O'CONNOR v. Peru State College

• Decision Date: 22 February 1985
• Docket Number: Civ. No. 83-L-253.
• Citation: 605 F. Supp. 753
• Parties: Kathy O'CONNOR, Plaintiff, v. PERU STATE COLLEGE, Board of Trustees of the Nebraska State Colleges, Jerry L. Gallentine, Clyde J. Barrett, Harold D. Deselms, Jerry D. Joy, Ervin Pitts, Wayne Davidson, Maxine Mehus, Defendants.
• Court: U.S. District Court — District of Nebraska

605 F. Supp. 753

Kathy O'CONNOR, Plaintiff, v. PERU STATE COLLEGE, Board of Trustees of the Nebraska State Colleges, Jerry L. Gallentine, Clyde J. Barrett, Harold D. Deselms, Jerry D. Joy, Ervin Pitts, Wayne Davidson, Maxine Mehus, Defendants.

Civ. No. 83-L-253.

United States District Court, D. Nebraska.

February 22, 1985.

COPYRIGHT MATERIAL OMITTED

Jill Nagy and Kathy Goudy, Lincoln, Neb., for plaintiff O'Connor.

George C. Rozmarin, Swarr, May, Smith & Andersen, P.C., Omaha, Neb., Richard L. Halbert, Falls City, Neb., for defendants.

MEMORANDUM OPINION

VAN PELT, Senior District Judge.

This action was brought by plaintiff O'Connor, a non-tenured instructor, for injunctive relief and damages against Peru State College, Peru, Nebraska, her employer, and certain of its officers. She alleges discrimination in the course of her employment and in the termination thereof on account of her gender; alleges she was frustrated in attempting to perform her duties in violation of Title IX (20 U.S.C. § 1681 et seq.); and that she was punished for exercising rights protected by the First and Fourteenth Amendments to the United States Constitution. The grounds of her claim are set forth in greater detail later in this opinion. She sues all of the defendants except the defendant Jerry D. Joy, in their official capacities only. Joy is sued personally, as well as in his official capacity. A motion for a temporary restraining order was filed. A hearing was had May 6, 1983, and this Judge, for reasons set forth in Filing No. 16 filed herein June 17, 1983, denied the motion for temporary restraining order or in the alternative for a preliminary injunction, as shown by the Order, Filing No. 14, also entered June 17, 1983.

The United States Court of Appeals for the Eighth Circuit, by Order entered February 22, 1984, affirmed the district court's judgment by written opinion filed the same date.

A First Amended and Supplemental Complaint was filed May 18, 1984. Among other things, it added as a defendant, Maxine Mehus.

A pre-trial conference was held on October 1, 1984, by the Judge. See Filing No. 37 dated October 15, 1984. The case came on for trial on October 15, 1984, and continued for four days.

It has been submitted on briefs and is now ready for decision.

This opinion will constitute the findings of fact and conclusions of law of the Court.

THE FACTS

Plaintiff was employed by Peru State College as a physical education instructor and women's basketball coach for the academic years 1981-82 and 1982-83. Defendants are Peru State College; the Board of Trustees of the Nebraska State Colleges; Jerry L. Gallentine, President of Peru State College; Wayne Davidson, Chairman of the Physical Education Division and Director of Athletics for the second semester during the 1982-83 academic year; Maxine Mehus, present Director of Athletics; and Clyde J. Barrett, Vice President of Academic Affairs. Jerry D. Joy was Director of Athletics during 1981-82 and the first semester of 1982-83 and is currently Dean of Student Affairs.

Peru State College, located in Peru, Nebraska, is one of four four-year colleges organized under the Constitution and Statutes of the State of Nebraska. Neb.Rev. Stats. (NRS) Sections 85-301 to 318 (Reissue 1981). The general government of these colleges is vested in a seven member Board of Trustees, six of whom are appointed by the governor with the advice and consent of the legislature. The Commissioner of Education is a member ex officio. NRS 85-301. Under Section 85-316, all funds of the college are under the direction and control of the trustees. However, all warrants for money to be expended under Sections 85-301 to 85-318 are to be drawn by the Director of Administrative Services (another state agency) on certificates executed by the college president, countersigned by the college secretary and by a member of the Board. Warrants are paid by the State Treasurer. The College may retain $10,000 for equitable adjustment to students who are so entitled, for day-to-day operations and for contingencies requiring immediate payment.

Teaching loads at Peru State are determined by the number of credit hours taught per semester as opposed to the number of hours actually in contact with the students (contact hours). For example: a lecture course may be assigned three credit hours and also require three contact hours per week for the instructor to be present before the class lecturing; whereas, an activity class may be designated as one credit hour, but actually require the instructor to be present with the students for two or three hours. It is felt by the administration that a lecture class generally requires more preparation time by an instructor than an activity class. Coaches are allotted a certain number of credit hours for their coaching duties known as release time. The normal teaching load is 12-15 credit hours. If a class is cancelled because a minimum number of students failed to register, the instructor scheduled to teach that class is assigned to the admissions division to spend a specified amount of time in general recruiting and in publicity activities to promote the college.

In August, 1981, when Ms. O'Connor was offered the position of instructor and women's basketball coach, she had an undergraduate major in English and had completed her course work and thesis, but not her orals, for a Master's Degree in Physical Education. She subsequently received this degree in August, 1982.

It was, and is, the practice at Peru State to "plug" new faculty members into the course schedule vacated by their predecessors. Ms. O'Connor was assigned to teach courses totaling 12-13 hours, including release time of six hours in the fall for coaching basketball and three hours in the spring of 1981-82 for assisting with track. As a result of the plug-in policy, Ms. O'Connor found herself teaching several activity classes, in one of which, dance, she had no training whatsoever. Thus, the preparation time required to teach this class was greatly in excess of the normal preparation time required for activity classes.

As women's basketball coach, she had both varsity and junior varsity squads. Her coaching duties included recruiting high school student athletes to attend Peru State and organizing and conducting a girls' high school invitational basketball tournament. Another duty for which she found herself responsible was sponsoring the cheerleading squad which consisted of arranging transportation to out-of-town games, general chaperoning and checking expenditures. At one time when a scheduled class did not fill, Ms. O'Connor was assigned to 60 hours of general recruiting for admissions.

When Ms. O'Connor began coaching, she found that the women's uniforms and equipment were in very poor condition, both in quality and quantity. During the season, the women's locker room was commonly used by the visiting men's basketball team. Since the women's games were often played just prior to the men's games, conflicts arose. At one time, the visiting men entered the room before the women had vacated, catching the girls in various stages of dress or undress. It was also common for both the Peru State men's and women's teams to be conducting practice sessions concurrently. Of the four basketball courts, one of them was closely ringed by bleachers, which created a hazardous condition for players during skirmishes at the net ends where the likelihood of falling into the bleachers was greatest. It seemed to Ms. O'Connor that her players were required to use this court for practice much more frequently than the men. Ms. O'Connor voiced her complaints about the equipment and facilities to Jerry Joy, Ervin Pitts, Chairman of the Physical Education Division in 1981-82 who retired after the spring of 1982, and Wayne Davidson, as well as fellow faculty members. In addition to practice court assignments, there was some controversy over a universal weight machine purchased with funds raised by the Women's Athletic Association, a student organization, but which was also being used by the men.

During Ms. O'Connor's first season, it was noticed that she arrived late or not at all to several practices and games. Men's basketball coach, John Gibbs, whose team often practiced concurrently with the women's team, and Wayne Davidson noted that women's team practices appeared to be unorganized. Despite the fact that Coach O'Connor initiated pre-season conditioning, there was further testimony on both sides as to whether or not the team was or was not in good condition. While Coach O'Connor's win/loss record of 7 wins 19 losses in 1981-82, and 6 wins and 19 losses in 1982-83 was better than the previous coach (1 and 21 for both years 1979-80, 1980-81), it is not outstanding and shows no improvement the second year, despite the return of most of the players. Ms. O'Connor attributed this to the fact that she was able to have more games scheduled against stronger opponents, although she herself was not directly responsible for setting up the schedule for the basketball season.

From the record, it would appear that Ms. O'Connor was lax on follow-up. There were several instances in which she had filled in the proper forms for excused absences, but where notice of her potential absence did not reach the proper persons. Consequently, they assumed willful neglect on her part. Another time, illness forced her to miss an important coaches meeting and again the proper person did not receive word of her illness until several days after the meeting. Ms. O'Connor frequently placed the responsibility upon the players for continuing practices in her absences. Once players returned from Christmas break early to attend a scheduled practice only to find the gym locked, that no provisions for their early return had been made at the dormitories, and that Coach O'Connor had not returned. Ms. O'Connor did make an effort to get a non-student, non-staff person...