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HOWELL v. NORTH CENTRAL COLLEGE

June 2, 2004.

DANIELLE HOWELL, Plaintiff,
v.
NORTH CENTRAL COLLEGE, THE TRUSTEES OF NORTH CENTRAL COLLEGE, BY AND THROUGH ITS CHAIRMAN, RICHARD NORENBERG, WALTER JOHNSON, LINDA OLSON, KAREN SEREMET, Defendant.



The opinion of the court was delivered by: EDWARD BOBRICK, Magistrate Judge

MEMORANDUM ORDER

Before the court is the motion of plaintiff Danielle Howell for leave to file an Amended Complaint pursuant to Fed.R.Civ.P. 15.

Plaintiff attended North Central College from September of 1998, until June of 2003, and played on the women's basketball team for a little more than two seasons. During that time, she claims to have been targeted for harassment because she is a heterosexual. On October 4, 2002, plaintiff filed a four-count complaint, charging the college and the other defendants with sexual harassment in violation of Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 et seq., violation of her due process rights under 42 U.S.C. § 1983, and intentional and negligent infliction of emotional distress. Since that time, the court has dismissed plaintiff's Title IX claims against the individual defendants, her § 1983 claims against all defendants, and all her claims against defendant Richard Norenberg. Now, plaintiff seeks to file an amended complaint which would add a claim of retaliation in violation of Title IX, and a claim for breach of contract.*fn1

  I. PLAINTIFF'S ALLEGATIONS

  The core of plaintiff's allegations have not changed from her original complaint to her amended complaint. Plaintiff matriculated at North Central College in Naperville, Illinois, in the fall of 1998. According to plaintiff, she was a productive member of the women's basketball team during her sophomore and junior seasons. At that time, the head coach was Linda Olson, and Karen Seremet was, apparently, an assistant coach. (Complaint at Law, ¶¶ 12-13; Amended Complaint at Law, ¶¶ 12-13). Plaintiff alleges that Olson began to exclude her from certain team activities at the beginning of her junior season in 2000. (Complaint at Law, ¶ 18; Amended Complaint at Law, ¶ 18).

  During a team luncheon on November 17, 2000, plaintiff voiced her opposition to homosexuality. According to plaintiff, both Olson and Seremet told her not to express her opinion on the subject. (Complaint at Law, ¶ 20; Amended Complaint at Law, ¶ 20). Plaintiff alleges that, shortly thereafter, she overheard Seremet and another player speculating as to plaintiff's sexual preferences. (Complaint at Law, ¶ 21; Amended Complaint at Law, ¶ 21). She also alleges that Seremet repeatedly talked to plaintiff about lesbian activity in an effort to "indoctrinate" her. (Complaint at Law, ¶ 21; Amended Complaint at Law, ¶ 21). Plaintiff claims that, because she resisted "lesbian doctrinarian," Olson decreased her playing time in favor of an inferior player. (Complaint at Law, ¶ 22; Amended Complaint at Law, ¶ 22). Olson also told plaintiff she was no longer allowed to wear ribbons in her hair because it was "too feminine." (Complaint at Law, ¶ 23; Amended Complaint at Law, ¶ 23). Plaintiff claims that, as a result of indoctrination efforts, dress code requirements, and unbalanced personal criticism, she was forced to leave the team. (Complaint at Law, ¶ 25; Amended Complaint at Law, ¶ 25). According to plaintiff, Olson was seen laughing and celebrating when plaintiff quit. (Complaint at Law, ¶ 26; Amended Complaint at Law, ¶ 26).

  According to both the original and amended complaint, in December of 2000, plaintiff attempted to speak to the athletic director, Walter Johnson, about her treatment in person and left a phone message which he never returned. (Complaint at Law, ¶ 27; Amended Complaint at Law, ¶ 27). Plaintiff's parents wrote him a letter about the situation on May 4, 2001, with copies going to the president of the college and the board of trustees. (Complaint at Law, ¶ 27; Amended Complaint at Law, ¶ 27). Shortly thereafter, the college asked for Coach Olson's resignation and, when she refused, terminated her. (Complaint at Law, ¶ 28; Amended Complaint at Law, ¶ 28). The athletic director then promoted Karen Seremet to fill the vacancy. (Complaint at Law, ¶ 29; Amended Complaint at Law, ¶ 29).

  According to plaintiff, in September of 2001, she attempted to resume contact with the team by playing basketball in an "open gym," but was prevented from doing so by Seremet. (Complaint at Law, ¶ 30; Amended Complaint at Law, ¶ 30). During the last week of October in 2001, plaintiff asked to meet with Seremet. (Complaint at Law, ¶ 31; Amended Complaint at Law, ¶ 31). At that meeting, plaintiff alleges that Seremet told her that because she had not performed the off-season recruiting and fund-raising that the athletic director had told her and her mother was required, she would not be allowed to rejoin the team. (Complaint at Law, ¶ 31; Amended Complaint at Law, ¶ 31). Plaintiff claims that neither she nor her mother had been informed of such requirements. (Complaint at Law, ¶ 31; Amended Complaint at Law, ¶ 31).

  Plaintiff seeks to add two counts to her original complaint. In the retaliation count she now seeks to add to her complaint, she contends that defendants refusal to allow her to rejoin the team was in retaliation for her complaints about sexual discrimination and harassment. (Amended Complaint at Law, Count II). She also contends that the defendants' conduct amounted to a breach of contract, which was set forth in the college's catalogs, handbooks, and policy statements, and which prohibited discrimination on the basis of sexual orientation. (Amended Complaint at Law, Count III).

  II. ANALYSIS

  While Federal Rule of Civil Procedure 15(a) instructs the courts to give leave to amend a complaint freely "when justice so requires," it does not mandate that leave be granted in every case. Park v. City of Chicago, 297 F.3d 606, 612 (7th Cir. 2002). In particular, a district court may deny a plaintiff leave to amend her complaint if there is undue delay, bad faith, dilatory motive, or if the amendment is futile, or will result in undue prejudice to the opposing party. Id. In this case, review of plaintiff's proposed amendments demonstrates that they would be futile and her Rule 15(a) motion must be denied.

 
A. Harassment "On the Basis of Sex" and Retaliation under Title IX
  In her original complaint, filed over a year and a half ago, plaintiff claimed that defendants subjected her to a course of sexual harassment in violation of Title IX. Now, she seeks to add the additional claim that defendants retaliated against her when she complained about this treatment, also in violation of Title IX. That statute provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a) (emphasis added). In Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028 (1992), the Supreme Court determined that Title IX's prohibition against discrimination was implicated in cases involving sexual harassment. 503 U.S. at 75, 112 S.Ct. at 1037. In so doing, the Court relied on a Title VII case, Meritor Savings Bank, FSB v. Vinson. Franklin, 503 U.S. at 75, 112 S.Ct. at 1037 (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986)). Since then, federal courts have looked to Title VII precedent to inform their analyses of sexual discrimination claims under Title IX. See Frazier v. Fairhaven School Committee, 276 F.3d 52, 66 (1st Cir. 2002) (same-sex harassment); Doe v. University of Illinois, 138 F.3d 653, 665 (7th Cir. 1998), vacated, 526 U.S. 1142, 119 S.Ct. 2016 (1999) (hostile environment); Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 248-249 (2nd Cir. 1995) (sexual harassment by teacher); Preston v. Commonwealth of Virginia ex rel. New River Community College, 31 F.3d 203, 206 (4th Cir. 1994) (employment discrimination). Accordingly, Title VII precedent informs our analysis of whether the protections of Title IX extend to plaintiff's proposed retaliation claim.

  Title VII, and presumably Title IX, protect persons from not only discrimination on the basis of sex, but also from retaliation for complaining about the types of discrimination they prohibit.*fn2 Hamm, 332 F.3d at 1066; Hamner, 224 F.3d at 704. To advance such a claim, "it is sufficient if the plaintiff has a sincere and reasonable belief that [s]he is opposing an unlawful employment practice." Hamner, 224 F.3d at 706-07. Thus, even if the discrimination or harassment at issue does not reach a degree sufficiently severe to implicate that statutes' protections, a retaliation claim may, nevertheless, be valid. 224 F.3d at 707. But, as the court has made clear, "the complaint must involve discrimination that is prohibited by [the statute]." Id. As the Seventh Circuit has explained, "[i]f a plaintiff opposed conduct that was not proscribed by Title VII, no matter how frequent or severe, then [her] sincere belief that [she] opposed an unlawful practice cannot be reasonable." Id. In this case, plaintiff alleges that she suffered same-sex discrimination and harassment as a result of being a heterosexual. When she opposed this conduct, according to her amended complaint, the defendants retaliated against her. The issue, then, is whether Title IX prohibits the type of discrimination of which she complains.*fn3 Resolution of this question requires an examination of not only plaintiff's proposed retaliation claim, but her original same-sex harassment claim as well.

  Federal courts struggled with the issue of same-sex harassment in a Title VII context until the Supreme Court's decision in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998 (1998). There, the Court stated that it saw no justification in statutory language or Supreme Court precedent for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. 523 U.S. at 79, 118 S.Ct. at 1002. The Court cautioned, however, that the sexual harassment must meet the statutory requirement that it constitute discrimination because of sex. 523 U.S. at 81, 118 S.Ct. at 1002. Illustrating this requirement, the Court offered examples of what form such sexual harassment might take: Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed ...


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