By Brian G. Nuedling, of Jackson Lewis P.C.
Title IX retaliation claims clearly have the power to stand on their own. But they also can be the springboard for broader causes of action that attach common-law tort claims to the statutory protections codified in Title IX.[1] Even when this happens, however, courts have been willing to scale back litigation that, while rooted in Title IX, branches off in ways that seem far removed from the Education Amendments of 1972.
One example of such comprehensive litigation is Clark v. Newman University, a lawsuit that began in Title IX retaliation but had expanded substantially by the time it reached federal court in Kansas. But as demonstrated in Newman, a focused approach toward the individual claims can be a successful strategy in curtailing the potential reach of Title IX litigation.
Background Facts
In Newman, Plaintiff Destiny Clark was the head volleyball coach at Newman University in Wichita, Kansas, from May 2015 through June 2018.[2] Clark, an African-American female, alleged that during her interview with Newman Athletic Director Victor Trilli, she expressed interest in adding strength coach to her potential duties, a position for which she had the necessary certifications. Clark alleged that she accepted a written offer for the volleyball position and a verbal offer for the strength position.
As recounted by the court in ruling on a partial motion to dismiss, Clark’s complaint alleged numerous instances of mistreatment by Newman and Trilli.
For example, Clark alleged that Trilli backed out of his offer to make her the strength coach and instead hired a lesser-qualified male for the position. She further alleged that during her time at Newman, she had to share facilities with other sports and that the women’s volleyball team received lower priority than male sports.
Clark further alleged that when she brought these matters to Trilli, the conversations turned “highly personal,” with Trilli asking questions about her hairstyle, dating life, and whether she planned to have children. Clark further alleged that Trilli failed to step in when she was mocked and belittled during meetings with the men’s basketball staff. She alleged that when she reported conflicts or scheduling problems to Trilli, he instructed her to acquiesce to the basketball team.
Clark also alleged that on two occasions she had physical confrontations with a male basketball player who worked as a janitor for the athletic department. She alleged that the player disrupted her practices, stole volleyball equipment, and sexually harassed members of the team. She also alleged that she repeatedly had to ask him to leave the gym. As an example, she alleged an incident on October 2, 2017, when the student allegedly screamed in her face and charged at her in a threatening manner after she told him that he could not remain in the gym, playing loud music, while her volleyball team was practicing. Clark alleged that Trilli ignored her complaints about this incident but acknowledged that complaints to campus security and the dean of students had resulted in the student being banned from the campus building where her office was located. But Clark also alleged that the athlete ignored the ban, prompting her to obtain the type of protective order that is often issued in instances of domestic abuse and stalking. Clark alleged that the school did not take her concerns about the athlete seriously.
In October 2017, Clark filed a Title IX complaint, alleging the failure of the basketball staff to control the athlete and further asserting unequal access to practice facilities. The investigation was conducted by Mandy Greenfield, the head of human resources, and John Walker, a Title IX officer at the school who allegedly told Clark that she should work from home. Clark alleged that Newman fired both administrators prior to the completion of the investigation because the school anticipated a “finding of unlawful discrimination.” Clark’s assigned supervisor during the investigation then filed a Title IX complaint against Newman, alleging retaliation by Trilli.
According to the court’s summary, Newman then hired a law firm to restart the investigation. Clark alleged that between November 10, 2017, and January 17, 2018, she made repeated requests to return to the campus, all of which were denied. Clark alleged that although she returned on January 22, 2018, Trilli refused to speak to her for several week and agreed to provide a positive reference for her only after mediation sessions.
Defendants’ Motion to Dismiss
On February 14, 2019, Clark filed suit in the United States District Court for the District of Kansas. She alleged nine causes of action: Title IX retaliation, violation of the Equal Pay Act, Title VII retaliation, hostile work environment, gender discrimination, intentional infliction of emotional distress by Trilli, negligent hiring/retention, negligent training/failure to train, and negligent supervision. The defendants then sought dismissal of the negligence claims and the claim of intentional infliction of emotional distress in a motion to dismiss brought under Rule 12(b)(6) of the federal rules of civil procedure.
As part of the motion, Trilli argued that Clark could not satisfy the burden of proof for a claim of intentional infliction of emotional distress. Under Kansas law, a claim of emotional distress requires proof that (1) the conduct was “intentional or in reckless disregard” of the plaintiff; (2) the conduct was “extreme and outrageous”; (3) there is a causal link between the defendant’s conduct and the plaintiff’s mental distress; and (4) the plaintiff’s mental distress was “extreme and severe.”[3]
In finding for Trilli, the court concluded that Clark’s allegations were conclusory because they were not supported by the facts and were insufficient to show that her emotional distress was extreme. Given this conclusion, the court found that there was no need to address whether the conduct at issue was extreme and outrageous. On the basis of its findings, however, the court granted Trilli’s motion to dismiss the claim of emotional distress.
As to the claims of negligent hiring, training, and retention, Newman sought dismissal of these causes of action on the basis that they are not recognized under Kansas law. Clark alleged that Newman had been negligent in hiring and retaining Trilli because he had created a hostile environment for female coaches and had caused her extreme emotional distress. She further alleged that Newman knew of his conduct but had failed to correct it or to train him.
In analyzing Newman’s portion of the motion, the court noted that Kansas has recognized the negligence claims at issue when they are brought against an employer by a third party. However, the court noted consistency in holdings that Kansas does not recognize these torts when they are brought by an employee and arise out of the conduct of another employee. The court noted that Clark had attempted to draw a parallel with other cases in which the negligence claims were viable. These included fact patterns in which a child was molested by a bus driver and an employee who was raped and killed by a former co-worker at a location that was not connected to the employer. The court found these cases distinguishable and held that they did not support the proposition that Kansas would recognize a claim of negligent retention, training, or hiring when it is premised on employment discrimination. The court also noted that Kansas does not recognize a tort claim of negligent supervision or retention in an ordinary employment discrimination case.
The court concluded that Clark’s negligence claims were based on the same facts that supported her employment discrimination claims. The court further concluded that those facts did not support her negligence claims because they alleged wrongdoing by an employer based on the conduct of another employee, which is a scenario that Kansas does not recognize. On the basis of this analysis, the court dismissed the negligence claims against Newman.[4]
When combined with the dismissal of the emotional distress claim, the granting of the defendants’ entire motion quashed nearly half of the original lawsuit (four of the nine claims).
Status of Newman
Newman remains active litigation, with the remainder of Clark’s lawsuit still to be decided. This includes her claim of Title IX retaliation. However, the defendants successfully reduced the scope of the litigation through a tactical approach that targeted the flaws in other claims and left Title IX for another day. In this way, the defendants prevented Title IX from being the impetus for a much broader cause of action. By taking a measured approach to the complaint, the Newman defendants steered the case back toward Title IX and away from claims that have no relationship to gender discrimination.
[1] See 20 U.S.C. § 1681.
[2] See Clark v. Newman Univ., Inc., No. 19-1033-JWB, 2020 U.S. Dist. LEXIS 618 (D. Kan. Jan. 3, 2020).
[3] In setting forth the elements of the claim, the court cited Valadez v. Emmis Commc’n, 290 Kan. 472, 476, 229 P.3d 389 (Kan. 2010).
[4] In addition, since there were no remaining claims against Trilli, the court granted his request to be dismissed from the case.
