A University of Colorado employee claimed in a federal lawsuit that one of her colleagues filed a deliberate, falsified report that she was COVID-19 positive days before a major work event, causing her severe emotional distress and violating her constitutional rights.

However, a federal judge has recommended dismissing Celeste T. Archer’s lawsuit for a simple reason: The mix-up over Archer’s COVID-19 status – which lasted a total of two hours – fell far short of unreasonable conduct on the part of the university, especially during an ongoing global pandemic.

“As I have noted more than once during hearings in this case, ‘there are mountains and then there are molehills’,” U.S. Magistrate Judge N. Reid Neureiter wrote on June 7. “Celeste Archer and her lawyers are trying to turn the latter into the former by making a federal constitutional lawsuit out of a two hour inconvenience.”

In a bluntly-worded recommendation to U.S. District Court Judge Raymond P. Moore, who is the final decision-maker in the case, Neureiter described the “patent absurdity” of Archer’s allegation that an instruction from a COVID-19 contact tracer to avoid coming to campus until cleared to do so violated Archer’s due process rights under the law.

“Not every arguably wrongheaded employment decision by a governmental entity violates the United States Constitution,” he added. “And in this case, a directive that an employee not come to work for the afternoon, based on a suspicion of COVID-19 exposure, with zero other effects on her job (such as a reduction in pay or change in job responsibilities), does not deprive that employee of any constitutionally protected property right.”

Archer works at CU-Denver as executive director of the National History Day in Colorado program, and also leads the Colorado Student Leaders Institute. On the afternoon of Sept. 3, 2021, she received an email from two student contact tracers indicating Archer had either been exposed to COVID-19 or tested positive, and advising her not to come to campus.

“A contact tracer will reach out to you about next steps and returning to campus (if you are symptomatic or positive for COVID-19),” the email read. The contact tracers also notified Archer’s supervisor that she was “unable to be physically present on campus” but could still work from home.

The notification allegedly stemmed from another university employee, Eleanore Lewis, reporting COVID-19 symptoms per CU policy. Upon further investigation, Lewis suggested Archer may have exposed her.

Archer contacted the student who sent the email and also wrote to the supervising attorney for CU-Denver to contest the determination of COVID-19 exposure. Two hours and four minutes after the original email to Archer, the contact tracer rescinded the stay-away instruction.

Nonetheless, Archer continued to litigate the matter. In an email to Chris Puckett, the managing university counsel for CU-Denver, Archer said her temporary exclusion from campus based on the erroneous report “harkens to a very dark history.” She also wrote to CU Regent Heidi Ganahl, who is also a Republican gubernatorial candidate, claiming the university had based “public health decisions on a rumor.”

In late September, Archer filed a federal lawsuit, alleging the two student contact tracers had deprived her of her right to “move freely throughout campus” and also deprived her of the “property interest” in her job without a hearing. She accused Lewis of “outrageous conduct causing severe emotional distress” for allegedly making a false report that “wrongly barred” Archer from campus one week before her major National History Day event.

“Here, Celeste’s interest in her job and access to campus, combined with the University’s complete and total failure to provide any procedural protections to guard against malicious false reports, far outweigh whatever marginal public health benefit may result from the slightly faster response time that comes from being willfully blind to false reports of COVID-19,” wrote lawyers for the Mountain States Legal Foundation, which litigates on behalf of conservative causes.

“Being offended isn’t a legal claim – yet Plaintiff’s allegations boil down to just that,” countered Special Assistant Attorney General Megan Clark on behalf of the defendants. She added that Archer had no constitutional right to unrestricted campus access.

“And this makes sense: it cannot be the case that a University employee who must leave their office because of an errant fire alarm, for example, has suffered a constitutional deprivation,” Clark explained.

Neureiter found Archer’s claims meritless on multiple fronts. She had no property interest, Neureiter explained, in being able to go to her office. The contact tracers did, in fact, provide an avenue to contest her exclusion – which Archer used to rescind the stay-away directive. Further, she had suffered no reduction in pay or demotion during the two hours and four minutes the stay-away order was in effect. 

Even if Archer had been suspended with pay, Neureiter wrote, court precedent would still not recognize such action by an employer as depriving a worker of their due process rights. Given that threshold, a less-serious two-hour exclusion from campus necessarily did not implicate Archer’s constitutional rights.

“In light of the uncertainty and fear about COVID transmission, a ‘better safe than sorry’ approach of first sending the COVID-19 Notice and then granting a speedy post-deprivation audience via telephone or e-mail communication with the contract tracer was not a patently unconstitutional method, and neither the Tenth Circuit (Court of Appeals) nor the Supreme Court has declared it to be,” Neureiter concluded.

The magistrate judge also recommended dismissing Archer’s state law claim of outrageous conduct against Lewis because Archer had failed to file the appropriate notice that Colorado requires. He also doubted Archer’s “sparse allegations of emotional distress” would have triggered any liability for Lewis in the first place.

The parties to the lawsuit have 14 days to file objections to Neureiter’s recommendation, after which Moore, the district court judge, will decide whether to accept or reject the findings.

The case is Archer v. Cook et al.