Lowrey v. Texas a & M University System

11 F.Supp.2d 895

Jan LOWREY, Plaintiff, v. TEXAS A & M UNIVERSITY SYSTEM d/b/a Tarleton State University; Dr. Dennis McCabe, Individually and as President of Tarleton; Mr. Lonn Reisman, Individually and as Athletics Director of Tarleton; Dr. Lamar Johanson, Individually and as Faculty Athletics Representative of Tarleton; and Mr. Jim Johnson, Individually and as Men's Athletics Coordinator and NCAA Compliance Officer of Tarleton, Defendants.

No. CIV. A. H-96-0834.

United States District Court, S.D. Texas, Houston Division.

May 27, 1998.

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Diane Madeline Henson, Austin, TX, LaNelle L. McNamara, McNamara & McNamara, Waco, TX, for Jan Lowrey, Plaintiff.

Dona Glimm Hamilton, Office of Attorney General, Austin, TX, for Texas A & M University System, Dennis McCabe, Lonn Reisman, Lamar Johanson, Jim Johnson, Pat Stevenson, Susan Burton, Defendants.

OPINION AND ORDER

LAKE, District Judge.

The former Women's Basketball Coach at Tarleton State University alleges that the university and four of its officials discriminated against her on the basis of her sex and retaliated against her when she complained. Pending before the court is Defendants' Amended Motion for Summary Judgment (Docket Entry No. 30). The court will grant in part and deny in part the motion.

I. BACKGROUND

Tarleton State University (Tarleton) is a four-year coeducational institution of higher education located in Stephenville, Texas.¹ Tarleton is managed and controlled by the Board of Regents of the Texas A & M University System.² Dr. Dennis McCabe is the President of Tarleton.³ Lonn Reisman is Men's Basketball Coach and Athletics Director.⁴ Dr. Lamar Johanson is Dean of the College of Arts and Sciences and Tarleton's Faculty Representative to the NCAA.⁵ Jim Johnson is the Men's Athletics Coordinator and the NCAA Compliance Coordinator for Tarleton and a physical education teacher.⁶

A. Twenty Years of Coaching

Jan Lowrey became Women's Basketball Coach at Tarleton in the fall of 1976.⁷ Over the next twenty years Lowrey's teams were very successful. Her teams won twenty or more games in each of her first nine years as coach.⁸ They won several conference championships, and in 1992 the team placed second in the Division II national women's basketball tournament.⁹

Lowery's success did not lead to improved conditions for the women's basketball team. For example, the locker room used by the women's team from the early 1980s was the former men's visiting-team dressing room. The room had "a `gang' shower, four urinals and one toilet, one sink, no dressing tables, no outlets for hair dryers, no storage, and inadequate lockers."¹⁰ Tarleton repeatedly ignored requests from Lowrey for renovations. Lowrey and the team manager ultimately installed shower rods and curtains to divide the showers. Tarleton finally removed the urinals in 1996, but it did not install toilets to replace them.¹¹

In 1988 Tarleton hired Lonn Reisman as Men's Basketball Coach. During his first year Reisman's salary was less than Lowrey's.¹² The year before Reisman was hired the men's team won three games and lost twenty-five. In Reisman's first year (1988-89) the men's team improved its record to eighteen wins and eleven losses. The women's team had twenty wins and ten losses that year. Both Lowrey and Reisman received a $1,400 raise in salary as a reward for their winning seasons.¹³ In the Spring of 1989 then-Tarleton President Barry Thompson created the position of Assistant Athletics Director and appointed Reisman to the post.¹⁴ Tarleton did not give Lowrey an opportunity to apply for this position.¹⁵ Reisman then held the positions of Assistant Athletics Director, Men's Basketball Coach and a physical education instructor.¹⁶ By the 1989-90 fiscal year, Reisman's second year at Tarleton and his first year as Assistant Athletics Director, Tarleton was paying Reisman a higher salary than it paid Lowrey, who by then had coached and taught at the university for thirteen years. Tarleton paid Reisman $36,899 and Lowrey $31,137 that year.¹⁷

On August 27, 1993, Dr. Ron Newsome, Tarleton's Athletics Director, resigned.¹⁸ Although Lowrey was a head coach in the Athletics Department, she learned of Newsome's resignation through the press, not from the university.¹⁹ Over the next few days a Tarleton search committee interviewed three candidates to fill the vacancy: Reisman, Lowrey, and the new football coach, Ronnie Roemisch.²⁰ On September 1, 1993, McCabe offered the position of Athletics Director to Reisman.²¹ Dr. McCabe explained to Lowrey that although she was equally qualified for the position, "he `was going with Lonn.'"²²

Lowrey asked Reisman and McCabe to create the position of Associate Athletics Director for her, with a raise in pay commensurate with the duties and responsibilities of such an office. Instead, Reisman offered her the position of Women's Athletics Coordinator.²³ Although this position required Lowrey to assume several new duties,²⁴ the evidence is unclear whether she received an increase in pay for taking this position.²⁵

Earlier that year, on January 28, 1993, McCabe had appointed Lowrey to a special task force to study gender equity at Tarleton.²⁶ On November 17, 1993, Dr. Janet Schmelzer, an Associate Professor of History at Tarleton, filed a complaint with the Department of Justice's Office of Civil Rights (OCR) alleging sex discrimination at Tarleton in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (1994).²⁷ Schmelzer's complaint included several allegations of Title IX violations in Tarleton's Athletics Department. In May of 1994, Schmelzer agreed to withdraw her complaint while the parties attempted to mediate the dispute.²⁸

Beginning in April of 1994 Reisman began filing several "incident reports" in Lowrey's personnel file, noting among other problems, days when Lowrey was absent from work, arrived late, or left early without notifying Reisman.²⁹ On September 29, 1994, Reisman conducted a performance review of Lowrey and gave her an average rating of 2.0 on a scale of 1 to 5 (lowest to highest) in nine categories.³⁰ Reisman sent a copy of the review to Lowrey on October 3, 1994.³¹ On October 5, 1994, Reisman recommended that McCabe terminate Lowrey as Women's Athletics Coordinator.³² Reisman did not notify Lowrey of his recommendation. Reisman reiterated his views in an October 26, 1994, memorandum to McCabe, stating that he "strongly recommend[ed] the reassignment of Ms. Jan Lowrey from Women's Athletics Coordinator/Head Women's Basketball Coach, effective immediately, to Head Women's Basketball Coach."³³

In an October 28, 1994, letter Schmelzer reminded McCabe of his promise not to allow retaliation against persons who spoke to her regarding matters raised by her OCR complaint and warned him that Title VI would forbid such retaliation regardless of McCabe's promises.³⁴ On November 4, 1994, President McCabe reassigned Lowrey. She remained Women's Basketball Coach and an instructor in the Physical Education Department, and her salary did not change.³⁵ Eventually, Lowrey sought employment elsewhere. She resigned from Tarleton on July 15, 1996, and took the head coach's position for the San Jose Lasers, a professional women's basketball team.³⁶ The Lasers released her from her two-year contract after her first year with the club.³⁷ She still earns a salary under her contract with the Lasers, but is not currently coaching basketball.³⁸

B. Litigation Summary

On September 1, 1995, Lowrey filed Civil Action H-95-4335 in this court alleging employment discrimination and retaliation in violation of Title IX of the Civil Rights Act of 1972, 20 U.S.C. §§ 1681-1688 (1994), and intentional infliction of emotional distress under Texas common law. The action was assigned to another member of the court. Lowrey's complaint named the Texas A & M University System, d/b/a Tarleton State University, as well as Dr. Dennis McCabe, Mr. Lonn Reisman, Dr. Lamar Johanson, Mr. Jim Johnson, Ms. Pat Stevenson, and Ms. Susan Burton in their individual and official capacities, as defendants. When the defendants moved for dismissal, Lowrey sought leave to amend her complaint to add claims under Title VII, the Equal Pay Act, 42 U.S.C. § 1983, and the First, Fifth, and Fourteenth Amendments to the United States Constitution. Without addressing Lowrey's motion for leave to amend, the court dismissed the action and entered a final judgment in favor of the defendants. Lowrey appealed. See generally Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 245 (5th Cir.1997) (hereinafter Lowrey I).

On March 12, 1996, while her appeal was pending, Lowrey filed the present action, Civil Action H-96-0834, that included the causes of action she had sought to add to Civil Action H-95-4335. This new action was assigned to the undersigned judge. On December 3, 1996, Lowrey filed an amended complaint in the new action against the Texas A & M University System d/b/a Tarleton State University and McCabe, Reisman, Johanson, and Johnson in both their individual and official capacities. All defendants filed a motion to dismiss and for summary judgment on January 31, 1997.

On July 7, 1997, the court of appeals affirmed in part, reversed in part, and remanded Civil Action H-95-4335. The court held that the district court had abused its discretion by failing to allow Lowrey to amend her complaint, but that the error was moot because she had refiled under Civil Action H-96-0834 the same causes of action that she had attempted to amend to her first suit. Lowrey I, 117 F.3d at 246. The court affirmed the district court's dismissal of Lowrey's employment discrimination claim brought under Title IX, but reversed and remanded the dismissal of Lowrey's Title IX retaliation claim.

On August 14, 1997, the defendants filed an unopposed motion to consolidate Civil Action H-95-4335 into Civil Action H-96...