Conviser v. DePaul Univ.

649 F.Supp.3d 686

Dr. Jenny H. CONVISER and Ascend Consultation in Health Care, LLC, Plaintiffs, v. DEPAUL UNIVERSITY, Defendant.

No. 20-cv-03094

United States District Court, N.D. Illinois, Eastern Division

Signed January 9, 2023

Adele P. Kimmel, Alexandra Z. Brodsky, Pro Hac Vice, Trial Lawyers for Public Justice, Washington, DC, Arthur Bresnahan, Zumpano Patricios and Bresnahan, LLC, Chicago, IL, Michael S. Popok, Pro Hac Vice, Zumpano Patricios & Popok, PLLC, New York, NY, for Plaintiffs.

Christina M. Egan, Amy L. Starinieri Gilbert, Melissa Marie Weiss, McGuire Woods LLP, Chicago, IL, Heidi E. Siegmund, Pro Hac Vice, McGuireWoods LLP, Richmond, VA, for Defendant.

MEMORANDUM OPINION AND ORDER

Franklin U. Valderrama, United States District Judge

The breadth of Title IX is, once again, before the Court. Plaintiffs Dr. Jenny H. Conviser (Dr. Conviser) and Ascend Consultation in Health Care, LLC (Ascend) (collectively, Plaintiffs) have filed a Second Amended Complaint (SAC) against DePaul University (DePaul) asserting wrongful retaliation under Title IX, 20 U.S.C. § 1681, et seq. (Count I), as well as state law claims for breach of contract (Count II) and indemnification (Count III). R. 47, SAC.¹ DePaul has moved to dismiss the SAC, arguing once more—and consistent with the Court's previous ruling—that independent contractors lack statutory standing under Title IX. R. 48, Mot. Dismiss. Upon this round of briefing, however, the Court finds that Plaintiffs' interests fall within Title IX's zone of interests. The Court therefore grants in part and denies in part DePaul's motion to dismiss.

Background

I. The Parties

Dr. Conviser is a licensed clinical psychologist engaged in the fields of sports psychology and clinical psychology. SAC ¶ 19.² DePaul is a large Catholic and not-for profit university which receives federal financial assistance. Id. ¶ 6. From 2005 to 2018, through her companies, Dr. Conviser provided mental health care and eating disorder treatment to student-athletes, managers, trainers, coaches and other staff in DePaul's athletics program (DePaul Athletics). Id. ¶¶ 1, 30, 35.

Dr. Conviser owns Ascend, an Illinois limited liability company, which provides professional services for the evaluation and treatment of athletes' mental illnesses, emotional states, and related nutritional needs. SAC ¶¶ 5, 29. During all times relevant to this lawsuit, Dr. Conviser, through Ascend, employed ten to twelve therapists, as well as nutritionists and administrators, all of whom Dr. Conviser supervised. Id. ¶ 29.

II. The Professional Services Agreement

Between 2005 and 2017, Dr. Conviser's companies and DePaul entered into numerous agreements. SAC ¶ 31. When the contracts expired in accordance with their terms, DePaul and Dr. Conviser's companies routinely entered into new but nearly identical contracts. Id. In June 2017, DePaul and Ascend entered into a new four-year Professional Services Agreement (PSA) that allowed DePaul to refer student-athletes to Ascend for mental health services. SAC ¶¶ 32, 105; R. 49-1, Professional Services Agreement (PSA).³ The PSA reads, in relevant part:

WHEREAS, DePaul requires the services of professionals specializing in the evaluation and treatment of mental illnesses, issues of a psychological nature, and nutritional therapy for student-athletes at DePaul;

WHEREAS, DePaul desires to continue to refer certain student-athletes to obtain clinical psychological and/or counseling services on a non-exclusive basis from the professionals of Ascend;

WHEREAS, AscendCHC is willing to provide clinical psychology assessment and psychotherapy and nutrition assessment, education and support for student-athletes at DePaul University who have been pre-approved by the University for such services;

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1. TERM

The term of the Agreement will be for four (4) years beginning July 1, 2017 ("the Effective Date"), and ending June 30, 2021 (the "Termination Date").

2. REFERRAL

(a) DePaul may refer student-athletes that it believes are in need of clinical psychological assessment to Ascend. Ascend will provide a preliminary assessment for such student-athlete and make a recommendation as to the form of further treatment.

(b) Ascend agrees to conduct a preliminary evaluation of illnesses of a psychological or nutritional nature of the student-athletes referred to it by DePaul on a non-exclusive basis.

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9. INDEMNIFICATION

(a) To the fullest extent permitted by law, each Party ("the Indemnifying Party") shall defend, indemnify, and hold harmless the other party ("the Indemnified Party"), its agents, employees, affiliates, trustees, director, officers, faculty members, past or present, from and against any and all claims, damages, losses, and expenses including, but not limited to, reasonable attorneys' fees, arising out of or relating to any actual or alleged (i) misrepresentation, breach of warranty, breach of promise, or breach of covenant by the Indemnifying Party of any representation, warranty, promise, or covenant in this Agreement; and (ii) personal injury or property damage caused, in whole or in part, by the acts, errors or omissions of the Indemnifying Party, its employees, agents, representatives or subcontractors arising out of or related to the Indemnifying Party's performance of its obligations in this Agreement.

(b) The Indemnified Party agrees to notify the Indemnifying Party of the existence of any such claims or causes of action within a reasonable time after the Indemnified Party learns of such claim or cause of action. The Indemnifying Party shall not compromise or settle any claim covered by this indemnification provision without the Indemnified Party's consent.

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11. INDEPENDENT CONTRACTOR

(a) Ascend is an independent contractor of DePaul, and neither AscendCHC nor any of its employees or contracted health service providers are employees, agents, joint venturers or partners of DePaul.

(b) AscendCHC agrees not to market or hold itself out publicly as an employee of DePaul or as the exclusive or official sports psychologist of DePaul Athletics.

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14. TERMINATION

(a) This Agreement shall only be terminated prior to the Termination Date with prior written notice as fully set forth below or as otherwise provided in Section 14:

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(b) This Agreement may be terminated with prior written notice as fully set forth below:

(i) By either party, upon the material breach of any term of this Agreement, provided thirty (30) days prior written notice is delivered to the breaching party and the cause giving rise to the claimed breach has not been cured within the thirty (30) day notice period.

PSA at 1, 4-5, 7 (emphasis in original).

III. Plaintiffs' Roles at DePaul

Through her companies, Ascend and Insight, Dr. Conviser provided mental health services to DePaul student-athletes, coaches, managers, trainers, and other staff. SAC ¶ 30. These mental health services were provided through a referral process, in which DePaul would refer student-athletes to Dr. Conviser's company, the company would assess the student-athletes and recommend treatment plans, and DePaul would pay the company for its services. Id. ¶ 32. Dr. Conviser directly treated many DePaul student-athletes and staff and directed the treatment of patients primarily treated by Ascend's other therapists. Id. ¶¶ 38-40.

In addition to providing mental health services for DePaul Athletics, DePaul directed Dr. Conviser to play a role in ensuring that DePaul complied with NCAA policies and relevant federal law, including Title IX. SAC ¶ 43. In that vein, Dr. Conviser represented DePaul Athletics at the NCAA Big East Mental Health Summits, participated in DePaul's compliance reports to the NCAA, and designed on-campus advertising efforts, training, and faculty counseling to increase awareness of DePaul's available mental health services for students and staff. Id. ¶¶ 33-34. DePaul (and Dr. Conviser's professional licensing) also required Dr. Conviser to participate in investigations into misconduct within DePaul Athletics of which she was aware. Id. ¶ 47.

DePaul provided Dr. Conviser with an on-campus office in DePaul Athletics and held out Dr. Conviser's company as "DePaul's provider" of mental health services. SAC ¶ 34. DePaul informed student-athletes that it would only pay for specialized athletic mental health care if it was provided by Dr. Conviser's company. Id.

IV. Plaintiffs' Reports of Abuse and the Aftermath

When patients told Dr. Conviser or other Ascend therapists that they had experienced or witnessed abuse, Dr. Conviser worked with the patients to help them understand their rights and options for reporting. SAC ¶ 49. When appropriate, Dr. Conviser would also seek the patients' permission to report those abuses to DePaul Athletics. Id.

In Fall 2016, Dr. Conviser informed the Associate Athletics Director and Director for Sports Medicine, Dr. Sue Walsh (Walsh), and then-Assistant Athletics Directory Kathryn Statz (Statz) of some disturbing allegations against DePaul's acclaimed softball coach Eugene Lenti (Lenti). SAC ¶¶ 2, 50. Specifically, Dr. Conviser reported that Lenti was "out-of-control," and that he was frequently verbally and physically abusive to his staff and players. Id. ¶ 50. For example, Dr. Conviser reported that Lenti regularly called his players gendered epithets like "f---ing whores" and "sensitive bitches." Id. Rather than investigate Lenti in light of these allegations, Walsh and Statz directed Dr. Conviser to meet with Lenti and his staff to address the issues and educate them about Title IX. Id. ¶ 55.

In December 2017, Dr. Conviser met with DePaul's Athletics Director, Jean Lenti Ponsetto (Ponsetto), who is also Coach Lenti's sister. SAC ¶¶ 42, 61. Walsh and Dr. Jill Hollembeak (Hollembeak), who replaced Statz as Assistant Athletics Director, were also in attendance. Id. ¶ 61. At the meeting, Dr. Conviser, again, relayed specific instances of Lenti abusing student-athletes and coaches and stated her concern that Lenti's conduct was...