JULIE A. ROBINSON, District Judge.
Plaintiff Grace Lee filed a complaint against Kansas State University ("KSU"), Dr. Carol W. Shanklin, Dr. James A. Guikema, Dr. Duane W. Crawford, Dr. James W. Neill, Dr. Haiyan Wang, and Ms. Heather Reed ("Defendants"), seeking damages related to her termination from a graduate teaching assistant position and from her graduate studies in statistics at KSU. The Court previously dismissed all claims against KSU, all claims against Defendants in their official capacities, Counts II through X against Defendants in their individual capacities, and the procedural due process claim in Count I against Defendants Shanklin, Crawford, Wang, and Reed in their individual capacities. The only remaining claim in this case is Plaintiff's procedural due process claim in Count I against Defendants Guikema and Neill ("Movants") in their individual capacities.
Before the Court are Defendants' Motion for Summary Judgment (Doc. 67), Plaintiff's Motion for Leave to File a Surreply Memorandum in Opposition To Defendants' Motion for Summary Judgment (Doc. 77), and Defendants' Motion to Strike Surreply (Doc. 78). Defendants argue they are protected by qualified immunity. Movants also argue that even if they are not protected by qualified immunity there is no genuine dispute as to any material fact, and Movants are entitled to judgment as a matter of law on Count I. The motion is fully briefed, and the Court is prepared to rule. For the reasons set forth below, the Motion for Summary Judgment is granted. Plaintiff's Motion for Leave to File a Surreply is granted and Movants' Motion to Strike is denied.
Defendants move for summary judgment on Plaintiff's procedural due process claim in Count I, on the basis that they are protected by qualified immunity and are thus entitled to judgment as a matter of law. Qualified immunity protects public officials performing discretionary functions unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known."
As the Tenth Circuit explained in Rojas v. Anderson,
In determining whether the plaintiff has demonstrated a violation of her constitutional or statutory rights and that the right was clearly established at the time, the court must view the facts and draw reasonable inferences in the light most favorable to the party opposing summary judgment. In Scott v. Harris,
Because Plaintiff proceeds pro se, some additional considerations frame the Court's analysis. The Court must construe Plaintiff's pleadings liberally and apply a less stringent standard than that which is applicable to attorneys.
Plaintiff filed but failed to correctly docket a sur-reply
The Court deems uncontroverted, those facts that are supported by the record to which Plaintiff either stipulates, or fails to respond or otherwise properly controvert with reference to record evidence. Consistent with the standards discussed above, the Court accepts Plaintiff's factual allegations to the extent they are properly supported by the record. Many of Plaintiff's additional facts in her response to the motion for summary judgment are not properly supported by the record, are based on inadmissible hearsay, or are conclusory statements. These additional facts the Court disregards. Also, the Court does not accept factual allegations that are so utterly discredited by the record that no reasonable jury could believe them. Nor does the Court accept Plaintiff's attempt to controvert admissions she made in response to defendants' request for admissions. Finally, the Court views these uncontroverted and stipulated facts in the light most favorable to Plaintiff and draws all reasonable inferences in the light most favorable to Plaintiff.
In 2006, Plaintiff Grace Lee was admitted into the KSU graduate program in statistics. She received a letter informing her of the Graduate School's requirement that graduate students are responsible for diligent pursuit and timely completion of all responsibilities associated with progress toward a degree. The letter also contained a citation to the website containing the Graduate Handbook and other Graduate School documents and asked that she review these materials. Plaintiff received and had access to a copy of both the Graduate School Handbook and the Statistics Department Handbook. The Graduate Handbook states, and Plaintiff was aware, that graduate students, including those in the Statistics Department who fail to make satisfactory progress, will lose departmental support and will be recommended for academic dismissal from the Graduate School.
The Statistics Department Handbook states that each student seeking a Ph.D. must conduct dissertation research under a major professor. A dissertation must make an original contribution to knowledge in the student's chosen field. The major professor often helps the student with the idea or refining the idea for the dissertation research topic, which is related to the major professor's areas of research.
The Statistics Department Handbook further provides that students are expected to make adequate progress in the program—in most cases, two years to complete the masters degree and four years beyond that masters degree to complete the Ph.D. The Statistics Department Handbook also provides that the student's preliminary examination should be taken within five semesters, excluding summers, of passing the qualifying examination. But these are not hard deadlines.
The Statistics Department Handbook also states that ". . . at the discretion of the major professor and/or supervisory committee, if sufficient progress is not being made on a degree research topic then the student must relinquish the research topic for degree purposes." In the Statistics Department, student progress is annually reviewed by the Student Progress Committee; and the Graduate Student Progress Committee of the Graduate School makes a list every semester of students it determines are not making satisfactory progress toward completion of a degree.
Plaintiff and her major professor, Dr. Haiyan Wang, had a difficult relationship. Dr. Wang served as Plaintiff's sole major professor until Plaintiff filed a grievance alleging that Dr. Wang had fallen short of her duties as a major professor, and exhibited unprofessional and abusive conduct towards Plaintiff. The grievance was resolved by Dr. James Neill, the head of the Statistics Department, agreeing to serve with Dr. Wang as a co-major professor to Plaintiff, so Plaintiff could continue her dissertation work with Dr. Wang.
Then, on March 18, 2012, Plaintiff filed a second grievance seeking to remove Dr. Wang as her major professor. Students are permitted to change their major professor. It is the policy of the Graduate School that students are responsible for finding a major professor who is willing to oversee their work in an area of mutual research interest; it is not the policy of the Graduate School to assign major professors to students.
On April 9, 2012, Dr. Neill told Plaintiff that she was "free to find another professor within the department with which to work," but "[i]n order to track your academic progress, you will need to keep me informed as to which faculty is available and willing to supervise your work." At a staff meeting on April 13, Dr. Neill and other Statistics Department faculty discussed Plaintiff's situation and the Statistics Department policy that a dissertation topic was relinquished to the major professor when a student did not make satisfactory progress. Then on April 19, the Statistics Department Student Progress Committee ("SPC"), chaired by Dr. James Higgins, met and determined that Plaintiff and one other student were not making sufficient progress. Plaintiff was not informed of, nor present at the committee meeting. On April 20, the committee reported its findings to Dr. Neill, that Plaintiff was not making adequate progress because Plaintiff and Dr. Wang's relationship had become so contentious they could no longer work together, such that Plaintiff no longer had a major professor and thus could not take the preliminary examination and could not graduate.
Meanwhile, having heard nothing from Plaintiff since his April 9 email to her, on April 19, 2012, Dr. Neill emailed Plaintiff, again telling her that she needed to keep him informed about her progress in obtaining a major professor, and giving her a deadline of April 27 to let him know whether she had found another major professor, and if so, who. Plaintiff had contacted all twelve Statistics Department faculty, by email or in person, seeking a major professor. But Plaintiff did not report these efforts to Dr. Neill, until her April 23 email to Dr. Neill. On that same date, Dr. Neill responded to Plaintiff's April 23 email, reminding Plaintiff of the April 27 deadline. Dr. Neill did not tell Plaintiff that failure to find a major professor by April 27 would lead to her dismissal from the graduate program. Plaintiff never again communicated with Dr. Neill about her progress, either before or after the April 27 deadline.
Plaintiff was unable to find a faculty member in the Statistics Department to serve as her major professor.
Sometime on May 2, 2012, Heather Reed received a report that Plaintiff had become extremely upset and disruptive in the Graduate School office and had to be escorted out of the building.
The CIRT, which is chaired by Ms. Reed, assesses and coordinates a response to situations presented on campus such as a student death or significant trauma, serious student situations involving medical or psychological concerns, or campus threats or emergencies that directly affect the well-being of students and the campus community. While Ms. Reed had a conversation with Dr. Neill to get background about Plaintiff's situation, Dr. Neill did not dictate any part of the CIRT process. After gathering information and meeting on May 4, the CIRT team concluded that Plaintiff did not appear to be dangerous, that she should be warned about her disruptive conduct, but that no disciplinary action was warranted. Although KSU has a process for expulsions or terminations for disciplinary reasons, such a process was never initiated to dismiss Plaintiff for disciplinary reasons. Dismissals for non-academic reasons, such as violation of the KSU Student Code of Conduct, Honor & Integrity violations, discrimination or sexual violence, or violations of the Threat Management Policy are not processed by the Graduate School, but rather by other offices. Failure to have a major professor is not listed in the KSU Student Code of Conduct as a ground for discipline.
On May 7, 2012, Plaintiff met with Dr. Guikema and Heather Reed. They told Plaintiff that she would soon be dismissed from the Statistics Department for failing to obtain a major professor and that she would be dismissed from the Graduate School unless she were accepted into a different department in the Graduate School. But Plaintiff was unwilling to change topics for her Ph.D. dissertation. On May 7, Plaintiff received a follow-up email from Dr. Guikema advising her that it was likely that the Graduate School would receive a recommendation from the Statistics Department that Plaintiff be dismissed from the Graduate School for lack of academic progress.
After securing permission from the Graduate School to proceed, on May 8, 2012, Dr. Neill solicited the votes of the Statistics Department Student Progress Committee to determine whether Plaintiff should be terminated from the Statistics Department. The committee voted to dismiss Plaintiff from the Statistics Department for failure to make academic progress.
As of May 9, 2012, Plaintiff had contacted every professor in the Statistics Department to see if he or she would agree to serve as her major professor on her chosen topic; but none agreed to serve. Some claimed they already had too many students. On May 9, Dr. Neill wrote to the Graduate School on behalf of the Statistics Department and recommended Plaintiff's termination from the Statistics graduate program because she lacked a major professor:
The Graduate School relies upon an academic department's recommendation regarding lack of academic progress and normally, the dismissal follows immediately upon the Graduate School's receipt of the recommendation. Neither Dr. Neill nor Dr. Guikema had ever been informed by anyone that the law required a formal hearing or any particular process before a recommendation could be made that a student be dismissed for failure to make academic progress.
On May 11, 2012, Dr. Guikema emailed Plaintiff a copy of the Statistics Department recommendation of dismissal from the Graduate School, and advised that he would not process the dismissal for one month "to allow you a 6 week window to find another program in which to be successful in your Ph.D. program." Later on May 11, Plaintiff responded by email, advising Dr. Guikema that she was shocked by the recommendation for dismissal, but grateful that Dr. Guikema and Dr. Shanklin were affording her a one-month grace period. Still later on May 11, Dr. Guikema responded by email, that
Later on May 11, Dr. Guikema sent Plaintiff another email, reiterating that she should seek another graduate program, not in the Statistics Department:
On May 30, 2012, Plaintiff emailed Amanda Umscheid of the Graduate School stating that it was Plaintiff's "formal decision" not to transfer to another department of the Graduate School. As of May 31, Plaintiff had no major supervisor to supervise her dissertation research. Before May 31, Plaintiff had not asked any other department at KSU to accept her into its graduate program. On May 31, Dr. Guikema signed the letter dismissing Plaintiff from the Graduate School. In pertinent part the letter stated that the Graduate School was dismissing Plaintiff from graduate study at KSU, based on the Statistics Department's recommendation that Plaintiff be dismissed for failure to make satisfactory progress. During the entirety of her tenure at KSU, Plaintiff had been in good academic standing and had received several academic scholarships.
Plaintiff did not file a formal grievance regarding her dismissal between March 18 and May 31, 2012, nor after May 31, 2102. If Plaintiff had filed a formal grievance, Graduate School procedures for academic dismissal, as detailed in the Graduate School Handbook, allowed for the filing of a grievance in response to proposed or final academic discipline. If the grievance cannot be resolved informally, the procedures allow the student to have a full hearing before an impartial committee, partially comprised of other graduate students, with opening and closing statements, submission of written documentation, calling witnesses, using a hearing advisor and a court reporter.
Because Movants seek summary judgment on the basis of qualified immunity, the initial burden rests on the plaintiff to: (1) demonstrate that Movants violated her constitutional or statutory rights; and (2) demonstrate that the right was clearly established at the time of the alleged unlawful activity.
To succeed on a procedural due process claim, a plaintiff must prove two elements: first, that she possessed a constitutionally protected liberty or property interest such that the due process protections were applicable, and second that she was not "afforded an appropriate level of process."
When viewed in the light most favorable to Plaintiff, the uncontroverted facts support characterizing the implicated property interest as the broader property interest Plaintiff claims, a property interest in her continued graduate program. And, the Supreme Court has held that once provided, public education becomes "a property interest which may be protected by the Due Process Clause."
To establish a violation of procedural due process and thus a violation of her constitutional rights, Plaintiff must next show that she was not afforded an appropriate level of procedural due process. For academic dismissals, the Supreme Court decision in Board of Curators of University of Missouri v. Horowitz,
The Supreme Court held that the school provided sufficient due process in that it "fully informed respondent of the faculty's dissatisfaction with her clinical progress and the danger that this posed to timely graduation and continued enrollment. The ultimate decision to dismiss respondent was careful and deliberate."
Consistent with Gaspar, the Tenth Circuit more recently held in Trotter v. Regents University of New Mexico,
Consistent with the instruction and directives in these Supreme Court and Tenth Circuit decisions, which were clearly established law at the time of Plaintiff's dismissal, this Court concludes that Plaintiff was accorded an appropriate level of due process. Although she did not have a hearing, she was aware that she could not complete her dissertation work and graduate without the supervision of a major professor. Drs. Neill and Guikema and others repeatedly reminded her of the critical need to obtain a major professor. Dr. Neill communicated the urgency of this requirement by giving her a deadline after she failed to respond to his email asking her for updates. When Plaintiff failed to communicate with Dr. Neill by the deadline or even thereafter, Dr. Neill and Guikema and others repeatedly told her that she needed a major professor and having failed to obtain one within the Statistics Department, she needed to seek such in another graduate program. Plaintiff was given notice of the deficiency— lack of a major professor—and the consequence, dismissal from the Statistics Department— and dismissal from the Graduate School if she failed to obtain a major professor in another graduate program. But Plaintiff refused the final option of seeking another graduate program, and failed to obtain a major professor in the Statistics Department before, or even after, the deadline.
Moreover, the process employed by the Statistics Department and Graduate School demonstrates that their decision to dismiss Plaintiff was careful and deliberate. After the first grievance, Dr. Neill volunteered to serve as co-major professor with Dr. Wang, so Plaintiff could continue to work with Dr. Wang. When Plaintiff sought removal of Dr. Wang through a second grievance, Dr. Neill, whose research area was different than Plaintiff's, directed Plaintiff to solicit a new major professor within the Statistics Department. When Plaintiff failed to communicate with him or accomplish that, Dr. Neill and the other Statistics faculty met to discuss Plaintiff's situation. Next, the Statistics Department SPC convened, not just to consider Plaintiff, but to consider the progress of other students, and determined that Plaintiff's lack of a major professor signified that she was not making satisfactory progress. Dr. Neill was not involved in this committee; Dr. Higgins, the chair of the SPC reported the committee's finding to Dr. Neill on April 20. From April 20 to April 27, Dr. Neill continued to encourage Plaintiff to seek another major professor in the Statistics Department. After the April 27 deadline passed, Drs. Neill, Guikema and Crawford began urging Plaintiff to seek another graduate program. But not until May 8, did Dr. Neill ask the SPC to make a formal decision; and on May 8, the SPC recommended Plaintiff's dismissal. Dr. Neill then communicated the SPC's recommendation to the Graduate School; and two days later, Dr. Guikema gave Plaintiff notice of the recommendation and the impending dismissal, while also giving her a six week window to find another graduate program at KSU. When Plaintiff advised the Graduate School on May 30 that she had decided not to transfer to another graduate program, only then, on May 31, was she dismissed from the Graduate School. This process illustrates that Plaintiff's dismissal was the produce of careful deliberation by the Statistics faculty, the SPC, and the Graduate School, and only after giving Plaintiff opportunities and alternatives to dismissal.
Moreover, for purposes of applying qualified immunity, the Court must conduct a differentiated analysis of each defendant, not just cumulatively, as the Court has discussed above. In conducting a differentiated analysis, the Court asks whether Plaintiff can show facts or issues of fact concerning whether each defendant caused her to be subjected to a violation of her due process rights.
The uncontroverted facts show that Dr. Neill: (1) agreed to serve as co-major professor after Plaintiff's first grievance against Dr. Wang; (2) after the second grievance against Dr. Wang, removed himself as a co-major professor on a change form that Plaintiff signed and approved; (3) gave Plaintiff notice that to satisfactorily progress, she needed to find another major professor in the Statistics Department and gave her twenty-two days to do so; (4) continued to remind Plaintiff of her responsibility and the deadline to find another major professor; (5) allowed Plaintiff to retain her same dissertation topic, despite the Statistics Department policy that provided that it be relinquished to Dr. Wang; (6) asked for a formal decision from the SPC Committee on May 8, eleven days after the deadline; and (7) recommended dismissal from the Statistics Department, based on the vote of the SPC. Dr. Neill never acted unilaterally. And, other than providing Ms. Reed with background information about Plaintiff's matriculation and status, Dr. Neill did not participate in the CIRT process that culminated in a finding of no disciplinary action.
The uncontroverted facts also show that Dr. Guikema: (1) followed Dr. Neill in expressly permitting Plaintiff to retain her dissertation topic with a new major professor; (2) informed Plaintiff on May 1, some four days after the April 27 deadline, that she needed to seek opportunities in other departments of the Graduate School, since she had almost no chance to continue with a major professor in the Statistics Department; (3) met with Plaintiff on May 7 to discuss her options given her imminent dismissal from the Statistics Department; (4) advised Plaintiff after the May 7 meeting that she would likely be terminated from the Graduate School because the Statistics Department was going to recommend termination; (5) on May 11 advised Plaintiff that the Statistics Department had recommended dismissal, but that the Graduate School would give Plaintiff six weeks to find another program to continue her Ph.D. matriculation, and further encouraged Plaintiff to keep him posted and assured her that this was confidential and that he would not share this information with anyone; and (6) warned her that he would no longer serve as her advisor if she continued to contact faculty in the Statistics Department instead of following his advice to seek a graduate program in another department. Dr. Guikema did not act unilaterally, but upon the recommendation of the Statistics Department, as is standard. Dr. Guikema, like Dr. Neill, ignored the policy that dictated that Dr. Wang would retain Plaintiff's research, adopting leniency in allowing Plaintiff to continue with that research if she could find another major professor. Dr. Guikema further granted lenience and grace in allowing Plaintiff six weeks after May 11 to continue to seek another major professor outside of the Statistics Department. And, Dr. Guikema was not at all involved in the CIRT process.
In short, while Plaintiff has established a constitutionally protected property interest in her continued matriculation in graduate school, she has utterly failed her burden of showing that either Defendant denied her procedural due process before her academic dismissal from Graduate School. She was given repeated notice of the deficiency and its consequences, as well as time to fix the deficiency. The dismissal was the product of careful deliberation by faculty, the SPC and the Graduate School. As the Supreme Court instructed in Horowitz, the Court necessarily gives deference to the academic decision makers in the institution and their "expert evaluation of cumulative information" that is "not readily adapted to the procedural tools of judicial or administrative decisionmaking,"as "[s]uch a judgment is by its nature more subjective and evaluative than the type of typical factual questions presented in the average disciplinary decision."
While Defendants accorded Plaintiff sufficient procedural due process under the clearly established law, it bears noting, that Plaintiff could have filed a grievance at any time after she was on notice of the need to obtain another major professor. She certainly could have filed a grievance when she was placed on notice of the Statistics Department recommendation for dismissal, or when she was given notice that the Graduate School would dismiss her, after a six week grace period. Had Plaintiff filed a grievance, a process she was well aware of having previously filed two grievances against Dr. Wang, under KSU's procedures she may have received more process.
Similarly, while doing nothing to institute or employ KSU's process to challenge disciplinary dismissals, Plaintiff now claims that her dismissal was for disciplinary, not academic reasons. Plaintiff characterizes her dismissal as behavioral, rather than academic, because according to Plaintiff, she had an excellent academic record. But her emphasis on her academic accomplishment misses the mark, for Plaintiff's lack of a major professor late in her Ph.D. candidacy prevented her from making the requisite academic progress.
Moreover, the Court rejects this argument because the uncontroverted facts show that the dismissal was academic, not disciplinary. Though the CIRT process was employed after the May 2 incident, it quickly terminated on May 4, with a finding that no disciplinary action was warranted. To be sure, Ms. Reed, who was involved in the CIRT process, emailed Dr. Crawford on May 2 and told him that she and Dr. Neill had discussed Plaintiff's separation from the university as prudent based on her erratic, aggressive behavior. But there is no evidence that Dr. Neill, Dr. Guikema, the SPC, or ultimately the Graduate School, proceeded with a process that resulted in Plaintiff's dismissal because of the May 2 incident. Rather, in every communication, including the formal recommendation and formal dismissal, Plaintiff's dismissal was premised on her failure to satisfactorily progress academically, because she had no major professor to supervise her dissertation work.
Furthermore, even if this Court found that the dismissal on academic grounds was pretextual and the real basis was disciplinary, the Court would still conclude that Defendants had not violated Plaintiff's right to procedural due process before dismissal. Although academic decisions about a student are entitled to greater deference than disciplinary decisions and the procedural requirements for academic dismissals are less stringent than those for disciplinary actions,
Finally, although Plaintiff's behavior on May 2 may have been considered by Dr. Neill, and perhaps others, there is no indication that the SPC or Graduate School considered the incident. But even if the May 2 incident was considered by the decision makers, that does not transform an academic process into a disciplinary process. In Horowitz, the faculty determined that the student's clinical performance was unsatisfactory, and part of their evaluation concerned her lack of "critical concern for personal hygiene,"
Given that Defendants have raised qualified immunity, as discussed above, the burden is initially on Plaintiff to show that these defendants have violated her constitutional rights by depriving her of procedural due process. Plaintiff has failed her burden of demonstrating this. Defendants afforded Plaintiff more than the required level of due process for an academic dismissal, or even a disciplinary dismissal, based on the clearly established law at the time of her dismissal. Thus, Plaintiff has failed to meet her initial burden, and Defendants Neill and Guikema are entitled to qualified immunity and judgment as a matter of law.
Even if Plaintiff met her burden, however, and the burden shifted to Defendants to demonstrate their entitlement to judgment as a matter of law pursuant to Rule 56, Defendants have met that burden. Based on the uncontroverted facts detailed above, Defendants easily establish that they are entitled to judgment because they did not deprive Plaintiff of her constitutional right to procedural due process, and thus did not violate 42 U.S.C. § 1983.
