Conviser v. DePaul Univ.

• Decision Date: 31 March 2021
• Docket Number: No. 20-cv-03094,20-cv-03094
• Citation: Conviser v. DePaul Univ., 532 F.Supp.3d 581 (N.D. Ill. 2021)
• Parties: Dr. Jenny H. CONVISER and Ascend Consultation in Healh Care, LLC, Plaintiffs, v. DEPAUL UNIVERSITY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

532 F.Supp.3d 581

Dr. Jenny H. CONVISER and Ascend Consultation in Healh Care, LLC, Plaintiffs,

v.DEPAUL UNIVERSITY, Defendant.

No. 20-cv-03094

United States District Court, N.D. Illinois, Eastern Division.

Signed March 31, 2021

Arthur Bresnahan, Zumpano Patricios and Bresnahan, LLC, Chicago, IL, Michael S. Popok, Pro Hac Vice, Zumpano Patricios & Popok, PLLC, New York, NY, for Plaintiffs.

Christina M. Egan, McGuire Woods LLP, Amy L. Starinieri Gilbert, Melissa Marie Weiss, McGuireWoods LLP, Chicago, IL, Heidi E. Siegmund, Pro Hac Vice, McGuireWoods LLP, Richmond, VA, Robert Craig Wood, Pro Hac Vice, McGuireWoods LLP, Charlottesville, VA, for Defendant.

MEMORANDUM OPINION AND ORDER

Franklin U. Valderrama, United States District Judge

PlaintiffsDr. Jenny H. Conviser(Dr. Conviser) and Ascend Consultation in Health Care, LLC(Ascend)(collectively, Plaintiffs) have filed suit against Defendant DePaul University (DePaul), asserting wrongful retaliation under Title IX,20 U.S.C. § 1681, et seq. and several related state law claims.Plaintiffs’ claims stem from allegations that DePaul retaliated against them following their involvement in the reporting of a head softball coach's abuse of players and coaching staff.DePaul now moves to dismiss Plaintiffs’ First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), primarily on the ground that Plaintiffs, as independent contractors, cannot assert statutory standing under Title IX.R. 23, Mot. Dismiss.For the reasons set forth below, DePaul's Motion to Dismiss is granted.In what appears to be a case of first impression, the Court finds that Plaintiffs do not have Title IX statutory standing, because they are neither employees of an educational program or activity nor deprived of access to an educational program or activity.Lacking statutory standing, the Court dismisses Count I. The Court declines to exercise supplemental jurisdiction over Counts II and III, Plaintiffs’ remaining state law claims, and dismisses the same.

Background

From 2005 to 2018, licensed clinical psychologist Dr. Conviser provided sports psychology and mental health services to members of the DePaul community.R. 19, First Amended Complaint (FAC)¶¶ 5, 16–17, 22.¹²Dr. Conviser and her staff specifically treated members of DePaul's sports community, including coaches, managers, and student-athletes, to ensure that their mental health and nutritional needs were met.Id.¶¶ 50–52.The FAC characterizes Dr. Conviser and her companies (e.g., Plaintiff Ascend, founded in 2013) as DePaul's "outsourced, sole sourced, mental health provider[s]" during this time.Id.¶¶ 21, 99.

Dr. Conviser claims that in her health provider position and at DePaul's direction, she played "an integral and active role" in DePaul's Title IX program.FAC ¶ 56.DePaul instructed Dr. Conviser to (a) report abusive conduct to DePaul's Title IX Office; (b) participate in any investigations conducted by DePaul's Title IX Office that resulted from her reports; and (c) meet with, train, and/or counsel DePaul coaches and staff on proper Title IX conduct.Id.In that vein, Dr. Conviser asserts that she learned of several allegations of abuse primarily perpetrated by then-head women's softball coach Eugene Lenti(Coach Lenti), and in each instance, either reported the conduct herself or encouraged the reporting of the conduct to the DePaul administration.Id.¶ 1.Each reporting incident is further detailed below.

The first reporting incident occurred in the fall of 2016.Dr. Conviser "obtained credible and actionable information from her patients and others" that Coach Lenti was " ‘out of control,’ frequently abusive and aggressive to his staff and players, and fostered a culture of intimidation, fear and retaliation."FAC ¶ 57.Upon hearing this information, Dr. Conviser immediately reported the allegations to DePaul's Director of Sports Medicine and the Assistant Athletics Director.Id.¶ 58.Dr. Conviser claims that no investigation was initiated, and they instead instructed her to meet with Coach Lenti and his staff to address the issues raised and to review their Title IX responsibilities, a task which she carried out over a series of coaching sessions.Id.¶¶ 58–60.Plaintiffs claim that DePaul slowly stopped referring patients to Dr. Conviser and Ascend after she first reported Coach Lenti's misconduct in 2016, DePaul's first alleged act of retaliation.Id.¶ 101.

The following year, in June 2017, DePaul entered into a new four-year Professional Services Agreement (PSA) with Ascend that allowed DePaul to refer student-athletes to Ascend for mental health services.FAC ¶ 67.The PSA reads, in relevant part:

WHEREAS, DePaul requires the services of professionals specializing in the evaluation and treatment of mental illnesses, issues of a psychological nature, and nutritional therapy for student-athletes at DePaul;

WHEREAS, DePaul desires to continue to refer certain student-athletes to obtain clinical psychological and/or counseling services on a non-exclusive basis from the professionals of Ascend;

WHEREAS, AscendCHC is willing to provide clinical psychology assessment and psychotherapy and nutrition assessment, education and support for student-athletes at DePaul University who have been pre-approved by the University for such services;

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1.TERM

The term of the Agreement will be for four (4) years beginning July 1, 2017("the Effective Date") and ending June 30, 2021(the "Termination Date").

2.REFERRAL

(a) DePaul may refer student-athletes that it believes are in need of clinical psychological assessment to Ascend.Ascend will provide a preliminary assessment for such student-athlete and make a recommendation as to the form of further treatment.

(b) Ascend agrees to conduct a preliminary evaluation of illnesses of a psychological or nutritional nature of the student-athletes referred to it by DePaul on a non-exclusive basis.

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11.INDEPENDENT CONTRACTOR

(a) Ascend is an independent contractor of DePaul, and neither AscendCHC nor any of its employees or contracted health service providers are employees, agents, joint venturers or partners of DePaul.

(b) AscendCHC agrees not to market or hold itself out publicly as an employee of DePaul or as the exclusive or official sports psychologist of DePaul Athletics.

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14.TERMINATION

(a) This Agreement shall only be terminated prior to the Termination Date with prior written notice as fully set forth below or as otherwise provided in Section 14:

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(b) This Agreement may be terminated with prior written notice as fully set forth below:

(i) By either party, upon the material breach of any term of this Agreement, provided thirty (30) days prior written notice is delivered to the breaching partyand the cause giving rise to the claimed breach has not been cured within the thirty (30) day notice period.

R. 24-1, Mot. Dismiss Memo. Exh. A, PSAat 1, 4–5, 7(emphasis in original).³

In December 2017, at Dr. Conviser's request, Dr. Conviser met with Athletics Department administrators to discuss student mental health services and resources at DePaul. FAC ¶ 71.During this meeting, Dr. Conviser raised concerns about Coach Lenti and highlighted examples of abusive behavior that had been reported to her, including student-athletes being "ignored, excluded, teased, yelled at, addressed with profanity, criticized and/or called derogatory names."Id.¶ 72.

In February 2018, Dr. Conviser and her staff counseled a student-athlete patient to report a campus-related sexual assault (unrelated to Coach Lenti and the women's softball team) to DePaul'sTitle IX Office. FAC ¶ 77.The student reported the assault to the Title IX Office, and Dr. Conviser also subsequently informed the Director of Sports Medicine about the assault.Id.Dr. Conviser alleges that after the student reported, DePaul's Title IX Coordinator immediately contacted her and inexplicably accused her of deterring students from reporting improper conduct under DePaul's Title IX program.Id.¶ 78.

Finally, in April 2018, Dr. Conviser learned that a student-athlete patient had informed an Ascend therapist of an incident involving Coach Lenti punching a female associate head coach in the face.FAC ¶ 85.Dr. Conviser directed the therapist to counsel the student to report the incident.Id.¶ 86.The therapist counseled the student as instructed, and the student reported the incident to DePaul's Title IX Office on April 6, 2018.Id.¶ 87.

One week after the student reported the punching incident, Plaintiffs allege that DePaul "terminat[ed]" its agreement with Ascend "three years early."FAC ¶ 97.Specifically, DePaul "went so far as to ‘rescind care’ in the middle of treatment for a DePaul student-athlete and direct Dr. Conviser to refer the student back to the University for treatment."Id.¶ 98.DePaul ceased referring student-athletes to Dr. Conviser and Ascend altogether, citing a "sudden" preference to utilize its internal counseling services rather than Ascend's.Id.¶ 99.At some point, DePaul also told student-athletes that DePaul would no longer pay for services provided by Dr. Conviser and Ascend.Id.¶ 127.

On or about April 19, 2018, DePaul's Title IX Office initiated an investigation into Coach Lenti's conduct; Coach Lenti retired that summer.FAC ¶¶ 90, 92.Plaintiffs allege, upon information and belief, that DePaul's Title IX Office and Athletics Department learned about Dr. Conviser's involvement during this investigation.Id.¶ 89.

On April 15, 2020, Plaintiffs filed suit against DePaul in the Circuit Court of Cook County, asserting a Title IX retaliation claim and several state law claims, including breach of contract and defamation.R. 1-1.DePaul removed the case to federal court, and Plaintiffs subsequently filed the First Amended Complaint, at issue here.FACat 1 n.1.Plaintiffs’ First Amended Complaint initially contained six counts: retaliation in violation of Title IX(Count I); breach of contract and the...