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Lotief v. Board of Supervisors of University of Louisiana System

United States District Court, M.D. Louisiana

May 29, 2019




         Before the Court is a Motion to Intervene (the “Motion to Intervene”)[1] filed by Chelsea Lotief, Doni Sanders, Miranda Grotenhuis, Sarah Koeppen, and Teryn Haley Pritchett (collectively, the “Proposed Intervenors”). The Motion to Intervene is opposed by defendants, the Board of Supervisors for the University of Louisiana System; Dr. E. Joseph Savoie, individually and in his official capacity; Dr. Jessica Clarke Leger, individually and in her official capacity; and Dr. Bryan Maggard, individually and in his official capacity (collectively, “Defendants”), [2] and Proposed Intervenors have filed a Reply.[3]

         For the reasons set forth herein, the Motion to Intervene[4] is denied.[5]

         I. Background

         On September 20, 2018, Plaintiff, previously the head coach of the Women's Softball team at the University of Louisiana at Lafayette (“ULL”) filed a Petition for Damages (the “Petition”) in state court seeking damages arising from, inter alia, Defendants' alleged violation of Title IX of the Educational Amendments of 1982, 20 U.S.C. § 1681, et seq. Specifically, Plaintiff alleges that Defendants terminated his employment in retaliation for Plaintiff's “reporting numerous forms of gender discrimination as well as the unequal treatment of female athletes as compared to male athletes.”[6] In addition to Plaintiff's Title IX retaliation claim, [7] Plaintiff additionally asserts claims of defamation, [8] violation of his First and Fourteenth Amendment rights, [9] discrimination in violation of the Americans with Disabilities Act, [10] wrongful conversion of property, [11] and breach of his employment contract.[12] On November 1, 2018, Defendants removed this action based on 28 U.S.C. § 1331 in light of Plaintiff's assertion of federal law claims.[13]

         On January 3, 2019, Proposed Intervenors filed the instant Motion to Intervene.[14] In their proposed Complaint in Intervention, Proposed Intervenors, who were students at ULL and members of the softball team at the time Lotief was coaching, allege that “[t]hroughout their tenure as students and softball players [they] experienced inequities and discrimination due to their gender (female) in violation of Title IX.”[15] Proposed Intervenors allege that they complained of the same inequities raised in Lotief's Petition[16] “in accordance with university policies” and “further complained to Lotief.”[17] Proposed Intervenors allege that “[a]fter Lotief became aware of the inequities and discrimination between female and male athletics at ULL, Lotief alerted the ULL administration to these numerous gender-based inequities faced by ULL's Women's Athletic Programs (specifically Softball), as compared to Men's Athletics”[18] and that “[f]ollowing Lotief's raising of the Title IX complaints, he was placed on administrative leave.”[19]

         Proposed Intervenors further allege that following Lotief's placement on administrative leave, they again “voiced their concerns regarding Title IX violations that each had experienced” and “further stated that each believed that Lotief's administrative leave was the result of his complaints and his reiteration of their complaints regarding Title IX violations committed by ULL.”[20] Rather than generate an internal investigation, Proposed Intervenors allege that their complaints regarding Lotief's placement on administrative leave and their assertions of gender inequities “generate[d] retaliation against each Intervenor and further retaliation against Lotief”[21]and that following Lotief's termination, “Gerry Glasco became the coach for the ULL Softball team, and Defendants began a pattern of systematic retaliation against Intervenors, which retaliation caused all to leave the team.”[22] Additionally, Proposed Intervenors allege that they filed complaints with the Office of Civil Rights and thereafter issued a press release regarding their claims, and that following that press release, ULL “issued a public statement, defaming and slandering Intervenors.”[23] Based on Defendants' alleged actions, Proposed Intervenors assert claims of gender discrimination pursuant to Title IX, [24] retaliation pursuant to Title IX, [25] defamation, [26] violation of their First Amendment and Fourteenth Amendment rights, [27] conversion of property, [28] and intentional infliction of emotional distress.[29]

         Although Proposed Intervenors note that they have filed a separate lawsuit “for protective purposes only, ”[30] they move to intervene in this suit as of right pursuant to Fed.R.Civ.P. 24(a)(2) and alternatively, to permissively intervene pursuant to Fed.R.Civ.P. 24(b).

         II. Law and Analysis

         A. Intervention of Right

         For purposes of deciding the Motion to Intervene, the Court accepts Proposed Intervenors' factual allegations as true.[31] “Although the movant bears the burden of establishing its right to intervene, Rule 24 is to be liberally construed[, ]” and the “inquiry ‘is a flexible one, and a practical analysis of the facts and circumstances of each case is appropriate.'”[32]

         Pursuant to Fed.R.Civ.P. 24(a)(2), a party is entitled to intervene in a pending lawsuit when: (1) the motion to intervene is timely;[33] (2) the potential intervenor asserts an interest that is related to the property or transaction that is the subject of the action in which he seeks to intervene; (3) the potential intervenor is so situated that disposition of the case may as a practical matter impair or impede his ability to protect his interest; and (4) the parties already in the action do not adequately protect the potential intervenor's interest.[34]

         With respect to the “interest” requirement, the Fifth Circuit has interpreted Rule 24(a)(2) “to require a ‘direct, substantial, legally protectable interest in the proceedings.'”[35] “Although ‘this gloss on the rule' may not ‘provide any more guidance than does the bare term ‘interest' used in Rule 24 itself,' [Fifth Circuit] cases reveal that the inquiry turns on whether the intervenor has a stake in the matter that goes beyond a generalized preference that the case come out a certain way.”[36] “[A]n intervenor fails to show a sufficient interest when he seeks to intervene solely for ideological, economic, or precedential reasons; that would-be intervenor merely prefers one outcome to the other.”[37] As an example of an insufficient interest, in New Orleans Public Service, Inc. v. United Gas Pipe Line Company (“NOPSI”), [38] the Fifth Circuit found that city officials' “purely economic interest” were insufficient to support intervention in a contract dispute over fuel prices between a private utility company and a seller of natural gas.[39]

         In contrast to NOPSI, “an interest that is concrete, personalized, and legally protectable is sufficient to support intervention.”[40] Although a property interest is “almost always adequate” “because it is concrete, specific to the person possessing the right, and legally protectable, ” “non- property interests are sufficient to support intervention when, like property interests, they are concrete, personalized, and legally protectable.”[41] As further explained by the Court in Texas v. U.S.,

in League of United Latin American Citizens, District 19 v. City of Boerne, 659 F.3d 421 (5th Cir.2011), we held that an intervenor had a “legally protectable interest” where he sought to protect “his right to vote in elections to choose all five city council members.” Id. at 434. The intervenor was not seeking to protect a property interest, but his interest in vindicating his own personal right to vote was sufficiently concrete and specific to support intervention. Similarly, in City of Houston v. American Traffic Solutions, Inc., 668 F.3d 291 (5th Cir.2012), we reversed the district court's denial of intervention by petition organizers who “engineered the drive that led to a city charter amendment over the nearly unanimous, well funded, and longstanding opposition of the Mayor and City Council.” Id. at 294. Although the intervenors had no property interest in the continued vitality of the amendment, we held that the intervenors' specific and “unique” interest “in cementing their electoral victory and defending the charter amendment itself” satisfied Rule 24(a)(2). Id.
Moreover, although an asserted interest must be “legally protectable, ” it need not be legally enforceable. In other words, an interest is sufficient if it is of the type that the law deems worthy of protection, even if the intervenor does not have an enforceable legal entitlement or would not have standing to pursue her own claim. For example, in Trbovich v. United Mine Workers of America, 404 U.S. 528, 537, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972), the Supreme Court held that a union member was entitled to intervene by right in a suit brought by the Secretary of Labor to invalidate an election of union officers, even though federal law prohibited the union member from initiating his own suit. Another example is Black Fire Fighters Ass'n of Dallas v. City of Dallas, 19 F.3d 992, 994 (5th Cir.1994), in which the city of Dallas entered into a consent decree with an employee group, agreeing to give a specified number of promotions to black officers who would not otherwise be chosen for promotions. A group of non-black firefighters sought to intervene, claiming that the decree interfered with their own promotion opportunities. Even though the non-black fire fighters did not have legally enforceable rights to promotions, we held that they satisfied Rule 24(a)(2) because “[a] decree's prospective interference with promotion opportunities can justify intervention.” Id. (emphasis added).[42]

         Here, Proposed Intervenors assert that “the ‘property or transaction that is the subject of the action' in this case is the violation of Title IX and the retaliation and attacks on those who sought to end those violations”[43] and that they have an interest in that “transaction” that is “more particularized and personal” than the interest that was found sufficient in City of Houston.[44] The undersigned disagrees.

         First, Proposed Intervenors' assertion that the “transaction” that is the subject of Plaintiff's suit is generally “the violation” of Title IX and “retaliation and attacks on those who sought to end those violations” paints too broad a stroke. Although both Plaintiff and Proposed Intervenors allege that gender inequalities existed, the events that form the basis of Plaintiff's claims are not the same as those which form the basis for Proposed Intervenors' action. In his Petition, Lotief alleges that he was a “whistle blower”[45] who “consistently opposed and reported ULL's unlawful discrimination against female athletes, ”[46] and that he was ultimately terminated for engaging in this protected activity.[47] Plaintiff alleges that Defendants relied on his “post-game ‘language'” after two games and “his alleged poking” of a ULL strength coach[48] as a pretext for his termination, and that other “similar but separate events” involving athletics at ULL show how the individual defendants were arbitrary and biased in handling purported complaints against him.[49] Plaintiff further alleges that Defendants failed to consider exculpatory evidence in his favor (including a statement signed by the softball team, including Proposed Intervenors, noting “the team's belief that Lotief was being targeted and retaliated against for standing up for female athletes”)[50] and that various circumstances support his position that the reasons for his termination were pre-textual.[51]Based on these allegations, the “transaction that is the subject of” Plaintiff's action is his termination and the reasons therefore (i.e., whether Plaintiff was terminated for foul language/inappropriate poking or instead was terminated due to his complaints of gender inequality). While proof that the actual inequalities complained of by Plaintiff existed may lend credence to his allegation that he engaged in protected activity, Plaintiff will not have to prove such inequality actually existed.[52] Moreover, while Proposed Intervenors may be called as witnesses regarding those circumstances, their presence in this action is not necessary in order to fully analyze Lotief's claims. In contrast, Proposed Intervenors have asserted claims for discrimination under Title IX, which will require proof of actual gender inequality.[53] While Proposed Intervenors also assert claims for Title IX retaliation, the alleged retaliatory acts specified in Proposed Intervenors' pleading occurred after Lotief's termination.[54] In short, Proposed Intervenors have no direct, personalized interest in Plaintiff's suit.

         Second, although Proposed Intervenors rely heavily on City of Houston to support their right to intervene in this action, Proposed Intervenors have not articulated a character of interest like that at issue that case. In City of Houston, intervenors were individuals who successfully “launched a political campaign, spending over $200, 000 of their personal funds, to force the City to cease using” a red-light camera system. Intervenors' efforts led to a charter amendment being placed on a ballot which, despite vigorous opposition by the City, was passed. On the day the City Council enacted an ordinance reflecting the election result, the City terminated its contract with the company running the red-light system and filed suit in federal court seeking a declaration regarding the contract's status. The company counterclaimed, alleging that the charter amendment election was invalid, and the parties entered into a mutual agreement that the red-light cameras would not be removed during the litigation.[55] In allowing the intervention, the Fifth Circuit explained that “intervenors are unique because they engineered the drive that led to a city charter amendment” and had “a particular interest in cementing their electoral victory and defending the charter amendment itself.”[56] Accordingly, in City of Houston, the direct result of intervenors' extensive campaigning effort was challenged.

         Proposed Intervenors argue that while they “did not spend substantial amounts of money” like the intervenors in City of Houston, “they did spend a substantial amount of time and energy” and that they “have an interest in their advocate not being retaliated against, in the propriety of the investigation they were involved in, and in seeking justice against [the] Defendants who victimized them.”[57] Those assertions notwithstanding, Proposed Intervenors have not articulated a “‘direct, substantial, legally protectable interest”[58] in these proceedings based thereon. As noted above, Proposed Intervenors have already filed their own lawsuit against Defendants, and presumably will “seek justice against [the] Defendants who victimized them” in that suit. Further, while the Proposed Intervenors have a generalized interest in the outcome of this lawsuit, especially to the extent Lotief produces evidence regarding the alleged gender inequalities in order to provide context to his allegations that he engaged in protected activity by reporting that inequality, such interest is not one that goes “beyond a generalized preference that the case come out a certain way.”[59] Accordingly, Proposed Intervenors do not have a sufficient “interest relating to the property or transaction that is the subject” of this action so as to support their intervention pursuant to Rule 24(a)(2).[60]

         B. Permissive Intervention

         Pursuant to Fed.R.Civ.P. 24(b), the court may permit anyone, on timely motion, to intervene who “has a claim or defense that shares with the main action a common question of law or fact.”[61] In considering whether to allow such intervention, the court “must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.”[62]Additionally, the Fifth Circuit has explained that “[i]n acting on a request for permissive intervention, it is proper to consider, among other things, ‘whether the intervenors' interests are adequately represented by other parties' and whether they ‘will significantly contribute to full development of the underlying factual issues in the suit.'”[63] “Permissive intervention “is wholly discretionary with the [district] court ... even though there is a common question of law or fact, or the requirements of Rule 24(b) are otherwise satisfied.”[64]

         Here, and as discussed above, the issues raised in Plaintiff's suit are distinct from those raised in Proposed Intervenors' proposed Complaint in Intervention. Although both suits may raise (either directly with respect to Proposed Intervenors' claims or indirectly with respect to Plaintiff's retaliation claim) whether inequities between men's and women's sports programs existed at ULL, this commonality of fact is insufficient to support permissive intervention pursuant to Rule 24(b). Proposed Intervenors seek to insert an entirely separate suit into this action, a suit which, by their own admission, they have filed and may continue to pursue independently from this action. Proposed Intervenors assert different claims of retaliation based on different factual allegations occurring at a different time than those set out by Plaintiff.[65] Under these circumstances, allowing this intervention would “magnify the complexity of this proceeding without adding anything beneficial to the proceeding or its resolution.”[66] Accordingly, Proposed Intervenors may not permissively intervene pursuant to Rule 24(b).

         III. Conclusion

         For the reasons set forth herein, the Motion to Intervene[67] is DENIED.



[1] R. Doc. 18.

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