Mills v. Iowa

• Decision Date: 19 February 2013
• Docket Number: No. 3:10–cv–112.,3:10–cv–112.
• Citation: 924 F.Supp.2d 1016
• Parties: Marcus MILLS, Plaintiff, v. The State of IOWA; James Bryant; The Stolar Partnership, LLP; and Sally Mason, Bonnie Campbell, and Douglas True, in their official and individual capacities, Defendants.
• Court: U.S. District Court — Southern District of Iowa

924 F.Supp.2d 1016

Marcus MILLS, Plaintiff,

v.The State of IOWA; James Bryant; The Stolar Partnership, LLP; and Sally Mason, Bonnie Campbell, and Douglas True, in their official and individual capacities, Defendants.

No. 3:10–cv–112.

United States District Court,

S.D. Iowa,

Davenport Division.

Feb. 19, 2013.

Megan R. Dimitt, Gregory M. Lederer, Lederer Weston Craig PLC, Cedar Rapids, IA, for Defendants.

Kelly R. Baier, Bradley & Riley, Cedar Rapids, IA, for Plaintiff.

ORDER

ROBERT W. PRATT, District Judge.

Before the Court is a Motion for Summary Judgment, filed by The Stolar Partnership, LLP (“Stolar”) and James Bryant (“Bryant”) (collectively “Defendants”). Clerk's No. 71. Marcus Mills (“Mills” or “Plaintiff”) filed a resistance to the Motion (Clerk's No. 94) and Defendants replied (Clerk's No. 101). The Court held a hearing on the Motion on August 3, 2012. Clerk's No. 103. Following the hearing, Magistrate Judge Walters authorized additional discovery (Clerk's No. 104), and the Court granted each party an opportunity to submit a supplemental brief. Clerk's No. 110. Plaintiff filed a supplemental brief on October 5, 2012. Clerk's No. 113. Defendant filed a supplemental brief on October 19, 2012.¹ The matter is fully submitted.

I. FACTUAL BACKGROUND

On July 26, 2005, then-University of Iowa (“University”) president David Skorton (“Skorton”) sent Plaintiff a letter offering him the position of “General Counsel” at the University commencing August 1, 2005. Pl.'s Statement of Add'l Material Facts (hereinafter “Pl.'s Facts”) (Clerk's No. 94.2) ¶ 1; Skorton's July 26 Letter.² Among other things, Skorton's letter stated that the annual salary would be $190,000, and that:

In accordance with long-standing University policy, this position is classified as “at will” status. The administrative, policy-making and other responsibilities of this position required this designation. This is consistent with other upper-level executives at the University. This designation means that you serve at the will of the institution and are not guaranteed a specific term of appointment.

Skorton's July 26 Letter. According to Mills, he and Skorton spoke about possible revisions to the July 26 letter because “Mills had concerns that he was giving up a position that had career status protections.” Pl.'s Facts ¶ 2. Thus, on July 28, 2005, Skorton sent Mills a revised letter. Skorton's July 28 Letter.³ Though the July 28 version of the letter was largely identical to the July 26 version, the July 28 letter raised the proposed salary to $197,000 per year and added the sentence, “It is my intention that you would serve for an initial term of not less than five years” after the “at-will” paragraph recited above. Id. Both letters included language indicating that the offer was “contingent on Board of Regents, State of Iowa approval and on successful completion of credential verification and of a criminal background check.” ⁴Id.; Skorton's July 26 Letter. On July 29, 2005, Mills accepted the General Counsel position offered in Skorton's letters and, upon fulfillment of the identified contingencies, became the Vice President for Legal Affairs and General Counsel of the University in August 2005. Pl.'s Facts ¶¶ 4–5.

On the morning of October 14, 2007, a female student athlete (the “Student Athlete”) was sexually assaulted in her dormitory room on campus by two members of the University's football team.⁵Id. ¶ 6; Defs.' Statement of Undisputed Material Facts (hereinafter “Defs.' Facts”) (Clerk's No. 71.1) ¶¶ 1–2. The University of Iowa Athletics Department (“Athletics”) initially received notice of the assault, along with Sally Mason (“Mason”), the University's President, Mills, and others. Pl.'s Facts ¶ 6. Athletics initially investigated the assault. Id. ¶ 7. In particular, Head Football Coach Kirk Ferentz and Athletic Director Gary Barta (“Barta”) met with the Student Athlete and her father. Id. Barta communicated with Mason throughout Athletics' investigation. Id. On approximately October 23, 2007, Athletics delivered a report to Mills and Marcella David (“David”), the Director of the University's Office of Equal Opportunity and Diversity (“EOD”). Defs.' Facts ¶ 3; Pl.'s Response to Defs.' Statement of Undisputed Material Facts (hereinafter “Pl.'s Reply to Defs.' Facts”) (Clerk's No. 94.1) ¶ 3; Defs.' App. (Clerk's Nos. 71.2–71.5) at 110. Thereafter, EOD commenced a formal investigation of the incident. Defs.' Facts ¶ 3; Pl.'s Reply to Defs.' Facts ¶ 3.

On October 24, 2007, at the request of Betsy Altmaier (“Altmaier”), the Faculty Athletic Representative to the Big Ten Conference and the NCAA, Mills spoke with the Student Athlete's father.⁶ Pl.'s Facts ¶¶ 9–10. Between approximately October 24, 2007 and November 13, 2007, Mills had six separate phone calls with the Student Athlete's father.⁷Id. ¶ 10. Nonetheless, while EOD was completing its work, the Student Athlete and her family were becoming frustrated with a lack of communication and with harassment the Student Athlete was receiving in the dormitory. Defs.' Facts ¶ 6. On November 5, 2007, the Student Athlete filed a criminal report with University's Department of Public Safety (“DPS”). Id. ¶ 7. She thereafter reported the incident to the Johnson County Attorney, who eventually charged and prosecuted the two football players. Id.; Pl.'s Resp. to Defs.' Facts ¶ 7.

On November 16, 2007, Michael Gartner (“Gartner”), President of the Iowa Board of Regents (the “Board”), sent Mason an email informing her that Gartner was asking personnel from the Board's office to prepare it for “a look at the policies and processes involved in the alleged sexual assault at the University.” Pl.'s Facts ¶ 11. Gartner requested that a timeline be prepared regarding the actions taken in response to the assault during the time period from October 14, 2007 to November 6, 2007. Id. Mason forwarded Gartner's email to Mills, Senior Vice President and Treasurer Douglas True (“True”), and Assistant Vice President and Director of Public Safety Charles Green (“Green”). Id. ¶ 12. Consistent with Gartner's request, Tom Evans (“Evans”) and Tim Cook (“Cook”), the Board's General Counsel and Associate General Counsel respectively, initially spoke with Mills on November 19, 2007. ⁸Id. ¶ 13.

On November 21, 2007, a letter dated November 14, 2007 and signed by “the victim and her family” was faxed to Phillip Jones (“Jones”), the Director of Student Affairs, and Green. Defs.' Facts ¶ 9; Pl.'s Facts ¶ 18; Pl.'s Resp. to Defs.' Facts ¶ 9. Green faxed the letter to Director of University Relations Steve Parrott (“Parrott”), and also emailed Mason, True, Jones, and Mills about the letter, informing them that the mother of the Student Athlete was planning to send the letter to the Board and possibly the Governor. ⁹ Pl.'s Facts ¶ 19. A second letter by the Student Athlete's family that was highly critical of the University's handling of the incident, dated May 16, 2008 and addressed to Mason, Jones, and Mark Long, was received in the Office of the President on May 19, 2008. Pl.'s Resp. to Defs.' Facts ¶ 9.

In his contacts with Evans related to the Board's review, Mills informed Evans of a November 14, 2007 Order of the Iowa District Court for Johnson County prohibiting the release of information regarding the incident.¹⁰ Pl.'s Facts ¶ 14. Mills did not provide any documents to Evans; he did, however, orally recount the events that had occurred up to that point in time. Id. ¶ 16; Defs. Reply to Pl.'s Statement of Add'l Material Facts (“Defs.' Reply to Pl.'s Facts”) (Clerk's No. 101.2) ¶ 16.

On June 11, 2008, Evans issued a report to the Board which concluded that the University had “fully complied” with internal procedural requirements, had offered the Student Athlete appropriate accommodation, and had expressed full support for the Student Athlete.¹¹ Defs.' Facts ¶ 11; Pl.'s Facts ¶ 21. It is undisputed that neither Mills nor anyone else at the University ever turned the two letters from the Student Athlete's family over to Evans or the Board.¹² Defs.' Facts ¶ 10. Thus, Evans neither referenced nor considered the letters in providing his report to the Board.

On July 19 and 21, 2008, the two letters from the Student Athlete's family became public. Id. ¶ 12; Pl.'s Facts ¶ 22. On July 22, 2008, the Board, in a special meeting, established an Advisory Committee composed of three Board members to “reopen the investigation of the University of Iowa's handling of the alleged sexual assault on a female student on the morning of October 14, 2007.” Defs.' Facts ¶ 13. The Board tasked the Advisory Committee with completing its work and preparing a report for the Board by September 18, 2008, and explicitly authorized the Advisory Committee to “hire outside counsel as needed to assist in their investigation of the facts.” Id. ¶ 14. On July 28, 2008, the Advisory Committee hired Stolar as “Special Counsel” to represent it and the Board and “to conduct an investigation of the responses and actions of the University of Iowa, its administration, departments and personnel” regarding the incident.¹³Id. ¶ 15; Pl.'s Facts ¶ 23. In accepting the position as Special Counsel, Stolar considered that the Advisory Committee had retained it to provide legal services and representation, that the Advisory Committee and the Board were clients of the Stolar law firm, and that any report issued was for the benefit of the Advisory Committee and the Board, to be used as they saw fit in discharging their duties to the public. ¹⁴ Defs.' Facts ¶ 25.

In conducting its investigation,¹⁵ Stolar reviewed the Student Athlete's allegations and the letters written by her family; conducted over forty personal interviews with various people including the Student Athlete, her family, University students, officials, and personnel, and experts in sexual violence victims' advocacy and rights; analyzed the reasons relevant documents were not provided to the Board during...