United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES, UNITED STATES DISTRICT JUDGE.
case comes before the court on Defendants' motion to
dismiss counts 6, 7, 8, and 9 of Plaintiff's complaint
(Doc. 6). The motion has been fully briefed and is ripe for
decision. (Docs. 7, 16, 17.) Defendants' motion is
GRANTED for the reasons stated herein.
following facts are taken from the allegations in
Plaintiff's complaint. Plaintiff Destiny Clark was employed by
Defendant Newman University from May 2015 through June 2018
as the head volleyball coach. Plaintiff, an African-American
female, was recruited by Defendant Victor Trilli,
Newman's athletic director. During Plaintiff's
interview with Trilli, Plaintiff expressed interest in
another open position, that of the strength coach. Plaintiff
had the appropriate certifications for this position and was
seeking the position in addition to the volleyball position
because of the pay increase. Trilli presented Plaintiff with
a written offer of $37, 000 for the volleyball position.
Trilli also verbally offered Plaintiff the strength position
at $20, 000. Plaintiff accepted both offers. Plaintiff,
however, was never presented with a written offer for the
strength position and, when she inquired about the status of
her offer, was told by Trilli to focus on being a good
2016, the NCAA began requiring schools to have a strength
coach with certifications. Trilli informed all coaches that
each coach would train their own athletes but just use
Plaintiff's certification to meet the NCAA requirement.
Plaintiff objected to Trilli and reminded him of the $20, 000
offer for the position. Trilli laughed in Plaintiff's
face and told her that he would only give her $2, 000 for
that. Newman then hired a lesser qualified male for the
position at an annual salary of $20, 000.
her tenure at Newman, Plaintiff had to share facilities with
other team sports. Plaintiff's team was placed at a lower
priority than male teams. Plaintiff made complaints about
these conflicts to Trilli. Trilli came into her office to
talk about these conflicts. The discussions were
“highly personal and upsetting.” (Doc. 1 at 5.)
The talks included questions about her dating life, if she
was going to have children, and her hairstyle. Plaintiff
asked a male friend to intervene and inform Trilli to stop
having these conversations with Plaintiff. The conversations
meetings with the men's basketball coaching staff,
Plaintiff was belittled and openly mocked. Trilli was present
in the meetings and did not mediate the conflicts. Later,
when Plaintiff reported a conflict or had an issue with
scheduling, Plaintiff was told by Trilli to acquiesce to the
demands of the men's basketball team.
separate occasions, Plaintiff had physical confrontations
with a male athlete who was a basketball player (the
“athlete”) and worked as a janitor around the
athletic department. This athlete allegedly sexually harassed
members of the volleyball team. Plaintiff complained about
this athlete to Trilli over a two-year period. The athlete
disrupted Plaintiff's practices and Plaintiff had to
repeatedly ask him to leave the gym. Plaintiff also believed
that the athlete stole volleyball equipment and she reported
this theft to Trilli.
October 2, 2017, the athlete was listening to loud music and
Plaintiff told him that he needed to leave the gym so that
her team could practice. The athlete screamed in
Plaintiff's face and charged at her in a threatening
manner. (Doc. 1 at 8.) Plaintiff immediately informed Trilli
and asked him to ban the athlete from the game that was
scheduled on the next day. Trilli did not take action.
Plaintiff then informed security and the dean of students.
The athlete was banned from the building where
Plaintiff's office was located. Despite the ban, the
athlete entered the building and used the coaches' copy
room. On November 10, 2017, the dean of students warned the
athlete about the violation of the ban. On November 20, 2017,
Plaintiff obtained a temporary protection from
abuse/protection from stalking (“PFS”) order from
Sedgwick County District Court. (Doc. 1 at 9.) The PFS order
prohibited the athlete from contact with Plaintiff and the
athletic department building. On December 7, 2017, another
hearing was held. The athlete informed the court that he was
finished with school in December and he was leaving the
state. The court left the order in place until the athlete
left Kansas. During the hearing, the athlete told the judge
that Trilli had stated that Plaintiff was lying. Plaintiff
alleges that Defendants did not take Plaintiff's concerns
about the athlete seriously and also highlighted this athlete
in a Newman magazine. (Doc. 1 at 11.)
October 2017, Plaintiff filed a Title IX complaint listing
concerns about the athlete's conduct and the failure of
the basketball staff to control the athlete. Plaintiff also
asserted unequal access to the practice facilities. The
complaint was investigated by Mandy Greenfield, the head of
Human Resources, and John Walker, a Title IX officer for
Newman. During the investigation, Walker told Plaintiff that
she should work from home after “multiple situations
that left Ms. Clark concerned for her safety.” (Doc. 1
at 13.) Newman fired Greenfield and Walker prior to the
completion of the investigation because Newman anticipated
“a finding of unlawful discrimination.” (Doc. 1
at 13.) Levi Esses, Plaintiff's assigned supervisor
during the investigation, filed a Title IX complaint against
Newman for retaliation by Trilli.
then hired the Lewis Brisbois law firm to start the
investigation over. From November 10, 2017, through January
17, 2018, Plaintiff repeatedly requested that she return to
campus and coach her team, but her request was denied.
Plaintiff returned on January 22, 2018. Trilli refused to
speak to Plaintiff for many weeks. After mediation sessions,
Trilli agreed that he would provide Plaintiff with a positive
filed this complaint against Defendants on February 14, 2019,
after receiving her right to sue letter from the EEOC.
Plaintiff alleges the following claims: Title IX retaliation;
violation of the Equal Pay Act; Title VII retaliation;
hostile work environment; gender discrimination; intentional
infliction of emotional distress; negligent hiring/retention;
negligent training/failure to train; and negligent
supervision. (Doc. 1.) Defendants move to dismiss
Plaintiff's claim of intentional infliction of emotional
distress and her three negligence claims.
Motion to Dismiss Standards
order to withstand a motion to dismiss for failure to state a
claim, a complaint must contain enough allegations of fact to
state a claim to relief that is plausible on its face.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 127 S.Ct. 1955, 1974 (2007)). All well-pleaded facts and
the reasonable inferences derived from those facts are viewed
in the light most favorable to Plaintiff. Archuleta v.
Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory
allegations, however, have no bearing upon the court's
consideration. Shero v. City of Grove, Okla., 510
F.3d 1196, 1200 (10th Cir. 2007). Plaintiff must
“allege enough factual allegations in the complaint to
set forth a plausible claim.” Pueblo of Jemez v.
United States, 790 F.3d 1143, 1172 (10th Cir. 2015)