Fox v. Pittsburg State Univ.

• Citation: 257 F.Supp.3d 1112
• Decision Date: 26 June 2017
• Docket Number: Case No. 14-CV-2606-JAR.
• Court: U.S. District Court — District of Kansas
• Parties: Martha FOX, Plaintiff, v. PITTSBURG STATE UNIVERSITY, Defendant.

257 F.Supp.3d 1112

Martha FOX, Plaintiff,

v.PITTSBURG STATE UNIVERSITY, Defendant.

Case No. 14-CV-2606-JAR.

United States District Court, D. Kansas.

Signed June 26, 2017

Amy P. Maloney, Matthew J. O'Laughlin, Maloney O'Laughlin, Kansas City, MO, for Plaintiff.

M.J. Willoughby, Office of Attorney General, Whitney L. Casement, Goodell, Stratton, Edmonds & Palmer, LLP, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE

A jury rendered a verdict in favor of Plaintiff Martha Fox on claims for damages arising under Title VII and Title IX against Defendant Pittsburg State University ("PSU"), and the Court entered judgment on the verdict. The parties have now filed post-trial motions.¹ The motions are fully briefed and the Court is prepared to rule. For the reasons explained more fully below, the Court deniesDefendants Motion for Renewed Judgment as a Matter of Law as to the Title IX Claim (Doc. 207) and deniesDefendant's Motion for Renewed Judgment as a Matter of Law as to the Title VII Claim (Doc. 209). The Court also deniesDefendant PSU's Motion For New Trial or in the Alternative for Remittitur (Doc. 214).

Notably, Defendant improperly filed separate motions for judgment as a matter of law as to each claim, effectively circumventing the page limitations. It is not in compliance with the Federal Rules of Civil Procedure or the local rules, which contemplate one filing for all claims.² Defendant should have filed onemotion for judgment as a matter of law as to both claims and requested leave to extend the page limitation if necessary. The Court deliberated about whether to strike the motions, but ultimately decided to consider both. Defendant was represented by experienced counsel, Ms. Casement and Ms. Willoughby, who undoubtedly knew this was a violation of the local rule and that it would create an excessive amount of work for Plaintiff's counsel as well as this Court. In fact, Defendant has single-handedly multiplied the briefing, advanced an inordinate number of arguments, many of which are without merit, and seeded its briefing with vexatious, inappropriate, uncivil and unprofessional language, as will be detailed in the Court's order on Plaintiff's attorney fees and expenses. None of Defendant's tactics is well received by the Court.

I. Background

This matter arose out of Plaintiff's employment as a custodian at PSU between July 2010 and November 2015. Plaintiff contends that she was subjected to sexual harassment from April 2012 to March 2014 by Custodial Supervisor Jana Giles and custodian Cathy Butler Brown. Plaintiff complained to members of the custodial management, including Wanda Endicott and Kevin Malle, but nothing was done to stop or deter the conduct.

In February 2014, Plaintiff complained about the ongoing sexual harassment to Cindy Johnson, PSU's Director of Equal Opportunity and Affirmative Action. Plaintiff alleges Defendant failed to properly investigate the complaints in that Johnson refused to interview witnesses. Johnson told Plaintiff that she would not investigate Plaintiff's complaints because Johnson feared it would start a "firestorm." Plaintiff alleges that she did not receive sexual harassment training until after the alleged harassment took place. Plaintiff also alleges she suffered emotional distress damages as a result of the sexual harassment she endured.

Defendant filed a motion for summary judgment on the Title IX and Title VII sexual harassment and retaliation claims. The Court denied summary judgment on the Title IX and Title VII hostile work environment sexual harassment claims, but granted summary judgment on the Title VII and Title IX retaliation claims. The case proceeded to a jury trial on October 3, 2016 on the remaining claims. The jury returned a verdict in favor of Plaintiff on both claims, awarding damages of $100,000 on the Title IX claim, and $130,000 on the Title VII claim. The Court denied Defendant's oral and written motions under Federal Rule of Civil Procedure 50(a) for judgment as a matter of law,³ and entered judgment on the verdict in favor of Plaintiff and against Defendant.⁴

II. Motion for Judgment as a Matter of Law

A. Standard

A district court may grant a motion for judgment as a matter of law under Rule 50 if it "finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on [the] issue."⁵ The standard is met only when "the proof is all one way or so overwhelmingly preponderant in favor of the movant as to permit no other rational conclusion."⁶ In determining whether judgment as a matter of law is proper, a court may not weigh the evidence, consider the credibility of witnesses, or substitute its judgment for that of the jury.⁷ In other words, the Court must affirm a jury verdict if, viewing the record in the light most favorable to the nonmovant, the record contains evidence upon which the jury could properly return a verdict for the nonmovant.⁸ Judgment as a matter of law is appropriate "[i]f there is no legally sufficient evidentiary basis ... with respect to a claim or defense ... under the controlling law."⁹

B. Discussion

The Court addresses the motions for judgment on the Title IX and Title VII claims separately, as the parties have done in the briefing.

1. Title IX Claim

Defendant moves for judgment as a matter of law on the Title IX claim for four reasons—(1) Plaintiff does not have a private right of action under Title IX as a custodian; (2) Defendant is immune from Plaintiff's Title IX claim; (3) Plaintiff failed to meet the standard for damages under Title IX; and (4) Plaintiff provided insufficient evidence of actual notice to the proper authority. Inexplicably, Defendant did not raise the first two grounds in its summary judgment motion, but argues that because these are jurisdictional issues, they can be raised at any time. Each argument will be addressed in turn.

a. Private Right of Action

Plaintiff invoked both Title VII and Title IX at trial to seek relief for the hostile work environment sexual harassment she faced based on her sex. Defendant argues that Title IX does not grant a private right of action to a custodial employee. This argument is twofold. First, Defendant argues that Title IX is "preempted" in the context of employee-on-employee sexual harassment by Title VII.¹⁰ Second, even if Title VII does not displace relief under Title IX, there is no implied private right of action for employee-on-employee sexual harassment where, as here, the employee does not have any relation to an educational program or activity.

i. Waiver

As to the "preemption" argument, Plaintiff argues this has been waived because it was not raised in the Rule 50(a) motion made at trial. Although inartfully drafted, the Court believes that Defendant's response is that this is "jurisdictional" in nature, so it cannot be waived and may be raised at any time. The general rule is that "[a] party may not circumvent Rule 50(a) by raising for the first time in a post-trial motion issues not raised in an earlier motion" for judgment as a matter of law.¹¹ However, under Federal Rule of Civil Procedure 12(h)(3), a party may raise a challenge to subject matter jurisdiction at any time. Given the complete lack of authority and the novelty of this issue, the Court will assume without deciding that "preemption" is "jurisdictional" and may be raised for the first time in a Rule 50(b) motion.

ii. Title VII Displacing Relief Under Title IX

The Court finds that even if Defendant's argument that Title VII displaces Title IX has not been waived, it is without merit. The issue of whether Title VII displaces relief under Title IX to recover damages for employment discrimination is unsettled.¹² The parties do not cite nor is the Court aware of Tenth Circuit precedent addressing whether Title VII displaces Title IX in the employment discrimination context. But there is a split of authority among other circuits that have addressed the issue of whether a Title VII claim displaces relief under Title IX. As explained in more detail below, this Court finds more persuasive the reasoning of those circuit courts that have held that Title VII does not displace Title IX.

There are six Supreme Court decisions guiding this Court's conclusion that Title VII does not displace Title IX.¹³ Most relevant to this case, in Jackson v. Birmingham Board of Education, a high school employee was relieved of his coaching position when he complained of disparate treatment of the girls' basketball team.¹⁴ The Supreme Court recognized an employee's private right of action for retaliation under Title IX despite no express prohibition in the statute because if the funding recipient were "permitted to retaliate freely," "individuals" who witness sex discrimination would be "loath to report it" and "all manner of Title IX violations might go unremedied."¹⁵ Though not explicitly addressed, the Supreme Court did not indicate that Title VII displaced relief under Title IX. Rather, the Supreme Court recognized "Title VII is a vastly different statute," as it distinguished Title IX's "broadly written general prohibition on discrimination" with Title VII's "greater detail [with respect to] the conduct that constitutes discrimination."¹⁶

The circuits have split on whether Title VII is intended to displace Title IX for claims against schools in the employment discrimination context. In Lakoski v. James, the Fifth Circuit held that Title VII displaces Title IX because allowing Title IX employment discrimination claims to proceed without satisfying Title VII's exhaustion requirements would upset Congress's remedial scheme for redressing employment discrimination.¹⁷ In Lakoski, the plaintiff, a former professor denied tenure, argued that based on Cannon, North Haven, and Franklin, there was an implied right of action under Title IX for employment discrimination.¹⁸ The Fifth Circuit disagreed with this "jurisprudential arithmetic," distinguishing Canno...