Conviser v. DePaul University

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DR. JENNY H. CONVISER and

ASCEND CONSULATION IN

HEALH CARE, LLC,

Plaintiffs, No. 20-cv-03094

Judge Franklin U. Valderrama

v.

DEPAUL UNIVERSITY,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiffs Dr. Jenny H. Conviser (Dr. Conviser) and Ascend Consultation in

Health Care, LLC (Ascend) (collectively, Plaintiffs) have filed suit against Defendant

DePaul University (DePaul), asserting wrongful retaliation under Title IX, 20 U.S.C.

§ 1681, et seq. and several related state law claims. Plaintiffs’ claims stem from

allegations that DePaul retaliated against them following their involvement in the

reporting of a head softball coach’s abuse of players and coaching staff. DePaul now

moves to dismiss Plaintiffs’ First Amended Complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6), primarily on the ground that Plaintiffs, as independent

contractors, cannot assert statutory standing under Title IX. R. 23, Mot. Dismiss. For

the reasons set forth below, DePaul’s Motion to Dismiss is granted. In what appears

to be a case of first impression, the Court finds that Plaintiffs do not have Title IX

statutory standing, because they are neither employees of an educational program or

activity nor deprived of access to an educational program or activity. Lacking

statutory standing, the Court dismisses Count I. The Court declines to exercise

supplemental jurisdiction over Counts II and III, Plaintiffs’ remaining state law

claims, and dismisses the same.

Background

From 2005 to 2018, licensed clinical psychologist Dr. Conviser provided sports

psychology and mental health services to members of the DePaul community. R. 19,

First Amended Complaint (FAC) ¶¶ 5, 16–17, 22.12 Dr. Conviser and her staff

specifically treated members of DePaul’s sports community, including coaches,

managers, and student-athletes, to ensure that their mental health and nutritional

needs were met. Id. ¶¶ 50–52. The FAC characterizes Dr. Conviser and her companies

(e.g., Plaintiff Ascend, founded in 2013) as DePaul’s “outsourced, sole sourced, mental

health provider[s]” during this time. Id. ¶¶ 21, 99.

Dr. Conviser claims that in her health provider position and at DePaul’s

direction, she played “an integral and active role” in DePaul’s Title IX program. FAC

¶ 56. DePaul instructed Dr. Conviser to (a) report abusive conduct to DePaul’s Title

IX Office; (b) participate in any investigations conducted by DePaul’s Title IX Office

that resulted from her reports; and (c) meet with, train, and/or counsel DePaul

coaches and staff on proper Title IX conduct. Id. In that vein, Dr. Conviser asserts

that she learned of several allegations of abuse primarily perpetrated by then-head

1Citations to the docket are indicated by “R.” followed by the docket number and, where

necessary, a page or paragraph citation.

2The Court accepts as true all of the well-pleaded facts in the complaint and draws all

reasonable inferences in favor of Plaintiffs. Platt v. Brown, 872 F.3d 848, 851 (7th Cir. 2017).

women’s softball coach Eugene Lenti (Coach Lenti), and in each instance, either

reported the conduct herself or encouraged the reporting of the conduct to the DePaul

administration. Id. ¶ 1. Each reporting incident is further detailed below.

The first reporting incident occurred in the fall of 2016. Dr. Conviser “obtained

credible and actionable information from her patients and others” that Coach Lenti

was “‘out of control,’ frequently abusive and aggressive to his staff and players, and

fostered a culture of intimidation, fear and retaliation.” FAC ¶ 57. Upon hearing this

information, Dr. Conviser immediately reported the allegations to DePaul’s Director

of Sports Medicine and the Assistant Athletics Director. Id. ¶ 58. Dr. Conviser claims

that no investigation was initiated, and they instead instructed her to meet with

Coach Lenti and his staff to address the issues raised and to review their Title IX

responsibilities, a task which she carried out over a series of coaching sessions. Id.

¶¶ 58–60. Plaintiffs claim that DePaul slowly stopped referring patients to Dr.

Conviser and Ascend after she first reported Coach Lenti’s misconduct in 2016,

DePaul’s first alleged act of retaliation. Id. ¶ 101.

The following year, in June 2017, DePaul entered into a new four-year

Professional Services Agreement (PSA) with Ascend that allowed DePaul to refer

student-athletes to Ascend for mental health services. FAC ¶ 67. The PSA reads, in

relevant part:

WHEREAS, DePaul requires the services of professionals specializing

in the evaluation and treatment of mental illnesses, issues of a

psychological nature, and nutritional therapy for student-athletes at

DePaul;

WHEREAS, DePaul desires to continue to refer certain student-athletes

to obtain clinical psychological and/or counseling services on a non-

exclusive basis from the professionals of Ascend;

WHEREAS, AscendCHC is willing to provide clinical psychology

assessment and psychotherapy and nutrition assessment, education and

support for student-athletes at DePaul University who have been pre-

approved by the University for such services;

***

1. TERM

The term of the Agreement will be for four (4) years beginning July 1,

2017 (“the Effective Date”) and ending June 30, 2021 (the “Termination

Date”).

2. REFERRAL

(a) DePaul may refer student-athletes that it believes are in need of

clinical psychological assessment to Ascend. Ascend will provide a

preliminary assessment for such student-athlete and make a

recommendation as to the form of further treatment.

(b) Ascend agrees to conduct a preliminary evaluation of illnesses of a

psychological or nutritional nature of the student-athletes referred to it

by DePaul on a non-exclusive basis.

***

11. INDEPENDENT CONTRACTOR

(a) Ascend is an independent contractor of DePaul, and neither

AscendCHC nor any of its employees or contracted health service

providers are employees, agents, joint venturers or partners of DePaul.

(b) AscendCHC agrees not to market or hold itself out publicly as an

employee of DePaul or as the exclusive or official sports psychologist of

DePaul Athletics.

***

14. TERMINATION

(a) This Agreement shall only be terminated prior to the Termination

Date with prior written notice as fully set forth below or as otherwise

provided in Section 14:

***

(b) This Agreement may be terminated with prior written notice as fully

set forth below:

(i) By either party, upon the material breach of any term of this

Agreement, provided thirty (30) days prior written notice is

delivered to the breaching party and the cause giving rise to the

claimed breach has not been cured within the thirty (30) day

notice period.

R. 24-1, Mot. Dismiss Memo. Exh. A, PSA at 1, 4–5, 7 (emphasis in original).3

In December 2017, at Dr. Conviser’s request, Dr. Conviser met with Athletics

Department administrators to discuss student mental health services and resources

at DePaul. FAC ¶ 71. During this meeting, Dr. Conviser raised concerns about Coach

Lenti and highlighted examples of abusive behavior that had been reported to her,

including student-athletes being “ignored, excluded, teased, yelled at, addressed with

profanity, criticized and/or called derogatory names.” Id. ¶ 72.

In February 2018, Dr. Conviser and her staff counseled a student-athlete

patient to report a campus-related sexual assault (unrelated to Coach Lenti and the

women’s softball team) to DePaul’s Title IX Office. FAC ¶ 77. The student reported

the assault to the Title IX Office, and Dr. Conviser also subsequently informed the

Director of Sports Medicine about the assault. Id. Dr. Conviser alleges that after the

student reported, DePaul’s Title IX Coordinator immediately contacted her and

3The Court may consider the PSA at the pleadings stage because Plaintiffs’ First Amended

Complaint incorporates the PSA and the PSA is central to Plaintiffs’ claims. Allstate Life Ins.

Co. v. Peoplesoft, Inc., 2004 WL 1375383, at *2 (N.D. Ill. May 26, 2004) (collecting cases).

inexplicably accused her of deterring students from reporting improper conduct under

DePaul’s Title IX program. Id. ¶ 78.

Finally, in April 2018, Dr. Conviser learned that a student-athlete patient had

informed an Ascend therapist of an incident involving Coach Lenti punching a female

associate head coach in the face. FAC ¶ 85. Dr. Conviser directed the therapist to

counsel the student to report the incident. Id. ¶ 86. The therapist counseled the

student as instructed, and the student reported the incident to DePaul’s Title IX

Office on April 6, 2018. Id. ¶ 87.

One week after the student reported the punching incident, Plaintiffs allege

that DePaul “terminat[ed]” its agreement with Ascend “three years early.” FAC ¶ 97.

Specifically, DePaul “went so far as to ‘rescind care’ in the middle of treatment for a

DePaul student-athlete and direct Dr. Conviser to refer the student back to the

University for treatment.” Id. ¶ 98. DePaul ceased referring student-athletes to Dr.

Conviser and Ascend altogether, citing a “sudden” preference to utilize its internal

counseling services rather than Ascend’s. Id. ¶ 99. At some point, DePaul also told

student-athletes that DePaul would no longer pay for services provided by Dr.

Conviser and Ascend. Id. ¶ 127.

On or about April 19, 2018, DePaul’s Title IX Office initiated an investigation

into Coach Lenti’s conduct; Coach Lenti retired that summer. FAC ¶¶ 90, 92.

Plaintiffs allege, upon information and belief, that DePaul’s Title IX Office and

Athletics Department learned about Dr. Conviser’s involvement during this

investigation. Id. ¶ 89.

On April 15, 2020, Plaintiffs filed suit against DePaul in the Circuit Court of

Cook County, asserting a Title IX retaliation claim and several state law claims,

including breach of contract and defamation. R. 1-1. DePaul removed the case to

federal court, and Plaintiffs subsequently filed the First Amended Complaint, at issue

here. FAC at 1 n.1. Plaintiffs’ First Amended Complaint initially contained six counts:

retaliation in violation of Title IX (Count I); breach of contract and the implied

covenant of good faith and fair dealing (Count II); indemnification (Count III);

defamation per se (Count IV); defamation per quod (Count V); and false light (Count

VI). DePaul moves to dismiss Plaintiffs’ First Amended Complaint pursuant to Rule

12(b)(6). See Mot. Dismiss. In their response to DePaul’s motion, Plaintiffs agreed to

voluntarily withdraw their claims for defamation per se (Count IV), defamation per

quod (Count V), and false light (Count VI). See R. 28, Resp. at 4 n.1. Accordingly, the

Court will consider DePaul’s motion with respect to Counts I through III only.

Legal Standard

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the

complaint. Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811,

820 (7th Cir. 2009). Under Rule 8(a)(2), a complaint must include only “a short and

plain statement of the claim showing that the pleader is entitled to relief.” FED. R.

CIV. P. 8(a)(2). To survive a motion to dismiss, a complaint need only contain factual

allegations, accepted as true, sufficient to “state a claim to relief that is plausible on

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 556). The allegations “must be enough to raise a right to relief

above the speculative level.” Twombly, 550 U.S. at 555. The allegations that are

entitled to the assumption of truth are those that are factual, rather than mere legal

conclusions. Iqbal, 556 U.S. at 678–79.

Importantly here, questions of statutory standing are also reviewed under Rule

12(b)(6), and the Court’s inquiry into statutory standing at the motion to dismiss

stage is limited to the pleadings. In re Fluidmaster, Inc., 149 F. Supp. 3d 940, 951

(N.D. Ill. 2016).

Discussion

I. Count I: Title IX Retaliation

Plaintiffs allege that DePaul, in retaliation for Plaintiffs’ involvement in the

reporting of Coach Lenti’s alleged Title IX violations, terminated the PSA early. FAC

¶ 112. DePaul contends that Plaintiffs’ Title IX retaliation claim should be dismissed,

because (i) Plaintiffs lack statutory standing to bring a Title IX retaliation claim, and

(ii) Plaintiffs have not otherwise plausibly alleged the elements of a Title IX

retaliation claim. R. 24, Mot. Dismiss Memo. at 4–8. The Court addresses each

argument in turn.

A. Statutory Standing

DePaul argues that Plaintiffs, independent contractors who have merely

“crossed commercial paths” with DePaul, do not have statutory standing to bring a

Title IX claim against the university. Mot. Dismiss Memo. at 6. Plaintiffs disagree,

asserting that the “zone of interests” test is satisfied, and they have standing to bring

their Title IX claims. Resp. at 4. Before examining the merits of the parties’ positions

on statutory standing, it is instructive to briefly review the evolution of the Title IX

statute and the Title IX retaliation claim in the context of relevant case law.

i. Title IX Retaliation, Generally

The Court begins, as it must, with the text of the statute. Title IX 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

education program or activity receiving Federal financial assistance.” 20 U.S.C.

§ 1681(a). While the language of Title IX does not expressly provide a private right of

action, the Supreme Court, through a series of cases, has interpreted Title IX to

provide a private right of action for students complaining of teacher and peer sexual

harassment and for employees complaining of sexual harassment or discrimination

in the education workplace. See Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of

Educ., 526 U.S. 629, 643 (1999) (finding a plaintiff could sue for student-on-student

sexual harassment); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290–91

(1998) (recognizing a claim of deliberate indifference for a teacher’s sexual

harassment of a student); N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 520–21 (1982)

(finding that an individual employed by a federally funded educational institution

could bring a claim under Title IX).

In 2005, the Supreme Court extended Title IX’s reach to include a cause of

action for “retaliation.” See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173–

74, 184 (2005). In Jackson, the Court considered a retaliation claim brought by a high

school basketball coach and physical education teacher, who was removed from his

coaching position after reporting sex discrimination in the school’s athletic

program. Jackson, 544 U.S. at 171–72. In determining the plaintiff could bring a

claim against the school board, the Court noted, “[r]etaliation . . . is a form of

‘discrimination’ because the complainant is being subjected to differential treatment.

Moreover, retaliation is discrimination ‘on the basis of sex’ because it is an intentional

response to the nature of the complaint: an allegation of sex discrimination.” Id. at

173–74 (citations omitted). The Court also explained “[Title IX] is broadly worded; it

does not require that the victim of the retaliation must also be the victim of the

discrimination that is the subject of the original complaint.” Id. at 179. Rather, in

part because “[r]eporting incidents of discrimination is integral to Title IX

enforcement,” id. at 180, “[w]here the retaliation occurs because the complainant

speaks out about sex discrimination, the ‘on the basis of sex’ requirement is

satisfied,” id. at 179. This precisely encapsulates the type of claim Plaintiffs bring

here. Dr. Conviser claims that although she was not the object of sexual

discrimination, she participated in the reporting of improper conduct, and in

retaliation for doing so, DePaul terminated its contract with her company, Ascend.

ii. Plaintiffs’ Statutory Standing Under Title IX

However, to bring a retaliation cause of action under Title IX, as with any

statutory claim, Plaintiffs must have statutory standing. Lexmark Int’l, Inc. v. Static

Control Components, Inc., 572 U.S. 118, 128 (2014). In determining whether Plaintiffs

have standing, the Court must consider whether they “fall within the class of

plaintiffs whom Congress has authorized to sue.” Lexmark, 572 U.S. at 128. In other

words, Plaintiffs—independent contractors that provide mental health care services

for referred DePaul students4—must “fall within the zone of interests protected by

the law invoked.” Id. at 126 (internal citations omitted). A “zone of interests” analysis

begins with the statute at issue. Id. at 130. Courts assess Congress’ authorization

using “traditional principles of statutory interpretation[,]” asking not “whether in our

judgment Congress should have authorized [the] suit, but whether Congress in fact

did so.” Id. at 128, 138 (emphasis in original).

Looking at the statute again, Title IX states 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 education program or activity

receiving Federal financial assistance,” subject to certain exceptions.5 20 U.S.C.

4The PSA defines Ascend as an independent contractor. See PSA at 4 (“Ascend is an

independent contractor of DePaul, and neither AscendCHC nor any of its employees or

contracted health service providers are employees, agents, joint venturers or partners of

DePaul. . . . AscendCHC agrees not to market or hold itself out publicly as an employee of

DePaul or as the exclusive or official sports psychologist of DePaul Athletics.”).

5The statutory exceptions include educational institutions controlled by a religious

organization, social fraternities and sororities, military services or the merchant marine,

institutions that traditionally and continually admit only students of one sex, boy or girl

§ 1681(a) (emphasis added). DePaul rightly notes that the express language of the

statute, “no person” (or disposing of the negative, “any person”) is not especially

helpful in designating proper Title IX plaintiffs. Mot. Dismiss Memo. at 4.

DePaul instead looks to case law, asserting that the cases applying Title IX

confirm that the statute does not extend to non-students, non-employees like

Plaintiffs. Mot. Dismiss Memo. at 4. In other words, DePaul argues that courts have

interpreted Title IX to protect two—and only two—classes of plaintiffs: (i) employees

of an education program, and (ii) students of an education program (and by extension,

parents on behalf of their student-children). Id. at 4–7. DePaul cites to several cases—

importantly, none with an analogous fact pattern and only one in the Seventh

Circuit—in support of this contention. A review of DePaul’s cited cases (in no

particular order) and Plaintiffs’ responding interpretation of those cases follows.

First, DePaul cites Jackson, the landmark Supreme Court case already

discussed above that established the retaliation cause of action. Jackson, 544 U.S. at

171–72. DePaul submits that when discussing the scope of Title IX’s retaliation

protections, the Court focused exclusively on conduct targeting either employees or

students; that is, as DePaul explains, individuals who would be subjected to

retaliation through an “education program or activity,” the only meaningfully

qualifying language in the Title IX statute. Mot. Dismiss Memo. at 4–5 (citing

Jackson, 544 U.S. at 179 n.3, 180). In their Response, Plaintiffs insist that Jackson

stands for an entirely different proposition. Resp. at 6. Plaintiffs explain that the

conferences, father-son and mother-daughter activities, and beauty pageants. 20 U.S.C.

§ 1681(a)(1)–(9).

Court held Title IX “broadly prohibits” a funding recipient from subjecting any person

to discrimination on the basis of sex. Id. Plaintiffs surmise that Congress could have

substituted “student” or “beneficiary” for “person,” if it had wished to restrict the

scope of Section 1681. Id. at 5 (citing N. Haven, 456 U.S. at 520). But Plaintiffs note

that Congress did not, leaving the category of plaintiffs who can seek the protection

of Title IX intentionally broad. Id. Moreover, Plaintiffs point to the Court’s statement

that, “Congress enacted Title IX not only to prevent the use of federal dollars to

support discriminatory practices, but also to provide individual citizens effective

protection against those practices. . . . [T]his objective would be difficult, if not

impossible, to achieve if persons who complain about sex discrimination did not have

effective protection against retaliation.” Jackson, 544 U.S. at 180 (emphasis added).

Essentially, Plaintiffs maintain that because the language of Title IX is “broad,” it

should be interpreted broadly, and the Supreme Court has found that Title IX is

meant to generally protect “individual citizens,” against government-funded

retaliatory discrimination. Resp. at 5–8.

Second, DePaul relies on Doe v. Brown Univ. for the proposition that the

phrase, “education program or activity,” limits Title IX’s scope to those who seek or

receive “educational benefits” from the defendant. Mot. Dismiss Memo. at 4 (citing

270 F. Supp. 3d 560, 560–61 (D.R.I. 2017), aff’d, 896 F.3d 127 (1st Cir. 2018)). In

Brown Univ., similarly a case of first impression at the time, a Providence College

student was sexually assaulted by several Brown University students on Brown’s

campus. Brown Univ., 270 F. Supp. 3d at 558. Following the assault, the plaintiff

withdrew from Providence College, alleging that she was forced to do so because

Brown University refused to discipline her attackers, allowing them free range of

Providence College and causing her to fear for her safety on the Providence College

campus. Id. at 558–59. The court found that the plaintiff, as a Providence College

student, did not have Title IX standing to sue Brown University for failure to protect

and deliberate indifference, because as a non-Brown University student, she failed to

allege she was denied equal access to Brown’s educational benefits. Id. at 562–63.6

Plaintiffs distinguish Brown Univ., insisting that the plaintiff clearly fell outside of

the zone of interests because the nexus between the plaintiff and the defendant’s

actions was prohibitively attenuated. Resp. at 7. Notably, the Brown Univ. plaintiff

made a broad application argument similar to Plaintiffs here, asserting that by use

of the general term, “person” (as opposed to “student”), Congress intended to protect

all persons coming within the school’s control, including guests on campus. Brown

Univ., 270 F. Supp. 3d at 560. The court rejected that argument, putting at least some

restriction on “person,” again focusing on the fact that the plaintiff, guest or no guest,

was not deprived of Brown’s educational benefits.

Third, DePaul points to Prey v. Kruse, in which the plaintiff brought suit

against a West Liberty State College university professor, making a fairly novel Title

IX argument that the defendant professor used his position of power to seduce the

6The First Circuit affirmed, agreeing with the district court that the plaintiff’s complaint

contained no allegations as to how the defendant’s deliberate indifference deprived her of

access to the educational opportunities and benefits provided by Brown, and therefore did

not state a plausible claim under Title IX. Doe v. Brown Univ., 896 F.3d 127, 133 (1st Cir.

2018).

plaintiff’s girlfriend. Mot. Dismiss Memo. at 5 (citing 2009 WL 10679036, at *2 (S.D.

Ohio June 9, 2009)). The court noted that the plaintiff’s Title IX assertions were

misplaced. Prey, 2009 WL 10679036, at *2. The court found first that Title IX does

not provide for suits against individual defendants, and second that the plaintiff could

not maintain a Title IX action against the college because he was not a student or an

employee of the college. Id. Though Plaintiffs again distinguish Prey on factual

grounds, insisting that the nexus between the Prey plaintiff and the college was far

too removed, it is clear from DePaul’s string cite that DePaul cited Prey more for its

interpretation of Jackson than for an analogous fact pattern—“[t]he Jackson case

does not confer standing beyond potential beneficiaries or employees of a federally

funded education program.” Id. (citing Jackson, 544 U.S. 167) (emphasis added).

Fourth, DePaul cites Lopez v. San Luis Valley, Bd. of Co-Op Educ. Servs.,

where the plaintiff (a principal of an elementary school) brought a Title IX suit

against an educational services program, alleging that the program’s employee

harassed her during a meeting. Mot. Dismiss Memo. at 5 (citing 977 F. Supp. 1422,

1424 (D. Colo. 1997)). The court dismissed the Title IX claim for lack of statutory

standing because the plaintiff was not an employee, potential participant, or

beneficiary of the defendant’s educational services program. Id. at 1426. Plaintiffs

again distinguish this case on factual grounds, insisting that the nexus between the

plaintiff and the defendant program was too far removed. Resp. 7–8.

Fifth, DePaul relies on Brown v. Ill. Dep’t of Human Servs., the only Seventh

Circuit case DePaul cites in connection with standing, in which the court held that a

visually-impaired vending facilities contractor of the Illinois Department of Human

Services did not have statutory standing to assert a claim under Title IX, because she

was not an “employee of the Department.” Mot. Dismiss Memo. at 5 (citing 717 F.

App’x 623, 626 (7th Cir. 2018)). Plaintiffs argue Brown is distinguishable, because

although the plaintiff was similarly an independent contractor, the Brown plaintiff

brought an employment discrimination suit (not a retaliation suit), with employment

being necessary for asserting standing. Resp. at 7.

Sixth and finally, DePaul cites Rossley v. Drake Univ., in which the court held

that the plaintiff—a former Drake University Board of Trustees (the Board) member

and the parent of a Drake University student—lacked statutory standing to bring a

retaliation claim based on Drake University’s refusal to allow him to participate in

the Title IX investigation of his son and the Board’s vote to remove him from his

position as a Board member. Mot. Dismiss Memo. at 5 (citing 336 F. Supp. 3d 959,

970 (S.D. Iowa 2018)), aff’d, 958 F.3d 679 (8th Cir. 2020). In reviewing the language

of the Title IX statute and the regulations promulgated under Title IX, and in

comparing analogous case law interpreting the statute, the court found that Title IX’s

prohibition on discrimination applies to those programs which relate to either (i)

educational opportunities for students or (ii) employment benefits and programs

intended for faculty and staff. Rossley, 336 F. Supp. 3d at 971–74.

Using that lens, the court first determined that Rossley was not an “employee”

of either Drake University or the Board. Rossley, 336 F. Supp. 3d at 972. In a previous

order in the same case, the court had examined whether Rossley was an “employee”

under the Americans with Disabilities Act (ADA), which uses the same framework as

Title IX for determining employment status. Id. at 972 n.5. Under that test, the court

determined that Rossley, a Board member, was not an “employee” and consequently

had failed to plausibly state a claim that he was subjected to discrimination under

any employment benefits or programs under Title IX. Id. at 972.

That determination left one more standing option for Rossley—he had to

plausibly assert that Drake University denied him access to any education programs

or activities as a non-employee. Rossley, 336 F. Supp. 3d at 972. The court found he

had not done so. The court reviewed the hallmarks of a federally funded education

program, finding that the Board neither provided any educational benefits—it did not

permit Board participants to earn a degree, accept tuition, offer accreditation, or

provide a course of study—nor received federal funds. Id. 972–73. Importantly, even

if the Board did provide education programs or activities, the court found that

Rossley, as a trustee, had failed to plausibly allege he was denied access to or

participation in those programs or activities. Id. at 973. In sum, and answering the

ultimate question, the court found that Rossley had failed to state a claim showing

he was “excluded from participation in, . . . denied the benefits of, or . . . subjected to

discrimination under any education program or activity” offered by the defendant,

and as such, he lacked statutory standing to bring a retaliation claim under Title IX.

Id.7

7The Eighth Circuit affirmed, rejecting Rossley’s argument that “any advocate has standing

to bring a retaliation claim under Title IX, and to establish such a claim a plaintiff need only

show that he was retaliated against because he complained of sex discrimination.” Rossley v.

Taking these cases together, DePaul maintains that courts have limited Title

IX statutory standing to (i) employees of education programs or (ii) students (those

who seek or receive educational benefits) of education programs, and Plaintiffs are

neither employees nor students. Mot. Dismiss Memo. at 6 (“As independent

contractors, Conviser and Ascend fall squarely outside this well-established ‘zone of

interest.’ Neither Conviser nor Ascend were DePaul students, nor were they DePaul

employees.”). Plaintiffs, in response, factually distinguish all of DePaul’s cited cases

and insist that the broad language of Title IX should be read broadly in turn to further

the purposes of Title IX. Resp. 5, 7–8 (“On its face, the Statute, unlike Title VII, is

very broad as to whom it protects, and does not expressly limit who can sue. . . . [It]

cannot be the law [that] an institution of higher learning could simply remove itself

from the ambit of Title IX by electing to outsource and ‘privatize’ its faculty

classrooms, dormitories, libraries, sports facilities, and in this case, its mental health

services.”) (emphasis in original).

The Court agrees with Plaintiffs that none of DePaul’s cited cases present the

same factual situation. This is indisputable. In reviewing the cases cited by both

parties (and in engaging in its own research), the Court notes that the instant case

appears to be the first to deal with Title IX statutory standing of independent

contractors. Still, after factually distinguishing DePaul’s cases, Plaintiffs only proffer

one case of their own—Fox v. Pittsburgh State Univ., 257 F. Supp. 3d 1112, 1124 (D.

Drake Univ., 958 F.3d 679, 685 (8th Cir. 2020). It held that “neither the statutory text nor

the precedent supports such an expansion” and affirmed the district court’s dismissal of

Rossley’s Title IX retaliation claim for lack of statutory standing. Id.

Kan. 2017). Plaintiffs assert that Fox, which rejects the argument that an employee

must show a “‘nexus’ to education to qualify for Title IX remedies,” dispels DePaul’s

insistence on a so-called “educational benefits” requirement. Resp. at 6 (citing Fox,

257 F. Supp. 3d at 1124). Indeed, Plaintiffs maintain that a university employee

working in the student housing office, in the cafeteria, or on the campus shuttle bus

service is not afforded “educational benefits” but is nonetheless protected under Title

IX (and rightly so). Resp. at 6. But Plaintiffs are mistaken in their application of Fox.

DePaul is not suggesting that a Title IX plaintiff must be deprived of educational

benefits to state a claim; rather, DePaul contends that case law has been extended to

two classes of plaintiffs—employees (who may work for the university in an

educational context or in a non-educational context) and non-employees (students,

who must be deprived of some educational benefit). Because Fox was a Pittsburgh

State University employee, there was no need for an educational nexus; had Fox not

been an employee, the case is clear that she would have to show there was a “systemic

effect of denying [her] equal access to an educational program or activity.” Fox, 257

F. Supp. 3d at 1126 (internal citation omitted).

Though it’s true that the factual circumstances of the cited cases are not

exactly on point, the Court agrees with DePaul that the underlying reasoning of these

cases is instructive, and in the end, dispositive.

The Court finds that Rossley, with the board of trustee-plaintiff, is closest in

terms of facts and is compelling in terms of reasoning. Rossley makes clear that

Jackson and the plain language of Title IX extend statutory standing to (i) employees

of an education program or activity (the Jackson employee basketball coach) and (ii)

those who are denied access to an “education program or activity.” 336 F. Supp. at

970, 973. Plaintiffs do not claim that they are employees under Title IX.8 See Resp.

at 5 (acknowledging that “it is true that Plaintiffs are not . . . employees”). Moreover,

the PSA clearly states that Plaintiffs are independent contractors. See PSA at 4.

As non-employees, then, the Court must determine if Plaintiffs have been

subjected to discrimination “under any education program or benefit.” 20 U.S.C.

§ 1681(a). A crucial part of this analysis, and what Plaintiffs fail to grasp, is that a

plaintiff cannot simply assert that a federally-funded educational program

discriminated against him or her on the basis of sex and automatically meets the

“under any education program or benefit” requirement. If that were the case, the

outcome would have been different in Doe, Prey, and Rossley. Rather, a plaintiff must

assert not only that the defendant provided educational programs or activities, but

also that the plaintiff was denied access to or participation in those programs or

activities. See Rossley, 336 F. Supp. 3d at 973 (“Even if the Board did provide

education programs or activities to students, Rossley has not plausibly alleged he, as

a Trustee, was denied access to or participation in those programs or activities.”).

This point is where Plaintiffs ultimately fail. Of course, DePaul provides educational

programs and activities to its students. But Plaintiffs have not plausibly alleged (nor

8Plaintiffs include one line in their Response that DePaul “treat[ed] [Dr. Conviser] at all times

as if she was an employee.” Id. at 6. However, Dr. Conviser does not expand on this to argue

why she should be considered an employee under Title IX and has thus waived the “employee

class of plaintiffs” argument. See G & S Holdings LLC v. Cont’l Cas. Co., 697 F.3d 534, 538

(7th Cir. 2012) (“[A] party waives an argument by failing to make it before the district court.”).

can they) that DePaul’s retaliatory actions prevented Dr. Conviser and Ascend from

accessing those programs or activities. At most, DePaul’s actions deprived Dr.

Conviser and Ascend of an economic benefit, which is not redressed by Title IX.

The court in Rossley put it best—“neither Jackson nor the plain language of

Title IX can be extended to provide statutory standing to a non-student, non-

employee who reported alleged sex discrimination against his adult son.” Rossley, 336

F. Supp. 3d at 966. Here too, neither Jackson nor the plain language of Title IX can

be extended to provide statutory standing to non-students, non-employees who

reported alleged sex discrimination against their patients.

Under this analysis, the Court finds that Plaintiffs cannot assert Title IX

statutory standing, and as such, Count I must be dismissed.9

DePaul also argues that Plaintiffs’ First Amended Complaint fails to plausibly

state a Title IX retaliation claim. While not necessary in light of the above, for the

sake of completeness, the Court also addresses this argument.10

9The Court acknowledges that today’s decision, based on statutory interpretation and

analysis of comparable case law, could have policy ramifications that may be attractive to

some and seem harsh to others. But it is the Court’s role to read the plain text of the statute

and to adhere to case law, not to decline to do so on policy grounds. See Nat’l Fed’n of Indep.

Bus. v. Sebelius, 567 U.S. 519, 538 (2012) (“Members of this Court are vested with the

authority to interpret the law; we possess neither the expertise nor the prerogative to make

policy judgments. Those decisions are entrusted to our Nation’s elected leaders . . . .”).

10The Court has federal question jurisdiction over Plaintiffs’ Title IX retaliation claim under

28 U.S.C. § 1331. A lack of statutory standing does not deprive this Court of subject matter

jurisdiction. See Jordan v. Jewel Food Stores, Inc., 2015 WL 3561493, at *2 (N.D. Ill. June 5,

2015) (“Lexmark International makes clear that ‘statutory standing’ presents a merits and

not a jurisdictional issue.”) (citing Lexmark, 572 U.S. 118, 128 n.4 (“‘[S]tatutory standing’ . . .

does not implicate subject-matter jurisdiction, i.e., the court’s statutory or

constitutional power to adjudicate the case.”) (internal quotation marks omitted) (emphasis

in original)).

b. Stating a Title IX Third-Party Retaliation Claim

To establish a claim for Title IX retaliation, Plaintiffs must satisfy two tests.

First, to proceed on a third-party retaliation claim (Plaintiffs are third parties to the

underlying discrimination), Plaintiffs must allege a sufficient connection between

them and the individuals who have been discriminated against. Jackson, 544 U.S. at

183. And second, as with all retaliation claims, Plaintiffs must allege the claim’s three

elements—that (1) they engaged in a statutorily protected activity; (2) the school took

a materially adverse action against them; and (3) there existed a but-for causal

connection between the two. Burton v. Bd. of Regents of Univ. of Wis. Sys., 851 F.3d

690, 695 (7th Cir. 2017) (citing Milligan v. Bd. of Trs., 686 F.3d 378, 388 (7th Cir.

2012); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 337, 360 (2013)). The Court will

analyze each test in turn.

i. Sufficient Connection

Retaliating against individuals “because they complain of sex discrimination

is ‘intentional conduct that violates the clear terms of the statute.’” Jackson, 544 U.S.

at 183 (citing Davis Next Friend LaShonda D. v. Monroe Cty. Bd. Of Educ., 526 U.S.

629, 642 (1999)). Title IX does not require that “the victim of the retaliation must also

be the victim of the discrimination . . . .” Id. at 179. However, the victim of the

discrimination and the person alleging retaliation must have a close affiliation. See

Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 174–75 (2011); Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).

There is no set standard governing this requisite affiliation. In Burlington, the

Supreme Court outlined that a materially adverse action must be one which might

“dissuade[] a reasonable [individual] from making or supporting a charge of

discrimination.” 548 U.S. at 68. In Thompson, the Court articulated that a close

family member would “almost always” meet the affiliation threshold, since retaliation

against a family member would deter an individual from lodging a discrimination

complaint, while a “mere acquaintance will almost never do so . . . .” Id. at 175; see

also Mackall v. Colvin, 2015 WL 412922, at *1 (D. Md. Jan 29, 2015) (declining to

find third-party retaliation for coworkers).

DePaul argues that Dr. Conviser’s relationships with the reporting students

are not close enough to support a retaliation claim. Mot. Dismiss Memo. at 9. DePaul

relies primarily on the distinction between a “mere acquaintance” and a family

member as articulated in Thompson to show that since Dr. Conviser had no

connection with the students who reported incidents, her retaliation claim is too

attenuated. Id. DePaul adds that Dr. Conviser’s relationship with the student is more

attenuated than even the coworker relationship in Mackall. Id. DePaul additionally

cites Ordonio v. Cnty. of Santa Clara, a case where a patient alleged a hospital’s

retaliation against his doctor passed to the patient in the form of substandard care.

2012 WL 1155597, at *6 (N.D. Cal. Apr. 5, 2012). In Ordonio, the court dismissed the

third-party retaliation claim, noting that the relationship between a patient and

doctor was “limited” and particularly focused on the fact that the patient would not

serve as an “effective advocate” for the doctor, and the doctor could bring his own

claim. Id. DePaul further argues that the primary purpose of Title IX retaliation

claims is to protect the individuals who witness and report these incidents, and

because Dr. Conviser did not witness an incident and played a minimal role in the

reporting process, she does not sufficiently allege a retaliation claim. Mot. Dismiss

Memo. at 9.

Plaintiffs, on the other hand, argue that they were an “integral” part of the

reporting process. Resp. at 12. Plaintiffs write off Mackall, explaining that Dr.

Conviser and the complaining students were more than “mere acquaintances.” Id. at

11. Further, Plaintiffs challenge the application of Ordonio, noting that its “effective

advocate” language is an entirely different test. Id. Since Dr. Conviser “coordinated”

all patients referred to Ascend, counseled Ascend employees and patients to report

abuse, and had mandatory Title IX obligations, Plaintiffs contend that they satisfy

the relevant Thompson test. Id. at 10.

The Court finds that DePaul has the more persuasive argument in assessing

the attenuation of the relationship between Plaintiffs and the reporting students.

While it is possible that an individual and his/her therapist may have a close

relationship that could form a sufficient connection for a third-party retaliation claim,

the Court need not definitively decide that question here, as Dr. Conviser does not

allege that she actually met any of the three students that lodged complaints (and no

student-patient is likely to feel a strong connection to their therapist’s company, like

Ascend). Therefore, it is unlikely that a retaliatory action against Dr. Conviser or

Ascend itself would deter a student from reporting discrimination under the

Thompson test. Plaintiffs fail to allege a sufficient connection between them and

discriminated students. As such, Count I fails to state a third-party retaliation claim

on this basis alone.

ii. Elements of a Title IX Retaliation Claim

Like with the standing analysis, even assuming arguendo that Plaintiffs could

establish a sufficient connection, Count I is still doomed because Plaintiffs have failed

to adequately allege the three elements of a standard Title IX retaliation claim. As

detailed above, to assert a cause of action for Title IX retaliation, Plaintiffs must plead

that (1) they engaged in a statutorily protected activity; (2) the school took a

materially adverse action against them; and (3) there existed a but-for causal

connection between the two. Burton, 851 F.3d at 695.

As to the first “protected activity” element, Plaintiffs allege that they engaged

in three protected activities that led to retaliation by DePaul: (1) Dr. Conviser

reported Coach Lenti’s misconduct in the fall of 2016 (FAC ¶ 58); (2) Dr. Conviser

again reported Coach Lenti’s misconduct in December 2017 (id. ¶ 72); and (3) at Dr.

Conviser’s insistence, a member of Ascend’s staff counseled a student-patient to

report Coach Lenti to DePaul’s Title IX Office in April 2018 (id. ¶ 87).11 DePaul does

not challenge the proposition that Plaintiffs engaged in protected activities. Mot.

Dismiss Memo. at 7. No matter, as speaking out against sex discrimination is a

11Plaintiffs also allege that in February 2018, Dr. Conviser “and her staff” directed “a student-

athlete patient to report a campus-related sexual assault to the University and its Title IX

Office (unrelated to Coach Lenti and the softball team).” FAC ¶ 77. However, Plaintiffs make

no attempt to connect this incident to the alleged retaliation. As such, the Court does not

consider it here.

recognized protected activity under Title IX. See Feminist Majority Found. v. Hurley,

911 F.3d 674, 694 (4th Cir. 2018); Ollier v. Sweetwater Union High Sch. Dist., 768

F.3d 843, 867–68 (9th Cir. 2014).

As to the second “adverse action” element, Plaintiffs assert that DePaul slowed

referrals following her involvement in the 2016 complaint, and “[j]ust a week” after

the student-patient’s report on April 6, 2018, DePaul “terminat[ed] the parties’

contract three years early.” FAC ¶ 112. Again, DePaul does not challenge Plaintiffs’

assertion of materially adverse actions.12 Mot. Dismiss Memo. at 7. And again, no

matter, as a change to the terms and conditions of “employment” status constitutes a

materially adverse action under Title IX. Fox v. Town of Framingham, 2016 WL

4771057, at *3 (D. Mass. Sept. 13, 2016).

It is the third element, but-for causation, that is in dispute and where

Plaintiffs’ First Amended Complaint fails. “[T]o survive a motion to dismiss,

[plaintiffs] must provide some allegations to ‘allow the Court to infer a causal

connection between his treatment and gender bias and raise the possibility of relief

under Title IX above the speculative level.’” Doe v. Columbia Coll. Chi., 299 F. Supp.

3d 939, 950 (N.D. Ill. 2017), aff’d, 933 F.3d 849 (7th Cir. 2019). A primary

consideration for causation at the motion to dismiss stage is whether the plaintiffs

allege some “retaliatory motive” connecting the protected activity and adverse action.

12Notably, DePaul does challenge Plaintiffs’ characterization of the 2018 halt of referrals as

a “termination” or a “breach of contract.” Mot. Dismiss Memo. at 10–11. A “breach” analysis

is not required here, as a change in employment status constitutes a “materially adverse

action” under Title IX, breach or otherwise. See Fox, 2016 WL 4771057, at *3.

See id. at 960; Cardenas v. First Midwest Bank, 114 F. Supp. 3d 585, 591 (N.D. Ill.

2015) (finding retaliatory motive after the plaintiff explicitly expressed her intent to

file for workers’ compensation). The Seventh Circuit has considered other

circumstantial evidence of retaliation, such as: (1) suspicious timing, ambiguous oral

or written statements, behavior towards other employees who are part of a protected

group, and other actions; (2) evidence the employer “treated other, similarly situated

. . . employees better”; or (3) evidence that the employer’s justification was pretextual.

Milligan, 686 F.3d at 388–89.13

Turning first to the alleged protected activities in 2016 and 2017, Plaintiffs

allege that Dr. Conviser reported Coach Lenti’s abusive behavior to the Title IX Office

in fall of 2016. FAC ¶ 101. DePaul argues that Plaintiffs have not and cannot

establish but-for causation between the 2016 and 2017 incidents and the 2018

“termination.” Mot. Dismiss Memo. at 7–8 (citing Parkins v. Civil Constructors of Ill.,

Inc., 163 F.3d 1027 (7th Cir. 1998)) (concluding that the plaintiff could not sustain a

claim for retaliation where she complained of harassment on August 23, 1996, was

laid off in November 14, 1996, and was not recalled in the spring of 1997, as the time

sequence was “insufficient to establish the causation prong of a prima facie case”); see

also Kriss v. Fayette Cnty., 504 F. App’x. 182, 188–89 (3d Cir. 2012) (holding that the

passage of nine months between the protected activity and alleged retaliation

was insufficient to establish causation and stating “we have found, no cases where a

gap of more than even two months was found to be unusually suggestive”); Wadhwa

13Milligan was a Title VII retaliation case. The Title VII retaliation framework applies

equally to Title IX retaliation claims. 686 F.3d at 388.

v. Sec’y, Dep’t of Veterans Affs., 505 F. App’x. 209, 215–16 (3d Cir. 2012) (holding

passage of one year between protected activity and alleged retaliation insufficient to

establish causation); McNally v. Univ. of Haw., 780 F. Supp. 2d 1037, 1054 (D. Haw.

2011) (“. . . [T]he period of fifteen to eighteen months between events is too long to

suggest a causal link.”). The Court agrees. Though not specifically asserted under the

Count I “section” of the complaint, Plaintiffs did assert one allegation of earlier

retaliatory conduct—a slowing of referrals following the 2016 report. FAC ¶ 101.

Arguably, this earlier alleged retaliation could close the timing gap with respect to

the 2016/2017 protected activities. But, as DePaul notes, DePaul actually renewed its

contract with Ascend after the 2016 and 2017 reporting incidents. Mot. Dismiss

Memo. at 8. This fact weakens the plausibility of ongoing retaliation since 2016.

Given the implausibility of ongoing retaliation and no further alleged causation

between the 2016/2017 reporting incidents and DePaul’s decision to stop referring

students in April 2018, these earlier instances do not support a retaliation claim.

This leaves the allegation that at Dr. Conviser’s insistence, a member of

Ascend’s staff counseled a student-athlete patient to report Coach Lenti to DePaul’s

Title IX Office in April 2018, the core of the retaliation claim. FAC ¶¶ 85–87. This

allegation also fails the but-for test because there are no facts to suggest that DePaul

was even aware of Plaintiffs’ involvement in the student-athlete’s report prior to

“illegally retaliat[ing] against Dr. Conviser and Ascend by terminating the parties’

contract three years early.” Id. ¶ 97. According to Plaintiffs, the student-athlete

reported Coach Lenti’s misconduct on April 6, 2018. Id. ¶ 87. Plaintiffs further allege,

“upon information and belief,” that DePaul’s Title IX Office and Athletics Department

learned about Dr. Conviser’s involvement in the student’s report during their

investigation of the same, which began on April 19, 2018. Id. ¶ 90. However, the

alleged retaliation—i.e. the “termination” of the parties’ contract—occurred “[j]ust a

week after Dr. Conviser’s patient reported Coach Lenti to DePaul.” Id. ¶ 97. In other

words, DePaul allegedly retaliated against Plaintiffs for Dr. Conviser’s involvement

in the student’s report before they found out about Dr. Conviser’s involvement in the

student’s report. This is implausible. DePaul could not have retaliated against

Plaintiffs for conduct of which it was unaware.

When examining the totality of the circumstances, the lack of retaliatory

motive and the attenuated connection between Plaintiffs and the reporting students

outweigh any suspicion brought about by the proximity in timing (“termination” one

week after the complaint). Plaintiffs do not plausibly allege that but for their actions

in counseling the therapist to encourage the student to report, DePaul would not have

stopped referring students to Ascend.

The Court concludes that Plaintiffs have failed to allege the claim’s third

element, as they cannot show a causal relationship between the statutorily protected

complaints that they or their patients lodged and the alleged termination of Ascend’s

agreement with DePaul.

II. Supplemental Jurisdiction of Counts II and III

The Court dismisses the federal claim under Title IX in Count I, leaving only

state law claims in Counts II and III. There is no diversity jurisdiction over this

matter pursuant to 28 U.S.C. § 1332(a)(1), as complete diversity of citizenship does

not appear from the face of the First Amended Complaint. See FAC ¶¶ 40–43, 44; see

also Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 758 (7th Cir.

2009) (diversity jurisdiction statute requires complete diversity of citizenship

between plaintiff and defendant).

The Court has supplemental jurisdiction over Plaintiffs’ state law claims

pursuant to 28 U.S.C. § 1367(a). It is within the Court’s discretionary authority to

decline to exercise supplemental jurisdiction over state law claims once it has

“dismissed all claims over which it has original jurisdiction.” 28 U.S.C.

§ 1367(c)(3); see Baig v. Coca-Cola Co., 69 F. Supp. 3d 766, 781 (N.D. Ill.

2014), aff’d, 607 F. App’x 557 (7th Cir. 2015). Indeed, the Seventh Circuit has stated

that in such circumstances, “the presumption is that the court will relinquish federal

jurisdiction over any supplemental state-law claims.” Al’s Serv. Ctr. v. BP Prods. N.

Am., Inc., 599 F.3d 720, 727 (7th Cir. 2010). As a result, “in the usual case in which

all federal-law claims are eliminated before trial, the balance of factors to be

considered under the pendent jurisdiction doctrine—judicial economy, convenience,

fairness, and comity—will point toward declining to exercise jurisdiction over the

remaining state-law claims.” Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7

(1988).

The Court, in the exercise of its discretion, declines to assert supplemental

jurisdiction over Plaintiffs’ remaining state law claims.

Conclusion

The Court grants DePaul’s Motion to Dismiss Plaintiffs’ First Amended

Complaint [23] for failure to state a claim upon which relief can be granted. The Court

concludes that Plaintiffs do not have statutory standing to bring a Title IX claim

against DePaul, and as such, Count I is dismissed. Plaintiffs have until April 21, 2021

to file an amended complaint asserting a claim over which the Court has original

jurisdiction. If no amended complaint is filed by that date, the dismissal of Count I

will automatically convert to one with prejudice. The Court declines to exercise

supplemental jurisdiction over Plaintiffs’ remaining state law claims in Counts IT and

III, and if no amended complaint asserting a claim over which the Court has original

jurisdiction is filed by April 21, 2021, Counts IT and III will automatically be

dismissed without prejudice for refiling in state court.

Franklin U. Valderrama

United States District Judge

Dated: March 31, 2021

31