1 NOT DESIGNATED FOR PUBLICATION

No. 12 2,060

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TEPHEN D. G OLDMAN , Appell ant ,

v.

T HE U NIVERSITY OF K ANSAS and J EFFREY P. K RISE , Appell ees

.

MEMORANDUM OPINION

Appeal from Douglas District Court; J AMES R. M C C ABRIA , judge. Opinion filed December 23 , 2020. Affirmed.

Theodore J. Lickteig , of Lenexa, and Frederick D. Deay II , of Overland Park, for appellant.

Derek T. Teeter and Michael T. Raupp , of Husch Blackwell LLP, of Kansas City, Missouri, for appellee s

.

Before A RNOLD

- B URGER , C .J., P OWELL and G ARDNER , JJ.

P OWELL , J. : Stephen D. Goldman, a former graduate student in the School of Pharmacy at the University of Kansas, was found guilty of committing scholarly misconduct in 2010. As a result, the University placed a letter in his file for three years
and dismissed him from the Schoo l of Pharmacy , but it did not expel him from the University

. Goldman filed this lawsuit challenging the University ' s actions under the Kansas Judicial Review Act (KJRA) , K.S.A. 77

- 601 et seq., a s well as assert ing tort and2 statutory causes of action agains t the University and Dr. Jeffrey Krise, his advisor and the complainant in the scholarly misconduct action (collectively "Defendants"). In two separate rulings, the district court denied relief under the KJRA and granted summary judgment on his other claims in t he Defendant s ' favor. Goldman now appeals, raising

num erous points of error. After a thorough review of the record, and for reasons more fully explained below, we affirm the district court.

F ACT UAL AND P ROCEDURAL B ACKGROUND

The facts from the agency hearing are derived from the district court ' s memorandum decision on Goldman ' s KJRA claims.

"Findings of Fact

"Stephen Goldman (petitioner) was a graduate student in the School of Pharmacy at the University of Kansas. Dr. Jeffrey Krise is a faculty member in the Pharmaceu tical Chemistry Department in the School of Pharmacy, and acted as Mr. Goldman ' s advisor. Mr. Goldman had been working under the supervision of Dr. Krise for more than four

years. The relevant facts of this case come into play when Mr. Goldman was in his f inal year of study. In May 2009, Dr. Krise requested that Mr. Goldman perform a seri es of experiments, with the intent to publish the results. Over the course of roughly seven months, Mr. Goldman met weekly with Dr. Krise and the other members of the lab t o discuss lab results. Dr. Krise reported that Mr. Goldman presented information in the weekly lab meetings that seemed to confirm the group ' s initial hypothesis.

"In December 2009, in preparation for his manuscript outlining his lab ' s results,
Dr. Krise asked Mr. Goldman to send him very specific data. Dr. Krise asked for all primary (i.e. raw) data with regard to each experiment Mr. Goldman had completed. The experiments fell into five separate categories. Two categories dealt with mouse cells, two
othe rs dealt with human cells, and the final category of experiments was separate and the
court will call it the "siRNA" category . In response to his advisor ' s request, Mr. Goldman sent Dr. Krise by email the results from only the experiments done on mouse cel ls (i.e.3 two categories of experiments). After receiving Mr. Goldman ' s email message, Dr. Krise met with him in person and explained he needed the data f ro m the human cells and the SiRNA experiments as well. Mr. Goldman sent Dr. Krise a second email message containing an attachment that appeared to Dr. Krise to contain the human cell data. Dr.
Krise based his belief that the data contained in the attachment was the human cell experiment data he requested on the labeling contained in the document. The belief was
also bolstered by the fact that he specifically asked Goldman for that data in person a few days prior to receiving the email message.

"Dr. Krise looked through Mr. Goldman ' s lab notebook that was always present in the lab to confirm the results Mr. Goldman emailed. After evaluating Mr. Goldman ' s lab notebook, Dr. Krise believed that Mr. Goldman had made misrepresentations about
the data at la b meetings for the previous seven months. Dr. Krise also believed that Mr. Goldman had sent fabricated or misleading data in the second email that was supposed to
contain human cell data. In mid

- January, Dr. Krise met with Mr. Goldman to discuss
these issu es and Mr. Goldman subsequently sent an apologetic email, the purpose of which is now in dispute. After receiving Mr. Gold m an ' s apologetic email, Dr. Krise initiated scholarly misconduct allegations against Mr. Goldman. The University
conducted an internal misconduct procedure after which it dismissed Mr. Goldman from the School of Pharmacy.

"Timeline of University Review Process

"Dr. Krise completed the School of Pharmacy Student Misconduct form on February 17, 2010. Next, the Dean of the School of Phar macy sent a letter to Vice
Chancellor of Research & Graduate Studies , Steve Warren, with copies to Mr. Goldman
and Dr. Krise. Vice Chancellor Warren asked Dr. Robert Hanzlik to perform an Inquiry into the allegations, as required by Section 2 of Article IX of the University Senate Rules
and Regulations (USRRs). After reviewing material s from the parties , including narrative statements and the lab notebook, and meeting with Mr. Goldman and Dr. Krise, Dr.
Hanzlik reported his findings to Vice Chancellor Warre n in a letter dated May 19 th . Dr.
Hanzlik recommended that a more thorough investigation be completed, subject to
S ection 3 of Article IX of the US R Rs. Mr. Goldman received a copy of Dr. Han z lik ' s Inquiry report on June 2nd. By July 9th the University had appointed an Investigative4 Committee ("Committee") and notified Mr. Goldman and Dr. Krise of the composition of
the Committee. The Committee was comprised of seven individuals, five of whom were

v oting members. Dr. Krise and Mr. Goldman each nominated three individuals, and one person from each of their lists was chosen to serve on the Committee. The Committee held its hearings in mid

- October and issued a draft report on October 28th. Its final rep ort was issued to Vice Chancellor Warren on December 21st. The Investigative Committee found that Mr. Goldman had committed scholarly misconduct and recommended that 1) a letter be placed in Mr. Goldman ' s file for three years, and 2) the School of Pharmacy and Department of Pharmaceutical Chemistry make every effort to work with Mr. Goldman to enable him to complete his Ph.D. research in a timely manner. The Committee noted several mitigating circumstances to explain their recommendation.

"Under the Unive rsity rules, the Vice Chancellor finally determines the sanctions to be imposed for scholarly misconduct. U.S.R.R. 9.4.1

. Vice Chancellor Warren issued his final determination December 22nd. In his report, Vice Chancellor Warren agreed that
Mr. Goldman had committed scholarly misconduct, but chose to impose different sanctions than the Investigative Committee. The new sanctions included the letter in Mr.
Goldman ' s file for three years, and Mr. Goldman ' s dismissal from the School of Pharmacy. Vice Chancellor Warren noted that Mr. Goldman was not expelled and could petition the School of Pharmacy to seek reinstatement, or admission into another department or school within the University. The Vice Chancell or ' s report represented a final agency action by the University. The sanctions were effective on January 7, 2011,
after the Senate Executive Committee found no reason to amend the Vice Chancellor ' s ruling. Mr. Goldman appealed the Vice Chancellor ' s sanctio ns to the University Judicial Board, as permitted under USRR 9.4.7. The Judicial Board concluded that the sanction of
dismissal was ' substantially disproportionate ' to the severity of the misconduct identified.
The Judicial Board issued its recommendation to the Chancellor , which more closely mirrored the Investigative Committee ' s recommended sanctions than they did the Vice
Chancellor ' s sanctions . On June 1st, 2011, the Chancellor issued her decision accepting
Vice Chancellor Warren ' s imposed sanctions."

On April 5, 2010, Goldman sought judicial review of the University ' s decision in
the district court. Over a year later, o n September 2, 2011 , Goldman amended his petition5 by adding tort and statutory claims against the University and Krise. In his amended petition, Goldman claimed: (1) T he determination of scholarly misconduct was not supported by substantial evidence; (2) the determination was unreasonable, arbitrary, or capriciou s; (3) the Investigati ve Committee (Committee) failed to follow prescribed procedure; (4) one member of the Committee was biased against Goldman; (5) the University tort i ously interfered with a prospective business relationship; (6) the University breached its contract with Goldman ; and (7) Krise violated Goldman ' s constitutional right to due process.

On January 5, 2015, following many continuances, the district court issued a
memorandum decision denying all of Goldman ' s KJRA claims. The district court fo und the Committee heard testimony and evidence and possessed substantial evidence to find Goldman committed scholarly misconduct. Although it questioned Vice Chancellor Steve
Warren ' s reasons for increasing the sanctions over what the Committee had propose d , it
noted the Vice Chancellor and Chancellor Bernadette Gray

- Little made their decision
within the proper legal standard, so the decision was not unreasonable , arbitrary, or capricious. The district court further found the University followed all its procedures and
Goldman was aware of the allegations against him and was able to respond to them. Finally, the district court found there was no support for the claim that Thomas
Prisinzano

— a C ommittee member who had coauthor ed an unrelated academic paper with
Krise

— had an improper conflict of interest or bias against Goldman rendering the committee member unable to hear the complaint

.

Goldman appealed the district court ' s decision , and another panel of our court dismissed the appeal for lack of jurisdict ion, holding that Goldman ' s remaining tort and statutory claims for relief had not been decided yet

. Goldman v. University of Kansas , 52 Kan. App. 2d 222, 231, 365 P.3d 435 (2015). A mandate was issued, and the case
returned to the district court.6 O n February 14, 2019, before the district court, the Defendants sought summary judgment on Goldman ' s three remaining claims

. The district court issued a written memorandum decision grant ing summary judgment in favor of the Defendants on all
three claims. The district court found Goldman had not allege d malice on the part of the Chancellor, a necessary element for his tortious interference claim. With respect to the
breach of contract clai m, t he district court found Goldman ' s employment was at will as a matter of law and, as such, there had been no breach of contract

. Finally, the district court found Goldman was afforded due process; Goldman failed to support his argument about
Prisinzano ' s bias with any legal authority; and Goldman was barred from bringing a claim under 42 U.S.C. § 1983 (2018) because the KJRA was the exclusive means of r elief

.

Goldman timely appeals both of the district court ' s rulings.

A NALYSIS

Before us, Goldman raise s the same seven claims he raised before the district
court. Goldman ' s seven issues are divisible into two groups

. Goldman ' s first group of
claims fall under the KJRA: (1) a lack of substantial evidence support s the University ' s decision that he engage d in scholarly misconduct ; (2) the University ' s decision was
unreasonable , arbitrary, or capricious; (3) the Committee did not follow proper procedures; and (4) the Committee was improperly constituted because it contained a
member biased against him. Goldman ' s second group of claims fall outside the KJRA and
are those in which the district court granted summary judgment in favor of the University : (1) tortious interference; (2) breach of contract; and (3) a violation of his right to due pro cess and an impartial i nvestigating c ommittee under 42 U.S.C. § 1983.7 I. D ID T HE D ISTRICT C OURT E RR B Y F INDING T HE U NIVERSITY D ID N OT V IOLATE

T HE K ANSAS J UDICIAL R EVIEW A CT ?

Standard of Review

O ur review begins with the presumption that the University ' s action was valid

. W e

" exercise the same statutorily limited review of the agency action as does the trial court,
i.e. , as though the appeal had been made directly to the appellate court." Romkes v. University of Kansas , 49 Kan. App. 2d 871, 880, 317 P.3d 124 (2014). The KJRA is the exclusive means of judicial review of an agency ' s action . K.S.A. 77

- 606. The KJRA applies to all agencies and all proceedings for judicial review except for those spec ifically exempted

. K.S. A. 77

- 603(a). But the KJRA "creates only procedural rights and imposes only procedural duties. " K.S.A. 77

- 603( b ). The party asserting the invalidity of the agency action bears the burden to prove such action was invalid. K.S.A. 77

- 621(a)(1).

Analysis

The KJRA provides eight grounds o n which an agency ' s action may be
invalidated. K.S.A. 77

- 621(c). Goldman invokes four , namely : (1) substantial evidence
does not support the University ' s action

— K.S.A. 77

- 621(c) (7) ; (2) the University ' s action was unreasonable, arbitrary, or capricious

— K.S.A. 77

- 621(c)(8) ; (3) the University engaged in unlawful procedure or failed to follow prescribed procedure

— K.S.A. 77

- 621(c)(5); and (4) the Committee was improperly constituted

— K.S.A. 77

- 621(c)(6).

A. Did substantial evidence support the University ' s determination that Goldman committed scholarly misconduct ?

Goldman first asserts substantial evidence does not support the University ' s determination that he committed scholarly misconduct. Goldman a lleges his own8 testimony and his attorney ' s cross
- examination of Krise undermined Krise ' s testimony
and the evidence against him

. Goldman also claims the district court erred when it found
the Committee members possessed the background to understand the scientific concepts in the case. Goldman argues the district court essentially rubber

- stamped the Committee ' s findings because it found the C ommittee qualified and gave it an inappropriate level of
deference.

The Defendant s respond that Krise ' s testimony documented the specific ways Goldman fabricated, manipulated, and concealed data . They also argue Goldman ignores
Kris e ' s direct testimony, relying instead on particular lines of cross
- examination plucked
out of context and from Goldman ' s own testimony. The Defendant s also dispute
Goldman ' s characterization of the district court ' s description of the Committee

.

A court must grant relief under the KJRA if the agency action was based on evidence that was not substantial "when viewed in light of the record as a whole ." K.S.A.
77

- 62 1 (c)(7).

" ' [I] n light of the record as a whole ' means that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, co m piled pursuant to K.S.A. 77

- 620, and amendments thereto, cited by any party that support such finding, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witness and the agency ' s explanation of wh y the relevant evidence in the record supports its material findings of fact. In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review ."
K.S.A. 77

- 621(d).

" ' Substantial evidence is s uch legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. ' " Geer v. Eby , 309 Kan. 182, 190, 4329 P.3d 1001 (2019) ; see also Kotnour v. City of Overland Park , 43 Kan. App. 2d 833, 837,
233 P.3d 299 (2010) ( " Although [K.S.A. 77

- 621] does not define the term ' substantial evidence, ' case law has long stated that it is such evidence as a reasonable person might accept as being sufficient to support a conclusion."). K.S.A

. 77

- 621(d) requires us to (1) review the evidence both supporting and detracting from the agency ' s findings; (2) examine the presiding officer ' s credibility determination s , if any; and (3) review the

agency ' s explanation as to why the evidence supports its findings. B d

. of Chero kee County Com m ' rs v. Kansas Racing & Gaming Comm ' n , 306 Kan. 298, 327, 393 P.3d 601 (2017) ; Redd v. Kansas Truck Center , 291 Kan. 176, 182, 239 P.3d 66 (2010). Even if
there i s evidence supporting the agency ' s decision, we must consider " ' whether the evidence supporting the agency ' s decision has been so undermined by cross

- examination or other evidence that it is insufficient to support the agency ' s conclusion. ' Herrera

Gallegos v. H & H Delivery Service, Inc. , 42 Kan. App. 2d 360, 363, 212 P.3d 239 (2 009)

. " Romkes , 49 Kan. App. 2d at 889.

The Committee found Goldman committed scholarly misconduct in that "(1) there was a significant departure from accepted practices of the relevant scholarly community; (2) the misconduct was committed intentionally, knowingly , or recklessly; and (3) the allegation was proven by a preponderance of the evidence." The C ommitt ee based its decision "on a belief that data presented by [Goldman] to [Krise] was altered including misrepresentation of standard error bars, mislabeling of graphs, and concealing data that did not support the hypothesis."

Goldman takes issue with each o f the Committee ' s reasons and argues substantial evidence does not support the findings. The Defendants complain Goldman cherry picks the evidence by only present ing parts of his testimony and Krise ' s cross
- examination and
ask us to reweigh the evidence a nd make credibility determinations. The Defendants are partially right. Goldman frequently measure s Kr ise ' s testimony against his own testimony or his lawyer ' s cross
- examination of Krise and argues his evidence is more credible than10 Krise ' s. We are not permitted to reweigh evidence or engage in de novo review . K.S.A.
77

- 621(d). However, Goldman also uses this evidence for an appropriate purpose

— showing he presented evidence to th e Committee that detracts from the Committee ' s finding of scholarly misconduct.

The Defendants try to argue that Goldman ' s arguments are irrelevant because Goldman sent an email to Krise before Krise filed the scholarly misconduct complaint. In
his email , Goldman stated:

"[T]here is no excuse for what I did. I didn ' t make up data but let bad data pass as good data, which is equally if not more terrible. I think I did it because I was insecure about why some cells were working and others were not when I thought that the Lobel lab could get it to work. Also I was e gotistical and should have let you know."

Significantly, t he Committee did not indicate that it relied on this email as an admission of scholarly misconduct. So, i nstead, we will focus on the three actions the Committee
stated it relied on in finding scho larly misconduct.

1. Standard Error Bars

The Committee found Goldman misrepresented the standard error bars. Krise presented bar graphs showing a 20

- fold (statistically significant) difference between the manipulated data sent to him by Goldman and the actual data found in Goldman ' s lab
notebook.

Goldman argues cross

- examination undermined Krise ' s testimony because it
showed Krise did not includ e these graphs in the original complaint , and Krise admitted he could not tell whether the raw data for the bar graphs showed statistically significant
data. But Goldman cherry picks from the cross

- examination, focus ing on whether this11 information was incl uded in the complaint, not the veracity of the data. Whether the information was included in the original complaint is not relevant to whether substantial evidence supported t he Committee ' s finding. And , while Krise did say he could not tell if
that data w as statistically significant without doing a statistical analysis on the data, Krise
also testified that , based on the data, the graph should be 20

- fold elevated.

Additionally, the complaint and Krise ' s testimony focused on the many ways Goldman misrepresented data. The data should have shown no difference between the
normal NPC1 deficient cells and the NPC2 deficient cells ; instead, the data Goldman sent
Krise showed the NPC1 deficient cells had a much higher IC50. Krise showed the Committee several graphs highlighting the difference in the data between what Goldman presented to Krise and the data in Goldman ' s lab notebook. Goldman did not attack the veracity of the evidence, only its importance or meani ng. A reasonable person could agree the graphs showing the difference in the real and manipulated data was enough to support the scholarly misconduct finding.

2. Mislabeling of Graphs

Next, the Committee found Goldman mislabeled the graphs he sent to Krise as human cell data instead of mouse cell data . Goldman argues Krise made a mistaken conclusion about the graphs because Goldman had been on vacation. T o support his argument, Goldman cites to his response to the complaint that the MEF label on the graphs w as cropped out because Krise was trying to persuade his aud ience that a mistake
was made. Goldman also takes issue with Krise ' s presentation of the nomenclature used on the graph for identifying mouse cell and human cell data. Based on his response to the complaint, Goldman argues Krise was wrong about the labels used for mouse cells and
human cells.12 First, the extensive discussion in Krise ' s original complaint of Goldman mislabeling of the graphs refutes his written response . Second, despite Goldman ' s claim
that Krise could not explain how the legend can refer to both mouse cells and human cells, Krise did so multiple time s . Goldman does not point to any evidence besides his response to the complain t . A reasonable person could find Krise ' s exp lanation of the mislabeled graphs sufficient to support a finding of scholarly misconduct.

3. Concealing Data

Third, the Committee found Goldman concealed data that did not support the experiment ' s hypothesis. Goldman gives several explanations for why he did not actually conceal any data, including that he did show Krise the data , testimony from other
students indicating the presentations we re summaries of the data not primary data , and Krise did not explain how the absence of a PowerPoint slide wa s evidence that Goldman
concealed dat a

.

Goldman ' s explanations do not contradict Krise ' s testimony about concealing data but seek to show alternative reasons for why the data was not prese nted to Krise. Although the Committee did not explicitly make a credibility finding , by finding Goldman concealed data, it impli citly found Goldman was not credible. Again, we are not permitted to reweigh the evidence or determine witness credibility. K.S. A. 77

- 621(d). Additionally , Krise presented the data in Goldman ' s lab notebook and compared th at data
to the data Goldman submitted to Krise. The Committee had the source evidence to evaluate and determined Goldman concealed data. A reasonable person could find the evidence supported the finding.

Finally, at the end of his substantial evidence argum ent , Goldman tacks on a
criticism of the district court for stating the Committee had the background to understand the scientific concept s in this case. Goldman notes the district court only describes two of13 the five voting members and seven total members of the Committee as having experience in the physical sciences . He claims: "One might have understood the District Court simply adopting the findings of the Investigating Committee." I t is not clear to us how this assertion is relevant to whether substantial evidence supported the Committee ' s findings

. Our review of the district court ' s memorandum decision indicates that it took the time to read the arguments and the extensive agency record in reaching its decision.
The district court ' s d ecision is well reasoned and clearly not a blind adoption of the finding s of the Committee.

A reasonable person could find the evidence sufficient to support the Committee ' s finding of scholarly misconduct.

B. Was the Univer sity ' s determination that Goldman committed scholarly misconduct unreasonable, arbitrary, or capricious ?

Next, Goldman argues the Committee ' s finding that he committed scholarly misconduct was unreasonable, arbitrary, or capricious. Goldman relies on his substantial evidence arguments and asserts the University ' s explanation was counter to the evidence

. The Defendants respond the decision shou ld be affirmed for the same reasons that
substantial evidence supports the Committee ' s findings.

A reviewing court shall grant relief if the agency action was unreasonable, arbitrary, or capricious. K.S.A. 77

- 621(c)(8). When an agency possesses discretion, as the Committee and the University did here, "a court must presume the validity of an agency action and cannot substitute its judgment for that of the administrative agency unless the action is unlawful, unreasonable, arbitrary, or capricious. " Lario Oil & Gas Co

. v. Kansas Corporation Comm ' n , 57 Kan. App. 2d 184, 205, 450 P.3d 353 (2019)

. " ' An agency ' s action is " arbitrary and capricious " if it is unreasonable or "without foundation in fact." '14 [Citations omitted.] " Chesbro v. Board of Douglas County Com m ' rs , 39 Kan. App. 2d 954, 970, 186 P.3d 829 (2008).

"[ A ] n action is unreasonable when it is taken without regard to the benefit or harm to all interested parties or is without foundation in fact, and that an action is arbitrary and capri ci ous if it is unreasonable or lacks a ny factual basis. Essentially, the test under
K.S.A. 77

- 621(c)(8) determines the reasonableness of the agency ' s exercise of discretion in reaching its decision based upon the agency ' s factual findings and the applicable
law. . . . [ F ] actors that may be consider ed include whether: (1) the agency relied on factors that the legislature had not intended it to consider; (2) the agency entirely failed to consider an important aspect of the problem; (3) the agency ' s explanation of its action runs counter to the evidence before it; and (4) whether the agency ' s explanation is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Courts must be careful in making this review because the legislature has given
the discretion to make the decision to an agency, not the court. [Citations omitted.] "
Wheatland Electric Cooperative v. Polansky , 46 Kan. App. 2d 746, 757

- 58, 265 P.3d 1194 (2011).

Goldman argues Wheatland ' s third factor

— the Committee ' s explanation was
counter to the evidence

— most clearly favors him. Goldman does not discuss the application of the other factors and relies on his substantial evidence argument to assert the scholarly misconduct finding was unreasonable, arbitrary, or capricious.

But substantial evidenc e does support the Committee ' s finding of scholarly
misconduct , so Goldman cannot show why the Committee ' s decision was unreasonable, arbitrary, or capricious on this basis . Goldman appear s to complain the Committee compressed its findings into a two

- page letter , but he does not point to any authority showing the decision ' s length is evidence the decision was unreasonable, arbitrary, or capricious. T he Committee ' s decision letter adequately explained its reasons supp orting its scholarly misconduct finding.15 Goldman also points out the district court criticized the University ' s rationale for imposing more serious sanctions than the Committee recommended, but it stopped short of calling the decision unreasonable, arbitrary, or capricious. Goldman claims the district

court rightfully showed the University ' s decision on sanctions to be improper but failed to take the next step and find the action unreasonable, arbitrary, or capricious

.

Goldman misinterprets the district court ' s decision. The district court did question
Warren ' s and Gr a y
- Little ' s imposition of more stringent sanctions , and a reasonable person could agree with such criticism . It is fair to ask why the University has multiple review and appellate procedures if the University can then ignore them at will. In fact, the
district court noted in its memorandum decision that t he University ' s review and appellate procedures appear ed to be "mere window dressing."

But we do not overturn an agency ' s decision when we dislike the result. As the district court noted, when a discretionary decision is made that takes the proper factors
into account and is within appropriate legal parameters , the decision " ' is protected even if
not wise. ' " Dragon v. Vanguard Industries, Inc. , 277 Kan. 776, 7 79, 89 P.3d 908 (2004)

. University policy vests the Chancellor with the sole discretion to determine sanctions. Gray

- Little ' s letter show ed she considered the Committee ' s recommendation, as well as the recommendations from Warren and the Judicial Board panel. Gray

- Little articul ated a reasonable basis for adopting the sanction recommendation from Warren.

Goldman has failed to persuade us that the scholarly misconduct finding was unreasonable, arbitrary, or capricious.16 C. Did the University fail to follow its own procedures and applicable federal
rules ?

Next, Goldman argues the University did not follow its own procedures in the investigation or hearing nor did it comply with federal regulations. Goldman a sserts the University admitted it did not contact the federal Office of R esearch Integrity (ORI) as federal regulations require. Goldman argues the University ' s initial inquiry did not find a reasonable basis that research misconduct occurred, as required by U niversity rules and federal regulations. Goldman also assert s the Def endants did not give him proper notice of all the allegations. Finally, Goldman states the district court erred in giving the University deference over its interpretation of its own rules and procedures. He also complains about the district court ' s failure to address each material fact at issue.

The De fendants respond that Goldman ' s list of material facts is irrelevant because the district court was not required to address individual ly each material fact in its ruling.
The Defendants argue the University correctly followed its procedures throughout this

case.

When an agency has eng aged in unlawful procedure or failed to follow its prescribed procedures, a court must grant relief . K.S.A. 77

- 621(c)(5).

Goldman first complains of 17 "material issues of fact" on which the district court
did not rule . Goldman bas e s this argument on K.S. A. 77

- 621(b), which states : "The court shall make a separate and distinct ruling on each material issue on which the court ' s decision is based." While it is true that t he statute requires a ruling on each issue, t he statute does not require a district court to address each fact raise d to support each issue or
each fact that may be in dispute. T he district court addressed the issues in its ruling and

group ed Goldman ' s allegations into five categories before proceeding to explain why any17 procedural error was harmless, if any errors occurred at all , because any alleged procedural errors did not harm Goldman.

For example, Goldman argues the University did not provide him with a complete list of allegations and claims Kri se added new allegations at the hearing , in violation of 42 C.F.R. § 93.309(a) (2019) . Goldman does not explain what allegations the University failed to notify him of in writing within a reasonable time. Instead, Goldman ' s brief states the record references those allegations and then cites to the Defendants ' surreply brief in opposition to Goldman ' s petition for judicial review. That part of the surreply is the
Defendants ' explanation contradict ing Goldman ' s assertion about his lack of notice . It
d oes not explain what allegations Goldman failed to get r easonable notice of, nor does it explain how Goldman was prejudiced. It is Goldman ' s duty to provide adequate support for his argument , and his failure to do so results in the argument being waived. S ee In re Adoption of T.M.M.H. , 307 Kan. 902, 912, 416 P.3d 999 (2018).

Goldman also argues the University ' s inquiry did not conclude there was a reasonable basis to find that research misconduct occurred, as required by federal regulations and the University ' s procedures. In his reply to the Defendants ' arguments , Goldman adds the University ' s rule allow s the outcomes from an inquiry to be (1) no basis for an investigation or (2) a more thorough investigation is necessary , which
Goldman believes vio lates federal regulations.

Federal regulation 42 C.F.R. § 93.307(d)(1) (2019) state s :

" A n inquiry ' s purpose is to decide if an allegation warrants an investigation. An investigation is warranted if there is

—

" (1) A reasonable basis for concluding that the allegation falls within the
definition of research misconduct

. . . . "18 University Senate Rules and Regulations (U.S.R.R.) procedure requires the person conducting the inquiry to notify the Vice Chancellor if a mor e thorough investigation is necessary. U

. S

. R

. R

. 9.2.6(b)

. From the text of the regulation and U niversity rule s , U.S. R .R. 9.2.6(b) does not violate the relevant federal regulation. N othing in the regulation prevents a university from deciding a more thorough investigation is necessary
to determine if research misconduct did occur

. Moreover, even if 42 C.F.R. § 93.307(d)(1) and U.S. R .R. 9.2.6(b) do conflict, Hanzlik ' s letter explain ed a reasonable basis existed for an investigation, even if he did not use the magic words. Hanzlik found
Goldman ' s changing of the labeling on a data set "suspicious" and "strange , " found
Goldman ' s explana tions weak , and recommended a more thorough inquiry because he believed there was evidence to support the possibility of research misconduct.

Goldman next argues the University erred because it did not contact the ORI as required by 42 C.F.R. § 93.309(a) and U.S.R. R. 9.1.4 and 9.4.6. The University admitted

to the district court that it did not contact the ORI , although it stated an official consulted
with the ORI and was told it was not necessary. More importantly, Goldman does not explain how this failure harmed him.

Without specifically finding that errors occurred, the district court found any error
to be harmless. The KJRA requires taking into account harmless error. K.S.A. 77

- 621(e).
Given that Goldman asserts his procedural rights provided by federal regulations and university rules were violated , a nonconstitutional harmless error test applies requiring us to determine if there was a reasonable probability the error affected the hearing ' s
outcome. See State v. McCullough , 293 Kan. 970, 981, 270 P.3d 1142 (2012).

The district court was correct in finding any error was harmless. The only potential

error we see is that the University failed to formally notify ORI of the investigation. But

t hat failure ha d no effect on Goldman ' s inquiry and hearing. Any other error that may have occurred was also harmless. Goldman was able to respond to Krise ' s complaint. The19 alleged new allegations were , in fact , just more detailed explanations of the allegations in the complaint. Goldman was not prejudiced by any errors the University made.

Parenthetically, we note that Goldman takes issue with the district court ' s reliance

on Tonge v. Werholtz , 279 Kan. 481, 109 P.3d 1140 (2005), and Schmidt v. Kansas Bd. of Technical Professions , 271 Kan. 206, 21 P.3d 542 (2001). Both cases explain courts should give deference to an agency ' s interpretations of its own rules and regulations. See Tonge , 279 Kan. at 484; Schmidt , 271 Kan. at 214. Goldman also asserts that In re Tax Appeal of LaFarge Midwest , 293 Kan. 1039, 271 P.3d 732 (2012), overrules both cases.
But Lafarge addressed an agenc y ' s interpretation of statutes, not its own regulations. 293
Kan. at 1044. The district court ' s citation to Tonge and Schmidt related to its finding that the University correctly followed its own procedures rather than the School of Pharmacy ' s student handbook. Goldman does not challenge that d ecision here.

Any failure of the University to follow its rules or federal regulations was
harmless.

D. Was the University ' s Committee improperly constituted because one member had a conflict of interest ?

For his final KJRA claim, Goldman alleges the Committee was improperly
constituted because committee member Prisinzano had a conflict of interest for coauthoring a paper with Krise

. S ee K.S.A. 77

- 621(c)(6). Goldman also asserts the
district court erred in fin ding Goldman waived the argument by not objecting to
Prisinzano ' s inclusion on the Committee. The Defendants reply that Goldman cites no evidence to support his assertion there was a conflict of interest and that coauthoring an unrelated paper does not create a conflict of interest. The Defendants also assert Goldman
waive d the argument because he neve r objected during the administrative process . In his reply brief, Goldman argues he could not object within the timeframe given by the Vice20 Chancellor because the paper was not published at that time. Goldman does not reply to
the merits of the Defendants ' argument

.

As to the point that Goldman waived the issue by not objecting below, the district court did not explicitly find Goldman waived his conflict of interest argument . The district court noted at the end of its finding that Goldman never objected to Prisinzano ' s participation and if Goldman was concerned about his neutrality, then an objection would have been appropriate. Goldman argues he could not object because he did not learn of
Krise ' s and Prisinzano ' s coauthorship until after the deadline the Vice Chancellor gave the parties to object. While true, Goldman had ample time after the paper was published and before his hearing to voice his objection. He did not do so until after the Judicial Board heard his appeal. But even if Goldman had not waived his objection to Prisinzano ' s participation on the Committee , there was no conflict.

Goldman principally alleges a conflict of interest existed because Krise and Prisinzano had a joint financial interest due to the expenditure of funds to prepare their

paper. However, Goldman does not provide a citation to the record to support his claim that a joint financial interest existed or even that Krise and Prisinzano spent research funds in coauthoring their paper. Goldman also notes U.S. R.R. 9.3.2 and 42 C.F.R. § 93.310(f) (2019) require members of an investigating committee to have no unresolved
financial conflicts of interest . But Goldman does not explain how there is an unresolved
conflict of interest. Moreover, even if coauthoring a paper causes a conflict of interest, the article was published before the hearing, likely ending the conflict.

In light of a lack of caselaw suggesting coauthoring an unrelated paper creates a conflict of interest, the district court was correct to observe : "Surely it is assumed that faculty in their professional capacities can collaborate on research and also review
administrative matters neutrally and fairly." There is no evidence in the record to suggest21 Prisinzano was unable to participa te in the scholarly misconduct investigation in a fair
and unbiased manner or that the Committee was improperly constituted.

II. D ID T HE D ISTRICT C OURT E RR I N G RANTING S UMMARY J UDGMENT ?

Standard of Review

" ' Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is r equired to resolve all facts and inferences which may
reasonabl y be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and when we find reasonable
mind s could differ as to the con clusions drawn from the evidence, summary judgment
must be denied. ' [Citation omitted.]" Patterson v. Cowley County , Kansas , 307 Kan. 616,
621 , 413 P.3d 432 (2018).

When considering summary judgment, a court must refrain from weighing the evidence or passing on witness credibility. Esquivel v. Watters , 286 Kan. 292, 295

- 96, 183 P.3d 847 (2008). "If the moving party shows the absence of facts to support an essential element of the nonmoving party ' s claim, that nonmoving party ' "has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case." ' [Citations omitted.] " Drouhard

- Nord h us v. Rosenquist , 301 Kan. 618, 623, 345 P.3d 281 (2015). Summary judgment sho uld be denied if a genuine
issue of material fac t exists. Siruta v. Siruta , 301 Kan. 757, 766, 348 P.3d 549 (2015). Direct evidence is not required to survive summary judgment; circumstantial evidence may be considered. 301 Kan. at 768. But speculation is " insufficient to avoid summary judgment. " Chesbro , 39 Kan. App. 2d at 960.22 Analysis

A. Did the district court properly grant summary judgment on Goldman ' s tortious interference claim because he made no showing of malice ?

Goldman argues the district court erred in granting summary judgment to
Defendants on his tortious interference claim. Specifically, Goldman argue s the district
court erred when it found Goldman had failed to produce any evidence of malice. The
Defendants respond that Goldman did not provide any evidence that Gray

- Little, the ultimate decisionmaker, acted with malice , any e vidence of a business expectancy , and
that any assertion of future employment was mere speculation.

The elements of tortious interferen ce with a prospective business advantage or relationship are:

"(1) the existence of a business relationship or expectancy with the probability of future economic benefit to the plaintiff; (2) knowledge of the relationship or expectancy by the defendant; ( 3) that, except for the conduct of the defendant, plaintiff was reasonabl y certain to have continued the relationship or realized the expectancy; (4) intentional misconduct by defendant; and (5) damages suffered by plaintiff as a direct or proximate

cause of defendant ' s misconduct.

" [ The intentional misconduct prong is ] predicated on malicious conduct by the
defendant. " Turner v. Halliburton Co. , 240 Kan. 1, 12, 722 P.2d 1106 (1986).

Malice is " ' a state of mind characterized by an intent to do a harmful act without a reasonable justification or excuse. ' PIK Civ. 3d 103.05

. " Dunn v. First Nat. Bank of
Olathe , No. 92,543, 2005 WL 1277949, at *3 (Kan. App. 2005) (unpublished opinion);
see also Turner , 240 Kan. at 8 (defining "actual malice" as " ' actual evil

- mindedness or specific intent to injure ' ").23 Generally, the question of malice is a jury question

. Burcham v. Unison Bancorp,
Inc. , 276 Kan. 393, 425, 77 P.3d 130 (2003); s ee Turner , 240 Kan. at 8, 11

- 12 (discussing
defamation action but holding same reasoning applied to tortious interference claim)

. But
if the plaintiff fails to offer any evidence of " ' an extrinsic character ' " to prove malice on the part of the defendant, there is no issue for the jury, and it is the district court ' s duty to
determine the issue. 240 Kan. at 8.

Here, the district court granted summary judgment to the Defendants based on its finding that Goldman did not allege any facts to show malice to support the intentional
misconduct element. Although Gold man provides a list of eight facts he alleges support
malice , the problem is that none of them involve the decision maker. Here, the ultimate decisionmaker was Chancellor Gray

- Little. Gray

- Little had the discretion to accept the
Committee ' s scholarly misconduct finding, and she made the final decision concerning the sanctions against Goldman. Goldman ' s tortious interference claim does not allege malice on the part of Gray

- Little , so Goldman cannot show intentional misconduct by the
Universi ty in finding him guilty of scholarly misconduct and dismissing him from the School of Pharmacy.

Perhaps recognizing this , Goldman argues Gray

- Little ' s decisions were rubber stamps for those who did show malice against Goldman. Goldman argues that, under the

cat ' s paw theory of liability, the district court should have imputed to Gray

- Little the
malicious actions of her subordinates

. The term "cat ' s paw" derives from a fable from Aesop, put into verse by La Fontaine in 1679, and injected by Jud ge Posner in 1990 into employment discrimination law. See Shager v. Upjohn Co. , 913 F.2d 398, 405 (7th Cir. 1990). In the fable, a monkey uses flattery to induce a cat to retrieve chestnuts from the fire. After the cat does so, the monkey makes off with th e chestnuts, leaving the cat with nothing but burnt paws. Staub v. Proctor Hospital , 562 U.S. 411, 415 n. 1, 131 S. Ct. 1186, 179 L. Ed. 2d 144 (2011).24 The cat ' s paw theory has been used in Title VII employment discrimination cases.
See Menaker v. Hofstra University , 935 F.3d 20, 37 (2d Cir. 2019). A tradition al Title
VII case utilizes a burden

- shifting framework where the plaintiff must establish a prima
facie case of discrimination ; then the burden shifts to the employer to provide a legitimat e, nondiscriminatory reason for the adverse employment action ; before the
burden shifts back to the plaintiff to submit admissible evidence from which a finder of fact could infer the employment decision was more likely than not based in whole or in part o n discrimination. A cat ' s paw case is a slight variation of a Title VII vicarious liability case. 935 F.3d at 30.

" In a ' cat ' s paw ' case,

. . . the agent ' manipulates an employer into acting as a mere conduit for his [discriminatory] intent. '

. . . [S]o long as the agent intended and was the proximate cause of the adverse result, the agent ' s discriminatory intent may be imputed to the employer under traditional agency principles.

. . . [ This occurs ] where the employer

. . . knew or should have known of the agent ' s discriminatory motivation. " 935
F.3d at 37

- 38.

As the Defendants note, the use of the cat ' s paw theory is in appropriate here. First,
Goldman fails to show that the cat ' s paw theory has ever been applied outside of Title VII cases, and we see a good reason for that . Title VII only requires proof that discrimination was a motivating factor, while an intentional tort

— like tortious interference

— requires proof a defendant intended an action to occur . Second, Kansas courts have never applied
the cat ' s paw theory in employment discrimination or otherwise. W e reject the use of the

cat ' s paw theory here.

Without any facts alleging malice on the part of Gray

- Little, Goldman fails to allege a genuine dispute of any material facts. The district court correctly found Goldman
did not establish the intentional misconduct element of his intentional misconduct claim.25 B. Did the district court properly grant summary judgment on Goldman ' s breach

- of

- contract claim because he was an at

- will employee ?

Next, Goldman argues the district court erred in granting the University summary judgment on his breach

- of

- contract claim. He asserts that whether he had an employment
contract with the University and whether that contract specified his employment was at
will were fact ual question s for a jury to decide. Gol dman a lleges a document entitled "Graduate Research Assistant (GRA) Intent to Appoint" contains ample indicia for a jury
to conclu de the document was a written contract. He also claims the district court should have applied a duty of good faith and fair dealing to the contract. In reply, the University

a rgue s Goldman ' s claim is precluded because the KJRA is the exclusive means by whi ch Kansas state employee s can challenge the termination of their contractual employment. Alternatively, the University assert s the plain language of the GRA Intent to Appoint states the document is not a formal offer of employment and any employment w as to be

at will.

The University rel ies on Schall v. Wichita State University , 269 Kan. 456, 482, 7 P.3d 1144 (2000), for the prop osition that the KJRA is Goldman ' s only remedy for his
breach

- of

- contract claim. See Fowles v. Kansas State Lottery , 254 Kan. 557, 565, 867 P.2d 357 (1994) ( holding same in action against Kansas Lottery based on judicial review of agency action under KJRA). The University also raised this argument before the
district court , but the district court chose not to address this issue, instead granting summary judgme nt to the University on the merits. While we are inclined to agree with
the University ' s argument the KJRA is the only avenue for relief for an employment contract claim, we need not answer the question because Goldman ' s breach

- of

- contract claim fails on the merits.

" In order to form a binding contract, there must be a meeting of the minds on all
essential elements. " Albers v. Nelson , 248 Kan. 575, 580, 809 P.2d 1194 (1991).26 G enerally, the existence of a contract depends on the parties ' intent and is a question of
fact for the jury. But where the legally relevant facts are undisputed, the existence and
terms of a contract become legal question s for the court ' s determination . Our review of such legal question s is de novo. U.S.D. No. 446 v. Sandoval , 295 Kan. 278, 282, 286 P.3d 542 (2012). " ' The primary rule for interpreting written contracts is to ascertain the parties '
intent. If the te rms of the contract are clear, the intent of the parties is to be determine d
from the language of the contract without applying rules of construction

. [Citation s omitted.] ' " Peterson v. Ferrell , 302 Kan. 99, 104 , 349 P.3d 1269 (2015)

.

The GRA Intent to Appoint state s any employment for the GRA position " would
be ' at will. ' " The employment

- at

- will doctrine generally holds that " employees and employers may terminate an employment relationship at any time for any reason, unless
there is a n express or implied contract governing the terms of employment." Peters v. Deseret Cattle Feeders, LLC , 309 Kan. 462, 469, 437 P.3d 976 (2019). An employer may
terminate an " ' at

- will employee ' for good cause, for no cause, or even for a wrong cause,
witho ut incurring liability to the employee for wrongful discharge." Morriss v. Coleman Co., Inc. , 241 Kan. 501, 508, 738 P.2d 841 (1987).

Goldman acknowledges the language of the GRA Intent to Appoint but claims it created an implied contract between the Univ ersity and him beyond merely employment

at will

. It is true that p arties may become contractually obligated by their conduct as well as by their oral or written words , and i mplied contracts arise from the facts and circumstances showing a mutual intent to contract. See Quaney v. Tobyne , 236 Kan. 201, Syl. ¶ 3, 689 P.2d 844 (1984) ( terms of contract may be proven by parties ' acts and

a ttending circumstances )

. "Because the intent must be mutual, an implied contract cannot be established solely by th e employee ' s subjective understanding or expectation of his or
her employment ." Peters , 309 Kan. at 470. Intent is a state of mind, and courts should be cautious in granting summary judgment " ' when resolution of the dispositive issue27 necessitates a determination of the state of mind of one or both of the parties. ' " 309 Kan.
at 470

- 71.

However, t he only fact or evidence Goldman offers to show the existence of an implied contract beyond employment at will is the GRA Intent to Appoint. But this
document instead defeats any claim that Goldman had a written employment contract with the University or that his employment was beyond employment at will.

Goldman argues the document has ample indicia for a jury to find it is a contract
because it includes a durational element, a statement of purpose, and a rate of compensation. But the durational element contains a start date and no end date; the statement of purpose describes the position; and it is not surprising a document describing a paid position includes the pay rate. More significant is the fact that t he GRA
Intent to Appoint explicitly stated it was "not a formal offer of employment and does not guarantee

. . . employment." The GRA Intent to Appoint cannot serve as the basis for an employment contract when it expressly states it is only an offer of employment. Instead, the GRA Intent to Appoint provides a description of the GRA position if Goldman accepts that position. Also, the GRA Intent to Appoint expressly states that any employment "would be ' at will ' and may be terminated at any ti me." Goldman signed the GRA Intent to Appoint on the line immediately below that explanation. Despite
Goldman ' s assertions to the contrary, the GRA Intent to Appoint does not form a written

contract nor does it create an implied contract beyond employment at will

.

Recognizing the obstacle of the at

- will language in the document and relying on Wilkinson v. Shoney ' s, Inc. , 269 Kan. 194, 215

- 16, 4 P.3d 1149 (2000), and Stover v. Superior Industries Int 'l , Inc. , 29 Kan. App. 2d 235, 240

- 41, 29 P.3d 967 (2000) , Goldman argues that a determination of whether employment is at will is also a fact question for a jury. While Goldman is generally correct, we have stated that when the material facts are not in dispute, a court may determine whether a contrac t exists. See28 Sandoval , 295 Kan. at 282. Additionally , the cases Goldman relies on are distinguishable.
The document at issue in Wilkinson was a poster, and in Stover , an employee handbook. In both cases, the courts noted there was no evidence the employee was aware of the policy and other facts disputed those policies. See Wilkinson , 269 Kan. at 215

- 16; Stover , 29 Kan. App. 2d at 240

- 41. Here, Goldman signed the GRA Intent to Appoint , showing
his awareness of its contents. Goldman also offered no e vidence beyond that document to prove an understanding to the contrary.

Finally, Goldman argues the district court erred in not applying a duty of good faith and fair dealing to his employment contract

. But a duty of good faith and fair dealing does not apply to employment

- at

- will contracts. Morriss , 241 Kan. at 518. Goldman acknowledges the state of the law but asks us to overrule Morriss

. We are duty bound to follow Kansas Supreme Court precedent absent an indication the Supreme Court is departing from its position. See State v. Rodriguez , 305 Kan. 1139, 1144, 390 P.3d 903 (2017). As t he Kansas Supreme Court has given n o such indicatio n , we cann ot overrule Morriss

.

There was no breach of contract.

C. Did the district court err in granting summary judgment on Goldman ' s 42 U.S.C. § 1983 claim ?

For his final claim, Goldman asserts the district court erred when it granted summary judgment on his 42 U.S.C. § 1983 claim. Goldman brought his § 1983 claim only against Krise; he did not name the University. Goldman argues Krise violated his constitutional right to due process under the Fifth and Fourteenth Amendments to the United States Constitution and placed a biased individual on the Committee.29 Krise responds in several ways. First, he argues Goldman cou ld only bring his due process claim under the KJRA, not 42 U.S.C. § 1983. Second, Krise argues only the University had the duty to provide Goldman with due process, not him

. But if he somehow had some due process duty to Goldman, Krise argues he provided a dequate
notice to Goldman and that Prisinzano was an impartial decisionmaker. Third , Krise argues he is entitled to qualified immunity.

A person may file suit when a state official, acting under the color of law, deprives that person of "any rights, privi leges , or immunities secured by the Constitution and
laws ." 42 U.S.C. § 1983. To state a valid claim under § 1983, a plaintiff must allege: "(1) whether the conduct complained of was committed by a person acting under color of state law, and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or federal law. " Purvis v. Williams , 276 Kan. 182, 198, 73 P.3d 740 (2003).

Goldman alleges Krise deprived him of his right to procedural due process. Procedural due process requirements apply to deprivation of interests under the
Fourteenth Amendment ' s protection of li berty and property. Board of Regents of State Colleges v. Roth , 408 U.S. 564, 5 69

- 70, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). "An essential principle of due process is that a deprivation of li f e, liberty, or property ' be preceded by notice and opportunity for hearing appropriate to the nature of the case. ' " Cleveland Board of Education v. Loudermill , 470 U.S. 532, 542, 105 S. Ct . 1487, 84 L. Ed. 2d 494 (1985). " ' [ T ] he root requirement ' of the Due Process Clause " is that an individual receive an opportunity for a hearing to present reasons why the proposed deprivation should not happen before being deprived of significant property

. 470 U.S. at
542. To show a due process claim, an individual must establish three prerequisites: (1) the official acted under the color of state law; (2) a due process interest existed; and (3) the alleged loss of that interest amount ed to a deprivation of due process. See Parratt v. Taylor , 451 U.S. 527, 5 36

- 37, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), overruled on30 other grounds by Daniels v. Williams , 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986).

To survive summary judgment on his § 1983 claim , Goldman had to prove two elements: (1) Krise was acting under the color of state law and (2) Krise ' s conduct deprived Goldman of rights, privileges , or immunities under the U.S. Constitution or
federal law. See Parratt , 451 U.S. at 535; Purvis , 276 Kan. at 198. To determine if
Goldman was deprived of property in violation of the Due Process Clause, our task is to determine (1) whether Goldman had a protected interest in the property and was deprived
of the property and (2) the extent of the process due. State v. Wilkinson , 269 Kan. 603,
6 08

- 09, 9 P.3d 1 (2000).

Goldman has alleged, and Krise d oes n ot dispute, that Goldman had a protected property interest in his continued education. Therefore, t he remaining question is the extent of the process due to Goldman.

1. KJRA i s the only vehicle to raise due process violations.

Before we can reach the merits of Goldman ' s due process claims, we must first
address Krise ' s argument that we cannot reach the merits of Goldman ' s § 1983 claim because the KJRA provides meaningful post deprivation review

. The district court found
Hudson v. Palmer , 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984) , as well as its application in Hartwick v. Board of Trustees of Johnson County Community College , 782 F. Supp. 1507 (D. Kan. 1992), supported this position and found because a remedy could be granted under the KJRA, no due pro cess claim u nder § 1983 could survive.

In Hudson and Parratt , the United States Supreme Court held that random, unauthorized deprivations of property do not violate due process if adequate postdeprivation remedies are available. See Hudson , 468 U.S. at 53 6 ; Parratt , 451 U.S. at31 544

. Hudson held intentional deprivations do not violate the Due Process Clause when

pre deprivation procedures are " ' impracticable ' " and adequate postdeprivation remedies
are available , recognizing "[ t ] he s tate can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees." 468 U.S. at 533.

Here, the district court relied on Hartwick ' s extensive discussion and application of
Hudson . In Hartwick , the Board of Trust ees of Johnson County Community College did
not renew Hartwick ' s contract because it alleged Hartwick had misappropriated college property. The Board held a due process hearing ; Hartwick was represented by counsel
who called witness es on his behalf and introduced evidence to the hearing panel. The
federal district court found Hartwick had a constitutionally protected property interest in his continued employment as a professor at the college. 782 F. Supp. at 1511. Hartwick filed a § 1983 action, complaining the Board did not base its ultimate decision on misappropriat ion , meaning he lacked proper notice, and alleging the hearing panel was
biased.

I n Hartwick , the federal district court explained that whether Par ratt and Hudson precluded Hartwi ck ' s § 1983 claim depended on whether the Board could have implemented predeprivation safeguards to address the risk of deprivations of the kind alleged by Hartwick. 782 F. Supp. at 1513. The federal district court found Hartwick could not bring an action under § 1983 because the Kansas Teacher Tenure Act, K.S.A.
72

- 5410 et seq. (now K.S.A . 72

- 2215 et seq.) allowed nonrenewed teachers to appeal the hearing panel ' s decision to a state district court, constituting an adequate postdeprivation remedy for "random and unauthorized violations" of the Kansas Teacher Tenure Act. 782 F. Supp. at 1514

- 15.

Goldman argues Hartwick is distinguishable because he did not complain that the University provided him with an incomplete description of the allegations ; rather, he did
not receive notice of all the allegations. Goldman cites to several cases he argues better32 explain the Parratt

- Hudson doctrine : Snyder v. City of Topeka , 884 F. Supp. 1504 (D. Kan. 1995); Anglemyer v. Hamilton County Hospital , 848 F. Supp 938 (D. Kan. 1994);
and Mason v. Board of Education, Unified School Dist. No. 209 , 741 F. Supp. 879 ( D.
Kan. 1990)

. However, these cases are distinguishable because they are employment
termination cases where the s tate provided no process whatsoever prior to termination
and the federal c ourt found the s tate could have provided a predeprivation hearing

. See Snyder , 884 F. Supp. at 1512

- 13 (finding city could not use regulations to terminate employee with no predeprivation process whatsoever); Anglemyer , 848 F. Supp. at 940 (finding in cases of termination of employment, it is possible to hold predeprivation hearing and due process requires predeprivation hearing, in addition to postdeprivation measures); Mason , 741 F. Supp. at 882 (finding s tate was in position to provide predeprivation process since it was required to under Teachers ' Due Process Act ; postdeprivation remedies under state law were not adequate to protect plaintiff ' s property interest)

.

T o support the district court ' s finding, Krise cites an unpublished Second Circuit Court of Appeals case where the plaintiff was expelled from medical school. In Attallah v. New York College of Osteopathic Medicine , 643 Fed. Appx. 7 (2d Cir

. 2016 ) (unpublished opinion) , the plaintiff argued he was not obligated to pursue his claims
under New York law, described as an Article 78 proceeding , because his expulsion was
not aca demically based. The Second Circuit explained:

" The argument misapprehends the district court ' s decision, which did not hold that
Attallah was required to challenge his expulsion in an Article 78 proceeding. Rather, the district court concluded that Attallah could not plausibly claim the deprivation of a protected interest without due process of law because an adequate post

- deprivation remedy in the form of an Article 78 proceeding was available under state law. See Attallah v. N.Y. Coll. Of Osteopathic Med

. , 94 F. Supp. 3d at 454

- 58. That ruling comports with controlling precedent. See Hudson v. Palmer , 468 U.S. 517, 533, 104 S. Ct. 3194, 82 L. Ed. 2d 39 3 (1984) (holding that alleged state deprivation of property does33 not violate procedural due process ' if a meaningful postdeprivation remedy for the loss is
available ' ). Thus, even if, as Attallah alleges, state employees acted in concert with
administrato rs at [ A t tallah ' s ] private medical school to expel him, any ensuing deprivation of property or liberty does not give rise to a procedural due process claim under § 1983." 643 Fed. Appx

. at 9

- 10.

Here, the University provided Goldman with a predeprivation hearing before finding him guilty of scholarly misconduct and removing him from the School of Pharmacy

. Goldman now complains his due process rights were violated for the University ' s failure to follow the required p rocedures in the investigation and hearing. In this manner, Goldman ' s argument is more like Hartwick than any of the cases Goldman provides.

Applying Hartwick , we find Goldman was provided with a pre deprivation hearing. Assuming, without deciding, that Goldman ' s due process rights were violated at th e hearing, it is impracticable for the S tate of Kansas to anticipate an actor would disregard the University ' s procedural rules. A hearing to remedy this violation d uring the midst of the scholarly conduct hearing would not be possible. It is not an action considered by
Kansas law or U niversity rules. Indeed, a person might not even realize his or her due process rights were violated until the hearing was over. But Ka nsas law does offer a postdeprivation remedy. Goldman could, and did, file a KJRA claim in state district court. The KJRA explicitly directs the district court to grant relief if the agency did not respect an individual ' s due process rights. K.S.A. 77

- 621(c)(5)

. Goldman ' s remedy for any due p rocess violations is the KJRA and not a § 1983 claim.

2. What due process did Krise owe Goldman?

In our view it is significant that Goldman filed his § 1983 action against Krise only, not the University. As a result, to survive summary judgment, Goldman must show34 a genuine issue of material fact support s his assertion that Krise violated his due process rights.

Goldman alleges he was not adequately informed of the accusations against him and he was deprived of an imp artial panel. Krise claims Goldman never articulated a due process violation attributable to Krise individually. Krise argues it was the duty of the University and its officials conducting the investigation and hearing to follow its procedures and provide Goldman with due process

. Goldman claims to be confused by this argument because a state and its agencies are not "persons" within the meaning of § 1983. Goldman is correct. See Will v. Michigan Department of State Police , 491 U.S. 58, 64, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989 ) . But Goldman misses Krise ' s point

. Section 1983 requires Goldman to make allegations against a person, but the person or

persons must be those who deprived Goldman of his constitutional rights. Krise argues it

was not his duty to provide Goldman with due process and , therefore, he did not deprive Goldman of his constitutional rights to notice and an impartial panel. We agree.

The plain wording of 42 U.S.C. § 1983 contains a causation element : "Every person who

. . . subjects, or causes to be subjected , any citizen

. . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws

. . . shall be liable to the party injured. " In other words, a defendant is not liable under § 1983 unless he or she subjected a person to the deprivation or cause d a person to be subjected to the deprivation.

Assuming for the moment Goldman ' s allegations of deprivation are true, Krise was not the person responsible for the deprivation. First, Krise was not responsible for creating an impartial Committee

. Krise did not choose the Committee members . Both
Krise and Goldman submitted the names of three persons to be on the Committee. Then
Vice Chancellor Warren chose one name from each list to be a part of the seven
- member committee (five members could vote, including Krise ' s and Goldman ' s members). It was35 the Vice Chancellor , not Krise , who ultimately determined the composition of the
Committee. Krise di d not cause Goldman to be deprived of an impartial Committee.

Krise was the complainant . University rules require the complainant to report any scholarly misconduct to the Vice Chancellor for Research and Graduate Studies.
U

. S

. R

. R

. 9.2.1

. The Vice Chancellor then assigns an individual to undertake an inquiry.
U

. S

. R

. R

. 9.2.1

. But first, that individual must inform the respondent

— here , Goldman

— of the nature of the complaint. U

. S

. R

. R

. 9.2.3

. The individual undertaking the inquiry must also take "all reasonable and practical steps" to gather all relevant records and
evidence. U

. S

. R

. R

. 9.2.3

. If an investigation is warranted, the Vice Chancellor must notify both parties and request the ir views. U

. S

. R

. R

. 9.3.1

. When the respondent is not a professor , U niversity rules require a similarly situated person be selected as a nonvoting
member to make sure the respondent ' s rights are not violated. U

. S

. R

. R

. 9.3.3

. During the investigation, it is the C ommittee ' s duty to pursue all significant issues and leads that are
relevant to the investigation, including evidence of additional instances of possible scholarly misconduct. U

. S

. R

. R

. 9.3.4

.

Goldman complains Krise did not provide him with notice of all the allegations of scholarly misconduct against him. But the University ' s rule s show it was the job of the
Vice Chancellor and the individual performing the inquiry to inform Goldman of the nature of the charges. And the Committee had a duty to pursue any issues that show ed possible scholarly misconduct. Krise occupied none of those positions. Goldman ' s § 1983
claims must fail because Krise did not cause any deprivation of Goldman ' s right to due

process. Given our findings we need not address Krise ' s claims of qualified immunity.

III. C ONCLUSION

In summary, we affirm the district court ' s judgment on the KJRA claims because we find the University ' s action was supported by substantial evidence and was not36 otherwise unreasonable, arbitrary , or capricious . The University also provided appropriate process to Goldman. We also affirm the district court ' s grant of summary judgment in favor of the Defendants on Goldman ' s claims of tortious interference, breach of contract, and denial of due process.

Affirmed.