Case 1:18-cv JHM-LLK Document 35 Filed 03/12/19 Page 1 of 7 PageID #: 421

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1 Case 1:18-cv JHM-LLK Document 35 Filed 03/12/19 Page 1 of 7 PageID #: 421 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION CIVIL ACTION NO. 1:18-CV JHM-LLK ELECTRONICALLY FILED LOANDRIA DAHMER PLAINTIFF v. WESTERN KENTUCKY UNIVERSITY, et al. DEFENDANTS *** *** *** PLAINTIFF S REPLY TO DEFENDANT WKU S RESPONSE TO PLAINTIFF S MOTION TO FILE FIRST AMENDED COMPLAINT Comes now the Plaintiff, Loandria Dahmer, by counsel, and herein tenders her Reply to Defendant WKU S Response to Plaintiff s Motion to File First Amended Complaint. I. Regarding Amendment I: Plaintiff s First Amended Complaint simply seeks to add factual information regarding Annalicia Carlson; Plaintiff is not attempting to assert a claim on her behalf First and foremost, Plaintiff is making no claims or efforts to try to bring a claim on behalf of WKU student, Annalicia Carlson, which she provides in her First Amended Complaint, also filed a Title IX complaint against Defendant Charley Pride. Plaintiff is well aware she doesn t have standing to bring a claim on behalf of Ms. Carlson and this argument by Defendant WKU is a red herring and should be ignored. Rather, Plaintiff presents the factual information concerning Ms. Carlson s Title IX complaint to further supplement her claims that a hostile environment existed within the WKU Student Government Association, an environment that not only Plaintiff felt was unsafe, but that other students, as well as Ms. Carlson, also reported was unsafe. Additionally, Ms. Carlson further reported that Defendant Pride made inappropriate and sexual comments to her, much similar to Plaintiff s claims. Plaintiff s addition of this factual information is intended to add credence to Plaintiff s claims, which Defendant WKU has publicly declared are 1

2 Case 1:18-cv JHM-LLK Document 35 Filed 03/12/19 Page 2 of 7 PageID #: 422 frivolous and maliciously untrue. 1 If Plaintiff s claims were so frivolous and maliciously untrue, how is it that other students were reporting the same concerns as her, regarding the situation within SGA at WKU and Defendant Pride? Simply put, Plaintiff should be able to file an Amended Complaint with this simple, additional piece of factual information, especially since Defendants WKU have publicly asserted her claims are frivolous and maliciously untrue. II. Regarding Amendment II: Defendant WKU s argument does not present the whole substance of Plaintiff s testimony Defendant WKU claims Plaintiff s second amendment to her Complaint is disingenuous and made in bad faith. However, Defendant WKU itself fails to present the entire substance of Plaintiff s testimony. Further review of her deposition reveals that she believed the October 23 rd, from Andrea Anderson was in relation to an incident of inappropriate contact from a Board of Regents member and not the ongoing issues with SGA. As Plaintiff attested to the following in her deposition: Could we go back to this really quickly? Counsel for WKU: Back to Exhibit 7 2? Yes. Counsel for WKU: Okay. Sure. Okay. So, I guess, this doesn t necessarily have to do with specifically the so this is not ok. When I had gone to Melanie Evans regarding the first complaint, yes, I wanted her to speak to senate, but when she specifically asked if I had experienced anything, it was that I had experience inappropriate contact from a member of the Board of Regents. And so, I was very concerned at that time when she called me that by disclosing that, I would be unable to complete my role in the regency in some way, but that really doesn t have much to do with the ongoing conduct in the SGA. It was about a separate complaint that I did not feel comfortable voicing at that time based on inappropriate contact from a member of the Board of Regents. So, when she had followed up, 1 See last accessed on March 12 th, Exhibit 7 is the October 23 rd, from Andrea Anderson, attached hereto as Exhibit B. 2

3 Case 1:18-cv JHM-LLK Document 35 Filed 03/12/19 Page 3 of 7 PageID #: 423 that was what I had been apprehensive about disclosing. And so, that s why I did not disclose that to her, but it wasn t necessarily about the ongoing conduct of those in SGA. Dahmer Depo: 151: 1-23, transcript attached as Exhibit A. When further questioned about this, Plaintiff testified she was scared to report this behavior: Counsel for WKU: Okay. Did you make any complaints about this particular incident to anyone at WKU? No. I was scared to. Counsel for WKU: Why were you scared to? Because I was interacting with the regents around once a month with other committee meetings. Dahmer Depo: 153: 12-17, attached as Exhibit A. Therefore, Plaintiff was apprehensive in disclosing that Regent s identity and didn t further reach out to Defendant Anderson regarding the October 23 rd, because she believed it had to do with her situation with the Regent. This is very different compared to Defendant WKU s very serious allegation that Plaintiff s claims have been made in bad faith. Plaintiff was not indicating Defendant WKU shouldn t address her SGA complaints; rather Plaintiff did not want Defendant WKU to address the complaint regarding the Regent, as she testified, she was scared to report this. However, all of these arguments are irrelevant and beside the point that Defendant WKU s own Title IX Coordinator and Assistant General Counsel admitted in an dated October 23 rd, 2017 that she was aware that complaints through a couple different sources had been reported concerning Plaintiff that you may have personally experienced some inappropriate behavior of a sex or gender-based nature. 3 Defendant Anderson, and therefore Defendant WKU, therefore had notice, a requisite element of a Title IX claim, that Plaintiff may have been being discriminated against, on the basis of her sex, as early as October of See Exhibit B, 10/23/17 from Andrea Anderson. 3

4 Case 1:18-cv JHM-LLK Document 35 Filed 03/12/19 Page 4 of 7 PageID #: 424 Defendant WKU can provide their own recitation of facts in their Amended Answer and clearly it will be a factual question for the jury to decide as to whether Defendant Anderson did respond responsibly. But it is not a scenario where because the parties present differing versions of the facts, that Plaintiff should not be allowed to file an amended complaint. Conclusively, this information is relevant to Plaintiff s Title IX claims and should be allowed to be presented in her First Amended Complaint, given that she just received the at her deposition on January 4 th, III. Regarding Amendment III: Leave to amend should be freely given At the least, Plaintiff should be allowed to move forward with her First Amended Complaint and conduct discovery on this issue. As Defendant WKU appeared to open the door to this issue being litigated, as when Plaintiff asked why WKU President Timothy Caboni was no longer endorsing her for the scholarship, a WKU employee responded with, I cannot discuss this matter with you. You should direct questions to your attorney. 4 Defendant WKU asserts Plaintiff s claims are speculative regarding the retaliation claim, however this further supplements that Plaintiff should be allowed to conduct discovery on this issue. Then, if Defendant WKU truly feels Plaintiff has no evidence or proof of this claim, it can move for the claim to be dismissed pursuant to a motion for summary judgment. However, preventing Plaintiff from even making this claim in the first place, when she clearly has proof of what a jury could find was evidence of retaliation, would be unfairly prejudicial to Plaintiff and in conflict with the standing presumption that amendments of complaints should be freely given. While Defendant WKU provided another person to offer the recommendation, Plaintiff would argue that obviously a recommendation from a president of a university will warrant stronger credence and consideration than one from someone 4 attached hereto as Exhibit C. 4

5 Case 1:18-cv JHM-LLK Document 35 Filed 03/12/19 Page 5 of 7 PageID #: 425 other than the president, as there is a reason why Plaintiff asked President Caboni for his recommendation in the first place and not just any other WKU employee. The Supreme Court determined that [i]n the absence of undue delay, bad faith or dilatory motive undue prejudice futility of amendment, etc. the leave sought should be freely given. Foman v. Davis, 371 U.S. 178, 182 (1962). The Sixth Circuit Court of Appeals applies a balancing test of these factors, which turns on substantial prejudice to the opposing party. See e.g., Lawson v. Truck Drivers, Chauffeurs & Helpers, Local Union 100, 698 F. 2d 250, 256 (6 th Cir. 1983); Hagerman v. Signal L.P. Gas, Inc., 486 F. 2d 479, 484 (6 th Cir. 1973). There is no substantial prejudice here; one deposition has been taken and that is of the Plaintiff and discovery is just now underway. The Sixth Circuit Court of Appeals has further allowed amendments even after the expiration of discovery and after the time for amended pleadings in the scheduling order. See, e.g. United States v. Wood, 877 F. 2d 453, 456 (6 th Cir. 1989) (allowing United States to add a claim fourteen months after suit was filed, after discovery had closed, and three weeks before trial). Here, Plaintiff has brought her First Amended Complaint, at the outset of discovery, within the time limits of the Scheduling Order, less than five months from filing her Original Complaint. Finally, Plaintiff only brings her retaliation claim against Defendant WKU, as she is aware there is no individual liability for Title IX claims. Conclusively, Plaintiff would request the Court allow her to file her First Amended Complaint in its entirety. 5

6 Case 1:18-cv JHM-LLK Document 35 Filed 03/12/19 Page 6 of 7 PageID #: 426 Respectfully submitted, /s/ Lindsay A. Cordes Tad Thomas Lindsay A. Cordes Thomas Law Offices 9418 Norton Commons Blvd., Ste. 200 Louisville, KY (502) Lindsay.cordes@thomaslawoffices.com Attorneys for Plaintiff, Loandria Dahmer 6

7 Case 1:18-cv JHM-LLK Document 35 Filed 03/12/19 Page 7 of 7 PageID #: 427 CERTIFICATE OF SERVICE On March 12 th, 2019, I electronically filed this document through the ECF system, which will send a notice of electronic filing to counsel for the parties of record in this case. /s/ Lindsay A. Cordes Lindsay A. Cordes Attorney for Plaintiff Thomas Law Offices 9418 Norton Commons Boulevard, Ste. 200 Louisville, KY P: (502) F: (502) Lindsay.cordes@thomaslawoffices.com 7