Bull v. Bd. of Trs. of Ball State Univ.

KATHLEEN A. BULL, Plaintiff,

v. BOARD OF TRUSTEES OF BALL STATE UNIVERSITY, JO ANN M. GORA,THOMAS COLLINS, PATRICK A. QUINN, Defendants.

1:10-cv-00878-JMS-TAB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

Dated: May 2, 2012

ORDER

Presently pending before the Court is Defendants' Motion for Summary Judgment, [dkt. 60], which the Court GRANTS in part and DENIES in part for the reasons that follow.

I.STANDARD OF REVIEW

A motion for summary judgment asks that the Court find that a trial based on the uncontroverted and admissible evidence is unnecessary because, as a matter of law, it would conclude in the moving party's favor. See Fed. R. Civ. Pro. 56. To survive a motion for summary judgment, the non-moving party must set forth specific, admissible evidence showing that there is a material issue for trial. Fed. R. Civ. Pro. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. Pro. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. Pro. 56(c)(1)(B). Affidavits or declarations must bemade on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. Pro. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially the grant of summary judgment. Fed. R. Civ. Pro. 56(e).

The Court need only consider the cited materials, Fed. R. Civ. Pro. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them," Johnson v. Cambridge Indus., 325 F.3d 892, 898 (7th Cir. 2003).¹ Furthermore, reliance on the pleadings or conclusory statements backed by inadmissible evidence is insufficient to create an issue of material fact on summary judgment. Id. at 901.

The key inquiry, then, is whether admissible evidence exists to support a plaintiff's claims or a defendant's affirmative defenses, not the weight or credibility of that evidence, both of which are assessments reserved to the trier of fact. See Schacht v. Wis. Dep't of Corrections, 175 F.3d 497, 504 (7th Cir. 1999). And when evaluating this inquiry, the Court must give the non-moving party the benefit of all reasonable inferences from the evidence submitted and resolve "any doubt as to the existence of a genuine issue for trial . . . against the moving party." Celotex, 477 U.S. at 330.

In a separate order issued today, the Court has ruled on the parties' pending motions to exclude the testimony of various proffered expert witnesses. [Dkt. 143.] Accordingly, inconsidering Defendants' motion for summary judgment, the Court will consider only the evidence it has deemed admissible.

II.FACTS NOT IN DISPUTE

Ms. Bull began her employment with Ball State University ("BSU") as the head women's tennis coach in 1988, a position she held for twenty-one years. [Dkt. 74-6 at 2.] During her tenure as head coach, Ms. Bull had a successful and celebrated career. [Id.] She was also an outspoken and persistent advocate for gender equity in athletics under Title IX, regularly complaining to university officials and administrators about gender-related disparities in the treatment of student athletes and coaches. [Id. at 3.]

In May 2006, after the dismissal of another women's head coach who advocated gender equity, BSU Associate Athletic Director Patrick Quinn told another BSU administrator that "Kathy Bull should watch out or she will 'be next.'" [Id. at 4.] Ms. Bull immediately reported the comment to BSU Athletic Director Thomas Collins. [Id.] No investigation or corrective action was taken. [Id.]

In April 2008, BSU President Jo Ann Gora was notified that an anonymous complaint had been filed with the Office of Civil Rights ("OCR"). [Id.] The next month, Ms. Bull received her first negative performance evaluation. [Id.] In June 2008, Ms. Bull filed discrimination complaints with BSU against Mr. Collins and Mr. Quinn for the threat that "she will be next." [Id.] In July 2008, BSU denied the complaints. [Id.] In August 2008, Ms. Bull filed a complaint with OCR about her May performance review and the dismissal of her discrimination complaints. [Id.] In April 2009, Ms. Bull wrote a letter to the BSU Athletics Committee chair, signed by eight other head coaches, "explain[ing] that there were still serious problems with gender equity and Title IX compliance in [the BSU] athletic department." [Id. at 5.] In late July2009, BSU renewed Ms. Bull's one-year employment contract, and her renewal letter described her performance as "exemplary." [Dkt. 75-3 at 17.]

In September 2009, Ms. Bull self-reported to Mr. Quinn a possible violation of NCAA rules arising from conducting a timed run for her team prior to the commencement of the 2009-10 season. [Dkt. 72 at 15.] Mr. Quinn subsequently asked for Ms. Bull's practice log from the first week of the season to determine whether the timed run would cause her to exceed the limit for weekly practice hours. [Dkt. 72 at 19.] Ms. Bull then texted three student-athletes the following message: "Need a favor. The first week of practice, would u 3 be comfortable saying that we did not practice Tues and Thursday? I know we had a meeting Tuesday but it did not count. The run has to be counted now." [Dkt. 63-1 at 2.]

Mr. Quinn, along with the NCAA Assistant Director of Enforcement, NCAA investigators and outside counsel, subsequently interviewed Ms. Bull and the women's tennis team members. [Dkt.72 at 15-16.] During the interviews, one of Ms. Bull's student-athletes was asked whether she had been asked to be untruthful in reporting her hours. [Dkt. 62-43 at 5.] She answered "yes," and described Ms. Bull's text message to her from the previous day. [Id. at 5-6] Ms. Bull later admitted that she had sent the text messages to the three student-athletes asking them to "misrepresent" hours on the weekly log, and the other two student-athletes later confirmed that they had also received the text message from Ms. Bull. [Dkts. 63-10 at 6; 64-15 at 3-4.] Later that month, while Ms. Bull's team was pending reinstatement with the NCAA, Ms. Bull sent the following text message to the student-athlete captain: "How about u and Hayley running a practice tomorrow?" [Dkts. 63-1 at 2; 74-6 at 6.]

In October 2009, Mr. Quinn self-reported to the NCAA² the events of the preceding month, detailing the NCAA rules Ms. Bull allegedly violated and providing supporting detail and evidence for each violation. [Dkts. 64-6; 64-7.] On October 22, Mr. Collins submitted a letter to Dr. Gora asking her to initiate termination proceedings against Ms. Bull. [Dkt. 64-9.]

Ms. Bull was notified of the initiation of termination proceedings and her entitlement to a hearing. [Dkts. 62-3 at 3-5; 62-4 at 1.] During a hearing before a committee of other BSU faculty, Ms. Bull presented documentary evidence and written argument, and was represented by counsel. [Dkt. 62-4 at 1.] On February 17, 2010, the BSU Hearing Committee Chair issued its finding and recommendation in support of terminating Ms. Bull's employment. [See dkt. 64-12.] The committee specifically found that "all three of the athletes believed [the text] was a request to misrepresent practice activities" and that Ms. Bull's conduct

was a violation of NCAA Bylaw 10.01.1 requiring her to act with honesty and sportsmanship at all times, and the NCAA Constitution § 2.2.5 requiring each member institution to insure that its coaches exhibit fairness, openness and honesty in their relationships with student athletes.

[Dkt. 64-12 at 4.]

On March 5, 2010, Dr. Gora recommended that the Board of Trustees adopt the hearing committee's findings and recommendations, which it did on March 19, 2010. [See Dkt. 64 at 11.]

During Dr. Gora's tenure as BSU President and Mr. Collins' tenure as athletic director, head coaches Greg Beals and Ronny Thompson were also disciplined for alleged misconduct.Mr. Beals was issued a reprimand for his conduct involving an extramarital affair.³ [Dkt. 75-3 at 37.] Mr. Thompson was also issued a reprimand after he committed five NCAA violations during his first year as a Division I coach, one of which was a Rule 10.1 violation, the same rule Ms. Bull was charged with violating. [Id. at 11-12.] When asked why she recommended terminating Ms. Bull's employment following an alleged ethical violation, but not Mr. Thompson's, Dr. Gora answered, "His violations were described as secondary by the NCAA, and he did not ask students to lie." [Id. at 12.]

III.DISCUSSION

Ms. Bull initially sued Dr. Gora, Mr. Collin, Mr. Quinn, and the Board of Trustees of BSU, alleging constitutional deprivations under the First and Fourteenth Amendment, gender discrimination and retaliation under Title IX, and state-law claims of defamation and breach of contract. Following this Court's order granting Defendants' motion for partial dismissal, what remains of Ms. Bull's Complaint are the following claims: against the Board of Trustees of Ball State University. Counts I and IV, which together state Ms. Bull's Title IX retaliation claim; against Dr. Jo Ann Gora, Mr. Thomas Collins, and Mr. Patrick Quinn in their individual capacities Count II, a state law defamation claim, Count V, a § 1983 First Amendment claim, and Count VI, a § 1983 Fourteenth Amendment claim.

A. Title IX Retaliation Claim against BSU Board of Trustees

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