Gordon v. Bd. of Trs. of the Univ. of Ark., 4:15CV00518 JLH

• Decision Date: 10 March 2016
• Docket Number: No. 4:15CV00518 JLH,4:15CV00518 JLH
• Citation: 168 F.Supp.3d 1148
• Parties: Cole Gordon, Plaintiff v. The Board of Trustees of the University of Arkansas ; Scott Norwood, in his individual and official capacities; George Lee, in his individual and official capacities; Chris Peterson, in his individual and official capacities; Gary Hogan, in his individual and official capacities; and Richard Turner, in his individual and official capacities, Defendants
• Court: U.S. District Court — Eastern District of Arkansas

168 F.Supp.3d 1148

Cole Gordon, Plaintiff

v.The Board of Trustees of the University of Arkansas ; Scott Norwood, in his individual and official capacities; George Lee, in his individual and official capacities; Chris Peterson, in his individual and official capacities; Gary Hogan, in his individual and official capacities; and Richard Turner, in his individual and official capacities, Defendants

No. 4:15CV00518 JLH

United States District Court, E.D. Arkansas, Western Division.

Signed March 10, 2016

James M. Scurlock, Wallace, Martin, Duke & Russell, PLLC, Little Rock, AR, Lucien Ramseur Gillham, Sutter & Gillham, PLLC, Benton, AR, for Plaintiff.

David A. Curran, Matthew Blayne McCoy, Sarah Lewis James, University of Arkansas-Office of the General Counsel, Little Rock, AR, for Defendants.

OPINION AND ORDER

J. LEON HOLMES, UNITED STATES DISTRICT JUDGE

Cole Gordon resigned as the University of Arkansas at Little Rock assistant baseball coach and now brings this action against the Board of Trustees of the University of Arkansas and Scott Norwood, George Lee, Chris Peterson, Gary Hogan, and Richard Turner in their individual and official capacities. Gordon alleges that he was forced to resign because he reported an ongoing misuse of public funds, harassment by Scott Norwood, the head baseball coach, of the players, and sexual harassment of the players' girlfriends by Norwood. He asserts claims under the Arkansas Civil Rights Act of 1993,¹ 42 U.S.C. § 1983 (alleging violations of the First and Fourteenth Amendments), 42 U.S.C. § 1985 (alleging a conspiracy to violate the First and Fourteenth Amendments), Title IX,² and the Arkansas Whistle–Blower Act.³ The defendants have moved to dismiss these claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, the motion is granted.

I.

Gordon served as the assistant baseball coach for the UALR Trojans from August 2013 to April 2014. The second amended complaint alleges that during Gordon's tenure at UALR he complained to Gary Hogan—Senior Associate Athletic Director for External Relations—and Richard Turner—Senior Associate Athletic Director for Compliance and Student Support—about three issues: (1) Former head baseball coach Scott Norwood's physical violence toward him; (2) Norwood's sexual harassment of players and their girlfriends; and (3) illegal waste of public funds at UALR.⁴ Neither Hogan nor Turner took any action to address these issues. Human resources merely asked Norwood if the allegations about his behavior were true, but he denied them. Gordon accused UALR of using non-athletic scholarships funded by taxpayers as unofficial athletic scholarships and providing athletic prospects with scholarship interview questions prior to the interviews. Human resources did not attempt to seek additional information from Gordon about his complaints until he no longer worked at UALR.

The discord between Norwood and Gordon escalated into a physical altercation between the two on February 13, 2014. A little over a month later on March 19, 2014, a player attempted suicide. The player stated that he attempted suicide because he could no longer endure Norwood's treatment of the baseball team. Gordon alleges that Norwood responded to the player's concerns by berating him and encouraging him to quit the team. The player subsequently lodged a formal complaint about Norwood's behavior with another UALR baseball coach, Chris Marx. On March 23, 2014, Gordon learned that the players planned to forfeit a game to protest Norwood's treatment of the team. Gordon reported this to Hogan, who spoke with the coaches and players to reach an agreement that the players would play as long as Norwood did not attend. Hogan and Turner met with the team and all of the coaches—excluding Norwood—a few days later. During the meeting, players complained about Norwood's harassment of the players, sexual harassment of their girlfriends, and discussed how Norwood purchased alcoholic beverages for some players. The school officials, coaches, and players did not reach a long-term resolution.

Hogan and Turner met with the players and coaches again the next day, but Norwood attended the meeting. The players did not address the issues discussed the previous day, but Norwood apologized and the players agreed to continue the season if his behavior changed. Norwood remained in the dugout during the games and Gordon stood in as third-base coach until April 2, 2014, when Hogan allowed Norwood to return to the field. During that game, a brawl broke out between UALR and the opposing team. Gordon alleges that around this time, Hogan and Turner began to accuse him of wrongdoing. Hogan, Turner, and Norwood confronted Gordon about an illegal visit he conducted with a prospective athlete on April 17, 2014. Gordon informed them that it was a personal visit, that the prospective athlete was the son of a friend, and that Gordon did not induce the athlete to come play at UALR. Turner and Hogan responded that if that were true, no NCAA violation occurred. Gordon reiterated his concerns about Norwood to Turner and Hogan at the meeting, but Norwood again denied any wrongdoing. Gordon provided Hogan and Turner with the names of students who had been harassed and those who had witnessed the harassment.

Turner met with those students on April 20, 2014. He allegedly provided the students with pre-written statements stating that Gordon had engaged in wrongdoing equally as bad or worse than that of Norwood. Turner indicated to the students that they were to either sign the statements or face ramifications from the baseball program or the school itself. The next day, Gordon met with Hogan, Turner, Norwood, and Chris Peterson to confront him with the signed statements and the alleged NCAA violation. Gordon alleges that they threatened his prospects of ever coaching again, unless he resigned and agreed not to pursue further action against Norwood. Gordon reminded Hogan and Turner that he had previously reported Norwood's behavior and instances of illegal waste. He asked Peterson to consider those complaints as proof that he had done nothing wrong, but was being retaliated against for making those reports. Peterson replied that if Gordon wanted to coach again, he would resign and go away quietly. Gordon resigned. UALR did not report the alleged violation to the NCAA until May 22, 2014, after Gordon began to look into possible legal remedies based on the treatment he received as a UALR employee.

II.

Federal Rule of Civil Procedure 12(b)(1) allows a party to move for dismissal based upon a lack of subject matter jurisdiction. To prevail on a motion to dismiss for lack of subject matter jurisdiction, the challenging party must successfully attack the complaint, either on its face or on the factual truthfulness of its averments. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.1993) ; Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir.1990). “In a facial challenge to jurisdiction, all of the factual allegations, as contained in the non-moving party's pleadings, which concern the jurisdictional issue, are presumed to be true and, therefore, the non-moving party receives the same protections that it would receive if it were defending against a Motion to Dismiss under Rule 12(b)(6), Federal Rules of Civil Procedure.” Hoeffner v. Univ. of Minnesota, 948 F.Supp. 1380, 1384 (D.Minn.1996). If a plaintiff fails to allege an element necessary for a finding of subject matter jurisdiction, the complaint should be dismissed. Titus, 4 F.3d at 593. The defendants argue that the Court does not have jurisdiction over Gordon's official capacity claims because they are barred by sovereign immunity. Document # 25 at 3–4.

The Eleventh Amendment states that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. CONST. AMEND. XI. It has been interpreted to bar suits brought against a State in federal courts by her own citizens, as well as those of another State. Edelman v. Jordan, 415 U.S. 651, 662–63, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). The Eleventh Amendment generally bars any suit brought in federal court against a state, state agency, or state officials acting in their official capacities. See Seminole Tribe v. Florida, 517 U.S. 44, 74, 116 S.Ct. 1114, 1132, 134 L.Ed.2d 252 (1996) ; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984) ; Ede l man, 415 U.S. at 663, 94 S.Ct. at 1355. But three exceptions allow suits against a state, state agency, or state officials: (1) Congress may abrogate the States' immunity; (2) a state may waive its immunity; or (3) under the Ex Parte Young doctrine, a plaintiff may file suit against state officials acting in their official capacities seeking prospective injunctive relief for ongoing violations of federal law. Seminole Tribe, 517 U.S. at 74, 116 S.Ct. at 1132. Gordon does not contend that the State has consented to suit in federal court; rather, he contends that the Ex Parte Young exception applies to his § 1983 and § 1985 claims and that Congress abrogated the States' immunity in Title IX.⁵

A. Section 1983 and Section 1985 Claims

Gordon's § 1983 and § 1985 claims against the defendants in their official capacities are barred by the Eleventh Amendment. First, the Board of Trustees is immune from suit based on Gordon's § 1983 and § 1985 claims, whether for damages or injunctive relief. See Monroe v. Ark. State Univ . 495 F.3d 591, 594 (8th Cir.2007) (“the University argues the Eleventh Amendment bars suit against the University for any kind of relief, not merely monetary damages. We agree.”). See also Buckley v. Univ. of Ark. Bd. of Trustees, 780 F.Supp.2d 827, 830 (E.D.Ark.2011) (“The governing bodies of state universities enjoy the same...