A federal judge from the Northern District Ohio has delivered a mixed ruling to Kent State University (Kent State) on its motion to dismiss the claim of former coach of women’s field hockey, who claimed she was a victim of sexual discrimination and subsequently retaliated against when she complained of that discrimination.
While it let stand the coach’s wage discrimination claim asserted under Title VII and the Equal Pay Act, it dismissed her Title VII constructive discharge/retaliation claim and the Title IX (or Title VII) discrimination, retaliation, and constructive discharge claims.
Kathleen Wiler coached women’s field hockey at KSU from 2006 until February 2019, when she resigned. During her time at the helm of Kent State’s NCAA Division I women’s field hockey program, the team dominated the Mid-America Conference, also known as the MAC: it won eight regular season titles, five conference tournament titles, and made five NCAA post-season appearances.
For her team’s successes, Wiler earned recognition five times as MAC Coach of the Year. Like other head coaches at Kent State, Wiler had many broad responsibilities, including teaching, training, counseling, and advising her players, fundraising for and managing the program and its budget, public relations, and recruiting. For all this, Wiler said she was paid approximately $85,496.00.
Compared to male coaches at Kent State, the plaintiff alleged she received “unequal pay” and had “more difficult conditions,” “higher expectations,” “more work,” and “more responsibility” but with “less resources and less support.”
Wiler reported the perceived disparities. Although Kent State has a policy to investigate incidents of discrimination “that are reported in an appropriate and timely manner,” it allegedly “refused to investigate or remedy” Wiler’s claim.
On August 31, 2017, Wiler filed a charge against Kent State with the Equal Employment Opportunity Commission. Little changed, she claimed, and Kent State allegedly failed to investigate or remedy her complaints. On February 28, 2019, Wiler resigned.
On March 3, 2020, Wiler sued Kent State for wage discrimination, sex discrimination, and retaliation under corresponding provisions of Title VII, Title IX, and the Equal Pay Act. In the operative pleading, the amended complaint filed on February 2, 2021, the plaintiff alleged she “was paid the lowest of any . . . coaches, most of whom were male,” because of pervasive “gender stereotypes” that negatively affected her “pay at the time of hire, during consideration of raises/contract extensions and in the evaluation of work performed and success obtained, relative to her male peers.”
Because of these persistent disparities, the plaintiff alleged she was discriminated and retaliated against, and eventually constructively discharged.
Specifically, she asserted three claims for: (1) wage discrimination and retaliation in violation of Title VII (Count I); (2) violation of the Equal Pay Act (Count II); and violations of Title IX (Count III). Each count also appears to claim wrongful discharge.
Before turning to the merits of Kent State’s motion, the court considered a “threshold procedural issue” involving the plaintiff’s EEOC charges. Interestingly, the court found that the plaintiff did not satisfy the requirement for an administrative review of her allegations before bringing her Title VII claims. However, “neither party makes much of this issue in briefing. For that reason, and because Kent State makes no argument of prejudice, the court deems the issue whether the plaintiff had a right-to-sue letter when she filed her initial complaint waived.”
Returning to the merits of the claim, the court first considered the wage discrimination claim and concluded that Wiler does state “a claim for relief under the Equal Pay Act.” Thus, it denied that portion of the defendant’s motion to dismiss.
“Taken together, and construed in her favor, the amended complaint (also) advances three other claims: (1) discrimination in violation of Title IX; (2) retaliation in violation of Title IX; and (3) retaliation in violation of Title VII.”
Tackling the first of these claims, the court wrote that “notwithstanding the cause of action Title VII provides for sex discrimination in the terms and conditions of employment and retaliation, the question arises: Does the plaintiff have a private right of action under Title IX for these same causes of action?
“The Supreme Court has not directly spoken to the issue whether Title VII preempts Title IX where an employee brings a discrimination or retaliation case against employers subject to Title IX, and the Circuits are split on it.”
The judge was hesitant to wade into this area, agreeing “with the well-reasoned opinion of the Fifth Circuit in (Lakoski v. James, 66 F.3d 751, 753 (5th Cir. 1995),” which suggested “that Congress did not intend for Title IX to provide the route for an end-run around Title VII for individuals claiming employment discrimination on the basis of gender.”
While that was the court’s inclination, it did not need to “wade into this split of authority because the plaintiff fails to state a plausible claim for discrimination based on facts separate from wage discrimination. Each allegation that the plaintiff makes that might suggest a claim of discrimination other than pay returns to the allegation that Kent State paid Ms. Wiler less than her male counterparts.
“ … Allegations that Kent State ‘refused to repair ongoing discrimination’ and took ‘an adverse employment action’ against her amount to nothing more conclusory allegations of buzzwords. Beyond the wage discrimination claim, no facts pled in the amended complaint indicate or imply that Ms. Wiler suffered discrimination ‘because of’ (Title VII) or ‘on the basis of’ (Title IX) her sex. Therefore, if the plaintiff attempts to assert discrimination claims beyond those involving alleged unequal pay, the Court dismisses them.”
Turning to the claims for retaliation under Title VII (Count I) and Title IX (Count III), the court wrote that “to state a retaliation claim, whether under Title VII, Title IX, or the Equal Pay Act, the plaintiff must allege that (1) she engaged in protected activity; (2) of which Kent State knew; (3) as a result of which, Kent State took an adverse employment action against her; and (4) that there was a causal connection between the protected activity and Kent State’s adverse employment action. See Denman v. Youngstown St. Univ., 545 F. Supp. 2d 671, 678 (N.D. Ohio 2008) (collecting cases). While she need not prove the prima facie elements at this stage of the proceedings, Plaintiff must allege facts that make these elements plausible.
“Under either statute, the amended complaint fails to state a claim in anything other than the most conclusory terms.”
The court elaborated, noting that the plaintiff “argues that Kent State failed to investigate or remedy her complaint. But she does not allege Kent State failed to do so in retaliation for her complaints, and the amended complaint states no facts that would allow such an inference. To the contrary, taken with her other allegations, any failure to investigate or take Ms. Wiler’s complaints seriously was more systemic and not borne of retaliation. On a motion to dismiss, the Court does not accept mere labels or conclusory allegations. Therefore, the Court determines that the amended complaint fails to state a claim for retaliation on any theory.”
Lastly, the court considered the claim for constructive discharge under Title VII. “While the amended complaint states a claim for unequal pay, nothing about that pleading suggests she suffered from working conditions that were so intolerable that she had no choice but to quit. … (C)onstructive discharge requires more than an underlying statutory violation. See Phillips v. Taco Bell Corp., 156 F.3d 884, 890 (8th Cir. 1998). The amended complaint does not have more. For these reasons, the Court determines that the amended complaint fails to state a claim for constructive discharge.”
Kathleen Wiler v. Kent State University; N.D. Ohio; Case No. 5:20-cv-490; 3/3/21
Attorneys of Record: (for plaintiff) Caryn M. Groedel, Law Office of Caryn M. Groedel, Solon, OH; Danya M. Keller, PRO HAC VICE, Thomas A. Newkirk, Newkirk Zwagerman, Des Moines, IA; Karen C. Lefton, Lefton Group, Akron, OH. (for defendant) Daniel J. Rudary, Brennan, Manna & Diamond – Akron, Akron, OH.