Kelley v. Iowa State Univ. of Sci. & Tech.

• Decision Date: 22 May 2018
• Docket Number: No. 4:17–cv–00397–JEG,4:17–cv–00397–JEG
• Citation: 311 F.Supp.3d 1051
• Parties: Robinette KELLEY, Plaintiff, v. IOWA STATE UNIVERSITY OF SCIENCE AND TECHNOLOGY, Defendant.
• Court: U.S. District Court — Southern District of Iowa

311 F.Supp.3d 1051

Robinette KELLEY, Plaintiff,

v.IOWA STATE UNIVERSITY OF SCIENCE AND TECHNOLOGY, Defendant.

No. 4:17–cv–00397–JEG

United States District Court, S.D. Iowa, Central Division.

Signed May 22, 2018

Thomas James Bullock, Beatriz Andrea Mate–Kodjo, Thomas Andrew Newkirk, Newkirk Zwagerman, P.L.C., 521 East Locust St., Suite 300, Des Moines, IA 50309, for Plaintiff.

Ryann A. Glenn, Husch Blackwell LLP, 13330 California Street, Suite 200, Omaha, NE 68154, Hayley Elizabeth Hanson, Michael Thomas Raupp, Derek T. Teeter, Husch Blackwell LLP, 4801 Main Street, Suite 1000, Kansas City, MO 64112, Natasha Nicole Wilson, Attorney General of Iowa, Hoover State Office Bldg., 1305 East Walnut Street, Des Moines, IA 50319, for Defendant.

ORDER

JAMES E. GRITZNER, Senior Judge

This matter comes before the Court on a Motion to Dismiss (the Motion) filed by Defendant Iowa State University of Science and Technology (ISU). Plaintiff Robinette Kelley (Kelley or Plaintiff) resists. The Court held a hearing on the Motion on April 26, 2018. Attorneys Derek Teeter and Michael Raupp were present for ISU, and attorneys Thomas Bullock and Beatriz Mate–Kodjo were present for Kelley. The matter is fully submitted and ready for disposition.

I. BACKGROUND¹

ISU is a public state university located in Ames, Iowa, and as such, is the recipient of federal financial assistance. Kelley was employed by ISU as ISU's equal opportunity director and Title IX coordinator from February 4, 2013, to October 14, 2015. Kelley's immediate supervisor was Miles Lackey, Associate Vice President and Chief of Staff of ISU (Associate Vice President Lackey), who reported directly to then–President Steven Leath (President Leath). Kelley was ISU's first equal opportunity director, and upon her hiring, was told by Associate Vice President Lackey that he wanted her to be " ‘the face’ of the Equal Opportunity office on campus." Compl. ¶ 42, ECF No. 1.

In her role, Kelley managed ISU's equal opportunity and affirmative action programs. Kelley alleges, however, that contrary to United States Department of Education (DOE) guidelines on Title IX, ISU failed to provide her with "the necessary authority or support to implement her authority required by her position and by Title IX." Compl. ¶ 46. For example, Kelley alleges that ISU did not provide her with direct supervision by President Leath, did not give her authority to coordinate compliance with Title IX, did not adequately fund or staff her office, did not devote resources to ensuring equal educational opportunities for students on the basis of gender, and required her to serve in multiple additional roles, including affirmative action compliance officer, Section 504 coordinator, Americans with Disabilities Act (ADA) compliance officer, and civil rights investigator. Kelley further alleges that ISU failed to provide her with historical information regarding sexual assault and harassment complaints, denied her permission to revise the policy and practices on interim measures to protect student victims of sexual assault, and prevented her from ensuring that victims of sexual violence and harassment could rely on ISU for case-specific measures ensuring equal education opportunities.

Kelley alleges that, during her tenure as Title IX coordinator, she became increasingly concerned with ISU's compliance with Title IX, yet "began to receive pushback from other administrators regarding Title IX compliance issues." Compl. ¶¶ 53–54. According to Kelley, ISU bypassed her office by directing student Title IX complainants to the Dean of Students Office or to University Human Resources, entities she alleges had a vested interest in the outcome of the Title IX complaints. Kelley allegedly received "push-back [sic] and retaliation when she challenged ISU's compliance with Title IX and advocated for the need to take steps to comply with federal and state civil rights laws." Compl. ¶ 63. Kelley alleges that ISU administrators ignored her, discouraged her, prevented her from processing complaints, denied her request to contract with two third-party contractors to assist with Title IX investigations, and suggested that she reduce her efforts to comply with Title IX or behave in a manner that would permit ISU to avoid its obligations under Title IX.

Kelley received a performance evaluation on February 25, 2014. During the meeting, Associate Vice President Lackey told Kelley "she needed to exhibit better ways to ‘collaborate’ and ‘show leadership.’ " Compl. ¶ 71. He stated that ISU administrators from the university's legal department and human resources had become "afraid of her" because she was always wearing her "investigator hat" and she was too "litigious." Compl. ¶¶ 72–73. Associate Vice President Lackey nonetheless told Kelley "her overall performance was ‘99% good.’ " Compl. ¶ 74.

Following the meeting, Kelley continued to make verbal and written complaints regarding Title IX compliance to Associate Vice President Lackey, President Leath, and other administrators. In July 2014, Kelley delivered to Associate Vice President Lackey a detailed compliance memo outlining her concerns regarding Title IX compliance. The compliance memo questioned ISU's protocol regarding processing of student complaints, withholding incidents from the Title IX office, and involvement of university counsel in Title IX investigations. The compliance memo also outlined several cases in which, according to Kelley, ISU had compromised her Title IX role and negatively impacted the Title IX rights of ISU students. Kelley alleges that, in response to the memo, "the university counsel, human resources, and the president's office retaliated against [her] and ramped up efforts to marginalize her authority on campus." Compl. ¶ 82. Kelley further alleges that, instead of collaborating with her to bring ISU into compliance with Title IX, "ISU administrators intimidated [her], made veiled threats, and attempted to coerce her into backing down from pursuing meaningful responses to her compliance concerns on campus," all of which interfered with her job duties. Compl. ¶ 84.

In April 2015, the DOE's Office for Civil Rights (OCR) began a Title IX compliance review of ISU. OCR enforces, among other statutes, Title IX, and provides technical assistance and guidance to recipients of federal funds so that they can take proactive efforts to comply with Title IX prior to a compliance review or lawsuit. OCR initiated the investigation after a complaint was filed with OCR by a female victim of sexual assault. Kelley alleges that ISU Counsel Paul Tanaka informed all administrators, including Kelley, not to discuss decisions made regarding the student's OCR complaint and to deny knowledge to OCR about why certain decisions were made. An OCR investigator interviewed Kelley in April 2015. Kelley informed Associate Vice President Lackey that the OCR investigator had told her she could file an OCR complaint based on Kelley's lack of independence, authority, and other Title IX compliance concerns.

In August 2015, during a sexual misconduct retreat, ISU announced that it was creating a sexual misconduct coordinator position in ISU's Student Affairs Division. Kelley alleges that, on the day of the retreat, Senior Vice President of Student Affairs Thomas Hill stated that ISU was creating the position because ISU wanted student-victims to report to the Dean of Students Office instead of Kelley.

On September 4, 2015, Kelley received her final performance evaluation. Three days prior, Kelley had received praise from a member of the ISU Board of Regents for a training she had conducted. During the meeting, Kelley brought up to Associate Vice President Lackey her August 2015 OCR complaint, which addressed her lack of independence and authority to enforce Title IX. Though Associate Vice President Lackey flagged two complaints about Kelley's performance, he told Kelley "her overall performance was ‘95% good.’ " Compl. ¶ 106.

On October 14, 2015, five weeks and five days after the evaluation, Associate Vice President Lackey fired Kelley. During an October 27, 2015 phone call, President Leath informed Kelley that Associate Vice President Lackey had justified her termination because Kelley had refused to attend leadership training and classes, a claim that Kelley disputes. Kelley was told that Associate Vice President Lackey "wanted to take the Equal Opportunity/Title IX office in a different direction and that he did not feel [she] had the leadership skills to move the office in a new direction." Compl. ¶ 110.

On October 12, 2017, Kelley filed the instant lawsuit in the District Court of Iowa for Polk County. On November 8, 2017, ISU filed a notice of removal with this Court. ISU's removal was timely under 28 U.S.C. § 1446(b)(1), and Kelley's claims, which arise under federal law, fall within the original jurisdiction of the Court under 28 U.S.C. § 1331.

Count I of the Complaint alleges that ISU committed discrimination in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. Kelley alleges that ISU engaged in the "usurpation, removal, and watering down of [her] Title IX Coordinator job duties, independence, influence, and authority," which in turn "place[d] employees and students at risk of sex based discrimination in violation of Title IX." Compl. ¶¶ 118–19. Kelley alleges that "ISU's inaction indicates their [sic] deliberate indifference to the rights [she] advocated for on behalf of female victims of sexual assault." Compl. ¶ 122.

Count II of the Complaint alleges that ISU retaliated against Kelley in violation of Title IX. Kelley alleges that ISU maintained "policies and practices ... that functioned to deny equal education opportunities to students and employees based on gender," including denying these individuals "Title IX protections and rights." Compl. ¶¶ 135, 139. Kelley alleges that "ISU did not permit [her] to exercise her duties required under Title IX" by...