UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

KIMBERLY A. HIVELY

Plaintiff,

v.

IVY TECH COMMUNITY COLLEGE,

Defendant.

CAUSE NO. 3:14-CV-1791

PLAINTIFF’S SECOND AMENDED COMPLAINT

This is an action under Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 

2000e-5) and for equal rights under law (42 U.S.C. § 1981), to correct unlawful employment 

practices on the basis of sex, and to provide appropriate relief to Plaintiff Kimberly Hively. As 

alleged with greater particularity in paragraphs 6-19 below, Plaintiff alleges that Defendant, Ivy

Tech Community College (“Ivy Tech”) denied her full-time employment and promotion, and 

terminated her based on her sexual orientation. 

PARTIES 

1. The Plaintiff is Kimberly A. Hively. Her address is 1112 S. 25th St., South Bend,

IN 46615, and her telephone number is (574) 232-7986.

2. The Defendant is Ivy Tech Community College. Ivy Tech is located at 220 Dean

Johnson Blvd., South Bend, IN 46601. The Defendant has appeared in this case, and thus no 

further service of process is required.

USDC IN/ND case 3:14-cv-01791-JD-MGG document 61 filed 05/08/18 page 1 of 7
2

BASIS OF CLAIMS AND JURISDICTION 

3. This action is brought for employment discrimination pursuant to Title VII of the 

Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17, and equal rights under 

Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §1981a. 

4. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331 and 1343(a).

5. This case is on remand from the United States Court of Appeals for the Seventh 

Circuit. There is no dispute at this point about jurisdiction or venue.

STATEMENT OF CLAIMS

6. Kim Hively is a woman. She is a private person. Her sexual orientation is 

homosexual.

7. Plaintiff began teaching as a part-time adjunct professor at Ivy Tech Community 

College (“Ivy Tech”) in South Bend, Indiana in 2000. 

8. Plaintiff received a master’s degree in liberal studies from Indiana State University 

in 2011, with hopes to advance her career with Ivy Tech. Upon earning her master’s degree, Ivy 

Tech concluded that Ms. Hively met Ivy Tech’s credential criteria to teach all math courses. The 

School Dean and Vice Chancellor of Academic Affairs signed the credentialing evaluation. 

9. In her time at Ivy Tech, Plaintiff has consistently received high performance 

reviews as an adjunct professor, as well as positive student-evaluations. In 2011-2012, Plaintiff

received an award for Excellence in instruction. In 2014, she received praise from Dean James 

Powell in a written recommendation. 

10. In 2009, Plaintiff and her partner were reported to have been kissing in the parking 

lot at Ivy Tech. Subsequently, Ivy Tech called Plaintiff to inform her of the report, and to remind 

her of her “professionalism,” notwithstanding that public displays of affection at Ivy Tech were 

USDC IN/ND case 3:14-cv-01791-JD-MGG document 61 filed 05/08/18 page 2 of 7
3

common (e.g., “kiss good-bye,” hand-holding, etc.) among men in relationships with women who 

conformed to Ivy Tech’s gender norms. Plaintiff, however, was reprimanded by the office of 

Academic Affairs because Plaintiff was female and because she was not conforming with Ivy 

Tech’s gender norms. In 2011-2012, Plaintiff won the Adjunct Faculty Award for Excellence in 

Instruction, and was nominated for an additional teaching award. She had good reviews and 

positive student evaluation throughout her tenure. 

11. Plaintiff had applied for at least six positions with Ivy Tech. She was not 

recommended for hire for a single teaching or administrative position she applied for over a fiveyear period beginning in 2009. 

12. Moreover, despite several applications, Plaintiff was never offered full-time 

employment.

13. On December 10, 2013, Plaintiff filed a sex discrimination charge regarding these 

adverse employment actions, which was presented to the Equal Employment Opportunity 

Commission (the “EEOC”). In that charge, she asserted that she was “being discriminated against 

based on [her] sexual orientation.”

14. After having taught at Ivy Tech for more than thirteen years, administrators at Ivy 

Tech began to scrutinize Ms. Hively’s credentials in June of 2014 after she filed her EEOC 

complaint and had applied for another job. Ms. Hively was not subjected to a credentialing review 

for any application prior to her 2013 EEOC charge. On information and belief, the credentialing 

review was a pretext for Ivy Tech to justify its decision to not renew Ms. Hively’s part-time 

employment contract in July 2014. 

15. Ivy Tech’s aforementioned decision to single Ms. Hively out for a credentialing 

review was an act of retaliation. Namely, the credentialing review was an adverse employment 

USDC IN/ND case 3:14-cv-01791-JD-MGG document 61 filed 05/08/18 page 3 of 7
4

action that occurred after Ms. Hively lodged her charge with EEOC alleging discrimination. Ivy 

Tech initiated the credentialing review despite the fact that Ms. Hively’s credentials had not 

changed except for successfully completing more teaching assignments since her 2011 

credentialing, receiving more positive reviews, and receiving a teaching award. Ivy Tech’s 

retaliatory conduct is prohibited by Title VII. 42 UCSC § 2000e-3. 

16. Ivy Tech’s aforementioned decision to not renew Plaintiff’s contract in the summer

of 2014 was motivated by her prior filing a complaint with the EEOC.

17. Ivy Tech’s aforementioned decision to not promote or renew Plaintiff’s contract

was motivated by Plaintiff’s sex, including her failure to conform to the female gender stereotypes 

given her sexual orientation toward other women. By discriminating against Plaintiff for failing 

to conform to the female stereotype, and by discriminating against her based on conduct it allowed 

men to engage in, Ivy Tech engaged in unlawful gender stereotyping that falls within Title VII’s 

prohibition against sex discrimination. Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339, 

346 (7th Cir. 2017), as well as sexual discrimination in favor of men. 

18. Ivy Tech’s aforementioned decision to not promote or renew Plaintiff’s contract

was motivated by Plaintiff’s sex and sexual orientation. Ivy Tech did not take adverse action 

against men who were attracted to, dating, or living with women. Ivy Tech has disadvantaged 

Plaintiff because she did not conform to gender stereotypes and norms about women, was treated 

less favorably than men who were attracted to women, and she has experienced “paradigmatic sex 

discrimination” under Title VII. Id. 

19. Ivy Tech took adverse action against Plaintiff based on her association and

relationship with another woman. Plaintiff would not be suffering the adverse actions against her, 

had her sex been different. Ivy Tech’s decision not to promote or renew Plaintiff’s contract 

USDC IN/ND case 3:14-cv-01791-JD-MGG document 61 filed 05/08/18 page 4 of 7
5

because of her association with another woman is prohibited sex discrimination under Title VII. 

Id. at 348-349.

20. The effect of the practices described in paragraphs 6-19 above have been to

deprive Plaintiff of equal employment opportunities and otherwise adversely affect her status as 

an employee because of her sex. 

21. The unlawful employment practices complained of in paragraphs 6-19 above were

intentional. 

22. The unlawful employment practices complained of in paragraphs 6-19 above were

done with malice or with reckless indifference to Kim Hively’s federally protected rights. 

PRAYER FOR RELIEF 

Wherefore, Plaintiff respectfully requests that this Court: 

23. Order Ivy Tech to make Kim Hively whole, by providing appropriate back-pay with

prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary 

to eradicate the effects of its unlawful employment practices.

24. Order Ivy Tech to make Kim Hively whole by providing compensation for past and

future pecuniary losses resulting from the unlawful employment practices described in paragraphs 

6-19 above, such as debt-related expenses, job search expenses, medical expenses, and other

expenses incurred by her, which were reasonably incurred as a result of Defendant’s conduct, in 

the amounts to be determined at trial. 

25. Order Ivy Tech to make Kim Hively whole by providing compensation for past and

future non-pecuniary losses resulting from the unlawful employment practices complained of in 

USDC IN/ND case 3:14-cv-01791-JD-MGG document 61 filed 05/08/18 page 5 of 7
6

paragraphs 6-19 above, including emotional pain, suffering, inconvenience, loss of enjoyment of

life, and humiliation, the amounts to be determined at trial. 

26. Order Ivy Tech to pay Kim Hively punitive damages for its malicious and reckless

conduct described in paragraphs 6-19 above, in amounts to be determined at trial.

27. Award Kim Hively attorneys’ fees, expenses and costs for this action.

Date: January 22, 2018 Respectfully submitted,

FISH & RICHARDSON P.C.

/s/ Raisa Ahmad

Danielle J. Healey

healey@fr.com

TBA No. 09327980

SD Texas ID No. 35021

Karrie H. Wheatley

wheatley@fr.com

TBA No. 24098605

Raisa Ahmad

ahmad@fr.com

TBA No. 24101437

1221 McKinney Street, Suite 2800

Houston, Texas 77010

Telephone: 713-654-5300

Facsimile: 713-652-0109

Daniel H. Pfeifer 

dpfeifer@pilawyers.com

IBA No. 5720-71 

Pfeifer Morgan & Stesiak 

53600 North Ironwood 

Road South Bend, Indiana 

46635 Telephone: 

574-272-2870 Facsimile: 

574-271-4329 

ATTORNEYS FOR PLAINTIFF

USDC IN/ND case 3:14-cv-01791-JD-MGG document 61 filed 05/08/18 page 6 of 7
7

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the above and foregoing 

document is being served via email to all counsel of record this 22nd day of January 2018, to the 

following addresses: 

Jason T. Clagg 

Email: jason.clagg@btlaw.com

Adam L. Bartrom 

Email: adam.bartrom@btlaw.com

Telephone: (260) 423-9440

Facsimile: (260) 424-8316

BARNES & THORNBURG LLP 

888 S. Harrison Street, Suite 600

Fort Wayne, IN 46802-2206

ATTORNEYS FOR DEFENDANT

IVY TECH COMMUNITY COLLEGE

/s/ Raisa Ahmad

Raisa Ahmad 

USDC IN/ND case 3:14-cv-01791-JD-MGG document 61 filed 05/08/18 page 7 of 7