Kesterson v. Kent State Univ.

• Decision Date: 15 March 2017
• Docket Number: CASE NO. 5:16-cv-298
• Parties: LAUREN KESTERSON, PLAINTIFF, v. KENT STATE UNIVERSITY, et al., DEFENDANTS.
• Court: U.S. District Court — Northern District of Ohio

LAUREN KESTERSON, PLAINTIFF, v. KENT STATE UNIVERSITY, et al., DEFENDANTS.

CASE NO. 5:16-cv-298

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

March 15, 2017

JUDGE SARA LIOI

MEMORANDUM OPINION

There are several motions before the Court. Plaintiff Lauren Kesterson ("plaintiff" or "Kesterson") has moved for leave to file a first amended and supplemental complaint (Doc. No. 18 ["Mot. Amend"]). Kent State University ("Kent State" or "the University") has moved to strike a portion of the proposed first amended and supplemental complaint (Doc. No. 24 ["Mot. Strike"]). Plaintiff opposes the motion to strike (Doc. No. 27 ["Mot. Strike Opp'n"]), and Kent State has filed a reply (Doc. No. 28 ["Mot. Strike Reply"]). Additionally, defendant Karen Linder ("Linder") has moved to dismiss plaintiff's first amended and supplemental complaint (Doc. No. 26 ["Linder MTD"]). Plaintiff opposes Linder's dispositive motion (Doc. No. 29 ["Linder MTD Opp'n"]), and Linder has replied (Doc. No. 30 ["Linder MTD Reply"]). Finally, the other individual defendant, Eric Oakley ("Oakley"), seeks dismissal of all claims against him (Doc. No. 31 ["Oakley MTD"]). Plaintiff opposes this motion, as well (Doc. No. 32 ["Oakley MTD Opp'n"]), and Oakley has filed a reply (Doc. No. 33 ["Oakley MTD Reply"]). For the reasons that follow, plaintiff's motion to amend and Oakley's motion to dismiss are granted in part, and Linder's motion to dismiss and Kent State's motion to strike are denied.

I. BACKGROUND

Because defendants' respective motions all address the allegations contained in the proposed first amended and supplemental complaint ("FAC"), the Court shall rely on this pleading, in addition to undisputed material facts, to supply the factual background for the case.¹ All disputed facts are presented in a light most favorable to the plaintiff.

In this action, plaintiff, a student at Kent State and a former student athlete, alleges that defendants infringed upon her constitutional rights in the wake of a report she made to her softball coach regarding a sexual assault perpetrated against her by another student-athlete, the softball coach's son. Claim 1 of the FAC raises a sexual discrimination claim against Kent State under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1682 et seq. ("Title IX"). Claim 2 raises an equal protection claim against Linder and Oakley. Plaintiff raises two more claims against the individual defendants: Claim 3 sets forth a First Amendment prior restraint claim, and Claim 4 alleges First Amendment retaliation. Kesterson seeks declaratory and injunctive relief, compensatory and punitive damages, costs, interest, and attorney's fees.²

Kent State is a public university with a NCAA Division I varsity athletics program. (FAC ¶ 3, see ¶¶ 8-19.) Prior to August 28, 2015, Linder was employed by Kent State as the head coach of the women's softball team. (Id. ¶¶ 4, 127.) Linder recruited plaintiff, and her twin sister, to play softball for Kent State. In April 2011, as high-school juniors, plaintiff and her sister verbally committed to accepting sport scholarships from the University. (Id. ¶¶ 21-22.) Plaintiffgraduated from high school in the spring of 2012 in the top 5% of her class, and, that fall, enrolled with her sister at Kent State as scholarship athletes. (Id. ¶ 23.) Linder's son, Tucker Linder ("Tucker"), was also a freshman at Kent State in the fall of 2012 and played for the University's men's baseball team. (Id. ¶¶ 24-25.) Tucker and plaintiff developed a friendship, and engaged in "minor intimacies on one occasion" prior to the alleged assault that underlies the present action. (Id. ¶ 26.)

On December 7, 2012, Tucker called plaintiff and invited her to "hang out" with him. She agreed, and the two walked to Tucker's dorm room. (Id. ¶ 27.) While plaintiff had not been drinking, Tucker appeared to be intoxicated. (Id. ¶¶ 28-29.) Plaintiff and Tucker again engaged in consensual "minor intimacies[.]" But unlike the previous encounter, Tucker "did not stop" when plaintiff "stopped consenting." (Id. ¶ 30.) Despite the fact that plaintiff indicated "at least ten times" that she did not want to have sex—and even tried to push Tucker away—Tucker ignored plaintiff's protests and raped her. (Id. ¶¶ 31-34.)

Plaintiff was "horrified" and "distraught[,]" and the encounter with Tucker caused her debilitating emotional distress. (Id. ¶¶ 35, 40.) She alleges that her academic performance suffered as a result, and plaintiff struggled to attend classes or sit for exams. (Id. ¶ 42.) Plaintiff's G.P.A. dropped from a 3.98 her first semester to a 3.1 during the fall of her sophomore year, and a 2.84 by the end of her sophomore year. (Id. ¶¶ 41, 47, 52.) Plaintiff was also forced to withdraw from two classes because she was unable to concentrate. (Id. ¶ 47.) She also experienced nightmares, vomiting, and unintentional weight loss. As her physical and mental state deteriorated, she began to share with family and close friends the details of the assault by Tucker. (Id. ¶¶ 46, 50.) Plaintiff's parents arranged for her to receive trauma therapy to cope withthe aftermath of the attack. (Id. ¶ 48.)

Even softball failed to offer plaintiff respite. In fact, because the women's softball team and the men's baseball team shared hitting and training facilities, softball became an additional stressor because it brought plaintiff into regular contact with Tucker. (Id. ¶ 43.) Plaintiff also encountered Tucker on campus and at school functions. At a party in September 2013, plaintiff and her boyfriend ran into Tucker. Intoxicated, Tucker bragged about his conquest in front of plaintiff's boyfriend. (Id. ¶¶ 44-45.)

At the end of the softball season plaintiff's sophomore year, the team held a meeting to discuss the next season. During the meeting, plaintiff became emotional and thanked her teammates for "helping her deal with her issues." (Id. ¶ 53.) Plaintiff's "suffering was so apparent" that, following the meeting, Linder asked plaintiff's sister and another teammate whether plaintiff had been sexually assaulted. The two told Linder that she would have to ask plaintiff directly. (Id. ¶ 54.)

In mid-May 2014, plaintiff met with Linder "for a routine exit meeting. During the meeting, [Kesterson alleges that she] lodged a Title IX complaint with" Kent State. (Id. ¶ 56.) According to the FAC, Linder asked plaintiff if "she had been through anything that she would like to talk about[,]" and she specifically, and directly, asked plaintiff "if she had been sexually assaulted." (Id. ¶ 57.) Plaintiff confirmed that she had been sexually assaulted, and Linder advised plaintiff that she would have to report it. (Id. ¶¶ 57-59.) Linder then asked plaintiff, "It wasn't my son, was it?" (Id. ¶ 60.) Plaintiff responded, "What if it was?" Plaintiff did not want to jeopardize her opportunity to play softball for Kent State because of a report. Plaintiff added, "I know that he's your kid." (Id. ¶ 61.) Linder assured plaintiff, "You're my kid, too." Linder thenbegan to cry and apologized to plaintiff. (Id. ¶¶ 61-63.)

After plaintiff reported the assault, Linder suggested to her that perhaps Tucker was unaware that he had raped her. Plaintiff rebuffed Linder's repeated suggestions that plaintiff speak with Tucker about the situation. Kesterson believed that Linder wanted her try to resolve the matter informally with Tucker. (Id. ¶¶ 65-67.) Linder asked plaintiff if she wanted to press criminal charges against Tucker, but—"fearful of what pressing charges against her coach's son would mean for her opportunity to play softball—said that she did not." (Id. ¶ 67.)

Linder also asked plaintiff who else knew about the incident. Plaintiff indicated that she had told her parents, her sister, and another teammate. Linder responded, "I would appreciate it if you would not tell anybody else and that we keep this between the people that know." (Id. ¶ 68.) Plaintiff "got the impression from Coach Linder that [] Kesterson had to agree to keep silent if she wanted to keep her spot on the team. [] Kesterson was afraid that if she did not comply with Coach Linder's instruction, she would kick [plaintiff] off the softball team and non-renew her scholarship." (Id. ¶ 69.)

Additionally, Linder confided in plaintiff that Tucker was considering not returning to Kent State, and that he had recently been in trouble. She volunteered that Tucker had been arrested on St. Patrick's Day due to an incident involving alcohol, and described him as "not right." (Id. ¶ 70.) Linder assured plaintiff that she would handle the matter, that she would help plaintiff anyway she could, and that she loved her. (Id. ¶ 71.) The following day, Linder called plaintiff's mother and apologized to her, assuring her that she would do everything she could to help Kesterson. (Id. ¶ 74.) During the summer, Linder called plaintiff and advised her that Tucker would not be returning to Kent State in the fall because he was "struggling". (Id. ¶ 77.)

It is undisputed that Linder never reported the assault or advised Kent State's Title IX coordinator about plaintiff's allegations, despite the fact that Kent State's policies regarding sexual harassment obligated her to do so. (Id. ¶¶ 78-80.) Further, plaintiff alleges that Linder was well aware of her reporting obligations. A few days before plaintiff informed Linder of Tucker's assault, another softball player reported during her exit meeting that she had been raped by a different male student athlete. According to the FAC, Linder immediately "escorted her to Sexual and Relationship Violence and Support Services on campus." Linder also reported the conversation to Janet Kittell, the Senior Women's Administrator and a deputy Title IX coordinator. (Id. ¶¶ 84-87.)

Plaintiff continued to struggle with the fallout from the assault into her junior year at Kent State. She further alleges that "Linder engaged in a campaign of intimidation and control to...