Two former faculty members of Colorado State University Pueblo may proceed to hold school officials liable for allegedly retaliating against them when they spoke up about sex-based discrimination, a federal judge has ruled.
Kimberly Cowden and Joanne Gula were both assistant professors in CSU Pueblo's Mass Communication Department when they posted on social media and talked with local news outlets about the school's plans to terminate four female instructors, including themselves. They filed a lawsuit seeking reinstatement to their positions and monetary damages from the administrators who reacted to their allegations of unequal treatment.
Last week, U.S. District Court Judge Regina M. Rodriguez declined to dismiss the plaintiffs' First Amendment claims, deciding it was clearly established that taking adverse action against public employees who speak about discrimination amounts to a constitutional violation.
Cowden and Gula have also lodged claims of employment discrimination and violations of Title IX, the federal law prohibiting sex-based discrimination in educational programs, against the school itself. CSU Pueblo has not moved to dismiss those allegations.
The lawsuit alleged that CSU Pueblo canceled multiple classes in the Mass Communication Department due to low enrollment in the fall of 2018. Dean William Folkestad asked that faculty instead submit a research or teaching idea. Cowden created a proposal, but the school denied it and instead assigned the female faculty members "a mandatory administrative project" unrelated to their scholarship, according to the lawsuit.
The plaintiffs claimed the sole male instructor, by contrast, was allowed to pursue a project aligned with his research and teaching objectives.
Cowden complained about this allegedly-disparate treatment on behalf of herself and Gula. Afterward, the two instructors allegedly received performance reviews that were less complimentary than in the past.
On April 10, 2019, provost and executive vice president Mohamed Abdelrahman sent Cowden and Gula letters informing them they would not be reappointed to their tenure-track positions after May 2020. He cited "declining enrollments, over staffing and the need to re-evaluate the department programming" as the reason for their non-renewals.
The following day, Gula posted a letter from CSU Pueblo on Facebook that explained the school was looking to cut costs to fix a $3 million deficit.
"Why out of eight people who received terminal one year contracts are FOUR of them FEMALE Mass Comm Professors????" Gula wrote. She added that there "is no major anymore. It was killed off by the execution of four female professors."
Cowden also posted to the "Media Communication at CSU-Pueblo" Facebook group, asking students how they felt about "these firings."
CSU Pueblo's president, Timothy Mottet, sent the two women letters on May 13, 2019, informing them their appointments would end after May 2020. Two weeks later, Folkestad wrote to them to say they would not be assigned any courses or research for the upcoming school year, but would still receive a salary. The school later admitted the removal of the instructors' duties was because of their comments implying discrimination.
"Your clients' statements in these public postings and newspaper articles are the reason CSU-Pueblo decided to pay your clients but not have them teach further classes," Allison R. Ailer of the Colorado Attorney General's Office wrote to Cowden and Gula's lawyers.
The plaintiffs alleged the school had violated Title VII, the federal law prohibiting discrimination in employment, as well as Title IX. They also claimed Folkestad, Abdelrahman and Mottet infringed upon their First Amendment rights by retaliating against them when they spoke up about potential discrimination.
The defendants argued Cowden and Gula were disgruntled employees who only sought to air grievances and save their own jobs. They contended there was no caselaw prohibiting the removal of a public employee's job duties after she had "spewed false information" about her employer.
"Plaintiffs’ statements contradicted and interfered with CSUP’s effort to give a consistent, uniform explanation to alumni and students about its need to make changes based upon declining student enrollment," Ailer wrote to the court. "Plaintiffs tried to scare students into believing that they would receive a subpar education if the Department was reorganized."
The professors countered that their speech related to employment discrimination, which courts have found the First Amendment protects.
Rodriguez determined the plaintiffs' claims were focused on the retaliation they allegedly experienced from their social media comments and statements to news outlets, as well as the internal complaint of discrimination. The defendants did not push back against the alleged First Amendment violations for the remarks to news outlets or the internal complaint, so Rodriguez allowed the lawsuit to proceed against Mottet, as he was the one with the power to reinstate the plaintiffs to their jobs.
As for the social media posts, Rodriguez examined a series of factors that would determine whether such statements received First Amendment protection. She concluded Cowden and Gula were not speaking as employees, but rather as citizens, and had raised concerns beyond basic workplace grievances.
The posts "were made in the context of 'a broader public purpose' of discussing alleged discrimination and planned changes at CSUP," Rodriguez observed in her Aug. 23 order.
The judge also noted the decisions to terminate and remove Cowden and Gula's job duties came after their comments — and the attorney general's office had admitted as much.
Finally, she decided against giving qualified immunity to the individual defendants, which shields government employees from civil liability unless they violate a person's clearly-established legal rights. It was clearly established, Rodriguez determined, that employers cannot take adverse action against public employees for speaking on issues of public concern, like discrimination, when there is no threat to the university's internal operations.
The decision means Cowden and Gula will be able to pursue monetary damages against the three administrators, as well as reinstatement.
The case is Cowden et al. v. The Board of Governors.