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Tackett v. University of Kansas

United States District Court, D. Kansas

February 10, 2017

DAISY TACKETT, Plaintiff,
v.
UNIVERSITY OF KANSAS, Defendant.

          MEMORANDUM AND ORDER

          J. Thomas Marten Chief United States District Judge

         This is an action against the University of Kansas (“KU”) under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. Before the court is KU's Motion to Dismiss First Amended Complaint (Dkt. 25) and plaintiff's Motion for Leave to File Second Amended Complaint (Dkt. 28). For the reasons stated below, the court grants in part and denies in part defendant's motion to dismiss, and grants plaintiff's motion for leave.

         I. Factual Background [1]

         The First Amended Complaint (“FAC”) alleges that in the Fall of 2014, plaintiff enrolled at KU as a scholarship member of the school's rowing team. During that school year, after attending a Halloween party, plaintiff went to the Jayhawk Towers, where a group of KU students and athletes had gathered. Joe Doe G (“JDG”), a KU football player and a resident of the Jayhawk Towers, was also at the gathering. He invited plaintiff into his apartment to watch television and she agreed. While there, JDG allegedly raped plaintiff. Plaintiff did not report the sexual assault at the time, but did tell a teammate about the incident. Throughout the rest of the school year, she experienced panic attacks on campus and when practicing at KU's football stadium. She tried to have a normal college experience by attending classes, participating in student senate and the KU rowing team, but took measures to avoid meeting JDG on campus.

         Plaintiff returned to KU and the KU rowing team the following academic year (2015-16). The head coach of the KU rowing team was and remains Rob Catloth, and the assistant coach was Carrie Callen.

         In early October of 2015, many members of the rowing team, including plaintiff, met with a KU sports psychologist to discuss their concerns about Coach Catloth's alleged racist remarks and his “relentless” commentary on their weight and body shape. They also discussed their concern that their reports to KU administrator Debbie Van Saun regarding Coach Catloth's conduct were being ignored. The next week, following a competition, Coach Catloth, Asst. Coach Callen, Van Saun, and the rowing team assistant coach told everyone who participated in the meeting with the psychologist to remain and tell them what had been said.

         Later in October 2015, Sarah McClure, another KU rowing team member, told plaintiff that JDG had recently sexually assaulted her at the Jayhawk Towers and that she had reported the assault to the police and to KU. After learning of McClure's attack, plaintiff reported her assault to the rowing team's trainer, who referred her to a KU Athletics Department physician, who referred her to Van Saun, who set up a meeting between plaintiff and KU's Institutional Opportunity & Access (“IOA”) office. The meeting was scheduled at the same time as a KU rowing team practice. Plaintiff informed both Catloth and Callen that she needed to miss practice to attend the IOA meeting.

         After meeting with the IOA investigator, plaintiff encountered JDG on campus at Blake Hall. He stared her down. Plaintiff reported the encounter to the IOA investigator. Later that same week, plaintiff saw JDG in front of Watson Library, where he stared her down and called her a derogatory name. Plaintiff also reported this encounter to the IOA investigator. KU did not issue JDG a no-contact order until months after plaintiff reported her assault and only after she sent a letter specifically demanding its issuance. During October, November and December of 2015, plaintiff's anxiety and panic attacks worsened and would frequently manifest during workouts at the KU football stadium.

         In early December of 2015, Coach Catloth informed plaintiff that he would not allow her to attend the annual winter training trip in Florida later that month. Plaintiff told him about her rape, the continuing investigation, what she had been coping with, how much the trip meant to her, and asked him what she needed to do to go on the trip. He told her she had to get a specific time on a 2K-test. Despite passing the test the very next day, Coach Catloth excluded plaintiff from the list of rowers attending the training trip. Sarah McClure was also not on the list.

         Plaintiff met with the coach and showed him the team test results. Even though she was faster than many of the players on the list, Coach Catloth refused to permit her to attend the winter training. Plaintiff then requested Coach Catloth provide her a letter that would permit her to transfer to another school if necessary. She told him that the rape and stalking (i.e., the two staring encounters at school), in addition to the rowing team issues, may force her to leave. Coach Catloth told her he would give her a transfer letter, but would not permit a transfer to another Big 12 school.

         Plaintiff informed KU's IOA office of Coach Catloth's decision to block her participation in winter training and block her transfer to another Big 12 school, and that she considered these decisions retaliatory in nature. Joshua Jones, KU's interim director of IOA, responded in pertinent part, that athletics make those type of decisions without consideration of any pending IOA matters. SAC, ¶ 65. He encouraged plaintiff to continue her dialogue with her coach. Even though an extra spot opened on the training trip, Coach Catloth did not allow plaintiff to attend.

         After winter break, plaintiff returned to KU for the January 2016 semester. She attended approximately one week of school. KU still had not suspended or expelled JDG or concluded its investigation. Plaintiff decided she had no choice but to withdraw from K U.She told Coach Catloth that she did not want to quit, but that she needed to leave KU until the assault investigation was completed. He told her not to worry about returning her equipment. The Interim IOA director told plaintiff that KU would allow her to withdraw from the university without having to pay for the rest of the semester. Plaintiff returned home to Florida.

         In February of 2016, plaintiff received an email from the rowing coaches for the return of equipment, mostly team-wear. She also received a letter from KU that indicated she would be billed for the semester and that non-payment would result in collections. KU also placed an administrative hold on plaintiff's transcript.

         On February 23, 2016, KU sent plaintiff a letter stating the investigation was completed and that it had recommended to Student Affairs that JDG be permanently expelled from KU. On March 16, 2016, KU represented that JDG agreed to an immediate expulsion to avoid the hearing scheduled on March 21, 2016.

         On March 18, 2016, KU sent plaintiff a letter, stating: “This letter confirms that this matter has been resolved to your satisfaction, without a hearing on the following terms:

• [JDG] has been effectively permanently expelled from [KU]. He was withdrawn from the University effective March 17, 2016. He ...

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