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Clarkson v. Board of Regents of New Mexico State University

United States District Court, D. New Mexico

March 14, 2019




         Gavin 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”[1] 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.



         Clarkson 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.).

         In 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 marks omitted).

         In June 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).

         When 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. (Id.).

         While 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., ¶¶11, 24).

         On 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).

         Clarkson 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).

         On 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).

         Clarkson 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., ¶43).

         Clarkson 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., ¶ 47).

         The 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 ...

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