Mehus v. Emporia State University

• Decision Date: 15 January 2004
• Docket Number: No. CIV.A. 03-2066-KHV.,CIV.A. 03-2066-KHV.
• Citation: 295 F.Supp.2d 1258
• Parties: Maxine MEHUS, Plaintiff, v. EMPORIA STATE UNIVERSITY, Defendant.
• Court: U.S. District Court — District of Kansas

295 F.Supp.2d 1258

Maxine MEHUS, Plaintiff, v. EMPORIA STATE UNIVERSITY, Defendant.

No. CIV.A. 03-2066-KHV.

United States District Court, D. Kansas.

January 15, 2004.

COPYRIGHT MATERIAL OMITTED

R. Denise Henning, Stephen R. Bough, Henning & Bough, PC, Kansas City, MO, for Plaintiff.

William Scott Hesse, Office of Attorney General, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Maxine Mehus brings suit against Emporia State University, alleging that it discriminated against her and subjected her to a hostile work environment on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., and the Equal Pay Act, 29 U.S.C. § 206(d). This matter comes before the Court on the Motion To Dismiss (Doc. # 6) which Emporia State University filed June 25, 2003, and its Motion To Quash Summons, Service Of Summons And Motion To Dismiss (Doc. # 16) filed July 10, 2003. For reasons stated below, the Court sustains in part defendant's motion to dismiss and overrules defendant's motion to quash and dismiss.

Facts

Plaintiff alleges the following facts:

Emporia State University ("ESU") is an undergraduate and graduate institution of higher education which receives federal financial assistance. Since August 2, 1988, ESU has employed plaintiff as head coach for the women's volleyball team.

Because of her sex, ESU has denied plaintiff certain benefits of employment or discriminated against her by (1) paying her lower salary and benefits than similarly situated male employees; (2) awarding her smaller and less frequent increases in salary and benefits than similarly situated male employees; (3) denying plaintiff upgraded positions and promotions; (4) classifying plaintiff's job in a fashion which denies her the opportunity to be on the same 12-month contract as similarly situated male employees, to receive compensation commensurate with her experience and education, and to receive valuable employment rights and privileges; and (5) forcing plaintiff to work under terms, conditions and privileges which are less beneficial and desirable and more onerous and difficult than those of similarly situated male employees. Complaint (Doc. # 1) filed February 14, 2003 at 2-3.

ESU holds plaintiff to a different standard and places different requirements on her than it does on similarly situated male employees. For example, plaintiff must coach and teach, and successfully compete at the level as similarly situated male employees who coach but do not teach. ESU does not provide plaintiff the resources, financial support, coaching assistants, aids and equipment that it provides similarly situated male employees. Plaintiff has a smaller budget and fewer provisions than similarly situated male employees for team housing, dining and other facilities and services which are necessary to travel to and from sporting events. Plaintiff must promote her team with less assistance from ESU information services and athletic budget. Plaintiff receives less assistance with event promotion and management. Plaintiff must work in an atmosphere which is openly hostile to women. She must perform duties which ESU does not require of similarly situated male employees, and she must design and implement an effective recruitment program with less assistance and fewer resources.

Plaintiff alleges that ESU (1) discriminated against her on the basis of sex in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. (Count I); (2) subjected her to a hostile work environment in violation of Title VII (Count II); (3) discriminated against her on the basis of sex in violation of the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d) (Count III); and (4) discriminated against her on the basis of sex in violation of Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. §§ 1681 et seq. and 34 C.F.R. §§ 106.1 et seq. (Count IV).

Procedural History

Plaintiff filed suit on February 14, 2003. That same day, by certified mail, plaintiff sent the Notice of Lawsuit and Return of Waiver of Service of Process to Kay Schallenkamp, president of ESU. Exhibit 1 to Plaintiff Mehus' Response In Opposition To Defendant Emporia State's Motion To Dismiss ("Plaintiff's Response") (Doc. # 25) filed July 23, 2003. ESU did not return the waiver of service form. On March 18, 2003, plaintiff's counsel faxed a letter to ESU attorney Gayle Meierhoff, indicating that the deadline for execution of waiver of service was March 16, 2003, and asking whether ESU intended to execute the waiver. Exhibit 2 to Plaintiff's Response (Doc. # 25). Meierhoff referred plaintiff's counsel to Assistant Attorney General Scott Hesse.

Hesse instructed plaintiff's counsel to send the lawsuit information directly to him at the office of the Kansas Attorney General. On March 27, 2003, by certified mail, plaintiff's counsel sent Hesse the Notice of Lawsuit and Return of Waiver of Service of Process. Exhibit 3 to Plaintiff's Response (Doc. # 25). ESU did not return the waiver of service of process form, however, so on May 15, 2003—90 days after she filed suit—plaintiff formally served process on Governor Kathleen Sebelius. Exhibit 4 to Plaintiff's Response (Doc. # 25). On June 26, 2003, plaintiff filed a motion for costs of service of process. See (Doc. # 11).

In the meantime, on June 25, 2003, ESU had filed a motion to dismiss the complaint which plaintiff had served on Governor Sebelius, arguing that (1) plaintiff had not properly served ESU; (2) ESU is entitled sovereign immunity; and (3) plaintiff does not state a claim under Title IX. Plaintiff responded that she had properly served ESU under Fed.R.Civ.P. 4(j)(2); that Title VII, Title IX and the EPA abrogate States' sovereign immunity; and that she has a private cause of action under Title IX.

On July 2, 2003, the Court denied plaintiff's motion for costs of service of process, see Doc. # 14. Six days later, on July 8, 2003—145 days after she filed suit—plaintiff formally re-served the complaint on Assistant Attorney General Richard D. Smith. Exhibit 6 to Plaintiff's Response (Doc. # 25). On July 10, 2003, ESU filed a motion to quash that service and dismiss plaintiff's complaint because she did not effectuate service within 120 days under Rule 4(m), Fed.R.Civ.P. ESU also asked the Court to dismiss plaintiff's claim under Title VII because the statute of limitations barred refiling of her Title VII claims.

Analysis

I. Motion To Dismiss (Doc. # 6)

A. Service Of Process

ESU asks the Court to dismiss plaintiff's claims, arguing that plaintiff did not timely serve the Attorney General or one of his assistants, as required by Kansas law, and that plaintiff's service on Governor Sebelius was insufficient because she is not the chief executive officer of ESU. Memorandum In Support Of Motion To Dismiss ("Memorandum In Support") (Doc. # 7) filed July 10, 2003, at 1-2. Specifically, ESU argues that it is an agency of the State of Kansas and that under Rule 4(j)(2), Fed.R.Civ.P., and K.S.A. § 60-304(d)(5), plaintiff was required to serve the Attorney General or one of his assistants. Id. at 1-2. Plaintiff agrees that she did not follow K.S.A. § 60-304(d)(5) but responds that under Rule 4(j)(2), she is allowed to serve the chief executive officer of the State of Kansas, and that she properly did so by serving Governor Sebelius on May 15, 2003. Plaintiff's Response (Doc. # 25) at 3-4. ESU responds that for purposes of Rule 4(j)(2), the Attorney General is the chief executive officer of the State of Kansas and the Kansas Board of Regents is the chief executive for its member institutions, including ESU. Memorandum In Support (Doc. # 7) at 2.

Pursuant to Rule 4(j)(2), a plaintiff may obtain service on a State governmental agency "by delivering a copy of the summons and of the complaint to its chief executive officer" or by serving the summons and complaint in the manner prescribed by State law.

ESU is a State educational institution which is controlled by, operated and managed by the Board of Regents.¹ See Kansas Bd. of Regents v. Pittsburg State Univ. Chapter of Kan.-Nat'l Educ. Assn., 233 Kan. 801, 811, 667 P.2d 306, 314 (1983); K.S.A. § 76-711. The Board of Regents may be sued and may defend any action brought against it or against any State educational institution, but State educational institutions also may be sued and defend actions against them. K.S.A. § 76-713. ESU is a State agency, K.S.A. § 76-712, and under K.S.A. § 60-304(d), a plaintiff may obtain service on a State agency by serving the State Attorney General or an Assistant Attorney General. In addition, K.S.A. § 76-714 provides that

[t]he chief executive officer[] of [ESU] shall have the title of president. The chief executive officer[] of [ESU] shall be appointed by the board of regents. Such chief executive officer[] shall serve at the pleasure of the board of regents and shall receive such compensation as the board of regents prescribes.

Based on the plain language of K.S.A. 76-714, the ESU president—President Schallenkamp —is the chief executive officer of ESU. Under Rule 4(j)(2), plaintiff could therefore obtain service of process by serving the Attorney General, an Assistant Attorney General, or President Schallenkamp as chief executive officer of ESU.

The Court therefore sustains ESU's motion, which it construes as a motion to quash, for insufficient service of the complaint which plaintiff served on Governor Sebelius on May 15, 2003. For reasons stated below, however, the Court finds that plaintiff later obtained service on ESU and it declines to dismiss plaintiff's complaint.

B. Sovereign Immunity

ESU asks the Court to dismiss plaintiff's claims because it is entitled sovereign immunity. ESU specifically argues that plaintiff's claim under the EPA, 29 U.S.C. § 206(d), must be dismissed because (1) the EPA...