A Sport Psychologist Hired as An Independent Contractor by DePaul University Athletics Found Not to Have Standing Under Title IX & Denied Relief for Alleged Retaliation

(Editor’s Note: The following is shared from the archives of Sports Litigation Alert, a subscription-based publication.)

By Ellen J. Staurowsky, Ed.D., Senior Writer/Hackney Publications & Professor, Sports Media, Roy H. Park School of Communication, Ithaca College, staurows@ithaca.edu

A sport psychologist, Dr. Jenny H. Conviser, along with counselors employed through her company Ascend Consultation Health Care, LLC (Ascend CHC) provided psychological and nutritional assessments, educational programming, and counseling support to athletes, coaches, and staff in the athletic department at DePaul University for 13 years as an independent contractor from 2005 through 2018.  After notifying numerous DePaul administrators starting in 2016 about Title IX concerns that arose in the course of treating DePaul athletes and serving the athletic department in a variety of capacities, including allegations of abusive language and conduct by then head women’s softball coach, Eugene Lenti (brother of then athletic director Jean Lenti Ponsetto), Conviser claims that she became the target of retaliation.  Based on Conviser’s account, DePaul steadily reduced the number of athletes referred to Ascend, ending its contract with Ascend three years early, telling athletes that the athletic department would not pay for services provided by Ascend, and ordering Conviser to prematurely end consultation with an athlete with whom she had been working.

The allegations that seemed to strike the most sensitive chord among DePaul administrators pertained to the then long-time head women’s softball coach, Eugene Lenti, who was accused of directing sexually explicit and profane language at players, engaging in aggressive actions toward players and staff and as reported by a softball player, punching a female assistant coach in the face.  Conviser describes the DePaul administration as a network of conflicted interests (the softball coach’s sister was athletic director Jean Lenti Ponsetto; the institutional Title IX coordinator was the former associate athletic director) that contributed to a climate that discouraged reporting of wrongdoing and engaged in covering up problems.

According to Conviser, the more she pressed DePaul’s administration to respond to incidents of athlete and staff abuse that were potential Title IX violations and violations of other state laws and university policy warranting investigation, the clearer it became that DePaul was separating itself from Ascend by progressively referring fewer and fewer athletes for services.  Conviser believes that the final blow to the relationship came in 2018 after one of her staff members, in supporting a DePaul softball player they were counseling, assisted her in making a complaint to the Title IX Office about the softball coach, leading to an investigation of the coach.  Shortly thereafter, Conviser claims, DePaul initiated an investigation that led to the quiet retirement of Coach Lenti, who would come out of retirement a year later with an appointment as an assistant coach in the Auburn women’s softball program.  In April of 2020, Conviser sued DePaul and following the removal of the case from the Circuit Court of Cook County in Illinois to the U.S. District Court for the Northern District of Illinois Eastern Division, an opinion on Conviser’s First Amended Complaint (June 25, 2020) and DePaul’s Motion to Dismiss (July 3, 202) was issued on March 31, 2021.

Judge Ruled That Conviser Failed to State a Claim and Lacked Standing

The Court acknowledged that Title IX’s reach included protection of individuals who were not direct victims of sex discrimination but were retaliated against because of reporting sex discrimination.  Precedent as established in Jackson v. Birmingham (2005), a case involving a high school girls basketball coach and physical education teacher who was terminated from his coaching position after reporting that his team was being subjected to sex discrimination “precisely encapsulates the type of claims the Plaintiffs bring here” (Valderama, 2021, p. 5). The retaliation itself is discriminatory because it represents differential treatment and the retaliatory response in defense of sex discriminatory practices offends Title IX standards by being a manifestation of sex discrimination.

However, the Court also found that Conviser was unable to establish statutory standing under Title IX that would have allowed her to receive relief for the retaliatory acts committed by DePaul administrators.  Nor was she able to sustain a retaliation claim. While Conviser argued that Title IX’s language was intentionally broad, the Court accepted DePaul’s argument that Title IX’s mention of “no person” in the statute “..is not especially helpful in designating proper Title IX plaintiffs…” (Valderama, 2021, p. 5).  The Court also agreed with the argument posited by DePaul that Title IX’s protections extend to only two groups of people -employees and students (and parents of students) of an education program that is federally funded.  The Court goes on to provide an analysis of six cases that DePaul referenced in narrowing the terms of who has statutory standing under Title IX and Conviser’s opposing viewpoints to each.  The Court’s summary of these cases and analysis of DePaul’s and Conviser’s positions are presented below in Table 1.

In the end, the Court sided with DePaul noting, “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” (Valderama, 2021, p. 12).  In the absence of establishing standing, Conviser was unsuccessful in stating a Title IX claim and her claim of retaliation was unsupported.

Conviser’s Third Party Retaliation Claim

The Court also addressed Conviser’s third party retaliation claim.  While Title IX provides for the fact that someone may be the victim of retaliation for reporting sex discrimination and not be a victim of that sex discrimination, there is a requirement that there is a sufficient connection or close affiliation between the reporter and the victim.  The Court was persuaded by DePaul’s argument that Conviser was a mere acquaintance of athletes and coaches who shared stories about sex discrimination and as a consequence was not close enough to establish a sufficient connection.  The Court was less persuaded by Conviser’s position that she was more than a mere acquaintance given her role in overseeing all of the cases referred to Ascend, providing direction and guidance regarding reporting procedures to her staff and athletes, counseling athletes herself, and serving as a Title IX mandatory reporter.

In order for a plaintiff to successfully establish a retaliation claim they need to address these three elements:

• that they engaged in statutorily protected activity;
• that they were materially harmed by actions taken by the school; and,
• that there is a but-for causal connection between the two (Valderama, 2021, p. 11.).

The Court determined that the first two elements of a retaliation claim were satisfied.  Conviser’s conversations with administrators about her concerns regarding Coach Lenti’s conduct and other issues raised by athletes constituted protected activity.  And the reduction in referrals and termination of her contract had an adverse effect on Conviser and her business.  However, the Court was not persuaded that Conviser had demonstrated that there was a cause-and-effect relationship between speaking up about the abuse going on in the athletic program and the decision to terminate her contract.  DePaul pointed out that her contract was renewed for another five years in 2017 after she first raised concerns about Coach Lenti in 2016.  Further, the Court found that while the timing of the termination might have been suspicious, there was little evidence to support a conclusion that DePaul had a retaliatory motive.

The Court dismissed the case but left the door open for Conviser to submit a second amended complaint, which she did in May of 2021.

Conviser’s Second Amended Complaint & DePaul Motion to Dismiss

In Conviser’s Second Amended Complaint, filed in May of 2021, the issue of the expanse of Title IX’s language is addressed, drawing on Kucharik v. Garden City Comm. College (2021) to emphasize that “In the context of Title IX retaliation, [a] plaintiff is not required to plead that he is a . . . student or faculty member” (p. 3).  Additionally, there is further clarification of Dr. Conviser’s role at DePaul to respond to the characterization that she was too far removed from the abuse that she was reporting and that she did not have sufficient connection with accusers.  Although DePaul has depicted Dr. Conviser as a mere acquaintance in terms of her relationships with staff and athletes, she provides further details of her engagement with the athletic department, noting that not only were her reports regarding Coach Lenti based on information from other people but from her own personal observations as well.  Her account in the complaint that she served on a departmental committee that included other long-standing administrators might underestimate the significance of this role.  She was named as a member of the Gender, Diversity, and Student-Athlete Welfare Subcommittee which contributed to the university’s report as part of DePaul’s 2009-2010 Division I Certification Self-Study, which at the time was an NCAA compliance requirement (DePaul University Athletics, 2010).  She further documents in more precise fashion the timeline in the decline of referrals made by the athletic department between 2016 through 2021.  DePaul filed its motion to dismiss second amended complaint in June of 2021, continuing to maintain that Conviser lacks standing and has failed to assert a retaliation claim.  As of this writing, the Court’s opinion is pending.

References

Conviser v. DePaul University.  (2021).  Second Amended Complaint.  United States District Court for the Northern District of Illinois Eastern Division.  Case No. 20-CV-03094

Conviser v. DePaul University. (2021).  Memorandum in support of defendant’s motion ot dismiss plaintiff’s second amended complaint.  United States District Court for the Northern District of Illinois Eastern Division.  Case No. 20-CV-03094

DePaul University Athletics (2010).  2009-2010 Division I athletics certification self-study instrument.  Retrieved from https://depaulbluedemons.com/documents/2015/4/30/_depa_genrel__depa-self-study-intro.pdf

Valderama, F.  (2021, March 31). Conviser v. DePaul University.  (2021).  Memorandum opinion and order.  2021 U.S. Dist. LEXIS 62632 *; 2021 WL 1212800.