Schrader v. Emporia State University et al

Filing 172

MEMORANDUM AND ORDER granting 165 Plaintiff's Motion to Compel. Signed by Magistrate Judge Teresa J. James on 9/19/2022. (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRIAN W. SCHRADER,
Plaintiff,
v.
EMPORIA STATE UNIVERSITY,
Defendant.

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Case No. 19-cv-2387-DDC-TJJ

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion to Compel (ECF No. 165). Plaintiff
asks the Court to compel Defendant Emporia State University to produce documents responsive
to certain of Plaintiff’s Requests for Production of Documents. As set forth below, the Court
grants Plaintiff’s motion.
I.

Relevant Background
The following background comes from District Judge Crabtree’s Memorandum and

Order ruling on the motions to dismiss filed by each named Defendant.
Plaintiff Brian W. Schrader was a professor of psychology at defendant Emporia
State University (ESU) for more than 20 years. In 2017, a student in one of his
classes filed a sexual harassment complaint against him, triggering a Title IX
investigation and, eventually, termination proceedings. After hearing all the
evidence from ESU and plaintiff in the Title IX proceeding, a committee of tenured
faculty decided that ESU shouldn’t terminate plaintiff. But ESU sanctioned him
anyway, limiting his ability to interact with students and placing an automatic
suspension on his employment should another student file a harassment complaint.
And amidst a campus furor about plaintiff remaining an ESU professor—including
several public statements from ESU President Allison Garrett about the
investigation and the larger culture of sexual harassment on college campuses—
that is exactly what happened: another student filed another harassment complaint
and ESU immediately placed plaintiff on administrative leave. He eventually
resigned while the investigation was pending. 1
1

ECF No. 127 at 1-2.

Judge Crabtree granted each individual Defendant’s motion to dismiss, and he granted
ESU’s motion in part and denied it in part. As a result, ESU is the only remaining Defendant and
two of Plaintiff’s claims against ESU survive: (1) Title IX Reverse Sex Discrimination/Gender
Bias (Count II), to the extent the claim is premised on gender bias flowing from the Title IX
proceeding and resulting discipline; and (2) Tortious Interference with Prospective Contractual
Relationship or Expectancy (Count IX).2
On March 22, 2022, Plaintiff served his first Requests for Production of Documents on
Defendant. Defendant responded and the parties subsequently conferred and were able to resolve
several disputes about the adequacy of Defendant’s responses. However, the parties were not
able to reach agreement on Plaintiff’s RFPs that relate to the second sexual harassment complaint
filed against Plaintiff. On July 14, 2022, at the parties’ request, the undersigned Magistrate Judge
conducted a conference to consider their competing positions and provide guidance on the RFPs
in dispute.3 When the parties remained unable to agree on a resolution, Plaintiff timely filed the
instant motion.
The Court finds the parties have conferred in an attempt to resolve the issues in dispute
without court action, as required by Fed. R. Civ. P. 37(a)(1) and D. Kan. Rule 37.2.
II.

Scope of Discovery
Federal Rule of Civil Procedure 26(b)(1) sets out the general scope of discovery. As

amended, it provides as follows:
Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party's claim or defense and proportional to
the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties' relative
2

See id. at 53 & n.16.

3

See ECF No. 164.
2

access to relevant information, the parties' resources, the
importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its
likely benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.4
Considerations of both relevance and proportionality now govern the scope of discovery.5
Relevance is still to be “construed broadly to encompass any matter that bears on, or that
reasonably could lead to other matter that could bear on” any party’s claim or defense.6
Information still “need not be admissible in evidence to be discoverable.”7 The amendment
deleted the “reasonably calculated to lead to the discovery of admissible evidence” phrase,
however, because it was often misused to define the scope of discovery and had the potential to
“swallow any other limitation.”8
The consideration of proportionality is not new, as it has been part of the federal rules
since 1983.9 Moving the proportionality provisions to Rule 26 does not place on the party
seeking discovery the burden of addressing all proportionality considerations. If a discovery
dispute arises that requires court intervention, the parties’ responsibilities remain the same as
under the pre-amendment Rule.10 In other words, when the discovery sought appears relevant,
the party resisting discovery has the burden to establish the lack of relevancy by demonstrating

4

Fed. R. Civ. P. 26(b)(1).

5

See Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment.

6

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

7

Fed. R. Civ. P. 26(b)(1).

8

See Fed. R. Civ. P. 26(b)(1) advisory committee's note to 2015 amendment.

9

Id.

10

Id.
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that the requested discovery (1) does not come within the scope of relevancy as defined under
Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevancy that the potential harm occasioned
by discovery would outweigh the ordinary presumption in favor of broad disclosure.11
Conversely, when the relevancy of the discovery request is not readily apparent on its face, the
party seeking the discovery has the burden to show the relevancy of the request.12 Relevancy
determinations are generally made on a case-by-case basis.13
III.

Analysis
With the legal standards in mind, the Court considers the requests for which Plaintiff

seeks to compel Defendant to produce documents. The four RFPs at issue are as follows:
16. All documents prepared by the investigator, including interview notes,
other notes, recordings, and drafts, of the sex harassment complaint of “B.A.”
against the Plaintiff.
17. All documents received or obtained by the investigator during the
investigation of the sex harassment complaint of “B.A.” against the Plaintiff.
19. All files, including academic and disciplinary files, for the student
identified in the Third Amended Complaint as “B.A.”
25. All documents prepared, including interview notes, other notes,
recordings and drafts, by Tammy Norman or any other investigator, for the
investigation of the sex harassment complaint of “B.A.” against the Plaintiff.
Defendant provided the same following response to each of the four RFPs:
Objection. This request seeks confidential documents that are not relevant to any
party's claim or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the parties' resources, the
importance of the discovery in resolving the issues and whether the burden or
11

Gen. Elec. Cap. Corp. v. Lear Corp., 215 F.R.D. 637, 640 (D. Kan. 2003).

12

McBride v. Medicalodges, Inc., 250 F.R.D 581, 586 (D. Kan. 2008).

13

Brecek & Young Advisors, Inc. v. Lloyds of London Syndicate, No. 09-cv-2516-JAR, 2011 WL 765882,
at *3 (D. Kan. Feb. 25, 2011).
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expense of the proposed discovery outweighs its likely benefit; and therefore is
outside the scope of discovery authorized by Fed. R. Civ. P. 26(b)(1).
A.

Relevance

Defendant asserts the information sought in these RFPs is not relevant to either of
Plaintiff’s remaining counts. First, Defendant contends the information will not tend to make any
fact necessary to establish any element of Plaintiff’s tortious interference claim more or less
probable. Plaintiff disagrees, pointing to information he obtained through non-party discovery
which allegedly demonstrates that the second sexual harassment complaint against Plaintiff cost
him at least one other job. In the section of his Memorandum and Order discussing and allowing
Plaintiff’s tortious interference claim to proceed, Judge Crabtree notes that Plaintiff’s allegation
“raises the plausible inference that ESU either misled [the other university] and didn’t reveal that
the J.J.14 proceedings were resolved in plaintiff’s favor, or that ESU shared the existence of a
second harassment complaint with [the other university] before it shared that information with
plaintiff. Either inference plausibly alleges malice.”15 And with the plausibility threshold met,
Judge Crabtree allowed Plaintiff’s tortious interference claim to proceed.
As a consequence, what Defendant learned about the details surrounding the second
complaint of sexual harassment and information about the complainant (e.g., whether she too had
issues with academic dishonesty, her relationship with J.J., etc.) is clearly relevant to Count IX.
Second, Defendant contends the information sought by the RFPs is not relevant to
Plaintiff’s reverse sex discrimination/gender bias claim because it was too remote in time. The
dates Defendant wants the Court to consider are May 5, 2017, when J.J. reported sexual

14

J.J. was the first student to report a claim of sexual harassment against Plaintiff. B.A. was the second.

15

ECF No. 127 at 49.
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harassment by Plaintiff; May 12, 2017, when J.J. submitted a formal complaint; July 4, 2017,
when Defendant completed its investigation; July 17, 2017, when Defendant’s Title IX officer
had reviewed the investigation report, prepared a summary and recommendations, and submitted
the summary to the Provost; July 25, 2017, by which time the Provost had submitted the
summary and his recommendations to the President, and Plaintiff was placed on administrative
leave pending the outcome of a hearing before a faculty committee; November 20, 2017, when
the faculty committee submitted its findings and recommended to the President that Plaintiff’s
employment should not be terminated because he did not commit sexual harassment against J.J.;
December 6, 2017, when the President ended Plaintiff’s administrative leave and told Plaintiff
his employment would not be terminated, but he would be placed under restrictions including a
return to administrative leave (and subsequent investigation) if ESU received another complaint
of sexual harassment or academic misconduct; and March 23, 2018, when ESU received B.A.’s
sexual harassment complaint. In Defendant’s view, the “Title IX proceedings were concluded
and sanctions were imposed on December 6, 2017.”16 Accordingly, Defendant argues, a second
sexual harassment complaint made by B.A. more than three months later is irrelevant to whether
Plaintiff’s gender was a motivating factor in the already-concluded proceedings.
Defendant’s position that December 6, 2017 is the ending date for the Title IX
proceedings and resulting sanctions is inconsistent with a fair reading of Judge Crabtree’s ruling.
In allowing Count II to proceed, Judge Crabtree limited Plaintiff’s reverse sex
discrimination/gender bias claim to “gender bias flowing from the Title IX proceeding and
resulting discipline.” Judge Crabtree describes Plaintiff’s theory under this count as follows:
Plaintiff’s theory, as alleged in his Complaint, is that the faculty committee cleared
him of misconduct in the J.J. case, but ESU sanctioned him anyway. That is, the
16

ECF No. 168 at 4.
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university placed certain restrictions on his interactions with students and told him
that it would suspend him (pending investigation) if another student filed a
harassment complaint. A storm of media coverage about the investigation then
followed the next semester. This coverage included reporting about a student town
hall with [ESU President] Garrett, where she discussed the case and sexual
harassment generally and then, according to plaintiff’s Complaint, “solicited
individuals to come forward with complaints about [plaintiff.]” Doc. 83 at 13 (Third
Am. Compl. ¶ 84). Another student then filed a harassment complaint and ESU put
plaintiff on administrative leave.17
But that is not the end of Judge Crabtree’s consideration of Defendant’s actions that
constitute “resulting discipline.” After the faculty committee determined Plaintiff had not
violated ESU’s harassment policy, “ESU sanctioned plaintiff anyway and put his employment on
thin ice”18 by imposing certain precautionary measures. Judge Crabtree continued his assessment
of Plaintiff’s allegations in the context of determining whether Count II could proceed:
The most severe “precautionary measure” was plaintiff’s automatic suspension
should another student file a harassment complaint. And that is exactly what
happened. Gender bias may not be the most plausible explanation for ESU putting
plaintiff’s employment on thin ice— but it is a plausible inference, especially in
light of the campus controversy that followed and led (as plaintiff alleges) to a
second harassment complaint producing his automatic suspension. And when that
suspension did occur, Garrett “stepp[ed] outside of . . . standard protocols to share”
the news with the university student body because of “significant community
interest in th[e] matter[.]” Doc. 83 at 12 (Third Am. Compl. ¶ 80). It is plausible to
infer that Garrett was responding to external pressure to hold plaintiff accountable
for sexual harassment after the campus controversy surrounding the J.J.
complaint.19
Judge Crabtree’s analysis provides an ample basis to conclude that the information
sought in RFP Nos. 16, 17, 19, and 25 is relevant to the claim Plaintiff asserts in Count II.
Plaintiff also argues the second complaint plays a role in his theory that he was

17

ECF No. 127 at 36.

18

Id. at 37.

19

Id. at 38.
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constructively discharged, because backpay is an available remedy in Title IX cases and he must
demonstrate he was constructively discharged to recover backpay.20 Defendant disagrees and
contends “the question of whether Plaintiff resigned or was constructively discharged is not at
issue and not relevant.”21 Judge Crabtree has held otherwise.22
The Court therefore overrules Defendant’s objection to RFP Nos. 16, 17, 19, and 25 on
the basis they seek irrelevant information.
B.

Proportionality

Defendant’s objection on the basis of proportionality merely recites the language of
Federal Rule of Civil Procedure 26(b)(1) without explanation. But in its opposition to the
motion, Defendant states in conclusory fashion that the requested documents contain sensitive
and confidential information, and the burden of disclosing it outweighs any marginal benefit it
may provide to Plaintiff. Defendant refers to the FERPA23 statute and regulations—again,
without showing the responsive documents would be subject to FERPA—and asserts ESU does
not disclose confidential information absent written consent of the student or a court order.
Finally, Defendant asserts B.A. is a former student from another country who has since returned
to her home country whose culture is generally not supportive of young women who are victims
of sexual assault and/or harassment, thereby potentially posing a risk to her. Defendant offers no
evidentiary support for this assertion.

20

See Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 70-71 (1992).

21

ECF No. 168 at 5.

22

ECF No. 127 at 31 n. 12 (“The court concludes that these allegations, at this stage, sufficiently allege a
constructive discharge.”).

23

Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, 34 C.F.R. § 99.
8

The Court rejects Defendant’s proportionality objection. Information concerning B.A.’s
allegations are clearly important to Plaintiff’s theories of relief and damages claim. Plaintiff has
no means of obtaining this information other than to request it from Defendant, who has neither
alleged nor demonstrated any difficulty or expense in obtaining the requested records. Defendant
has not met its burden to show lack of proportionality. And with respect to Defendant’s
responsibilities under FERPA, this Memorandum and Order constitute the court order Defendant
requires.
C.

Sanctions

Rule 37(a)(5)(A) provides that if a motion to compel is granted, the court must, after
giving an opportunity to be heard, require the responding party to pay the movant’s reasonable
expenses and attorney’s fees incurred in making the motion.24 The court must not order payment,
however, if the opposing party’s nondisclosure, response, or objection was substantially justified,
or if other circumstances make an award of expenses unjust.25 The Court finds Defendant’s
objections were not substantially justified, and no circumstances exist which would make an
award unjust. Accordingly, no later than October 3, 2022, Plaintiff shall file a response setting
forth the amount he requests, along with an affidavit itemizing the reasonable expenses and
attorney’s fees he incurred in bringing the instant motion. Defendant shall have until October
17, 2022 to file a response thereto. The Court will thereafter enter an order specifying the amount
of the award and the time of payment.

24

Fed. R. Civ. P. 37(a)(5)(A).

25

Fed. R. Civ. P. 37(a)(5)(A)(ii), (iii). The rule also provides no such payment shall be awarded if the
movant filed the motion before attempting in good faith to obtain the disclosure or discovery without
court action. Fed. R. Civ. P. 37(a)(5)(A)(i). The Court has found to the contrary.
9

IT IS THEREFORE ORDERED THAT Plaintiff’s Motion to Compel (ECF No. 165)
is GRANTED. Defendant’s objections to Requests for Production Nos. 16, 17, 19, and 25 are
OVERRULED.
IT IS FURTHER ORDERED THAT no later than October 3, 2022, Defendant shall
serve amended responses and documents responsive to Requests for Production Nos. 16, 17, 19,
and 25.
IT IS FURTHER ORDERED THAT no later than October 3, 2022, Plaintiff shall file
a response setting forth the amount he requests, along with an affidavit itemizing the reasonable
expenses and attorney’s fees he incurred in bringing the instant motion. Defendant shall have
until October 17, 2022 to file a response thereto.
IT IS SO ORDERED.
Dated this 19th day of September, 2022, at Kansas City, Kansas.

Teresa J. James
U. S. Magistrate Judge

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