Former Kent State softball coach Karen Linder petitioned the U.S. District Court to dismiss all claims against her in a lawsuit filed in February by former softball player Lauren Kesterson.

Linder argues the claims should be dismissed on four grounds: Kesterson fails to state a plausible claim of being deprived of equal protection; Linder is protected by qualified immunity from Kesterson’s claim of civil damages; Kesterson’s civil claim against Linder for intentional infliction of emotional distress is inapplicable because—as a Kent State employee—Linder is immune to such claims; and the U.S. District Court lacks jurisdiction over state law claims.

Kesterson’s lawsuit, filed in the U.S. District Court, claims the university and Linder violated her Title IX rights, which prohibits discrimination on the basis of sex in any education program or federally funded activity.

Kesterson’s lawsuit also states she was raped by Linder’s son, Tucker Linder, a former Kent State baseball player. It alleges Kesterson reported the rape to Karen Linder, who insisted Kesterson tell no one and promised to take care of the situation, but instead engaged in a cover-up and retaliated against Kesterson for reporting the rape.

The response said Kesterson makes three claims in the lawsuit: the first against Kent State for alleged sex discrimination and retaliation under Title IX; the second against both Kent State and Linder for the alleged denial of equal protection under the Fourteenth Amendment of the United States Constitution; the third is a state law claim against Karen Linder for intentional infliction of emotional distress.

According to Linder’s response, the Sixth Circuit recognizes two types of equal protection in the education setting:

• Disparate treatment based on gender or other membership in a recognized class.

• In elementary or secondary education, when teachers or administrators are aware of a student’s severe, pervasive race or sex-based mistreatment, but fail to take action to prevent or stop the abuse.

Linder’s response states the first type of equal protection violation required Kesterson to prove that Linder treated her complaint of the alleged sexual assault differently than she would have treated a similar complaint by a man. The motion says Kesterson’s complaint lacks evidence that Linder treated Kesterson disparately based on her gender.

The response also states the only thing Linder did not do was follow Kent State policy and report Kesterson’s allegation of sexual assault to the Kent State Title IX coordinator. The motion to dismiss argues Linder was negligent, but a plaintiff must show more than negligence to establish “deliberate indifference.”

The response states a claim doesn’t fall under Title IX for deliberate indifference when misconduct is reported after the fact. According to Kesterson’s complaint, Linder was not aware of Tucker’s conduct toward Linder until such conduct ceased and there remained no ongoing threat to Kesterson.

According to Linder’s response, there was no evidence to suggest that Tucker acted inappropriately toward Kesterson in the 18 months between the alleged assault and Kesterson’s lawsuit. Linder argues there was nothing she could do to rectify the situation.

The response also states because Kesterson hasn’t made a substantial claim of an equal protection deprivation, her claim should be dismissed. Kesterson claims Linder retaliated against her for reporting the alleged sexual assault, but the response argues retaliation claims don’t fall under the the Equal Protection Clause.

The motion for dismissal also states there are two general steps to the qualified analysis:

• Whether the facts that a plaintiff has alleged make out a violation of a constitutional right.

• Whether the right at issue was “clearly established” at the time of the defendant’s misconduct.

According to the response, Linder is entitled to qualified immunity “because Kesterson has not sufficiently alleged a violation of a constitutional right.” It argues that Kesterson does not allege being treated differently by Linder than similarly situated males and does not establish Linder was deliberately indifferent; therefore Kesterson does not sufficiently allege an equal protection violation.

Kesterson claims Linder intentionally inflicted emotional distress as an individual. The motion to dismiss argues that because Linder was a state employee as coach at Kent State, acting within the scope of her responsibility, she is entitled to immunity.

Linder’s response maintains that the Court of Claims has the sole responsibility to determine whether a state employee’s immunity is lost— not the U.S. District Court in which the suit is filed.

To read about the university’s response to the lawsuit, click here.

Ian Klein contributed reporting.

Ian Flickinger is the senior editor of The Kent Stater. Contact him at [email protected]. Richie Mulhall is a sports reporter for The Kent Stater. Contact him at [email protected].