The opinion of the court was delivered by: Thomas W. Phillips United States District Judge
This is an action brought by plaintiffs to recover damages for alleged discrimination and retaliatory harassment in violation of 20 U.S.C. § 1681 (Title IX) and 42 U.S.C. §§ 1983 and 1985. Defendant City of Oak Ridge has moved for summary judgment stating that plaintiffs have failed to state a claim for which relief can be granted against the City. Defendants Billy Casper Golf Management, Inc., Oak Ridge Management, Inc., Michael Cutler and Michael Shearer (Casper defendants) have moved to dismiss the claims against them because they are not "state actors" for purposes of § 1983 liability. Plaintiffs contend that the City violated the minor plaintiffs' constitutional/statutory rights; and that after the plaintiffs filed this lawsuit, the City and Casper defendants violated their First Amendment right to seek redress for their grievances by retaliating against them. For the reasons which follow, the defendants' motions will be denied.
A motion to dismiss under Rule 12(b)(6), Federal Rules of Civil Procedure, requires the court to construe the complaint in the light most favorable to the plaintiff, accept all the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of her claims that would entitle her to relief. Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir.) cert. denied, 498 U.S. 867 (1990). The court may not grant such a motion to dismiss based upon a disbelief of a complaint's factual allegations. Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990); Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995) (noting that courts should not weigh evidence or evaluate the credibility of witnesses). The court must liberally construe the complaint in favor of the party opposing the motion. Id. However, the complaint must articulate more than a bare assertion of legal conclusions. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434 (6th Cir. 1988). "[The] complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Id. (citations omitted).
Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment will be granted by the court only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to conclusively show that no genuine issue of material fact exists. The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Morris to Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1987); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943 (6th Cir. 1990); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). Once the moving party presents evidence sufficient to support a motion under Rule 56, Federal Rules of Civil Procedure, the non-moving party is not entitled to a trial simply on the basis of allegations. The non-moving party is required to come forward with some significant probative evidence which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); White, 909 F.2d at 943-44. The moving party is entitled to summary judgment if the non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof. Celotex, 477 U.S. at 323; Collyer v. Darling, 98 F.3d 220 (6th Cir. 1996).
On March 10, 2006, plaintiffs filed their original complaint against defendants alleging that defendants knowingly and intentionally excluded female students from participation in school sponsored golf teams. Defendant City filed its motion for summary judgment asserting that the City is a separate legal entity, alone and apart from the Oak Ridge Board of Education, and that the City has no duty, responsibility or obligation towards the operation of the City of Oak Ridge school system. Thus, any claim against any employee of the Oak Ridge Board of Education does not properly include the City and the City is entitled to judgment as a matter of law.
Subsequent to the filing of the City's motion, plaintiffs moved for leave to amend their complaint, which leave the court granted. Plaintiffs' revised supplemental and restated complaint adds new causes of action that have arisen since the filing of their original complaint. The revised complaint states that plaintiffs purchased a lot and constructed a home next to Centennial Golf Course where they could use a private golf cart. Specifically, plaintiffs' revised complaint alleges:
13. Defendant City of Oak Ridge, Tennessee owns Centennial Golf Course in Oak Ridge, Tennessee.
14. Defendant Billy Casper Golf Management, Inc., manages and operates Centennial Golf Course in Oak Ridge, Tennessee pursuant to a written contract with defendant City of Oak Ridge, Tennessee.
15. On information and belief, defendant Billy Casper Golf Management, Inc., has delegated to defendant Oak Ridge Management, Inc., certain duties for operation or management of Centennial Golf Course.
. . . 99. Defendant Michael Shearer told plaintiffs that private golf cart approval would have to come from the Oak Ridge City Manager, James O'Connor.
100. Plaintiff Delisa Simpson-Schubert met with defendant James O'Connor during March of 2005 and discussed this matter.
101. Thereafter, defendant James O'Connor sent plaintiffs an e-mail assuring them that the City did not intend to deny their request to use a private golf cart and that the City's concerns for liability and revenue issues had been addressed.
102. In April of 2005, defendant Michael Shearer posted at the club house a written policy ...