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Kenny v. University of Delaware

United States District Court, D. Delaware

November 8, 2019

UNIVERSITY OF DELAWARE, et al., Defendants.

          David H. Williams, James H. McMackin, III, Allyson Britton DiRocco, MORRIS JAMES, LLP, Wilmington, DE; Attorneys for Plaintiff James.

          D. Taylor, Jr., SAUL EWING ARNSTEIN & LEHR, LLP, Wilmington, DE; Christina D. Riggs, SAUL EWING ARNSTEIN & LEHR, LLP, Philadelphia, PA; Attorneys for Defendant.


          Andrews, U.S. District Judge.

         Plaintiffs Bonnie J. Kenny and Cindy Gregory sued Defendants the University of Delaware ("UD"), Chrissi Rawak, and Thomas LaPenta on August 17, 2017. (D.I. 1; Civ Act. No. 17-cv-01157-RGA, D.I. 1). Plaintiffs, a married lesbian couple in their fifties, allege they were fired from their coaching positions because of their age and sexual orientation. (D.I. 1). Their lawsuits were consolidated on April 13, 2018. (D.I. 20). Currently before the Court is Defendants' Motion for Summary Judgment. (D.I. 70). The matter has been fully briefed. (D.I. 71, 72, 78). Because Plaintiffs have failed to show Defendants' stated reasons for firing them were pretext for discrimination, Defendants' motion is GRANTED.

         I. BACKGROUND

         Kenny was the head coach of UD's women's volleyball team, and Gregory was the team's associate head coach. (D.I. 82 at 2). On October 13, 2016, in the middle of the volleyball season, the university fired both coaches. (D.I. 82 at 3). Plaintiffs allege (1) age discrimination, in violation of the Age Discrimination in Employment Act ("ADEA") and the Delaware Discrimination in Employment Act ("DDEA"); and (2) sexual orientation discrimination, in violation of the DDEA and the Equal Protection Clause of the Fourteenth Amendment. (D.I. 1 at 14-17). Plaintiffs had initially alleged marital status discrimination, but they now acknowledge that claim is subsumed within their sexual orientation claim. (D.I. 72 at 19).

         UD hired Kenny and Gregory in 2002. (D.I. 82 at 2). By that time, they were both experienced coaches, following stints at other major universities. (Id.). Kenny and Gregory had begun dating each other in 1996, while working at a different university, and they married under Delaware's same-sex marriage law in 2013. (D.I. 71, Ex. 3, hereinafter, "Kenny Dep.," at 21, 27). While they didn't publicize their relationship, they assumed many people knew. (Id. at 28, 38-39).

         The coaches indisputably had success at UD, leading the team to Colonial Athletic Association Championships in 2007, 2008, 2010, and 2011, and to four berths in the National Collegiate Athletic Association tournament. (D.I. 69, Ex. E). But the team's performance began slipping in 2013. The Blue Hens posted losing records in 2013, 2014, and 2015. (Id.). Throughout this period though, the student athletes consistently performed well academically. (D.I. 71, Ex. 7, hereinafter, "Rawak Dep.," at 88-89).

         In May 2016, UD hired Chrissi Rawak as athletic director. (D.I. 82 at 2). Two months later, Rawak met for the first time with Kenny, who informed Rawak of an anonymous complaint filed by a volleyball player in 2014. (Rawak Dep. at 12-13). According to that complaint, Gregory had hugged and kissed players, and the players were uncomfortable approaching either Gregory or Kenny about the issue. (D.I. 73 at 409-411). Following an investigation, Eric Ziady, UD's athletic director at the time, barred Gregory from one-on-one meetings with student athletes for one year and instructed her to refrain from any physical contact with athletes. (D.I. 71, Ex. 9). Gregory and Kenny deny the allegations. (D.I. 71, Ex. 4, hereinafter, "Gregory Dep.," at 12). In the meeting with Rawak, Kenny said the 2014 investigation had been difficult and was not something she wanted to go through again. (Rawak Dep. at 13).

         In September 2016, Rawak attended three volleyball games in person and watched others online. (Id. at 25-26). She also briefly attended two volleyball practices. (Id.). She observed Kenny "yelling" at players in a "very aggressive tone," and she described Gregory as similarly "intense." (Id. at 172-174). Rawak claims the athletes "cowered" during the games and that they looked "distraught, defeated, uncomfortable, devalued."[1] (Id. at 181).

         Rawak then received two separate complaints about the coaches. The first, dated September 28, 2016, was an anonymous letter claiming that Kenny bullied players. (D.I. 71, Ex. 12.). A few days later, a player's parents emailed Rawak to complain that one or both coaches had forced their daughter to lift weights while sick and had yelled at her for studying before a game. (D.I. 71, Ex. 13). The parents also claimed Kenny had shoved their daughter and that Gregory used weekly one-on-one meetings to "belittle, berate and to demean" her. (Id.). Plaintiffs dispute the allegations, and suggest the player was upset about getting less playing time. (D.I. 72 at 3).

         On October 5, 2016, Rawak met separately with both coaches. (D.I. 82 at 3). Thomas LaPenta, UD's director of human resources, attended both meetings. (Id.). At the meetings, Rawak and LaPenta informed the coaches there were allegations of misconduct and that they could either resign or face a university investigation. (Kenny Dep. at 159-163, 229). Both coaches declined to resign, and they retained counsel the following day. (D.I. 82 at 3). The university placed the coaches on leave. (Rawak Dep. at 18).

         Rawak then examined athlete responses to a university survey from the previous season. She found the results "incredibly alarming." (Rawak Dep. at 179). Ten out of thirteen volleyball players said they were "sometimes" or "often" subjected to coaching techniques that involved verbal abuse. (D.I. 71, Ex. 16). Eleven out of thirteen said the coaching techniques "sometimes" or "often" involved mental abuse. (Id.).

         After reviewing those surveys, Rawak decided not to investigate the complaints. (Id. at 137). Instead, on October 13, 2016, she fired both coaches "without cause."[2] (D.I. 82 at 3). In an October 16 press release, the university publicly announced the departure of the volleyball coaches, along with the head coach of the football team. (D.I. 71, Ex. 17). At ...

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