Complaint

Case 5:23-cv-04056 Document 1 Filed 07/12/23 Page 1 of 72
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
AMANDA MIRACLE, )
CHRISTOPHER LOVETT, )
MICHAEL BEHRENS, )
ROB CATLETT, )
DAN COLSON, )
CHARLES EMMER, )
BRENDA KOERNER, )
SHERYL LIDZY, )
MAX MCCOY, )
MICHAEL MORALES, )
AND LYNNETTE SIEVERT. )
Plaintiffs, )
)
v. ) Case No.
)
PRESIDENT KEN HUSH, )
EMPORIA STATE UNIVERISTY, )
KANSAS BOARD OF REGENTS, )
PROVOST AND VICE PRESIDENT OF )
ACADEMIC AFFAIRS BRENT THOMAS, )
GENERAL COUNSEL )
KEVIN JOHNSON, )
STEVEN LOVETT, )
JULENE MILLER, )
BILL FEUERBORN, )
CHERYL HARRISON-LEE, )
SHANE BANGERTER, )
ANN BRANDAU, )
MARK HUTTON, )
SHELLAINE KIBLINGER, )
JON ROLPH, )
ALLEN SCHMIDT, )
HELEN VAN ETTEN, )
CARL ICE, )
CYNTHIA LANE, )
BLAKE BENSON, )
DIANA MENDOZA, )
WINT WINTER, AND )
JOHN DOE )
Defendants. )
VERIFIED COMPLAINT
Comes now Plaintiffs Christopher Lovett, Amanda Miracle, Michael Behrens, Rob Catlett,
Dan Colson, Charles Emmer, Brenda Koerner, Sheryl Lidzy, Max McCoy, Michael Morales, and
Lynnette Sievert, (“Plaintiffs”) and for their claims against Defendants named above, state and
allege as follows:
NATURE OF ACTION
This action is brought pursuant to 42 U.S.C. § 1983, 1985 and 1988 to redress violations
of Plaintiffs’ constitutional rights by Defendants. Specifically, Plaintiffs in this action possess the
property right in tenure in connection with their employment at the Emporia State University
(“ESU”). The Defendants, each of them, participated in a multitude of conspiracies to terminate
Plaintiffs, and others of similar background and status as tenure. In addition, pursuant to Kansas
law arising out of the same facts and circumstances, Plaintiffs assert State law claims against
Defendants.
JURISDICTION AND VENUE
1. This Court possesses subject matter jurisdiction to hear these claims pursuant to 28
U.S.C. § 1343 and 28 U.S.C. § 1331.
2. Plaintiffs State law claims arise under the laws and constitution of the State of
Kansas over which this Court may exercise supplemental jurisdiction, pursuant to 28 U.S.C. §
1367.
3. The amount in controversy exceeds $75,000.00 exclusive of costs and interests for
each Plaintiff.
4. Venue is proper as all claims occurred in the State of Kansas and the conduct of
some of the Defendants occurred in Shawnee County, Kansas.
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PARTIES
5. Plaintiff Christopher Lovett is a resident of Shawnee County, Kansas. Plaintiff
Daniel (“Dan”) Colson is a resident of Butler County, Kansas. The remaining Plaintiffs are
residents of Lyon County, Kansas.
6. Plaintiff Max McCoy is an alumnus of ESU and was hired by ESU in 2006.
Professor McCoy was awarded tenure in 2011 and became a full professor in 2017. Professor
McCoy was a Professor of Journalism.
7. Plaintiff Rob Catlett was hired by Emporia Kansas State College (EKSC), now
ESU, in August 1976 and earned tenure in 1984 in the Division of Social Science. He was
promoted to Associate Professor in the Department of Mathematics and Economics in 2018. In
1977 and 1978, ESU invited him to apply as part of ESU’s national search for an economist for a
tenure-track position.
8. Plaintiff Michael Behrens was hired by ESU in August 2014 and was awarded
tenure and promoted to Associate Professor in the department of English, Modern Languages and
Journalism in 2020.
9. Plaintiff Sheryl Lidzy was hired by ESU in August 2006 and became tenured as an
Associate Professor in the Department of Communication & Theatre in 2011.
10. Plaintiff Amanda Miracle was hired by ESU in August 2009 and earned tenure in
2015. She was an Associate Professor in the department of Social Sciences, Sociology and
Criminology.
11. Plaintiff Dan Colson was hired by ESU in August 2012 and received tenure in 2018.
He was promoted to full professor after he received notice of his termination. Provost Thomas and
President Hush approved his promotion after September 2022.
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12. Plaintiff Christopher Lovett was hired by ESU in December 1995 and became
tenured and was awarded to full professorship in 2006. He was employed in the Department of
Social Sciences, Sociology and Criminology.
13. Plaintiff Lynnette Sievert was hired by ESU in 1996, granted tenure and promoted
to associate professor in 1999, and became a full professor in 2005. Upon hire, ESU recognized
three years of her experience toward tenure. Dr. Sievert was employed as a Professor of Biology.
14. Plaintiff Charles Emmer was employed by ESU in May 2005 and earned tenure
with his promotion to associate professor in August 2012. Professor Emmer was promoted to full
professor in 2017. He was employed in the Department of Social Sciences, Sociology, and
Criminology.
15. Plaintiff Brenda Koerner was hired by ESU in August 2005 and became an
associate professor in 2014. Dr. Koerner worked in the Department of Biological Sciences.
16. Plaintiff Michael Morales was hired by ESU in or about August 1997 and became
tenured on or about January 2004.
17. Defendant, Kansas Board of Regents (“KBOR”), 1000 SW Jackson St, Topeka, KS
66612, is an official body of the state of Kansas charged with supervising and administering to
postsecondary education institutions, including ESU, in the Kansas Regents System under
established law pursuant to the Kansas Higher Education Coordination Act, K.S.A. § 74-3201a, et
seq.
18. Defendant, Emporia State University (“ESU”), 1 Kellogg Circle, Emporia, KS
66801, is a state educational institution overseen by KBOR and is the present but soon to be former
employer of Petitioners.
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19. Defendant Ken Hush at all times relevant to this action was the interim president
and or president of ESU. As such, he was a duly appointed agent authorized to act under authority
of the laws of the State of Kansas and so acted under the color of law and in the scope of his
employment at all times relevant to this action. He is sued in his individual capacity. He may be
served with process at Emporia State University, 1 Kellogg Circle, Plumb Hall, Room 202K, Box
4001, Emporia KS 66801.
20. Defendant Brent Thomas at all times relevant to this action was Dean of the College
of Liberal Arts & Sciences, and/or Provost and Vice President for Academic Affairs at ESU. As
such, he was a duly appointed agent authorized to act under the authority of the laws of the State
of Kansas and so acted under the color of law and in the scope of his employment at all times
relevant to this action. He is sued in his individual capacity. He may be served with process at
Emporia State University, 1 Kellogg Circle, Box 4010, Emporia KS 66801.
21. Defendant Kevin Johnson at all times relevant to this action was General Counsel
for ESU, as well as a tenured member of the ESU School of Business faculty with the academic
rank of professor. As such, he was a duly appointed agent authorized to act under the laws of the
State of Kansas and so acted under the color of law and in the scope of his employment at all times
relevant to this action. He is sued in his individual capacity. He may be served with process at
Emporia State University, 1 Kellogg Circle, Plumb Hall, Room 202D, Box 4001, Emporia KS
66801.
22. Defendant Steven Lovett at all times relevant to this action was the Associate
General Counsel (later reclassified as the Associate General Counsel for Academic Affairs in
2022) and an Associate Professor of Business Law and Ethics at ESU. As such, he was a duly
appointed agent authorized to enact the laws of the State of Kansas and so acted under the color of
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law and in the scope of his employment at all times relevant to this action. He is sued in his
individual capacity. He may be served with process at Emporia State University, 1 Kellogg Circle,
Cremer Hall, Room 404, Campus Box 4039, Emporia KS 66801.
23. Defendant Cheryl Harrison-Lee at all times relevant to this action was a member of
the Kansas Board of Regents. As such, she was a duly appointed agent authorized to enact the laws
of the State of Kansas and so acted under the color of law and in the scope of her employment at
all times relevant to this action. She is sued in her individual capacity. She may be served with
process at the Kansas Board of Regents, 1000 SW Jackson Street, Suite 520, Topeka, KS 66612-
1368.
24. Defendant Shellaine Kiblinger at all times relevant to this action was a member of
1368.
25. Defendant Carl Ice at all times relevant to this action was a member of the Kansas
Board of Regents. As such, he was a duly appointed agent authorized to enact the laws of the State
relevant to this action. He is sued in his individual capacity. He may be served with process at the
Kansas Board of Regents, 1000 SW Jackson Street, Suite 520, Topeka, KS 66612-1368.
26. Defendant Cynthia Lane at all times relevant to this action was a member of the
Kansas Board of Regents. As such, she was a duly appointed agent authorized to enact the laws of
the State of Kansas and so acted under the color of law and in the scope of her employment at all
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times relevant to this action. She is sued in her individual capacity. She may be served with process
at the Kansas Board of Regents, 1000 SW Jackson Street, Suite 520, Topeka, KS 66612-1368.
27. Defendant Wint Winter at all times relevant to this action was a member of the
Kansas Board of Regents. As such, he was a duly appointed agent authorized to enact the laws of
the State of Kansas and so acted under the color of law and in the scope of his employment at all
times relevant to this action. He is sued in his individual capacity. He may be served with process
28. Defendant Julene Miller at all times relevant to this action was general counsel for
1368.
29. Defendant Bill Feuerborn at all times relevant to this action was a member of the
30. Defendant Shane Bangerter at all times relevant to this action was a member of the
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31. Defendant Mark Hutton at all times relevant to this action was a member of the
32. Defendant Jon Rolph at all times relevant to this action was a member of the Kansas
Board of Regents. As such, he was a duly appointed agent authorized to enact the laws of the State
relevant to this action. He is sued in his individual capacity. He may be served with process at the
Kansas Board of Regents, 1000 SW Jackson Street, Suite 520, Topeka, KS 66612-1368.
33. Defendant Allen Schmidt at all times relevant to this action was a member of the
34. Defendant Ann Brandau formerly Ann Brandau-Murguia at all times relevant to
this action was a member of the Kansas Board of Regents. As such, she was a duly appointed agent
authorized to enact the laws of the State of Kansas and so acted under the color of law and in the
scope of her employment at all times relevant to this action. She is sued in her individual capacity.
She may be served with process at the Kansas Board of Regents, 1000 SW Jackson Street, Suite
520, Topeka, KS 66612-1368.
35. Defendant Helen Van Etten at all times relevant to this action was a member of the
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36. Defendant Blake Benson at all times relevant to this action was a member of the
the State of Kansas and acted under the color of law and in the scope of his employment at all
37. Defendant Diana Mendoza at all times relevant to this action was a member of the
38. Defendants John Doe at all times relevant to this action were involved in the
drafting of the amendment to the Kansas Board of Regents’ temporary amendment to the
Suspension, Terminations and Dismissals policy (“Workforce Management Policy” or “WMP”)
or ESU’s Framework for Workforce Management. Discovery is needed to determine the creators
of KBOR’s WMP and ESU’s Framework.
39. For purposes of this Complaint, all individual Defendants who acted on behalf of,
in the capacity of a member or employees of KBOR will be hereinafter referred to as KBOR
Individual Defendants. The KBOR Individual Defendants include: Shane Bangerter, Ann
Brandau, John Dicus, Bill Feuerborn, Cheryl Harrison-Lee, Mark Hutton, Carl Ice, Shelly
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Kiblinger, Cynthia Lane, Diana Mendoza, Julene Miller, Jon Rolph, Allen Schmidt, Helen Van
Etten, Wint Winter and John Doe unless otherwise expressly stated.
40. For purposes of this Complaint, all individual Defendants who acted on behalf of
or as employees of ESU will be referred to as ESU Individual Defendants herein. The ESU
Individual Defendants include: Ken Hush, Brent Thomas, Kevin Johnson, Steven Lovett, and John
Doe unless otherwise expressly stated.
41. The only relief being sought against the institutional Defendants KBOR and ESU
is prospective injunctive relief in the form of reinstatement of each Plaintiff and return of all
benefits, conditions, duties and responsibilities of employment each enjoyed and maintained
before the termination from ESU and KBOR.
FACTUAL ALLEGATIONS COMMON TO ALL COUNTS
42. Before January 20, 2021, the clearly established law regarding tenure under Kansas
law was that it was a property right. This is subject to procedural and substantive due process
protections under the Fifth through Fourteenth Amendments to the United States Constitution. See
Gorham v. City of Kansas City, 225 Kan. 369; Kosik v. Cloud County Community College, 250
Kan. 507, 512 (1992). The Kansas Supreme Court recognized in Kosik:
To be entitled to due process Dr. Kosik must have a property interest in his
continued employment with CCCC. State law rather than the United States
Constitution must provide the source of this property interest. Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494
(1985). Once the State has conferred a property interest, the property interest
cannot be taken without constitutional, procedural due process. 470 U.S. at 541,
105 S.Ct. at 1492. In Kansas, a public employee who may be discharged only “for
cause” has a property interest in continued employment. Gorham v. City of Kansas
City, 225 Kan. 369, Syl. ¶ 1, 590 P.2d 1051 (1979).
The tenured public employee is entitled to oral or written notice of the charges
against him, an explanation of the employer's evidence, and an opportunity to
present his side of the story. Citing Cleveland Bd. of Education v. Loudermill, 470
10
U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). (Emphasis added.) Id. at
513
See also, Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504 (1998), wherein the Court said:
Because Professor Tonkovich was a tenured professor, he possessed a property

interest deserving of procedural due process protections. Brenna v. Southern Colo.
State College, 589 F.2d 475, 476 (10th Cir.1978); see also Board of Regents v. Roth,
408 U.S. 564, 576–77, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 535, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985),
the Supreme Court examined the issue of “what pretermination process must be
accorded a public employee who can be discharged only for cause.” In deciding
this issue, the Court balanced the competing interests at stake: “the private interest
in retaining employment, the governmental interest in the expeditious removal of
unsatisfactory employees and the avoidance of administrative burdens, and the risk
of an erroneous termination.” Id. at 542–43, 105 S.Ct. 1487 (citing Mathews v.
Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). The Court
concluded that prior to termination, something less than a full evidentiary hearing
is sufficient. Id. at 545, 105 S.Ct. 1487. Thus, the Court held that a “tenured public
employee is entitled to oral or written notice of the charges against him, an
explanation of the employer's evidence, and an opportunity to present his side of
the story.” Id. at 546, 105 S.Ct. 1487.
Because Professor Tonkovich was a tenured professor, the law in this Circuit is that
he possessed “a property interest deserving of ... substantive protections of the
Fourteenth Amendment.” Brenna, 589 F.2d at 476. Substantive due process
requires that the termination of a tenured professor's property interest not be
“arbitrary, capricious, or without a rational basis.” Id. at 477. The Supreme Court
has “emphasized time and again that [t]he touchstone of due process is protection
of the individual against arbitrary action of government....” Lewis, 118 S.Ct. at 1716
(quotation omitted).
Id. at 528.
43. The Tonkovich Court made it very clear, “[t]he federal courts, and not the
University of Kansas, are responsible for establishing the contours of the Due Process Clause of
the Fourteenth Amendment.” Id. at 522.
44. These Due Process protections for the property interest of tenure in Kansas require
a pre-termination hearing before the deprivation of tenure as a property right. See Tonkovich above
and Kosik at 512-13, recognizing:
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In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, the
United States Supreme Court discussed due process requirements in terms of
terminating public employees who had property interests in continued employment
under applicable Ohio statutes. The Court stated: “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.’ ” 470 U.S. at 542,
105 S.Ct. at 1493. (Emphasis added).
45. The Kansas Board of Regents and ESU’s sister institution, Kansas University were
parties in Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504 (1998), and KBOR’s members are
charged with actual knowledge of the clearly established law set forth in Tonkovich.
46. On or about February 12, 2015, Defendant Kevin Johnson, ESU’s general counsel,
co-wrote a paper entitled: “Social Media and Public Higher Education Employment,” relevant
portions attached hereto as Exhibit 1, which states, in part:
A government employee is entitled to constitutional procedural due process only

when the employee has been deprived of a protected property or liberty interest.
See Board of Regents v. Roth, 408 U.S. 564, 570–71, 92 S.Ct. 2701, 2705, 33
L.Ed.2d 548, 556 (1972). Public employees who can be discharged only for cause
have a constitutionally protected property interest in their tenure and cannot be fired
without due process. Gilbert v. Homar, 520 U.S. 924, 929, 117 S.Ct. 1807, 1811,
138 L.Ed.2d 120, 126 (1997). Property interests are created and their dimensions
are defined by existing rules or understandings that stem from an independent
source such as state law. Exhibit 1 at 26-27.
Tenured faculty members of any academic rank also have a clear expectation of
continued employment based on both university policy and the policies of the
university’s governing board…. Id. at 24.
The termination of employment of a member of the faculty of an institution of

higher education does require an examination of a faculty employee’s due process
rights in their employment. Tenured faculty members, as the Professor in the model
case, do have procedural due process rights in their employment…. Id.
Tenure is an academic status granted by a university to one of its own faculty

members…. Once granted, tenure gives a faculty member an expectation of
continued employment at the institution that conferred tenure. (See Section 4,
Number 3 At-Will Employment and Number 4 Constitutional Due Process
Requirements, supra. Inserted in Exhibit 1) For purposes of this article, the only
issue with regard to tenure is whether or not the faculty member has tenure at the
time they are given notice of termination. A tenured faculty member at any
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institution of higher education clearly has an expectation of continued

employment and is entitled to procedural due process rights as a condition of
termination of employment…. (emphasis added). Id. at 33.
47. Before January 21, 2022, KBOR policy mandated that “[f]aculty who have been
awarded tenure may be terminated only for adequate cause, except in the case of program or unit
discontinuance or under extraordinary circumstances because of financial exigency.” KBOR
Policy Manual at p. 1-13, attached as Exhibit 2.
48. All Plaintiffs earned tenure under ESU’s policies before January 21, 2022, which
provides, in part:
1A. 0102 Academic Tenure

An academic tenure appointment is a continuous, full-time, academic position for faculty
with tenure. Tenured appointments will be annually renewed. Termination of a tenured
faculty member must follow appropriate policies and procedures.
Exhibit 2 at p. 1-1.
…
1B.0805.01 Board of Regents Policy for Tenure (revised 2/05)
1. After the expiration of a probationary period, teachers or instructors should have
permanent or continuous tenure, and their services should be terminated only for
adequate cause, except in the case of program or unit discontinuance or under
extraordinary circumstances because of financial exigency. (2/19/97)
Exhibit 2 at p. 1-13.
49. To terminate a tenured professor for cause under ESU’s long-standing policy, ESU
must provide the following rights:
***
4. Rights of the parties to the hearing shall include but are not limited to the
following:
a. To be represented by an attorney
b. To present supporting witnesses
c. To question opposing witnesses
d. To make closing statements
e. To receive written findings and recommendations of the committee and written
notice of the President’s decision and a full explanation of the reasons
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f. To obtain and/or examine the record of the proceedings
Id. at 1-36.
50. Plaintiffs did rely, to their detriment, on the terms and conditions of tenure in the
KBOR and ESU policies in undertaking the arduous process of attaining tenure, thus creating a
contract and or implied contract right to not be terminated without good cause and accompanying
substantive and procedural due process rights.
51. Before January 20, 2021, upon information and belief, unknown John Doe
Defendants and Individual Defendants conspired in a movement to undermine tenure without due
process through the vehicle of anti-tenure rhetoric and in the creation, adoption and
implementation of the WMP and ESU’s Framework.
52. Upon information and belief, these defendants promoted a belief that tenure among
regent universities in the state of Kansas should be minimized or eliminated without having to
comply with the constraints of due process mandated because tenure is a constitutionally protected
property right clearly established by law. These Defendants saw tenure as an impediment to
terminating tenured faculty who were “problematic” concerning issues disfavored by the ESU
Administration. These issues included being members or former members of the Faculty Senate
Committee, being perceived to or having friction with the Administration, policy sticklers, liberals,
advocates, unionizers, and department or campus leaders (hereinafter “issues disfavored by the
ESU Administration”).
53. On January 20, 2021, KBOR General Counsel Julene Miller proposed the
temporary amendment to the Suspensions, Terminations and Dismissals policy (“Workforce
management Policy” or “WMP”) to KBOR members. In discussing the WMP, according to
approved meeting minutes, Defendant Hutton stated: “the proposed policy is not a threat to tenure
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because tenure does not mean that a job is guaranteed regardless of financial circumstances. Tenure
was put in place to ensure academic freedom, which the Board highly values, and handcuffing a
university's ability to ensure financial strength in the name of tenure is counter to its purpose."
Regent Hutton stated that he believes that the financial challenges are going to continue beyond
2021, and he suggested changing the expiration date in the policy to December 31, 2022, which
will allow the Board and the universities additional time to evaluate financial ramifications related
to the pandemic."
54. On January 20, 2021, Defendant Hutton moved to approve the WMP and Defendant
Van Etten seconded the motion. The motion carried by voting members Defendants Hutton, Van
Etten, Bangerter, Brandau-Murguia, Feuerborn, Harrison-Lee, Kiblinger, Rolph and Schmidt.
55. Thus, on or about January 20, 2021, KBOR, without prior notice to the tenured
professors in the State of Kansas or an opportunity to comment, adopted the WMP, attached hereto
as Exhibit 3 at labeled pp. 14-17. The WMP “suspended” tenure rights of professors employed by
regent universities in the state of Kansas without any type of due process whatsoever as follows:
***
ii. In light of the extreme financial pressures placed on the state universities due to
the COVID-19 pandemic, decreased program and university enrollment, and state
fiscal issues, effective immediately through December 31, 2022 and
notwithstanding any other Board or institutional policy, any state university
employee, including a tenured faculty member, may be suspended, dismissed, or
terminated from employment by their respective university. Such terminations,
suspensions, or dismissals shall follow the procedure set forth below. Declaration
of financial exigency and the processes associated with declaration of financial
exigency shall not be a prerequisite to any suspension, dismissal, or termination
authorized by this provision, and no existing university policy hearing procedures
shall apply to such decisions.
The chief executive officer of any state university, before making any suspensions,
dismissals or terminations under this provision and within 45 days of the effective
date of this provision, shall present to the Board for approval a framework for the
university’s decision-making under this provision. Once approved, that framework
shall be used for any suspension, dismissal, or termination under this provision.
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Frameworks for decision-making shall be determined by each state university’s

chief executive officer and may be based on factors such as, but not limited to,
performance evaluations, teaching and research productivity, low service
productivity, low enrollment, cost of operations, or reduction in revenues for
specific departments or schools.
(1) The university chief executive officer shall provide no less than 30 days’
written notice of the suspension, dismissal, or termination to the affected employee,
including the reasons for the action.
(2) Any employee given notice of a suspension, dismissal, or termination that

expressly invokes the authorization of this provision may submit an appeal of the
action of the university chief executive officer, through the Board of Regents office
as provided below, to the Office of Administrative Hearings. Suspension, dismissal,
or termination not invoking this policy shall have solely those appeal rights
provided by existing university policy or other applicable existing procedures.
(3) The employee must submit the appeal to the Board office within 30 days of
receiving notice of the employment action. The initial submission must include a
copy of the notice of the action being appealed and a written statement, including
any relevant supporting evidence or documentation, setting forth the reasons the
employee believes the decision to suspend, dismiss, or terminate the employee (a)
is substantially inconsistent with the university’s decision-making framework
approved by the Board, (b) was the result of unlawful bias or discrimination; or (c)
was otherwise unreasonable, arbitrary or capricious. These shall be the only
grounds for reversing the state university chief executive officer’s decision. The
employee shall provide a copy of the appeal and supporting evidence and
documentation to the university’s chief executive officer at the time the appeal is
submitted.
(4) The university chief executive officer shall have 30 days from receipt to respond
in writing to the appeal, including any supporting evidence or documentation, and
shall provide a copy of the response and any supporting evidence and
documentation to the employee at the time the response is submitted. This 30-day
period may be extended for good cause as determined by the Board President and
Chief Executive Officer.
(5) Within 10 days of receiving the university chief executive officer’s response,
the Board office shall refer the appeal to the Office of Administrative Hearings,
which shall provide a hearing and decide the case based on the standards stated in
this policy and in the university’s Board-approved framework. The Board shall
provide a copy of the submissions to the Office of Administrative Hearings, along
with a copy of this policy and the decision making framework approved by the
Board. The state university shall be responsible for fees charged by the Office of
Administrative Hearings.
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(6) The burden of proof in any appeal shall be on the employee. There shall be no
right of discovery. The review shall be based on the written submissions, and the
hearing shall allow oral presentation to the administrative hearing officer by the
employee and the university, each of whom may be represented by counsel.
(7) Decisions of the administrative hearing officer shall be final and are not subject
to further administrative review by any officer or committee of the university or by
the Board of Regents.
(8) An appeal under this policy will not stay the effective date of the suspension,
dismissal, or termination. Employees who prevail in their appeal under this policy
shall be entitled to reinstatement, back pay and restoration of other lost benefits.
Exhibit 3.
56. On February 17, 2021, KBOR Defendant Bangerter moved to extend the deadline
for universities to submit a framework under WMP to July 1, 2021, and Defendant Van Etten
seconded his motion. Defendants Bangerter, Brandau, Feuerborn, Harrison-Lee, Hutton,
Kiblinger, Rolph, Schmidt and Van Etten approved the extension. See KBOR Minutes dated
February 17, 2021, attached hereto as Exhibit 4.
57. Just a month later, on or about March 17, 2021, one year after Governor Laura
Kelly declared “State of Emergency”, ESU officials presented a document entitled “ESU Strategic
Program Alignment Reviews” to KBOR pursuant to a program review or strategic alignment
review. See KBOR Minutes dated March 17-18, 2021, the relevant portion of that document is
attached hereto as Exhibit 5. The ESU Strategic Program Alignment Review reflects on page
number 29 as follows:
See KBOR Meeting Agenda, Discussion Agenda and Reports (partial), dated March 17-18, 2021
at p. 35, attached as Exhibit 6.
….The ESU Office of Institutional Effectiveness recognized the program [history]

by awarding it the “With Excellence” designation for student outcomes assessment
in 2019. History faculty members are highly productive scholars. Their accolades
and honors include the following examples:
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• Dr. Chris Lovett won the 2019 Edgar Langsdorf Award for Excellence from the
Kansas State Historical Society for his work on Samuel Crumbine.
...
• Dr. Amanda Miracle won the Schillinger award for service to ESU women in
2017.
...
The History program’s faculty and students are highly engaged with the university
and the broader public. The ESU Veterans’ Roundtable is hosted by the History
faculty, and at this time the leadership of the Student Veterans Association are all
students in the Department of Social Sciences. The Department’s annual
Constitution Day celebration draws over 500 students from across Kansas, and to
our knowledge is one of the largest Constitution Day celebrations in the U.S.
Recommendation: Continue the program.
Justification for Recommendation: With only five full-time faculty members, the
History program operates efficiently and produces net revenue for the university.
Approximately one half of the faculty’s teaching assignments comprise general
education courses. The program’s upper-division core and elective courses serve
not only History majors, but also BSE-Social Sciences Education majors and
Interdisciplinary Studies majors, while graduate courses taught by these same
faculty members serve the online MA in History program. If the undergraduate
major in History were discontinued, most of these courses would still have to be
offered. As noted above, enrollment in the History program is actually quite
healthy in BSE students, counted separately for technical reasons, are taken into
account.
58. During the Board of Regents meeting on March 17-18, 2021, KBOR approved and
adopted ESU’s recommendation to keep its History Program including the employment of
Petitioners. See Exhibit 5 at pp. 9-10.
59. According to approved KBOR March 17-28, 2021 meeting minutes, Dr. Aleks
Sternfeld-Dunn of Wichita State University told KBOR that the faculty are still concerned that the
Board’s policy does not require a shared governance structure, and they would like shared
governance officials to be part of the decision-making process when it comes to terminating faculty
and staff, which is the process used when a university declares financial exigency. However, no
18
amendments to require any of the financial exigency criteria were made to the WMP. See Exhibit
5 at pp. 12-13.
60. Based on information and belief, sometime in or about 2021-2022, Defendant
Steven Lovett presented to an ESU Leadership Committee (and possibly others including members
of KBOR) about tenure and possibly advocated against it. Mr. Lovett was not retained to represent
ESU or the Academic Affairs Office until September 2022.
61. During KBOR’s May 18-19, 2022 meeting, KBOR removed the deadline of July
21, 2021, for Universities to “propose a framework for [the WMP] implementation,” while at the
same time acknowledging, “[w]hile the Board was successful in obtaining state funding increases
during the current Session, the enrollment and financial challenges at the universities are still a
concern.” See partial May 18-19, 2022 Board Minutes, labeled pp. 19-20, attached as Exhibit 10.
62. For the 2022-2023 academic year, ESU was funded 100%.
63. Defendant Miller proposed to amend the WMP to eliminate the deadline. Defendant
Lane moved to approve the elimination and Defendant Schmidt seconded the motion. Defendants
Feuerborn, Harrison-Lee, Ice, Kiblinger, Lane, Rolph, Schmidt and Winter approved eliminating
the deadline.
64. In the months preceding KBOR’s September 14-15, 2022 meeting and ESU’s
termination of 33 employees, including about 30 faculty a majority of which were tenured, several
Plaintiffs attended organizational meetings to discuss the WMP, and several worked on obtaining
signatures for unionization. Based on information and belief, Defendant Brent Thomas and some
ESU administrators also attended some of these meetings.
65. Plaintiff McCoy spoke openly in favor of faculty unionizing. Plaintiffs Behrens and
Lidzy signed unionization interest cards and collected signatures. Plaintiffs Lovett, Colson,
19
Morales, Catlett, and Koerner attended organizational meetings and took actions to organize.
Plaintiffs Sievert, Catlett, and others signed union interest cards.
66. Based on information and belief, ESU individual Defendants and KBOR individual
Defendants were aware that Plaintiffs McCoy, Behrens, Lidzy, Koerner, Christopher Lovett,
Sievert, Morales, Catlett, and Colson were advocates or perceived to be advocates for unionization.
67. Based on information and belief, ESU individual Defendants and KBOR individual
Defendants were aware that Plaintiffs were not members of the Republican party and were thought
to be members of or allies of other political parties opposed to the Republican party.
68. On September 13, 2022, two days before Plaintiff McCoy was notified of his
termination, the Kansas Reflector, a nonprofit news operation, published his column titled,
“Emporia State University is about to suspend tenure. Here’s why you should care.” In it, Plaintiff
McCoy predicted his firing under ESU’s Framework, and expressed concern that ESU’s
Framework did not require a specific reason for termination of tenured faculty. He also raised the
alarm that the WMP and ESU’s Framework “would effectively suspend tenure for the fall 2022
semester.” Plaintiff McCoy opined that he would be fired for exercising his First Amendment
rights as an outspoken university professor.
69. During KBOR’s September 14-15, 2022, meeting, Defendant Ken Hush presented
ESU’s Framework for the WMP, and all KBOR members were provided a copy of the Framework.
Hush requested that KBOR approve it. Defendant Thomas discussed ESU’s operations and budget
with KBOR members. See partial copy of KBOR’s September 14-15, 2022 Minutes attached as
Exhibit 11 and a copy of ESU’s Framework for the WMP, attached as Exhibit 12.
70. According to KBOR September 14-15, 2022, meeting minutes, Defendant Carl Ice
asked about the estimated impact and Defendant Hush stated that about seven percent of ESU’s
20
employees will be impacted. Defendant Lane moved to approve ESU’s Framework while noting
that it should be used sparingly, and Defendant Winter seconded the motion. Defendants Benson,
Dicus, Harrison-Lee, Ice, Kiblinger, Lane, Mendoza, Rolph and Winter approved ESU’s
Framework during the September 14-15, 2022 meeting.
71. Neither ESU or KBOR submitted the WMP or ESU Framework to the Kansas
Secretary of State for adoption or publication.
72. On September 15, 2022, without prior notice or being provided a pretermination
hearing, ESU terminated Plaintiffs by providing them with substantively identical form letters
(hereinafter “Termination Letter”) that read in common to all letters:
Dear [Name]:
I regret to inform you that your appointment as Professor [Name], with Emporia
State University (ESU) is ending effective Tuesday, May 16, 2023, due to extreme
financial pressures accelerated by COVID-19 pandemic, decreased program and
university enrollment, continuing and ongoing increases in the cost of operations
across campus, and substantive changes in the educational marketplace. This action is
taken under Kansas Board of Regents (Board) policy Chapter II, Section C., Paragraph
6.b., and in accordance with the required framework approved by the Board. A copy of
this framework is included with this notification letter.
Specifically, this action is based on factors such as, but not limited to:
• Low enrollment.
• Cost of operations.
• Restructuring of a program, department, or school as determined to be necessary
by the university.
Secondary considerations may include:

• Reduction in revenues for specific departments or schools.
• Current or future market considerations as to the need for a program or
department.
• Realignment of resources.
• Performance evaluations.
• Teaching and research productivity.
• Low service productivity
21
This letter and information packet provides the details of your rights and estimated
benefits.
Per standard ESU procedures, you will be placed on leave without pay on
Sunday, May 14, 2023, as you submit your final grades. Upon completion of
your responsibilities, as determined by the university, ESU will:
• Pay you three (3) months severance pay.
• The university reserves the right to place you on paid administrative leave
through your end date should the university determine that to be in the best of
interest of the university.
• You may be eligible to retire from the university in lieu of being laid off. If
you choose to retire, you will still receive three (3) months severance pay.
A representative from our Human Resources Office will briefly review benefits,
estimated final pay information including qualifying leave payouts, and answer
questions you may have, today.
The Human Resources Office will be in contact with you regarding dates, times
and locations of three informational sessions to review the information in this
packet. I welcome and encourage you to bring your spouse, partner, significant
other, or other valued folk to participate in this conversation.
Human Resources will reach out to you again near the end of your appointment.
You may contact the Office of Human Resources any time with questions prior
to those meetings.
At this time, it is expected that you will receive your final paycheck as normal
on June 9, 2023. This paycheck will include vacation leave, comp time, payouts,
incentive pay, and any other payroll payments due to you at that time.
You may appeal this action within 30 days of receipt of this notice, in writing,
to the Kansas Board of Regents, with a copy to ESU President, Ken Hush. The
attached framework outlines what should be included in and with the appeal.
Questions regarding this appeal process may be directed to Steven Lovett,
Associate General Counsel for Academic Affairs.
We recognize the importance of the work and commitment you have made to
our students, university programs, the university itself, and the Emporia and
academic communities, and thank you for your service.
Sincerely,
Ken Hush
President
c: Personnel File
22
These Termination Letters are attached hereto as Exhibit 9, along with a copy of ESU’s Framework
to the WMP (Exhibit 12 hereto) setting forth the “allowable” administrative appeal procedures.
73. Despite the unconstitutional procedures under the WMP, all Plaintiffs timely filed
appeals in writing to the Kansas Office of Administrative Hearings.
74. Kevin Johnson and President Hush submitted formal written Responses to the
appeals. Included in most of the Responses, as quoted from the Response to Plaintiff Lovett’s
appeal was:
Dr. Lovett’s appeal does not state any provable claim that President Hush’s decision
was arbitrary or capricious, i.e., that President Hush’s decision was not based on a
reasonable foundation of fact. Instead, Dr. Lovett’s appeal asserts a sweeping
declaration that “…not to renew my contract at Emporia State after 16 May 2023
… [is] ‘unreasonable, arbitrary, and capricious.’” His appeal appears to rationalize
that claim primarily because of Dr. Lovett’s view of tenure as a “property right[,]”
the taking of which violated his “constitutional rights under the Fifth and
Fourteenth Amendments.”
However, as noted above, President Hush’s decision and the use of the University’s
Workforce Management policy is not in contravention to Dr. Lovett’s status as a
tenured faculty member, nor the tenured status of any other faculty member at ESU.
As a matter of Board policy, “[t]enure is a privilege that must be affirmatively
granted by the institution in recognition of the meritorious performance.” Neither
Kansas statutory law, Board policy, nor University policy create an explicit right
to tenure, nor a property interest in tenure, for university tenured faculty
members. 1 Instead, even under normal policy standards, tenured employment is a
characterized as a “privilege” to which the Board and/or the University reserve
discretion to withdraw for various reasons, such as a felony conviction, significant
reduction in or elimination of a position’s funding source, program discontinuance,
financial exigency, or for just cause.
...
Each issue raised by Dr. Lovett in support of his appeal has been addressed herein
and shown to be unsupported by controlling legal authority, including the Kansas
Constitution, Board policy, ESU policy, other applicable statutes and regulations,
23
controlling or persuasive caselaw, or the body of relevant facts. Accordingly, Dr.

Lovett has failed to meet his burden of proof.
(internal citations omitted).
75. ESU made similar arguments about tenure in response to several Plaintiffs’ appeals
to OAH, namely that: “Neither Kansas statutory law, Board policy, nor University policy create
an explicit right to tenure, nor a property interest in tenure, for university tenured faculty members.
Instead, even under normal policy standards, tenured employment is characterized as a “privilege”
to which the Board and/or the University reserve discretion to withdraw for various reasons, such
as a felony conviction, significant reduction in or elimination of a position’s funding source,
program discontinuance, financial exigency, or for just cause. See KBOR Policy Manual, Chapter
II., Section C.6.a.i. and b.i. Even detailed, procedural protections for dismissing a tenured faculty
member are not sufficient to create a protected property interest.” See ESU’s Resp. to: Sievert,
n.13 (p.8); Miracle, n.13 (p. 3); Lidzy, n. 13 (p.13) and n. 123 (p. 16); Koerner, n. 14 (pp. 22-3);
Catlett, n. 14 (p. 28-9) and n. 105 (p. 31); Colson, n. 12 (p.19), and Behrens, n. 14 relevant portions
attached as Exhibit 7.
76. In ESU’s response to Dr. Koerner’s petition for review to OAH, it acknowledged
that “the appointment status of tenure acknowledges a faculty member’s achievement of
performance requirements and a tenured faculty member’s right to additional employment
protections in the event of a “for cause” termination based on teaching, scholarship, or service.”
ESU’s Resp. to Koerner [at p. 29], attached as Exhibit 7, p. 25.
77. All Plaintiffs participated in their respective “hearings” with OAH and all asked
ESU for the basic reasons why they were chosen for termination in order to provide a meaningful
response. ESU did not tell Plaintiffs the specific reason they were terminated and denied them the
opportunity to obtain the information.

24
78. The table below shows when the Plaintiffs’ appeals of their terminations before
OAH were held, whether each Plaintiff received a decision, and if they were reinstated. Some
Plaintiffs were reinstated, or the hearing officer found that ESU’s decision was reversed while
others were not. Still, some Plaintiffs have yet to receive any decision from an OAH hearing officer
as of the date of the filing of this Complaint. For Plaintiffs who were “reinstated,” ESU has denied
all reinstatements and filed a petition for review in Lyon County District Court of Kansas in those
individual cases.
79. OAH Hearing Date Hearing Officer Reinstated or ESU

Decision Date decision reversed?
Behrens, Michael 02-24-2023 4-27-2023 Yes
Catlett, Rob 02-15-2023 4-19-2023 Yes
Colson, Dan 01-18-2023 5-2-2023 Yes
Emmer, Charles 02-17-2023 Pending
Koerner, Brenda 03-02-2023 Pending
Lidzy, Sheryl 02-22-2023 5-10-2023 No
Lovett, Christopher 02-28-2023 5-17-2023 No
McCoy, Max 01-24-2023 Pending
Miracle, Amanda 02-10-2023 4-23-2023 Yes
Morales, Michael 02-01-2023 Pending
Sievert, Lynnette 02-07-2023 5-5-2023 Yes
80. Plaintiff Lovett filed a formal motion to conduct discovery and call witnesses in his
OAH case, before Hearing Officer Sandra Sharon. However, ESU objected to any discovery and
the hearing officer refused to even rule on the motion, which constituted a de facto denial of the
motion.
81. Plaintiff Miracle also filed a formal request to conduct discovery and call witnesses,
but the request was denied.
82. On February 24, 2023, Plaintiffs Miracle and Lovett filed a Petition for Mandamus
against ESU, KBOR and OAH with the Kansas Supreme Court identifying the legal basis for the
unconstitutional conduct of each.

25
83. Through the Mandamus proceedings, ESU and KBOR and their officials were
again provided notice of Tonkovich and other supporting law, which clearly holds that Plaintiffs
have a property right in tenure and that they are entitled to procedural and substantive due process,
but both institutional Defendants and the individual Defendants have continued to willfully violate
Plaintiffs’ Constitutional rights.
84. ESU and KBOR responded to the Mandamus Petition and again intentionally and
wrongfully denied tenure is a property right but clearly stated that if tenure was a property right,
the WMP took it away.
85. ESU and KBOR responded to the Mandamus stating:
Petitioner’s due process claim “depends on their having had a property right in
continued employment.” Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532,
538 (1985). Because they lacked such a right under the circumstances, their
constitutional challenge to the KBOR procedures fails.
Petitioners also rely on the Tenth Circuit’s decision in Tonkovich v. Kansas Board
of Regents, 159 F.3d 504 (10th Cir. 1998), for the proposition that tenure is a
property right. But “tenure” in this sense means “entitlement to continued
employment unless sufficient ‘cause’ is shown.” Perry v. Sindermann, 408 U.S.
593, 601 (1972); see also Tonkovich, 159 F.3d at 157 (noting that in Loudermill,
“the Supreme Court examined the issue of ‘what pretermination process must be
accorded a public employee who can be discharged only for cause.” (emphasis
added)). It is debatable whether Petitioners had a property right to continued
employment even before adoption of the Workforce Management Policy because
KBOR policies have long provided for termination of tenured faculty for reasons
other than cause.
But even if Petitioners had a property right under normal KBOR policies, they
certainly had none under KBOR’s Workforce Management Policy.
86. Plaintiffs were precluded from obtaining information from ESU to even determine
whether ESU’s stated “financial pressure but not a financial exigency” basis for their overall action
is even true.
26
87. Some Plaintiffs also presented materials in the OAH proceedings that reflect the
stated financial reasons are not legitimate. Attached are exhibits presented to OAH reflecting that
over the relevant period, overall enrollment (online and in person) has increased, operating
revenues by source 2017 – 2021 have increased (not including millions granted in Covid Relief
funds); and operating expenditures have gone down, attached as Exhibit 8.
88. Despite this credible evidence contradicting ESU’s stated financial condition on the
decision to terminate Plaintiffs, Plaintiffs were still denied the opportunity to call witnesses and
request discovery in order to determine the reason they were selected for termination and respond
to said reason.
89. ESU and KBOR individual Defendants and agencies intentionally drafted policies
that avoided the bare minimum due process procedures and requirements set forth in the Kansas
Administrative Procedures Act (“KAPA”), which is the law that applies in most if not all
proceedings before OAH. The WMP and Framework provided for no deadline for when a hearing
officer had to issue a decision and intentionally precluded discovery, calling witnesses, and cross
examining them, such as is allowed under KAPA.
90. Further in the OAH cases, ESU took the position that KAPA did not apply and the
hearing officers apparently agreed by not allowing for discovery or following any procedural
deadlines as required under KAPA.
91. On February 28, 2023, during Dr. Christopher Lovett’s OAH hearing, Defendant
Kevin Johnson called the American Association of University Professors (AAUP), a “union”,
while dismissing information provided by AAUP.
92. In April or May 2023, after each OAH order of reinstatement or order reversing
ESU’s decision to terminate, ESU filed petitions for review pursuant to the Kansas Judicial Review
27
Act. ESU then informed Plaintiffs Miracle, Behrens, Catlett, Colson, and Sievert that they would
be placed on leave with pay and benefits pending the outcome of the state court’s review of ESU’s
petition for review.
93. In April or May 2023, ESU notified some Plaintiffs that they would be placed on
paid administrative leave effective May 17, 2023 if “the Kansas Office of Administrative Hearings
does not issue a final order in your administrative appeal by May 16, 2023.” 2 Further, ESU said
“[e]ffective May 17, you are relieved of all employment responsibilities including but not limited
to teaching, scholarship and service. On that date, your responsibilities related to students are also
relieved.” Other than email, “self-service banner,” and OneDrive, Plaintiffs’ access to all other
electronic tools would be suspended. Their badges to enter any electronic door access on ESU’s
campus and building keys would also be collected on or before May 16, 2023.
94. Each Plaintiff was also required to pack up and remove personal materials from
their campus offices regardless of whether students needed them, Plaintiffs needed access to merit
pay increases, the ability to continue progress towards promotion (if applicable), access to conduct
or continue research or other scholarly projects, the ability to maintain their tenure, or proper
notification informing them if their services were required for grants that had been given to ESU.
95. On or about December 25, 2022, ESU paid approximately $137,741.00 in bonuses
to 68 faculty members, many of whom are not tenured or are adjunct professors for unspecified
performance reasons, excluding Plaintiffs. Based on information and belief, the award of
performance bonuses has never been given to faculty members.
2
On January 8, 2023, ESU notified Plaintiff Koerner that she would be on paid leave through
May 13, 2023 and then placed on unpaid leave through May 16, 2023.
28
96. On or about June 15, 2023, KBOR approved a pay increase for Defendant Hush
from $275,000.00 to $286,000.00 per year – a 4% increase.
97. At no material time to the allegations in this matter were Plaintiffs able to ask why
they were selected for termination. None of them were able to determine why they were selected
for termination over less experienced or qualified adjunct faculty, younger faculty, non-tenured
faculty, faculty who do not teach controversial racial and social issues, faculty who are not thought
to be liberal and/or union organizers/sympathizers.
98. None of the Plaintiffs were able to challenge the legitimacy of ESU’s and KBOR’s
WMP and ESU’s Framework basis, which was “because of the extreme financial pressures that
the state universities are facing due to the COVID-19 pandemic, decreased program and university
enrollments, and the state’s declining fiscal support” because they were not allowed to conduct
discovery, and due to the narrow reasons provided in these policies for which a hearing officer was
allowed to even reconsider ESU’s decision.
99. None of the Plaintiffs are able to maintain their tenure status during the pendency
of their OAH hearings, administrative leaves, or as a result of the extended WMP and ESU
framework processes, which denies them the ability to complete tenure requirements.
100. Even though in or about 2022, Defendant Hush told some Plaintiffs that he was
working to find employment opportunities for terminated ESU faculty at other “regent partners,”
some Plaintiffs have applied at KBOR regent universities and have not been hired.
101. All individual Defendants knew or reasonably should have known the clearly
established laws cited herein as KBOR was a party in the Tonkovich case and Kevin Johnson,
while general counsel for ESU, drafted the above-referenced paper, admitting knowledge of
29
Plaintiffs’ property rights and due process rights. As such, Defendants are not entitled to qualified
immunity in defense of Plaintiffs’ 42 U.S.C. § 1983 claim and related claims.
COUNT I: VIOLATION OF PROCEDURAL DUE PROCESS

UNDER THE FIFTH THROUGH FOURTEENTH AMENDMENT
TO THE UNITED STATES CONSTITUTION
102. Plaintiffs restate, reallege and incorporate by reference the allegations set forth in
paragraphs 1-102 as if fully set forth herein.
103. Defendants, each of them, as employees or agents of the State of Kansas, undertook
the actions described herein under the color and authority of State Law. As to Defendants ESU
and KBOR, see paragraph 41 above.
104. The Fourteenth Amendment prohibits a state from “depriv[ing] any person of life,
liberty, or property, without due process of law.” U.S. Const., amend. 14, § 1.
105. Defendants engaged in the deprivation of Plaintiffs’ constitutionally protected
property right in tenure without appropriate procedural due process by: 1) denying the existence
of Plaintiffs’ property right in tenure – See, Kosik and Tonkovich; 2) denying Plaintiffs the right
to a pretermination hearing contrary to clearly established law--See Tonkovich; 3) denying
Plaintiffs the right to receive a reason for the deprivation of their property right in tenure with
sufficient specificity as to allow a meaningful response – see, Kosik and Tonkovich; and 4) denying
Plaintiffs the right to obtain information from ESU regarding their terminations through discovery
and the calling of witnesses in order to provide a meaningful response – see, Kosik and Tonkovich.
106. Defendants engaged in said conduct with knowledge of, and of which a reasonable
person similarly situated would have known was and is contrary to clearly established law and
30
they did so for the purpose of depriving Plaintiffs of tenure without due process. Defendants
otherwise acted arbitrarily, capriciously and without a rational basis.
107. Defendants did not provide Plaintiffs with due process remotely close to meeting
the standards of the Fifth through Fourteenth Amendments and as a result of Defendants’ conduct,
each of the individual Plaintiffs have been damaged monetarily in an amount in excess of
$75,000.00 and have endured and suffered mental anguish, humiliation, mental pain and suffering.
108. Defendants’ conduct constitutes willful violations of Plaintiffs’ constitutional rights
under 42 U.S.C. § 1983 for which Plaintiffs are entitled to recover nominal, actual, compensatory,
or punitive damages as well as reasonable attorney’s fees under 42 U.S.C. § 1988, and
reinstatement.
WHEREFORE, Plaintiffs pray for judgment against all individual Defendants in an amount
in excess of $75,000.00 for nominal, actual, compensatory and/or punitive damages as available
by law; against KBOR and ESU for prospective injunctive relief in the form of reinstatement of
each Plaintiff and return of all benefits, conditions, duties and responsibilities of employment each
enjoyed and maintained prior to termination; and pursuant to 42 U.S.C. § 1988, Plaintiffs seek
and request recovery of attorneys’ fees and such further and additional relief as the court deems
just and equitable.
COUNT II - VIOLATION OF SUBSTITIVE DUE PROCESS

UNDER THE FIFTH THROUGH FOURTEENTH AMENDMENT
TO THE UNITED STATES CONSTITUTION
109. Plaintiffs restate, reallege, and incorporate by reference the allegations set forth in
31
110. Defendants, each of them, as employees and or agents of the State of Kansas,
undertook the actions described herein under the color and authority of State Law. As to
Defendants ESU and KBOR, see paragraph 41 above.
111. The Fourteenth Amendment prohibits a state from “depriv[ing] any person of life,
liberty, or property, without due process of law.” U.S. Const., amend. 14, § 1.
112. As clearly established by United States Supreme Court:
…the Due Process Clause “guarantees more than fair process.” Washington v.
Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). The
Clause “cover[s] a substantive sphere as well, barring certain government actions
regardless of the fairness of the procedures used to implement them.” County of
Sacramento v. Lewis, 523 U.S. 833, 840, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)
(quotation omitted). In its substantive mode, the Fourteenth Amendment provides
protection against arbitrary and oppressive government action, even when taken to
further a legitimate governmental objective. Id. at 845–46, 118 S.Ct. 1708.
Seegmiller v. LaVerkin City, 528 F.3d 762 (10th Cir. 2008)
113. Defendants engaged in the deprivation of Plaintiffs’ fundamental and
constitutionally protected property right in tenure without substantive due process by: 1) denying
the existence of Plaintiffs’ property right in tenure; 2) denying Plaintiffs the right to a
pretermination hearing contrary to clearly established law; 3) denying Plaintiffs the right to receive
a reason for the deprivation of their property right in tenure with sufficient specificity as to allow
a meaningful response; 4) denying Plaintiffs the right to obtain or compel information from ESU
regarding their respective terminations through discovery and the calling of witnesses in order to
provide a meaningful response; and 5) the taking of tenure without due process.
114. The Defendants’ conduct through the adoption and administration of the WMP and
ESU’s Framework is so devoid of basic due process rights related to a fundamental property right
in tenure that their conduct shocks the conscience of the Court and is patently arbitrary and
capricious.
32
115. Defendants engaged in said conduct with knowledge that clearly established law
was and is contrary to their conduct, and they did so for the purpose of depriving Plaintiffs’
property right of tenure without due process and their conduct was otherwise arbitrary, capricious
and without a rational basis.
116. As a result of the individual Defendants’ conduct, Plaintiffs have been damaged
monetarily in an amount in excess of $75,000.00 and have endured and suffered mental anguish,
humiliation, mental pain and suffering.
117. Defendants’ conduct constitutes willful violations of Plaintiffs’ constitutional rights
under 42 U.S.C. § 1983 for which Plaintiffs are entitled to recover nominal, actual, compensatory,
and/or punitive damages as well as reasonable attorney fees under 42 U.S.C. § 1988, and
reinstatement.
enjoyed and maintained before termination; and pursuant to 42 U.S.C. § 1988, Plaintiffs seek and
request recovery of attorneys’ fees and such further and additional relief as the Court deems just
and equitable.
COUNT III - CIVIL CONSPIRACY

UNDER 42 U.S.C. § 1985
33
119. Defendants, each of them, undertook under the color of State Law, the deprivation
of Plaintiffs’ constitutionally protected property right in tenure. As to Defendants ESU and KBOR,
see paragraph 41 above.
120. Upon information and belief, Individual KBOR and ESU Defendants and John Doe
conspired in a movement to undermine tenure without due process through the vehicle of anti-
tenure rhetoric and in the creation, adoption and implementation of the WMP & ESU’s
Framework.
121. Defendants had no rational basis in creating, adopting and implementing the WMP
and ESU Framework other than an unlawful purpose.
122. Plaintiffs share a common classification as “tenured,” and people who were, or
were perceived to, be problematic to ESU Administration.
123. Plaintiffs Catlett, Koerner, and Lidzy have served as past presidents of the Faculty
Senate. Plaintiffs Catlett, Morales, and Lidzy served as Faculty Senate Committee Chairs.
Plaintiffs Behrens, Colson, Emmer, Lovett, Miracle, and Morales served on committees of the
Faculty Senate or otherwise served on the Faculty Senate.
124. All Plaintiffs were known as leaders in their department and/or on campus and were
known to raise concerns with the ESU administration.
125. Some Plaintiffs were known as or believed to be “liberal” or have “Democratic”
views.
126. ESU Individual Defendants, ESU, KBOR, Individual KBOR Defendants, and John
Doe (hereinafter the “Conspirators”) were motivated by Plaintiffs’ common classification as
“tenured,” and within that class one or more of the conspirators had personal animus against
Plaintiffs.
34
127. One or more of the Conspirators believed Plaintiffs were “problematic” for
advocating issues disfavored by the ESU Administration (hereinafter “Targeted Tenured”).
128. The WMP was used by ESU individual Defendants to terminate the Targeted
Tenured.
129. Defendants conspired and acted in furtherance of the conspiracy to intentionally
deprive Plaintiffs of their property right in tenure without due process by creating, adopting, and
implementing the WMP and ESU’s Framework in KBOR meetings, discussions among KBOR
members and ESU officials. Each action of each co-conspirator in furtherance of the conspiracy is
imputed to all others in the conspiracy.
130. Defendants’ conduct in furtherance of their conspiracy constitutes a violation of
Plaintiffs’ procedural and substantive due process as described in Counts I and II, in violation of
42 U.S.C. § 1983.
131. Defendants engaged in the deprivation of property rights without appropriate due
process with knowledge that tenure was a clearly established property right and that the clearly
established law required procedural due process prior to the deprivation and post deprivation.
Defendants provided Plaintiffs no adequate due process meeting the standards of the Fifth through
Fourteenth Amendments through the date of filing of this Complaint. As the result of Defendants’
conduct, each of them, Plaintiffs have been damaged monetarily in an amount in excess of
$75,000.00 and have endured and suffered mental anguish, humiliation, mental pain and suffering.
132. Defendants’ conduct constitutes a willful violation of Plaintiffs’ rights under 42
U.S.C. § 1983 for which Plaintiffs are entitled to recover nominal, actual, compensatory and
punitive damages, and reinstatement.
35
enjoyed and maintained before termination; and pursuant to 42 U.S.C. § 1988, Plaintiffs seek
just and equitable.
COUNT IV - VIOLATION OF LIBERTY INTEREST IN VIOLATION

OF THE FOURTEENTH AMENDMENT
135. Plaintiffs, as tenured public employees, have a liberty interest in their reputations
and careers in the context of their employment where termination is accompanied by false and
stigmatizing statements (Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701,
2707, 33 L.Ed.2d 548 (1972)).
136. Defendant Hush’s Termination Letter, approved by KBOR and based upon
information and belief, aided by Defendants Kevin Johnson and Steven Lovett, lacked specific
reasons for termination by including the following as part of potentially nine criteria for Plaintiffs’
terminations: “performance evaluations,” “teaching and research productivity,” “low service
productivity, and using the phrase “including but not limited to.”
36
137. The Termination Letter was “published” and thus created a pejorative imputation
that each Plaintiff had performance issues, teaching and/or productivity issues, all of which is false
and or not the reason they were terminated, and therefor infringes upon Plaintiffs’ good names and
reputations and negatively impacted Plaintiffs’ future employment and career progress.
138. Defendants engaged in the deprivation of property rights without appropriate due
process with knowledge that Plaintiffs’ liberty interest is a clearly established right and that the
clearly established law required procedural and substantive due process to allow Plaintiffs the
opportunity to engage in a meaningful, fair hearing with some level of discovery to address the
pejorative imputations from the Termination Letter.
139. Defendants provided Plaintiffs no adequate due process meeting the standards of
the Fifth through Fourteenth Amendments to protect their liberty interests and were denied the
ability to a “name-clearing” hearing.
140. In creating and advocating for the WMP, Defendant John Doe and Miller, and other
individual Defendants prevented Plaintiffs, each of them, from even being able to ask which of the
purported nine (9) reasons applied to them by virtue of no discovery and no calling of witnesses.
141. In passing and implementing the WMP, Defendants Hush, Thomas, Johnson,
Lovett, Miller, Feuerborn, Harrison-Lee, Bangerter, Brandau, Hutton, Kiblinger, Rolph, Schmidt,
Van Etten, Ice, Lane and Winter did prevent Plaintiffs, each of them, from even being able to ask
which of the purported nine (9) reasons applied to them by virtue of no discovery and no calling
of witnesses.
142. In passing and implementing ESU’s Framework to the WMP, KBOR Defendants
Benson, Harrison-Lee, Dicus, Ice, Kiblinger, Lane, Mendoza, Rolph, and Winter prevented
Plaintiffs, each of them, from being able to determine why they were terminated, i.e. ask which of
37
the purported nine (9) reasons applied to them by virtue of no discovery and no calling of
witnesses.
143. In creating, advocating, and seeking approval of ESU’s Framework, Individual
ESU Defendants prevented Plaintiffs, each of them, from being able to determine why they were
terminated, i.e., ask which of the purported nine (9) reasons applied to them by virtue of no
discovery and no calling of witnesses.
144. By terminating Plaintiffs pursuant to the WMP and ESU’s Framework, Individual
ESU Defendants prevented each Plaintiff from being able to ask which of the purported nine (9)
reasons applied to them by virtue of no discovery and no calling of witnesses.
145. As the result of Defendants’ conduct, each of them, Plaintiffs have been damaged
monetarily in an amount in excess of $75,000.00 and have endured and suffered mental anguish,
humiliation, mental pain and suffering.
U.S.C. § 1983 for which Plaintiffs are entitled to recover nominal, actual, compensatory and
punitive damages and reinstatement.
just and equitable.
38
COUNT V - CIVIL CONSPIRACY

UNDER 42 U.S.C. § 1985 FOR VIOLATION OF
LIBERTY INTEREST IN VIOLATION OF THE
FOURTEENTH AMENDMENT
tenure rhetoric and in the creation, adoption and implementation of the WMP & ESU’s
Framework.
150. Defendants had no rational basis in creating, adopting and implementing the WMP
and ESU Framework other than an unlawful purpose.
were perceived to, be “problematic” to the ESU Administration.
Plaintiffs Behrens, Colson, Emmer, Lovett, Miracle and Morales served on committees of the
153. All Plaintiffs were known as leaders in their department and/or on campus, and
were known to raise concerns with the ESU administration.
views.
39
155. The Conspirators were motivated by Plaintiffs’ common classification as
“tenured,” and within that class one or more of the Conspirators had personal animus against
Plaintiffs.
advocating issues disfavored by the ESU Administration
Tenured.
Plaintiffs’ procedural and substantive due process as described above, in violation of 42 U.S.C. §
1983.
159. ESU Individual Defendants and KBOR Individual Defendants engaged in the
deprivation of Plaintiffs’ liberty interest without appropriate due process with knowledge that
tenure was a clearly established property right and that the clearly established law required
procedural due process before the deprivation and post deprivation.
the Fifth through Fourteenth Amendments through the date of filing of this Complaint.
161. These individual Defendants conspired and took action in furtherance of the
conspiracy to deprive Plaintiffs of their liberty interest in their reputation and careers by creating,
adopting and implementing the WMP and ESU’s Framework in KBOR meetings, among KBOR
members and ESU officials, ultimately resulting in the publication of the Termination Letter, and
termination of Plaintiffs.
162. Each action of each co-conspirator in furtherance of the conspiracy is imputed to
all others in the conspiracy.
40
163. As the result of the individual Defendants’ conduct, each of them, Plaintiffs have
been damaged in a monetary amount in excess of $75,000.00 and have endured and suffered
mental anguish, humiliation, mental pain and suffering.
164. The individual Defendants’ collective conduct constitutes a willful violation of
Plaintiffs’ rights under 42 U.S.C. § 1983 for which Plaintiffs are entitled to recover nominal, actual,
compensatory, and punitive damages.
165. The individual Defendants’ conduct in furtherance of their conspiracy constitutes a
violation of Plaintiffs’ liberty interest and failure to provide adequate procedural and substantive
due process as described herein, in violation of 42 U.S.C. § 1983.
just and equitable.
COUNT VI - VIOLATION OF EQUAL PROTECTION RIGHTS IN VIOLATION

OF THE FOURTEENTH AMENDMENT
167. The Equal Protection Clause of the Fourteenth Amendment guarantees all persons
in the United States, including prisoners, “the equal protection of the laws.” U.S. Const. amend.
XIV.
41
168. The individual Defendants, each of them, as employees and or agents of the State
of Kansas, undertook the actions described herein under the color and authority of State Law.
tenure rhetoric and in the creation, adoption, and implementation of the WMP & ESU’s
Framework.
were perceived to, be “problematic” to the ESU Administration.
Senate. Plaintiffs Catlett, Catlett, Morales, and Lidzy served as Faculty Senate Committee Chairs.
Plaintiffs Behrens, Colson, Emmer, Lovett, and Morales served on committees of the Faculty
Senate or otherwise served on the Faculty Senate.
172. All plaintiffs were known as leaders in their department and/or on campus and were
views.
Plaintiffs.
advocating issues disfavored by the ESU Administration.
Tenured.
42
177. Defendants’ conduct in the creation, adoption, and implementation of the WMP
and ESU’s Framework resulting in the termination of Plaintiffs as opposed to other similarly
situated faculty at ESU violates Plaintiffs’ Equal Protection Rights under the Fourteenth
Amendment to the United States Constitution.
178. Defendants engaged in the violation of Plaintiffs’ Equal Protection Rights without
appropriate due process and with knowledge that Plaintiffs’ Equal Protection Rights are clearly
established and that the clearly established law required procedural and substantive due process to
allow Plaintiffs the opportunity to engage in a meaningful hearing with some level of discovery in
order to address the unequal treatment of the Plaintiffs relative to other similarly situated
professors. One or more defendants intentionally treated the Targeted Tenured differently from
other similarly situated and having no rational basis for the disparate treatment.
the Fifth through Fourteenth Amendments to protect their Equal Protection Rights and were denied
the ability to a hearing sufficient to protect those rights.
180. In creating, adopting, and implementing the WMP and ESU Framework, and
terminating Plaintiffs, Defendants did infringe upon Plaintiffs’ Equal Protection Rights in violation
of 42 U.S.C. § 1983.
been damaged monetarily in an amount in excess of $75,000.00 and have endured and suffered
mental anguish, humiliation, mental pain and suffering, loss of job.
U.S.C. § 1983 for which Plaintiffs are entitled to recover nominal, actual, compensatory and or
43
just and equitable.
COUNT VII - CIVIL CONSPIRACY

UNDER 42 U.S.C. § 1985 FOR COUNT VI VIOLATION OF EQUAL PROTECTION
RIGHTS IN VIOLATION OF THE FOURTEENTH AMENDMENT
185. Defendants engaged in the deprivation of Plaintiffs’ Equal Protection Rights under
the Fourteenth Amendment to the United States Constitution without appropriate due process with
knowledge that clearly established law required procedural due process prior to the deprivation of
Equal Protection Rights.
the Fifth through Fourteenth Amendments through the date of filing of this Complaint.
44
Framework.
were perceived to, be “problematic” to ESU Administration.
190. All Plaintiffs were known as leaders in their department and/or on campus and were
views.
Plaintiffs.
advocating issues disfavored by the ESU Administration.
Tenured.
195. Defendants conspired and acted in furtherance of the conspiracy to deprive
Plaintiffs of their liberty interest in their reputation and careers by creating, adopting, and
implementing the WMP and ESU’s Framework in KBOR meetings, among KBOR members and
45
ESU officials, ultimately resulting in the publication of the Termination Letters, and the
termination of Plaintiffs.
Plaintiffs’ Equal Protection Rights and failure to provide adequate procedural and substantive due
process as described herein, in violation of 42 U.S.C. § 1983.
compensatory and or punitive damages, and reinstatement.
just and equitable.
46
COUNT VIII - CIVIL CONSPIRACY

UNDER KANSAS STATE LAW TO VIOLATE PLAINTIFFS’ CONSTITUTIONAL
RIGHTS UNDER THE UNITED STATES CONSTITUTION
Framework.
were perceived to, be “problematic” to ESU Administration.
205. All plaintiffs were known as leaders in their department and/or on campus and were
views.
47
“tenured,” and within that class one or more of the Conspirators had personal animus against
Plaintiffs.
advocating for issues disfavored by the ESU Administration
Tenured.
210. Defendants engaged in the deprivation of Plaintiffs’ Equal Protection Rights under
the Fourteenth Amendment to the United States Constitution without appropriate due process with
knowledge that clearly established law required procedural due process prior to the deprivation
Equal Protection Rights.
the Fifth through Fourteenth Amendments were provided to Plaintiffs by Defendants through the
date of filing of this Complaint.
212. Defendants are more than two people and were motivated to accomplish the taking
of Plaintiffs’ property right in tenure, liberty right in their good names, reputation in employment
and their Equal protection in tenure without due process.
213. Defendants conspired and took overt action to accomplish their deprivation of
Plaintiffs’ Constitutional rights by creating, adopting, and implementing the WMP and ESU’s
Framework.
214. Defendants conspired, had a meeting of the minds, and took action in furtherance
of the conspiracy to deprive Plaintiffs of their property right in tenure, liberty right in their good
names, reputation in employment and their Equal Protection Rights, without due process by
48
members and ESU officials, ultimately resulting in the publication of the Termination Letter, and
termination of Plaintiffs as opposed to similarly situated faculty.
compensatory and or punitive damages, and reinstatement.
Plaintiffs’ property right in tenure, liberty right in their good names, reputation in employment and
their Equal Protection Rights without due process and failure to provide adequate procedural and
substantive due process as described herein above, in violation of 42 U.S.C. § 1983.
just and equitable.
49
COUNT IX - VIOLATION OF
THE BILL OF RIGHTS OF THE KANSAS CONSTITUTION, §§ 1, 2 and 18
220. Defendants, each of them, as employees or agents of the State of Kansas, undertook
the actions described herein under the color and authority of State Law. As to Defendants ESU
and KBOR, see paragraph 41 above.
221. Sections 1 and 2 of the Bill of Rights under the Kansas Constitution, “are given
much the same effect as the clauses of the Fourteenth Amendment relating to due process and
equal protection of the law,” State v. Limon, 280 Kan. 275, 283 (2005), and provide:
“§ 1 All men are possessed of equal and inalienable natural rights, among which
are life, liberty, and the pursuit of happiness;” and
“§ 2 All political power is inherent in the people, and all free governments are
founded on their authority, and are instituted for their equal protection and benefit.
No special privileges or immunities shall ever be granted by the legislature, which
may not be altered, revoked or repealed by the same body; and this power shall be
exercised by no other tribunal or agency.”
222. Section 18 of the Bill of Rights under the Kansas Constitution provides: “All
persons, for injuries suffered in person, reputation or property, shall have remedy by due course of
law, and justice administered without delay.”
223. Defendants engaged in the deprivation of Plaintiffs’ constitutionally protected
property right in tenure without appropriate procedural due process and no rational basis for taking
such action by: 1) denying the existence of Plaintiffs’ property right in tenure; 2) denying Plaintiffs
the right to a pretermination hearing contrary to clearly established law 3) denying Plaintiffs the
right to receive a reason for the deprivation of their property right in tenure with sufficient
specificity as to allow a meaningful response; and 4) denying Plaintiffs the right to obtain
50
information from ESU regarding their terminations through discovery and the calling of witnesses
in order to provide a meaningful response.
224. The Defendants’ conduct through the creation, adoption and implementation of the
WMP and ESU’s Framework is so devoid of basic due process rights related to a fundamental
property right in tenure that their conduct shocks the conscience of the Court and is patently
arbitrary and capricious.
225. ESU Individual Defendants, ESU, KBOR, and Individual KBOR Defendants were
motivated by Plaintiffs’ common classification as “tenured,” and within that class as the “Targeted
Tenured.”
situated faculty at ESU violates Plaintiffs’ Equal Protection Rights under the Kansas Constitution.
227. Defendants engaged in said conduct with knowledge of clearly established law, of
which a reasonable person similarly situated would have known the clearly established law.
Defendants’ conduct was and is contrary to clearly established law and they took action for the
purpose of depriving Plaintiffs of tenure without due process. Defendants otherwise acted
arbitrary, capricious and without a rational basis.
228. Defendants did not provide Plaintiffs with due process remotely close to meeting
the standards of the Kansas Constitution and as a result of Defendants’ conduct, each of the
individual Plaintiffs have been damaged monetarily in an amount in excess of $75,000.00 and have
endured and suffered mental anguish, humiliation, mental pain and suffering.
51
229. Defendants’ conduct constitutes willful violations of Plaintiffs’ Kansas
Constitutional rights for which Plaintiffs are entitled to reinstatement and to recover nominal,
actual, compensatory, or punitive damages as well as reasonable fees attorney fees.
enjoyed and maintained prior to termination; Plaintiffs seek and request recovery of attorneys’
fees and such further and additional relief as the court deems just and equitable.
COUNT X - CIVIL CONSPIRACY

UNDER KANSAS STATE LAW TO VIOLATE PLAINTIFFS’
CONSTITUTIONAL RIGHTS UNDER THE KANSAS CONSTITUTION
of Plaintiffs’ constitutionally protected property right in tenure.
232. Defendants violated Plaintiffs’ Kansas Constitutional Bill of Rights as set forth
above.
233. Defendants’ conduct through the creation, adoption and implementation of the
WMP and ESU’s Framework is so devoid of basic due process rights related to a fundamental
property right in tenure that their conduct shocks the conscience of the Court and is patently
arbitrary and capricious.
52
234. ESU Individual Defendants, ESU, KBOR, and Individual KBOR Defendants were
motivated by Plaintiffs’ common classification as “tenured,” and within that class as the “Targeted
Tenured.”
situated faculty at ESU violates Plaintiffs’ Equal Protection Rights under the Kansas Constitution.
236. Defendants are more than two people and were motivated to accomplish the taking
of Plaintiffs’ property right in tenure, liberty right in their good names, reputation in employment
and their Equal protection in tenure without due process, without any rational basis in their actions
and due to personal animus against Plaintiffs.
237. Defendants conspired and took overt action to accomplish their deprivation of
Plaintiffs’ Constitutional rights by passing and implementing the WMP and/or ESU Framework.
238. Defendants conspired, had a meeting of the minds, and took action in furtherance
of the conspiracy to deprive Plaintiffs of their property right in tenure, liberty right in their good
names, reputation in employment and their Equal Protection Rights, without due process by
members and ESU officials, ultimately resulting in the publication of the Termination Letter.
Plaintiffs’ due process rights, property right in tenure, liberty right in their good names, reputation
in employment and their Equal Protection Rights without due process and failure to provide
adequate procedural and substantive due process as described herein above.
53
Plaintiffs’ rights under the Kansas Constitution for which Plaintiffs are entitled to actual,
compensatory and or punitive damages, as well as reinstatement.
enjoyed and maintained prior to termination; Plaintiffs seek and request recovery of attorneys’ fees
and such further and additional relief as the court deems just and equitable.
COUNT XI - VIOLATION OF FREEDOM OF ASSOCIATION RIGHTS IN

VIOLATION OF THE FIRST AMENDMENT TO THE UNITED STATES
CONSITUTION
244. The First Amendment to the United States Constitution guarantees the freedom of
individuals to associate both for the purely private purpose of forming and preserving personal and
social relationships, and as a collective means of engaging in political expression, religious
worship, or other activities independently protected by the Constitution.
245. Plaintiffs are in a unique association of “tenured” professors similarly situated to
other tenured employees at ESU who were not terminated, and otherwise share a common
classification as “tenured” and, within that class, “Targeted Tenured.”
54
246. Plaintiffs’ associations and views as tenured professors are protected by First
Amendment guarantee of association and speech.
247. ESU Individual Defendants were substantially motivated by Plaintiffs’ associations
with and in the above groups and activities in making their decisions to terminate Plaintiffs such
that Plaintiffs would not have been terminated but for the referenced associations and Defendants
personal animus against Plaintiffs.
249. Defendants’ conduct in the creation, adoption and implementation of the WMP and
ESU’s Framework resulting in the termination of Plaintiffs as opposed to other tenured professors
at ESU because of Plaintiffs’ associations, violates Plaintiffs’ freedom of association rights under
the First Amendment to the United States Constitution.
terminating Plaintiffs, Defendants did retaliate against Plaintiffs based upon their associations in
violation of their First Amendment rights of association, all in violation of 42 U.S.C. § 1983.
55
just and equitable.
COUNT XII - CIVIL CONSPIRACY

UNDER 42 U.S.C. § 1985 TO RETALIATE FOR ASSOCIATIONS AND SPEECH IN
CONSITUTION
255. Defendants conspired and took action in furtherance of the conspiracy to retaliate
against Plaintiffs for their associations by creating, adopting and implementing the WMP and
ESU’s Framework in KBOR meetings, among KBOR members and ESU officials, ultimately
resulting in the termination of Plaintiffs in violation of Plaintiffs’ association rights protected by
First Amendment guarantee of association and speech.
Plaintiffs’ First Amendment Rights of association as described herein, in violation of 42 U.S.C. §
1983.
56
just and equitable.
COUNT XIII - VIOLATION OF FREEDOM OF ASSOCIATION RIGHTS IN

CONSITUTION
261. The First Amendment to the United States Constitution guarantees the freedom of
individuals to associate both for the purely private purpose of forming and preserving personal and
social relationships, and as a collective means of engaging in political expression, religious
worship, or other activities independently protected by the Constitution.
262. Plaintiffs are in a unique association of “tenured” professors similarly situated to
other tenured professors at ESU who were not terminated, and otherwise share a common
57
classification as Targeted Tenured. Plaintiffs Rob Catlett, Christopher Lovett, Max McCoy,
Michael Behrens, Lynnette Sievert, Sheryl Lidzy, Brenda Koerner, and Dan Colson share a
common classification as tenured and advocates for issues disfavored by the ESU Administration.
263. These associations and views are protected by the First Amendment’s guarantee of
association and speech.
264. ESU Individual Defendants were substantially motivated by Plaintiffs’ associations
with and in the above groups and activities in their decisions to terminate Plaintiffs such that
Plaintiffs would not have been terminated but for the referenced associations.
266. Defendants conduct in the creation, adoption and implementation of the WMP
resulting in the termination of Plaintiffs as opposed to other tenured professors at ESU because of
Plaintiffs’ associations, violates Plaintiffs’ freedom of association rights under the First
Amendment to the United States Constitution.
terminating Plaintiffs, Defendants did retaliate against Plaintiffs based upon their associations in
violation of their First Amendment rights of association, all in violation of 42 U.S.C. 1983.
268. As the result of the individual Defendants’ conduct, each of them, Plaintiffs’ have
U.S.C. 1983 for which Plaintiffs are entitled to recover nominal, actual, compensatory, and
punitive damages.
58
enjoyed and maintained prior to termination; and pursuant to 42 U.S.C. 1988, Plaintiffs seek and
request recovery of attorneys’ fees and such further and additional relief as the court deems just
and equitable.
COUNT XIV - CIVIL CONSPIRACY

UNDER 42 U.S.C. § 1985 TO RETALIATE FOR ASSOCIATIONS AND SPEECH IN
CONSITUTION
of Plaintiffs’ Constitutionally protected property right in tenure. As to Defendants ESU and
KBOR, see paragraph 41 above.
272. Defendants conspired and took action in furtherance of the conspiracy to retaliate
against Plaintiffs for their associations creating, adopting and implementing the WMP in KBOR
meetings, among KBOR members and ESU officials, ultimately resulting in the termination of
Plaintiffs in violation of Plaintiffs’ association rights protected by First Amendment guarantee of
association and speech.
59
Plaintiffs’ 1st Amendment Rights of association as described herein, in violation of 42 U.S.C.
§1983.
just and equitable.
DESIGNATION OF PLACE OF TRIAL
Plaintiffs designate Topeka, Kansas as the place of trial of this action.
JURY TRIAL REQUESTED
Plaintiffs request a jury trial on issues triable before a jury.
VERIFICATION
Plaintiffs’ individual verification pages are attached hereto.
60
Respectfully submitted,
/s/ J. Phillip Gragson

J. Phillip Gragson, #16103
Amanda S. Vogelsberg, #23360
John H. Hutton, #16573
Kara L. Eisenhut, #27055
Henson, Hutton, Mudrick, Gragson
& Vogelsberg, LLP
3649 SW Burlingame Rd., Ste. 200
Topeka, KS 66611-2155
785.232.2200 (phone); 785.232.3344 (fax)
jpgragson@hhmglaw.com
avogelsberg@hhmglaw.com
jhutton@hhmglaw.com
keisenhutt@hhmglaw.com
Attorneys
Attomeys for Plaintiffs
Plaintiff.\'
61
VERlrn..'ATION
STi\TE OF KANSAS
)ss:
COUNTY OF SHAWNEE )
I, Michncl Behrens, nnd ofl:J\vliil uge und duly sworn upon my oath, stale 1hnt l have
read the nwcgoing Verified Cmnplainl and the ~latcmcnts made there.in pertaining In me and rny
claims un: trnc and correct to the best of my knowledge, information. and belief.
. !JJf~~--,
Micbucl Behrens
"This notarial act involved the use of communication technology."

VERIF1CA110N
STATE OF KANSAS )
)ss:
COUNTY OF SHAWNEE )
I, Robert (Rob) Catlett, and o.f lawful age an.d duly sworn upon my oath, state that I have
read the foregoing Verified Complaint and the statements · ·. herein pertaining to me and my
claims are true and correct to the best of my know led 1 ~ ·111to. ·:iatiu . and belief: · ··
Commission Expires: .. :!21.Jl~~,J:ii}#:5· ___ . . . _

VElz!FICAI·rn;\J
STA,-E OF KANS/\S )
)ss:
COUNTY OF SHAWNEE )
I, Dan Colson, and of lawful age and duly sworn upon my oath, state that I have read the
:1.)reg.oing·vcfified Complaint and the statements made th~rein pertaining to me and my claims
,;,-e uue and correct to the best of my knowledge. inforn)tJ:C::~!1_______
Dan Colson ·-
This notarial act involved lhe use (?lcon1munication technology.

VERIFICATION
STATE OF KANSAS )
)ss:
COUNTY OF SHAWNEE )
I, Charles Emmer, and of lawful age and duly sworn upon my oath, state that I have read
the foregoing Verified Complaint and the statements made therein pertaining to me and my
claims are true and correct to the best of my knowledge, information, and belief.
~ f_
CharlesEmmer
Sworn to and subscribed before me this ill day of <Jul .u \

, 2023.
Commission Expires: ;)D: a\ . . ar::a:5

This notarial act involved the use of communication technology.
VERll;'ICArION
STArE OF KANSAS )
)ss:
COUNTY OF S1IA \VNEE )
L Brenda Koerner, and of lawful age and duly sworn upon my oath, state that l have read
the_ foregoing Verified Complaint and th~ statements mad_e ~herein_ pertai,Jing ~o ,n1 and my
chums are true and correct to the best of my kno~yledge,• mtcmrn1t1on, aritl b¢11~J,/
<···· ~ " ....-••·· I , I /-,·/
.=:t:;:~tz.0-Uf/,ti..?f-~~~kiL~k./.L-----
. Brenda' Koerr(e·r i /
.
\j
Sworn to and subscribed before me this
"2-1 l ,,, """' ,_,_.,,

Commission Expires:,~JltlrO} cs
This notarial act involved the use qf co1nmunica1ion technology.
VERIFICATION
STATE OF KANSAS )
)ss:
)
I, Sheryl Lidzy, and of lawful age and duly sworn upon my oath, state that I have read the
foregoing Verified Complaint and the statements made therein pertaining to me and my claims
are true and con-ect to the best of my knowledge, infonnation, and belief.
\, C"")
(\
-,\/' . v;)I
, L,
,,_,//(l..e,. 1'/1, ._,, '-.. ' oc,,:' /
Sworn to and subscribed before me this /J;t:f:day ofQ-u i:--( , 2023.
Commission Expires: ;&0;· ( G, c;,?O.-:J--<e

VERIFICATION
STATE OF KANSAS )
)ss:
COUNTY OF SHAWNEE )
I, Christopher Lovett, and of lawful age and duly sworn upon my oath, state that I have
read the foregoing Verified Complaint and the statements made therein pertaining to me and my
claims are true and correct to the best of my knowledge, infoTI)).atio.n, and belief/)
tJ
/' :/~ +4
/)I/
Christopher Lovett
._I/
i/)/£~7
Sworn to and subscribed before me this L\ j1-'\ \ /\

day oL)\J vy ,2023.
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NOTARY PUBLIC ·,._,,
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Commission Expires: /)\ llJ ()-J2i){j

VERIFICATION
STATE OF KANSAS )
)ss:
COUNTY OF SHAWNEE )
I, Max McCoy, and of lawful age and duly sworn upon my oath, state that I have read the
foregoing Verified Complaint and the statements made therein pertaining to me and my · s
are true and correct to the best of my knowledge, information, and belief.
Sworn to and subscribed before me this --~3:- day of ,/4l.., v

(""·"••
, 2023.
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Ju 1.12.2023 8:35AM No. 7818 P. 4
VERIFICATION
STATE OF KANSAS )
)ss:
COUNTY OF SHAWNEE )
I, Amanda Miracle, and of lawful age a11d duly sworn upon my oath, state that I have read
claims are true and coD"ect to the best of my knowledge, infonnation, and belief.
Amanda Miracle
Swom to and subscribed before me this J n·--day of .j" u( 1f' , 2023.
C~mmissionExpires: .:::J"UV'\t'.. ::i-o I ol4~L{

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VERIFICATION
STATE OF KANSAS )
)ss:
COUNTY OF SHAWNEE )
I, Michael Morales, and of lawful age and duly sworn upon my oath, state that I have
read the foregoing Verified Complaint and the statements made therein pertaining to me and my
claims are true and correct to the best of my knowledge, info1mation, and belief.
r11 u;-A~ 7YJtrL~-

Michae1 Morales
Sworn to and subsciibed before me this \ ~day of,\,.J;._,,\_,f--' 2023.
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VERIFICATION
STATE OF KANSAS )
)ss:
COUNTY OF SHAWNEE )
I, Lynnette Sievert, and oflawful age and duly sworn upon my oath, state that I have read
claims are true and con-ect to the best of my knowledge, infonnation, and belief.
_tJ!Jl/lU -fie S uuert

Lyry1ette Sievert -------
Sw:::.::::1:emc this j;)tl)day~. ,1µ,/ ~;20~~~~

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I1 NOTARY PURLIC • Slaloof K,nsas \

SHERYLYN B. SMITH \•
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Case 5:23-cv-04056 Document 1 Filed 07/12/23 Page 1 of 72

IN THE UNITED STATES DISTRICT COURT

(“ESU”). The Defendants, each of them, participated in a multitude of conspiracies to terminate

JURISDICTION AND VENUE

U.S.C. § 1343 and 28 U.S.C. § 1331.

some of the Defendants occurred in Shawnee County, Kansas.

5. Plaintiff Christopher Lovett is a resident of Shawnee County, Kansas. Plaintiff

residents of Lyon County, Kansas.

McCoy was a Professor of Journalism.

promoted to Associate Professor in the Department of Mathematics and Economics in 2018. In

Associate Professor in the Department of Communication & Theatre in 2011.

President Hush approved his promotion after September 2022.

Social Sciences, Sociology and Criminology.

tenured on or about January 2004.

18. Defendant, Emporia State University (“ESU”), 1 Kellogg Circle, Emporia, KS

4001, Emporia KS 66801.

Emporia State University, 1 Kellogg Circle, Box 4010, Emporia KS 66801.

Cremer Hall, Room 404, Campus Box 4039, Emporia KS 66801.

520, Topeka, KS 66612-1368.

Suspension, Terminations and Dismissals policy (“Workforce Management Policy” or “WMP”)

of KBOR’s WMP and ESU’s Framework.

in the capacity of a member or employees of KBOR will be hereinafter referred to as KBOR

Doe unless otherwise expressly stated.

before the termination from ESU and KBOR.

FACTUAL ALLEGATIONS COMMON TO ALL COUNTS

Because Professor Tonkovich was a tenured professor, he possessed a property

the Fourteenth Amendment.” Id. at 522.

and Kosik at 512-13, recognizing:

portions attached hereto as Exhibit 1, which states, in part:

A government employee is entitled to constitutional procedural due process only

The termination of employment of a member of the faculty of an institution of

Tenure is an academic status granted by a university to one of its own faculty

institution of higher education clearly has an expectation of continued

discontinuance or under extraordinary circumstances because of financial exigency.” KBOR

Policy Manual at p. 1-13, attached as Exhibit 2.

1A. 0102 Academic Tenure

must provide the following rights:

f. To obtain and/or examine the record of the proceedings

substantive and procedural due process rights.

implementation of the WMP and ESU’s Framework.

temporary amendment to the Suspensions, Terminations and Dismissals policy (“Workforce

management Policy” or “WMP”) to KBOR members. In discussing the WMP, according to

Etten, Bangerter, Brandau-Murguia, Feuerborn, Harrison-Lee, Kiblinger, Rolph and Schmidt.

Frameworks for decision-making shall be determined by each state university’s

(2) Any employee given notice of a suspension, dismissal, or termination that

seconded his motion. Defendants Bangerter, Brandau, Feuerborn, Harrison-Lee, Hutton,

February 17, 2021, attached hereto as Exhibit 4.

Program Alignment Reviews” to KBOR pursuant to a program review or strategic alignment

at p. 35, attached as Exhibit 6.

….The ESU Office of Institutional Effectiveness recognized the program [history]

Recommendation: Continue the program.

Petitioners. See Exhibit 5 at pp. 9-10.

60. Based on information and belief, sometime in or about 2021-2022, Defendant

ESU or the Academic Affairs Office until September 2022.

ESU administrators also attended some of these meetings.

Plaintiffs Sievert, Catlett, and others signed union interest cards.

to be members of or allies of other political parties opposed to the Republican party.

rights as an outspoken university professor.