Rainwater v. Board of Regents for the University of Oklahoma

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

SUSAN RAINWATER, )

)

Plaintiff, )

)

v. ) No. CIV-19-382-R

)

THE STATE OF OKLAHOMA EX REL. )

THE BOARD OF REGENTS OF )

THE UNIVERSITY OF OKLAHOMA, )

ET AL., )

)

Defendants. )

AMENDED ORDER

Before the Court is the Motion to Dismiss filed by Defendants, the State of

Oklahoma, ex rel the Board of Regents of the University of Oklahoma and Jason Sanders,

Christina Bennett, David Johnson, and Edwin Ibay, in both their individual and official

capacities. (Doc. No. 26) Plaintiff responded in opposition to the motion (Doc. No. 27) and

Defendants filed a Reply in support of the motion (Doc. No. 28). Upon consideration of

the parties’ submissions, the Court finds as follows.

Plaintiff Rainwater seeks relief under Title II of the Americans with Disabilities Act

“ADA,” 42 U.S.C. § 12131, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

§ 794, 42 U.S.C. § 1983, and state law against the State, ex rel. the Board of Regents of the

University of Oklahoma and certain of its employees, related to her dismissal from the

Master’s in Health Administration (“MHA”) program allegedly because of poor

performance. She contends that she was denied accommodation by the MHA program,

specifically by Defendant Assistant Professor Christina Bennett, that would have enabled

her to successfully complete the required coursework. Plaintiff names as Defendants the

Board of Regents, Jason Sanders, Vice President and Provost of the Oklahoma Health

Sciences Center, Professor Bennett, David Johnson, Associate Dean for Academic Affairs,

and Edwin Ibay, current director of the MHA program. With the exception of Mr. Ibay,

who is named solely in his official capacity, the individual Defendants are sued both

individually and in their official capacities.1

To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain

enough facts that, when accepted as true, “state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and citation omitted);

see Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). A claim has facial

plausibility when the court can draw “the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678. In § 1983 cases, it is particularly

important “that the complaint make clear exactly who is alleged to have done what to

whom, to provide each individual with fair notice as to the basis of the claims against him

or her.” See Robbins, 519 F.3d at 1249–50; see also Smith v. United States, 561 F.3d 1090,

1104 (10th Cir. 2009).

Defendants Sanders, Johnson, and Ibay in their official capacities seek the dismissal

of Plaintiff’s ADA and Rehabilitation Act claims, asserting that because the Board is also

a Defendant, the claims are redundant. Plaintiff asserts the official capacity claims are not

1 The Court notes at the outset that because Christina Bennett is the former director of the MHA program, suing her

“in her official capacity as former Director of the University of Oklahoma Master’s in Health Administration

Program.” (Doc.No. 8) is not appropriate. Rather, as pled, Director Ibay, who currently heads the program, is the

proper official capacity Defendant. Accordingly, Defendant Bennett in her official capacity is hereby DISMISSED.

redundant because she seeks declaratory and injunctive relief and the University, via the

Board, may assert Eleventh Amendment immunity in the future.2 At this juncture, and

despite Plaintiff’s arguments to the contrary, the Court finds no basis for retaining the

redundant claims against the individual defendants sued in their official capacities. Suits

against employees in their official capacities operate as a suit against the employer itself.

Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (“Official-capacity suits ... generally

represent only another way of pleading an action against an entity of which an officer is an

agent. ... It is not a suit against the official personally, for the real party in interest is the

entity.” (quotation marks and citations omitted)). Although plaintiff may name supervisors

in their official capacities or as alter egos of the employer, the Tenth Circuit has suggested

that such a practice is “is superfluous where, as here, the employer is already subject to suit

directly in its own name.” Lewis v. Four B Corp., 211 F. App’x 663, 665 n.2 (10th Cir.

2005) (unpublished); see Park v. TD Ameritrade Trust Co., Inc., No. 10–cv–02599–BNB,

2010 WL 4608225, at *1 (D. Colo. 2010) (“Because Plaintiff has sued her employer, a suit

against Defendants Moglia and Bradley in their official capacities under Title VII and the

ADA is superfluous.”). In the event the Board asserts Eleventh Amendment immunity as

to Plaintiff’s ADA or Rehabilitation Act claim, Plaintiff may seek leave to amend to re-

introduce her official capacity claims to this suit.

Defendants all seek dismissal on the basis that Plaintiff has failed to state a claim

for the violation of her constitutional rights as asserted in her Second and Third Causes of

2 Plaintiff asserts that there is no Eleventh Amendment immunity available for her Rehabilitation Act claim but does

not concede that dismissal of the official capacity claims is therefore appropriate. (Doc. No. 27, p. 5)

Action.3 First, Defendants contend that Plaintiff cannot proceed with her § 1983 claims in

light of her claims under the ADA and the Rehabilitation Act. In support of their argument,

Defendants rely on Rancho Palos Verdes, v. Abrams, 544 U.S. 113 (2005); Vinson v.

Thomas, 288 F.3d 11145, 1156 (9th Cir. 2002); Alsbrook v. City of Maumelle, 184 F.3d 999

(8th Cir. 1999), Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th Cir. 1997), Lollar v.

Baker, 196 F.3d 603 (5th Cir. 1999), and Williams v. Penn Human Relations Comm’n, 870

F.3d 294 (3d Cir. 2017). In each of these cases the court was presented with a plaintiff

seeking to vindicate federal statutory rights against a state actor via the § 1983 vehicle.

Those courts were not presented with the issue herein, which is whether Plaintiff can

proceed on a parallel § 1983 claim alleging violation of her constitutional, rather than

statutory rights, in light of the ADA and the Rehabilitation Act. See e.g. Fitzgerald v.

Barnstable School Committee, 555 U.S. 246 (2009)(considering whether Title IX

precludes an action under § 1983 for alleged gender discrimination and drawing a

distinction between § 1983 claims premised on statutory violations and those premised on

constitutional violations);. Bullington v. Bedford Cty., Tennessee, 905 F.3d 467, 471 (6th

Cir. 2018)(citing Fitzgerald and noting “the Supreme Court recently outlined how to

determine whether a statutory scheme precludes a parallel remedy under § 1983). The

Court noted that the issue is whether Congress intended a statute’s remedial scheme to be

exclusive.

3 Plaintiff’s Second Cause of Action is pled under 42 U.S.C. § 1983 and alleges violation of Dr. Rainmaker’s

substantive due process rights by the individual Defendants in their official capacities. The Third Cause of Action,

also § 1983 alleging deprivation of substantive due process rights, names Bennett, Johnson, and Sanders in their

individual capacities.

In those cases in which the § 1983 claim is based on a statutory right,

“evidence of such congressional intent may be found directly in the statute

creating the right, or inferred from the statute’s creation of a comprehensive

enforcement scheme that is incompatible with individual enforcement under

§ 1983.” Id. at 120, 125 S.Ct. 1453 (internal quotation marks omitted). In

cases in which the § 1983 claim alleges a constitutional violation, lack of

congressional intent may be inferred from a comparison of the rights and

protections of the statute and those existing under the Constitution. Where

the contours of such rights and protections diverge in significant ways, it is

not likely that Congress intended to displace § 1983 suits enforcing

constitutional rights. Our conclusions regarding congressional intent can be

confirmed by a statute's context. Id., at 127, 125 S.Ct. 1453 (BREYER, J.,

concurring) (“[C]ontext, not just literal text, will often lead a court to

Congress' intent in respect to a particular statute”).

In determining whether a subsequent statute precludes the

enforcement of a federal right under § 1983, we have placed primary

emphasis on the nature and extent of that statute’s remedial scheme. See Sea

Clammers, supra at 20, 101 S.Ct. 2615 (“When the remedial devices

provided in a particular Act are sufficiently comprehensive, they may suffice

to demonstrate congressional intent to preclude the remedy of suits under

§ 1983.”).

Fitzgerald, 555 U.S. at 252–53. The Court thereafter concluded that the plaintiff’s equal

protection claim under § 1983 was not precluded by her Title IX claim premised on the

same facts.

Title II of the ADA and § 504 of the Rehabilitation Act are coextensive with one

another and the remedies thereunder are linked to those set forth in Title VI of the Civil

Rights Act of 1964. See 29 U.S.C. § 794-794a(2)(“The remedies, procedures, and rights

set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) (and in

subsection (e)(3) of section 706 of such Act (42 U.S.C. 2000e-5), applied to claims of

discrimination in compensation) shall be available to any person aggrieved by any act or

failure to act by any recipient of Federal assistance or Federal provider of such assistance

under section 794 of this title.”). 4 Additionally, the remedial scheme of Title VI is nearly

identical to that set forth in Title IX. See Cannon v. University of Chicago, 441 U.S. 677,

694-95 (1979)(Congress modeled Title IX after Title VI).

[B]ecause the remedial scheme under Title IX and Title VI are nearly

identical and because the Supreme Court has instructed that a Title IX claim

can be vindicated under § 1983, this Court has no trouble concluding that the

same analysis applies to Title VI, and by extension the Rehabilitation Act.

Applying that analysis leads to the inevitable conclusion that the

Rehabilitation [Act] scheme is not “comprehensive” and does not preclude a

parallel § 1983 claim.

Stahura-Uhl v. Iroquois Central School Dist., 836 F. Supp. 2d 132 (W.D.N.Y. 2011). The

undersigned agrees with the conclusion reached by the Western District of New York in

Stahura-Uhl, which by extension applies to Plaintiff’s claims under Title II of the ADA.

The Court finds Defendants are not entitled to dismissal of Plaintiff’s § 1983 claims on the

basis that parallel proceedings are precluded.

Defendants alternatively argue that Plaintiff has failed to allege sufficient facts to

sustain a substantive due process claim and that the individual Defendants are entitled to

qualified immunity.5 Qualified immunity protects government officials, in their individual

capacities, from liability for civil damages if their conduct “does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

4 Title VI prohibits programs that receive federal funds from discrimination on the basis of race. 42 U.S.C. § 2000e.

Title II of the ADA incorporates the remedial scheme of the Rehabilitation Act of 1973, see 29 U.S.C. § 794a(a)(2)

(incorporated into Title II by 42 U.S.C. § 12133). Barnes v. Gorman, 536 U.S. 181, 185 (“[T]he remedies for violations

of § 202 of the ADA [42 U.S.C. § 12132] and § 504 of the Rehabilitation Act are coextensive with the remedies

available in a private case of action brought under Title VI of the Civil Rights Act of 1964 . . . .” In Fitzgerald v.

Barnstable School Comm., 555 U.S. 246, (2009), the Supreme Court noted that “Congress modeled Title IX after Title

VI of the Civil Rights Act of 1964, and passed Title IX with the explicit understanding that it would be interpreted as

Title VI was.” ).

5 Although Plaintiff named the individual Defendants in their official capacities, she does not seek monetary damages

under § 1983 other than against the individuals in their individual capacities. (Doc. No. 27, p. 12).

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Once a defendant invokes a

qualified immunity defense, Plaintiff must establish that the defendant violated a statutory

or constitutional right, and that the right was clearly established. The Court may consider

the qualified immunity test in either order. See Panagoulakos v. Yazzie, 741 F.3 1126, 1129

(10th Cir. 2013).

To show that a law is “clearly established,” a plaintiff must identify pre-existing

precedent that places the “constitutional question beyond debate.” Yeasin v. Durham, 719

F. App'x 844, 850 (10th Cir. 2018) (quoting Mullenix v. Luna, ––– U.S. ––––, 136 S. Ct.

305, 308 (2015)). A plaintiff must identify “a Supreme Court or Tenth Circuit decision on

point, or the clearly established weight of authority from other courts must have found the

law to be as the plaintiff maintains.” Cortez v. McCauley, 478 F.3d 1108, 1114–15 (10th

Cir. 2007) (quotation marks and citation omitted). The relevant precedent must be

particularized to the facts of this case, making it sufficiently clear such that every

reasonable official would have known that the defendant's actions would violate the

plaintiff's rights. Reichle v. Howards, 566 U.S. 658, 664 (2012).

Here Plaintiff relies on a theory that the Defendants violated her substantive due

process rights under the Fourteenth Amendment. The Tenth Circuit recently addressed

substantive due process in a case involving expulsion from a university.

We have held that university students have a property interest in their

continued education. Harris v. Blake, 798 F.2d 419, 424 (10th Cir. 1986). But

to establish that a deprivation of that property interest violates substantive

due process, a student must prove that the university’s decision to expel her

was arbitrary, lacked a rational basis, or shocks the conscience. Butler, 341

F.3d at 1200-01.

Yeasin v. Durham, 719 F. App’x 844, 852 (10th Cir. 2018).6 The Supreme Court recently

stated that “the ‘shocks the conscience’ standard is satisfied where the conduct was

‘intended to injure in some way unjustifiable by any government interest . . . .’” Rosales-

Mirelese v. United States, --- U.S. ---, 138 S.Ct. 1897, 1906 (2018).

This case more closely resembles Gossett v. Oklahoma ex re. Bd. of Regents for

Langston University, 245 F.3d 1172 (10th Cir. 2001), wherein the court reversed the

granting of summary judgment to the University. Plaintiff Gossett alleged that his

substantive due process rights were violated by the University because he was involuntarily

removed from the nursing program due to poor academic progress. He presented evidence

that female nursing students were given opportunities to remedy poor grades and given

additional instruction as needed while male students were denied such an opportunity.

Under Supreme Court authority, a plaintiff asserting a substantive due

process claim based on an academic decision must show that the decision

was the product of arbitrary state action rather than a conscientious, careful

and deliberate exercise of professional judgment. See Ewing, 474 U.S. at

224–25, 106 S.Ct. 507; Harris, 798 F.2d at 424. A plaintiff may make such

a showing by evidence that the challenged decision was based on

“nonacademic or constitutionally impermissible reasons,” rather than the

product of conscientious and careful deliberation. Ewing, 474 U.S. at 225,

106 S.Ct. 507; Harris, 798 F.2d at 424. Mr. Gossett presented evidence

sufficient to create a fact issue on whether the decision to require his

withdrawal from the nursing program was motivated by impermissible

gender discrimination rather than based on an exercise of professional

judgment as to his academic ability. Accordingly, summary judgment was

not proper on his substantive due process claim

6 In Yeasin the court concluded that the individual defendants were entitled to dismissal of the plaintiff’s §

1983 substantive due process claim because the cases upon which the plaintiff relied in arguing that the law was

clearly established did not establish that expelling Mr. Yeasin “in part, for off-campus, online tweets that affected

another students ability to get an education was arbitrary, lacked a rational basis, or shocks the conscience.” Id. at 854.

Id. at 1182.

Plaintiff alleges that the decision to terminate her participation in the MHA program

was the result of a failing grade in the professional communications course taught by

Professor Bennett, which grade she contends was not earned by poor performance but

rather because of Defendant Bennett’s actions, which were the result of her failure to

accommodate Plaintiff’s disability, her animosity toward Plaintiff when she requested

accommodation, and by her failure to inform only Plaintiff that a vital class had been re-

located. Plaintiff’s Amended Complaint raises the question of whether the decision to

dismiss her was a “careful and deliberate” exercise of professional academic judgment,

rather than being motivated by disability discrimination. See Assenov v. Univ. of Utah, 553

F. Supp. 2d 1319, 1330 (D. Utah 2008); Rossi v. Univ. of Utah, No. 2:15-CV-00767, 2016

WL 3570620, at *5 (D. Utah June 24, 2016). 7 In light of Gossett and Plaintiff’s allegations,

the Court finds that Plaintiff has both stated a claim for the deprivation of her substantive

due process rights and that the right was clearly established. Therefore, Defendants are not

entitled to dismissal of Plaintiff’s § 1983 claim.8

7 “The Due Process Clause encompasses two distinct forms of protection: (i) procedural due process, which requires

a state to employ fair procedures when depriving a person of a protected interest; and (ii) substantive due process,

which guarantees that a state cannot deprive a person of a protected interest for certain reasons.” Reid v. Paulter 36

F.Supp.3d 1067, 1136 (D.N.M. 2014) citing Cty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998)). Certain of

Defendants’ arguments address issues germane to procedural due process, which is not at issue in this case.

8 Plaintiff’s § 1983 claims are limited to her dismissal from the master’s program. To the extent Plaintiff complains

that Defendants violated University policy with regard to grading and the appeal of grades, the failure to follow internal

policy does not itself support a substantive due process claim, nor has she identified any clearly established federal

law that any Defendant violated in that regard. Brown v. University of Kansas, 16 F.Supp.3d 1275, 1290 (D. Kan.

2014)(citing Trotter v. Regents of University of New Mexico, 219 F.3d 1179, 1185 (10th Cir. 2000)). Simply stated, as

currently pled, her substantive due process claim is limited to her contention that her failing grade and removal from

the program were the result of disability discrimination.

Defendants Bennett, Johnson, and Sanders, individually, are named as Defendants

in Plaintiff’s Fourth Cause of Action—tortious interference with a contract. They seek

dismissal of this claim as well, asserting that the Oklahoma Governmental Tort Claims Act

protects them because they were employees of the University with regard to Plaintiff’s

removal from the program. Bennett, Johnson, and Sanders alternatively argue they could

not have interfered with any contract between the University and Dr. Rainwater because

they were employees of the University acting in their representative capacities.

Pursuant to the GTCA, individual state employees “acting within the scope of

employment ... shall be immune from liability for torts.” Okla. Stat. tit. 51 § 152.1. “The

GTCA defines ‘scope of employment’ as the ‘performance by an employee acting in good

faith within the duties of his office or employment or of tasks lawfully assigned by a

competent authority.’” Maher v. Oklahoma, 165 F. Supp. 3d 1089, 1098 (W.D. Okla. 2016)

(quoting Okla. Stat. tit. 51, § 152(12)). “Under the GTCA, ‘any malicious or bad faith act

by an employee falls outside the scope of employment.’” Tilghman v. Kirby, No. CIV-13-

73-D, 2013 WL 6092529, at *3 (W.D. Okla. Nov. 19, 2013) (unpublished order) (quoting

Harmon v. Cradduck, 286 P.3d 643, 650 n.20 (Okla. 2012)); see also, Erikson v.

Oklahoma, No. CIV-16-657-R, 2017 WL 3319317, at *2 (W.D. Okla. Jan. 4, 2017), aff'd,

690 F. App’x 620 (10th Cir. 2017), cert. denied, 138 S. Ct. 407 (2017) (“[t]he Oklahoma

Supreme Court has defined ‘scope of employment’ to specifically exclude actions taken in

bad faith: when the tort cause of action sued upon requires proof of an element that

necessar[ily] excludes good faith conduct on the part of governmental employees, there

can be no liability against the governmental entity in a GTCA–based suit”) (internal

quotations and citations omitted).

In support of her tortious breach of contract claim against Defendants Bennett,

Sanders, and Johnson, in their individual capacities, Plaintiff alleges that each individual

Defendant acted outside the scope of his or her employment “intentionally, maliciously

and in bad faith.” (Amended Complaint, Doc.No. 8, ¶¶ 113, 114, 115). “Generally, the

determination of whether an employee was acting within the scope of employment is a

question of fact ‘except in cases where only one reasonable conclusion can be drawn from

the facts.’” Tilghman, 2013 WL 6092529, at 3 (quoting Bryson v. Oklahoma County, 261

P.3d 627, 632 (Okla. Civ. App. 2011) (internal quotation marks omitted)). “Accordingly,

while this issue may be adjudicated upon consideration of a summary judgment motion, it

cannot properly be determined in a motion to dismiss.” Burris v. Oklahoma, No. CIV-13-

867-D, 2014 WL 442154, *7 (W.D. Okla. Feb. 4, 2014)(quoting Tilghman, 2013 WL

6092529, at *3). The Court finds, therefore, that the GTCA does not mandate dismissal of

Plaintiff’s tortious interference claim against the individual Defendants.

The Court also rejects Defendants’ alternative argument in support of dismissal of

Plaintiff’s Fourth Cause of Action. “A cause of action for wrongful interference with

contract can arise only when one who is not a party to a contract interferes with that contract

by convincing one of the contracting parties to breach its terms.” Ray v. Am. Nat'l Bank &

Trust Co. of Sapulpa, 894 P.2d 1056, 1060 (Okla. 1994). Generally, a defendant who was

a party to the contract in his representative capacity cannot be held liable on such a claim.

Id.; see also Voiles v. Santa Fe Minerals, Inc., 911 P.2d 1205, 1210 (Okla.1996) (“Hugoton

cannot be liable for wrongfully interfering with a contract if it was acting in a representative

capacity for a party to that contract.”). However, the Oklahoma Supreme Court has held

that “[i]f an employee acts in bad faith and contrary to the interests of the employer in

tampering with a third party's contract with the employer we can divine no reason that the

employee should be exempt from a tort claim for interference with contract.” Martin v.

Johnson, 975 P.2d 889, 896-97 (Okla. 1998). Thus, the Court cannot conclude that as a

matter of law Defendants cannot be held liable for wrongful interference. Therefore,

Defendants’ Motion to Dismiss is denied with regard to Plaintiff's Fourth Cause of Action.

Finally, Defendant Ibay, sued on in his official capacity, argues that he should be

dismissed because he was not the program director at the relevant time and because

Plaintiff has failed to allege sufficient facts to support § 1983 liability. The Court has

addressed the propriety of Defendant Ibay’s presence in this suit above and has concluded

that Plaintiff stated a claim under § 1983. Therefore, this portion of Defendant’s motion

is denied.

For the reasons set forth above, Defendants’ Motion to Dismiss is GRANTED as to

Plaintiff's claims against the individual Defendants in their official capacities for claims

under Title II of the ADA and Section 504 of the Rehabilitation Act. In all other respects,

the motion is DENIED.

IT IS SO ORDERED this 30" day of January 2020.

UNITED STATES DISTRICT JUDGE

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