United States District Court, D. New Mexico
ORDER GRANTING IN PART DEFENDANT'S MOTION TO
DISMISS AND PLAINTIFF'S “COUNTER MOTION” TO
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE.
Clarkson, a former associate professor at New Mexico State
University, sued the Board of Regents in state court after he
was fired in April 2018. Clarkson alleges NMSU wrongfully
terminated him, violated his due-process rights, breached a
contract for professional leave, and discriminated against
him because of his race and age. The Board subsequently
removed the matter to federal court. Now before the Court is
the Board's motion under Federal Rule of Civil Procedure
12(b)(6) to dismiss all but one count of Clarkson's
complaint. (Doc. 14). For his part, Clarkson agrees his
complaint is deficient. He asks the Court to dismiss three
counts, one for wrongful termination and two for
discrimination. By “counter motion” contained in his
response brief, Clarkson seeks leave to amend the due-process
claim. (Doc. 20). The remaining breach of contract count
would remain unchanged and is not a subject of the
Board's motion. The Board contends the proposed complaint
attached to Clarkson's response remains fatally flawed.
With the consent of the parties to conduct dispositive
proceedings, see 28 U.S.C. § 636(c); (Doc. 10),
the Court has considered the parties' submissions. Having
done so, the Court GRANTS the Board's
motion to the extent Clarkson agrees Counts I, IV, and V
should be dismissed and Count II asserts a claim under the
New Mexico Constitution; DENIES the motion
in all other respects; and GRANTS in part
Clarkson's “counter motion” to amend.
is a forty-nine-year-old member of the Choctaw Nation. (Doc.
1-1, Compl., ¶ 1) He earned a J.D. from Harvard Law
School and a Ph.D. from the Harvard Business School.
(Id., ¶ 2). Clarkson is a prolific author
“on both intellectual property strategy, tribal finance
and economic development.” (Id., ¶ 3). He
is also a “leading scholar on tribal finance and
economic development.” (Id.). Garrey
Carruthers originally recruited Clarkson to NMSU's
College of Business “to do Indian stuff, ” which
meant, among other things, acting as a faulty sponsor of the
Native American Business Students Association and
“increasing the amount of tribal finance and economic
development research at NMSU.” (Id., ¶4).
During his time as an associate professor, Clarkson authored
more law review articles than the entirety of the remaining
business-law faculty. (Id.).
early 2017, Clarkson alleges NMSU “attempted to
discriminate against and terminate [him].”
(Id., ¶ 13). Clarkson says faculty falsely
accused him of plagiarism and submitted “a defamatory
dossier” to his supervisors. (Id.). Clarkson
claims he is the foremost expert in tribal finances and
insists the accusation amounted to a claim that he had
plagiarized himself. (Id.). This effort to get
Clarkson fired was in addition to a comment in 2014 by Dean
James Hoffman that Hoffman “would prefer someone other
than Dr. Clarkson to run a specific Native American program
because he wanted someone who looked more like a New Mexican
Indian.” (Id., ¶ 16) (internal quotation
2017, Clarkson was tapped to be the Deputy Assistant
Secretary for Policy and Economic Development at the
Department of the Interior. (Id., ¶ 5). To
allow him to take the position, Clarkson applied for and was
granted “a professional leave of absence until January
2020” pursuant to Section 85-3 of NMSU's
Administrative Rules and Procedures. (Id., ¶
7). Clarkson further asked for an option to extend leave an
additional twelve months and, upon return, to “take
control of the Indian Resource Development Program” but
Provost Dan Howard denied these requests. (Id.,
¶¶ 9-10). Clarkson's “tenure clock,
” however, was to be paused until the Fall of 2020.
(Id., ¶ 8).
the Trump administration asked Clarkson to serve, Clarkson
was preparing to teach an online class at NMSU.
(Id., ¶ 12). He asked the Department of the
Interior for an ethics clearance to teach the course while
employed as a deputy assistant so as not to abandon his
students. (Id.). The Department of the Interior
cleared Clarkson to move forward with his online course.
in Washington, D.C., Clarkson decided to run for Congressman
Steve Pearce's soon-to-be-vacant seat as Pearce pursed
the New Mexico governorship. (Id., ¶¶ 18,
23). Clarkson resigned from his post with the federal
government on December 29, 2017 and returned to Las Cruces by
January 1, 2018. (Id., ¶¶ 23, 26). NMSU
ultimately claimed Clarkson's resignation revoked his
professional leave. (Id., ¶24). Clarkson
describes NMSU's revocation as “unilateral”
and says it was “wrongful.” (Id.,
January 4, 2018, the head of the Finance Department Harikumar
Sankaran emailed Clarkson “assuming” Clarkson
would return to teach for the Fall semester. (Id.,
¶27). Sankaran made no mention of Clarkson's leave
being cancelled or Clarkson teaching in the Spring.
(Id.) Clarkson replied that he was running for
Congress, presumably meaning that Clarkson thought his
professional leave until 2020 was in full effect.
(Id., ¶28). According to Clarkson, Sakaran then
reminded the Provost that Clarkson was on leave “even
through the Fall of 2018.” (Id., ¶29).
formally announced his candidacy for Congress on January 8,
2018. (Id., ¶ 31). Local and national news
outlets ran stories on Clarkson's candidacy and
highlighted his Native American heritage and his preeminence
as a tribal finance scholar. (Id., ¶ 32).
Thereafter, the Provost and NMSU's general counsel spoke
to determine how to respond to Clarkson's candidacy.
(Id., ¶ 33). Meanwhile, Sankaran asked Clarkson
to schedule a meeting with Sankaran, the associate dean, and
dean to discuss Clarkson's leave status. (Id.,
¶ 34). The Provost, however, intervened. (Id.,
¶ 35). He wanted to speak with the dean before the dean
met with Clarkson. (Id.). The Provost claimed to
have “new information, ” and, according to the
general counsel, wanted to send Clarkson a letter outlining
options. (Id., ¶ 35, 37).
January 12, 2018, Clarkson attended the finance
department's faculty meeting. (Id., ¶ 38).
He informed colleagues he was running for Congress and
remained on leave. No. one disputed Clarkson's leave
status, “and it [was] confirmed that he is not on the
schedule to teach in the Spring of 2018.”
(Id., ¶ 38). Later that day, the Provost sent
Clarkson a letter “revoking his leave and demanding
that he either resign immediately or return to campus the
next business day.” (Id., ¶ 39).
attempted to call the Provost immediately after receiving the
letter. (Id., ¶ 40). The Provost had left for
the day, the Friday before a long weekend. (Id.,
¶ 40). Despite NMSU's claims that Clarkson was no
longer on leave and expected him to teach for Spring 2018,
Clarkson did not receive a paycheck for the first pay period
of the semester. (Id., ¶¶37-41). On
January 16, 2018, Clarkson attended the College of Business
convocation and checked in with Sankaran. (Id.,
claims that on the day he checked in, Sankaran raised in an
email to the Provost general counsel's “disparaging
remarks regarding Dr. Clarkson's presence on
campus” and “in that same email, there was a
discussion about hindering Dr. Clarkson's run for
Congress.” (Id., ¶44). No. mention was
made by general counsel of other faculty's absence, and
Clarkson claims general counsel made the comments
“presumably because Dr. Clarkson had previously flown
back to Houston to take care of his teenage son and elderly
mother.” (Id.). In any event, the Provost
thereafter required Clarkson to be on campus at all times and
“go up for tenure two years earlier than promised in
the grant of professional leave.” (Id., ¶
Provost called Clarkson on January 17, 2018 and told Clarkson
that his leave “was automatically cancelled the moment
that Dr. Clarkson resigned his position with the Presidential
administration.” (Id., ¶ 48). The Provost
stated the he knew Clarkson was leaving the Department of
Interior as of November 2017 and that Clarkson was expected
back for the 2018 Spring Semester. (Id.). In fact,
Provost told Clarkson he “was desperately needed on
campus, ” a statement that Clarkson claims was
pretextual. (Id., ¶ 50). The Provost also said
that leave was only for the specific position within the
administration, despite the absence of any such conditions in
writing being placed on Clarkson. (Id., ¶ 49).
Clarkson informed the Provost that he would teach while on
leave “if there ...