Doe v. Northern Kentucky University et al
MEMORANDUM OPINION & ORDER: 1) Kachurek's Motion for Summary Judgment 164 is GRANTED; 2) Plf's Motion to disregard matters first raised in a reply brief 214 is DENIED; 3) Because this opinion removes the final pending claims against Kachurek, Kachurek's Motion in Limine 228 will be stricken as moot. Signed by Judge William O. Bertelsman on 8/2/2017.(ECO)cc: COR
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CIVIL ACTION NO. 2:16-CV-28 (WOB-JGW)
NORTHERN KENTUCKY UNIVERSITY
MEMORANDUM OPINION AND ORDER
This dispute between Plaintiff Jane Doe and Defendant Les Kachurek arises out of
Plaintiff’s larger claim for Title IX violations against Northern Kentucky University. In her
amended complaint, Plaintiff brought five counts against Kachurek: Counts II and V for a § 1983
violations; Count IV for Title IX retaliation; Count VI for defamation; Count VII for breach of
contract; and Count VIII for punitive damages. This Court dismissed the § 1983 claims, breach
of contract claim, punitive damages claim, and defamation claim earlier in this case. (See Docs.
115, 143, 293). Thus, the only active claim against Kachurek is Count IV of Plaintiff’s amended
complaint, seeking damages for retaliation under Title IX.
Kachurek now moves for summary judgment (Doc. 164) and Plaintiff moves to disregard
matters first raised in Kachurek’s reply brief. (Doc. 214). The matter being fully briefed, the Court
heard oral argument on the subject on August 1, 2017. Being fully advised, the Court now issues
this Memorandum Opinion and Order.
Les Kachurek was the campus police chief at Northern Kentucky University (NKU) from
2015 to 2016. On September 1, 2015, Kachurek received a phone call from Sarah Sidebottom in
the NKU General Counsel office. (Doc. 30, PageID# 224). Sidebottom and Kachurek discussed
Jane Doe, and Sidebottom said Doe was “slandering” Student M—the student who NKU found
responsible for sexually assaulting Doe. (Doc. 30, PageID# 224). But the content of the alleged
slander was not clear from that conversation. (Doc. 30, PageID# 225).
Immediately after the phone call, Kachurek met with two male students who described
themselves as “confidential informants.” (Doc. 30, PageID# 208, 225). They were friends with
Student M. (Doc. 30, PageID# 208). The informants told Kachurek that “the victim and some of
her supporters were slandering the perpetrator for allegedly using and selling illegal drugs.”1 (Doc.
30, PageID# 209).
Following that meeting, Kachurek wrote an email to his 21 subordinates and his immediate
superior. (Doc. 30-2, PageID# 342). In pertinent part, the email stated:
. . . Today, a female student has been seen on campus carrying a
mattress on her back. Ostensibly, this is her way of expressing her
displeasure over the outcome of an administrative hearing,
where she accused a male student of sexually assaulting her
more than a year ago. Moreover, she has been publicly
slandering the male student. Any slandering is not our concern,
unless it segues into a clear criminal or Student Code of Conduct
offense. However, we are obligated to observe and preserve the First
Amendment rights of the protestor. . . .
(Doc. 30-2, PageID# 342).
Kachurek said he wrote the email because he did not want his officers to react improperly
to the sexual violence demonstration. (Doc. 30, PageID# 227, 257). He acknowledges that he
could have added that NKU found Student M responsible for sexual assault, but did not. (Doc. 30,
PageID# 205). And he understands how the reader could believe Jane Doe was slandering Student
M regarding sexual assault. (Doc. 30, PageID# 206). He believes his language could have been
Doe denies that she ever accused Student M of using or selling drugs. (Doc. 102-1, PageID#
“more lawerly” (Doc. 30, PageID# 215), and that “if I had a do-over, I would have inserted an
‘alleged’ in front of slandering, or ‘allegedly’ in this case.” (Doc. 30, PageID# 202). In subsequent
months, Kachurek told his superiors he “regrets writing that the female student was slandering the
male student.” (Doc. 30, PageID# 273).
Doe claimed Kachurek’s email “worsened” her “emotional damage.” (Doc. 102-1,
PageID# 1528). Yet she says she did not suffer any reputational damage from the email—or at
least “nothing [she] could think of.” (Doc. 102-1, PageID# 1530).
Approximately four months after Kachurek’s email, Doe filed her initial complaint in this
case, which included a Title IX retaliation claim against Kachurek. (Doc. 1-1). Following
discovery, on the final day to file for summary judgment under the Court’s schedule, Kachurek
moved for summary judgment on the now-dismissed defamation claim only. (Doc. 164).
Kachurek’s counsel later stated she “inadvertently” did not move for summary judgment on the
Title IX retaliation claim. (Doc. 193). Instead, counsel included arguments for summary judgment
in her reply brief. (Id.). In response, Plaintiff moved to disregard any motion for summary
judgment on the Title IX retaliation claim, as it was first raised in a reply brief. (Doc. 214).
A. Procedural concern.
Federal Rule of Civil Procedure 56(f) states:
After giving notice and a reasonable time to respond, the court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a party; or
(3) consider summary judgment on its own after identifying for the
parties material facts that may not be genuinely in dispute.
FED. R. CIV. P. 56(f).
Here, the parties have briefed the Title IX retaliation issue and conducted an oral argument
on the matter. (Doc. 214; Doc. 234 at 14-15; Doc. 243; Doc. 286). Thus, the parties had notice
that the Court may address the Title IX retaliation claim, had an opportunity to respond, and the
Court may proceed to considering the merits of the Kachurek’s motion for summary judgment.
B. Individual liability for a Title IX retaliation claim.
There is no explicit or implicit cause of action for retaliation under the text of Title IX. See
20 U.S.C. § 1681. Instead, Plaintiff bases her Title IX retaliation claim on a regulation. See 34
C.F.R. § 100.7(e). That regulation states that “no recipient [of federal funds] or other person shall
intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering
with any right or privilege secured [by this Act].” Id. (emphasis added).
The regulation was implemented under Title VI, which prohibits discrimination by those
receiving federal funds. Aside from the quoted portion, the regulation discusses the proper conduct
of a Title VI investigation. Plaintiff argues that even though § 100.7(e) is a Title VI regulation, it
applies to Title IX because 34 C.F.R. § 106.71 incorporates all procedural regulations from Title
VI as applicable to Title IX.
Only two cases appear to have previously addressed this issue, and both held that § 100.7(e)
did not allow for individual liability under Title IX. Clay v. Bd. of Trustees of Neosho County
Community College, 905 F. Supp. 1488, 1496 (D. Kan. 1995); Bowers v. Baylor U., 862 F. Supp.
142, 146 (W.D. Tex. 1994). In reaching this conclusion, both Clay and Bowers rejected § 100.7(e),
and relied instead on the general proposition that there is no individual liability under Title IX. Id.
(citing to Doe v. Petaluma City School District, 830 F.Supp. 1560 (N.D.Cal.1993) for the
proposition that Title IX does not permit individual liability).
Bowers involved a suit against a university and three employees in their individual and
official capacities. The Court emphasized that 34 C.F.R. § 106.71 incorporates only the procedural
regulations of Title VI. Bowers, 862 F. Supp. at 146. It analyzed § 100.7(e) and held that it “is not
a procedural provision,” thereby making it inapplicable to Title IX. Id. That meant there was no
contrary authority to rebut the proposition that Title IX does not permit individual liability, and
the Court applied that concept to the Title IX retaliation context. Id.
In Clay, the Plaintiff sued a university and its athletic director in his individual capacity,
and included a Title IX retaliation claim. The Court held that Title IX does not permit individual
liability, even for a retaliation claim. Clay, 905 F. Supp. at 1496. The Clay decision did not engage
in the procedural-substantive discussion that Bowers had a year earlier. Instead, the Clay Court
merely noted that it was “more persuaded by the analysis” in cases denying Title IX individual
liability in non-retaliation contexts than by § 100.7(e). Id.
A decade after Bowers and Clay, the Supreme Court held that a retaliation claim against a
funding recipient need only be based on the statutory text of Title IX, and not 34 C.F.R. § 100.7(e).
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 178 (2005)(retaliation claim was only against
funding recipient, and not an individual defendant). But the Court did not address whether there
is a cause of action against an individual defendant pursuant to § 100.7(e).
Nor has the Sixth Circuit addressed the issue. As Plaintiff points out (Doc. 234 at 14-15),
in Varlesi v. Wayne State Univ., 643 F. App’x. 507, 509 (6th Cir. 2016) the Sixth Circuit affirmed
a judgment awarding a Plaintiff $848,690 against a public university and three university
employees. Reviewing the record in that case, the Plaintiff included a Title IX retaliation claim
against the defendant university and the three individuals in their official capacity. The Sixth
Circuit has held that “[w]hile personal capacity suits seek to impose personal liability upon a
government official for actions he takes under color of state law, individuals sued in their official
capacities stand in the shoes of the entity they represent.” Alkire v. Irving, 330 F.3d 802, 810 (6th
Cir. 2003)(internal citations and quotation marks omitted). Therefore, “an official-capacity suit is,
in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473
U.S. 159, 166 (1985). Because the claim in Varlesi was against the individuals in their official
capacity, the individuals never addressed whether Title IX retaliation claims were limited to
merely the recipients of federal funds. Thus, Varlesi is factually distinct from this case, and does
not elucidate the issue.
Instead, the Court is left to analyze whether the regulation—§ 100.7(e)—is procedural or
substantive. Like Bowers, the Court finds that allowing § 100.7(e) to create a cause of action for
retaliation would make it a substantive regulation. Because a Title VI regulation like § 100.7(e)
only applies to Title IX if it is procedural, § 100.7(e) cannot create a cause of action for retaliation
under Title IX.
Without any countervailing authority, this Court must then view Plaintiff’s Title IX
retaliation claim under the Sixth Circuit’s case law holding that “only recipients of federal funds
may be liable for damages under Title IX.” Soper v. Hoben, 195 F.3d 845, 854 (6th Cir.
1999)(citing Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999)). As Kachurek is an
individual and not a recipient of federal funds, Doe cannot pursue an action against him under Title
Further, as stated at the hearing on August 1, 2017, the Court finds no evidence that
Kachurek had a retaliatory motive in the actions complained of.
Therefore, having reviewed the matter, and being otherwise advised, IT IS ORDERED that:
Kachurek’s Motion for Summary Judgment is GRANTED (Doc. 164);
Plaintiff’s Motion to disregard matters first raised in a reply brief is DENIED (Doc. 214);
Because this opinion removes the final pending claim against Kachurek, Kachurek’s
Motion in Limine will be stricken as moot. (Doc. 228).
This 2nd day of August, 2017.
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