constitutes fair notice under Rule 8(a)(2), Fed. R. Civ. P., depends on the type of case. Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).

Factual Background

Plaintiffs' first amended complaint alleges as follows:

Cloud County Community College is a public community college with campuses in Concordia and Junction City, Kansas. The Board of Trustees governs the College. Dr. Adrian Douglas (“Dr Adrian”) is African American, and she previously served as the President of the College. Dr. Bruce Douglas (“Dr. Bruce”), her husband, is also African American. He previously served as Coordinator of Student Engagement at the College. Gregory Askren, who resides in Concordia, Kansas, was a Board member during all relevant times.

I. The Board Of Trustees

The Board has six members. It holds elections in November of every odd year, and newly elected Board members start their terms in January of the following year. In 2017, Board members included Linda Richard, who served as the Chair, Askren, David Clemons, Larry Henry, Tom Tuggle and Ellen Anderson (collectively, the “2017 Board”). After an election in November of 2017, the 2018 Board members were Askren (Chair), Henry, Tuggle, Anderson and new additions Jesse Pounds and Pat MacFarlane (collectively, the “2018 Board”). In 2019, Askren remained on the Board but Henry took over as Chair. After an election in 2019, the 2020 Board Members were Pounds (Chair), Askren, Anderson, McFarlane and new additions Jim Koch and Richard Hubert (collectively, the “2020 Board”). Each Board member is Caucasian.

II. Dr. Adrian's Employment

Some time between 2017 and 2018, Dr. Adrian applied and interviewed for the presidency with the 2017 Board. Though she was the search committee's first choice, the Board offered the position to Dr. Mark Smith, a Caucasian. Dr. Smith accepted the position but abruptly resigned a month later. Upon his resignation, without engaging in another search process, the College offered the position to Dr. Adrian.

On April 5, 2018, Dr. Adrian signed an employment contract with the College and became its first African American President. The contract categorized her as a “Regular Administrator.” The contract had an initial term from May 9, 2018 through June 30, 2019, and an annual salary of $145, 000. The College agreed that the parties would determine any salary increase for future years at a later date. Askren served as Chair when Dr. Adrian signed her contract.

III. Dr. Adrian's Presidency

In or around August of 2018, Dr. Adrian recommended that the College terminate the Vice President of Student Affairs and Advancement, Kim Reynolds. The Board approved Dr. Adrian's recommendation by a vote of four to two, with Askren and Henry voting to retain Reynolds. Askren was upset with the recommendation because he was a social friend of Reynolds and he wanted more of a say in the decision.

In early 2019, the College posted a job opening for the position of Coordinator of Student Engagement. Pedro Leite, the interim Vice President of Student Affairs and Advancement, led a search committee to fill the position because he supervised the position. The search committee, including Leite and Dr. Adrian, interviewed five or six candidates. Dr. Bruce applied for the position. Despite his qualifications, the search committee ranked him fourth on their list of applicants.

Dr. Adrian disagreed with the search committee rankings and believed that Dr. Bruce was most qualified. Dr. Adrian recommended that the Board hire him and discussed her reasoning in an executive session with the Board. Before the Board voted on hiring Dr. Bruce, someone on the Board or the search committee breached confidentiality requirements and leaked the search committee's rankings to the public.

Ultimately, the Board voted to hire Dr. Bruce by a four to two vote. Again, both Askren and Henry voted against Dr. Adrian's recommendation. On or around January 29, 2019, the College hired Dr. Bruce part time, and he signed an employment contract with an annual salary of $14, 000.

A. Dr. Adrian's Restructuring Plan

In spring of 2019, Dr. Adrian recognized a need to restructure certain administrative positions. Her plan would combine two vice president positions, the Vice President of Academic Affairs and the Vice President of Student Affairs and Advancement, into one new position-the Vice President of Academic Affairs and Student Success. Nancy Zenger-Benada served as Vice President of Academic Affairs, and Leite was the Vice President of Student Affairs and Advancement. On May 6, 2019, Dr. Adrian shared the restructuring proposal with the Board and asked it not to share the proposal with anyone because she wanted to first discuss it with the individuals whose positions would be affected.

A day later, during a cabinet meeting, Zenger-Benada's conduct suggested that she knew about the plan to eliminate her position. Someone from the Board had leaked the confidential information to “stir up trouble.” That day, Dr. Adrian shared the restructuring proposal with Zenger-Benada and Leite, encouraging them to apply for the newly created role of Vice President of Academic Affairs and Student Success. Zenger-Benada did not apply for it and the Board ultimately hired Leite.

On May 22, 2019, the Board went into an executive session with Zenger-Benada to discuss the restructuring plan. Although the Board did not terminate her employment, the Board decided to grant her a “due process hearing” because the restructuring plan eliminated her position. After the executive session, Zenger-Benada filed a grievance against Dr. Adrian. Immediately afterward, Askren motioned the Board to hold a special executive session without Dr. Adrian, but including Board attorney Justin Ferrell, Director of Human Resources Christine Wilson and Vice President of Administrative Services Amber Knoettgen. Askren claimed that the special session was necessary because employees would not feel comfortable speaking freely in front of Dr. Adrian.

No one seconded Askren's motion, so the Board never convened the special session.

Instead, following college policy, the Board agreed that an external party should investigate the grievance against the President. Around this time, Askren asked Tom Roberts, one of the College's IT staff members, to check the emails of Dr. Adrian and Leite to see if they had communicated about the restructuring plan. Askren had not previously requested that IT search any other employee emails.

B. First Performance Evaluation

In May of 2019, during the reorganization, the Board conducted Dr Adrian's first performance evaluation as President. Before this, Pounds and MacFarlane had never participated in a presidential performance evaluation, so Anderson explained how the process would work. According to Anderson, before the meeting, each member of the Board would fill out a survey...