By Erica Zonder, J.D., M.S., Assistant Professor of Sport Management, Eastern Michigan University
The former head women’s volleyball coach filed a lawsuit against the University of Delaware (UD) alleging unlawful termination based on discrimination due to age, sexual orientation, marital status, and violation of the due process clause and equal protection clause of the 14th Amendment. Bonnie Kenny was the head women’s volleyball coach from 2002 until midway through the 2016 season. Cindy Gregory, associate coach and Kenny’s wife, was terminated and filed a similar suit (Tresolini, 2017). Kenny and Gregory also owned and operated a club volleyball program and a volleyball camp that used the UD facilities.
The lawsuit, filed in the United States District Court for the District of Delaware, alleges that while the plaintiff was informed that a complaint was filed by an “angry parent” concerning her treatment of one of the members of the volleyball team, she was “not afforded an opportunity to explain the situation or present her side of the story” (Kenny v. University of Delaware, 2017, p. 6) and further she was encouraged to resign after being placed on administrative leave. Plaintiff also contends that she was the sixth female head coach over the age of 40 (five of six in their 50s) who was “forced out” of the University of Delaware in the past 15 years and that of the six, five identified as gay. According to the complaint, Kenny had exhausted required administrative remedies before filing the lawsuit, filing claims with both the Delaware Department of Labor (DDOL) and the Equal Employment Opportunity Commission (EEOC). Both the DDOL and EEOC issued right to sue notices. In an interesting twist, six days after Kenny requested the DDOL issue the right to sue notice, UD’s student newspaper published an article entitled “Psychological Warfare” that asserted the coaches “operated on a platform of fear” (Gelman, 2017, p. 10) and featured quotes from former players detailing both coaches’ mental and emotional abuse.
Specifically, Kenny raises six causes of action against defendants University of Delaware, Chrissi Rawak (Athletic Director at UD), and Thomas LaPenta (then-Director of Human Resources at UD).
The Plaintiff’s Specific Claims
Count I: Fourteenth Amendment/Section 1983 Claim for Procedural Due Process Violation
The lawsuit claims that Defendants “acted under color of law in threatening the initiation of an investigation in an attempt to force a resignation under duress” (Kenny v. University of Delaware, 2017, p. 12) and further, Defendants terminated Kenny without cause, not allowing Kenny to see the parent’s complaint or providing her an opportunity to be heard. Kenny also claims that by replacing her as head coach during the season, her reputation was “irreparably damaged” (p. 12) and making her removal public without a sufficient explanation as well as providing information for the negative newspaper article damaged it further. The damage to Kenny’s reputation, honor, and integrity, “deprived Kenny of her liberty interest without due process (p. 13).” The deprivation of her right to procedural due process “dramatically decreased” Kenny’s ability to find other comparable employment and “destroyed” her ability to run her club and camp, causing both economic and non-economic damages.
Count II: Fourteenth Amendment/Section 1983 Claim for Procedural Due Process Violation
Count 2 adds that the aforementioned lack of procedural due process violated UD Policy 4-29. According to the complaint, the University Policy Against Unlawful Harassment “created a reasonable expectation on the part of Kenny that she would receive procedural due process in the event a complaint was filed” against her (p. 13). Specifically, UD 4-29 Section D1 requires a meeting with Respondent within 10 days of a formal complaint, Section D3 requires an “interview” with Respondent, “when needed” within 60 days, and Section D5 requires a written report and provide prescriptions for corrective action (“University”, 2016, p. K4). Kenny alleges she was not given the opportunity to be heard and again that the deprivation of due process impaired her ability to find employment or run her Club and camp, causing both economic and non-economic damages.
Count III: Age Discrimination
Kenny alleges she was “eminently” qualified to be the head volleyball coach and that UD had a pattern of forcing out female coaches over the age of 40. Kenny was replaced by a 38-year-old and further alleges that with one exception, all of the coaches hired by Rawak are under 40. Therefore, Defendants are violating both the ADEA and Section 711 (a)(1) of Title 19 of the Delaware Code that deems it to be unlawful for an employer to discharge or discriminate against any individual due to age (19 Del. C. § 714). Kenny further claims that any reasons offered by Defendants for her firing are pretext for intentional age discrimination. The violation of the ADEA and Delaware law entitles Kenny to compensatory damages, as it will cost her loss of wages, income from the Club and camp, loss of benefits, emotional distress, mental anguish, loss of reputation, loss of enjoyment of life, and attorney’s fees.
Count IV and Count V: Sexual Orientation Discrimination and Marital Status Discrimination
Section 711(a)(1) of Title 19 also deems it unlawful to discharge or discriminate on the basis of sexual orientation or marital status. (19 Del. C. § 714). Kenny is openly and legally married to a person of the same gender. As aforementioned, Kenny alleges a pattern of forcing out female coaches over 40, and further that five of the six coaches are gay (Kenny v. University of Delaware, 2017, p. 11). Kenny again seeks compensatory damages as detailed above.
Count VI: Fourteenth Amendment/Section 1983 Claim for Equal Protection Violation
Kenny claims that by Defendants acting “under color of law in threatening the initiation of an investigation in an attempt to force a resignation under duress” and terminating her because of her sexual orientation and marriage to a person of the same gender, she was deprived of her right to equal protection of the laws (Kenny v. University of Delaware, 2017, p. 17). The deprivation of equal protection impaired her ability to find employment or run her Club and camp, causing both economic and non-economic damages.
Damages
Kenny asks for damages including lost wages, back pay, front pay, compensatory damages for pain and suffering, impairment of reputation and other losses (detailed above). She also seeks punitive damages from Rawak and LaPenta specifically under the Fourteenth Amendment claims (Kenny v. University of Delaware, 2017, p. 18).
References
Discrimination in Employment, 19 Del. C. § 714 Retrieved from http://delcode.delaware.gov/title19/c007/sc02/
Gelman, T. (2017, May 2). “Psychological warfare”: Over 14 year career, fired volleyball coaches “operated on a platform of fear.” udreview.com. Retrieved from http://udreview.com/psychological-warfare-over-14-year-career-fired-volleyball-coaches-operated-on-a-platform-of-fear/
Kenny v. University of Delaware, Chrissi Rawak, and Thomas LaPenta, No. 1:17-cv-01156, complaint. (D. Del. August 17, 2017). Retrieved from www.pacermonitor.com/public/case/22261506/Kenny_v_University_of_Delaware_et_al
Tresolini, K. (2017, August 18) Ex-UD volleyball coaches claim age, sexual orientation led to firings. Delawareonline.com. Retrieved from http://www.delawareonline.com/story/news/local/2017/08/18/ex-ud-coaches-claim-age-sexual-orientation-led-firings/579317001/
University Policy Against Unlawful Harassment, UD Policy 4-29 (2016). Retrieved from http://www1.udel.edu/police/clery/asr
