Kesterson v. Kent State University, et al

Filing 123

Memorandum Opinion and Order re 82 . Plaintiff is not entitled to the discovery she seeks from Kent State University. See order for details. Magistrate Judge Kathleen B. Burke on 2/12/2018. (D,I)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

LAUREN KESTERSON,

Plaintiff,
v.
KENT STATE UNIVERSITY, et al.,
Defendants.

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CASE NO. 5:16CV298
JUDGE SARA LIOI
MAGISTRATE JUDGE
KATHLEEN B. BURKE

MEMORANDUM OPINION
AND ORDER

This case is before the undersigned on a discovery dispute.1 Plaintiff Lauren Kesterson
(“Kesterson”) seeks discovery from Defendant Kent State University (“KSU”) regarding KSU’s
handling, including investigation, of all reports of sexual harassment, discrimination, or assault
made by persons other than Plaintiff at KSU’s main campus during the 5-year period beginning
August 2010.2
Kesterson argues that the discovery is relevant to her claim against KSU under Title IX
of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., which is Claim 1 of her First
Amended Complaint (“FAC”). Claim 1 alleges that KSU acted improperly and in violation of
Title IX in the manner in which it responded to reports Kesterson made in 2014 and 2015
Pursuant to L.R. 37.1, Kesterson requested a telephone conference to discuss the dispute on November 30, 2017
(Doc. 82), which KSU responded to on December 6, 2017. Doc. 83. The undersigned held a telephone conference
with counsel on December 14, 2017 (Doc. 100), and the parties submitted supplemental briefs on December 22,
2017, and January 2, 2018. Doc. 102, 107.
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Kesterson’s original request sought such information for a 17-year period beginning January 1, 2001, and for all
reports arising at all of KSU’s campuses. After a telephone conference with the undersigned reflected in a minute
Order (Doc. 100), she has narrowed her request to KSU’s main campus and the time period August 2010 to August
2015, which she says is “the five-year period preceding when the University finally began investigating her rape.”
Doc. 102, p. 2. Pursuant to the undersigned’s minute order directing her to address the privacy interests of nonparties, Kesterson indicates that she is “willing to receive the information in a manner that does not identify
individual students . . . provided the information . . . allows her to track the steps taken to respond to each report.”
Id.
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regarding a sexual assault against her that occurred in 2012; Claim 1 does not allege that KSU is
liable for the underlying 2012 assault.
KSU objects to the discovery, arguing that it is not relevant to Claim 1, that it would
violate the privacy expectations of other students and employees, and that it is overly
burdensome. Doc. 83, p. 2.
As is explained below, neither Claim 1 nor the case law cited by Kesterson supports the
discovery she seeks. Accordingly, the undersigned finds that she is not entitled to that discovery.
I. The First Amended Complaint
A. The FAC’s Factual Allegations
Kesterson’s First Amended Complaint (“FAC”) (Doc. 20) alleges that she is a former
member of the varsity softball team at KSU, which was coached by Defendant Karen Linder
(“Linder”). She alleges that, in December 2012, she was raped by Linder’s son. Doc. 20, p. 6,
¶¶27-34.
In mid-May 2014, Kesterson reported the rape to Linder. Id., pp. 9-10, ¶¶56-63.
Following Kesterson’s report to Linder, Linder violated a number of KSU’s policies by failing to
report the assault to KSU’s Title IX coordinator. Linder also failed to take any steps to address
the assault; all she did was instruct Kesterson not to tell anyone about it. Id., p. 13, ¶¶80, 83.
On August 24, 2015, Kesterson met with KSU’s Deputy Coordinator for Title IX and
signed a Title IX complaint against Linder. Id., p. 19, ¶¶113-116. Four days later, Linder
resigned from KSU. Id., p. 21, ¶127. On January 8, 2016, after being contacted by Kesterson’s
attorney, KSU issued a report on its investigation of Kesterson’s complaint. Id., p. 31, ¶188.
B. Claim 1 of the FAC
Claim 1 of the FAC is captioned “Sex discrimination including retaliation against Kent
State University under Title IX of the Education Amendments of 1972, 20 U.S. C. §§ 16812

1688.” Doc. 20, p. 35. Claim 1 alleges that Kesterson’s report to Linder in May 2014 gave KSU
actual notice of the sexual assault against Kesterson (id., p., 36, ¶221) and that Kesterson’s report
to the Title IX Deputy Coordinator in August 2015 gave KSU actual knowledge of Linder’s
discriminatory conduct in covering up Kesterson’s complaint about the rape. Id., p. 38, ¶247.
Claim 1 asserts that KSU “was deliberately indifferent to the sex-based harassment that Ms.
Kesterson reported” to Linder and the Title IX Deputy Coordinator and that KSU “acted with
gender-based discriminatory intent in failing to respond to her complaints including taking
adequate steps to prevent retaliation.” Id., p. 40, ¶¶ 269, 271.
II. Analysis
Fed. R. Civ. P. 26(b) permits discovery regarding “matters relevant to any party’s claim
or defense and proportional to the needs of the case . . . .” Kesterson’s Notice of Discovery
Dispute stated that the discovery requested was relevant both to her Title IX claim against KSU
and her class of one equal protection claim against Defendant Linder. Doc. 82, p. 2. With
respect to the claim against Linder, the undersigned previously ruled that Kesterson is entitled to
discovery only as to other reports made to Linder. Doc. 100. KSU has produced those reports.
Doc. 83, p. 4. Accordingly, the issue remaining relates solely to Claim 1 of the FAC.3
A. Doe v. Univ. of Tennessee
In support of her discovery request, Plaintiff relies on Doe v. Univ. of Tennessee, 186
F.Supp.3d 788 (M.D.Tenn. 2016). In Doe, seven female university students brought Title IX
claims against the University of Tennessee (“UT”) alleging that they were sexually assaulted by
male football and basketball players and that, after they complained, the university treated them

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In her Notice of Discovery Dispute, Kesterson also contended that the Report of Parties’ Planning Meeting
indicates that the parties had “agreed” to the disputed discovery. Doc. 82, p. 1. However, that filing does not
support Plaintiff’s contention. Doc. 39, pp. 2-3.

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in an unfair and discriminatory way. 186 F.Supp.3d at 791. The plaintiffs alleged “two separate
types of Title IX violations”—which the court referred to as “before” claims and “after” claims.
Id. at 791-792. In the “before” claims, the plaintiffs alleged that “UT’s official and unofficial
policies—including its deliberate indifference to a pattern of prior sexual assaults and other
misconduct by male UT athletes, as well as its fostering of a sexually hostile environment—
rendered female students vulnerable to sexual assault, and therefore UT is liable for the sexual
assaults against the plaintiffs.” Id. at 791. The court stated, “These claims are referred to by the
parties as the ‘before’ claims, because they arise from allegations about UT’s actions before the
plaintiffs were assaulted.” Id. In the “after” claims, the plaintiffs alleged that the university’s
inadequate and discriminatory response to the their reports of sexual assaults, including
disciplinary proceedings that violated Title IX, denied them access to educational benefits and
opportunities at the university. Id. at 791-792. The court stated, “These claims are referred to as
the “after” claims, because they arise from allegations about UT’s actions after UT was notified
of the plaintiffs’ assaults.” Id. at 792.
UT filed a motion to dismiss. With respect to the plaintiffs’ “before” claims, UT argued
that it could not be held liable under Title IX for the assaults perpetrated by the male student
athletes. Id. at 803. The court rejected UT’s arguments. The court discussed relevant case law4
and explained that the cases could be read to support Title IX liability for the acts of third parties
in two circumstances: (a) when the Title IX funding recipient had actual knowledge of known
harassment or assault and was deliberately indifferent to that harassment or assault; and (2) when
the funding recipient had official policies that rendered the plaintiffs vulnerable to the
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The court discussed Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998), Davis v. Monroe Cnty. Bd. of
Educ., 526 U.S. 629 (1999), Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170 (10th Cir. 2007), Klemencic v. Ohio
State Univ., 263 F.3d 504 (6th Cir. 2001), Patterson v. Hudson Area Schs., 551 F.3d 438 (6th Cir. 2009), Vance v.
Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253 (6th Cir. 2000) and cited McCoy v. Board of Educ. of Columbus City
Schs., 515 Fed.Appx. 387 (6th Cir. 2013), Henderson v. Walled Lake Consol. Schs., 469 F.3d 479 (6th Cir. 2006),
Williams ex. rel. Hart v. Paint Valley Local Sch. Dist., 400 F.3d 360 (6th Cir. 2005), and Lopez v. Metro. Gov’t, 646
F.Supp.2d 891 (M.D.Tenn. 2009).
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harassment or assault. Id. at 804-806. The court found that the plaintiffs’ complaint contained
allegations that stated a “before” claim under either theory. Id. at 806.
As for the first theory, the Doe complaint included allegations that the university had
actual knowledge of an inordinate number of prior incidents of sexual assault by university
football and basketball players (id. at 806); that UT’s athletic department attempted to cover up
the incidents and failed to work with police and other university administrators; that the
university did not discipline the perpetrators (id. at 792); that UT misused the Tennessee
Uniform Administrative Procedures Act, allowing perpetrators to delay discipline or avoid it
altogether; and that UT used a method for selecting judges to hear cases that did not comply with
Title IX. Id. at 792-793. These alleged facts stated a “before” claim that UT had actual
knowledge of a pattern of prior assaults by football and basketball players against female
students and was deliberately indifferent to that behavior.
As for the second type of “before” claim, the court found that the complaint alleged that
the university had official policies that left the plaintiffs vulnerable to assault (id. at 806),
including by encouraging and condoning varsity athletes “to have parties with alcohol and drugs,
entertain recruits, provide alcohol to underage female students”; interfering with athlete
discipline; housing first-year female students in a dorm “alongside upper class male athletes”;
and by failing to implement sexual harassment training. Id. at 793-794, 807-808. The Doe court
likened these allegations to those in Simpson v. University of Colorado Boulder, 500 F.3d 1170
(10th Cir. 2007). In Simpson, female students at the University of Colorado Boulder (“UC
Boulder”) alleged that the university was liable for sexual assaults they suffered at a party
attended by UC Boulder football players and recruits. The Tenth Circuit reversed the district
court’s order entering summary judgment for UC Boulder. The Tenth Circuit held that a genuine
issue of material fact existed where there was evidence that the university regularly held
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recruiting events for university football players in which recruits were paired with female host
students to entertain them, creating an expectation of sex; prior recruiting events had yielded
sexual assaults; and UC Boulder had ignored warnings from the local district attorney that it
should establish policies to supervise recruits. Id. at 805.
B. Plaintiff’s FAC does not allege a “before” claim
In her supplemental brief, Kesterson first describes her Title IX claim against KSU as
alleging “sex discrimination and retaliation for reporting sexual assault” (Doc. 102, p. 1), i.e., it
is an “after” claim. However, Kesterson then belatedly attempts to add an unpled “before” claim
to her “after” claim when she says that she seeks information regarding the University’s handling
of reports made by others regarding incidents of sexual harassment/assault because
she believes [it] will show that the University’s approach to dealing with such complaints
made her more vulnerable to experience both the underlying harassment and retaliation
for reporting it.[]
Doc. 102, p. 2. She asserts that Kent State, through its “official (though unwritten) custom,
policy, or practice provided inadequate means to address sexual assault, thus making [Kesterson]
more vulnerable to it (and to retaliation for reporting it).” Doc. 102, p. 3. Thus, she attempts to
describe a “before” claim, i.e., that KSU created an environment that led to her being sexually
assaulted.
During the phone call with the undersigned, Kesterson was directed to identify “specific
paragraphs in Claim 1 of the FAC that support the relevance of her discovery request,” i.e.,
allegations in her FAC consistent with a “before” claim.5 See Doc. 100, p. 2. In a footnote of
her brief, Kesterson identifies the following paragraphs of her FAC:
193. Kent State’s investigation into Ms. Kesterson’s complaints—and particularly the
delays in conducting it and releasing the investigation report—was inadequate and led to
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During the call, the undersigned discussed with the parties the nature of “before” and “after” claims discussed in
Doe.
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Ms. Kesterson being ostracized and harassed by members of the University and softball
communities.
269. Kent State was deliberately indifferent to the sex-based harassment that Ms.
Kesterson reported.
Doc. 20, p. 31, ¶193; p. 40, ¶269. Doc. 102, p. 2, n.3. Both of these allegations describe actions
that KSU took after Kesterson reported the sexual assault. Neither describes a “before” claim or
explains how KSU’s actions created an environment that made it more likely that Kesterson
would be sexually assaulted. Additionally, Paragraph 193 is not contained in Claim 1.
In another footnote, Kesterson refers to a number of paragraphs of the FAC that she says
support her contention that KSU officials “historically responded to Title IX issues, including in
the Athletic Department” in a “lackluster manner.” She cites to ¶¶194-208 of the FAC,
paragraphs that are not tethered to any claim for relief but that describe a KSU employee’s
complaint in 2015 about sexual harassment by a supervisory employee in the Athletic
Department. She also cites to Paragraphs 242 and 281-282, which allege that Linder acted with
discriminatory intent when she failed to respond to Kesterson’s complaint and that KSU also
failed to act in response to her reports that she was assaulted, which “tacitly endorsed” the
assault “and made all female student-athletes more vulnerable to sexual assault.” Doc. 102, p. 4,
n. 12. These paragraphs of the FAC relate to matters that occurred years after the 2012 assault
against Kesterson and do not show that she was made more vulnerable to the assault, i.e., they do
not establish a “before” claim.
With respect to the allegations regarding the KSU employee’s complaint of sexual
harassment, Kesterson notes that this Court cited Doe, supra, and denied KSU’s motion to strike
those allegations from the FAC. Doc. 82, p. 2; Doc. 102, p. 3, n.6. Kesterson contends that, in
denying KSU’s Motion to Strike, the Court found that she is “entitled to test whether the
University had an official policy regarding the treatment of sexual assault and harassment.” Doc.
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82, p. 2. Kesterson reads too much into the Court’s ruling on KSU’s motion to strike; the Court
specifically stated in its ruling that motions to strike are not vehicles for deciding substantive
issues in a case. Doc. 34, pp. 12-13.
Kesterson also argues that she has alleged a “before” claim because KSU had an “official
(though unwritten) custom, policy, or practice” of not following its written policy regarding how
it responded to complaints of sexual assault. Doc. 102, p. 3. She does not identify paragraphs in
her FAC that support this argument as the undersigned ordered her to do. However, she claims
that deposition testimony of unnamed witnesses shows that she told “six university employees
about being assaulted before the University even began an investigation” and that five of them
“did nothing.” Doc. 102, p. 3 (emphasis in original).6 She asserts, “it is reasonable to conclude
that the five employees who did nothing in response to Ms. Kesterson’s reports were following
the University’s unwritten practice instead of its written policy.” Doc. 102, p. 3. This argument
is not persuasive because, even if Kesterson’s new allegations are taken as true, they do not
establish a “before” claim.
Kesterson’s argument, made in support of her request for discovery regarding reports
made by others, is insufficient to turn her “after” claim into a “before” claim. Simply put, the
FAC does not state a “before” claim. Claim 1 alleges that KSU violated Title IX in its responses
to Plaintiff’s report regarding a sexual assault and her report regarding Linder’s conduct, i.e., it
states an “after” claim. Kesterson’s “after” claim requires only that she show that KSU
responded to her Title IX complaint with deliberate indifference. Kesterson acknowledges as
much when she states, “To prove her Title IX claim, Ms. Kesterson must show that Kent State
was deliberately indifferent to her reports.” Doc. 102, p. 2. See Doe, 186 F.Supp.3d at 809 (a
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In her brief, Plaintiff did not name the six employees and did not identify the persons whose depositions apparently
support this assertion. She merely states, “Depositions were conducted on December 13-15 and the transcripts are
not yet available. Ms. Kesterson will supplement this submission when the final transcripts are available.” Doc.
102, p. 3, n. 8. More than one month later, no such submission has been filed.
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Title IX retaliation claim requires that a plaintiff show only how the defendant responded to her
reports). Accordingly, records of investigations of all reports of sexual assault or retaliation at
KSU’s main campus between August 2010 and August 2015 are not relevant to Kesterson’s Title
IX claim against KSU.
III. Conclusion
For the reasons set forth above, the undersigned finds that Plaintiff is not entitled to the
discovery she seeks from KSU.

IT IS SO ORDERED.

Dated: February 12, 2018
Kathleen B. Burke
United States Magistrate Judge

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