Clay v. Board of Trustees of Neosho Cty. Community

• Decision Date: 13 October 1995
• Docket Number: Civ. A. No. 94-2282-EEO.
• Citation: 905 F. Supp. 1488
• Parties: John CLAY, Plaintiff, v. The BOARD OF TRUSTEES OF NEOSHO COUNTY COMMUNITY COLLEGE, and Travis P. Kirkland, Defendants.
• Court: U.S. District Court — District of Kansas

905 F. Supp. 1488

John CLAY, Plaintiff, v. The BOARD OF TRUSTEES OF NEOSHO COUNTY COMMUNITY COLLEGE, and Travis P. Kirkland, Defendants.

Civ. A. No. 94-2282-EEO.

United States District Court, D. Kansas.

October 13, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gail M. Hudek, Paul F. Pautler, Jr., Hudek & Associates, P.C., Kansas City, MO, for plaintiff.

James R. Goheen, Daniel B. Denk, Gregory P. Goheen, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for defendants.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Senior District Judge.

This matter is before the court on defendants' motion for summary judgment (Doc. # 61). For the reasons set forth below, defendants' motion for summary judgment will be granted in part and denied in part.

Factual Background

Plaintiff filed the instant suit against the Board of Trustees of his former employer, Neosho County Community College ("NCCC"), and Travis Kirkland, NCCC Athletic Director, alleging breach of his employment contract; retaliatory discharge prohibited by Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 et seq.; a claim under 42 U.S.C. § 1983 for violation of plaintiff's First Amendment Rights; and wrongful discharge in violation of Kansas public policy.¹

Defendants now move for summary judgment on all of plaintiff's claims. For purposes of the instant summary judgment motion, the following is an abbreviated version of the pertinent facts, which are either uncontroverted or deemed admitted, pursuant to Federal Rule of Civil Procedure 56(c) and District of Kansas Rule 206(c).

On November 16, 1990, plaintiff was hired as Women's Basketball Coach and Wellness Program Director for NCCC for the remainder of the 1990-91 school year. Plaintiff remained employed in both capacities until March 1, 1993, when Dr. Kirkland informed plaintiff that he would recommend that the Board not renew plaintiff's contract for the 1993-94 school year and relieved plaintiff of all responsibilities related to both positions. Plaintiff was paid through June 17, 1993.

Plaintiff was not tenured at any time during his employment by NCCC. NCCC faculty members were eligible for tenure after three years of employment.

Plaintiff's employment contract for 1992-93 provided that plaintiff was "subject to" the NCCC Board Policy Handbook ("the Handbook"). The Handbook set up specific procedures for performance reviews of NCCC "instructional" faculty members.² Specifically, the Handbook provided that all third-year faculty would be evaluated at least once per year. The Handbook provided for a discussion of the review between the faculty member and the Dean of Academic Affairs and for a hearing by the evaluation review committee, if requested by the faculty member. It is uncontroverted that formal written reviews, as contemplated in the Handbook, were not conducted on plaintiff, or any other coach, during the 1992-93 school year.

The Handbook also contained the following sections addressing nonrenewal of a faculty member's employment contract:

Causes for Non-renewal or Termination

Employment for all probationary employees, part-time employees, temporary employees, or employees with a contract that has a definite ending date may be terminated, demoted, suspended, non-renewed, or not extended without any reason or reasons given for such action. The notice to such persons shall only be required to specify the date of determination....

Procedure for Non-Renewal

The Board of Trustees has accepted the following policy as a basis for dealing with instructors whose work is not satisfactory.

1. The instructor has a right to be warned that his/her work is not satisfactory or up to expectations and to have a reasonable probationary period to correct the situation. The warning should deal with specific items and state the consequences if improvement is not forthcoming. Furthermore, the warning should be in writing for the record so that there can be no misquoting or misunderstanding later....

NCCC Board Policy Handbook at p. 4.7, 4.8 (Plaintiff's Exhibit 15 and Defendant's Exhibit 23).

Whether and when plaintiff registered complaints about inequities between the women's and men's sports programs at NCCC is hotly contested by the parties. Plaintiff describes his protected speech as communications with the NCCC President, Title IX Coordinator, and Athletic Directors, "among others, to identify several areas in which he believed the NCCC athletic department had discriminated against female athletes in violation of Title IX."

Part of the conversations plaintiff describes occurred prior to defendant Kirkland's being hired as NCCC Athletic Director. Specifically, plaintiff points to: (1) his interview with the NCCC screening and hiring committee in which he inquired about the apparent inequity between the women's and men's sports programs; (2) a conversation in late 1990 with the Dean of Student Activities about gender equity issues; (3) a February 1991 NCCC Athletic meeting at which he complained about inter alia the unequal distribution of scholarship money and abstained from voting on the scholarship distribution proposal; (4) discussions with Penny Graves and Kay Buerkle, NCCC women's volleyball and softball coaches; (5) a conversation with Eddie Vaughn, NCCC Athletic Director, about inequities in practice schedules and purchase requests; and (6) an April 29, 1992, complaint to NCCC's interim Athletic Director and Title IX Coordinator, about budget issues. Taking plaintiff's version of the facts as true for purposes of summary judgment, the court will assume that plaintiff registered complaints to Dr. Kirkland and others throughout 1992-93 regarding gender inequities related to the women's basketball team at NCCC. Plaintiff's version of these complaints will be discussed in further detail below. It is uncontroverted that plaintiff did not file a formal Title IX complaint with the Department of Education Office of Civil Rights.

Standards for Summary Judgment

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Hicks v. Watonga, 942 F.2d 737, 743 (10th Cir.1991). Essentially, the inquiry as to whether an issue is genuine is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2512. An issue of fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. This inquiry necessarily implicates the substantive evidentiary standard of proof that would apply at trial. Id. at 252, 106 S.Ct. at 2512.

Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on his pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"We must view the record in the light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 793 (10th Cir. 1988). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Where the nonmoving party fails to properly respond to the motion for summary judgment, the facts as set forth by the moving party are deemed admitted for purposes of the summary judgment motion. D.Kan.Rule 206(c).

Discussion

Plaintiff's Title IX Claim

Defendants seek summary judgment on plaintiff's claim under Title IX because, they contend, Title IX does not provide a private cause of action for retaliation to a "whistle blower" who is not himself discriminated against on the basis of sex. In other words, defendants argue, that plaintiff is outside the class of persons protected by Title IX. Further, they argue, that plaintiff failed to exhaust his administrative remedies. In addition, defendant Kirkland seeks summary judgment because, he asserts, Title IX claims are limited to actions against the educational institution, not an individual administrator. Kirkland also asserts qualified immunity as a defense to plaintiff's Title IX claim.

We first examine the viability of plaintiff's retaliation claim under Title IX. Title IX, 20 U.S.C. § 1681, provides in pertinent part:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or

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