Douglass v. Garden City Cmty. Coll.

652 F.Supp.3d 1329

Antonia DOUGLASS and Elizabeth Everett, Plaintiffs, v. GARDEN CITY COMMUNITY COLLEGE, et al., Defendants.

CIVIL ACTION No. 20-2076-KHV

United States District Court, D. Kansas

Signed January 23, 2023

Sarah A. Brown, Brown & Curry, LLC, Kansas City, MO, Jean Lamfers, Lamfers & Associates, LC, Kansas City, MO, for Plaintiffs.

Alan L. Rupe, Jeremy K. Schrag, Lewis Brisbois Bisgaard & Smith, LLP, Wichita, KS, Mallory N. McDonald, Haley Ann Phillips, Karly Dorann Weigel, Lewis Brisbois Bisgaard & Smith, LLP, Kansas City, MO, for Defendants Garden City Community College, Rodney Dozier, Merilyn Douglass, Blake Wasinger, Jeff Crist, Steve Martinez, Teri Worf, Brice Knapp.

Alan L. Rupe, Jeremy K. Schrag, Lewis Brisbois Bisgaard & Smith, LLP, Wichita, KS, Mallory N. McDonald, Haley Ann Phillips, Karly Dorann Weigel, Lewis Brisbois Bisgaard & Smith, LLP, Kansas City, MO, Ronald P. Pope, Ralston, Pope & Diehl LLC, Topeka, KS, for Defendant Herbert J. Swender.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, United States District Judge

Antonia Douglass filed suit against Garden City Community College ("GCCC") and Herbert J. Swender, Rodney Dozier, Merilyn Douglass, Blake Wasinger, Jeff Crist, Steve Martinez, Teri Worf and Brice Knapp in their individual capacities ("GCCC defendants"). Plaintiff alleges retaliation under Title IX, 20 U.S.C. § 1681 et seq., and violations of federal civil rights under the First and Fourteenth Amendments, U.S. Const. amends. I and XIV, and 42 U.S.C. § 1983. Pretrial Order (Doc. #224) filed September 22, 2022. This matter is before the Court on Garden City Community College Defendants' Motion For Summary Judgment Against Plaintiff Antonia Douglass (Doc. #268) filed November 16, 2022. For reasons stated below, the Court sustains defendants' motion in part.

Legal Standard

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Hill v. Allstate Ins. Co., 479 F.3d 735, 740 (10th Cir. 2007). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence in support of a party's position. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). Once the moving party meets the initial burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial as to those dispositive matters for which she carries the burden of proof. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To carry her burden, the nonmoving party may not rest on her pleadings but must instead set forth specific facts supported by competent evidence. Nahno-Lopez, 625 F.3d at 1283.

The Court views the record in the light most favorable to the nonmoving party. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). It may grant summary judgment if the nonmoving party's evidence is merely colorable or is not significantly probative. Liberty Lobby, 477 U.S. at 250-51, 106 S.Ct. 2505. In response to a motion for summary judgment, a party cannot rely on ignorance of facts, speculation or suspicion and may not escape summary judgment in the mere hope that something will turn up at trial. Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). The heart of the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505.

Factual Background

The following facts are uncontroverted or viewed in a light most favorable to plaintiff, the nonmoving party.

GCCC is a community college in Garden City, Kansas, which receives federal financial assistance. Herb Swender was President from January of 2011 until he resigned in August of 2018. From April of 2014 through March 29, 2018, Brice Knapp was GCCC cheerleading coach. Rodney Dozier is Chief of Police for the GCCC Police Department. Blake Wasinger, Jeff Crist, Steven Martinez, Teri Worf and Merilyn Douglass were GCCC Trustees during 2017 and 2018.

GCCC Board And Policies

GCCC Trustees follow the "Carver Model" of policy governance: they supervise the President and leave administrative matters to the discretion of the President, the ultimate decision maker. GCCC's Trustees do not focus on day-to-day operations. In accordance with this model, the President sends weekly updates to GCCC Trustees. Although the Board of Trustees could challenge the President's Title IX decisions, it delegated all authority to the President.

The GCCC Student Handbook stated as follows: "Any person believing that he or she has been subject to unlawful harassment, as set forth in this policy, should utilize the Discrimination or Harassment Complaint Procedure, as found in the Student Handbook." Ex. E, Student Handbook (Doc. #215-5) at 10. That procedure did not actually appear, however, in the 2017-2018 Student Handbook. The Student Handbook referred to Section 106.8 of Title IX for investigation procedures. Until Congress amended Section 106.8 in May of 2020, the regulation directed recipients to adopt and publish Title IX procedures to resolve student and employee complaints.

From 2016 to 2018, Melanie Hands and Colin Lamb were Title IX investigators. During this time, before he became President in January of 2019, Ryan Ruda was a Title IX coordinator, investigator, Vice President of Student Services and Dean of Student Services. Coach Knapp testified repeatedly that he did not remember receiving training for sexual harassment, discrimination or Title IX generally. He was not aware that GCCC had a Title IX coordinator or investigator. Emily Clouse, Director of Human Resources, did not recall receiving Title IX training. John Green, Athletic Director, never read Title IX policies and procedures and never investigated a Title IX complaint.

Title IX Complaints

Between 2015 and April of 2018, GCCC received more than a dozen complaints about Knapp and other Title IX concerns at GCCC. For more than 25 years, plaintiff has been an active participant in GCCC programs and events, a host mom for GCCC student athletes, a volunteer for the GCCC Endowment Association and a booster for the Broncbusters Athletic Association, an athletic fundraising organization. Starting in 2017, individuals began to share concerns with plaintiff about past and ongoing treatment of female students at GCCC—in particular, Knapp's inappropriate behavior toward female cheer squad members. Plaintiff privately reached out to GCCC administrators and encouraged students, parents and others to report their Title IX concerns to GCCC through appropriate channels. She also offered to deliver their messages to the GCCC Board of Trustees ("the Board") to substantiate the depth and breadth of the problems. When GCCC administrators and the Trustees failed to act, plaintiff came to believe that that GCCC was intentionally scuttling any complaints.

Plaintiff was an ally for Title IX reporters on campus. On February 23, 2018, cheer student Elizabeth Everett texted plaintiff that she needed help because she felt uncomfortable and intimidated in a meeting with Athletic Director Green, Knapp and a male cheer student whom Everett had reported to Green and Knapp. Specifically, Everett had reported that the male cheer student had blackmailed her for sex. Plaintiff drove to campus and pulled Everett from the meeting. Plaintiff did not feel comfortable after seeing Everett "curled up in a chair" with "four men in [the] room staring at her." Exhibit 18 (Doc. 274-16) at 35:21-36:1. After the meeting, plaintiff began contacting other cheerleaders and parents to collect statements about their Title IX concerns.

On March 26, 2018, President Swender emailed the Trustees, Randy Grisell (GCCC counsel) and HR Director Clouse, stating that he had retained Bev Temaat, the Title IX Coordinator for Dodge City Community College, to investigate the cheer student complaints. Temaat was not trained as an investigator. Swender asked Temaat to assist with the investigation because he had determined that Ruda and Lamb, who served as Title IX coordinators and investigators, might have personal conflicts of interest.

At the beginning of her investigation, Temaat did not believe that Knapp or the cheerleader complaints were the focus of her fact-finding mission. Temaat believed that Swender had asked her to determine whether GCCC needed Title IX investigations.

Temaat made three visits to GCCC. The first was to meet with Swender and Grisell. The second was to meet with HR Director Clouse. After the second meeting, Temaat told Swender that GCCC had complex and greatly expanding Title IX issues.

In April of 2018, Temaat informed Swender and Grisell that she had completed her work and identified at least four or five Title IX situations that warranted immediate investigation by a team of investigators. Temaat did not conduct a Title IX investigation or complete any reports and felt misled regarding her role at GCCC. Clouse testified that Temaat completed a Title IX report, but Temaat insisted that she never conducted a Title IX investigation and that she clearly informed Swender, Grisell and...