Grevlos v. Augustana Univ.

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LISA GREVLOS and PAUL NESHEIM, Plaintiff, v. AUGUSTANA UNIVERSITY, Defendant.

No. 4:23-CV-04086-KES

United States District Court, D. South Dakota, Southern Division

December 22, 2023

ORDER GRANTING IN PART AND DENYING IN PART AUGUSTANA'S MOTION TO DISMISS, GRANTING LEAVE FOR PLAINTIFFS TO AMEND COMPLAINT, DENYING AUGUSTANA'S MOTION FOR MORE DEFINITIVE STATEMENT, AND GRANTING AUGUSTANA'S MOTION TO STRIKE/DISMISS CERTAIN ALLEGED DAMAGES

KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

Plaintiffs Dr. Lisa Grevlos and Dr. Paul Nesheim, sued defendant Augustana University, alleging Augustana (1) illegally terminated their employment under various federal anti-discrimination statutes and (2) breached the contract each of them had with Augustana. See Docket 1. Augustana moves to dismiss plaintiffs' complaint in its entirety under Federal Rule of Civil Procedure 12(b)(6), or in the alternative, moves to require plaintiffs to submit a more definitive statement under Rule 12(e). Docket 12. Augustana also moves to strike and dismiss certain damages requested by plaintiffs. See Docket 13 at 25-26. After considering the parties' arguments, the court issues the following order.

I. Facts

Plaintiffs allege the following in their complaint:

Dr. Grevlos and Dr. Nesheim were tenured faculty members in Augustana University's School of Music. Docket 1 ¶ 1. Dr. Grevlos taught at Augustana for thirty years and was a tenured faculty member for seventeen years. Id. ¶ 8. While Dr. Grevlos was a tenured faculty member, Augustana appointed her to be the Director of Vocal Studies in 2010, promoted her to full professor in 2015, appointed her to be the Director of the Augustana Summer Music Camp in 2017, and appointed her to be the Chair of the Music Department/School of Music in 2018. Id. ¶ 9. In her evaluations, Dr. Grevlos was “found to be highly competent and excellent in her work, scholarship, and service as a music faculty member” and she received various state, regional and national recognitions and awards. Id. ¶ 10. As of May 26, 2023, Dr. Grevlos was 58 years of age. Id. ¶ 12.

Dr. Nesheim began working as a professor at Augustana in 2012. Id. ¶ 14. In 2015, Augustana granted Dr. Nesheim tenure and promoted him to full professor, and in 2017, Augustana appointed him to be the Director of Choral Activities for the Music Department/School of Music. Id. Like Dr. Grevlos, Dr. Nesheim was evaluated “to be highly competent and excellent in his work, scholarship, and service as a music faculty member” and he received various state, regional and national recognitions and awards. Id. ¶ 16. As of May 26, 2023, Dr. Nesheim was 62 years of age. Id. ¶ 17.

On May 27, 2020, Augustana announced the selection of Dr. Peter Folliard as the Dean of the School of Music. Id. ¶ 24. Sometime between September 2020 and March 2021, Dr. Folliard had a series of scheduled meetings with Dr. Russell Svenningsen. Id. ¶ 31. Dr. Folliard and Dr. Svenningsen, both males, excluded Dr. Grevlos, a female, from these scheduled meetings so that they could engage in “real talk.” Id. Dr. Folliard also told Dr. Nesheim that including Dr. Grevlos could make the meetings “emotional.” Id.

On April 6, 2021, Dr. Grevlos filed a Title IX complaint alleging discrimination and retaliation by Dr. Folliard and Dr. Svenningsen. Id. ¶ 35. Dr. Grevlos also told Augustana officials that Dr. Nesheim would be a witness for her. Id. Three days later, on April 9, 2021,^[1]Augustana removed Dr. Grevlos from the positions of Department Chair, Director of Vocal Studies, and Director of the Augustana Summer Music Camp. Id. ¶ 39. Augustana also reduced Dr. Grevlos's salary. Id. Augustana used Dr. Grevlos's annual salary, based on 29 years of teaching, as a basis to change her teaching load and remove students from her courses, while younger, male colleagues' teaching loads stayed the same. Id. ¶ 40. Additionally, Dr. Folliard appointed Dr. Svenningsen to Dr. Grevlos's position as the Director of Vocal Studies. Id. ¶ 41. Augustana eliminated the Augustana Summer Music Camp previously led by Dr. Grevlos and established separate summer camps in 2022. Id. Augustana appointed younger, male faculty to lead these new, separate summer camps. Id.

Also on April 9, 2021, Augustana removed Dr. Nesheim as Director of Choral Studies and Artistic Director of Vespers. Id. ¶ 37. Dr. Folliard replaced Dr. Nesheim as Artistic Director of Vespers. Id. Prior to Dr. Nesheim's removal as artistic director of Vespers, Dr. Folliard told Dr. Nesheim that anonymous leaders described Vespers as “tiring” and that Dr. Svenningsen called Vespers “old-fashioned.” Id. ¶ 38.

In July 2021, Dr. Grevlos learned that her Title IX complaint would not proceed and that her concerns would be sent to Augustana's Provost, Colin Irvine. Id. ¶ 42. In September 2021, after Dr. Grevlos repeatedly requested her Title IX report, Augustana gave it to her. Id. ¶ 43. On November 12, 2021, during a meeting that Provost Irvine and Vice President of Human Resources Deanna Versteeg had with Dr. Grevlos, Provost Irvine threatened to dismiss Dr. Grevlos if Dr. Grevlos continued her “pattern of discontent,” referring to her Title IX complaint.^[2]Id. ¶ 44. Dr. Grevlos was also told that her complaints were “problematic.” Id. ¶ 45.^[3] On November 19, 2021, Dr. Grevlos filed a complaint with the U.S. Office of Civil Rights (OCR) regarding Provost Irvine's threat and the way Dr. Folliard and Dr. Svenningsen continued to treat her. Id. ¶ 46. On January 4, 2021, Dr. Nesheim also filed a complaint with the OCR regarding the way Dr. Folliard and Svenningsen treated him and his related support of Dr. Grevlos and participation as a witness in her Title IX complaint. Id. ¶ 47.

A year later, in January 2022, the OCR referred Dr. Grevlos's and Dr. Nesheim's complaints to the EEOC and notified Augustana of such referrals. Id. ¶ 49. On February 25, 2022, Dr. Folliard removed Dr. Nesheim as conductor of the Augustana Choir and replaced Dr. Nesheim with Dr. Svenningsen. Id. ¶ 50. On that same day, Dr. Folliard removed Dr. Grevlos as conductor of the Angelus Choir and Director of Opera Theatre, which resulted in removing her from the choral area entirely. Id. Dr. Folliard assigned Dr. Nesheim to conduct the Angelus Choir. Id.

In June 2022, Dr. Grevlos and Dr. Nesheim had to refile their charges with the EEOC due to OCR making a mistake in referring Dr. Grevlos's and Dr. Nesheim's original complaints. Id. ¶ 51. On February 24, 2023, Dr. Grevlos and Dr. Nesheim requested a notice of right to sue from the EEOC. Id. ¶ 66. Three days later, on February 27, 2023, the EEOC notified Augustana of these requests. Id. ¶ 68. That same day, on February 27, 2023, President Stephanie Herseth Sandlin issued a dismissal for cause letter terminating Dr. Nesheim. Id. ¶ 69. A week later on March 3, 2023, President Herseth Sandlin issued a dismissal for cause letter terminating Dr. Grevlos. Id. ¶ 70.

Dr. Nesheim and Dr. Grevlos filed grievances with Augustana's Faculty Grievance Committee (FGC) regarding their terminations. Id. ¶ 72. The FGC held a grievance hearing and issued its findings in support of Augustana dismissing both Dr. Nesheim and Dr. Grevlos. Id. ¶ 73-74. President Herseth Sandlin's termination decisions became effective for Dr. Grevlos and Dr. Nesheim on May 24, 2023. Id. ¶¶ 69-70. In terminating Dr. Grevlos and Dr. Nesheim, plaintiffs allege that Augustana failed to follow several procedures set forth in Augustana's Faculty Handbook, such as failing to give them reasonable time to remedy any issues, failing to provide them a statement of reasons for termination based on evidence, failing to provide them a statement of charges, and failing to demonstrate that their termination was for cause. Id. ¶¶ 134-35.

II. Discussion

A. Motion to Dismiss

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff's claim is facially plausible where “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). To determine whether each allegation is plausible, the court must read the complaint “as a whole, not parsed piece by piece . . . in isolation[.]” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). The court must construe the complaint's well-pleaded allegations in the light most favorable to plaintiffs. See Faulk, 30 F.4th at 744.

At the motion to dismiss stage in discrimination claims, “[i]t is not appropriate to require a plaintiff to plead facts establishing a prima facie case.” Wilson v. Ark. Dep't of Hum. Servs., 850 F.3d 368, 372 (8th Cir. 2017) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002)). At the same time, the elements of the prima facie case are still relevant because they “are part of the background against which a plausibility determination should be made.” Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016) (quotation omitted). Thus, “the elements of a prima facie case may be used as a prism to shed light upon the plausibility of the claim.” Id. At this stage, the ultimate inquiry is whether “the complaint . . . include[s] sufficient factual allegations to provide the grounds on which the claim rests.” Id. at 1056 (emphasis omitted) (quoting Gregory v. Dillard's, Inc., 565 F.3d 464, 473 (8th Cir. 2009) (en banc)).

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