Goldman v. The University of Kansas ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,060
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STEPHEN D. GOLDMAN,
Appellant,
v.
THE UNIVERSITY OF KANSAS
and
JEFFREY P. KRISE,
Appellees.
MEMORANDUM OPINION
Appeal from Douglas District Court; JAMES R. MCCABRIA, judge. Opinion filed December 23,
2020. Affirmed.
Theodore J. Lickteig, of Lenexa, and Frederick D. Deay II, of Overland Park, for appellant.
Derek T. Teeter and Michael T. Raupp, of Husch Blackwell LLP, of Kansas City, Missouri, for
appellees.
Before ARNOLD-BURGER, C.J., POWELL and GARDNER, JJ.
POWELL, J.: Stephen D. Goldman, a former graduate student in the School of
Pharmacy at the University of Kansas, was found guilty of committing scholarly
misconduct in 2010. As a result, the University placed a letter in his file for three years
and dismissed him from the School of Pharmacy, but it did not expel him from the
University. Goldman filed this lawsuit challenging the University's actions under the
Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., as well as asserting tort and
1
statutory causes of action against the University and Dr. Jeffrey Krise, his advisor and the
complainant in the scholarly misconduct action (collectively "Defendants"). In two
separate rulings, the district court denied relief under the KJRA and granted summary
judgment on his other claims in the Defendants' favor. Goldman now appeals, raising
numerous points of error. After a thorough review of the record, and for reasons more
fully explained below, we affirm the district court.
FACTUAL AND PROCEDURAL BACKGROUND
The facts from the agency hearing are derived from the district court's
memorandum decision on Goldman's KJRA claims.
"Findings of Fact
"Stephen Goldman (petitioner) was a graduate student in the School of Pharmacy
at the University of Kansas. Dr. Jeffrey Krise is a faculty member in the Pharmaceutical
Chemistry Department in the School of Pharmacy, and acted as Mr. Goldman's advisor.
Mr. Goldman had been working under the supervision of Dr. Krise for more than four
years. The relevant facts of this case come into play when Mr. Goldman was in his final
year of study. In May 2009, Dr. Krise requested that Mr. Goldman perform a series of
experiments, with the intent to publish the results. Over the course of roughly seven
months, Mr. Goldman met weekly with Dr. Krise and the other members of the lab to
discuss lab results. Dr. Krise reported that Mr. Goldman presented information in the
weekly lab meetings that seemed to confirm the group's initial hypothesis.
"In December 2009, in preparation for his manuscript outlining his lab's results,
Dr. Krise asked Mr. Goldman to send him very specific data. Dr. Krise asked for all
primary (i.e. raw) data with regard to each experiment Mr. Goldman had completed. The
experiments fell into five separate categories. Two categories dealt with mouse cells, two
others dealt with human cells, and the final category of experiments was separate and the
court will call it the "siRNA" category. In response to his advisor's request, Mr. Goldman
sent Dr. Krise by email the results from only the experiments done on mouse cells (i.e.
2
two categories of experiments). After receiving Mr. Goldman's email message, Dr. Krise
met with him in person and explained he needed the data from the human cells and the
SiRNA experiments as well. Mr. Goldman sent Dr. Krise a second email message
containing an attachment that appeared to Dr. Krise to contain the human cell data. Dr.
Krise based his belief that the data contained in the attachment was the human cell
experiment data he requested on the labeling contained in the document. The belief was
also bolstered by the fact that he specifically asked Goldman for that data in person a few
days prior to receiving the email message.
"Dr. Krise looked through Mr. Goldman's lab notebook that was always present
in the lab to confirm the results Mr. Goldman emailed. After evaluating Mr. Goldman's
lab notebook, Dr. Krise believed that Mr. Goldman had made misrepresentations about
the data at lab meetings for the previous seven months. Dr. Krise also believed that Mr.
Goldman had sent fabricated or misleading data in the second email that was supposed to
contain human cell data. In mid-January, Dr. Krise met with Mr. Goldman to discuss
these issues and Mr. Goldman subsequently sent an apologetic email, the purpose of
which is now in dispute. After receiving Mr. Goldman's apologetic email, Dr. Krise
initiated scholarly misconduct allegations against Mr. Goldman. The University
conducted an internal misconduct procedure after which it dismissed Mr. Goldman from
the School of Pharmacy.
"Timeline of University Review Process
"Dr. Krise completed the School of Pharmacy Student Misconduct form on
February 17, 2010. Next, the Dean of the School of Pharmacy sent a letter to Vice
Chancellor of Research & Graduate Studies, Steve Warren, with copies to Mr. Goldman
and Dr. Krise. Vice Chancellor Warren asked Dr. Robert Hanzlik to perform an Inquiry
into the allegations, as required by Section 2 of Article IX of the University Senate Rules
and Regulations (USRRs). After reviewing materials from the parties, including narrative
statements and the lab notebook, and meeting with Mr. Goldman and Dr. Krise, Dr.
Hanzlik reported his findings to Vice Chancellor Warren in a letter dated May 19th. Dr.
Hanzlik recommended that a more thorough investigation be completed, subject to
Section 3 of Article IX of the USRRs. Mr. Goldman received a copy of Dr. Hanzlik's
Inquiry report on June 2nd. By July 9th the University had appointed an Investigative
3
Committee ("Committee") and notified Mr. Goldman and Dr. Krise of the composition of
the Committee. The Committee was comprised of seven individuals, five of whom were
voting members. Dr. Krise and Mr. Goldman each nominated three individuals, and one
person from each of their lists was chosen to serve on the Committee. The Committee
held its hearings in mid-October and issued a draft report on October 28th. Its final report
was issued to Vice Chancellor Warren on December 21st. The Investigative Committee
found that Mr. Goldman had committed scholarly misconduct and recommended that 1) a
letter be placed in Mr. Goldman's file for three years, and 2) the School of Pharmacy and
Department of Pharmaceutical Chemistry make every effort to work with Mr. Goldman
to enable him to complete his Ph.D. research in a timely manner. The Committee noted
several mitigating circumstances to explain their recommendation.
"Under the University rules, the Vice Chancellor finally determines the sanctions
to be imposed for scholarly misconduct. U.S.R.R. 9.4.1. Vice Chancellor Warren issued
his final determination December 22nd. In his report, Vice Chancellor Warren agreed that
Mr. Goldman had committed scholarly misconduct, but chose to impose different
sanctions than the Investigative Committee. The new sanctions included the letter in Mr.
Goldman's file for three years, and Mr. Goldman's dismissal from the School of
Pharmacy. Vice Chancellor Warren noted that Mr. Goldman was not expelled and could
petition the School of Pharmacy to seek reinstatement, or admission into another
department or school within the University. The Vice Chancellor's report represented a
final agency action by the University. The sanctions were effective on January 7, 2011,
after the Senate Executive Committee found no reason to amend the Vice Chancellor's
ruling. Mr. Goldman appealed the Vice Chancellor's sanctions to the University Judicial
Board, as permitted under USRR 9.4.7. The Judicial Board concluded that the sanction of
dismissal was 'substantially disproportionate' to the severity of the misconduct identified.
The Judicial Board issued its recommendation to the Chancellor, which more closely
mirrored the Investigative Committee's recommended sanctions than they did the Vice
Chancellor's sanctions. On June 1st, 2011, the Chancellor issued her decision accepting
Vice Chancellor Warren's imposed sanctions."
On April 5, 2010, Goldman sought judicial review of the University's decision in
the district court. Over a year later, on September 2, 2011, Goldman amended his petition
4
by adding tort and statutory claims against the University and Krise. In his amended
petition, Goldman claimed: (1) The determination of scholarly misconduct was not
supported by substantial evidence; (2) the determination was unreasonable, arbitrary, or
capricious; (3) the Investigative Committee (Committee) failed to follow prescribed
procedure; (4) one member of the Committee was biased against Goldman; (5) the
University tortiously interfered with a prospective business relationship; (6) the
University breached its contract with Goldman; and (7) Krise violated Goldman's
constitutional right to due process.
On January 5, 2015, following many continuances, the district court issued a
memorandum decision denying all of Goldman's KJRA claims. The district court found
the Committee heard testimony and evidence and possessed substantial evidence to find
Goldman committed scholarly misconduct. Although it questioned Vice Chancellor Steve
Warren's reasons for increasing the sanctions over what the Committee had proposed, it
noted the Vice Chancellor and Chancellor Bernadette Gray-Little made their decision
within the proper legal standard, so the decision was not unreasonable, arbitrary, or
capricious. The district court further found the University followed all its procedures and
Goldman was aware of the allegations against him and was able to respond to them.
Finally, the district court found there was no support for the claim that Thomas
Prisinzano—a Committee member who had coauthored an unrelated academic paper with
Krise—had an improper conflict of interest or bias against Goldman rendering the
committee member unable to hear the complaint.
Goldman appealed the district court's decision, and another panel of our court
dismissed the appeal for lack of jurisdiction, holding that Goldman's remaining tort and
statutory claims for relief had not been decided yet. Goldman v. University of Kansas, 52
Kan. App. 2d 222, 231, 365 P.3d 435 (2015). A mandate was issued, and the case
returned to the district court.
5
On February 14, 2019, before the district court, the Defendants sought summary
judgment on Goldman's three remaining claims. The district court issued a written
memorandum decision granting summary judgment in favor of the Defendants on all
three claims. The district court found Goldman had not alleged malice on the part of the
Chancellor, a necessary element for his tortious interference claim. With respect to the
breach of contract claim, the district court found Goldman's employment was at will as a
matter of law and, as such, there had been no breach of contract. Finally, the district court
found Goldman was afforded due process; Goldman failed to support his argument about
Prisinzano's bias with any legal authority; and Goldman was barred from bringing a claim
under 42 U.S.C. § 1983 (2018) because the KJRA was the exclusive means of relief.
Goldman timely appeals both of the district court's rulings.
ANALYSIS
Before us, Goldman raises the same seven claims he raised before the district
court. Goldman's seven issues are divisible into two groups. Goldman's first group of
claims fall under the KJRA: (1) a lack of substantial evidence supports the University's
decision that he engaged in scholarly misconduct; (2) the University's decision was
unreasonable, arbitrary, or capricious; (3) the Committee did not follow proper
procedures; and (4) the Committee was improperly constituted because it contained a
member biased against him. Goldman's second group of claims fall outside the KJRA and
are those in which the district court granted summary judgment in favor of the
University: (1) tortious interference; (2) breach of contract; and (3) a violation of his
right to due process and an impartial investigating committee under 42 U.S.C. § 1983.
6
I. DID THE DISTRICT COURT ERR BY FINDING THE UNIVERSITY DID NOT VIOLATE
THE KANSAS JUDICIAL REVIEW ACT?
Standard of Review
Our review begins with the presumption that the University's action was valid. We
"exercise the same statutorily limited review of the agency action as does the trial court,
i.e., as though the appeal had been made directly to the appellate court." Romkes v.
University of Kansas, 49 Kan. App. 2d 871, 880, 317 P.3d 124 (2014). The KJRA is the
exclusive means of judicial review of an agency's action. K.S.A. 77-606. The KJRA
applies to all agencies and all proceedings for judicial review except for those specifically
exempted. K.S.A. 77-603(a). But the KJRA "creates only procedural rights and imposes
only procedural duties." K.S.A. 77-603(b). The party asserting the invalidity of the
agency action bears the burden to prove such action was invalid. K.S.A. 77-621(a)(1).
Analysis
The KJRA provides eight grounds on which an agency's action may be
invalidated. K.S.A. 77-621(c). Goldman invokes four, namely: (1) substantial evidence
does not support the University's action—K.S.A. 77-621(c)(7); (2) the University's action
was unreasonable, arbitrary, or capricious—K.S.A. 77-621(c)(8); (3) the University
engaged in unlawful procedure or failed to follow prescribed procedure—K.S.A. 77-
621(c)(5); and (4) the Committee was improperly constituted—K.S.A. 77-621(c)(6).
A. Did substantial evidence support the University's determination that
Goldman committed scholarly misconduct?
Goldman first asserts substantial evidence does not support the University's
determination that he committed scholarly misconduct. Goldman alleges his own
7
testimony and his attorney's cross-examination of Krise undermined Krise's testimony
and the evidence against him. Goldman also claims the district court erred when it found
the Committee members possessed the background to understand the scientific concepts
in the case. Goldman argues the district court essentially rubber-stamped the Committee's
findings because it found the Committee qualified and gave it an inappropriate level of
deference.
The Defendants respond that Krise's testimony documented the specific ways
Goldman fabricated, manipulated, and concealed data. They also argue Goldman ignores
Krise's direct testimony, relying instead on particular lines of cross-examination plucked
out of context and from Goldman's own testimony. The Defendants also dispute
Goldman's characterization of the district court's description of the Committee.
A court must grant relief under the KJRA if the agency action was based on
evidence that was not substantial "when viewed in light of the record as a whole." K.S.A.
77-621(c)(7).
"'[I]n light of the record as a whole' means that the adequacy of the evidence in the record
before the court to support a particular finding of fact shall be judged in light of all the
relevant evidence in the record cited by any party that detracts from such finding as well
as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77-620, and
amendments thereto, cited by any party that support such finding, including any
determinations of veracity by the presiding officer who personally observed the
demeanor of the witness and the agency's explanation of why the relevant evidence in the
record supports its material findings of fact. In reviewing the evidence in light of the
record as a whole, the court shall not reweigh the evidence or engage in de novo review."
K.S.A. 77-621(d).
"'Substantial evidence is such legal and relevant evidence as a reasonable person
might accept as sufficient to support a conclusion.'" Geer v. Eby, 309 Kan. 182, 190, 432
8
P.3d 1001 (2019); see also Kotnour v. City of Overland Park, 43 Kan. App. 2d 833, 837,
233 P.3d 299 (2010) ("Although [K.S.A. 77-621] does not define the term 'substantial
evidence,' case law has long stated that it is such evidence as a reasonable person might
accept as being sufficient to support a conclusion."). K.S.A. 77-621(d) requires us to (1)
review the evidence both supporting and detracting from the agency's findings; (2)
examine the presiding officer's credibility determinations, if any; and (3) review the
agency's explanation as to why the evidence supports its findings. Bd. of Cherokee
County Comm'rs v. Kansas Racing & Gaming Comm'n, 306 Kan. 298, 327, 393 P.3d 601(2017); Redd v. Kansas Truck Center, 291 Kan. 176, 182, 239 P.3d 66 (2010). Even if
there is evidence supporting the agency's decision, we must consider "'whether the
evidence supporting the agency's decision has been so undermined by cross-examination
or other evidence that it is insufficient to support the agency's conclusion.' Herrera-
Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, 363, 212 P.3d 239(2009)." Romkes, 49 Kan. App. 2d at 889.
The Committee found Goldman committed scholarly misconduct in that "(1) there
was a significant departure from accepted practices of the relevant scholarly community;
(2) the misconduct was committed intentionally, knowingly, or recklessly; and (3) the
allegation was proven by a preponderance of the evidence." The Committee based its
decision "on a belief that data presented by [Goldman] to [Krise] was altered including
misrepresentation of standard error bars, mislabeling of graphs, and concealing data that
did not support the hypothesis."
Goldman takes issue with each of the Committee's reasons and argues substantial
evidence does not support the findings. The Defendants complain Goldman cherry picks
the evidence by only presenting parts of his testimony and Krise's cross-examination and
ask us to reweigh the evidence and make credibility determinations. The Defendants are
partially right. Goldman frequently measures Krise's testimony against his own testimony
or his lawyer's cross-examination of Krise and argues his evidence is more credible than
9
Krise's. We are not permitted to reweigh evidence or engage in de novo review. K.S.A.
77-621(d). However, Goldman also uses this evidence for an appropriate purpose—
showing he presented evidence to the Committee that detracts from the Committee's
finding of scholarly misconduct.
The Defendants try to argue that Goldman's arguments are irrelevant because
Goldman sent an email to Krise before Krise filed the scholarly misconduct complaint. In
his email, Goldman stated:
"[T]here is no excuse for what I did. I didn't make up data but let bad data pass as good
data, which is equally if not more terrible. I think I did it because I was insecure about
why some cells were working and others were not when I thought that the Lobel lab
could get it to work. Also I was egotistical and should have let you know."
Significantly, the Committee did not indicate that it relied on this email as an admission
of scholarly misconduct. So, instead, we will focus on the three actions the Committee
stated it relied on in finding scholarly misconduct.
1. Standard Error Bars
The Committee found Goldman misrepresented the standard error bars. Krise
presented bar graphs showing a 20-fold (statistically significant) difference between the
manipulated data sent to him by Goldman and the actual data found in Goldman's lab
notebook.
Goldman argues cross-examination undermined Krise's testimony because it
showed Krise did not include these graphs in the original complaint, and Krise admitted
he could not tell whether the raw data for the bar graphs showed statistically significant
data. But Goldman cherry picks from the cross-examination, focusing on whether this
10
information was included in the complaint, not the veracity of the data. Whether the
information was included in the original complaint is not relevant to whether substantial
evidence supported the Committee's finding. And, while Krise did say he could not tell if
that data was statistically significant without doing a statistical analysis on the data, Krise
also testified that, based on the data, the graph should be 20-fold elevated.
Additionally, the complaint and Krise's testimony focused on the many ways
Goldman misrepresented data. The data should have shown no difference between the
normal NPC1 deficient cells and the NPC2 deficient cells; instead, the data Goldman sent
Krise showed the NPC1 deficient cells had a much higher IC50. Krise showed the
Committee several graphs highlighting the difference in the data between what Goldman
presented to Krise and the data in Goldman's lab notebook. Goldman did not attack the
veracity of the evidence, only its importance or meaning. A reasonable person could
agree the graphs showing the difference in the real and manipulated data was enough to
support the scholarly misconduct finding.
2. Mislabeling of Graphs
Next, the Committee found Goldman mislabeled the graphs he sent to Krise as
human cell data instead of mouse cell data. Goldman argues Krise made a mistaken
conclusion about the graphs because Goldman had been on vacation. To support his
argument, Goldman cites to his response to the complaint that the MEF label on the
graphs was cropped out because Krise was trying to persuade his audience that a mistake
was made. Goldman also takes issue with Krise's presentation of the nomenclature used
on the graph for identifying mouse cell and human cell data. Based on his response to the
complaint, Goldman argues Krise was wrong about the labels used for mouse cells and
human cells.
11
First, the extensive discussion in Krise's original complaint of Goldman
mislabeling of the graphs refutes his written response. Second, despite Goldman's claim
that Krise could not explain how the legend can refer to both mouse cells and human
cells, Krise did so multiple times. Goldman does not point to any evidence besides his
response to the complaint. A reasonable person could find Krise's explanation of the
mislabeled graphs sufficient to support a finding of scholarly misconduct.
3. Concealing Data
Third, the Committee found Goldman concealed data that did not support the
experiment's hypothesis. Goldman gives several explanations for why he did not actually
conceal any data, including that he did show Krise the data, testimony from other
students indicating the presentations were summaries of the data not primary data, and
Krise did not explain how the absence of a PowerPoint slide was evidence that Goldman
concealed data.
Goldman's explanations do not contradict Krise's testimony about concealing data
but seek to show alternative reasons for why the data was not presented to Krise.
Although the Committee did not explicitly make a credibility finding, by finding
Goldman concealed data, it implicitly found Goldman was not credible. Again, we are
not permitted to reweigh the evidence or determine witness credibility. K.S.A. 77-621(d).
Additionally, Krise presented the data in Goldman's lab notebook and compared that data
to the data Goldman submitted to Krise. The Committee had the source evidence to
evaluate and determined Goldman concealed data. A reasonable person could find the
evidence supported the finding.
Finally, at the end of his substantial evidence argument, Goldman tacks on a
criticism of the district court for stating the Committee had the background to understand
the scientific concepts in this case. Goldman notes the district court only describes two of
12
the five voting members and seven total members of the Committee as having experience
in the physical sciences. He claims: "One might have understood the District Court
simply adopting the findings of the Investigating Committee." It is not clear to us how
this assertion is relevant to whether substantial evidence supported the Committee's
findings. Our review of the district court's memorandum decision indicates that it took
the time to read the arguments and the extensive agency record in reaching its decision.
The district court's decision is well reasoned and clearly not a blind adoption of the
findings of the Committee.
A reasonable person could find the evidence sufficient to support the Committee's
finding of scholarly misconduct.
B. Was the University's determination that Goldman committed scholarly
misconduct unreasonable, arbitrary, or capricious?
Next, Goldman argues the Committee's finding that he committed scholarly
misconduct was unreasonable, arbitrary, or capricious. Goldman relies on his substantial
evidence arguments and asserts the University's explanation was counter to the evidence.
The Defendants respond the decision should be affirmed for the same reasons that
substantial evidence supports the Committee's findings.
A reviewing court shall grant relief if the agency action was unreasonable,
arbitrary, or capricious. K.S.A. 77-621(c)(8). When an agency possesses discretion, as the
Committee and the University did here, "a court must presume the validity of an agency
action and cannot substitute its judgment for that of the administrative agency unless the
action is unlawful, unreasonable, arbitrary, or capricious." Lario Oil & Gas Co. v. Kansas
Corporation Comm'n, 57 Kan. App. 2d 184, 205, 450 P.3d 353 (2019). "'An agency's
action is "arbitrary and capricious" if it is unreasonable or "without foundation in fact."'
13
[Citations omitted.]" Chesbro v. Board of Douglas County Comm'rs, 39 Kan. App. 2d
954, 970, 186 P.3d 829 (2008).
"[A]n action is unreasonable when it is taken without regard to the benefit or harm to all
interested parties or is without foundation in fact, and that an action is arbitrary and
capricious if it is unreasonable or lacks any factual basis. Essentially, the test under
K.S.A. 77-621(c)(8) determines the reasonableness of the agency's exercise of discretion
in reaching its decision based upon the agency's factual findings and the applicable
law. . . . [F]actors that may be considered include whether: (1) the agency relied on
factors that the legislature had not intended it to consider; (2) the agency entirely failed to
consider an important aspect of the problem; (3) the agency's explanation of its action
runs counter to the evidence before it; and (4) whether the agency's explanation is so
implausible that it could not be ascribed to a difference in view or the product of agency
expertise. Courts must be careful in making this review because the legislature has given
the discretion to make the decision to an agency, not the court. [Citations omitted.]"
Wheatland Electric Cooperative v. Polansky, 46 Kan. App. 2d 746, 757-58, 265 P.3d
1194 (2011).
Goldman argues Wheatland's third factor—the Committee's explanation was
counter to the evidence—most clearly favors him. Goldman does not discuss the
application of the other factors and relies on his substantial evidence argument to assert
the scholarly misconduct finding was unreasonable, arbitrary, or capricious.
But substantial evidence does support the Committee's finding of scholarly
misconduct, so Goldman cannot show why the Committee's decision was unreasonable,
arbitrary, or capricious on this basis. Goldman appears to complain the Committee
compressed its findings into a two-page letter, but he does not point to any authority
showing the decision's length is evidence the decision was unreasonable, arbitrary, or
capricious. The Committee's decision letter adequately explained its reasons supporting
its scholarly misconduct finding.
14
Goldman also points out the district court criticized the University's rationale for
imposing more serious sanctions than the Committee recommended, but it stopped short
of calling the decision unreasonable, arbitrary, or capricious. Goldman claims the district
court rightfully showed the University's decision on sanctions to be improper but failed to
take the next step and find the action unreasonable, arbitrary, or capricious.
Goldman misinterprets the district court's decision. The district court did question
Warren's and Gray-Little's imposition of more stringent sanctions, and a reasonable
person could agree with such criticism. It is fair to ask why the University has multiple
review and appellate procedures if the University can then ignore them at will. In fact, the
district court noted in its memorandum decision that the University's review and appellate
procedures appeared to be "mere window dressing."
But we do not overturn an agency's decision when we dislike the result. As the
district court noted, when a discretionary decision is made that takes the proper factors
into account and is within appropriate legal parameters, the decision "'is protected even if
not wise.'" Dragon v. Vanguard Industries, Inc., 277 Kan. 776, 779, 89 P.3d 908 (2004).
University policy vests the Chancellor with the sole discretion to determine sanctions.
Gray-Little's letter showed she considered the Committee's recommendation, as well as
the recommendations from Warren and the Judicial Board panel. Gray-Little articulated a
reasonable basis for adopting the sanction recommendation from Warren.
Goldman has failed to persuade us that the scholarly misconduct finding was
unreasonable, arbitrary, or capricious.
15
C. Did the University fail to follow its own procedures and applicable federal
rules?
Next, Goldman argues the University did not follow its own procedures in the
investigation or hearing nor did it comply with federal regulations. Goldman asserts the
University admitted it did not contact the federal Office of Research Integrity (ORI) as
federal regulations require. Goldman argues the University's initial inquiry did not find a
reasonable basis that research misconduct occurred, as required by University rules and
federal regulations. Goldman also asserts the Defendants did not give him proper notice
of all the allegations. Finally, Goldman states the district court erred in giving the
University deference over its interpretation of its own rules and procedures. He also
complains about the district court's failure to address each material fact at issue.
The Defendants respond that Goldman's list of material facts is irrelevant because
the district court was not required to address individually each material fact in its ruling.
The Defendants argue the University correctly followed its procedures throughout this
case.
When an agency has engaged in unlawful procedure or failed to follow its
prescribed procedures, a court must grant relief. K.S.A. 77-621(c)(5).
Goldman first complains of 17 "material issues of fact" on which the district court
did not rule. Goldman bases this argument on K.S.A. 77-621(b), which states: "The court
shall make a separate and distinct ruling on each material issue on which the court's
decision is based." While it is true that the statute requires a ruling on each issue, the
statute does not require a district court to address each fact raised to support each issue or
each fact that may be in dispute. The district court addressed the issues in its ruling and
grouped Goldman's allegations into five categories before proceeding to explain why any
16
procedural error was harmless, if any errors occurred at all, because any alleged
procedural errors did not harm Goldman.
For example, Goldman argues the University did not provide him with a complete
list of allegations and claims Krise added new allegations at the hearing, in violation of
42 C.F.R. § 93.309(a) (2019). Goldman does not explain what allegations the University
failed to notify him of in writing within a reasonable time. Instead, Goldman's brief states
the record references those allegations and then cites to the Defendants' surreply brief in
opposition to Goldman's petition for judicial review. That part of the surreply is the
Defendants' explanation contradicting Goldman's assertion about his lack of notice. It
does not explain what allegations Goldman failed to get reasonable notice of, nor does it
explain how Goldman was prejudiced. It is Goldman's duty to provide adequate support
for his argument, and his failure to do so results in the argument being waived. See In re
Adoption of T.M.M.H., 307 Kan. 902, 912, 416 P.3d 999 (2018).
Goldman also argues the University's inquiry did not conclude there was a
reasonable basis to find that research misconduct occurred, as required by federal
regulations and the University's procedures. In his reply to the Defendants' arguments,
Goldman adds the University's rule allows the outcomes from an inquiry to be (1) no
basis for an investigation or (2) a more thorough investigation is necessary, which
Goldman believes violates federal regulations.
Federal regulation 42 C.F.R. § 93.307(d)(1) (2019) states:
"An inquiry's purpose is to decide if an allegation warrants an investigation. An
investigation is warranted if there is—
"(1) A reasonable basis for concluding that the allegation falls within the
definition of research misconduct . . . ."
17
University Senate Rules and Regulations (U.S.R.R.) procedure requires the person
conducting the inquiry to notify the Vice Chancellor if a more thorough investigation is
necessary. U.S.R.R. 9.2.6(b). From the text of the regulation and University rules,
U.S.R.R. 9.2.6(b) does not violate the relevant federal regulation. Nothing in the
regulation prevents a university from deciding a more thorough investigation is necessary
to determine if research misconduct did occur. Moreover, even if 42 C.F.R.
§ 93.307(d)(1) and U.S.R.R. 9.2.6(b) do conflict, Hanzlik's letter explained a reasonable
basis existed for an investigation, even if he did not use the magic words. Hanzlik found
Goldman's changing of the labeling on a data set "suspicious" and "strange," found
Goldman's explanations weak, and recommended a more thorough inquiry because he
believed there was evidence to support the possibility of research misconduct.
Goldman next argues the University erred because it did not contact the ORI as
required by 42 C.F.R. § 93.309(a) and U.S.R.R. 9.1.4 and 9.4.6. The University admitted
to the district court that it did not contact the ORI, although it stated an official consulted
with the ORI and was told it was not necessary. More importantly, Goldman does not
explain how this failure harmed him.
Without specifically finding that errors occurred, the district court found any error
to be harmless. The KJRA requires taking into account harmless error. K.S.A. 77-621(e).
Given that Goldman asserts his procedural rights provided by federal regulations and
university rules were violated, a nonconstitutional harmless error test applies requiring us
to determine if there was a reasonable probability the error affected the hearing's
outcome. See State v. McCullough, 293 Kan. 970, 981, 270 P.3d 1142 (2012).
The district court was correct in finding any error was harmless. The only potential
error we see is that the University failed to formally notify ORI of the investigation. But
that failure had no effect on Goldman's inquiry and hearing. Any other error that may
have occurred was also harmless. Goldman was able to respond to Krise's complaint. The
18
alleged new allegations were, in fact, just more detailed explanations of the allegations in
the complaint. Goldman was not prejudiced by any errors the University made.
Parenthetically, we note that Goldman takes issue with the district court's reliance
on Tonge v. Werholtz, 279 Kan. 481, 109 P.3d 1140 (2005), and Schmidt v. Kansas Bd. of
Technical Professions, 271 Kan. 206, 21 P.3d 542 (2001). Both cases explain courts
should give deference to an agency's interpretations of its own rules and regulations. See
Tonge, 279 Kan. at 484; Schmidt, 271 Kan. at 214. Goldman also asserts that In re Tax
Appeal of LaFarge Midwest, 293 Kan. 1039, 271 P.3d 732 (2012), overrules both cases.
But Lafarge addressed an agency's interpretation of statutes, not its own regulations. 293
Kan. at 1044. The district court's citation to Tonge and Schmidt related to its finding that
the University correctly followed its own procedures rather than the School of
Pharmacy's student handbook. Goldman does not challenge that decision here.
Any failure of the University to follow its rules or federal regulations was
harmless.
D. Was the University's Committee improperly constituted because one
member had a conflict of interest?
For his final KJRA claim, Goldman alleges the Committee was improperly
constituted because committee member Prisinzano had a conflict of interest for
coauthoring a paper with Krise. See K.S.A. 77-621(c)(6). Goldman also asserts the
district court erred in finding Goldman waived the argument by not objecting to
Prisinzano's inclusion on the Committee. The Defendants reply that Goldman cites no
evidence to support his assertion there was a conflict of interest and that coauthoring an
unrelated paper does not create a conflict of interest. The Defendants also assert Goldman
waived the argument because he never objected during the administrative process. In his
reply brief, Goldman argues he could not object within the timeframe given by the Vice
19
Chancellor because the paper was not published at that time. Goldman does not reply to
the merits of the Defendants' argument.
As to the point that Goldman waived the issue by not objecting below, the district
court did not explicitly find Goldman waived his conflict of interest argument. The
district court noted at the end of its finding that Goldman never objected to Prisinzano's
participation and if Goldman was concerned about his neutrality, then an objection would
have been appropriate. Goldman argues he could not object because he did not learn of
Krise's and Prisinzano's coauthorship until after the deadline the Vice Chancellor gave
the parties to object. While true, Goldman had ample time after the paper was published
and before his hearing to voice his objection. He did not do so until after the Judicial
Board heard his appeal. But even if Goldman had not waived his objection to Prisinzano's
participation on the Committee, there was no conflict.
Goldman principally alleges a conflict of interest existed because Krise and
Prisinzano had a joint financial interest due to the expenditure of funds to prepare their
paper. However, Goldman does not provide a citation to the record to support his claim
that a joint financial interest existed or even that Krise and Prisinzano spent research
funds in coauthoring their paper. Goldman also notes U.S.R.R. 9.3.2 and 42 C.F.R.
§ 93.310(f) (2019) require members of an investigating committee to have no unresolved
financial conflicts of interest. But Goldman does not explain how there is an unresolved
conflict of interest. Moreover, even if coauthoring a paper causes a conflict of interest,
the article was published before the hearing, likely ending the conflict.
In light of a lack of caselaw suggesting coauthoring an unrelated paper creates a
conflict of interest, the district court was correct to observe: "Surely it is assumed that
faculty in their professional capacities can collaborate on research and also review
administrative matters neutrally and fairly." There is no evidence in the record to suggest
20
Prisinzano was unable to participate in the scholarly misconduct investigation in a fair
and unbiased manner or that the Committee was improperly constituted.
II. DID THE DISTRICT COURT ERR IN GRANTING SUMMARY JUDGMENT?
Standard of Review
"'Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and when we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied.' [Citation omitted.]" Patterson v. Cowley County, Kansas, 307 Kan. 616,
621, 413 P.3d 432 (2018).
When considering summary judgment, a court must refrain from weighing the
evidence or passing on witness credibility. Esquivel v. Watters, 286 Kan. 292, 295-96,
183 P.3d 847 (2008). "If the moving party shows the absence of facts to support an
essential element of the nonmoving party's claim, that nonmoving party '"has the
affirmative duty to come forward with facts to support its claim, although it is not
required to prove its case."' [Citations omitted.]" Drouhard-Nordhus v. Rosenquist, 301
Kan. 618, 623, 345 P.3d 281 (2015). Summary judgment should be denied if a genuine
issue of material fact exists. Siruta v. Siruta, 301 Kan. 757, 766, 348 P.3d 549 (2015).
Direct evidence is not required to survive summary judgment; circumstantial evidence
may be considered. 301 Kan. at 768. But speculation is "insufficient to avoid summary
judgment." Chesbro, 39 Kan. App. 2d at 960.
21
Analysis
A. Did the district court properly grant summary judgment on Goldman's
tortious interference claim because he made no showing of malice?
Goldman argues the district court erred in granting summary judgment to
Defendants on his tortious interference claim. Specifically, Goldman argues the district
court erred when it found Goldman had failed to produce any evidence of malice. The
Defendants respond that Goldman did not provide any evidence that Gray-Little, the
ultimate decisionmaker, acted with malice, any evidence of a business expectancy, and
that any assertion of future employment was mere speculation.
The elements of tortious interference with a prospective business advantage or
relationship are:
"(1) the existence of a business relationship or expectancy with the probability of future
economic benefit to the plaintiff; (2) knowledge of the relationship or expectancy by the
defendant; (3) that, except for the conduct of the defendant, plaintiff was reasonably
certain to have continued the relationship or realized the expectancy; (4) intentional
misconduct by defendant; and (5) damages suffered by plaintiff as a direct or proximate
cause of defendant's misconduct.
"[The intentional misconduct prong is] predicated on malicious conduct by the
defendant." Turner v. Halliburton Co., 240 Kan. 1, 12, 722 P.2d 1106 (1986).
Malice is "'a state of mind characterized by an intent to do a harmful act without a
reasonable justification or excuse.' PIK Civ. 3d 103.05." Dunn v. First Nat. Bank of
Olathe, No. 92,543, 2005 WL 1277949, at *3 (Kan. App. 2005) (unpublished opinion);
see also Turner, 240 Kan. at 8 (defining "actual malice" as "'actual evil-mindedness or
specific intent to injure'").
22
Generally, the question of malice is a jury question. Burcham v. Unison Bancorp,
Inc., 276 Kan. 393, 425, 77 P.3d 130 (2003); see Turner, 240 Kan. at 8, 11-12 (discussing
defamation action but holding same reasoning applied to tortious interference claim). But
if the plaintiff fails to offer any evidence of "'an extrinsic character'" to prove malice on
the part of the defendant, there is no issue for the jury, and it is the district court's duty to
determine the issue. 240 Kan. at 8.
Here, the district court granted summary judgment to the Defendants based on its
finding that Goldman did not allege any facts to show malice to support the intentional
misconduct element. Although Goldman provides a list of eight facts he alleges support
malice, the problem is that none of them involve the decisionmaker. Here, the ultimate
decisionmaker was Chancellor Gray-Little. Gray-Little had the discretion to accept the
Committee's scholarly misconduct finding, and she made the final decision concerning
the sanctions against Goldman. Goldman's tortious interference claim does not allege
malice on the part of Gray-Little, so Goldman cannot show intentional misconduct by the
University in finding him guilty of scholarly misconduct and dismissing him from the
School of Pharmacy.
Perhaps recognizing this, Goldman argues Gray-Little's decisions were rubber
stamps for those who did show malice against Goldman. Goldman argues that, under the
cat's paw theory of liability, the district court should have imputed to Gray-Little the
malicious actions of her subordinates. The term "cat's paw" derives from a fable from
Aesop, put into verse by La Fontaine in 1679, and injected by Judge Posner in 1990 into
employment discrimination law. See Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.
1990). In the fable, a monkey uses flattery to induce a cat to retrieve chestnuts from the
fire. After the cat does so, the monkey makes off with the chestnuts, leaving the cat with
nothing but burnt paws. Staub v. Proctor Hospital, 562 U.S. 411, 415 n.1, 131 S. Ct.
1186, 179 L. Ed. 2d 144 (2011).
23
The cat's paw theory has been used in Title VII employment discrimination cases.
See Menaker v. Hofstra University, 935 F.3d 20, 37 (2d Cir. 2019). A traditional Title
VII case utilizes a burden-shifting framework where the plaintiff must establish a prima
facie case of discrimination; then the burden shifts to the employer to provide a
legitimate, nondiscriminatory reason for the adverse employment action; before the
burden shifts back to the plaintiff to submit admissible evidence from which a finder of
fact could infer the employment decision was more likely than not based in whole or in
part on discrimination. A cat's paw case is a slight variation of a Title VII vicarious
liability case. 935 F.3d at 30.
"In a 'cat's paw' case, . . . the agent 'manipulates an employer into acting as a
mere conduit for his [discriminatory] intent.' . . . [S]o long as the agent intended and was
the proximate cause of the adverse result, the agent's discriminatory intent may be
imputed to the employer under traditional agency principles. . . . [This occurs] where the
employer . . . knew or should have known of the agent's discriminatory motivation." 935
F.3d at 37-38.
As the Defendants note, the use of the cat's paw theory is inappropriate here. First,
Goldman fails to show that the cat's paw theory has ever been applied outside of Title VII
cases, and we see a good reason for that. Title VII only requires proof that discrimination
was a motivating factor, while an intentional tort—like tortious interference—requires
proof a defendant intended an action to occur. Second, Kansas courts have never applied
the cat's paw theory in employment discrimination or otherwise. We reject the use of the
cat's paw theory here.
Without any facts alleging malice on the part of Gray-Little, Goldman fails to
allege a genuine dispute of any material facts. The district court correctly found Goldman
did not establish the intentional misconduct element of his intentional misconduct claim.
24
B. Did the district court properly grant summary judgment on Goldman's
breach-of-contract claim because he was an at-will employee?
Next, Goldman argues the district court erred in granting the University summary
judgment on his breach-of-contract claim. He asserts that whether he had an employment
contract with the University and whether that contract specified his employment was at
will were factual questions for a jury to decide. Goldman alleges a document entitled
"Graduate Research Assistant (GRA) Intent to Appoint" contains ample indicia for a jury
to conclude the document was a written contract. He also claims the district court should
have applied a duty of good faith and fair dealing to the contract. In reply, the University
argues Goldman's claim is precluded because the KJRA is the exclusive means by which
Kansas state employees can challenge the termination of their contractual employment.
Alternatively, the University asserts the plain language of the GRA Intent to Appoint
states the document is not a formal offer of employment and any employment was to be
at will.
The University relies on Schall v. Wichita State University, 269 Kan. 456, 482, 7
P.3d 1144 (2000), for the proposition that the KJRA is Goldman's only remedy for his
breach-of-contract claim. See Fowles v. Kansas State Lottery, 254 Kan. 557, 565, 867
P.2d 357 (1994) (holding same in action against Kansas Lottery based on judicial review
of agency action under KJRA). The University also raised this argument before the
district court, but the district court chose not to address this issue, instead granting
summary judgment to the University on the merits. While we are inclined to agree with
the University's argument the KJRA is the only avenue for relief for an employment
contract claim, we need not answer the question because Goldman's breach-of-contract
claim fails on the merits.
"In order to form a binding contract, there must be a meeting of the minds on all
essential elements." Albers v. Nelson, 248 Kan. 575, 580, 809 P.2d 1194 (1991).
25
Generally, the existence of a contract depends on the parties' intent and is a question of
fact for the jury. But where the legally relevant facts are undisputed, the existence and
terms of a contract become legal questions for the court's determination. Our review of
such legal questions is de novo. U.S.D. No. 446 v. Sandoval, 295 Kan. 278, 282, 286 P.3d
542 (2012). "'The primary rule for interpreting written contracts is to ascertain the parties'
intent. If the terms of the contract are clear, the intent of the parties is to be determined
from the language of the contract without applying rules of construction. [Citations
omitted.]'" Peterson v. Ferrell, 302 Kan. 99, 104, 349 P.3d 1269 (2015).
The GRA Intent to Appoint states any employment for the GRA position "would
be 'at will.'" The employment-at-will doctrine generally holds that "employees and
employers may terminate an employment relationship at any time for any reason, unless
there is an express or implied contract governing the terms of employment." Peters v.
Deseret Cattle Feeders, LLC, 309 Kan. 462, 469, 437 P.3d 976 (2019). An employer may
terminate an "'at-will employee' for good cause, for no cause, or even for a wrong cause,
without incurring liability to the employee for wrongful discharge." Morriss v. Coleman
Co., Inc., 241 Kan. 501, 508, 738 P.2d 841 (1987).
Goldman acknowledges the language of the GRA Intent to Appoint but claims it
created an implied contract between the University and him beyond merely employment
at will. It is true that parties may become contractually obligated by their conduct as well
as by their oral or written words, and implied contracts arise from the facts and
circumstances showing a mutual intent to contract. See Quaney v. Tobyne, 236 Kan. 201,
Syl. ¶ 3, 689 P.2d 844 (1984) (terms of contract may be proven by parties' acts and
attending circumstances). "Because the intent must be mutual, an implied contract cannot
be established solely by the employee's subjective understanding or expectation of his or
her employment." Peters, 309 Kan. at 470. Intent is a state of mind, and courts should be
cautious in granting summary judgment "'when resolution of the dispositive issue
26
necessitates a determination of the state of mind of one or both of the parties.'" 309 Kan.
at 470-71.
However, the only fact or evidence Goldman offers to show the existence of an
implied contract beyond employment at will is the GRA Intent to Appoint. But this
document instead defeats any claim that Goldman had a written employment contract
with the University or that his employment was beyond employment at will.
Goldman argues the document has ample indicia for a jury to find it is a contract
because it includes a durational element, a statement of purpose, and a rate of
compensation. But the durational element contains a start date and no end date; the
statement of purpose describes the position; and it is not surprising a document
describing a paid position includes the pay rate. More significant is the fact that the GRA
Intent to Appoint explicitly stated it was "not a formal offer of employment and does not
guarantee . . . employment." The GRA Intent to Appoint cannot serve as the basis for an
employment contract when it expressly states it is only an offer of employment. Instead,
the GRA Intent to Appoint provides a description of the GRA position if Goldman
accepts that position. Also, the GRA Intent to Appoint expressly states that any
employment "would be 'at will' and may be terminated at any time." Goldman signed the
GRA Intent to Appoint on the line immediately below that explanation. Despite
Goldman's assertions to the contrary, the GRA Intent to Appoint does not form a written
contract nor does it create an implied contract beyond employment at will.
Recognizing the obstacle of the at-will language in the document and relying on
Wilkinson v. Shoney's, Inc., 269 Kan. 194, 215-16, 4 P.3d 1149 (2000), and Stover v.
Superior Industries Int'l, Inc., 29 Kan. App. 2d 235, 240-41, 29 P.3d 967 (2000),
Goldman argues that a determination of whether employment is at will is also a fact
question for a jury. While Goldman is generally correct, we have stated that when the
material facts are not in dispute, a court may determine whether a contract exists. See
27
Sandoval, 295 Kan. at 282. Additionally, the cases Goldman relies on are distinguishable.
The document at issue in Wilkinson was a poster, and in Stover, an employee handbook.
In both cases, the courts noted there was no evidence the employee was aware of the
policy and other facts disputed those policies. See Wilkinson, 269 Kan. at 215-16; Stover,
29 Kan. App. 2d at 240-41. Here, Goldman signed the GRA Intent to Appoint, showing
his awareness of its contents. Goldman also offered no evidence beyond that document to
prove an understanding to the contrary.
Finally, Goldman argues the district court erred in not applying a duty of good
faith and fair dealing to his employment contract. But a duty of good faith and fair
dealing does not apply to employment-at-will contracts. Morriss, 241 Kan. at 518.
Goldman acknowledges the state of the law but asks us to overrule Morriss. We are duty
bound to follow Kansas Supreme Court precedent absent an indication the Supreme
Court is departing from its position. See State v. Rodriguez, 305 Kan. 1139, 1144, 390
P.3d 903 (2017). As the Kansas Supreme Court has given no such indication, we cannot
overrule Morriss.
There was no breach of contract.
C. Did the district court err in granting summary judgment on Goldman's 42
U.S.C. § 1983 claim?
For his final claim, Goldman asserts the district court erred when it granted
summary judgment on his 42 U.S.C. § 1983 claim. Goldman brought his § 1983 claim
only against Krise; he did not name the University. Goldman argues Krise violated his
constitutional right to due process under the Fifth and Fourteenth Amendments to the
United States Constitution and placed a biased individual on the Committee.
28
Krise responds in several ways. First, he argues Goldman could only bring his due
process claim under the KJRA, not 42 U.S.C. § 1983. Second, Krise argues only the
University had the duty to provide Goldman with due process, not him. But if he
somehow had some due process duty to Goldman, Krise argues he provided adequate
notice to Goldman and that Prisinzano was an impartial decisionmaker. Third, Krise
argues he is entitled to qualified immunity.
A person may file suit when a state official, acting under the color of law, deprives
that person of "any rights, privileges, or immunities secured by the Constitution and
laws." 42 U.S.C. § 1983. To state a valid claim under § 1983, a plaintiff must allege: "(1)
whether the conduct complained of was committed by a person acting under color of state
law, and (2) whether this conduct deprived a person of rights, privileges, or immunities
secured by the Constitution or federal law." Purvis v. Williams, 276 Kan. 182, 198, 73
P.3d 740 (2003).
Goldman alleges Krise deprived him of his right to procedural due process.
Procedural due process requirements apply to deprivation of interests under the
Fourteenth Amendment's protection of liberty and property. Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 569-70, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). "An
essential principle of due process is that a deprivation of life, liberty, or property 'be
preceded by notice and opportunity for hearing appropriate to the nature of the case.'"
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 84 L.
Ed. 2d 494 (1985). "'[T]he root requirement' of the Due Process Clause" is that an
individual receive an opportunity for a hearing to present reasons why the proposed
deprivation should not happen before being deprived of significant property. 470 U.S. at
542. To show a due process claim, an individual must establish three prerequisites:
(1) the official acted under the color of state law; (2) a due process interest existed; and
(3) the alleged loss of that interest amounted to a deprivation of due process. See Parratt
v. Taylor, 451 U.S. 527, 536-37, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), overruled on
29
other grounds by Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662(1986).
To survive summary judgment on his § 1983 claim, Goldman had to prove two
elements: (1) Krise was acting under the color of state law and (2) Krise's conduct
deprived Goldman of rights, privileges, or immunities under the U.S. Constitution or
federal law. See Parratt, 451 U.S. at 535; Purvis, 276 Kan. at 198. To determine if
Goldman was deprived of property in violation of the Due Process Clause, our task is to
determine (1) whether Goldman had a protected interest in the property and was deprived
of the property and (2) the extent of the process due. State v. Wilkinson, 269 Kan. 603,
608-09, 9 P.3d 1 (2000).
Goldman has alleged, and Krise does not dispute, that Goldman had a protected
property interest in his continued education. Therefore, the remaining question is the
extent of the process due to Goldman.
1. KJRA is the only vehicle to raise due process violations.
Before we can reach the merits of Goldman's due process claims, we must first
address Krise's argument that we cannot reach the merits of Goldman's § 1983 claim
because the KJRA provides meaningful postdeprivation review. The district court found
Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984), as well as its
application in Hartwick v. Board of Trustees of Johnson County Community College, 782
F. Supp. 1507 (D. Kan. 1992), supported this position and found because a remedy could
be granted under the KJRA, no due process claim under § 1983 could survive.
In Hudson and Parratt, the United States Supreme Court held that random,
unauthorized deprivations of property do not violate due process if adequate
postdeprivation remedies are available. See Hudson, 468 U.S. at 536; Parratt, 451 U.S. at
30
544. Hudson held intentional deprivations do not violate the Due Process Clause when
predeprivation procedures are "'impracticable'" and adequate postdeprivation remedies
are available, recognizing "[t]he state can no more anticipate and control in advance the
random and unauthorized intentional conduct of its employees." 468 U.S. at 533.
Here, the district court relied on Hartwick's extensive discussion and application of
Hudson. In Hartwick, the Board of Trustees of Johnson County Community College did
not renew Hartwick's contract because it alleged Hartwick had misappropriated college
property. The Board held a due process hearing; Hartwick was represented by counsel
who called witnesses on his behalf and introduced evidence to the hearing panel. The
federal district court found Hartwick had a constitutionally protected property interest in
his continued employment as a professor at the college. 782 F. Supp. at 1511. Hartwick
filed a § 1983 action, complaining the Board did not base its ultimate decision on
misappropriation, meaning he lacked proper notice, and alleging the hearing panel was
biased.
In Hartwick, the federal district court explained that whether Parratt and Hudson
precluded Hartwick's § 1983 claim depended on whether the Board could have
implemented predeprivation safeguards to address the risk of deprivations of the kind
alleged by Hartwick. 782 F. Supp. at 1513. The federal district court found Hartwick
could not bring an action under § 1983 because the Kansas Teacher Tenure Act, K.S.A.
72-5410 et seq. (now K.S.A. 72-2215 et seq.) allowed nonrenewed teachers to appeal the
hearing panel's decision to a state district court, constituting an adequate postdeprivation
remedy for "random and unauthorized violations" of the Kansas Teacher Tenure Act. 782
F. Supp. at 1514-15.
Goldman argues Hartwick is distinguishable because he did not complain that the
University provided him with an incomplete description of the allegations; rather, he did
not receive notice of all the allegations. Goldman cites to several cases he argues better
31
explain the Parratt-Hudson doctrine: Snyder v. City of Topeka, 884 F. Supp. 1504 (D.
Kan. 1995); Anglemyer v. Hamilton County Hospital, 848 F. Supp 938 (D. Kan. 1994);
and Mason v. Board of Education, Unified School Dist. No. 209, 741 F. Supp. 879 (D.
Kan. 1990). However, these cases are distinguishable because they are employment
termination cases where the state provided no process whatsoever prior to termination
and the federal court found the state could have provided a predeprivation hearing. See
Snyder, 884 F. Supp. at 1512-13 (finding city could not use regulations to terminate
employee with no predeprivation process whatsoever); Anglemyer, 848 F. Supp. at 940
(finding in cases of termination of employment, it is possible to hold predeprivation
hearing and due process requires predeprivation hearing, in addition to postdeprivation
measures); Mason, 741 F. Supp. at 882 (finding state was in position to provide
predeprivation process since it was required to under Teachers' Due Process Act;
postdeprivation remedies under state law were not adequate to protect plaintiff's property
interest).
To support the district court's finding, Krise cites an unpublished Second Circuit
Court of Appeals case where the plaintiff was expelled from medical school. In Attallah
v. New York College of Osteopathic Medicine, 643 Fed. Appx. 7 (2d Cir. 2016)
(unpublished opinion), the plaintiff argued he was not obligated to pursue his claims
under New York law, described as an Article 78 proceeding, because his expulsion was
not academically based. The Second Circuit explained:
"The argument misapprehends the district court's decision, which did not hold that
Attallah was required to challenge his expulsion in an Article 78 proceeding. Rather, the
district court concluded that Attallah could not plausibly claim the deprivation of a
protected interest without due process of law because an adequate post-deprivation
remedy in the form of an Article 78 proceeding was available under state law. See
Attallah v. N.Y. Coll. Of Osteopathic Med., 94 F. Supp. 3d at 454-58. That ruling
comports with controlling precedent. See Hudson v. Palmer, 468 U.S. 517, 533, 104 S.
Ct. 3194, 82 L. Ed. 2d 393 (1984) (holding that alleged state deprivation of property does
32
not violate procedural due process 'if a meaningful postdeprivation remedy for the loss is
available'). Thus, even if, as Attallah alleges, state employees acted in concert with
administrators at [Attallah's] private medical school to expel him, any ensuing
deprivation of property or liberty does not give rise to a procedural due process claim
under § 1983." 643 Fed. Appx. at 9-10.
Here, the University provided Goldman with a predeprivation hearing before
finding him guilty of scholarly misconduct and removing him from the School of
Pharmacy. Goldman now complains his due process rights were violated for the
University's failure to follow the required procedures in the investigation and hearing. In
this manner, Goldman's argument is more like Hartwick than any of the cases Goldman
provides.
Applying Hartwick, we find Goldman was provided with a predeprivation hearing.
Assuming, without deciding, that Goldman's due process rights were violated at the
hearing, it is impracticable for the State of Kansas to anticipate an actor would disregard
the University's procedural rules. A hearing to remedy this violation during the midst of
the scholarly conduct hearing would not be possible. It is not an action considered by
Kansas law or University rules. Indeed, a person might not even realize his or her due
process rights were violated until the hearing was over. But Kansas law does offer a
postdeprivation remedy. Goldman could, and did, file a KJRA claim in state district
court. The KJRA explicitly directs the district court to grant relief if the agency did not
respect an individual's due process rights. K.S.A. 77-621(c)(5). Goldman's remedy for
any due process violations is the KJRA and not a § 1983 claim.
2. What due process did Krise owe Goldman?
In our view it is significant that Goldman filed his § 1983 action against Krise
only, not the University. As a result, to survive summary judgment, Goldman must show
33
a genuine issue of material fact supports his assertion that Krise violated his due process
rights.
Goldman alleges he was not adequately informed of the accusations against him
and he was deprived of an impartial panel. Krise claims Goldman never articulated a due
process violation attributable to Krise individually. Krise argues it was the duty of the
University and its officials conducting the investigation and hearing to follow its
procedures and provide Goldman with due process. Goldman claims to be confused by
this argument because a state and its agencies are not "persons" within the meaning of
§ 1983. Goldman is correct. See Will v. Michigan Department of State Police, 491 U.S.
58, 64, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). But Goldman misses Krise's point.
Section 1983 requires Goldman to make allegations against a person, but the person or
persons must be those who deprived Goldman of his constitutional rights. Krise argues it
was not his duty to provide Goldman with due process and, therefore, he did not deprive
Goldman of his constitutional rights to notice and an impartial panel. We agree.
The plain wording of 42 U.S.C. § 1983 contains a causation element: "Every
person who . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws . . . shall be
liable to the party injured." In other words, a defendant is not liable under § 1983 unless
he or she subjected a person to the deprivation or caused a person to be subjected to the
deprivation.
Assuming for the moment Goldman's allegations of deprivation are true, Krise was
not the person responsible for the deprivation. First, Krise was not responsible for
creating an impartial Committee. Krise did not choose the Committee members. Both
Krise and Goldman submitted the names of three persons to be on the Committee. Then
Vice Chancellor Warren chose one name from each list to be a part of the seven-member
committee (five members could vote, including Krise's and Goldman's members). It was
34
the Vice Chancellor, not Krise, who ultimately determined the composition of the
Committee. Krise did not cause Goldman to be deprived of an impartial Committee.
Krise was the complainant. University rules require the complainant to report any
scholarly misconduct to the Vice Chancellor for Research and Graduate Studies.
U.S.R.R. 9.2.1. The Vice Chancellor then assigns an individual to undertake an inquiry.
U.S.R.R. 9.2.1. But first, that individual must inform the respondent—here, Goldman—
of the nature of the complaint. U.S.R.R. 9.2.3. The individual undertaking the inquiry
must also take "all reasonable and practical steps" to gather all relevant records and
evidence. U.S.R.R. 9.2.3. If an investigation is warranted, the Vice Chancellor must
notify both parties and request their views. U.S.R.R. 9.3.1. When the respondent is not a
professor, University rules require a similarly situated person be selected as a nonvoting
member to make sure the respondent's rights are not violated. U.S.R.R. 9.3.3. During the
investigation, it is the Committee's duty to pursue all significant issues and leads that are
relevant to the investigation, including evidence of additional instances of possible
scholarly misconduct. U.S.R.R. 9.3.4.
Goldman complains Krise did not provide him with notice of all the allegations of
scholarly misconduct against him. But the University's rules show it was the job of the
Vice Chancellor and the individual performing the inquiry to inform Goldman of the
nature of the charges. And the Committee had a duty to pursue any issues that showed
possible scholarly misconduct. Krise occupied none of those positions. Goldman's § 1983
claims must fail because Krise did not cause any deprivation of Goldman's right to due
process. Given our findings we need not address Krise's claims of qualified immunity.
III. CONCLUSION
In summary, we affirm the district court's judgment on the KJRA claims because
we find the University's action was supported by substantial evidence and was not
35
otherwise unreasonable, arbitrary, or capricious. The University also provided
appropriate process to Goldman. We also affirm the district court's grant of summary
judgment in favor of the Defendants on Goldman's claims of tortious interference, breach
of contract, and denial of due process.
Affirmed.
36