Wiler v. Kent State University

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

KATHLEEN WILER, ) Case No. 5:20-cv-490

)

Plaintiff, ) Judge J. Philip Calabrese

)

v. ) Magistrate Judge Kathleen B. Burke

)

KENT STATE UNIVERSITY, )

)

Defendant. )

)

OPINION AND ORDER

Plaintiff Kathleen Wiler, a former coach of women’s field hockey at Kent State

University, alleges that the university paid her less than her male counterparts.

Also, she claims that Kent State constructively discharged her following her

complaints about the unequal treatment she alleges, retaliated against her, and

otherwise engaged in unlawful sex discrimination. Defendant Kent State University

moves to dismiss the amended complaint for failure to state a claim under

Rule 12(b)(6), which for reasons discussed below, the Court construes as a motion for

judgment on the pleadings under Rule 12(c). (ECF No. 13.) For the reasons that

follow, the Court GRANTS IN PART and DENIES IN PART Kent State’s motion.

STATEMENT OF FACTS

On Defendant’s motion for judgment on the pleadings, the Court takes the

following allegations in the amended complaint as true and construes them in

Plaintiff’s favor.

A. Ms. Wiler’s Tenure as Women’s Field Hockey Coach at Kent State

University

Kathleen Wiler coached women’s field hockey at Kent State University from

2006 until February 2019, when she resigned. (ECF No. 35-1, ¶¶ 15, 32, PageID

#367, 369.) During her time at the helm of Kent State’s NCAA Division I women’s

field hockey program, the team dominated the Mid-America Conference, also known

as the MAC: it won eight regular season titles, five conference tournament titles, and

made five NCAA post-season appearances. (Id., ¶ 17, PageID #367.) For her team’s

successes, Ms. Wiler earned recognition five times as MAC Coach of the Year. (Id.,

¶ 18.) Like other head coaches at Kent State, Ms. Wiler had many broad

responsibilities, including teaching, training, counseling, and advising her players,

fundraising for and managing the program and its budget, public relations, and

recruiting. (Id., ¶ 26.) For all this, Ms. Wiler says she was paid “approximately

$85,496.00.” (Id., ¶ 21.)

Compared to male coaches at Kent State, Plaintiff alleges she received

“unequal pay” and had “more difficult conditions,” “higher expectations,” “more

work,” and “more responsibility” but with “less resources and less support,”

notwithstanding Kent State’s non-discrimination policies. (Id., ¶¶ 29–31, PageID

#369.) Ms. Wiler reported these perceived disparities. (Id., ¶ 32.) Although Kent

State has a policy to investigate incidents of discrimination “that are reported in an

appropriate and timely manner,” it allegedly “refused to investigate or remedy”

Wiler’s claim. (Id., ¶¶ 33–34.)

On August 31, 2017, Ms. Wiler filed a charge against Kent State with the Equal

Employment Opportunity Commission. (Id., ¶¶ 32, 79.) Little changed, and Kent

State allegedly failed to investigate or remedy her complaints. (Id., ¶¶ 32–35.) On

February 26, 2019, Wiler supplemented her complaint with the EEOC. (Id., ¶ 79.)

Two days later, she resigned. (Id., ¶ 34.) In December 2019, Plaintiff filed a second

complaint with the EEOC. (Id., ¶ 35.)

B. Plaintiff Sues Kent State

On March 3, 2020, Wiler filed this lawsuit against Kent State for wage

discrimination, sex discrimination, and retaliation under corresponding provisions of

Title VII, Title IX, and the Equal Pay Act. (See ECF No. 1.) In the operative pleading,

the amended complaint filed on February 2, 2021 (ECF No. 35-1), Plaintiff alleges

she “was paid the lowest of any . . . coaches, most of whom were male[,]” because of

pervasive “gender stereotypes” that negatively affected her “pay at the time of hire,

during consideration of raises/contract extensions and in the evaluation of work

performed and success obtained, relative to her male peers.” (Id., ¶¶ 51–52, PageID

#373.)

To buttress her allegations, Plaintiff points to several other coaches at Kent

State who she says were equally (if not less) successful, but paid more. First, she

identifies several others at Kent State who were MAC Coaches of the Year: Jeff

Duncan (baseball), Herb Page (golf), Roberto Marinaro (women’s soccer), and Eric

Oakley (softball). (Id., ¶ 70, PageID #376–77.) She alleges their average

compensation was $145,423. (Id., ¶ 70, PageID #377.) Among coaches whose teams

won MAC regular season championships, coaches Oakley, Duncan, Page, Greg

Robertson (women’s golf), and Brice Biggin (gymnastics), their compensation

averaged $136,028 per year. (Id., ¶ 71, PageID #377.) Marinaro, the one other coach

to win a MAC Tournament championship, was paid $95,554. (Id., ¶ 73.) As for male

coaches whose teams made it to the NCAA tournament—Page, Robertson, and

Biggin—their average pay was $128,777. (Id., ¶ 73.) Plaintiff excludes football and

cross-country from her comparisons. (Id., ¶ 70(b) & n.4.) According to the amended

complaint, Ms. Wiler “was in the top two of successes, but was the only female coach,

sixth in seniority, and 12th in pay out of fourteen total coaches” and that her average

pay “has always been lower and substantially lower than the average of the males”

with “similar or far less success” than her. (Id., ¶ 74, PageID #377–78.)

Since 2006, Plaintiff claims “there have been 26 head coaches in the various

sports KSU offers, but only five have been women,” and “there are no women coaching

men and only two sports are currently coached by women.” (Id., ¶¶ 91–92, PageID

#381.) All this, she claims, amounts to illegal wage discrimination on the part of Kent

State. Because of these persistent disparities, Plaintiff alleges she was discriminated

and retaliated against, and eventually constructively discharged.

STATEMENT OF THE CASE

Based on these allegations, Plaintiff asserts three claims for: (1) wage

discrimination and retaliation in violation of Title VII (Count I); (2) violation of the

Equal Pay Act (Count II); and violations of Title IX (Count III). (ECF No. 35-1;

¶¶ 101–30; PageID #383–87.) Each count also appears to claim wrongful discharge.

(Id., ¶¶ 105–06; 116–17; 126–27, PageID #384–86.) In addition to damages for

economic and non-economic losses, including back pay and front pay, Plaintiff seeks

equitable relief to enjoin gender bias and stereotyping in making pay decisions, plus

mandating various training and other remedial measures at Kent State. (Id., PageID

#387.)

THRESHOLD PROCEDURAL ISSUES

Before turning to the merits of Kent State’s motion, there are two threshold

procedural issues to address: (1) Plaintiff’s EEOC charges; and (2) the posture of

Kent State’s motion.

I. EEOC Charges

In her initial complaint, Plaintiff alleged she received a right-to-sue letter from

the EEOC on her first complaint filed in August 2017. (ECF No. 1, ¶ 110, PageID

#21.) Plaintiff averred she requested, but had not received, a right-to-sue letter for

her second complaint to the EEOC made in December 2019. (Id.) In her amended

complaint, Plaintiff alleges that she received a right-to-sue letter, though the

pleading does not specifically say whether it applies to both claims or if she is merely

referencing the first letter. (ECF No. 35-1, ¶ 9, PageID #366.) Neither party raises

the issue in their briefing, but the Court briefly pauses to consider whether Plaintiff

has properly exhausted her claims.

Before filing suit under Title VII, a plaintiff must bring claims to the EEOC to

provide the agency an opportunity to investigate and decide if it wants to pursue

charges on behalf of the federal government. See EEOC v. Frank’s Nursery & Crafts,

Inc., 177 F.3d 448, 455–56 (6th Cir. 1999). “[F]or 180 days after the filing of a charge,

the EEOC retains ‘exclusive’ jurisdiction over the subject matter of that charge[,]” a

period of time that is “crucial to the statutory scheme.” Id. at 456 (quoting EEOC v.

Hearst Corp., 103 F.3d 462, 466 (5th Cir. 1997)). In contrast, Title IX “has no

administrative exhaustion requirement and no notice provisions. Under its implied

private right of action, plaintiffs can file directly in court and obtain the full range of

remedies.” Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 255 (2009).

The Sixth Circuit holds that the lack of a right to sue letter does not deprive a

district court of jurisdiction, but instead constitutes a condition precedent to filing

suit that is curable (by receiving a right-to-sue letter) or waivable (by the parties or

the Court). Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 309 (6th Cir. 2000)

(noting it would be “unduly harsh . . . to deny Plaintiff his day in court as to his ADA

claim” based on not having a right to sue letter at the time he filed the complaint);

Rivers v. Barberton Bd. of Educ., 143 F.3d 1029, 1032 (6th Cir. 1998) (holding a right

to sue letter is a condition precedent, not a jurisdictional requirement).

Notwithstanding this administrative regime, the court in Parry noted that

waiving the condition precedent was appropriate in the absence of evidence of

prejudice and, in any event, the plaintiff cured the issue by obtaining a right-to-sue

letter. Parry, 236 F.3d at 309. District courts retain discretion, however, to dismiss

claims or actions without prejudice where a plaintiff fails to obtain a right-to-sue

letter before filing. See Mitchell v. Chapman, 343 F.3d 811, 820 n.10 (6th Cir. 2003);

accord Jones v. Toledo Pub. Schs., No. 3:14CV911, 2016 WL 1047247, at *3 (N.D.

Ohio Mar. 16, 2016) (declining to dismiss Title VII claims); Lott v. Kmart, No. 2:13-

cv-228, 2013 WL 3927617, at *2 (S.D. Ohio July 29, 2013) (dismissing without

prejudice).

Here, the record does not confirm that Plaintiff exhausted administrative

review of her allegations before bringing her Title VII claims. Neither party makes

much of this issue in briefing. For that reason, and because Kent State makes no

argument of prejudice, the Court deems the issue whether Plaintiff had a right-to-

sue letter when she filed her initial complaint waived.

II. Kent State’s Motion to Dismiss Under Rule 12(b)(6)

Plaintiff argues that Kent State forfeited its ability to bring a Rule 12(b)(6)

motion by first filing an answer to her initial complaint. (ECF No. 19, PageID #168.)

Plaintiff has a point, but not much of one. Rule 12 allows for asserting several

different defenses by motion, each of which must be made “before pleading if a

responsive pleading is allowed.” Fed. R. Civ. P. 12(b). At times, this can become

complicated. For example, Rule 12(h)(1) provides that a party waives certain

defenses by failing to assert them in a responsive pleading. Failure to state a claim

under Rule 12(b)(6) is not one of those defenses. After an answer, this defense may

“be raised: in any pleading allowed or ordered under Rule 7(a); by a motion under

Rule 12(c); or at trial.” Fed. R. Civ. P. 12(h)(2)(A)–(C).

In its answer, Kent State asserted the defense that Plaintiff had failed to state

a claim. (ECF No. 12, PageID #81.) When raised following an answer, the defense

“may be considered by the court, even when interposed after the responsive pleading

has been filed, although technically [it is] no longer [a] Rule 12(b) motion.” Wright &

Miller, Federal Practice and Procedure § 1361 (3d ed. 2002). In other words, Kent

State preserved the defense by asserting it in its answer, even though it waived

consideration of the defense by motion under Rule 12(b)(6) by first answering.

Contrary to Plaintiff’s claim, however, the Court may not simply disregard the

motion.

At the time the case and motion were filed, the governing standing order

required the filing of an answer notwithstanding any motion under Rule 12(b). (See

ECF No. 20, PageID #189 (citing ECF No. 25, PageID #218) (“This Court requires

defendants to file an answer to the complaint regardless of whether they have filed

or plan to file a motion to dismiss.”).) Plaintiff attempts to turn this procedural

formality into a substantive bar to consideration of Kent State’s Rule 12(b)(6) motion.

But at least two features of the Civil Rules preclude this effort, as does basic fairness.

First, Rule 12(h) specifically preserves the defense. Second, a motion for judgment

on the pleadings under Rule 12(c) constitutes a belated motion under Rule 12(b)(6),

subject to review under the same legal standard. See, e.g., McMillan v. Collection

Pros., Inc., 455 F.3d 754, 757 n.1 (7th Cir. 2006).

Moreover, district courts within the Sixth Circuit appear to permit post-answer

Rule 12(b)(6) motions, despite other district courts construing them as Rule 12(c)

motions. Ortiz v. Holmes, 157 F. Supp. 3d 692, 695 (N.D. Ohio 2016) (citing Gillespie

v. City of Battle Creek, 100 F. Supp. 3d 623, 628 (W.D. Mich. 2015) (observing that

district courts within the Sixth Circuit permit post-answer Rule 12(b)(6) motions, and

that there is practice outside the Sixth Circuit of construing premature 12(c) motions

as Rule 12(b)(6) motions)). Accordingly, the Court declines to allow the procedural

technicalities stand in the way of considering Kent State’s motion.

ANALYSIS

Whether the Court considers Kent State’s motion under Rule 12(b)(6) or

construes it as a motion for judgment on the pleadings under Rule 12(c), the same

standard applies. See Tucker v. Middleburg-Legacy Place, LLC, 539 F.3d 545, 549

(6th Cir. 2008). At this stage of the pleadings, a plaintiff must only provide “a short

and plain statement of the claim showing that the pleader is entitled to relief.” Keys

v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012); Fed. R. Civ. P. 8(a)(2). But that

short and plain statement must offer more than mere “labels and conclusions.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “‘[A] formulaic recitation of the elements

of a cause of action will not do.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). Rather, there must be “sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S.

at 570). This means a complaint must contain “either direct or inferential allegations

respecting all material elements to sustain recovery under some viable legal theory.”

Bishop v. Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008) (quotation omitted).

In assessing the plausibility of Plaintiff’s claims, the Court construes factual

allegations in the complaint in the light most favorable to the plaintiff, accepts the

facts pled as true, and draws all reasonable inferences in the plaintiff’s favor.

Bullington v. Bedford Cnty., 905 F.3d 467, 469 (6th Cir. 2018); Wilburn v. United

States, 616 F. App’x 848, 852 (6th Cir. 2015). But the Court does not accept

“[c]onclusory allegations or legal conclusion masquerading as factual allegations”;

those “will not suffice.” Bullington, 905 F.3d at 469 (citing Mezibov v. Allen, 411 F.3d

712, 716 (6th Cir. 2005)). Against the backdrop of this familiar legal standard, the

Court turns to the allegations of Plaintiff’s complaint and Defendant’s arguments for

its dismissal.

I. Wage Discrimination

Both Title VII and the Equal Pay Act seek to remedy pay disparities. Title VII

of the Civil Rights Act of 1964 prohibits employers from “discriminat[ing] against any

individual with respect to [her] compensation, . . . because of such individual’s race,

color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1). The Equal Pay

Act prohibits an employer from discriminating “between employees on the basis of

sex by paying wages to employees . . . at a rate less than the rate at which [it] pays

wages to employees of the opposite sex . . . for equal work” for jobs that require “equal

skill, effort, and responsibility, and which are performed under similar working

conditions” subject to a number of exceptions. 29 U.S.C. § 206(d).

Title VII sweeps more broadly than the Equal Pay Act. The former prohibits

unequal pay based on a host of factors; the latter only precludes inequality in pay

based on sex. When it comes to claims for unequal pay based on sex alone, the

analysis under each statute differs. A recent ruling on summary judgment explains

if, when, and how the differences between the two laws matter. Rogers v. Bridges

Rehab. Servs., LLC, No. 1:18-cv-728, 2019 WL 5731016, at *4–5 (N.D. Ohio Nov. 5,

2019) (discussing the different burdens of production each law requires). But on a

motion to dismiss, these distinctions do not matter yet, and Title VII and the Equal

Pay Act are assessed together. See, e.g., Bridgeman v. City of Bedford Heights, No.

1:18-cv-2481, 2019 WL 1469381, at *4 (N.D. Ohio Apr. 3, 2019) (noting at the motion

to dismiss stage “the analysis of an unequal pay claim is essentially the same under

both the Equal Pay Act and Title VII”) (collecting cases).

I.B.1. Plaintiff’s Allegations of Wage Discrimination

To state a claim for wage discrimination under the Equal Pay Act, Plaintiff

must allege sufficient facts to infer that “the defendant employer paid employees of

one sex less than employees of the opposite sex ‘for equal work on jobs . . . which

require equal skill, effort, and responsibility, and which are performed under similar

working conditions . . . .’” Conti v. United Enters., Inc., 50 F. App’x 690, 696 (6th Cir.

2002) (quoting 29 U.S.C. § 206(d)(1)). Ultimately, resolving “a claim under the Equal

Pay Act depends not on job titles or classifications, but on actual job requirements

and performance.” Id. (citing 29 C.F.R. § 1620.13(e)). Even at summary judgment,

“[p]recise equivalence is not required. Rather, there need be ‘only substantial

equality of skill, effort, responsibility, and working conditions.’” Id. (quoting Odomes

v. Nucare, Inc., 653 F.2d 246, 250 (6th Cir. 1981)).

Reading the amended complaint in Plaintiff’s favor, Ms. Wiler alleges that

coaches at Kent State are responsible for a host of similar responsibilities, which each

does for his or her own particular sport. (ECF No. 35-1, ¶ 25, PageID #368.) Further,

she claims that her role as the women’s field hockey head coach was “substantially

equal” to other coaching positions held by men. (Id., ¶ 23.) And she also states the

different coaching positions require similar “skill, effort, and responsibility.” (Id.,

¶ 24.) Like other coaches, Ms. Wiler asserts that she had responsibility for teaching,

training, counseling, advising, program and budget management, fundraising, public

relations, and recruiting. (Id., ¶ 26.) Assuming, as the Court must at the pleading

stage, that at least one male coach she identifies (see id., ¶¶ 70–73, PageID #376–77)

engaged in substantially similar work as Ms. Wiler, at least one of them could

plausibly have done substantially similar work, but received more compensation for

it.

At this stage, Plaintiff need not prove her claim. Eventually, the male coaches

Plaintiff identifies for comparison will be “scrutinized closely.” Weaver v. Ohio State

Univ., 71 F. Supp. 2d 789, 799-800 (S.D. Ohio 1998) (discussing the requirements for

“determining whether men’s and women’s coaching positions are equal” and that

“courts . . . have been reluctant to find an equality of work between coaches of

different sports”), aff'd, 194 F.3d 1315 (6th Cir. 1999). For now, Plaintiff alleges facts

consistent with the Rule 8 standard that male comparator coaches exist and do

similar work, yet were paid more than her. At this stage, drawing all reasonable

inferences in her favor, these allegations make the Equal Pay Act claim plausible.

I.B.2. Allegations at the Pleading Stage

The cases Kent State cites in support of its argument do not change this

outcome. For example, Kent State cites Carey v. Foley & Lardner LLP, 577 F. App’x

573, 579–80 (6th Cir. 2014), for the proposition that Plaintiff’s complaint does not

state a claim because she “failed to plead facts showing that the work she performed”

as head coach was “substantially equal to one or more male comparators.” (ECF

No. 13-1, PageID #104 (cleaned up).) But Carey specifically determined the plaintiff

could not sustain an Equal Pay Claim because he could not meet “his burden to

introduce evidence that a female colleague was paid at a higher rate than he was

despite” their similar qualifications, skills, and responsibilities at summary

judgment. Carey, 577 F. App’x at 580.

Perhaps Plaintiff’s claims will meet a similar fate when they require evidence,

but Ms. Wiler has discharged her pleading obligations. “[W]hen measured against

the elements of” a claim for wage discrimination, her complaint is plausible. Darby

v. Childvine, Inc., 964 F.3d 440, 444 (6th Cir. 2020). Therefore, the Court concludes

that Plaintiff states a claim for relief under the Equal Pay Act. Because at this stage,

the analysis under Title VII tracks that under the Equal Pay Act, the Court also

denies Defendant’s motion with respect to Plaintiff’s claim under Title VII to the

extent it alleges wage discrimination.

II. Retaliation and Title IX Discrimination

In Count I of her amended complaint, Plaintiff alleges Kent State retaliated

against her in violation of Title VII by “refusing to repair the pay discrimination.”

(ECF No. 35-1, ¶ 104, PageID #383.) In Count III of her amended complaint, Plaintiff

alleges that Kent State violated Title IX by discriminating and retaliating against

her. (Id., ¶¶ 120–30, PageID #385–86.) Elsewhere, the amended complaint makes

general allegations of sex discrimination in Kent State’s employment decisions and

Ms. Wiler’s working conditions. (See, e.g., id., ¶¶ 42, 47 & 125, PageID #170, 372 &

386.) In opposing the motion to dismiss, Plaintiff further suggests claims of

discrimination beyond unequal pay, arguing that she “plausibly pleaded sufficient

facts that she was treated worse and paid less than male coaches for doing

substantially similar work.” (ECF No. 19, PageID #170 (emphasis added).)

Taken together, and construed in her favor, the amended complaint advances

three other claims: (1) discrimination in violation of Title IX; (2) retaliation in

violation of Title IX; and (3) retaliation in violation of Title VII.

II.A. Title IX Discrimination

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,” with several exceptions not relevant here. 20 U.S.C. § 1681(a). The

statute “prohibits both sex discrimination and retaliation against an individual who

complains about sex-based discrimination perpetrated by an educational institution

receiving federal funds.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173–74

(2005). Title IX’s enforcement mechanism provides for termination of federal

funding. See 20 U.S.C.§ 1682; 34 C.F.R. § 106.71. In this way, Title IX fits into a

larger federal statutory framework designed to prevent unlawful discrimination.

Compare 20 U.S.C. § 1681 et seq. (Title IX) with 42 U.S.C. § 2000e et seq. (Title VII)

and 29 U.S.C. § 206(d) (Equal Pay Act). But Title IX “neither expressly nor implicitly

excludes employees from its reach[.]” North Haven Bd. of Educ. v. Bell, 456 U.S. 512,

520–21 (1982).

Title VII specifically makes it an “unlawful employment practice for an

employer . . . to discriminate against any individual with respect to [her]

compensation, terms, conditions, or privileges of employment, because of such

individual’s . . . sex[.]” 42 U.S.C. § 2000e-2(a)(1). “The phrase ‘terms, conditions, or

privileges of employment’ evinces a congressional intent ‘to strike at the entire

spectrum of disparate treatment of men and women in employment.’” Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v.

Vinson, 477 U.S. 57, 64 (1986)). Notwithstanding the cause of action Title VII

provides for sex discrimination in the terms and conditions of employment and

retaliation, the question arises: does Plaintiff have a private right of action under

Title IX for these same causes of action?

II.A.1. Circuit Split

The Supreme Court has not directly spoken to the issue whether Title VII

preempts Title IX where an employee brings a discrimination or retaliation case

against employers subject to Title IX, and the Circuits are split on it. The First,

Third, and Fourth Circuits permit claims to proceed under both statutes. See Doe v.

Mercy Cath. Med. Ctr., 850 F.3d 545, 563–64 (3d Cir. 2017); Preston v. Virginia ex rel.

New River Cmty. Coll., 31 F.3d 203, 206 (4th Cir. 1994); Lipsett v. University of Puerto

Rico, 864 F.2d 881, 897 (1st Cir. 1988). The Fifth and Seventh Circuits disagree. See

Waid v. Merrill Area Pub. Sch., 91 F. 3d 857, 861–62 (7th Cir. 1996), rev’d in part on

other grounds, Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009); Lakoski v.

James, 66 F.3d 751, 753 (5th Cir. 1995).

In this Circuit, the law remains unsettled. In an unpublished decision,

released at a time when such decisions received no precedential weight, the Sixth

Circuit affirmed summary judgment in Kent State’s favor because the plaintiff could

not make out prima facie elements of either a Title IX or Title VII claim. Ivan v. Kent

State Univ., No. 94-4090, 1996 WL 422496, at *2–3 (6th Cir. July 26, 1996) (per

curiam). There, the court determined that a student who had some clinical and

teaching duties that made her like an employee had a private right of action for

discrimination under Title IX. Id. at *2, 6. In a footnote, the Ivan Court overruled

the decision of a district court in another case, Wedding v. University of Toledo, 862

F. Supp. 201, 202–04 (N.D. Ohio 1994). In Wedding, the district court held that,

although “both [Title VII and Title IX] prohibit discrimination based on sex[,]”

Title VII provides the “comprehensive scheme” for adjudicating claims against a

Title IX covered employer, not Title IX. Id. In Ivan, the Sixth Circuit “overrule[d]

th[is] conclusion reached by the district court in Wedding.” 1996 WL 422496, at *2

n.10. Notwithstanding questions of Ivan’s precedential value, other courts have

followed Ivan as expressing the view of the Sixth Circuit.

Since then, at least one judge on the Sixth Circuit expressed a contrary view

on the issue. See Arceneaux v. Vanderbilt Univ., 25 F. App’x 345, 349 (6th Cir. 2001)

(Batchelder, J., concurring). Specifically, Judge Batchelder authored a separate

concurrence “only to say that I agree with the well-reasoned opinion of the Fifth

Circuit in Lakowski . . . that Congress did not intend for Title IX to provide the route

for an end-run around Title VII for individuals claiming employment discrimination

on the basis of gender.”

II.A.2. Analysis

Although the Court is inclined to agree with the view of Judge Batchelder

concurring in Arceneaux and of the district court in Wedding, the Court need not wade

into this split of authority because Plaintiff fails to state a plausible claim for

discrimination based on facts separate from wage discrimination. Each allegation

Plaintiff makes that might suggest a claim of discrimination other than pay returns

to the allegation that Kent State paid Ms. Wiler less than her male counterparts. As

but one example, the amended complaint alleges that Kent State required Ms. Wiler

“to put in more effort than male head coaches in teaching/training and the

counseling/advising of her student athletes for reasons related to gender

stereotypes . . . .” (ECF No. 35-1, ¶ 27, PageID #368.) But this sentence continues,

“yet paid her less.” (Id.)

To the extent Plaintiff attempts to state a claim under Title IX for workplace

discrimination (other than for unequal pay), she fails to do so. In particular, Plaintiff

fails to allege an “adequate factual basis” for her discrimination claims separate from

the wage issue. See Serrano v. Cintas Corp., 699 F.3d 884, 897 (6th Cir. 2012).

Allegations that Kent State “refused to repair ongoing discrimination” and took “an

adverse employment action” against her amount to nothing more conclusory

allegations of buzzwords. (ECF No. 35-1, ¶¶ 122–27, PageID #386.) Beyond the wage

discrimination claim, no facts pled in the amended complaint indicate or imply that

Ms. Wiler suffered discrimination “because of” (Title VII) or “on the basis of” (Title

IX) her sex. Therefore, if Plaintiff attempts to assert discrimination claims beyond

those involving alleged unequal pay, the Court dismisses them.

II.B. Retaliation

Plaintiff also asserts claims for retaliation under Title VII (Count I) and Title

IX (Count III). To state a retaliation claim, whether under Title VII, Title IX, or the

Equal Pay Act, Plaintiff must allege that (1) she engaged in protected activity; (2) of

which Kent State knew; (3) as a result of which, Kent State took an adverse

employment action against her; and (4) that there was a causal connection between

the protected activity and Kent State’s adverse employment action. See Denman v.

Youngstown St. Univ., 545 F. Supp. 2d 671, 678 (N.D. Ohio 2008) (collecting cases).

While she need not prove the prima facie elements at this stage of the proceedings,

Plaintiff must allege facts that make these elements plausible.

Under either statute, the amended complaint fails to state a claim in anything

other than the most conclusory terms. Even assuming Plaintiff makes plausible

allegations regarding the first two elements of her prima facie case, she fails to

identify any retaliatory action (other than her alleged constructive discharge,

discussed below) that Kent State took against her after she made her complaints or

filed either EEOC charge. (See ECF No 35-1, ¶¶ 32–35, PageID #369.) Plaintiff

argues that Kent State failed to investigate or remedy her complaint. But she does

not allege Kent State failed to do so in retaliation for her complaints, and the

amended complaint states no facts that would allow such an inference. To the

contrary, taken with her other allegations, any failure to investigate or take

Ms. Wiler’s complaints seriously was more systemic and not borne of retaliation. On

a motion to dismiss, the Court does not accept mere labels or conclusory allegations.

Therefore, the Court determines that the amended complaint fails to state a claim for

retaliation on any theory.

III. Constructive Discharge

Plaintiff asserts a claim for constructive discharge under Title VII (ECF

No. 35-1, ¶¶ 120–29, PageID #385–86) and Title IX (id., ¶ 126, PageID #386). The

Sixth Circuit sets a high bar for constructive discharge. “A constructive discharge

occurs when ‘working conditions would have been so difficult or unpleasant that a

reasonable person in the employee’s shoes would have felt compelled to resign.’”

Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 814 (6th Cir. 2020) (quoting Talley

v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1107 (6th Cir. 2008)) (analyzing

constructive discharge under the ADA).

A constructive discharge claim requires pleading and proving that (1) the

employer deliberately created intolerable working conditions, as perceived by a

reasonable person, and (2) the employer did so with the intention of forcing the

employee to quit. See Moore v. KUKA Welding Sys., 171 F.3d 1073, 1080 (6th Cir.

1999). Whether a reasonable person would feel compelled to resign depends on the

facts and circumstances of the particular case, including whether the employee

suffered:

(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities;

(4) reassignment to menial or degrading work; (5) reassignment to work

under a younger supervisor; (6) badgering, harassment, or humiliation

by the employer calculated to encourage the employee’s resignation; or

(7) offers of early retirement or continued employment on terms less

favorable than the employee's former status.

Logan v. Denny’s, Inc., 259 F.3d 558, 569 (6th Cir. 2001) (quoting Brown v. Bunge

Corp., 207 F.3d 776, 782 (5th Cir.2000)). Facts relating to these considerations,

singly or in combination, may support a claim. Id.

But Plaintiff does not allege she experienced any of these events. In total, the

amended complaint asserts that Kent State “refused to remedy Wiler’s complaints

and Wiler was forced to resign her position based on the failure of [Kent State] to

remedy her pay equity concerns and the continuing acts of pay discrimination.” (ECF

No. 35-1, ¶ 34, PageID #370.) While the amended complaint states a claim for

unequal pay, nothing about that pleading suggests she suffered from working

conditions that were so intolerable that she had no choice but to quit. But

constructive discharge requires more than an underlying statutory violation. See

Phillips v. Taco Bell Corp., 156 F.3d 884, 890 (8th Cir. 1998). The amended complaint

does not have more. For these reasons, the Court determines that the amended

complaint fails to state a claim for constructive discharge.

CONCLUSION

For all the foregoing reasons, the Court construed Kent State’s motion to

dismiss as a motion for judgment on the pleadings, which it GRANTS IN PART.

Specifically, the Court GRANTS the motion as it relates to the Title VII constructive

discharge/retaliation claim (Count I) and the Title IX (or Title VII) discrimination,

retaliation, and constructive discharge claims (Count IJ) and DISMISSES those

claims WITH PREJUDICE.

But the Court DENIES IN PART Kent State’s motion as to the wage

discrimination claim asserted under Title VII (Count I) and the Equal Pay Act

(Count II).

SO ORDERED.

Dated: March 3, 2021

J.Philip Calabrese”

United States District Judge

Northern District of Ohio

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