Tackett v. University of Kansas

Filing 38

MEMORANDUM AND ORDER finding as moot 10 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 25 Motion to Dismiss for Failure to State a Claim; granting 28 Motion to Amend Complaint. Signed by Chief Judge J. Thomas Marten on 02/10/2017. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DAISY TACKETT,
Plaintiff,
v.
Case No. 16-2266-JTM
UNIVERSITY OF KANSAS,
Defendant.

MEMORANDUM AND ORDER
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 Background1
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

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The facts below are based on the First Amended Complaint and, where applicable, her proposed second amended
complaint, because the court accepts the well-pleaded, nonconclusory factual allegations in the complaint as true
when ruling on a motion to dismiss. Fed.R.Civ.P. 12(b)(6).

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.

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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

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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 KU. 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 is not eligible for readmission.
●A notation will be placed on [his] transcript.
●[JDG] has been banned from campus for a period of ten years.
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●The no contact directive … will remain in place…”
Proposed SAC, Ex. 3.
Plaintiff later discovered that KU allowed JDG to withdraw in lieu of expulsion, which
facilitated JDG’s subsequent enrollment at Indiana State University and enabled him to join that
institution’s football team. Plaintiff alleges, among other things, that KU’s concealment of the
actual outcome displays deliberate indifference to her rights under Title IX.
On March 21, 2016, plaintiff filed suit against KU in state court, alleging a hostile
educational environment (Count I) and retaliation (Count II) under Title IX. On April 25, 2016,
KU removed this case to federal court. On May 27, 2016, in lieu of filing an answer, KU filed a
motion to dismiss the petition for failure to state a claim. Dkt. 10.2 Plaintiff sought and obtained
leave to file an amended complaint. Dkts. 17 and 22. KU then filed a motion to dismiss the First
Amended Complaint. Dkt. 25. In addition to filing an opposition to the motion to dismiss,
plaintiff sought leave to file a second amended complaint. Dkts. 28 and 30.
II.

Standard for a Motion to Dismiss and For Evaluating a Motion to Amend on
Grounds of Futility
The Federal Rules of Civil Procedure provide that a party may amend his or her pleading

once as a matter of course or, after a responsive pleading has been filed, “only by leave of court
or by written consent of the adverse party; and leave shall be freely given when justice so
requires.” Fed. R. Civ. P. 15(a). The decision whether to grant leave to amend is within the
discretion of the district court. Hayes v. Whitman, 264 F.3d 1017, 1026 (10th Cir. 2001). The
court may justifiably refuse leave to amend on the grounds of undue delay, bad faith or dilatory
motive, repeated failure to cure deficiencies by amendments previously allowed, or futility of the

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This motion is moot in light of the First Amended Complaint (Dkt. 22). Accordingly, the court denies KU’s motion
to dismiss the petition (Dkt. 10) as moot.

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proposed amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). A motion to amend may be
denied as futile “if the proposed amendment could not have withstood a motion to dismiss or
otherwise failed to state a claim.” Schepp v. Fremont County, 900 F.2d 1448, 1451 (10th Cir.
1990). Thus, the standard for a motion to dismiss for failure to state a claim upon which relief
can be granted governs both plaintiff’s motion to amend and defendant’s motion to dismiss.
Rule 12(b)(6) allows dismissal of a complaint only where it appears that the facts alleged
fail to state a plausible claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (clarifying and affirming Twombly’s probability standard).
Complaints containing no more than “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action” may not survive a motion to dismiss. Robbins v. Oklahoma, 519
F.3d 1242, 1247 (10th Cir. 2008). The court must assume that all allegations in the complaint are
true. Twombly, 550 U.S. at 589. “The issue in resolving a motion such as this is not whether a
plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support
the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and
unlikely but that is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
III.

Discussion

A. Preliminary Matters
Plaintiff argues that KU’s motion relies on at least 20 references to external evidence,
negative inferences, or denials of pleaded facts. She urges the court to disregard these 20
references or treat the motion as a Rule 56 summary judgment motion after permitting her the
opportunity to conduct discovery. The court agrees that KU’s motion contains arguments and

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references that arguably warrant converting it to a motion for summary judgment. The court,
however, will simply ignore these arguments or references and resolve the motion as a motion to
dismiss. See Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998) (courts have broad
discretion in determining whether or not to accept materials beyond the pleadings).
B. Motion to Dismiss
1.

Title IX, In General

Title IX provides, in pertinent part: “No person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial assistance.”
20 U.S.C. § 1681(a). Discrimination under Title IX is not limited to disparate provision of
programs, aid, benefits or services or inequitable application of rules or sanctions. Hayut v. State
Univ. of N.Y., 352 F.3d 733, 750 (2d Cir. 2003). It encompasses sexual harassment that creates
an educational environment sufficiently hostile to deprive the student of access to the educational
opportunities or benefits provided by the school. Gebser v. Lago Vista Independent School
District, 524 U.S. 274 (1998) (Title IX prohibits federal fund recipient’s deliberate indifference
to known acts of teacher-on-student harassment); Davis v. Monroe Cnty. Bd. of Educ., 526 U.S.
629 (1999) (Title IX encompasses a claim for damages due to a sexually hostile educational
environment created by a fellow student or students when the supervising authorities knowingly
fail to act to eliminate the harassment). The requirements for a Title IX claim vary from case to
case. See Simpson v. Univ. of Colorado Boulder, 500 F.3d 1170, 1177 (10th Cir. 2007) (actual
notice standards established in Gebser and Davis do not apply in cases that involve official
school policy). Courts have adopted Title VII standards in analyzing Title IX claims. Gossett v.
Oklahoma ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1176 (10th Cir. 2001).

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2.

Hostile Educational Environment (Count I)

To state a Title IX claim for hostile educational environment based on gender, a plaintiff
must allege: 1) she was a student at an education institution receiving federal funds, 2) she was
subjected to harassment based on her sex, 3) the harassment was sufficiently severe or pervasive
to create a hostile (or abusive) environment in an educational program or activity, and 4) there is
a basis for imputing liability to the institution. Murrell v. Sch. Dist. No. 1, Denver, Colo., 186
F.3d 1238, 1246 (10th Cir. 1999). To establish institutional liability, the plaintiff must show that
“an official who ... has authority to address the alleged discrimination and to institute corrective
measures on the [institutional] recipient's behalf has actual knowledge of discrimination ... and
fails adequately to respond.” Gebser, 524 U.S. at 290.
a) Student-on-Student Harassment
KU urges the court to dismiss plaintiff’s hostile environment claim based on JDG’s
harassment on two grounds: 1) failure to allege facts that KU had actual notice of ongoing
harassment by JDG, and 2) failure to allege facts that KU was deliberately indifferent to her
complaint against JDG. KU argues that plaintiff has simply alleged “a single tragic incident of
sexual assault” that happened more than a year before plaintiff made KU aware of it, which does
not a state a claim for institutional liability under Title IX. But see City of Canton v. Harris, 489
U.S. 378, 409 (1989) (evidence of a single violation of rights did not forceclose possibility of
municipal liability). KU also argues that generalized knowledge of past harassment is
insufficient for Title IX liability.
(1) Simspon liability for Conduct Before the Rape
Plaintiff argues that she has pled facts to support a claim for institutional liability under
Simpson because KU had prior knowledge of a heightened risk of sexual assault at Jayhawk
Towers due to its official policy of placing football players in Jayhawk Towers, where they
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would receive less supervision than in other residence halls. The court disagrees. Simpson is
factually distinguishable. In Simpson, the University of Colorado Boulder (CU) sanctioned,
supported, even funded, a program to show recruits a “good time.” Simpson, 500 F.3d at 1173,
1177. CU paired visiting recruits with female-student ambassadors to entertain the recruits. Id.
Plaintiff attempts to graft Simpson liability by alleging KU required its female rowers to
attend football games and cheer for the players as they entered the field, even if the rowers had
been sexually assaulted by the players. SAC, ¶¶ 70-71. Plaintiff also alleges that KU has an
official policy and practice of entertaining football recruits in hotel just off campus and
encouraging female KU athletes to attend parties with the recruits. Id., ¶ 72. But these alleged
policies played no part in plaintiff’s rape. Encouraging attendance and cheering at football games
is not the equivalent of pairing female students with recruits to show them a good time.
Plaintiff’s rape did not occur while attending a KU football game or during a recruiting event,
nor was she a student ambassador paired with recruits or football players. There are no
allegations that the Halloween party or the gathering at the Towers were university-sponsored or
sanctioned, or that KU somehow encouraged the misconduct. Thus, plaintiff’s rape did not occur
in the context of any of those policies.
As for KU’s policy of housing football players at Jayhawk Towers, the court concludes
that allegation alone is insufficient to state a claim for institutional liability. Plaintiff essentially
seeks institutional liability based on the school’s authority over its athletes and that it “should
have known” of the heightened risk of assault at Jayhawk Towers based on the stereotypical
assumption that football players are more prone to commit sexual assault. Stated differently,
plaintiff seeks liability based on theories of respondent-superior and constructive notice. The

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Supreme Court, however, rejected both these theories of liability in Gebser, 524 U.S. at 282. The
court concludes the FAC fails to state a plausible Simpson claim against KU.
(2) Liability for KU’s Conduct After the Rape
KU urges the dismissal of plaintiff’s deliberate indifference claim based on KU’s conduct
after plaintiff reported the rape on three grounds: 1) KU’s response to her report was not
deficient in light of the winter break, plaintiff was provided an escort, and a no-contact order was
issued; 2) plaintiff failed to allege any severe, pervasive, and objectively unreasonable
harassment by JDG during the investigation; and 3) KU’s action showed a respect for due
process. While KU may have legitimate reasons for its actions or excuses for its inaction,
plaintiff’s factual allegations nonetheless support an inference that KU was deliberately
indifferent to her report of harassment. At this stage, the court is not concerned with whether
plaintiff will ultimately prevail, but whether she is entitled to offer evidence to support that
claim. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (likelihood of recovery is not the test at the
motion to dismiss stage). Plaintiff has pled sufficient facts to allow her to offer evidence to
support this claim even if recovery might appear remote on the face of the pleadings.
b) Coach-on-Student Harassment
KU urges the dismissal of plaintiff’s hostile environment claim based on Coach Catloth’s
comments on three grounds: 1) the alleged offending comments do not constitute harassment on
the basis of sex, 2) the alleged comments are not severe, pervasive, and objectively offensive;
and 3) the FAC fails to demonstrate deliberate indifference to the athletes’ complaints. Dkt. 25 at
24. The court agrees that Coach Catloth’s offending comments may be sports-related and that
there is a remote possibility of plaintiff being able to establish that these comments were sexbased. Nonetheless, the allegations that these comments also attacked body shape support an

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inference these comments were sex-based. The allegations regarding a team meeting with a
sports psychologist to discuss Coach Catloth’s inappropriate comments (FAC, ¶ 28) and that
there was an attempt to implement a policy requiring Coach Catloth to refer his rowers to a
nutritionist rather than calling them “fat” (FAC, ¶ 32) could, depending on the surrounding
circumstances, support a finding that Coach Catloth’s harassment was severe, pervasive, and
objectively offensive. Finally, the allegations that KU official Van Saun ignored the complaint
against Coach Catloth and did not investigate it support a finding of deliberate indifference. For
these reasons, the court denies dismissal of this claim at this time.
3.

Retaliation (Count II)

It is well-settled that retaliatory conduct is within the broad prohibition of
“discrimination” made unlawful by Title IX. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167,
174 (2005). To date, the Tenth Circuit does not appear to have expressly set forth the elements
for a retaliation claim under Title IX. Courts that have addressed the issue have analyzed both
Title IX discrimination and retaliation using Title VII standards. This means that to state a claim
for retaliation under Title IX, a plaintiff must allege that: 1) he or she engaged in protected
activity; 2) defendant had knowledge of the protected activity; 3) materially adverse schoolrelated action was taken against plaintiff; and 4) there was a causal connection between the
protected activity and the adverse action. Yan v. Penn State Univ., 529 F. App’x. 167, 171 (3d
Cir. 2013); Scott v. Metropolitan Health Corp., 234 F. App’x. 341, 346 (6th Cir.2007). The first
step in any assessment of a retaliation claim is to identify what conduct, if any, a reasonable jury
could causally link to the existence of retaliatory animus. S.K. v. N. Allegheny Sch. Dist., 168 F.
Supp. 3d 786, 806 (W.D. Pa. 2016). Such animus is by its nature (1) intentional conduct aimed at

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inflicting injury or harm (2) taken because of a complaint about a perceived form of prohibited
conduct. Id.
Plaintiff alleged the following adverse actions: 1) Catloth blocked her from participating
in the winter training, 2) KU made misrepresentations to Tackett that concealed the fact that KU
was letting JDG withdraw from school, 3) KU sent letters demanding that she pay tuition and
return rowing gear, and 4) KU placed holds on her records. Dkt. 30 at 29. The court finds the
FAC’s allegations insufficient to infer that the latter three acts were intentional conduct aimed at
inflicting injury to plaintiff because she reported the sexual assault and Coach Catloth’s
inappropriate comments. The court agrees with defendant that demanding payment for tuition,
demanding the return of equipment, or placing a hold on transcript are standard practices when a
student withdraws from school. The court finds no basis to infer that KU did any of these acts to
plaintiff with retaliatory animus. Likewise, there is no basis to infer KU misrepresented JDG’s
punishment in retaliation for complaining about the sexual assault.
Nonetheless, the court will not dismiss plaintiff’s retaliation claim at this time. The FAC
sufficiently alleges facts to support a finding that Coach Catloth denied plaintiff the opportunity
to participate in winter training because she complained about his inappropriate comments at the
team meeting with the KU psychologist. Defendant’s arguments as to this adverse action focus
on inconsistencies in the timeline and the level of McClure’s involvement. At this time, the court
will make all inferences in favor of plaintiff. Accordingly, plaintiff’s retaliation claim survives
dismissal.
C. Motion to Amend
Plaintiff seeks leave to add factual allegations that KU misrepresented to her the
punishment JDG received to further support her claim that KU was deliberately indifferent to her

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right under Title IX. KU objects to the proposed amendments on two grounds: 1) Tackett knew
about most of these alleged facts for months, and 2) these allegations are futile. Dkt. 34 at 1.
Because this case is in the early stage of litigation, the court finds no undue delay in seeking to
add these allegations. The court also finds no undue prejudice in allowing the amendments
because: 1) they simply bolster Tackett’s deliberate indifference claim and do not raise a brand
new claim, and 2) KU relies upon some of the same letters in support of its motion to dismiss.
Finally, having concluded that the FAC survives dismissal, the court finds the proposed
amendments are not futile for the same reasons. Accordingly, the court grants plaintiff leave to
file her proposed SAC.
IT IS THEREFORE ORDERED that Defendant’s Motions to Dismiss (Dkt. 10) is
DENIED as moot; that Defendant’s Motion to Dismiss FAC (Dkt. 25) is GRANTED IN PART
and DENIED IN PART; and that Plaintiff’s Motion for Leave to File Second Amended
Complaint (Dkt. 28) is GRANTED.
IT IS SO ORDERED this 10th day of February, 2017.

s/ J. Thomas Marten
Chief United States District Judge

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