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Clark v. Newman University, Inc.

United States District Court, D. Kansas

January 3, 2020

Destiny CLARK, Plaintiff,
NEWMAN UNIVERSITY, INC. and Victor Trilli, Defendants.

Page 1247

          Corey M. Adams, Jennifer M. Hill, McDonald Tinker PA, Wichita, KS, for Plaintiff.

          Alan L. Rupe, Lewis Brisbois Bisgaard & Smith, LLP-Wichita, Colby Millard Everett, Ellen Catherine Rudolph, Lewis Brisbois Bisgaard & Smith, LLP-Kansas City, Kevin Miller, Baty Otto Coronodo, PC-KC, Kansas City, MO, Nanette Turner Kalcik, Lewis Brisbois Bisgaard & Smith, LLP-Wichita, Jessica L. Skladzien, Wichita State University, Joseph Dempewolf, Klenda Austerman LLC-Wichita, Wichita, KS, for Defendants.



         This 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.

         I. Facts

         The following facts are taken from the allegations in Plaintiff's complaint.[1] 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 volleyball coach.

         In 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.

Page 1248

          During 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 then stopped.

         In 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.

         On two 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.[2] 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.

         On 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.)

         In 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 ...

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