Shahmaleki v. Kan. State Univ.

POURYA SHAHMALEKI, Plaintiff, v. KANSAS STATE UNIVERSITY, Defendant.

Case No. 15-7766-JAR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

June 28, 2016

MEMORANDUM AND ORDER

On April 30, 2015, Plaintiff Pourya Shahmaleki brought this complaint against Defendant Kansas State University ("KSU"), alleging procedural and substantive due process violations under the Fourteenth Amendment to the United States Constitution (Doc. 1). On November 23, 2015, the Court granted Defendant's Motion to Dismiss (Doc. 5) with prejudice, and granted Plaintiff leave to amend his Complaint as to his proposed Title VI claims (Doc. 27). Plaintiff subsequently filed his Second Amended Complaint (Doc. 31), which alleges discrimination and retaliation claims under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. This matter comes before the Court on Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. 34). The matter is fully briefed and the Court is prepared to rule. For the reasons stated below, the Court grants Defendant's motion to dismiss.

I. Factual Allegations

Drawing all reasonable inferences in favor of Plaintiff, the following facts are taken from Plaintiff's Second Amended Complaint. Plaintiff Pourya Shahmaleki, a citizen of Iran, worked as a graduate research assistant while attending graduate school at Defendant KSU from August 2011 until May 2013. On May 1, 2013, Plaintiff attended a meeting with Heather Reed, KSU Senior Associate Dean, and Professor Donald Fenton, Mechanical Engineering Department Head, at Dean Reed's request. At the conclusion of the meeting, Defendant gave Plaintiff a letter imposing sanctions including expelling Plaintiff from graduate school, ending his employment, placing him on the "not allowed to enroll" list, notifying federal agencies of his expulsion and "advising him to have no further contact with professors, instructors or staff members." Based on previous conversations, Plaintiff alleges that Reed and Fenton harbored discriminatory animus based on Plaintiff's national origin. For example, Reed previously asked Plaintiff "why he 'didn't go back to Iran'" and "remarked that Plaintiff 'made my antenna go off.'" Similarly, Fenton previously "remarked that he would get Plaintiff 'a flight back to his country'" during a conversation about Plaintiff's research.

According to the expulsion letter, Defendant justified its decision with six specific charges. Defendant alleges that these charges constitute violations of its Threat Management Policy and Plaintiff alleges that they are categorically untrue.

The first charge arose from two interactions between Plaintiff and Associate Director of International Planning and Analysis Beverly Earles discussing the necessity of enrolling in a certain class. Director Earles characterized the interactions as "creepy and threatening." Director Earles also allegedly told Plaintiff "the culture here is different than in your country," and later stated that she was attempting to counsel Plaintiff on adapting to "American" conversations.

Second, Defendant charged that Plaintiff failed to follow Director Earles' instruction to enroll in a class, in which Plaintiff contends he actually received an "A" grade. The third incident involved Plaintiff's visit to the International Student Scholar Services Department, during which employees felt "uncomfortable." Fourth, Defendant charged that Plaintiff wasinvolved in a physical altercation with another graduate student two years earlier, after which a police report had been filed. However, Plaintiff alleges that the disagreement remained verbal and the police did not issue a report.

The fifth charge was that professors did not want to work with Plaintiff because he was "uncooperative and demanding," and he therefore did not have a required Major Professor. However, two professors and a research assistant gave Plaintiff positive reviews in the Office of Civil Rights ("OCR") investigation following Plaintiff's expulsion. Finally, Defendant charged that Plaintiff did not "cooperate" with staff while attempting to secure campus housing, and his actions caused staff to feel "intimidated." In each interaction, Plaintiff claims he actually did not engage in "threats, threatening behavior, acts of violence, or any related conduct" as required for the Threat Management Policy to apply.

Defendant did not present witnesses or documentation to support the claims, nor did the Threat Management Policy provide Plaintiff an opportunity to appeal the decision. However, Defendant charged "American Caucasian" students under the Graduate Student Rights and Grievance Procedure ("Graduate Procedure") or the Code of Conduct, which each provide a right to appeal. Defendant charged and expelled one "American Caucasian" student under the Threat Management Policy for a violent and egregious sexual assault.

Pursuant to a partial resolution with the OCR, Defendant removed the record of Plaintiff's expulsion from his transcript and returned his status to "eligible to reenroll." However, Defendant denied Plaintiff's reapplication in August 2014.

II. Rule 12(b)(6) Standard

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), 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."¹ "[T]he complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims."² The plausibility standard does not require a showing of probability that a defendant has acted unlawfully, but requires more than "a sheer possibility."³ "[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."⁴ 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.⁵

The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court "must take all the factual allegations in the complaint as true, [but] we 'are not bound to accept as true a legal conclusion couched as a factual allegation.'"⁶ Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth or merely legal conclusions not entitled to an assumption of truth.⁷ Second, the court must determine whether the factual allegations, when assumed true, "plausibly give rise to an entitlement to relief."⁸ "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."⁹

III. Discussion

A. Title VI Discrimination Claim

Under Title VI, "no person . . . shall, on the ground of . . . national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."¹⁰ This provision reaches only intentional discrimination, and a plaintiff may satisfy the requirement by alleging direct or indirect discrimination.¹¹ A plaintiff can allege a claim of indirect discrimination pursuant to the familiar McDonnell Douglas burden-shifting framework.¹² Under this framework, the plaintiff has the initial burden to establish a prima facie case of discrimination.¹³ To establish a prima facie case under Title VI, the plaintiff must prove: "(1) they are members of a protected class; (2) they suffered adverse action; and (3) they were treated less favorably than similarly situated students."¹⁴ The defendant must then articulate a legitimate, nondiscriminatory reason for the adverse action, shifting the burden back to the plaintiff to prove that the articulated reason was pretext for discrimination.¹⁵ Because McDonnell Douglas is an evidentiary rather than a pleading standard, a plaintiff is not required to have "adequately alleged a prima facie case" or "circumstances that support an inference of discrimination" to survive a motion to dismiss.¹⁶However, assessing the elements of the McDonnell Douglas framework is helpful in determining whether a plaintiff has set forth plausible claims.¹⁷

In dismissing Plaintiff's original Complaint, the Court held that Plaintiff did not set forth a plausible claim of discrimination under Title VI on the basis of his national origin.¹⁸ The Court identified four specific deficiencies in Plaintiff's Complaint.¹⁹ First, Plaintiff failed to relate his situation to similarly situated students and therefore failed to plausibly allege disparate treatment. Second, Plaintiff failed to plead that KSU deviated from its standard procedures. Third, Plaintiff did not plausibly allege that Defendant relied in bad faith on false reasons for its expulsion and employment decision. Fourth Plaintiff did not provide sufficient context to support the allegation that decision-makers acted with discriminatory animus, thereby giving rise to an inference of discrimination.

In his Second Amended Complaint, Plaintiff attempts to establish a disparate treatment claim by alleging that he should have been subject to the Graduate Procedure or the Code of Conduct, rather than the Threat Management Policy. However, Plaintiff has not plausibly alleged that Caucasian American students subject to either the Graduate Procedure or the Code of Conduct were similarly situated. As the Tenth Circuit has explained,

Factors to be considered when determining whether [individuals] are similarly situated include whether the [individuals] deal with the same supervisor, are subject to the same standards governing performance evaluation and discipline, engaged in similar violations of . . . policy, engaged in violations of comparableseriousness, and

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