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Dahmer v. Western Kentucky University

United States District Court, W.D. Kentucky, Bowling Green

April 22, 2019



          Lanny King, Magistrate Judge.

         District Judge Joseph McKinley referred this matter to Magistrate Judge Lanny King for determination of nondispositive matters, pursuant to Title 28 U.S.C. § 636(b)(1)(A). (Docket #7).

         Plaintiff Loandria Dahmer filed a Motion to Compel Defendant, Western Kentucky University (“WKU”), to provide responses to her interrogatories and requests for production that were issued on October 17, 2018. (Docket #25). WKU filed a Response in opposition, arguing that the requested information is not within the scope of discovery and that disclosure of the requested information is prohibited by the Family Educational Rights and Privacy Act (“FERPA”). (Docket #29). Dahmer's reply restates her position and addresses each of WKU's arguments. (Docket #31). Fully briefed, this Motion is ripe for adjudication. For the reasons detailed below, Plaintiff's Motion to Compel is GRANTED in part and DENIED in part.


         This case arises out of alleged sex-based discrimination suffered by Plaintiff Dahmer in her role as Student Government Association (“SGA”) President at WKU. (Docket #25). Plaintiff filed an action against multiple parties, including Defendants WKU, Timothy Caboni (President of WKU), Andrea Anderson (Title IX Coordinator at WKU) and Charley Pride (SGA Advisor at WKU). (Docket #1). The Complaint alleges that Defendants failed to adequately respond to sex-based discrimination suffered by Plaintiff at the hands of students and staff of WKU. Id. Plaintiff more specifically alleges that Defendant Pride failed to respond to her repeated complaints of sex-based discrimination, and that Defendants WKU, Caboni, and Anderson failed to properly intervene. Id.

         On October 17, 2018, Plaintiff served her First Set of Interrogatories and Requests for Production upon Defendant WKU. (Docket #25-1). On December 7, 2018, Plaintiff served an Amended 30.02 Corporate Representative Disclosure Notice upon Defendant WKU, which requested various documents be produced by the corporate representative in the deposition. (Docket #34-3). Defendant WKU objected to producing various items of discovery requested by Plaintiff, asserting broadly that FERPA excluded many items classified as “education records” from disclosure, and that the employment records of Brian Lee and Karl Laves were not within the scope of discovery. (Docket #29-2). Plaintiff filed her Motion to Compel (Docket #25), to which Defendant responded (Docket #29) and Plaintiff replied. (Docket #31).


         Legal Standard for Discovery

         Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense . . .” Fed.R.Civ.P. 26(b)(1). Relevance is to be “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on” any party's claim or defense. Albritton v. CVS Caremark Corp., No. 5:13-CV-00218-GNS-LLK, 2016 WL 3580790, at *3 (W.D. Ky. June 28, 2016) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citation omitted)). However, the scope of discovery is not unlimited. “On motion or on its own, the court must limit the frequency or extent of discovery . . . if it determines that . . . the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Id. (quoting Fed.R.Civ.P. 26(b)(2)(C)(iii)). The determination of “the scope of discovery is within the sound discretion of the trial court.” Cooper v. Bower, No. 5:15-CV-249-TBR, 2018 WL 663002 at *1 (W.D. Ky. Jan. 29, 2018), reconsideration denied, 2018 WL 1456940 (W.D. Ky. Mar. 22, 2018) (quoting Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981)).

         I. Objections to Interrogatories and Requests for Production Based on FERPA

         Defendant WKU objects to Interrogatories 2, 9, and 19, as well as Requests for Production 12, 13, 19, 27, 29, and 30, primarily based on FERPA. (Docket #29 at 4). The Court will address each objection in turn.

         a. Interrogatory 9: Communications between WKU Employees and Plaintiff Dahmer.

         Plaintiff seeks to compel Defendant to produce “as of September 1st, 2017 to the present date, any and all communications that occurred between WKU administrators, faculty, staff, and Plaintiff and any of the allegations raised in her Complaint.” (Docket #25-2 at 8). Defendant WKU has agreed to produce the documents responsive to this Interrogatory upon entry of a protective order. (Docket #29 at 7). An Agreed Protective Order was entered in this case on January 18, 2019. (Docket #30). This Agreed Protective Order covers a multitude of subjects, including statements obtained from Plaintiff Dahmer during her Title IX investigation, information and communications relating to and utilized by WKU's Title IX Committee, documents, materials, and communications contained in the WKU Office of Student conduct relating to complaints or allegations by Plaintiff Dahmer and her parents, as well as any communications regarding these complaints between Plaintiff Dahmer and the office, and emails between Plaintiff Dahmer and her parents and Defendants Caboni, Anderson, and Pride, as well as other WKU officials. (Id.).

         Good cause exists for the disclosure of this information under the Agreed Protective Order. As discussed in more detail below, student complaints about university employees are not protected from disclosure by FERPA.[1] However, the disclosure of these communications could breach the privacy of other WKU students who have made Title IX complaints, been the subject of investigation during Plaintiff's Title IX investigation, or could generally contain information about other WKU students. Given these issues, good cause exists for entry and disclosure under a protective order under Federal Rule of Civil Procedure 26(c)(1)(G). The Court finds that this information should be disclosed under the Agreed Protective Order.

         b. Interrogatories 2 and 19: Statements Obtained During WKU Title IX Investigation and Other Student's Complaints of Harassment/Gender Based Discrimination.

         Plaintiff seeks to compel Defendant to produce all other student complaints of sexual or gender-based discrimination in SGA and any documentation relating to those complaints, as well as any statements obtained by WKU during its Title IX investigations. (Docket #25 at 7, 10). Defendant objected, stating that any Title IX records, which would encompass any records fitting this description kept by Defendant WKU, are “education records” under FERPA, and are thereby shielded from disclosure. In response Plaintiff argues that these records are not those types of records protected by FERPA in this Circuit and that these records are relevant to prove an atmosphere of discrimination, as necessary for her Title IX claim. In the alternative, Plaintiff alleges that Defendant can now produce this information subject to the protective order entered on January 18, 2019. (Docket #30).

         Records of other complaints of sex-based or gender-based discrimination in the WKU SGA are relevant to Plaintiff's Title IX claim. To hold Defendant WKU liable under Title IX, Plaintiff must show Defendant was “deliberately indifferent to sexual harassment, of which they [had] actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to [have] deprive[d] the victim access to the educational opportunities or benefits provided by the school.” Davis v. Monroe Co. Bd. of Educ., 526 U.S. 629, 650 (1999). The Sixth Circuit has further explained that a Plaintiff seeking to prove discrimination based on sex must show that her “educational experience was ‘permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive [so as] to alter the conditions of the victim's' educational environment.” Doe v. Miami University, 882 F.3d 579, 590 (6th Cir. 2018); (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citations omitted)). To prove her case, Plaintiff must prove that a pervasive environment of sex-based discrimination existed in the WKU SGA that altered the conditions of her educational environment. These records are relevant to her claims.

         FERPA defines “education records” as documents which (i) contain information related directly to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. § 1232g(4)(A)(i-ii). Other district courts have held that “student witness statements are not governed by FERPA.” Ellis v. Cleveland Mun. Sch. Dist., 309 F.Supp.2d 1019, 1022 (N.D. Ohio 2004). Additionally, courts have held that:

[I]ncident reports relating to non-educational matters “are not educational records because, although they may contain names and other personally identifiable information, such records relate in no way whatsoever to the type of records which FERPA expressly protects; i.e., records relating to individual student academic performance, financial aid or scholastic probation which are kept in individual student files.”

Cummerlander v. Patriot Preparatory Academy, No. 2:13-CV-0329, 2013 WL 12178140 at *1 (S.D. Ohio Sept. 13, 2013) quoting Bauer v. Kincaid, 759 F.Supp. 575, 591 (W.D. Mo. 1991). Further, the Southern District of Ohio has found that the limitations on disclosure imposed by FERPA do not apply to production of documentation relating to student complaints of sexual harassment against a particular employee. Briggs v. Board of Trustees of Columbus State Community College, No. 2:08-CV-644, 2009 WL 2047899 at *5 (S.D. Ohio July 8, 2009); see also Klein Ind. Sch. Dist. v. Mattox, 830 F.2d 536, 579 (5th Cir. 1987) (“Excluded from FERPA's protections are records relating to an individual who is employed by an educational agency or institution.”).

         The records Plaintiff requests are not “educational records” of the type FERPA seeks to protect from disclosure. These records contain no information relating to student academic performance, financial aid, or scholastic probation. These are records of fact and discipline against individuals associated with the institution. It is difficult to believe that the lawmakers who passed FERPA into law sought to prevent disclosure information that could be used to prove claims of gender-based discrimination, nor did they likely believe that their votes would lump these sorts of disciplinary records in the same protective scheme with academic records. In fact, the record indicates that “FERPA's legislative history indicates that it is principally a right to privacy of educational records act.” Klein, 830 F.2d at 580, (quoting ...

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