Crosbie v. Utah State University et al

1
UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
AMY CROSBIE,
Plaintiff,
v.
UTAH STATE UNIVERSITY, ELIZABETH
R. CANTWELL, DIANA SABAU, and
MICA MCKINNEY,
Defendants.
MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART [17] DEFENDANTS’
MOTION TO DISMISS
Case No. 1:25-cv-00121-DBB-JCB
District Judge David Barlow
Before the court is Defendants Utah State University (“USU”), Elizabeth Cantwell, Diana
Sabau, and Mica McKinney’s (collectively “Defendants”) Motion to Dismiss for Lack of
Jurisdiction and Failure to State a Claim.1
BACKGROUND
This case arises out of the events surrounding Plaintiff Amy Crosbie’s termination from
her position as the Executive Associate Athletic Director and Senior Women Administrator
(“Associate Director”) at USU in 2024.2 In her Amended Complaint, she alleges as follows.3
Ms. Crosbie was employed by USU as Associate Director from 2019 to 2024.4 During
2024 when Ms. Crosbie was terminated, Ms. Cantwell was the President of USU, Ms. Sabau was
the Vice President and Director of Athletics (“Athletic Director”) at USU, and Ms. McKinney
1 Mot. to Dismiss (“MTD”), ECF No. 17, filed Sep. 26, 2025.
2 First Amended Compl. (“Amended Compl.”) ¶ 3, ECF No. 13, filed Sep. 18, 2025.
3 Because this is a motion to dismiss, the court treats the fact allegations in the complaint as true.
4 Id.
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was the Vice President of Legal Affairs and General Counsel for USU.5 Ms. McKinney remains
in her position at USU, but Ms. Cantwell and Ms. Sabau have both taken other jobs.6
Incident Report and Investigation
On April 12, 2023, Ms. Crosbie and the USU Director of Student Affairs, Eric Olsen,
were informed by USU Interim Athletic Director Jerry Bovee that a student athlete had been
arrested by local police.7 Later that day, Mr. Olsen submitted an incident report to the USU
Office of Equity (“OOE”) that included all the information about the arrest that Ms. Crosbie was
aware of at the time.8 Once the incident report was submitted, Ms. Crosbie did not receive a copy
and did not have access to view, amend, or supplement the report.9
In August 2023, USU hired Ms. Sabau as Athletic Director.10 Ms. Sabau treated Ms.
Crosbie and Mr. Bovee poorly, creating strained relationships within the department.11 Shortly
after joining USU, Ms. Sabau announced that Husch Blackwell, a private law firm, would be
investigating the events surrounding the student athlete’s arrest.12 Upon a request from Ms.
McKinney, Ms. Crosbie agreed to assist with the investigation by collecting documents and
coordinating interviews.13 On October 11, 2023, Ms. Crosbie met with two of the investigating
attorneys.14 During the interview, Ms. Crosbie answered all of the investigators’ questions about
her knowledge of the student athlete’s arrest.15 She told the investigators she remembered that,
5 Id. ¶¶ 5–7.
6 Id.
7 Id. ¶ 34.
8 Id. ¶¶ 34–36.
9 Id. ¶ 38.
10 Id. ¶ 49.
11 Id. ¶¶ 50–52.
12 Id. ¶ 54.
13 Id. ¶¶ 57–58.
14 Id. ¶ 59.
15 Id. ¶ 61.
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sometime after submitting the incident report, Mr. Bovee had shown her a witness statement
about the arrest that she assumed had been obtained by Coach Anderson (the USU football
coach), though she did not know how.16
During this time, Ms. Sabau continued to mistreat Ms. Crosbie and Mr. Bovee.17 On
December 8, 2023, Mr. Bovee met with HR to report Ms. Sabau’s bullying.18 Later, in June
2024, Ms. Crosbie also met with an HR employee to corroborate Mr. Bovee’s report about Ms.
Sabau’s behavior.19 During that meeting, the HR employee disclosed that Ms. Sabau had been
confronted with HR complaints about her behavior and had committed to improving.20 Even so,
Ms. Sabau’s mistreatment of Ms. Crosbie continued after the HR meeting.21
Ms. Crosbie’s Termination
On July 2, 2024, USU received the final Husch Blackwell report.22 On July 8, 2024, USU
terminated Ms. Crosbie’s employment effective immediately after Ms. Cantwell and Ms. Sabau
decided, with advice from Ms. McKinney, to terminate her employment.23 Ms. Sabau provided a
termination letter detailing the reasons for Ms. Crosbie’s dismissal.24 The letter stated in part that
Ms. Crosbie had failed to comply with USU Title IX reporting requirements because she did not
disclose the existence of the witness statement when she first learned of its existence, instead
16 Id. ¶¶ 61–62.
17 Id. ¶ 68.
18 Id. ¶¶ 69–70.
19 Id. ¶ 72.
20 Id. ¶ 73.
21 Id. ¶ 74.
22 Id. ¶ 76.
23 Id. ¶ 77.
24 Id. ¶ 78.
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waiting until her interview with investigators.25 Ms. Crosbie never received any formal discipline
or notice of these allegations prior to her termination.26
The final report found that Ms. Crosbie did not comply with reporting requirements but
noted that she did not openly mislead the OOE and that she corrected any mistakes she made.27
The report incorrectly stated that Ms. Crosbie knew Coach Anderson had taken steps to
independently investigate the incident.28 The report also implicated Mr. Bovee, who was
dismissed from his position around the same time.29
In the context of USU’s athletic department terminations, Ms. Sabau allegedly gave
statements to newspapers that Ms. Crosbie and Mr. Bovee were fired “so that there is not a
pervasive culture of sexual violence or domestic violence within any of our athletic
departments,”30 and that “good people make bad mistakes.”31 Because of these statements, Ms.
Crosbie has been unable to find a new position, and other schools that she was in contact with
have withdrawn their interest.32
Ms. Crosbie’s Appeal
In accordance with USU policy and procedures, Ms. Crosbie submitted a grievance
arguing that her employment was improperly terminated without progressive discipline and that
her dismissal was not based on a valid reason under USU policies.33 She presented her case
25 Id. ¶¶ 81–84.
26 Id. ¶¶ 79–80.
27 Id. ¶ 89.
28 Id. ¶ 85.
29 Id. ¶ 98.
30 Id. ¶ 101.
31 Id. ¶ 103.
32 Id. ¶¶ 104–08.
33 Id. ¶ 110.
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before a hearing committee on October 23 and 24, 2024.34 She was represented by an attorney
during the hearing, but her attorney was not permitted to present the case, object during the
hearing, or directly question witnesses.35 Instead, questions were submitted to committee
members, who then questioned the witnesses.36 Ms. Crosbie was also not permitted to make any
retaliation arguments at the hearing, which excluded evidence of Ms. Sabau’s bullying.37
The committee ultimately found that Ms. Crosbie’s termination was unwarranted, that
she was caught in ineffective reporting systems, and that conflicting evidence undermined the
validity of her termination.38 However, because USU’s policies allow for termination based on
“other reasons deemed valid by University Administration,” the committee determined that it
was compelled to find that Ms. Sabau was within her rights to terminate Ms. Crosbie’s
employment.39 Based on the committee recommendation, USU Executive Vice President
Laurens Smith issued a final decision on behalf of Ms. Cantwell denying Ms. Crosbie’s
grievance.40
STANDARD
“Dismissal under Rule 12(b)(6) is appropriate only if the complaint, viewed in the light
most favorable to plaintiff, lacks enough facts to state a claim to relief that is plausible on its
face.”41 “A claim has facial plausibility when the plaintiff pleads factual content that allows the
34 Id. ¶ 111.
35 Id. ¶¶ 114–15.
36 Id.
37 Id. ¶¶ 112–13.
38 Id. ¶¶ 117–21.
39 Id. ¶¶ 123–26.
40 Id. ¶¶ 128–29.
41 Abdi v. Wray, 942 F.3d 1019, 1025 (10th Cir. 2019) (citing United States ex rel. Reed v. KeyPoint Gov’t Sols., 923
F.3d 729, 764 (10th Cir. 2019)).
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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”42
“In evaluating a motion to dismiss, the court must take as true all well-pleaded facts, as
distinguished from conclusory allegations, view all reasonable inferences in favor of the
nonmoving party, and liberally construe the pleadings.”43 Conclusory statements and legal
conclusions are “not entitled to the assumption of truth.”44
Generally, “a motion to dismiss should be converted to a summary judgment motion if a
party submits, and the district court considers, materials outside the pleadings.”45 “However,
notwithstanding the usual rule that a court should consider no evidence beyond the pleadings on
a Rule 12(b)(6) motion to dismiss, ‘the district court may consider documents referred to in the
complaint if the documents are central to the plaintiff's claim and the parties do not dispute the
documents’ authenticity.’”46 Courts may also consider “documents that the complaint
incorporates by reference,”47 “documents attached as exhibits to the complaint,”48 and “matters
of which a court may take judicial notice,”49 including “facts which are a matter of public
record.”50
42 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
43 McNellis v. Douglas Cnty. Sch. Dist., 116 F.4th 1122, 1130–31 (10th Cir. 2024) (quoting Reznik v. inContact,
Inc., 18 F.4th 1257, 1260 (10th Cir. 2021)) (also quoting Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002))
(cleaned up).
44 Iqbal, 556 U.S. at 1951 (emphasis omitted).
45 Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (quoting Prager v. LaFaver, 180 F.3d 1185,
1188 (10th Cir. 1999)).
46 Id. (quoting Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)).
47 Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (citing Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S.
308, 322 (2007)).
48 Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001).
49 Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007).
50 Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006).
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DISCUSSION
I. § 1983 Claims (Causes of Action IV, V, VI)
Ms. Crosbie asserts causes of action for violations of her constitutional liberty interest,
procedural due process, and substantive due process under 42 U.S.C. § 1983.51 Section 1983
creates a civil cause of action against any person who, under the color of law “subjects, or causes
to be subjected” any person to a deprivation of their constitutional rights.52 Ms. Crosbie brings
§ 1983 claims against USU as an entity and against Ms. Cantwell, Ms. Sabau, and Ms.
McKinney (the “Administration Defendants”) in their official and individual capacities.
In their Motion to Dismiss, Defendants argue that USU and the Administration
Defendants in their official capacities are not persons that can be sued under § 1983.53 They also
argue that the Administration Defendants in their individual capacities are entitled to qualified
immunity from suit.54 In her Opposition, Ms. Crosbie concedes that USU is not a person that can
be sued under § 1983 but contests Defendants’ other arguments.55
A. Defendants in Their Official Capacity
The Supreme Court has explained that “a suit against a state official in his or her official
capacity . . . is a suit against the official’s office” and is “no different from a suit against the State
itself.”56 Therefore, “neither a State nor its officials acting in their official capacities are persons
under § 1983.”57 But the Supreme Court also clarified that a state official sued in his or her
51 Amended Compl. ¶¶ 166–92.
52 42 U.S.C. § 1983.
53 MTD 25–26.
54 Id. at 26.
55 Opposition to Defendants’ Mot. to Dismiss (“Opp’n”) 11, ECF No. 18, filed Oct. 24, 2025.
56 Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
57 Id.
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official capacity for injunctive relief “would be a person under § 1983 because ‘official-capacity
actions for prospective relief are not treated as actions against the State.’”58
Ms. Crosbie requests reinstatement or front pay in each of her § 1983 claims.59 The Tenth
Circuit has held that “[r]einstatement of employment is a form of prospective equitable relief”
that can form the basis for an official capacity § 1983 claim.60 Front pay is also sometimes
appropriate “when reinstatement is not possible.”61 Ms. Crosbie therefore “alleges an ongoing
constitutional violation in the form of her continued exclusion from employment with the
University” and seeks prospective relief from the Administration Defendants in their official
capacities through reinstatement or front pay.62
Defendants contend that reinstatement would not be an appropriate remedy in this
situation because the parties’ relationship has deteriorated and the Administration Defendants do
not have the ability to reinstate Ms. Crosbie.63 For the first argument, Defendants cite a Utah
Supreme Court case explaining that “[r]einstatement would not be an appropriate remedy when
hostilities exist between the parties or when the employment relationship has been irreparably
damaged by the dispute over the discharge.”64 But federal courts have referred to reinstatement
as the “preferred remedy” for prospective injunctive relief in wrongful discharge cases because it
“involves the least amount of uncertainty.”65 Regardless, the facts alleged in the Amended
58 Id. at 71, n.10 (quoting Kentucky v. Graham, 473 U.S. 159, 167, n.14 (1985)).
59 Amended Compl. ¶¶ 173, 182, 191.
60 Meiners v. Univ. of Kansas, 359 F.3d 1222, 1232–33 (10th Cir. 2004).
61 Starrett v. Wadley, 876 F.2d 808, 824 (10th Cir. 1989).
62 Zimmerman v. Univ. of Utah, No. 2:13-CV-01131, 2018 WL 3448331, at *2 (D. Utah July 17, 2018).
63 Reply to Plaintiff’s Opp’n (“Reply”) 12–13, ECF No. 24, filed Nov. 21, 2025.
64 Thurston v. Box Elder Cnty., 892 P.2d 1034, 1041 (Utah 1995); Reply 12.
65 Stafford v. Elec. Data Sys. Corp., 749 F. Supp. 781, 785 (E.D. Mich. 1990) (quoting Whittlesey v. Union Carbide
Corp., 742 F.2d 724, 728 (2d Cir. 1984)).
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Complaint do not compel the court to conclude that reinstatement in this case would be
impossible due to hostilities, especially at the motion to dismiss stage and given that Ms. Sabau
and Ms. Cantwell no longer work at USU.
This brings the court to Defendants’ second argument on this point. Defendants contend
that the § 1983 causes of action cannot state a claim for prospective relief because the
Administration Defendants do not have authority to grant the requested relief even in their
official capacities.66 Specifically, they argue that Ms. Sabau and Ms. Cantwell cannot reinstate
Ms. Crosbie because they no longer work at USU.67 At first glance, this scenario seems to fall
under Rule 25(d) of the Federal Rules of Civil Procedure, which states that an action against “a
public officer who is a party in an official capacity” does not abate if the officer “ceases to hold
office while the action is pending.”68 Instead, “[t]he officer’s successor is automatically
substituted as a party.”69
But Rule 25(d) by its own language only applies to a public official who ceases to hold
office “while the action is pending.”70 “It makes no provision for when a plaintiff sues a former
official, in his [or her] formerly-official capacity.”71 This lawsuit commenced in state court on
July 31, 2025.72 In Ms. Crosbie’s original complaint, she alleged that both Ms. Cantwell and Ms.
Sabau had already left their positions at USU.73 Because they were not public officers at USU
66 Reply 13.
67 Id.
68 Fed. R. Civ. P. 25(d).
69 Id.
70 Id.
71 Mire v. Bd. of Supervisors of Louisiana State Univ., No. CV 15-6965, 2017 WL 785439, at *4 (E.D. La. Mar. 1,
2017).
72 Notice of Removal to Federal Court (“Notice of Removal”) 1, ECF No. 1, filed Aug. 21, 2025; see also Complaint
and Jury Demand (“Original Compl.”), ECF No. 1-3, filed Aug. 21, 2025.
73 Original Compl. ¶¶ 5–6.
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when the original complaint was filed, they could not be sued in their official capacities, and
Rule 25(d) does not automatically add their successors as correct parties.74 Ms. Sabau and Ms.
Cantwell are therefore not before the court in their official capacities.
Unlike the other two administration defendants, Ms. McKinney continues to work at
USU in her same position, so she is properly before the court in her official capacity.75
Defendants argue that she, as USU’s general counsel, does not have any hiring or firing authority
sufficient to reinstate Ms. Crosbie or provide her with front pay.76 A claim for prospective
injunctive relief can only be maintained against an official if they have the authority to grant the
relief requested.77
There is no factual basis in Ms. Crosbie’s Amended Complaint to plausibly find that Ms.
McKinney has the authority to reinstate her from the office of general counsel. Ms. Crosbie
alleges that Ms. Cantwell and Ms. Sabau terminated her employment and that Ms. McKinney
only provided advice during the process.78 This indicates that the University President and
Athletic Director have hiring and firing authority over Ms. Crosbie’s position, but general
counsel does not. Thus, Ms. Crosbie fails to state a claim for prospective relief against any of the
Administration Defendants in their official capacity under § 1983.
74 See Moore v. Knowles, 482 F.2d 1069, 1075 (5th Cir. 1973) (“Rule 25(d), however, contemplates substitution
during pendency of the suit. Because two defendants were no longer members of the board when suit was filed they
were not public officers and not before the court as board members.”).
75 Amended Compl. ¶ 7.
76 Reply 13.
77 See Klein v. Univ. of Kansas Med. Ctr., 975 F. Supp. 1408, 1417 (D. Kan. 1997) (“None of the individuals that
Klein has sued has the power to provide him with the relief he seeks—reinstatement . . . Therefore, Klein’s claims
for injunctive relief against the individual defendants in their official capacities are dismissed.”); see also Ex parte
Young, 209 U.S. 123, 157 (1908).
78 Amended Compl. ¶ 77.
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B. Qualified Immunity
Defendants next argue that Ms. Cantwell, Ms. Sabau, and Ms. McKinney are entitled to
qualified immunity in their individual capacities on each of the three § 1983 claims.79 “A § 1983
defendant’s assertion of qualified immunity is an affirmative defense that creates a presumption
that the defendant is immune from suit.”80 To overcome the presumption of qualified immunity,
the plaintiff must show that “(1) the defendant’s actions violated a constitutional or statutory
right, and (2) that the right was clearly established at the time of the defendant’s complained-of
conduct.”81
In the context of a qualified immunity defense asserted in a 12(b)(6) motion, the
defendants are subjected to a “more challenging standard of review than would apply on
summary judgment.”82 The court only analyzes the defendant’s actions “as alleged in the
complaint.”83 When a § 1983 claim is “against multiple individual governmental actors, it is
particularly important that the complaint make clear exactly who is alleged to have done what to
whom.”84
In determining whether a right is clearly established for a qualified immunity defense, the
Tenth Circuit has said:
A clearly established right is one that is sufficiently clear that every reasonable
official would have understood that what he is doing violates that right. To be
clearly established, a legal principle must have a sufficiently clear foundation in
then-existing precedent. The dispositive question is whether the violative nature of
the particular conduct is clearly established. Accordingly, the Supreme Court has
79 MTD 26.
80 Truman v. Orem City, 1 F.4th 1227, 1235 (10th Cir. 2021) (quoting Est. of Smart by Smart v. City of Wichita, 951
F.3d 1161, 1168 (10th Cir. 2020)).
81 Id.
82 Id.
83 Id. (quoting Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014)) (emphasis in original).
84 Id.
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repeatedly admonished circuit courts not to define clearly established law at a high
level of generality. Though a case directly on point is not required, existing
precedent must have placed the constitutional question regarding the illegality of
the defendant’s conduct beyond debate. Ordinarily there must be a Supreme Court
or Tenth Circuit decision on point, or the clearly established weight of authority
from other courts must have found the law to be as the plaintiff maintains.85
To overcome qualified immunity here, the facts alleged in the complaint must show for each
individual defendant and each § 1983 cause of action that the individual’s conduct violated a
clearly established right.
1. Liberty Interest (Cause of Action IV)
Ms. Crosbie’s first cause of action under § 1983 is her claim that the individual
defendants violated her liberty interest in her good name and reputation.86 A public employee has
a “liberty interest in [her] good name and reputation as it affects [her] protected property interest
in continued employment.”87 In Workman v. Jordan, the Tenth Circuit set out a four-part test to
establish a liberty interest violation.88 To be actionable as liberty interest violations, statements
must (1) “impugn the good name, reputation, honor, or integrity of the employee,” (2) “be false,”
(3) “occur in the course of terminating the employee” and “foreclose other employment
opportunities,” and (4) “be published.”89 Once a liberty interest is implicated, a plaintiff must
show that they were “not afforded an adequate name-clearing hearing.”90
85 Ullery v. Bradley, 949 F.3d 1282, 1291 (10th Cir. 2020) (internal citations omitted) (emphasis in original).
86 Amended Compl. ¶¶ 167–68.
87 Workman v. Jordan, 32 F.3d 475, 480 (10th Cir. 1994).
88 Id.
89 Id. at 481.
90 Id. at 480.
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a. Ms. Cantwell and Ms. McKinney
Ms. Crosbie includes three statements in her Amended Complaint that she contends could
form the basis for a liberty interest violation. First, Ms. Cantwell and Ms. Sabau made a
statement that Mr. Bovee had been terminated for “violations of university policies related to the
reporting of sexual and domestic violence” and “failures of professional responsibilities.”91
Second, Ms. Sabau made a statement in the context of the firings that her actions were done “so
that there is not a pervasive culture of sexual violence or domestic violence within any of our
athletic departments.”92 Third, Ms. Sabau referred to Ms. Crosbie and Mr. Bovee and said “good
people make bad mistakes.”93
As an initial matter, the first statement about Mr. Bovee’s termination cannot form the
basis of a liberty violation against Ms. Crosbie. It could not have impugned her good name
because it did not reference her at all. Because Ms. Cantwell is only alleged to have participated
in making that particular statement and Ms. McKinney is not alleged to have made any of the
above statements, Plaintiff cannot show that either of them violated her liberty interest. Both Ms.
Cantwell and Ms. McKinney are entitled to qualified immunity against the liberty interest claim.
b. Ms. Sabau
The two remaining statements were made by Ms. Sabau to the Fox13 and Salt Lake
Tribune news outlets in July 2024.94 The Complaint only excerpts portions of the statements and
does not include as exhibits the articles in which they were made. In their Motion to Dismiss,
Defendants cite and include links to the articles themselves and ask the court to review the
91 Amended Compl. ¶ 100.
92 Id. ¶ 101.
93 Id. ¶ 103.
94 Id. ¶¶ 101, 103.
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statements in their entirety in the context in which they were made.95 “Generally, a court should
consider no evidence beyond the pleadings on a Rule 12(b)(6) motion to dismiss.”96 However, a
court “may consider documents referred to in the complaint if the documents are central to the
plaintiff’s claim and the parties do not dispute the documents’ authenticity.”97
In this case, the allegedly unconstitutional statements and the news articles in which they
were published are certainly central to Ms. Crosbie’s claim that these statements violated her
liberty interest. A statement is only actionable as a liberty interest violation if it is published, so
the published statement itself must be examined to determine if it impugns an employee’s good
name. Additionally, Ms. Crosbie never disputed the validity of the news articles containing Ms.
Sabau’s statements in her Opposition, even after the articles were extensively referenced in the
Motion to Dismiss.98 Therefore, the court will consider the complete statements made by Ms.
Sabau and the context in which they were made.
First, the Amended Complaint states that “Sabau told Fox13 that Bovee and Crosbie were
fired ‘so that there is not a pervasive culture of sexual violence or domestic violence within any
of our athletic departments.’”99 But she plainly did not. Sabau’s actual statement as published in
the Fox13 article reads, “[s]etting a new trajectory in accountability and transparency so that
there is not a pervasive culture of sexual violence or domestic violence within any of our athletic
departments.” [sic]100
95 MTD 34–35.
96 Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).
97 Id. (quoting Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)).
98 See Opp’n 20–23.
99 Amended Compl. 101.
100 Mythili Gubbi, Change is hard; Utah State attempts to clear air surrounding Anderson dismissal, FOX13 (July
26, 2024), https://www.fox13now.com/sports/change-is-hard-utah-state-attempts-to-clear-air-surrounding-anderson-
dismissal [https://perma.cc/N4YR-L4HS].
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Notably, this statement does not reference Ms. Crosbie at all. The context in which it was
made likewise does not impugn Ms. Crosbie’s good name or reputation. The article only reports
that Ms. Crosbie was dismissed and then explicitly states that “Sabau would not comment on
why Crosbie was let go or confirm if it was connected to the issues surrounding the others.”101 In
short, Plaintiff’s characterization of the statement is clearly wrong. Because Ms. Sabau’s
published statement is not about Ms. Crosbie, it cannot impugn her character and cannot form
the basis for a liberty violation.
Second, the Amended Complaint states that “Sabau reference[d] both Mr. Bovee and Ms.
Crosbie when she told the Salt Lake Tribune, ‘good people make bad mistakes.’”102 This
statement was published in a July 29, 2024, Salt Lake Tribune article.”103 The article states,
“Sabau also provided no additional information on the specific terminations of both Bovee and
Crosbie. She did, however, say that ‘good people make bad mistakes’ but wants the athletic
department to have better accountability and integrity moving forward.”104
Essentially, this statement implies that Ms. Crosbie was fired for making “bad mistakes.”
The court need not decide if the statement might constitute a liberty violation under the
Workman elements because Plaintiff has not shown a clearly established right. To be sure, the
right to be free generally from liberty violations is well established,105 but courts have been
“repeatedly admonished” to not “define clearly established law at a high level of generality.”106
101 Id.
102 Amended Compl. ¶ 103.
103 Jason Batacao, Former and current Utah State athletes sign letter demanding ‘independent investigation’ for
terminated athletic administrators, SALT LAKE TRIBUNE (July 29, 2024), https://www.sltrib.com/sports/utah-state-
sports/2024/07/29/former-current-utah-state-athletes/ [https://perma.cc/74HZ-CXBB].
104 Id.
105 See Workman v. Jordan, 32 F.3d 475, 480 (10th Cir. 1994).
106 Ullery v. Bradley, 949 F.3d 1282, 1291 (10th Cir. 2020) (quoting Kisela v. Hughes, 584 U.S. 100, 103 (2018)).
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A case that is directly on point is unnecessary, but “existing precedent must have placed the
constitutional question regarding the illegality of the defendant’s conduct beyond debate.”107
Here, Plaintiff has not produced any such precedent. The most relevant case that Plaintiff
cites is McDonald v. Wise, a Tenth Circuit opinion where statements that an employee was
terminated for “serious misconduct” were sufficient to qualify as a liberty interest violation.108
Though statements about “serious misconduct” might be read to be somewhat conceptually
similar to a statement about “bad mistakes,” it is not enough to place the constitutionality of Ms.
Sabau’s conduct beyond debate. Considered alone, a “bad mistake” might arguably be expansive
enough to include dishonesty or immorality that would impugn a person’s reputation, but it more
naturally relates to negligence, insubordination, or dereliction, which do not tarnish a person’s
good name under Tenth Circuit precedent.109 Indeed, “mistake” is most consistent with
inadvertence, while “misconduct” is more consistent with an intentional act.110 Additionally, the
“bad mistake” language is only part of the whole statement—“good people make bad mistakes.”
The statement must be considered in its entirety. Considering the part without the whole
obscures rather than illuminates how the statement would be understood.
Plaintiff has produced no precedent or caselaw demonstrating “beyond debate” that this
statement illegally impugned her good name. The court cannot find that it plausible that “every
107 Id.
108 McDonald v. Wise, 769 F.3d 1202, 1209, 1212 (10th Cir. 2014); Opp’n 21 n.92.
109 See Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988) (Charges of dishonesty or immorality could implicate
a liberty interest, but charges of negligence, insubordination, horseplay, tardiness, and unreliability do not.)
110 See Mistake, MERRIAM-WEBSTER DICTIONARY (11th ed.), https://www.merriam-webster.com/dictionary/mistake
[https://perma.cc/K4H9-ZE5A] (defining “mistake” as “a wrong action or statement proceeding from faulty
judgment, inadequate knowledge, or inattention”); but see Misconduct, MERRIAM-WEBSTER DICTIONARY (11th ed.),
https://www.merriam-webster.com/dictionary/misconduct [https://perma.cc/J7BT-SCYW] (defining “misconduct”
as “deliberate violation of a law or standard especially by a government official” and “improper behavior”).
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reasonable official would have understood that what [s]he is doing violates that right.”111 Ms.
Sabau is entitled to qualified immunity on this claim.
2. Procedural Due Process (Cause of Action V)
Ms. Crosbie’s second cause of action under § 1983 is her claim that the individual
defendants deprived her of her property interest in continued employment without procedural
due process.112 Specifically, she alleges that her employment was terminated without
pretermination notice and opportunity to respond or improve and that her post-termination
hearing was deficient.113 When a person has a property right in continued employment, the state
cannot deprive them of that property right without due process.114 In Cleveland Board of
Education v. Loudermill, the Supreme Court explained that due process requires pretermination
notice and opportunity to respond along with a post-termination hearing.115 In this case,
Defendants do not dispute that Ms. Crosbie had a protected property interest in her
employment.116
a. Pre-Termination Process
In Loudermill, the Court explained that the Due Process Clause requires “that an
individual be given an opportunity for a hearing before he is deprived of any significant property
interest.”117 A pretermination hearing need not be elaborate. The Tenth Circuit has found that
even a brief face-to-face meeting with a supervisor immediately prior to termination satisfies the
111 Ullery v. Bradley, 949 F.3d 1282, 1291 (10th Cir. 2020).
112 Amended Compl. ¶¶ 176–78.
113 Id.
114 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985).
115 Id. at 542.
116 MTD 28.
117 Loudermill, 470 U.S. at 542 (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)).
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Loudermill pretermination requirements.118 Still, an employer must provide the “minimal pre-
termination procedural protections noted in Loudermill,” which “requires the employer to
provide—before the termination—notice of the charges, a summary of the employer’s evidence,
and an opportunity to respond.”119
Here, Ms. Crosbie alleges that USU, upon a decision by Ms. Cantwell and Ms. Sabau,
terminated her employment effective immediately without any prior discipline, opportunity to
respond, or prior notice.120 Instead, Ms. Sabau gave Ms. Crosbie a letter describing the reasons
for her termination.121 Defendants respond that Ms. Crosbie received sufficient pretermination
process because the termination letter and a termination email gave her notice of the allegations
and because she received the letter in an in-person meeting with opportunity to respond.122
When deciding the issue of qualified immunity on a motion to dismiss, the court “only
analyzes the defendant’s actions “as alleged in the complaint.”123 Defendants refer to an in-
person meeting and include a termination email that are not mentioned in or attached to Ms.
Crosbie’s Amended Complaint.124 Accordingly, the court will not consider the attached
termination email or Defendants’ arguments about an in-person meeting at this stage.125
118 West v. Grand Cnty., 967 F.2d 362, 368 (10th Cir. 1992).
119 Montgomery v. City of Ardmore, 365 F.3d 926, 937 (10th Cir. 2004) (emphasis in original).
120 Amended Compl. ¶¶ 77–80.
121 Id. ¶ 78.
122 MTD 29.
123 Truman v. Orem City, 1 F.4th 1227, 1235 (quoting Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014))
(emphasis in original).
124 See generally, Amended Compl.; MTD 29.
125 Defendants include an exhibit that they refer to as the “termination letter.” ECF No. 17-8. However, this exhibit
actually shows a termination email and is distinct from the termination letter that Plaintiff describes in her Amended
Complaint at paragraphs 78–83.
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Because Ms. Crosbie alleges facts suggesting that Ms. Cantwell and Ms. Sabau
terminated her without providing any notice or opportunity to respond,126 she has plausibly pled
that their actions violated her right to pretermination procedural due process. However, the
Amended Complaint only alleges that Ms. McKinney provided advice on Ms. Crosbie’s
termination.127 Absent any allegations that Ms. McKinney deprived Plaintiff of a property
interest by terminating her employment, the Amended Complaint does not allege that she
violated Ms. Crosbie’s procedural due process rights. Ms. McKinney is entitled to qualified
immunity against the procedural due process claim.
As for the remaining Administration Defendants, Ms. Crosbie has also shown that the
right in question is clearly established.128 The Amended Complaint includes facts and allegations
showing that Ms. Crosbie was terminated effective immediately upon receiving her termination
letter and that she had no warning, notice, or opportunity to respond prior to her dismissal.129
Taking these factual allegations as true, as the court must on a motion to dismiss, Ms. Crosbie
has plausibly pled that her pretermination due process rights were violated.130 A reasonable
official would have known that terminating an employee without any of the pretermination due
process procedures set forth in Loudermill was “constitutionally inadequate.”131 Therefore,
Plaintiff has sufficiently pled that Ms. Cantwell and Ms. Sabau violated her clearly established
126 Amended Compl. 77.
127 Id.
128 Opp’n 14.
129 Amended Compl. ¶¶ 77–80.
130 Tenth Circuit precedent also supports this conclusion. In Lovingier v. City of Black Hawk, an unpublished
decision, the Tenth Circuit found that an employee’s pretermination due process rights are violated under the
Loudermill standard when he is terminated “effective immediately” via a written notice of dismissal without prior
notice. Lovingier v. City of Black Hawk, 198 F.3d 258 (10th Cir. 1999) (unpublished).
131 See Calhoun v. Gaines, 982 F.2d 1470, 1476 (10th Cir. 1992).
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right to pretermination procedural due process. They are not entitled to qualified immunity on
this aspect of Ms. Crosbie’s procedural due process § 1983 claim.
b. Post-Termination Process
In addition to some form of simple pretermination hearing, Loudermill also requires “a
full-blown adversarial post-termination hearing”132 before an impartial tribunal.133 “A ‘full
posttermination hearing’ is understood to include the right to representation by an attorney and
the right to cross-examine adverse witnesses.”134 In this case, Ms. Crosbie received a two-day
grievance hearing in front of a committee in which she faced witnesses and was represented by
counsel.135 Nevertheless, she alleges that the hearing was constitutionally deficient because (1)
she was not permitted to discuss her retaliation claims or present evidence of Ms. Sabau’s
bullying, (2) her attorney was not allowed to present her case, and (3) questioning the witnesses
was done indirectly through the committee instead of through an attorney.136
To overcome qualified immunity, a plaintiff must first show that the individual
defendant’s actions violated a constitutional or statutory right.”137 This is because the “plain
wording of the [§ 1983] statute contains an element of causation.”138 Under the statute, a
defendant can only be liable if he or she personally “subjected a citizen to the deprivation, or
caused a citizen to be subjected to the deprivation.”139
132 Id.
133 Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 518 (10th Cir. 1998).
134 Workman v. Jordan, 32 F.3d 475, 480 (10th Cir. 1994).
135 Amended Compl. ¶¶ 111, 114.
136 Id. ¶¶ 111–15, 178.
137 Truman v. Orem City, 1 F.4th 1227, 1235 (10th Cir. 2021).
138 Tonkovich, 159 F.3d at 518.
139 Id.
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All of Ms. Crosbie’s claims for violations of her post-termination due process rights stem
from how her grievance hearing was conducted. But in her Amended Complaint, she alleges that
the relevant actions were all taken by USU or the hearing committee.140 She states that “USU
determined that it would exclude from consideration all evidence and argument related to Ms.
Crosbie’s claims of retaliation” and that “USU limited Ms. Crosbie’s attorney from fully
representing her.”141 Notably absent is any fact or allegation connecting any of the
Administration Defendants to the hearing. The Amended Complaint does not allege that Ms.
Cantwell, Ms. Sabau, or Ms. McKinney made, participated in, or contributed to any of the
disputed committee decisions. Ms. Crosbie points to no facts in the Amended Complaint from
which it could plausibly be inferred that these defendants played any role at all in the grievance
hearing or the alleged due process violations that allegedly arose from it.
Because Plaintiff has not shown or alleged that they violated her post-termination due
process rights, Ms. Cantwell, Ms. Sabau, and Ms. McKinney are entitled to qualified immunity
on this part of Ms. Crosbie’s procedural due process claim.
3. Substantive Due Process (Cause of Action VI)
Ms. Crosbie’s third cause of action under § 1983 is her claim that the individual
defendants deprived her of her property interest in continued employment without substantive
due process.142 Substantive due process rights arise from the Fourteenth Amendment Due
Process Clause and “bar ‘certain government actions regardless of the fairness of the procedures
140 Amended Compl. ¶¶ 112–15.
141 Id.
142 Id. ¶¶ 185–86.
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used to implement them.’”143 “[O]nly the most egregious official conduct can be said to be
arbitrary in the constitutional sense,” so a substantive due process violation is characterized by
an abuse of governmental authority that “shocks the conscience.”144 Such a claim “requires a
showing of government officials abusing their power, or employing it as an instrument of
oppression.”145
“A public employee with a property interest in continued employment has a substantive-
due-process right not to be terminated for arbitrary or capricious reasons.”146 To overcome
qualified immunity here, Ms. Crosbie must show that each individual defendant deliberately and
arbitrarily deprived her of her property interest in continued employment and that existing
precedent has established that the defendant’s actions were so egregious that they shock the
conscience.147
The Amended Complaint alleges that “Defendants deprived Ms. Crosbie of her property
interest by terminating her employment without substantive due process.”148 As to the
involvement of the individual defendants, it states that the “individual Defendants’ active
involvement in impugning Ms. Crosbie’s good name, reputation, honor, and integrity as a
scapegoat for their own failures deprived Ms. Crosbie of her constitutional liberty interest.”149
Ms. Crosbie argues that she was arbitrarily and deliberately deprived of her property interests
because (1) she was terminated for improper motives, (2) she was fired based on an erroneous
143 Williams v. Berney, 519 F.3d 1216, 1220 (10th Cir. 2008) (quoting County of Sacramento v. Lewis, 523 U.S. 833,
840, 846 (1998)).
144 Id.
145 Id.
146 Darr v. Town of Telluride, Colo, 495 F.3d 1243, 1257 (10th Cir. 2007).
147 See Moore v. Univ. of Kansas, 118 F. Supp. 3d 1242, 1263 (D. Kan. 2015).
148 Amended Compl. ¶ 186.
149 Id. ¶¶ 190.
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report without having access to that full report, and (3) USU policy 399.3 allows for termination
based on enumerated reasons as well as other reasons deemed valid by USU administration.150
First, as the court has already discussed, Ms. Crosbie’s § 1983 claims for violations of her
liberty interest fail because the statements either did not impugn her or were not clearly
established by precedent as constitutional violations. Because the statements allegedly
impugning Ms. Crosbie’s name are insufficient to overcome qualified immunity, they also
cannot form the basis for her substantive due process claim. The latter would necessarily require
that Ms. Crosbie’s liberty interest was violated in a clearly established and conscience-shocking
manner.
Second, as has been stated, the Amended Complaint alleges no facts indicating that Ms.
McKinney deprived Ms. Crosbie of a property interest at all, much less that she did so arbitrarily.
Ms. McKinney is therefore entitled to qualified immunity against the substantive due process
claim, as well as against the other § 1983 claims. Having dispensed with these preliminary
matters, the court must now decide based on the facts alleged (1) whether Ms. Cantwell and Ms.
Sabau terminated Ms. Crosbie arbitrarily and (2) whether existing precedent had established that
their actions would be so egregiously arbitrary as to shock the conscience.151
a. Conscience-Shocking Actions
Ms. Crosbie argues in her Opposition that she was fired for improper reasons, namely in
retaliation for reporting Ms. Sabau’s mistreatment and to cover up USU’s own reporting
failures.152 These allegations do not appear in her sixth cause of action, which focuses on USU
150 Opp’n 18–19.
151 See Moore, 118 F. Supp. 3d at 1263.
152 Opp’n 18–19.
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policy 399 and the Administration Defendants’ alleged violation of Ms. Crosbie’s liberty
interest.153 Furthermore, the Amended Complaint does not allege facts plausibly showing that
Ms. Crosbie was fired in retaliation or as part of a cover-up.
The Amended Complaint quotes Ms. Crosbie’s termination letter as explaining that she
was fired for “failure to comply with the terms and spirit of USU Policy 340” when she did not
disclose the existence of a witness statement.154 After quoting the termination letter, Plaintiff
concludes that “USU terminated Ms. Crosbie because she disclosed the existence of the witness
statement when USU (through Husch Blackwell) finally interviewed her about the IR rather than
when she was first shown the statement.”155 The Amended Complaint itself establishes that Ms.
Crosbie informed investigators about the witness statement during their interview.156
“Substantive due process requires that the termination of a [protected] property interest
not be arbitrary, capricious, or without a rational basis.”157 In this case, the Amended Complaint
alleges that Ms. Cantwell and Ms. Sabau terminated Ms. Crosbie’s property interest, but the facts
show that they did so because they believed she had violated university policy. It is not arbitrary,
irrational, or shocking to the conscience to fire an employee after a months-long investigation
concludes that the employee violated university policies. Even accepting as true Ms. Crosbie’s
allegations that the report was inaccurate in some respects,158 that does not make the university’s
reliance on the report arbitrary.
153 Amended Compl. ¶¶ 184–92.
154 Id. ¶¶ 81–83.
155 Id. ¶ 84.
156 Id. ¶ 61.
157 Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 528 (10th Cir. 1998).
158 See Amended Compl. ¶ 85; Opp’n 18.
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Ms. Crosbie argues that she was actually fired as a scapegoat to cover up USU’s own
reporting failures and in retaliation for reporting Ms. Sabau’s abusive treatment.159 But the
Amended Complaint’s factual allegations do not plausibly support this argument. The Amended
Complaint alleges that Ms. Crosbie complained about Ms. Sabau to HR160 and that the grievance
committee and a DOJ investigation both criticized the OOE and USU’s reporting procedures.161
It does not connect these facts to Ms. Crosbie’s termination. There is no allegation that Ms.
Sabau even knew about Ms. Crosbie’s HR complaints. Furthermore, the fact that USU and the
OOE had implemented poor reporting procedures does not make it arbitrary and conscience
shocking to terminate an employee for violating university policies.
Ms. Crosbie also argues that the defendants’ most shocking action was their enforcement
of USU policy 399.3, which broadly allows USU to fire employees for “reasons deemed valid by
university administration.”162 The Complaint states that the committee criticized this policy,
finding that, though Ms. Crosbie’s termination was unwarranted, policy 399 left no choice but to
uphold her removal.163
However, Plaintiff does not explain how Ms. Sabau and Ms. Cantwell “enforced” this
policy. There are no facts showing that they created it or used it as a reason for terminating her
employment. While the policy may have limited Ms. Crosbie’s ability to effectively appeal her
termination, its mere existence does not render the decision to terminate Ms. Crosbie for policy
violations arbitrary and conscience shocking. Ms. Crosbie has not shown that Ms. Cantwell’s and
159 Amended Compl. ¶ 132; Opp’n 18.
160 Amended Compl. ¶ 72.
161 Id. ¶¶ 119, 131.
162 Opp’n 19.
163 Amended Compl. ¶¶ 123–26.
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Ms. Sabau’s actions in firing her based on the report shock the conscience, so she has not shown
that they violated her substantive due process rights by terminating her employment.
b. Clearly Established
Even if Ms. Crosbie had alleged facts showing that the Administration Defendants
violated her substantive due process rights, she has not shown that those rights were clearly
established. Plaintiff cites no Tenth Circuit or Supreme Court authority to show that the
“violative nature” of Ms. Cantwell’s and Ms. Sabau’s “particular conduct [was] clearly
established.”164 She does reference two district court wrongful termination cases. The first, Gale
v. Uintah County, found that terminating an employee for a minor offense shortly after he
engaged in political campaigning that his supervisors disliked could suggest a substantive due
process violation.165 The second, Anglemyer v. Hamilton County Hospital, found that terminating
a risk management employee for refusing to overlook reportable violations in the workplace
could be a substantive due process violation.166
These cases are not binding precedent. Even if they were, they involve different conduct
than that alleged here. They do not place “beyond debate” that conduct like terminating an
employee for a policy violation based on erroneous conclusions in an official report shocks the
conscience. They also do not clearly establish that the existence of a broad institutional policy
that permits dismissal for any reason deemed valid by the administration makes all termination
decisions within that institution arbitrary. Plaintiff has not identified any precedent that even
suggests these principles, so the violative nature of Ms. Cantwell’s and Ms. Sabau’s conduct has
164 Ullery v. Bradley, 949 F.3d 1282, 1291 (10th Cir. 2020) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)
(emphasis in original).
165 Gale v. Uintah Cnty., No. 2:13-CV-725-TC, 2015 WL 4645024, at *16 (D. Utah Aug. 4, 2015).
166 Anglemyer v. Hamilton Cnty. Hosp., 848 F. Supp. 938, 939 (D. Kan. 1994).
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not been clearly established. They are entitled to qualified immunity on Ms. Crosbie’s
substantive due process claim.
II. State Law Claims (Causes of Action I, II, III)
Ms. Crosbie also asserts causes of action for violations of her liberty interest and property
interest without procedural and substantive due process under Article I, Section 7 of the Utah
Constitution.167 Article I, Section 7 states that “[n]o person shall be deprived of life, liberty or
property, without due process of law.”168 Plaintiff asserts each state constitutional claim against
USU and against Ms. Cantwell, Ms. Sabau, and Ms. McKinney individually and in their official
capacities.
A. Sovereign Immunity
Defendants argue that the doctrine of sovereign immunity precludes Plaintiff’s claims
against USU and the defendants in their official capacities because the state of Utah has not
waived its immunity for constitutional claims.169 Ms. Crosbie responds that, except for the Utah
Takings Clause, Utah courts have never directly addressed the issue of sovereign immunity from
constitutional claims.170 She contends that prior Utah Supreme Court cases nevertheless indicate
that “the State cannot be immune from suit for constitutional due process claims.”171
The Utah Supreme Court has stated that, “[i]n the absence of applicable constitutional or
statutory authority, Utah courts employ the common law” to determine when damages may be
available for a constitutional violation.172 Utah’s sovereign immunity under common law was
167 Amended Compl. ¶¶ 134–65.
168 Utah Const. art. I, § 7.
169 MTD 19.
170 Opp’n 7.
171 Id. at 8.
172 Spackman ex rel. Spackman v. Bd. of Educ. of Box Elder Cnty. Sch. Dist., 2000 UT 87, ¶ 20, 16 P.3d 533, 537.
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described less than twenty years after the Utah Constitution was adopted when the Utah Supreme
Court explained that “in the absence of either express constitutional or statutory authority an
action against a sovereign state cannot be maintained. The doctrine is elementary and of
universal application, and so far as we are aware there is not a single authority to the
contrary.”173 The Utah Supreme Court has repeatedly relied on this principle, reaffirming that
“[s]overeign immunity was a settled feature of the common law when Utah became a state and
adopted its constitution.”174
In Colman v. Utah State Land Board, the Utah Supreme Court addressed the issue of
sovereign immunity in the context of Article I, Section 22, the Takings Clause, of the Utah
Constitution.175 There, the Court held that the State is not immune to suit under the Takings
Clause.176 The Court explained:
The people of Utah established the Utah Constitution as a limitation on the power
of government. It can hardly be maintained that the doctrine of sovereign immunity,
alone among all doctrines, is outside of the limitations the people established.177
Plaintiff argues that this rationale should be applied to allow suits against the State under the Due
Process Clause.178 But Colman also discusses how the Takings Clause is unique in that it
expressly grants a right to damages in the form of “just compensation,”179 ultimately concluding
173 Wilkinson v. State, 42 Utah 483, 134 P. 626, 630 (1913).
174 Tiede v. State, 915 P.2d 500, 504 (Utah 1996); see also See Davey v. Blood, No. 2:23-CV-442-AMA, 2024 WL
3728072, at *3 (D. Utah Aug. 7, 2024).
175 Colman v. Utah State Land Bd., 795 P.2d 622, 634 (Utah 1990).
176 Id. at 635.
177 Id. at 634.
178 Opp’n 7–8.
179 Colman, 795 P.2d at 631–32.
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that “article I, section 22 needs no legislation to activate it; it is mandatory and obligatory as it
is.”180
In Spackman ex rel. Spackman v. Board of Education of Box Elder County School
District, the Utah Supreme Court noted that, “sovereign immunity does not apply to
constitutional takings claims.”181 It also explained that “[e]xcept for the Takings Clause, the Utah
Constitution does not expressly provide damage remedies for constitutional violations.”182 The
Court then established a test for determining when a court may award damages for violations of
self-executing constitutional provisions under the common law.183
The Spackman test only addresses “the potential liability of individual municipal
employees” for violations of the Utah Constitution.184 The Utah Supreme Court later clarified
that a plaintiff may bring a suit against a municipality for damages stemming from constitutional
violations as well.185 However, the Utah Supreme Court has not said that a plaintiff can bring a
suit for damages against the State itself for the violation of any state constitutional provision
except the Takings Clause. As noted earlier, Utah common law has always recognized that
sovereign immunity prevents actions against the state without its consent.186 Because no statute,
constitutional provision, or Utah Supreme Court case has ever recognized the waiver of this
immunity with regard to constitutional claims against the state except under the Takings Clause,
the State is immune from Plaintiff’s claims under the Utah Constitution.
180 Id. at 635.
181 Spackman ex rel. Spackman v. Bd. of Educ. of Box Elder Cnty. Sch. Dist., 2000 UT 87, ¶ 20, 16 P.3d 533, 537
n.7.
182 Id.
183 Id. at 537–39.
184 Kuchcinski v. Box Elder Cnty., 2019 UT 21, ¶ 25, 450 P.3d 1056, 1065.
185 Id.
186 See Tiede v. State, 915 P.2d 500, 504 (Utah 1996).
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Other judges in this district have reached the same conclusion. In Davey v. Blood, the
court concluded that, although plaintiffs may seek “money damages against municipalities and
individual state employees and officers for their violations of Utah’s Constitution . . . the State of
Utah has not waived and still retains its sovereign immunity for almost all state constitutional
violations.”187 The court then dismissed the plaintiffs’ claims against the State under the
Unnecessary Rigor Clause of the Utah Constitution as barred by sovereign immunity.188
Similarly, the court in P.J. ex rel. Jensen v. Utah held that sovereign immunity barred the
plaintiffs’ Utah constitutional claims against the State, including a claim under the Due Process
Clause.189 There is no reason to hold differently in this case. Ms. Crosbie’s Utah Constitution
claims for damages against USU and the Administration Defendants in their official capacities
are barred by sovereign immunity.
B. Spackman Analysis
Plaintiff also asserts her Utah due process claims against Ms. Cantwell, Ms. Sabau, and
Ms. McKinney as individuals.190 As noted earlier, in Spackman, the Utah Supreme Court
established a test for determining whether money damages are available against government
employees for constitutional violations.191 The Court found that the Due Process Clause of the
Utah Constitution is self-executing.192 Therefore, to show that monetary damages are available
for a Due Process Clause violation, a plaintiff must establish that (1) “he or she suffered a
‘flagrant’ violation of his or her constitutional rights,” (2) “existing remedies do not redress his
187 Davey v. Blood, No. 2:23-CV-442-AMA, 2024 WL 3728072, at *6 (D. Utah Aug. 7, 2024).
188 Id. at *7.
189 P.J. ex rel. Jensen v. Utah, No. 2:05CV00739 PGC, 2006 WL 1702585, at *2 (D. Utah June 16, 2006).
190 Amended Compl. ¶¶ 134–65.
191 Spackman ex rel. Spackman v. Bd. of Educ. of Box Elder Cnty. Sch. Dist., 2000 UT 87, ¶ 20, 16 P.3d 533, 537.
192 Id.
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or her injuries,” and (3) “equitable relief, such as an injunction, was and is wholly inadequate to
protect the plaintiff’s rights or redress his or her injuries.”193 Defendants argue that Ms. Crosbie
cannot satisfy the first two prongs of the Spackman test.194 They also contend that the Amended
Complaint does not plead sufficient non-conclusory factual allegations to support the Utah
Constitutional claims against each individual defendant.195
To establish that she suffered a flagrant violation of her state constitutional rights, a
plaintiff must show that the defendant “violated ‘clearly established’ constitutional rights ‘of
which a reasonable person would have known.’”196 “To be considered clearly established, ‘[t]he
contours of the right must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right.’”197 This standard mirrors the federal “clearly established”
requirement for overcoming qualified immunity in § 1983 claims.198
The second element of the Spackman test requires courts to “defer to relevant legislative
determinations of appropriate remedies” when they exist.199 Courts have dismissed state
constitutional claims for failure to meet the second Spackman element when the plaintiff also has
overlapping § 1983 claims that address the same conduct in the context of the federal
Constitution.200 However, courts generally allow both § 1983 and state constitutional claims to
193 Id. at 538–39.
194 MTD 22.
195 Id. at 23.
196 Spackman, 16 P.3d at 538 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
197 Id. (quoting Anderson v. Creighton, 483 U.S. 635, 639–40 (1987)).
198 See id. (using language from U.S. Supreme Court cases about qualified immunity).
199 Id. at 539.
200 See Nielson v. City of S. Salt Lake, No. 2:06-CV-335-CW, 2009 WL 3562081, at *9 (D. Utah Oct. 22, 2009)
(“the second element requires Nielson to show that existing remedies under § 1983 do not redress her injuries.”);
Cavanaugh v. Woods Cross City, No. 1:08-CV-32-TC-BCW, 2009 WL 4981591, at *6 (D. Utah Dec. 14, 2009),
aff’d, 625 F.3d 661 (10th Cir. 2010) (“Plaintiffs cannot state a claim for damages under the Utah Constitution
because their injuries can be fully redressed through their 42 U.S.C. § 1983 claim.”).
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proceed at the motion to dismiss stage.201 This is because the court has “limited information
about any overlap between a plaintiff’s state and federal claims,” so it would be “premature to
determine which claim might be meritorious.”202
These essential elements of the Spackman test must be alleged in the complaint itself.203
It is insufficient for a plaintiff to merely allege that a state constitutional violation occurred
without also plausibly alleging that the violation was flagrant, that alternative remedies do not
address it, and that equitable relief is inadequate.204 “When these elements are not set forth in the
complaint, dismissal for failure to state a claim is proper.”205
1. Liberty Interest (Cause of Action I)
Ms. Crosbie’s first claim under the Utah Due Process Clause is that she was deprived of
her liberty interest to “pursue her chosen occupation” and “avoid stigma and reputational harm
that forecloses future employment opportunities.”206 The claim does not include any allegations
explaining how the individual defendants’ conduct violated this right, only generally stating that
“the Defendants’ conduct in relation to the termination of Ms. Crosbie . . . caused significant
reputational harm.”207 However, even assuming that Ms. Crosbie’s state constitution liberty
claim rests on the same “stigmatic” statements alleged in her federal liberty interest claim, it fails
under the Spackman test.
201 Finlinson v. Millard Cnty., 455 F. Supp. 3d 1232, 1244 (D. Utah 2020).
202 Id.; but see Hoggan v. Wasatch Cnty., No. 2:10CV01204-DS, 2011 WL 3240510, at *2 (D. Utah July 28, 2011)
(Dismissing state constitutional claims on a motion for judgment on the pleadings because overlapping § 1983
claims also exist).
203 Am. W. Bank Members, L.C. v. State, 2014 UT 49, ¶ 40, 342 P.3d 224, 237.
204 Id. (“To survive a rule 12(b)(6) motion, the plaintiff also must allege that the violation was ‘flagrant,’ that
alternative remedies would not redress the plaintiff’s damages, and that equitable relief was ‘wholly inadequate.’”).
205 Hansing v. Utah Dep’t of Nat. Res., No. 2:24-CV-480 DBP, 2025 WL 1676532, at *8 (D. Utah June 13, 2025).
206 Amended Compl. ¶ 135.
207 Id. ¶ 136.
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The Utah Supreme Court has noted that “[t]he due process clause of the state constitution
is substantially the same as the Fifth and Fourteenth amendments to the Federal Constitution.”208
Therefore, “decisions of the Supreme Court of the United States on the due process clauses of
the Federal Constitution are highly persuasive as to the application of that clause of [the Utah]
constitution”209 In other words, an analysis of questions concerning procedural due process under
both the Utah and federal constitutions is “substantially the same.”210 In the context of the
“flagrant violation” prong of the Spackman test, courts have held that a due process violation that
is “clearly established” under the federal Constitution for purposes of qualified immunity is also
“flagrant” under the Utah Constitution.211
Here, Ms. Crosbie does not provide any Utah precedent to show that the Administration
Defendants committed a flagrant violation of her State constitutional rights. Instead, she refers
the court to her federal § 1983 arguments that Defendants violated her “clearly established” due
process rights.212 As the court already determined, Ms. Crosbie has not shown that any of the
statements attributed to Ms. Cantwell or Ms. Sabau violated her clearly established liberty
interest rights. Ms. Crosbie also did not plead facts showing that Ms. McKinney took any actions
that would violate her liberty interest. Therefore, she has likewise failed to show that she
suffered a flagrant violation under the Spackman test. The court need not address the remaining
Spackman elements. The Amended Complaint does not state a claim for damages against Ms.
208 Untermyer v. State Tax Comm’n, 102 Utah 214, 129 P.2d 881, 885 (1942).
209 Id.
210 State v. Angilau, 2011 UT 3, ¶ 13, 245 P.3d 745, 750.
211 Am. W. Bank Members v. Utah, No. 2:16–CV–326–CW–EJF, 2018 WL 734401, at *16 (D. Utah Feb. 6, 2018).
212 Opp’n 10.
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Cantwell, Ms. Sabau, or Ms. McKinney for deprivation of a liberty interest without due process
under the Utah Constitution.
2. Procedural Due Process (Cause of Action II)
Ms. Crosbie next claims that she was deprived of her property interest in continued
employment without procedural due process.213 She alleges that Defendants violated her due
process by terminating her without pretermination notice and opportunity to respond and without
a sufficient post-termination hearing.214 Defendants argue that she does not support her claim
with factual allegations connecting the individual defendants to the alleged violations and that
she fails to establish that any violations were flagrant.215
Once again, the analysis for Ms. Crosbie’s state procedural due process claim overlaps
substantially with the analysis of her § 1983 procedural due process claim. As previously
explained, the Amended Complaint fails to allege facts to plausibly suggest that the alleged post-
termination due process violations are attributable to Ms. Cantwell, Ms. Sabau, or Ms.
McKinney. Therefore, Ms. Crosbie does not state a claim for a procedural due process violation
of the Utah Constitution against these individual defendants for any post-termination
proceedings.
However, Ms. Crosbie did sufficiently plead that Ms. Cantwell and Ms. Sabau violated a
clearly established right when they terminated her without any notice or opportunity to respond.
Because Ms. Cantwell and Ms. Sabau are not entitled to qualified immunity for their
pretermination actions, the court also concludes that Ms. Crosbie has alleged a flagrant violation
213 Amended Compl. ¶ 145.
214 Id. ¶¶ 148–150.
215 MTD 23–24.
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under the Utah Constitution for those same actions.216 Furthermore, Ms. Crosbie expressly pled
sufficient facts that Defendants committed a flagrant violation of the clearly established
constitutional right to due process. Thus, the Amended Complaint not only alleges that a
constitutional violation occurred, it also alleges that the violation was flagrant. This satisfies the
first prong of the Spackman test.
Having determined that Ms. Crosbie’s Art. I § 7 claim for violation of her pretermination
procedural due process satisfies the first Spackman element, the court turns to the second
element.217 Defendants argue that Ms. Crosbie fails to set forth this essential element in her
Amended Complaint and that her § 1983 claims already adequately redress her alleged
injuries.218 As was already discussed, courts generally allow both state constitutional and § 1983
claims to proceed at the motion to dismiss stage because there is limited information about how
much they might overlap.219 Plaintiff argues that she has satisfied the second Spackman element
based on this rationale.220 Because the court lacks sufficient information to know at this stage
whether Ms. Crosbie’s § 1983 claims will fully redress her injuries, the inclusion of § 1983
claims does not defeat the second Spackman prong.
However, the Spackman elements must be set forth in the complaint itself.221 Though Ms.
Crosbie argues in her Opposition that other remedies do not redress her injuries, no such
allegations are pled in her Amended Complaint. The second cause of action and the Amended
216 See Am. W. Bank Members v. Utah, No. 2:16–CV–326–CW–EJF, 2018 WL 734401, at *16 (D. Utah Feb. 6,
2018).
217 Spackman, 16 P.3d at 538–39.
218 MTD 22, 24.
219 Finlinson v. Millard Cnty., 455 F. Supp. 3d 1232, 1244 (D. Utah 2020).
220 Opp’n 10–11.
221 Hansing v. Utah Dep’t of Nat. Res., No. 2:24-CV-480 DBP, 2025 WL 1676532, at *8 (D. Utah June 13, 2025).
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Complaint generally are devoid of any allegations or facts showing that only damages under the
Utah Constitution can redress her alleged injuries.222 Ms. Crosbie does not identify in her
Opposition any allegations that would satisfy this pleading requirement.223 As a result, the
Amended Complaint does not state a claim for damages against Ms. Cantwell, Ms. Sabau, or Ms.
McKinney for deprivation of procedural due process under the Utah Constitution because it fails
to set forth all the elements of the Spackman test.
3. Substantive Due Process (Cause of Action III)
Next, Ms. Crosbie claims that she was deprived of her property interest in continued
employment without substantive due process.224 As before, Plaintiff provides no additional Utah
precedent to support a finding that the contours of the right were clearly established, instead
relying on her federal § 1983 arguments.225 Because the court already determined that Ms.
Crosbie has not shown a clearly established substantive due process right, this claim also fails
under the first prong of the Spackman test. Thus, all three of Ms. Crosbie’s due process claims
for damages under the Utah Constitution against the individual defendants fail because the
Complaint does not sufficiently show or allege the Spackman elements.
C. Equitable Relief
Finally, Plaintiff argues that even if she has not sufficiently alleged the Spackman
elements to maintain an action for damages against the individual defendants, her claims survive
because she also requests equitable relief.226 Ms. Crosbie requests reinstatement as a remedy for
222 See generally Amended Compl.
223 See generally Opp’n.
224 Amended Compl. ¶ 145.
225 Opp’n 10.
226 Opp’n 9.
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each of her Utah constitutional claims.227 The court has already addressed very similar equitable
relief in the context of Ms. Crosbie’s § 1983 claims. As previously noted, Ms. Cantwell and Ms.
Sabau had no official positions with USU at the time the lawsuit was commenced, and Rule
25(d) only provides for substitution of parties when an official leaves office while a suit is
pending, not before.228 And because Ms. Cantwell and Ms. Sabau no longer have positions at
USU, they have no authority to reinstate Ms. Crosbie in their individual capacities even if
ordered to do so by the court.
As to Ms. McKinney, the Amended Complaint never alleges facts showing that she fired
Ms. Crosbie or had authority to do so.229 It only states that Ms. McKinney advised Ms. Sabau’s
supervisors during the termination decision.230 There is no indication that Ms. McKinney, as
USU’s general counsel, has either official or individual authority to reinstate Ms. Crosbie to her
position. Because Plaintiff’s requested equitable relief cannot be granted by any of the individual
defendants, her Utah constitutional claims cannot survive based on it alone.
III. Breach of Contract (Cause of Action VII)
In her Amended Complaint, Ms. Crosbie states that, during her employment, USU and its
employees were jointly bound by USU’s Human Resources Policies.231 Ms. Crosbie alleges that
these policy provisions created an implied-in-fact contract between her and USU.232 The relevant
227 Amended Compl. ¶¶ 141, 155, 164.
228 Fed. R. Civ. P. 25(d); see also Mire v. Bd. of Supervisors of Louisiana State Univ., No. CV 15-6965, 2017 WL
785439, at *4 (E.D. La. Mar. 1, 2017).
229 Amended Compl. ¶ 77.
230 Id.
231 Id. ¶ 28.
232 Id. ¶ 196.
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provisions are referenced in the Amended Complaint, central to several of Plaintiff’s claims, and
undisputed by the parties, so the court will consider them.233
Ms. Crosbie alleges that USU violated (1) Policy 305 by retaliating against her for
making a Title IX report, (2) Policies 311 and 399 by dismissing her without progressive
discipline and without letting her resign in lieu of termination, and (3) Policy 321 by retaliating
against her for reporting Ms. Sabau’s abusive conduct and not investigating that conduct.234
Defendants respond by arguing that these provisions do not constitute an implied contract and
that, even if they do, the Amended Complaint does not allege facts to plausibly show that USU
breached their contractual terms.235
A. Existence of Implied Contractual Provision
In Utah, “generally, employment of public employees is ‘governed by statute, not
contract.’”236 However, in some cases an implied contract may arise when “‘the government
voluntarily undertakes an additional duty’ beyond its normal obligation to the employee.”237 “An
implied contract may arise from a variety of sources including personnel policies or provisions of
an employment manual.”238 To qualify, a policy must include “a manifestation of the employer’s
intent that is communicated to the employee and sufficiently definite to operate as a contract
provision.”239 The existence of implied contractual provisions is generally a question of fact.240
233 See Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).
234 Amended Compl. ¶¶ 208–10.
235 Reply 25.
236 Canfield v. Layton City, 2005 UT 60, ¶ 16, 122 P.3d 622, 626 (quoting Buckner v. Kennard, 2004 UT 78, ¶ 32,
99 P.3d 842).
237 Id. (quoting Piacitelli v. S. Utah State Coll., 636 P.2d 1063, 1066 (Utah 1981)).
238 Cabaness v. Thomas, 2010 UT 23, ¶ 55, 232 P.3d 486, 502, abrogated on other grounds by Gregory & Swapp,
PLLC v. Kranendonk, 2018 UT 36, ¶ 55, 424 P.3d 897.
239 Id. (quoting Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1002 (Utah 1991)).
240 Id.
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Multiple policies referenced in the Amended Complaint include language that could
plausibly be construed as undertaking “additional duties beyond its normal obligations to its
employees” by making definite promises on which USU employees “should reasonably be able
to rely.”241 For example, Policy 311 states that “[u]nacceptable work performance . . . should be
addressed through progressive performance management” before listing the exact progressive
steps that should be taken.242 This policy also says that “[a]n employee may resign, foregoing
any rights to file a grievance, rather than face corrective action or disciplinary action.”243 Policy
321 states that if an employee reports abuse by another employee that the Office of Human
Resources “will meet with the employee to discuss their concerns or observations” and will
“initiate a review” of the situation to work toward an effective resolution.244 And Policy 399 lists
the reasons for which an employee may be dismissed.245 These policies plausibly create
obligations by which USU must abide and may therefore create implied contractual duties.
However, the Amended Complaint does not allege facts showing that Policy 305 could
plausibly create an implied contract. When a manual, handbook, or policy includes “clear and
conspicuous language disclaiming any contractual liability,”246 it cannot create an implied-in-fact
contract term.247 Policy 305 contains such a clear disclaimer when it states, “[t]his Policy, along
with all accompanying policies, procedures, and practices, is not intended to and does not create
any contractual rights.”248 At this stage, the record does not indicate that this disclaimer in Policy
241 Id.
242 Policy 311 at 2–4, ECF No. 17–2, filed Sep. 26, 2025.
243 Id. at 3.
244 Policy 321 at 3, ECF No. 17–3, filed Sep. 26, 2025.
245 Policy 399 at 3, ECF No. 17-7, filed Sep. 26, 2025.
246 Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1003 (Utah 1991).
247 Branham v. Delta Airlines, 184 F. Supp. 3d 1299, 1315 (D. Utah 2016), aff'd, 678 F. App’x 702 (10th Cir. 2017).
248 Policy 305 at 2, ECF No. 17-1, filed Sep. 26, 2025.
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305, an interim policy, would apply to the other policies the court has discussed. However, it
certainly applies to prevent Policy 305 from forming an implied contractual provision.
B. Contractual Violations
Defendants argue that, even if the Amended Complaint plausibly alleges that some of the
USU policies create implied contractual provisions, Plaintiff has still not alleged that those
provisions were breached.249 First, Ms. Crosbie claims that USU violated Policy 305 by
terminating her in retaliation for filing a Title IX report.250 However, as noted above, Policy 305
specifically states that it does not create any contractual rights.251 Even if Policy 305 did create
contractual rights, Ms. Crosbie does not allege any facts showing that she was retaliated against
for her involvement in making a Title IX report.
Second, Ms. Crosbie alleges that USU violated Policy 311 by terminating her without
any progressive discipline or opportunity to improve her performance.252 The relevant policy
provision states:
Disciplinary action is typically imposed on a progressive basis moving from verbal
to written to a final action, including termination. Progressive steps (see 2.3.1) may
be skipped or repeated depending on the frequency, severity, or nature of the
unacceptable work performance. In circumstances of serious misconduct,
suspension without pay or immediate termination without notice may be
appropriate.253
The Policy then outlines three progressive steps for discipline from verbal warning to a written
warning to termination.254 Defendants argue that “[t]here was no implied contract that Plaintiff’s
249 Reply 25.
250 Amended Compl. ¶ 208
251 Policy 305 at 2.
252 Amended Compl. ¶ 209.
253 Policy 311 at 3.
254 Id.
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employment would not be terminated without notice and opportunity to improve her
performance” because Policy 311 allows for immediate termination in cases of serious
misconduct.255 They contend that Ms. Crosbie was terminated for serious misconduct and so was
not entitled to any progressive discipline.256
The Amended Complaint includes sufficient factual allegations to show that Policy 311
may have been violated. While it does allow for immediate termination in the case of serious
misconduct, Ms. Crosbie has plausibly alleged that her misconduct was not serious. She states
that she was fired for inadvertently withholding information that she openly disclosed as soon as
it came up.257 She also states that the review committee itself concluded that her termination was
“unwarranted,” her actions were neither intentional or malicious, and that she was merely caught
up in “another party’s action, and ineffective reporting systems.”258 Ms. Crosbie has plausibly
pled that her conduct was not serious and that her immediate termination violated the progressive
discipline provision of Policy 311.
Third, Ms. Crosbie claims that USU violated another provision of Policy 311 that states,
“[a]n employee may resign, foregoing any rights to file a grievance, rather than face corrective
action or disciplinary action.”259 She argues that Defendants effectively denied her the right to
resign by hastily terminating her and failing to explain her rights.260 However, under the plain
language of this provision, Ms. Crosbie waived her right to resign when she filed her grievances.
255 MTD 42.
256 Reply 26.
257 Amended Compl. ¶¶ 61, 84.
258 Id. ¶¶ 117–19.
259 Amended Compl. ¶ 209; Policy 305 at 4.
260 Opp’n 26.
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The Amended Complaint does not allege facts showing that USU breached this provision
because Ms. Crosbie had no right to resign once she appealed her termination.
Fourth, Ms. Crosbie alleges that USU violated Policy 321 by retaliating against her for
reporting Ms. Sabau’s abuse and by failing to adequately investigate her allegations.261 The
relevant portion of this policy states that an employee who is subjected to abusive behavior
should first discuss their concerns with their immediate supervisor.262 Alternatively, the policy
provides:
If an employee does not feel comfortable contacting their immediate supervisor,
the employee may contact another level of management within their reporting chain
or the Office of Human Resources, who will meet with the employee to discuss
their concerns or observations. The Office of Human Resources will then initiate a
review and collaborate with the appropriate leadership and employee(s) to initiate
an effective resolution.
Ms. Crosbie argues that she reported Ms. Sabau by talking to HR to corroborate Mr. Bovee’s
complaints but Ms. Sabau continued to mistreat her.263
Plaintiff does not explain how USU’s alleged failure to investigate is related to her
termination. As already discussed, the Amended Complaint does not allege facts sufficient to
suggest that she was fired in retaliation for her report. There are no facts pled indicating that Ms.
Sabau and Ms. Cantwell even knew that Ms. Crosbie met with HR. All the facts presented in the
Amended Complaint show that Ms. Crosbie’s termination, whether justified or not, was
connected to her delay in reporting that she had seen the witness statement.
261 Amended Compl. ¶ 210.
262 Policy 321 at 3.
263 Amended Compl. ¶¶ 72–74.
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Furthermore, the Amended Complaint does not include facts showing that USU failed to
comply with Policy 321. It alleges that Ms. Sabau continued to mistreat Ms. Crosbie, but Policy
321 only promised that HR would “initiate a review” based on Ms. Crosbie’s report.264 There are
no facts on record showing what the HR department did or did not do after Ms. Crosbie’s
meeting. If anything, the Amended Complaint shows that HR was already in the process of
reviewing Ms. Sabau’s behavior, given that Ms. Sabau had been confronted by HR about prior
complaints.265
Several of the USU policies that underly Ms. Crosbie’s seventh cause of action could
potentially be implied contractual provisions. However, the Amended Complaint only includes
facts to plausibly allege that the progressive discipline provision of Policy 311 may have been
violated, so Ms. Crosbie’s breach of contract claim survives based on this alleged breach.
IV. Title IX Retaliation (Cause of Action VIII)
Finally, Plaintiff claims that she was discharged in retaliation for submitting a Title IX
incident report.266 “Title IX of the Education Amendments Act of 1972 . . . prohibits
discrimination ‘on the basis of sex’ in educational programs or activities receiving federal
funding.”267 It also “prohibits retaliation against individuals because they have complained of sex
discrimination.”268 Title IX retaliation claims are analyzed under the same burden-shifting
framework as Title VII claims.269 Under this framework, the plaintiff bears the initial burden of
264 Id.; see also Policy 321 at 3.
265 Amended Compl. ¶ 73.
266 Amended Compl. ¶¶ 219–20.
267 Hiatt v. Colorado Seminary, 858 F.3d 1307, 1315 (10th Cir. 2017); 20 U.S.C. § 1681(a).
268 Hiatt, 858 F.3d at 1315.
269 Pingree v. Univ. of Utah, No. 2:20-CV-00724-JNP-CMR, 2025 WL 2379251, at *16 (D. Utah Aug. 15, 2025).
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alleging facts to show that “(1) he [or she] engaged in protected opposition to discrimination, (2)
he [or she] suffered an adverse action, and (3) a causal connection exists between the two.”270
Defendants do not dispute that Ms. Crosbie engaged in protected activity by making a
Title IX report or that her termination was an adverse employment action.271 However, they
argue that the Amended Complaint contains no facts showing a causal connection between the
two.272 Plaintiff responds that reaching this conclusion would require the court to “accept USU’s
factual version of her termination: that the reason it fired Ms. Crosbie was for not coming
forward with a witness statement.”273 She contends that the Amended Complaint includes
sufficient facts to justify an inference of retaliatory motive.274
The critical inquiry for the causal connection element is “whether the plaintiff has
demonstrated that the employer’s action occurred under circumstances which give rise to an
inference of unlawful discrimination.”275 Factors to consider can include the employer’s
statements to or about the employee and the temporal proximity between the protected action and
the adverse employment decision.276 In this case, the Title IX report was submitted over a year
before Ms. Crosbie was terminated, so the temporal proximity between the two creates no
inference of retaliation.277 Accordingly, the Amended Complaint must allege some other facts
270 Id. (citing the Title VII standard in O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1252 (10th Cir. 2001)).
271 MTD 47.
272 Id.
273 Opp’n 27.
274 Id. at 28.
275 Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006) (quoting Garrett v. Hewlett–
Packard Co., 305 F.3d 1210, 1221 (10th Cir. 2002) in the context of a FMLA retaliation claim).
276 See Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1092 (10th Cir. 2007).
277 Amended Compl. ¶¶ 34–35, 77; see Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (three months
between protected activity and an adverse action is too long to establish causation).
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that could give rise to the inference that Ms. Crosbie was fired because Mr. Olsen submitted a
Title IX report on her behalf in April 2023.
The Amended Complaint states that “USU took adverse action against Ms. Crosbie in
direct response to her protected [Title IX reporting] activity,”278 but no facts are alleged to
support this conclusory assertion. The termination letter referenced in the Amended Complaint
states that Ms. Crosbie was terminated for her failure to comply with Policy 340 by not reporting
relevant information about the witness statement.279 Plaintiff herself alleges that “USU
terminated Ms. Crosbie because she disclosed the existence of the witness statement when USU
(through Husch Blackwell) finally interviewed her about the IR rather than when she was first
shown the statement.”280 There are no facts in the Amended Complaint that could plausibly give
rise to an inference that Ms. Crosbie was terminated for making a report rather than for belatedly
disclosing the existence of the witness statement.
To the extent Ms. Crosbie argues that her retaliation claim is based on her participation in
the investigation and attempts to connect it to her disclosure of the witness statement,281 such a
claim misinterprets the purpose of a Title IX retaliation claim. If an employee who has a duty to
report Title IX violations is terminated for delaying their report or making a report that omits
important information, it is technically true that the termination is “causally connected” to the
report. But the purpose of allowing Title IX retaliation claims is to promote the reporting of
discriminatory practices by providing protection against retaliation for coming forward against a
278 Amended Compl. ¶ 218.
279 Id. ¶¶ 81–83.
280 Id. ¶ 84.
281 See Opp’n 28.
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co-worker, supervisor, or employer.282 This purpose would be hindered if retaliation claims also
protected employees from being disciplined for deficiencies in their required reports rather than
for making the reports themselves.
Here, nothing in Ms. Crosbie’s Amended Complaint permits an inference that she was
terminated for making her Title IX report rather than for failing to report the existence of the
witness statement when she first learned of it. Thus, she fails to state a claim for Title IX
retaliation.
ORDER
Defendant’s [17] Motion to Dismiss is GRANTED in part and DENIED in part.
Plaintiff’s First, Second, Third, Fourth, Sixth, and Eighth causes of action are dismissed as to all
defendants. Plaintiff’s Fifth cause of action is dismissed as to all defendants except Ms. Cantwell
and Ms. Sabau in their individual capacities.
Signed January 28, 2026.
BY THE COURT
________________________________________
David Barlow
United States District Judge
282 See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 169 (2005).
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