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COMPLAINT

JURY TRIAL REQUESTED

For his Complaint against the Defendant Macalester College, the plaintiff Joel Kaden states as follows:

PRELIMINARY STATEMENT
1. This is a case brought by Joel Kaden, formerly Head Coach of the Women's Softball Team and Head Athletic Trainer at Macalester College, seeking compensation from Macalester College because Macalester retaliated against him for exercising his protected rights to oppose its discriminatory and unlawful acts. Mr. Kaden brings this case against Macalester College under the Minnesota's Human Rights Act, Minn. Stat. § 363.03; Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (hereafter "Title IX") and the implementing regulations promulgated thereunder; Minnesota's Whistleblower Act, Minn. Stat. § 181.932; and Minnesota's common law prohibiting breach of contract. Mr. Kaden was illegally fired as a result of complaining about and/or assisting in the investigation of gender inequities in Macalester College's athletics program and gambling activities within Macalester's athletic department coaching staff.

PARTIES
2. Plaintiff Mr. Kaden is a Minnesota resident, who resides at 883 Westview Drive, in the City of Shoreview, in Ramsey County, in the State of Minnesota.
3. Defendant Macalester College ("Macalester") is a Minnesota corporation and a private institution of higher education located at 1600 Grand Avenue, in the City of St. Paul, in Ramsey County, in the State of Minnesota. Kenneth Andrews is the former Athletic Director at Macalester. At all relevant times herein described, Mr. Andrews was Mr. Kaden's reporting supervisor. Michael S. McPherson is currently President of Macalester College, having succeeded Robert Gavin in 1996. At all relevant times herein described, Mr. McPherson or Mr. Gavin was Kenneth Andrew's reporting supervisor and responsible for the management of the athletic department.

VENUE AND JURISDICTION
4. Venue is proper in Ramsey County Court because Defendant Macalester's principal place of business is in Ramsey County. This Court has jurisdiction because Macalester's unlawful and retaliatory conduct occurred in Ramsey County.

FACTUAL BACKGROUND
5. Macalester provides a four-year college program leading to bachelors degrees in a variety of disciplines. Upon information and belief, Macalester receives federal financial assistance.
6. Mr. Kaden is 37 years old. He has a degree in sports medicine and is certified by the National Athletic Trainers Association and the State of Minnesota Board of Medical Practice. Joel Kaden was contractually employed by Macalester as a coach and trainer over a period of six and one-half years, from August 1991 to January 1998. During the course of his employment with Macalester, Mr. Kaden's performance was equal to or superior to that of all other coaches in the Athletic Department. Until Mr. Kaden expressed concerns to Macalester's administration about the inequities between the men's baseball and women's softball programs and about illegal gambling by other Macalester coaches, Mr. Kaden consistently received exemplary performance evaluations.
7. In August 1991, Mr. Kaden was hired as Head Women's Softball Coach and Assistant Men's Football Coach in the Macalester Athletic Department. In 1992, Mr. Kaden was promoted to Head Athletic Trainer while retaining the positions of Head Women's Softball Coach and Assistant Men's Football Coach. In 1995, Macalester withdrew Mr. Kaden's men's football coaching responsibilities, but he continued to coach women's softball and to serve as Macalester's Head Athletic Trainer. Mr. Kaden held these two positions until Macalester began retaliating against him for his participation in protected activities.
8. In November 1995, Mr. Kaden prepared and presented to Kenneth Andrews, Macalester's former Athletic Director, a document addressing Macalester's noncompliance with Title IX's gender equity mandates (hereafter referred to as the "Title IX Document"). The Title IX Document addressed, among other things, the disparities between the men's baseball and women's softball programs. For example, the Title IX Document noted disparities in the men's baseball and women's softball teams facilities. The Title IX Document reported that the women's softball team did not have the following facilities provided to the men's baseball team, including: a regulation backstop; dugouts; a storage shed for equipment; and an electronic scoreboard. The Title IX Document also reported disparities in the locker room space available to Macalester's male and female athletes.
9. In November 1995, Mr. Kaden discussed the issues raised in the Title IX Document with Kenneth Andrews, focusing primarily on the inequities between the women's softball and men's baseball programs. Athletic Director Kenneth Andrews admitted to Mr. Kaden that Macalester College was not in compliance with Title IX. Mr. Andrews also told Mr. Kaden to drop the Title IX issue.
10. Following the discussion of the Title IX Document with Mr. Andrews, Mr. Kaden continued to try to remedy Macalester's Title IX gender inequities by talking to Kenneth Andrews about Macalester's failure to provide the women's softball team with facilities comparable to those provided to the men's baseball team. After receiving similar gender inequity complaints from members of the women's softball team, Kenneth Andrews accused Mr. Kaden of instigating the softball players' complaints.
11. In April 1996, approximately five months after Mr. Kaden presented the Title IX Document to Kenneth Andrews, Mr. Kaden received a memorandum from Mr. Andrews criticizing Mr. Kaden's performance and informing Mr. Kaden that his position was going to be restructured for the 1996-97 academic year. The restructuring included removing Mr. Kaden as Head Athletic Trainer and forcing Mr. Kaden to move from his office in the college's training room to an upstairs cubicle. After he was demoted, Mr. Kaden was permitted to serve as trainer for only the softball and football teams.
12. Prior to April 1996, Mr. Kaden had never received a negative performance evaluation from Macalester, and he had always received merit-based salary increases indicating satisfactory or above-average performance.
13. After April 1996, Mr. Kaden continued to urge Kenneth Andrews to remedy Macalester's failure to provide the women's softball and men's baseball programs with comparable facilities. Mr. Kaden continued to address the issues first raised in the Title IX document, as well as Macalester's failure to provide the women's softball team with dugouts, an outdoor batting cage, fences around their playing field, and appropriate practice sites and times.
14. Because of Mr. Kaden's continued attempts to remedy Macalester's noncompliance with Title IX, Macalester removed Mr. Kaden as the Athletic Trainer for the women's softball team he coached, and Macalester promoted a less qualified and less experienced person over him. Macalester also provided Mr. Kaden with a merit-based salary increase commensurate with an unsatisfactory performance, and the school gave him additional negative performance evaluations generated by Kenneth Andrews.
15. Kenneth Andrews' negative performance evaluations were generated in spite of Mr. Kaden's competent, and frequently outstanding, performance. During the course of Mr. Kaden's employment, he transformed the women's softball team from a losing to a winning team, posting three winning seasons in a row. As Head Athletic Trainer, Mr. Kaden also transformed Macalester's sports medicine program into a successful one.
16. On July 24, 1997, a Title IX complaint against Macalester was filed with the U.S. Department of Education's Office of Civil Rights ("the OCR"). The complaint alleged that Macalester was discriminating against the women's softball team by failing to provide the women's team with facilities comparable to those it gave to the men's baseball team. The OCR complaint also alleged that Macalester retaliated against Mr. Kaden by restructuring his job as a result of his confronting Kenneth Andrews with Macalester's Title IX violations and fighting for equal treatment for the women's softball team.
17. Mr. Kaden assisted and participated in the OCR's investigation of the Title IX complaint.
18. In October 1997, Macalester received notice from the OCR that a Title IX complaint had been filed against it. The OCR notification did not indicate to Macalester who had filed the Title IX complaint. Upon information and belief, the Defendant believed Mr. Kaden filed or was otherwise involved in investigation of the Title IX complaint.
19. Also in October 1997, Mr. Kaden met with Macalester's attorney. The attorney was investigating an allegation reported by Kenneth Andrews to the National Collegiate Athletic Association ("NCAA") that some coaches in Macalester's Athletic Department had violated the NCAA's prohibition against gambling. Though not personally involved in the prohibited betting incidents, Joel Kaden witnessed the incidents firsthand and informed Macalester's attorney of what he had seen and heard. Mr. Kaden's account contradicted Macalester's official report of these events, and his account was more damaging to Macalester than its own report.
20. In December 1997, Mr. Kaden met with Macalester's President, Michael S. McPherson, and expressed frustration over Macalester's account of the gambling incidents reported to the NCAA. Mr. Kaden shared his account of the incidents with Mr. McPherson and informed McPherson that Macalester's official account was inaccurate.
21. Also in December 1997, Mr. Kaden complained to Kenneth Andrews about the inequities in Macalester's Athletic Department's indoor practice schedule for the women's softball program, as compared with the men's baseball program.
22. Following his December 1997 meeting with Macalester's President McPherson, and Kaden's criticism of Macalester's indoor practice schedule, Mr. Kaden received another negative performance evaluation from Kenneth Andrews.
23. On January 15, 1998, Macalester College signed a Settlement Agreement with the OCR to resolve the allegations of discrimination in the Title IX complaint, but not the allegations of retaliation against Mr. Kaden.
24. Macalester fired Mr. Kaden on January 20, 1998, notwithstanding that his contract for employment with Macalester covered the period from September 1, 1997 to August 31, 1998. Macalester's termination of Mr. Kaden's employment was unlawful and in retaliation for his having exercised his right to engage in protected activities. At that same time, Macalester presented to Mr. Kaden a Separation Agreement that offered him a small amount of money in exchange for Mr. Kaden agreeing, among other things, to release his Title IX retaliation claims and all other claims he might have against Macalester. The Separation Agreement also contained a confidentiality provision that would have prohibited Mr. Kaden from talking with government officials, the media and others about his termination and his belief that the defendants had engaged in wrongful, discriminatory and/or tortious conduct toward him. Mr. Kaden refused to sign the Separation Agreement.
25. Macalester's actions were intentional, willful and wanton, in deliberate disregard of Mr. Kaden's rights. The actions were intended to cause, and did directly cause, Mr. Kaden great damages, including severe humiliation and mental pain and anguish, damage to his professional reputation, loss of past and future income, lost earning capacity, and other damages and expenses. Mr. Kaden will move at a later date to add a punitive damages count.

COUNT ONE
Violation of Minnesota's Human Rights Act
(Minn. Stat. § 363.03)

26. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1 through 25 as if fully set forth herein.
27. Mr. Kaden reported to Macalester, in good faith, gender inequities which violate Minn. Stat. § 363.03, Subd. 5(1). That statute provides that "[it] is unfair discriminatory practice [for an educational institution]: (1) to discriminate in any manner in the full utilization of or benefit from any educational institution, or the services rendered thereby to any person because of . . . sex."
28. Macalester fired Mr. Kaden because he opposed and reported a practice forbidden by Minn. Stat. § 363.03.
29. Macalester's termination of Mr. Kaden was impermissible discrimination and reprisal under Minn. Stat. § 363.03, Subd. 7(1).
30. By virtue of the foregoing, Macalester has violated Minn. Stat. § 363.03 directly causing Mr. Kaden great damages and is therefore liable to Joel Kaden in an amount greater than Fifty Thousand Dollars ($50,000). Mr. Kaden's damages include damage to his professional reputation, tremendous mental pain and anguish, loss of income in the past and future, lost earning capacity, and other damages and expenses.

COUNT TWO
Title IX - Retaliation
(20 U.S.C. § 1681 et seq. and 34 C.F.R. § 100.7)

31. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1 through 30, as if fully set forth herein.
32. Beginning in November 1995, Mr. Kaden complained about the inequities between the women's and men's athletic programs at Macalester, focusing primarily on the inequitable allocation of facilities between the women's softball and men's baseball teams. From that time forward, Mr. Kaden repeatedly voiced opposition to Macalester's discriminatory treatment of the women's softball program and sought to have Macalester remedy that illegal conduct.
33. Mr. Kaden's opposition to Macalester's discriminatory treatment of the women's softball program included:
(a) Presenting the Title IX Document to Kenneth Andrews that addressed Macalester's noncompliance with Title IX's gender equity mandates;
(b) Discussing the inequitable allocation of facilities between the women's softball and men's baseball programs with Kenneth Andrews and other members of the Athletic Department on a periodic basis, and repeatedly requesting that Kenneth Andrews and Macalester correct these gender inequities;
(c) Supporting similar Title IX complaints vocalized by members of the women's softball team; and
(d) Assisting and participating in the OCR's investigation of the Title IX complaint filed against Macalester.
34. As a result of Mr. Kaden engaging in protected activities to oppose Macalester's discriminatory treatment of the women's softball program, Mr. Kaden has been the victim of reprisal and retaliatory actions by the joint and several acts of the Defendant and its agents, which include, but are not limited to, the following wrongful acts:
(a) Removing Mr. Kaden from his position of Head Athletic Trainer, and promoting a less qualified and less experienced person to take his place;
(b) Removing Mr. Kaden as the athletic trainer for the women's softball team;
(c) Forcing Mr. Kaden to move out of his office into a cubicle;
(d) Providing Mr. Kaden with a series of unwarranted, negative performance evaluations, despite Mr. Kaden's competent, and frequently outstanding, performance;
(e) Providing Mr. Kaden with annual salary increases that were not commensurate with his performance; and
(f) Terminating him.
35. In retaliation for Mr. Kaden's opposition to Macalester's policy and practice of discriminating against women's athletics in general, and women's softball in particular, Macalester intentionally and maliciously created an intimidating and hostile work environment. And, Macalester subjected Mr. Kaden to embarrassment and humiliation. All of Macalester's unlawful and intentional retaliatory acts were committed in violation of Title IX and its implementing regulations as a result of Mr. Kaden's opposition to what he reasonably believed were discriminatory practices based on gender.
36. Macalester willfully and with malice retaliated against Mr. Kaden. Macalester's unlawful and intentional acts were committed with malice and/or deliberate disregard for Mr. Kaden's rights, with specific intent to injure Mr. Kaden and to damage or destroy his professional career. Macalester's actions directly caused injury to Mr. Kaden, including damage to his professional reputation, mental anguish, loss of income in the past and future, lost earning capacity, and other damages.
37. By reason of the foregoing, Macalester has violated Title IX of the Education Amendments of 1972 and its implementing regulations promulgated thereunder. Macalester is therefore liable to Mr. Kaden for all his damages in an amount greater than Fifty Thousand Dollars ($50,000).

COUNT THREE
Violation of Minnesota's "Whistleblower" Act
(Minn. Stat. § 181.932)

38. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs 1 through 37, as if fully set forth herein.
39. In October 1997, and again in December 1997, Mr. Kaden, in good faith, reported to Macalester two suspected violations by Macalester coaches of the NCAA's rules against gambling which are also violations of Minn. Stat. § 609.825 that prohibits gambling by coaches on sporting events in which one or more of them is a participant.
40. Macalester wrongfully terminated Mr. Kaden's employment, at least in part, because he reported suspected NCAA violations which are also violations of state law, Minn. Stat. § 609.825.
41. Macalester's wrongful termination of Mr. Kaden was impermissible retaliation under Minn. Stat. § 181.932, Subd. 1(a) ("Whistleblower Act"), which prohibits "[the] discharge, discipline, threaten[ing] . . . discriminat[ion] against, or penaliz[ing] [of] an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because (a) the employee, or a person acting on behalf of an employee, in good faith, reports a violation or suspected violation of any federal or state law . . . to an employer. . . ."
42. By virtue of the foregoing, Macalester has directly caused damage to Mr. Kaden as described above, in violation of Minn. Stat. § 181.932, Subd. 1(a), and is liable to Mr. Kaden for all of his damages (as described herein) in an amount greater than Fifty Thousand Dollars ($50,000).

COUNT FOUR
Breach of Contract

43. Plaintiff repeats and re-alleges each and every allegation contained in paragraph 1 through 42, as if fully set forth herein.
44. Upon information and belief, every year that Mr. Kaden was employed with Macalester he received a letter from Macalester indicating the terms of his contract for the following year. In May 1997, Mr. Kaden received a letter from Macalester's Human Resources Department indicating that his employment with Macalester would continue for the next year: nine months full-time and three months part-time. In return for his continued work, Macalester stated that it would compensate Mr. Kaden at an annualized full-time rate of $39,868.18.
45. Mr. Kaden accepted Macalester's offer of employment for the 1997-98 academic year by reporting to work and faithfully completing his duties until Macalester unlawfully fired him on January 20, 1998. Mr. Kaden was fired seven months before his contract expired.
46. By virtue of the foregoing, Macalester directly damaged Mr. Kaden through breach of contract and is liable to Mr. Kaden in an amount greater than Fifty Thousand Dollars ($50,000).

WHEREFORE, Mr. Kaden requests that this Court:
1. Enter judgment in favor of Mr. Kaden and against Macalester as follows:
ON THE FIRST COUNT: awarding (a) full and fair compensatory damages in an amount greater than Fifty Thousand Dollars ($50,000), the precise amount of which will be determined at trial; (b) treble damages as specified in Minn. Stat. § 363.071, Subd. (2); (c) an order for Macalester to cease and desist from its unfair, discriminatory and retaliatory practices and to take affirmative action in order to effectuate the purposes of the Minnesota Human Rights Act; (d) a civil penalty to be paid to the State of Minnesota; and (e) reasonable attorneys' fees, costs and disbursements, and interest.
ON THE SECOND COUNT: awarding (a) full and fair compensatory damages in an amount greater than Fifty Thousand Dollars ($50,000), the precise amount of which will be determined at trial; and (b) reasonable attorneys' fees, costs and disbursements, and interest.
ON THE THIRD COUNT: awarding (a) full and fair compensatory damages in an amount greater than Fifty Thousand Dollars ($50,000), the precise amount of which will be determined at trial; and (b) reasonable attorneys' fees, costs and disbursements, and interest.
ON THE FOURTH COUNT: awarding (a) compensatory damages in an amount greater than Fifty Thousand Dollars ($50,000), the precise amount of which will be determined at trial; (b) consequential damages in an amount greater than Fifty Thousand Dollars ($50,000), the precise amount of which will be determined at trial; and (c) prejudgment interest.
2. Grant such further or different relief as the Court deems just and equitable.

Dated this __ day of , 1999.
TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C., AND ITS COOPERATING COUNSEL,

By:_____________________________________
Thomas J. Conlin (#139555)
Martha K. Wivell (#128090)
J. Sebastian Stewart (#0272383)

ROBINS, KAPLAN, MILLER & CIRESI L.L.P.
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402-2015
(612) 349-8500

Jerry A. Burg (#214255),

JOHNSON, GULLING, HELTZER & BURG, P.L.C.
930 Plymouth Building
12 South Sixth Street
Minneapolis, MN 55402
(612) 335-3605

and

Adele P. Kimmel,

TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.
1717 Massachusetts Avenue, N.W., Suite 800
Washington, D.C. 20036
(202) 797-8600

ATTORNEYS FOR PLAINTIFF JOEL KADEN
ACKNOWLEDGMENT REQUIRED BY
MINN. STAT. § 549.21, SUBD. 2

The undersigned hereby acknowledges that, pursuant to Minn. Stat. § 549.21, Subd. 2, costs, disbursements and reasonable attorney and witness fees may be awarded to the opposing party or parties in this litigation if the Court should find the undersigned acted in bad faith, asserted a claim or defense that is frivolous and that is costly to the other party, asserted an unfounded position solely to delay the ordinary course of the proceedings or to harass, or committed a fraud upon the Court.

Dated this ___ day of , 1999.

TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C., AND ITS COOPERATING COUNSEL,

By:_____________________________________
Thomas J. Conlin (#139555)
Marth K. Wivell (#128090)
J. Sebastian Stewart (#0272383)

ROBINS, KAPLAN, MILLER & CIRESI L.L.P.
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402-2015
(612) 349-8500

Jerry A. Burg (#214255)
JOHNSON, GULLING, HELTZER & BURG, P.L.C.
930 Plymouth Building
12 South Sixth Street
Minneapolis, MN 55402
(612) 335-3605

Adele P. Kimmel
TRIAL LAWYERS FOR PUBLIC JUSTICE, P.C.
1717 Massachusetts Avenue, N.W., Suite 800
Washington, D.C. 20036
(202) 797-8600

ATTORNEYS FOR PLAINTIFF JOEL KADEN