Joritz v. Univ. of Kan.

CATHERNE A. JORITZ, Plaintiff, v. UNIVERSITY OF KANSAS, et al., Defendants.

Case No. 17-4002-SAC-JPO

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

April 8, 2019

MEMORANDUM AND ORDER

This case is before the court upon motions to dismiss plaintiff's pro se amended complaint. The motions are made on behalf of the defendant University of Kansas (Doc. No. 54) and the individual defendants (Doc. No. 70). Plaintiff's motion to withdraw and dismiss her breach of contract claim (Doc. No. 66) is also before the court. The individual defendants are: Bernadette Gray-Little, a former chancellor at KU; Carl Lejuez, a former Dean of the College of Liberal Arts and Sciences (CLAS); Stuart Macdonald, a former Chair of the College Committee on Appointments, Promotion and Tenure (CCAPT); and Michael Baskett, Chair of the Film and Media Studies Department. The University's motion to dismiss is brought pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The individual defendants' motion to dismiss is brought pursuant to Fed.R.Civ.P. 12(b)(6).

I. PLAINTIFF'S LEGAL CLAIMS

The amended complaint ("AC")(Doc. No. 49) asserts five Title VII claims against the defendant University. Count I alleges national origin discrimination. Count II alleges sex discrimination. Count III alleges retaliation. Count IV alleges hostile work environment. Count V alleges wrongful termination. "Count VII" (which is before "Count VI" in the amended complaint) alleges due process and First Amendment constitutional violations under 42 U.S.C. § 1983 against the individual defendants. "Count VI" alleges breach of contract claims against the defendant University.

II. ALLEGATIONS IN THE AMENDED COMPLAINT AND EXHIBITS

Plaintiff makes the following factual allegations in the amended complaint and attached exhibits. Plaintiff is an animator and educator who was an assistant professor at the KU Department of Film & Media Studies in the School of Arts from 2012 to 2017. She is an American citizen. She is fluent in German and lived and worked in Germany for more than 30 years before starting at KU.

Plaintiff was a tenure-track professor who received good or very good ratings and merit pay increases during her first two years at KU. She asserts that: she received an award for her work as an academic advisor; she was an active member of her department; she received national and international recognitionfor her creative work; and she was awarded three competitive University grants and other University funding for her research.

In the Spring semester of 2014, plaintiff taught a Basic Video Production course. Some of her student evaluations included "angry, aggressive, anti-German comments" which criticized plaintiff, even calling for her to be fired. AC ¶ 43. Plaintiff alleges that these comments were made part of her permanent performance record, indicated a hostile work environment, and tainted all further evaluations. Plaintiff made requests that the comments be removed to the individual defendants (except Macdonald) and others. Plaintiff alleges that despite a duty to report "discrimination", none of the individual defendants acted upon plaintiff's concerns.

In December/January 2014-2015, preparation took place for plaintiff's first Progress Toward Tenure Review (PTTR), where a departmental committee conducts an initial review of a tenure-track professor's progress as measured by certain criteria. Plaintiff was informed via a letter on March 16, 2015 that: "improvement is required for continued progress towards tenure"; that she must submit to another review in 2015-2016; and that failing that review would result in "non-reappointment", i.e., termination. AC ¶ 55.

The first PTTR stated that, for promotion to an associate professor's position, plaintiff should increase her servicecommitments on a national and international level. Plaintiff asserts this was contrary to the Promotion and Tenure Procedures set forth by the Film and Media Studies Department. According to plaintiff there were other procedural and policy violations in the evaluation. This included adding a "long form animation works" expectation which created misleading and unobtainable research expectations in the minds of committee members and administrators unfamiliar with animation production, guaranteeing that plaintiff's creative work would fall short of their expectations. AC ¶ 67. The evaluation also contained the following statement:

Some of the student observations may also be due to the fact that she taught extensively in Germany for many years before teaching at KU, and she has had some difficulty in adjusting her communicative and teaching skills to her new teaching environment and culture.

AC ¶ 69. Plaintiff alleges this statement placed unfair blame upon plaintiff and failed to acknowledge the positive contributions plaintiff made because of her background.

Plaintiff alleges that there was no means to appeal the PTTR decision (denying plaintiff due process) and that the review made it impossible for any subsequent reviewer to make a fair and valid evaluation of plaintiff. None of the individual defendants are alleged to have been responsible for the first PTTR review.

Plaintiff alleges that prior to her second PTTR, on January 14, 2016, she was awarded a highly competitive Hall Center for the Humanities Creative Fellowship. This was a first for a KU Filmand Media Studies faculty member. Plaintiff alleges that this and other achievements were ignored, misrepresented or improperly considered by the individual defendants during her second PTTR review.

Plaintiff claims that defendant Baskett, the department chair in November 2015 and beyond, refused to allow plaintiff to see the report of his observation of plaintiff's classroom performance prior to the second PTTR review, in violation of University policy and prior practice. She asserts this led to a hostile work environment. She further claims that defendant Baskett denied her an opportunity to have a semester off from teaching in Spring 2016 to concentrate on research, although similarly situated professors were given such an opportunity.

Plaintiff alleges that the process for the second PTTR review was muddled and violated University procedures. One of the violations was that defendant Baskett served as the PTTR Committee chairman. This was corrected, however, on or about January 26, 2016, after plaintiff had a meeting with the Interim Dean and Associate Dean of CLAS and provided a list of alleged PTTR violations. AC ¶ 96. The impropriety was noted by the University Faculty Rights Board in a letter to defendant Gray-Little dated May 11, 2016. The letter noted that the violation was especially pertinent where the department chair did not concur with the committee evaluation. AC ¶ 85.

Plaintiff asked that the former chair of the department who had served as chair on the first PTTR committee be recused from serving on the second PTTR committee. This was denied by defendant Baskett. She claims that she was denied direct access to committee members by defendant Baskett, contrary to usual practice and policy, and was ordered instead to communicate exclusively through Baskett or his assistant.

The day after plaintiff's meeting with the interim dean and associate dean of CLAS, defendant Baskett told plaintiff: "You're not doing yourself any favors by making the department look (bad)!" AC ¶ 98. In early February, when plaintiff asked if a prior procedure would be followed in forwarding her dossier to CLAS, she alleges that defendant Baskett replied in a hostile manner that plaintiff should not assume she knows everything. AC ¶ 102.

Plaintiff notified defendant Lejuez that one of plaintiff's animated shorts was accepted by a German short film festival. She claims that he ignored this achievement when he determined that her research indicated serious deficits. AC ¶ 103.

On April 2, 2016, plaintiff emailed an Associate Dean regarding sex and national origin discrimination, including what she had experienced. She stated she had not seen these issues addressed. The Associate Dean replied on April 5, 2016 that he had referred the matter to the Office of Institutional Opportunity and Access for review.

The second PTTR Committee recommended finding that plaintiff had made satisfactory progress toward tenure. See Doc. No. 49-2, Ex. G and Ex. L. The CCAPT Committee, however, disagreed with this suggestion and on April 7, 2016 recommended plaintiff's termination in a letter from defendant Macdonald to defendant Lejuez. Id. On April 8, 2016, plaintiff received a letter from defendant Lejeuz stating that he was recommending her termination to the Provost. The letter repeated comments from the CCAPT Committee including the conclusion that plaintiff's research record indicated serious deficits. Plaintiff claims this charge is unsubstantiated and that Lejuez ignored the positive review of plaintiff's research made by the 2015/2016 PTTR Committee members. Plaintiff asserts that Lejuez relied upon a letter written by defendant Baskett which made unsubstantiated allegations regarding inappropriate behavior and said that it weakened her service record. Plaintiff claims this ignored multiple examples of service and was contrary to policy and procedure. Plaintiff asserts that she was unaware of Baskett's letter until she received the Lejeuz letter.

Plaintiff claims that defendant Baskett refused her request for a copy of the letter and other documents, as did the executive assistant to the Dean. She emailed defendant Lejuez with questions about his April 8, 2016 letter and asked him to justify using "behavior" as a PTTR evaluation standard. She also asked him fordocuments. Defendant Lejuez refused to provide the documents and instructed plaintiff to direct her questions to the Vice Provost. Plaintiff claims her request for details regarding any alleged complaints about inappropriate behavior were stonewalled by University personnel and administrators, including the...