By Ellen J. Staurowsky, Ed.D., Senior Writer and Professor, Sports Media, Roy H. Park School of Communications, Ithaca College
On September 22, 2022, women’s volleyball coach, Destiny Clark, and her former employer, Newman University, reached a settlement after nearly three and a half years of litigation.
The settlement came on the heels of an order issued in the United States District Court for the District of Kansas on September 12, 2022 that overruled an effort on the part of Newman seeking summary judgment on Clark’s sex discrimination and hostile work environment claims under Title IX and Title VII, including retaliation claims. The order did sustain Newman’s request for summary judgment on the Plaintiff’s claim regarding punitive damages under Title IX and noted that the Plaintiff had already conceded that Newman was entitled to summary judgement on an Equal Pay claim.
Factual Background
After a successful playing career at the University of Arkansas and notable high school coaching career, Clark received a written offer from a National Collegiate Athletic Association (NCAA) Division II institution, Newman University, to serve as their head women’s volleyball coach in May 2015. She alleged in her complaint and in subsequent court filings that she was also verbally offered a position as a strength and conditioning coach by Newman athletic director (AD), Viktor Trilli, for an additional $20,000 per year. In the months following her hire through Spring 2016, Clark claimed that she had raised the issue of not having the agreement about her strength and conditioning assignment in writing with Trilli several times, with assurances from him that one would eventually be forthcoming. According to Clark, despite a written acknowledgement, she practically served in that position, working with other coaches in the department to develop strength and conditioning workouts for their teams.
In August 2016, the Newman University athletic department needed to respond to an NCAA rule change that was scheduled to go into effect requiring NCAA Division II athletic departments to have a designated certified strength and conditioning coach or coaches running strength and conditioning workouts to hold certification. Clark alleged that she approached Trilli again, reminding him of their verbal agreement that she was to be designated as the strength and conditioning coach and had been promised an additional $20,000 per year, a figure that she alleged Trilli mocked, coming back with an unacceptable offer of $2,000. She reported that this conversation arose, in part, because of her discomfort with a proposal that since the department did not have a designated strength and conditioning coach all of the coaches running strength and conditioning drills would do so under the umbrella of her certification. Clark alleged in her original complaint that shortly after expressing her concern and reminding Trilli about his promise, a new part-time strength and conditioning position was announced, one awarded to a male coach who did not have the credentials she did. When that person left the position in Spring of 2018, Clark applied for the position effectively a third time, but she once again faced a situation where a male applicant was hired.
Clark described meetings in her office with the AD for the alleged purpose of talking through conflicts as uncomfortable and upsetting. Based on her understanding of meetings the AD had with male coaches in the department, they were not subjected to observations about their appearance and hair or inquiries regarding their dating life and other personal matters, which were subjects that the AD frequently asked her about. In order to get some relief from that kind of treatment, Clark reported that she asked a male colleague to intercede on her behalf, urging the athletic director to stop those types of conversations, which eventually happened.
Clark also described several program inequities that favored men’s sports and that were gender-based. She alleged that women’s teams were given lower priority in terms of access to practice facilities; were inconvenienced more because coaches of men’s teams did not follow the stated scheduling protocol; and were not challenged by the athletic director when they mocked Clark in front of her team and other athletes. Clark alleged that she received advise from another woman coach in the department that the most effective way to get the AD to do what she wanted was to cry. After expressing a belief that the scheduling conflicts that were happening with the men’s teams should be reported to the Title IX coordinator, another woman in the department recommended that such a course of action would make matters worse rather than better.
A Title IX investigation, however, did happen after a member of the men’s basketball team started to harass women volleyball players and Clark herself. The first two years of Clark’s tenure at Newman included alleged harassment and physical intimidation and threats from one of the men’s basketball players. On several occasions, Clark reported incidents of the men’s basketball player interrupting practice, yelling at her, and on one occasion, approaching her in a physically intimidating manner. Repeated efforts to get the AD to intercede were to no avail. In October of 2017, following one such incident, Clark requested assistance from Newman’s head of security, with the result being a ban of the men’s basketball player from volleyball games and from the athletic building, bans that the player ignored. In the absence of enforcement of those bans, Clark filed for protection with the Sedgwick District Court from stalking. The Court issues a temporary restraining order in November of 2017 which was not set to expire until January of 2018. In a subsequent hearing on the protection from stalking order, the men’s basketball player told the judge that the AD had told him he was not to blame and that Clark was lying.
The Title IX investigation undertaken by Newman included a recorded conversation between the investigators and AD Trilli wherein he was cautioned about Title IX’s prohibition against retaliation. Trilli is on record as expressing a view that both he and the men’s basketball coach were inclined to retaliate against Clark, a position that led to a request that Trilli sign a letter indicating that he understood that he was not permitted to do so. In November of 2017, Clark was asked to leave campus and work from home because the institution could not guarantee her safety because the men’s basketball player was still on campus and would not graduate until December of that year. Just a short while after Clark was asked to work from home, the university allegedly passed a policy requiring staff to hold office hours and in-person meetings. Clark alleged she was required to abide by that policy.
A month after the Title IX investigation began, a decision was made by the president and the university’s executive committee of the board to engage an outside law firm to complete the investigation, after the president expressed a belief that the AD, head men’s basketball coach, and assistant men’s basketball coach were not being treated fairly. According to Clark, this change in the university’s plan came at a time when the internal investigation was just about complete and the institution would have been found to have been in violation of Title IX given its handling of her case. Notably, three of the people who worked on that report left the institution, alleging that they had been retaliated against because of their work on the case.
In January of 2018, the Title IX report produced by outside counsel was issued with a finding that there were no violations of Title IX. There was a recommendation that a counselor be engaged to aid the parties moving forward. Clark characterized sessions with the counselor as focusing on educating her on how to get along with her colleagues.
Clark returned to work in the Newman athletic department following the issue of the Title IX report, but she alleged that problems persisted. The scheduling issues with men’s teams that had occurred prior to the investigation continued. The AD and men’s basketball coach did not respond to her, and members of the athletic department wrote to the president expressing their belief that Clark was not a “good fit” for the department, that she was “not a team player” and her filing of the Title IX complaint was “unacceptable.”
In 2018, Clark alleged that her work was undermined by administrators who changed the venue for a volleyball tournament that she had organized to a local high school and later in the year refused to allow members of the volleyball team to leave campus for a tournament because of an orientation, causing the team to back out of a scheduled commitment. Finally, in February 2018, Clark filed a Title VII complaint with the Equal Employment Opportunity Commission alleging hostile work environment, gender discrimination, and retaliation.
By June 2018, Clark resigned her position at Newman, announcing that she had accepted a job as an assistant women’s volleyball coach at Providence College. Clark testified that she reached the decision to leave Newman because she felt she would not be successful there and the conditions under which she was working were untenable.
The Initial Complaint and Narrowing of Its Nine Causes of Action
In February 2019, Clark filed her initial complaint against Newman University and athletic director Trilli in the U.S. District Court of Kansas for the District of Kansas and included nine causes of action. Those were Title IX retaliation, violations of the Equal Pay Act, Title VII retaliation, a hostile work environment under Title IV, gender discrimination under Title VII, intentional infliction of emotional distress, negligent hiring/retention, negligent training/failure to train, and negligent supervision (Clark v. Newman University, Inc., and Victor Trilli, 2019). As Nuedling (2020) noted here in his analysis of the case, Newman was successful in challenging the negligence claims and the allegation of intentional infliction of emotional distress, leaving the gender discrimination claims intact.
Newman’s Motion for Summary Judgement
On September 12, 2022, although the Court supported Newman’s motion for summary judgment on the claim for punitive damages under Title IX, the University’s efforts to seek summary judgement on all remaining counts, including hostile work environment, gender discrimination, retaliation under Title IX and Title VII were overruled. The Court also ruled on motions pertaining to two of Newman’s defenses under the Religious Freedom and Restoration Act (RFRA) and a ministerial exception.
In its defense, Newman sought summary judgment on the Title IX and Title VII issues by arguing that the enforcement of those laws infringed on its free exercise rights as established under the Religious Freedom and Restoration Ac (RFRA). The Court, while writing that the Tenth Circuit had not yet addressed whether “RFRA applies in suits by private parties seeking to enforce federal law against private parties,” it did note that the Sixth, Seventh, and Ninth Circuits had held “that RFRA does not apply in suits between private parties.” The Court went on to write that “the text of RFRA demonstrates the Congress intended RFRA to apply only to suits with a government party.” Thus, the Court denied Newman’s motion for summary judgement on its RFRA defense while sustaining the plaintiff’s motion for partial summary judgement on this point. Newman also sought immunity for what it alleged were religious based employment decisions under a ministerial exception. However, the Court denied Newman’s motion for summary judgement on this issue.
An Uneasy Calm After the Storm
After more than three years of responses, motions to dismiss, motions for summary judgement, and various court orders, there is an uneasy calm that has descended over this case in the aftermath of the settlement. This case was one of five that were filed against Newman University by former employees. Clark is mentioned in two of those other cases, which involved Newman employees who were initially tasked with conducting the internal Title IX investigation, both of whom alleged retaliation (Klaus, 2019).
While Nuedling (2020) observed that the successful dismissal of negligence claims against Newman for retaining its AD despite what is alleged to have been the creation of a hostile environment and for failing to properly train employees, the absence of evidence to support those claims may cover over a cautionary note here. As much as some things have changed after the passage of Title IX, there is considerable evidence to show that the college sport community generally remains behind in training personnel about obligations under Title IX and in fully educating personnel about its anti-retaliation prohibition (Staurowsky et al., 2022). Given the case history, it is incumbent upon universities to wonder what the outcome might have been if a young woman coach who raised gender equity concerns was viewed as a quintessential team player rather than a Title IX troublemaker.
References
Clark v. Newman University, Inc. No. 19-1033-JWB, 2020 U.S. Dist. Lexis 618 (D. Kan. 3, 2020).
Clark v. Newman University, Inc. No. 19-1033-KHV, 2022 U.S. Dist. LEXIS 164360 *; 2022 WL 4130828
Klaus, C. (2019, February 25). Former coach sues, Newman now fighting five lawsuits. The Vantage.
Nuedling, B. (2020, April 24). Court sides with university on most of coach’s claims, but defers on Title IX claim. Sports Litigation Alert.
Staurowsky, E. J., Flowers, C., Buzuvis, E., Darvin, L., & Welch, N. (2022).
