Lawsuit Alleging Retaliation for Sexual Misconduct Whistleblowing by High School Basketball Player Can Proceed

From Doe v. Bd. of Ed. of City of Chicago, decided today by Judge Matthew Kennelly (N.D. Ill.), plaintiff's allegations (as usual, they are just allegations):

Doe was a student at Lincoln Park High School (LPHS), where he played on the boys' basketball team. During the 2019–2020 school year, Doe was a starter on the varsity team. In December 2019, the varsity basketball team participated in a basketball tournament in Detroit called the Motor City Roundball Classic. At the time, defendant Pat Gordon was the team's head coach. Though Gordon submitted paperwork to Chicago Public Schools (CPS) requesting permission for the Detroit trip, the trip was not approved because the paperwork was submitted late. Regardless, LPHS officials, including then-interim principal John Thuet, authorized the trip. The varsity basketball team played in the tournament, which was held on December 27 and 28.

On the evening of December 28, 2019, three members of the basketball team had sexual contact with the team's female manager, referred to in the complaint as Jane Doe. All these individuals were minors at the time.

Though Jane Doe had consented to have sex with one of the boys (hereinafter John Doe II), she was unaware that two other boys (hereinafter John Doe III and John Doe IV) had switched places with Doe II. Jane Doe was also unaware that a video recording had been made of the sexual encounter, which was subsequently shared with other LPHS students.

The following morning, December 29, two of the boys involved told other members of the basketball team about the sexual misconduct, including that Jane Doe did not know Doe III and Doe IV had engaged in sexual contact with her. Later that day, plaintiff Doe and another member of the team, John Doe V, separately informed their fathers of the sexual misconduct.

On December 30, 2019, Doe V's father reported the sexual misconduct to CPS's Office of Student Protection (OSP). The next day, December 31, plaintiff Doe's father e- mailed Thuet requesting a meeting to discuss the sexual misconduct allegation. Doe's father, Doe V's father, and Thuet met on January 2, 2020, and discussed the events that transpired on the Detroit trip. On January 3, Thuet e-mailed the boys' fathers to inform them he had submitted a report regarding their conversation to OSP.

On January 3, 2020, Debra Spraggins, OSP's director of investigations, received notice of the sexual misconduct and assigned OSP investigator Xochitl Rojas to the matter. OSP began investigating the reported sexual misconduct the following week. As part of this investigation, John Doe was interviewed without OSP notifying his parents or providing them with an opportunity to attend the interview in person. Instead, Doe's father attended the interview by phone, as he was at work and could not leave.

On January 9, Thuet sent a letter to parents of the basketball team regarding the Detroit trip and its aftermath. In this letter, Thuet explained that the trip was not a school sponsored event, that the staff member who led the trip had been removed from their position, and that the district was investigating the matter. Though the letter does not identify the staff member by name, the removed individual was head basketball coach Gordon. Gordon was replaced by interim coach Donovan Robinson.

Gordon, despite being removed from LPHS, continued to communicate with various members of the basketball team, parents of basketball team members, and LPHS administrators via text messages.Gordon revealed to one or more members of the basketball team that Doe had reported the sexual misconduct and instructed these members to deny the allegations and not cooperate with OSP's investigation.Although the precise date of this conversation is unknown, Doe contends that Gordon revealed this information before January 8, 2020.

On January 8, prior to a basketball game, Robinson informed John Doe that he would not be playing that evening. Robinson told Doe that "because of Plaintiff's report and the ultimate termination of Gordon, Robinson didn't have confidence in him." On January 10, Robinson revealed to the entire basketball team that Doe and Doe V had reported the sexual misconduct. As a result, Doe became isolated from his teammates and began receiving harassing and threatening text messages.

According to the complaint, Rojas and Spraggins were informed that Doe was receiving threatening texts by January 16 at the latest. Rojas and Spraggins, however, took no action on investigating the matter until January 30. Thuet learned that Doe was receiving threatening texts during a January 17 phone call with Doe's father. During this same call, Doe's father informed Thuet that Doe had been removed as a starter and was facing retaliation from Gordon and Robinson for reporting the sexual misconduct.

Doe's father told Thuet that, due to the impact of this retaliation, Doe was considering transferring schools. According to the complaint, Thuet took no action upon learning this information.

Due to inaction on the part of Thuet and OSP, Doe's father e-mailed Aneita Williams, the CPS Title IX Officer of Sports, on January 21, 2020 to inform her of the retaliation against Doe. Williams responded on January 22, advising Doe's father that OSP would be investigating the matter. Spraggins was copied on this e-mail. One week later, due to a lack of response from OSP, Doe V's father e-mailed Janice Jackson, then-Chief Executive Officer of CPS. After this follow up e-mail to Jackson, Doe and Doe V's fathers met with OSP investigators on January 30. The next day, January 31, Robinson was suspended as interim coach, and Thuet was removed from his position as interim principal. That same day, the LPHS boys' basketball season was cancelled.

On February 3, CPS held a community meeting and shared basic details on the investigation regarding the harassment and sexual misconduct. CPS informed attendees that a total of four investigations were ongoing. Following this meeting, verbal harassment against Doe continued to escalate, and an online petition began to circulate seeking to resume the boys' basketball season.

On February 14, 2020, LaTanya McDade, CPS's Chief Education Officer, e- mailed the LPHS community stating that, though the investigations remained open, the allegations of adult misconduct have been fully substantiated. A pertinent section of this e-mail states:

Based on extensive interviews with students, staff, and parents, the district determined that school administrators fostered a dangerous culture for students by disregarding their training and requirements for protecting students and failed to effectively oversee the school's athletic program. Most troublingly, when speaking with investigators, the administrators attempted to minimize the severity of the allegations, and withheld key evidence for nearly a week. An administrator also misled parents of the whistleblowers and falsely claimed that OSP and district officials had reviewed their child's allegations and considered it not troubling. Their mishandling of the situation and lack of candor jeopardized student safety, especially the students who came forward to report the allegations, and further traumatized student survivors.

At some point after this e-mail was sent, Brian Thompson, lead Title IX specialist for OSP, told Doe's father that the claims of harassment against Doe had been fully substantiated.

On June 23, 2020, Laura LeMone, Chief of Network 14 for CPS, sent a follow-up e-mail to the LPHS community. This e-mail confirmed that OSP had substantiated "multiple allegations of serious misconduct" regarding coaches at LPHS. Based on the findings of their investigation, CPS "decided to file dismissal charges and move forward with a termination hearing for Pat Gordon." LeMone acknowledged that "misconduct was substantiated" against Robinson as well but determined that he could return to his position following additional training from OSP and Title IX.

Due to this harassment, Doe withdrew from LPHS and transferred to De La Salle Institute for his senior year. This transfer negatively impacted Doe's GPA due to a difference in how the two schools weigh grades. Doe was also deprived of the opportunity to receive support from his coaches in seeking collegiate basketball opportunities. This support includes lack of advocacy to college basketball coaches and recruiters and lack of compiling game tape to submit to college basketball programs. Doe has been told by college basketball coaches that they need such game tape "to make a full evaluation of [Doe]." Doe has not made his college's basketball team.

The court concludes that the allegations, if true, could make out a Title IX case on various theories, all related to retaliation:

To successfully establish a claim for Title IX retaliation, a plaintiff must show that (1) he engaged in activity protected by the statute, (2) the school took materially adverse action against him, and (3) there is a but-for connection between the two. A materially adverse action is one that would dissuade a reasonable person from engaging in the activity protected under Title IX. "Not everything that makes an [individual] unhappy is an actionable adverse action…. [I]t does not include those petty slights or minor annoyances that often take place …"

The Board contends that Doe has failed to plead that he suffered any materially adverse action. This argument fails for multiple reasons, primarily the fact that Doe contends he transferred schools because of the retaliation. Doe further alleges that he faced threats and harassment from students as well as school administrators over the course of several months, he was removed as a starter, and he did not receive support when applying to college basketball programs. Accordingly, Doe has alleged facts sufficient to survive a motion to dismiss.

As a separate matter, it is unclear given recent Supreme Court case law whether the plain language of Title IX requires Doe to show a materially adverse action, as opposed to any adverse action. In Muldrow v. City of St. Louis (2024), the Supreme Court held that, under the plain language of Title VII, a plaintiff bringing a discrimination claim is not required to show that "the harm incurred was significant. Or serious, or substantial, or any similar adjective suggesting that the disadvantaged employee must exceed a heightened bar." Though Muldrow was interpreting Title VII, and this case involves Title IX, the manner in which the Seventh Circuit has constructed Title IX to require showing a materially adverse action to bring a successful retaliation claim runs contrary to the logic invoked by Justice Kagan in her opinion for the Court in Muldrow. See id. ("Discriminate against means treat worse, here based on sex. But neither that phrase nor any other says anything about how much worse.")….

And the court concluded that plaintiff also stated a state law intentional infliction of emotional distress claim, because the defendant's alleged behavior was "truly extreme and outrageous":

Specifically regarding Thuet, the interim principal at the time, Doe contends that Thuet was informed of the sexual misconduct, as well as the harassment Doe was experiencing as the whistleblower, on January 3, 2020. Thuet, however, did not report this to OSP. Instead, Doe alleges, Thuet instructed Johnson "to bring the accused and the whistleblowers together in a meeting" despite such action being "in direct violation of district policy and best practices." Thuet is also alleged to have been aware as of January 13 that Gordon was continuing to contact members of the basketball team, their parents, and other school administrators despite having been removed from his position as head coach. Thuet also was allegedly made aware on January 17, 2020 that Doe was facing harassment and threats from his teammates. Doe alleges that Thuet took no action despite this.

Regarding Gordon and Robinson, Doe alleges they both knew of and encouraged the harassment from other players. Doe contends that Gordon leaked Doe's identity to Robinson, who in turn revealed it to the other members of the basketball team. Robinson removed Doe as a starter and allegedly told the entire basketball team that Doe was one of the whistleblowers. Gordon and Robinson are also alleged to have refused to help Doe compile game tape or reach out to college basketball coaches and recruiters, and they are claimed to have conveyed to Doe that they did so because of Doe's reporting of the sexual misconduct….