Clark v. Newman Univ.
| Decision Date | 13 February 2020 |
| Docket Number | Case No. 19-1033-JWB-GEB |
| Parties | DESTINY CLARK, Plaintiff, v. NEWMAN UNIVERSITY, INC., et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
This matter is before the Court on Plaintiff's Motion to Disqualify the law firm of Lewis Brisbois Bisgaard & Smith, LLP, from representing Defendants in this case. (ECF No. 18). On December 2, 2019, the Court conducted a hearing on Plaintiff's motion. Plaintiff Destiny Clark appeared through counsel, Jennifer M. Hill. Defendant Newman University, Inc. and former defendant Victor Trilli appeared through counsel, Alan L. Rupe. After consideration of Plaintiff's motion and memorandum in support (ECF Nos. 18, 19), Defendants' Memorandum in Opposition (ECF No. 29), and Plaintiff's Reply (ECF No. 31), and hearing additional argument from counsel, the Court announced its oral ruling at the conclusion of the hearing. Plaintiff's Motion to Disqualify was GRANTED in part as to attorneys Jeremy K. Schrag, Christina M. Guerin, and Laura J. Anson and DENIED without prejudice as to attorney Alan L. Rupe. This writtenopinion memorializes that ruling.2
The parties' factual statements are not in complete agreement. Where one party submits a declaration or affidavit in support of its factual statement and the opposing party offers no opposing declaration, the Court accepts such facts as true for purposes of this motion. At the time of the filing of the motion to disqualify, Defendants had not yet filed an answer, because they filed a Motion to Dismiss, which was recently decided (see Motion, ECF No. 6; Mem. and Order, ECF No. 65). Therefore, the Court accepts as true the factual allegations of the Complaint (ECF No. 1) for purposes of this motion.
Plaintiff Destiny Clark worked for defendant Newman University ("Newman") from May 2015 through June 2018. She was hired by the athletic director, and former defendant Victor Trilli, as head volleyball coach. Plaintiff claimed she was treated differently than male coaches, her volleyball team had inadequate facilities, and they did not receive equal treatment regarding practice times at the gym. Additionally, Plaintiff had issues with a male student athlete who was disruptive to practices and confrontational with her. She claimed the men's basketball coaches and Trilli, as athletic director, failed to protect her by taking appropriate disciplinary action against the student-athlete.
On October 4, 2017, Plaintiff submitted a written summary of complaints toNewman's Title IX Coordinator, Case Bell. The next day, Newman purportedly opened an investigation. Bell appointed John Walker and Lisa DeLoach, Newman Title IX officers, to initiate the investigation. Six days later, on October 10, 2017, Newman's Director of Human Resources, Mandy Greenfield, took over the investigation from Bell due to the presence of employees on both the complaining and responding sides. On October 18, 2017, at the direction of Ms. Greenfield, Plaintiff converted her written summary of complaints to a formal Title IX complaint, which she filed. In mid-November 2017, Plaintiff was advised to work from home.
Prior to the investigation's conclusion, on November 30, 2017, Newman retained the law firm of Lewis Brisbois Bisgaard & Smith, LLP ("Lewis Brisbois") to complete the Title IX investigation into Plaintiff's complaint. Lewis Brisbois attorneys Jeremy Schrag, Christina Guerin, and Laura Anson conducted the investigation. Lewis Brisbois attorney and managing partner Alan Rupe was not a member of the Title IX investigation team. The parties have different interpretations of the necessity of the change in investigation strategy: Plaintiff believes the internal investigators were preparing findings of discrimination when Ms. Greenfield and Mr. Walker were terminated and replaced by Lewis Brisbois, while Defendants contend the internal investigators were terminated for improper behavior, and the law firm was hired to complete the investigation properly.
On December 3, 2017, Mr. Schrag sent an email to Plaintiff indicating Newman retained the Lewis Brisbois firm to "take over pending Title IX investigations in which [Plaintiff is] involved" and would be conducting a "thorough, timely, and independentinvestigation into all allegations." (ECF No. 19-1 at 1.) The email was directed to Plaintiff, and both Mr. Rupe and Ms. Anson were copied on the email. At some point shortly after Plaintiff received the first email from Mr. Schrag, she retained Jennifer Hill as her attorney.4
Between December 8 and December 27, 2017, multiple emails were exchanged between Jennifer Hill, Plaintiff's attorney, and Mr. Schrag, attempting to schedule Plaintiff's interview. Of the several emails exchanged, two copy Mr. Rupe: one dated December 27, 2017, scheduling the interview time, and one on December 29, 2017, giving details of the interview and asking Plaintiff to bring relevant documents. (ECF No. 31, Ex. E.)
Multiple Title IX investigations were being conducted during roughly the same time period. To understand the scope of the investigations, the Lewis Brisbois investigators interviewed Newman personnel. On January 3, 2018, both Mr. Rupe and Mr. Schrag interviewed Kelly McCarthy, a former IT employee of Newman, regarding an unspecified Title IX investigation. Ms. McCarthy's interview was not mentioned in the Title IX Investigative Report into Plaintiff's complaint. On January 4, 2018, Mr. Schrag interviewed Mandy Greenfield, the former Newman HR Director, and Mr. Rupe was present for approximately two hours of the three-hour interview. Ms. Greenfield's attorney was also present at the interview. Although the Report mentions the investigators "met with Greenfield on two separate occasions," the content of bothinterviews is not specified. (Report, ECF No. 29-1.)
Mr. Rupe contends any role he played in the investigation was as Newman's counsel. Mr. Rupe did not prepare any of the investigative reports and was not present for any of the interviews conducted specifically regarding Plaintiff's Title IX complaint. Mr. Rupe did not attend or participate in the interviews of Victor Trilli, R.J. Allen, Jamahl DePriest, Levi Esses, and a member of the women's cheer squad, which were conducted as part of the investigation into Plaintiff's Title IX complaint. Although other Title IX investigations were occurring at the same time, those investigations regarded complaints not made by Plaintiff. Mr. Rupe did not prepare any of the investigative reports.
On January 16, 2018, the Lewis Brisbois firm presented its report to the Newman Executive Committee. The Report was signed by Mr. Schrag, Ms. Guerin, and Ms. Anson, and was not addressed to, signed by, nor mentions Mr. Rupe. The Report found no violations of the anti-discrimination or Title IX policies but found "conditions exist at the University" which would impact the ability of Newman to ensure a discrimination-free environment "in the future." (Report, ECF No. 29-1.) The investigators recommended corrective actions, in the form of counseling, training, and changes to Newman's policies and procedures. Mr. Rupe received the Title IX report simultaneous with Newman's Executive Committee.
Between January 16-17, 2018, Plaintiff's counsel and Mr. Schrag exchanged emails regarding the conclusion of the Title IX investigation and Plaintiff's return to campus. Mr. Rupe was copied on these emails. Other emails dated January 16 throughJanuary 22, 2018 between Mr. Schrag and Plaintiff's counsel (some of which are duplicates) discuss the issue of Plaintiff's supervisor when she returns to work. Mr. Rupe is also copied on those emails.
Clark describes her remaining employment with Newman as containing open and continuous retaliation against her for informally and formally lodging complaints against Newman and Trilli. Clark's employment at Newman ended with her resignation on July 16, 2018. Prior to concluding her employment Plaintiff filed a charge with the Equal Employment Opportunity Commission, and later amended her charge after leaving Newman.
Plaintiff then filed this lawsuit in February 2019 against both Newman and Trilli, claiming Title IX Retaliation (Count 1), violations of the Equal Pay Act (Count 2); Title VII Retaliation (Count 3); Title IV hostile work environment (Count 4); Title VII gender discrimination (Count 5); intentional infliction of emotional distress (Count 6); negligent hiring/retention (Count 7); negligent training/failure to train (Count 8); and negligent supervision (Count 9). Recently, District Judge John W. Broomes granted Defendants' motion to dismiss Counts 6-9, and Trilli was dismissed from the case. (ECF No. 65.)
The undersigned held a scheduling conference in June 2019. (ECF Nos. 26, 28.) Currently, the litigation is progressing through discovery. After modifications to the Scheduling Order, discovery is set to close on April 17, 2020 with a pretrial conference set for May 13, 2020. A jury trial has not yet been scheduled. (Revised Scheduling Order, ECF No. 61.)
At the time of the initial scheduling conference, Plaintiff filed her motion to disqualify defense counsel (ECF No. 18), but Defendants had not yet responded. After the motion to disqualify ripened, the parties filed a notice of pending mediation to occur on September 23, 2019. (ECF No. 33.) In light of the scheduled mediation, the Court postponed consideration of the motion. After counsel requested a conference and informed the Court they wished to postpone mediation, the Court set the disqualification motion for oral argument. (Order, ECF No. 42.) This order memorializes rulings made during that hearing.
Plaintiff asks the Court to disqualify the firm of Lewis Brisbois, or in the alternative, Mr. Rupe, Mr. Schrag, Ms. Guerin, and Ms. Anson, from representing either D...
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