Clark v. Newman Univ., Inc.

431 F.Supp.3d 1246

Destiny CLARK , Plaintiff,

v. NEWMAN UNIVERSITY, INC. and Victor Trilli, Defendants.

Case No. 19-1033-JWB

United States District Court, D. Kansas.

Signed January 3, 2020

Corey M. Adams, Jennifer M. Hill, McDonald Tinker PA, Wichita, KS, for Plaintiff.

Alan L. Rupe, Lewis Brisbois Bisgaard & Smith, LLP-Wichita, Colby Millard Everett, Ellen Catherine Rudolph, Lewis Brisbois Bisgaard & Smith, LLP-Kansas City, Kevin Miller, Baty Otto Coronodo, PC-KC, Kansas City, MO, Nanette Turner Kalcik, Lewis Brisbois Bisgaard & Smith, LLP-Wichita, Jessica L. Skladzien, Wichita State University, Joseph Dempewolf, Klenda Austerman LLC-Wichita, Wichita, KS, for Defendants.

MEMORANDUM AND ORDER

JOHN W. BROOMES, UNITED STATES DISTRICT JUDGE

This case comes before the court on Defendants' motion to dismiss counts 6, 7, 8, and 9 of Plaintiff's complaint (Doc. 6). The motion has been fully briefed and is ripe for decision. (Docs. 7, 16, 17.) Defendants' motion is GRANTED for the reasons stated herein.

I. Facts

The following facts are taken from the allegations in Plaintiff's complaint.¹ Plaintiff Destiny Clark was employed by Defendant Newman University from May 2015 through June 2018 as the head volleyball coach. Plaintiff, an African-American female, was recruited by Defendant Victor Trilli, Newman's athletic director. During Plaintiff's interview with Trilli, Plaintiff expressed interest in another open position, that of the strength coach. Plaintiff had the appropriate certifications for this position and was seeking the position in addition to the volleyball position because of the pay increase. Trilli presented Plaintiff with a written offer of $37,000 for the volleyball position. Trilli also verbally offered Plaintiff the strength position at $20,000. Plaintiff accepted both offers. Plaintiff, however, was never presented with a written offer for the strength position and, when she inquired about the status of her offer, was told by Trilli to focus on being a good volleyball coach.

In 2016, the NCAA began requiring schools to have a strength coach with certifications. Trilli informed all coaches that each coach would train their own athletes but just use Plaintiff's certification to meet the NCAA requirement. Plaintiff objected to Trilli and reminded him of the $20,000 offer for the position. Trilli laughed in Plaintiff's face and told her that he would only give her $2,000 for that. Newman then hired a lesser qualified male for the position at an annual salary of $20,000.

During her tenure at Newman, Plaintiff had to share facilities with other team sports. Plaintiff's team was placed at a lower priority than male teams. Plaintiff made complaints about these conflicts to Trilli. Trilli came into her office to talk about these conflicts. The discussions were "highly personal and upsetting." (Doc. 1 at 5.) The talks included questions about her dating life, if she was going to have children, and her hairstyle. Plaintiff asked a male friend to intervene and inform Trilli to stop having these conversations with Plaintiff. The conversations then stopped.

In meetings with the men's basketball coaching staff, Plaintiff was belittled and openly mocked. Trilli was present in the meetings and did not mediate the conflicts. Later, when Plaintiff reported a conflict or had an issue with scheduling, Plaintiff was told by Trilli to acquiesce to the demands of the men's basketball team.

On two separate occasions, Plaintiff had physical confrontations with a male athlete who was a basketball player (the "athlete") and worked as a janitor around the athletic department.² This athlete allegedly sexually harassed members of the volleyball team. Plaintiff complained about this athlete to Trilli over a two-year period. The athlete disrupted Plaintiff's practices and Plaintiff had to repeatedly ask him to leave the gym. Plaintiff also believed that the athlete stole volleyball equipment and she reported this theft to Trilli.

On October 2, 2017, the athlete was listening to loud music and Plaintiff told him that he needed to leave the gym so that her team could practice. The athlete screamed in Plaintiff's face and charged at her in a threatening manner. (Doc. 1 at 8.) Plaintiff immediately informed Trilli and asked him to ban the athlete from the game that was scheduled on the next day. Trilli did not take action. Plaintiff then informed security and the dean of students. The athlete was banned from the building where Plaintiff's office was located. Despite the ban, the athlete entered the building and used the coaches' copy room. On November 10, 2017, the dean of students warned the athlete about the violation of the ban. On November 20, 2017, Plaintiff obtained a temporary protection from abuse/protection from stalking ("PFS") order from Sedgwick County District Court. (Doc. 1 at 9.) The PFS order prohibited the athlete from contact with Plaintiff and the athletic department building. On December 7, 2017, another hearing was held. The athlete informed the court that he was finished with school in December and he was leaving the state. The court left the order in place until the athlete left Kansas. During the hearing, the athlete told the judge that Trilli had stated that Plaintiff was lying. Plaintiff alleges that Defendants did not take Plaintiff's concerns about the athlete seriously and also highlighted this athlete in a Newman magazine. (Doc. 1 at 11.)

In October 2017, Plaintiff filed a Title IX complaint listing concerns about the athlete's conduct and the failure of the basketball staff to control the athlete. Plaintiff also asserted unequal access to the practice facilities. The complaint was investigated by Mandy Greenfield, the head of Human Resources, and John Walker, a Title IX officer for Newman. During the investigation, Walker told Plaintiff that she should work from home after "multiple situations that left Ms. Clark concerned for her safety." (Doc. 1 at 13.) Newman fired Greenfield and Walker prior to the completion of the investigation because Newman anticipated "a finding of unlawful discrimination." (Doc. 1 at 13.) Levi Esses, Plaintiff's assigned supervisor during the investigation, filed a Title IX complaint against Newman for retaliation by Trilli.

Newman then hired the Lewis Brisbois law firm to start the investigation over. From November 10, 2017, through January 17, 2018, Plaintiff repeatedly requested that she return to campus and coach her team, but her request was denied. Plaintiff returned on January 22, 2018. Trilli refused to speak to Plaintiff for many weeks. After mediation sessions, Trilli agreed that he would provide Plaintiff with a positive reference.

Plaintiff filed this complaint against Defendants on February 14, 2019, after receiving her right to sue letter from the EEOC. Plaintiff alleges the following claims: Title IX retaliation; violation of the Equal Pay Act; Title VII retaliation; hostile work environment; gender discrimination; intentional infliction of emotional distress; negligent hiring/retention; negligent training/failure to train; and negligent supervision. (Doc. 1.) Defendants move to dismiss Plaintiff's claim of intentional infliction of emotional distress and her three negligence claims.

II. Motion to Dismiss Standards

In order to withstand a motion to dismiss for failure to state a claim, a complaint must contain enough allegations of fact to state a claim to relief that is plausible on its face. Robbins v. Oklahoma , 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 127 S. Ct. 1955, 1974, 167 L.Ed.2d 929 (2007) ). All well-pleaded facts and the reasonable inferences derived from those facts are viewed in the light most favorable to Plaintiff. Archuleta v. Wagner , 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations, however, have no bearing upon the court's consideration. Shero v. City of Grove, Okla. , 510 F.3d 1196, 1200 (10th Cir. 2007). Plaintiff must "allege enough factual allegations in the complaint to set forth a plausible claim." Pueblo of Jemez v. United States , 790 F.3d 1143, 1172 (10th Cir. 2015) (internal citations omitted). In the end, the issue is not whether Plaintiff will ultimately prevail, but whether Plaintiff is entitled to offer evidence to support her claims. Beedle v. Wilson , 422 F.3d 1059, 1063 (10th Cir. 2005).

III. Analysis

a. Intentional Infliction of Emotional Distress

Defendant Trilli contends that Plaintiff's complaint fails to support a plausible claim of intentional infliction of emotional distress (or outrage). A claim for outrage under Kansas law requires proof of four elements: (1) Defendant's conduct was "intentional or in reckless disregard" of Plaintiff; (2) "the conduct was extreme and outrageous;" (3) a causal connection between Defendant's conduct and Plaintiff's mental distress; and (4) Plaintiff's "mental distress was extreme and severe." Valadez v. Emmis Commc'ns , 290 Kan. 472, 476, 229 P.3d 389 (2010). There are two threshold requirements that must be met: (1) whether "[D]efendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery," and (2) whether "the emotional distress suffered by Plaintiff is in such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it." Id. at 477, 229 P.3d 389 .

Trilli argues that Plaintiff's allegations cannot meet either requirement. Because the court finds that Plaintiff's allegations are insufficient to show that her emotional distress is extreme, the court does not need to address whether the conduct was extreme and outrageous. See Balmer Fund, Inc. v. City of Harper , 294 F. Supp. 3d 1136, 1151–52 (D. Kan. 2018).

To recover for the tort of outrage, the emotional distress must be "extreme or severe." Valadez , 290 Kan. at 478, 229 P.3d 389 . While "no laundry list of what qualifies as the requisite level of severity" ...