Conviser v. Depaul Univ.
Decision Date | 09 January 2023 |
Docket Number | 20-cv-03094 |
Parties | DR. JENNY H. CONVISER and ASCEND CONSULATION IN HEALH CARE, LLC, Plaintiffs, v. DEPAUL UNIVERSITY, Defendant. |
Court | U.S. District Court — Northern District of Illinois |
The breadth of Title IX is, once again, before the Court. Plaintiffs Dr. Jenny H. Conviser (Dr. Conviser) and Ascend Consultation in Health Care, LLC (Ascend) (collectively Plaintiffs) have filed a Second Amended Complaint (SAC) against DePaul University (DePaul) asserting wrongful retaliation under Title IX, 20 U.S.C. § 1681, et seq. (Count I), as well as state law claims for breach of contract (Count II) and indemnification (Count III). R 47, SAC.[1]DePaul has moved to dismiss the SAC arguing once more-and consistent with the Court's previous ruling-that independent contractors lack statutory standing under Title IX. R. 48, Mot. Dismiss. Upon this round of briefing, however, the Court finds that Plaintiffs' interests fall within Title IX's zone of interests. The Court therefore grants in part and denies in part DePaul's motion to dismiss.
Dr. Conviser is a licensed clinical psychologist engaged in the fields of sports psychology and clinical psychology. SAC ¶ 19.[2]DePaul is a large Catholic and not-for profit university which receives federal financial assistance. Id. ¶ 6. From 2005 to 2018, through her companies, Dr. Conviser provided mental health care and eating disorder treatment to student-athletes, managers, trainers, coaches and other staff in DePaul's athletics program (DePaul Athletics). Id. ¶¶ 1, 30, 35.
Dr. Conviser owns Ascend, an Illinois limited liability company, which provides professional services for the evaluation and treatment of athletes' mental illnesses, emotional states, and related nutritional needs. SAC ¶¶ 5, 29. During all times relevant to this lawsuit, Dr. Conviser, through Ascend, employed ten to twelve therapists, as well as nutritionists and administrators, all of whom Dr. Conviser supervised. Id. ¶ 29.
Between 2005 and 2017, Dr. Conviser's companies and DePaul entered into numerous agreements. SAC ¶ 31. When the contracts expired in accordance with their terms, DePaul and Dr. Conviser's companies routinely entered into new but nearly identical contracts. Id. In June 2017, DePaul and Ascend entered into a new four-year Professional Services Agreement (PSA) that allowed DePaul to refer student-athletes to Ascend for mental health services. SAC ¶¶ 32, 105; R. 49-1, Professional Services Agreement (PSA).[3]The PSA reads, in relevant part:
PSA at 1, 4-5, 7 (emphasis in original).
Through her companies, Ascend and Insight, Dr. Conviser provided mental health services to DePaul student-athletes, coaches, managers, trainers, and other staff. SAC ¶ 30. These mental health services were provided through a referral process, in which DePaul would refer student-athletes to Dr. Conviser's company, the company would assess the student-athletes and recommend treatment plans, and DePaul would pay the company for its services. Id. ¶ 32. Dr. Conviser directly treated many DePaul student-athletes and staff and directed the treatment of patients primarily treated by Ascend's other therapists. Id. ¶¶ 38-40.
In addition to providing mental health services for DePaul Athletics, DePaul directed Dr. Conviser to play a role in ensuring that DePaul complied with NCAA policies and relevant federal law, including Title IX. SAC ¶ 43. In that vein, Dr. Conviser represented DePaul Athletics at the NCAA Big East Mental Health Summits, participated in DePaul's compliance reports to the NCAA, and designed on-campus advertising efforts, training, and faculty counseling to increase awareness of DePaul's available mental health services for students and staff. Id. ¶¶ 33-34. DePaul (and Dr. Conviser's professional licensing) also required Dr. Conviser to participate in investigations into misconduct within DePaul Athletics of which she was aware. Id. ¶ 47.
DePaul provided Dr. Conviser with an on-campus office in DePaul Athletics and held out Dr. Conviser's company as “DePaul's provider” of mental health services. SAC ¶ 34. DePaul informed student-athletes that it would only pay for specialized athletic mental health care if it was provided by Dr. Conviser's company. Id.
When patients told Dr. Conviser or other Ascend therapists that they had experienced or witnessed abuse, Dr. Conviser worked with the patients to help them understand their rights and options for reporting. SAC ¶ 49. When appropriate, Dr. Conviser would also seek the patients' permission to report those abuses to DePaul Athletics. Id.
In Fall 2016, Dr. Conviser informed the Associate Athletics Director and Director for Sports Medicine, Dr. Sue Walsh (Walsh), and then-Assistant Athletics Directory Kathryn Statz (Statz) of some disturbing allegations against DePaul's acclaimed softball coach Eugene Lenti (Lenti). SAC ¶¶ 2, 50. Specifically, Dr. Conviser reported that Lenti was “out-of-control,” and that he was frequently verbally and physically abusive to his staff and players. Id. ¶ 50. For example, Dr. Conviser reported that Lenti regularly called his players gendered epithets like “f---ing whores” and “sensitive bitches.” Id. Rather than investigate Lenti in light of these allegations, Walsh and Statz directed Dr. Conviser to meet with Lenti and his staff to address the issues and educate them about Title IX. Id. ¶ 55.
In December 2017, Dr. Conviser met with DePaul's Athletics Director, Jean Lenti Ponsetto (Ponsetto), who is also Coach Lenti's sister. SAC ¶¶ 42, 61. Walsh and Dr Jill Hollembeak (Hollembeak), who replaced Statz as Assistant Athletics Director, were also in attendance. Id. ¶ 61. At the meeting, Dr. Conviser, again, relayed specific instances of Lenti abusing student-athletes and coaches and stated her concern that Lenti's conduct was inconsistent with DePaul's Title IX obligations. Id. ¶ 62. Dr. Conviser further reported that the soccer and basketball teams were hosting recruitment events that included alcohol and sexual favors. Id. ¶ 64. Finally, Dr. Conviser reported that a...
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