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McClean v. Duke University

United States District Court, M.D. North Carolina

March 25, 2019




         This case is currently before the court on three motions to dismiss, one filed separately by each Defendant: Duke University (“Duke”), (Doc. 29), Sheila Broderick (“Broderick”), (Doc. 26), and Steven Thomas Bishop (“Bishop”), (Doc. 31). Each Defendant moves to dismiss the relevant claims contained in Plaintiff Colleen McClean's First Amended Complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Based on the following analysis, this court determines that Duke's motion to dismiss should be granted in full. This court further finds that the motions to dismiss filed by Defendants Broderick and Bishop should each be granted in part and denied in part, as set forth herein.


         A. Factual Background

         In reviewing a motion to dismiss, this court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         Plaintiff was a dual-degree student enrolled in Duke's School of Medicine and Graduate School. (First Amended Complaint (“Am. Compl.”) (Doc. 20) ¶ 13.) According to the Complaint, at some point in time, Plaintiff was raped and sexually assaulted by Bishop.[1] (Id. ¶ 12.) Plaintiff reported the rape and then confronted Bishop, who became angry and threatened Plaintiff. (Id. ¶ 15.) Bishop was, at the time, in a relationship with Broderick, Duke's Coordinator of Gender Violence Intervention Services. (Id. ¶ 16-17.) Bishop allegedly continued to harass Plaintiff and threatened that Broderick, as his girlfriend, would use her position to undermine Plaintiff's credibility and destroy Plaintiff's reputation if Plaintiff continued to pursue complaints about the alleged assault.[2] (Id. ¶¶ 16-19.) When Plaintiff attempted to report the assault through Duke, she was referred to Broderick and wrote Broderick to request counselling and other support services, (id. ¶¶ 21-22), which Broderick failed to provide.

         Plaintiff alleges further that, over an unspecified time period, Bishop and Broderick engaged in a campaign to impugn Plaintiff's reputation by (1) making false stalking reports to the Duke Police Department, (id. ¶¶ 30-31), (2) disclosing Plaintiff's confidential sexual assault report widely within the university, (id. ¶ 32), (3) causing a Duke University Police officer to make false statements regarding Plaintiff at a custody hearing involving Bishop, (id. ¶¶ 35-37), and (4) compiling and disseminating negative information about Plaintiff to destroy her reputation both at Duke and within the medical community at large, (id. ¶¶ 43, 48-49.)

         Plaintiff alleges that other Duke officials and administrators were involved, to varying degrees, in the scheme perpetrated by Bishop and Broderick. First, Broderick's immediate supervisor refused to provide any counselling or other services when Plaintiff followed up on her letter to Broderick and instead directed Plaintiff to seek help outside the university. (Id. ¶ 24.) Second, Broderick's colleague in the Student Affairs Division allegedly “interrogated” Plaintiff about her complaint and relationship with Bishop. (Id. ¶ 29.) Third, another Student Affairs administrative allegedly told Plaintiff that Duke would not treat Plaintiff's letter to Broderick as confidential and that Duke was not investigating the alleged rape. (Id. ¶¶ 32-33.) Finally, when one of Broderick's colleagues reported Broderick's behavior to “supervisors” and “managing employees” of the university, these supervisors “took no meaningful action.” (Id. ¶¶ 47-50.)

         B. Procedural History

         Plaintiff filed her initial complaint in the Durham County Superior Court, (Doc. 4), and the case was then removed by Duke to this court. (Doc. 1.) Plaintiff filed an amended complaint (Am. Compl. (Doc. 20).) Each Defendant moved to dismiss the First Amended Complaint[3] and filed a brief in support of that motion: Duke, (Docs. 29, 30), Broderick, (Docs. 26, 27), and Bishop, (Docs. 31, 32.) Plaintiff responded opposing each motion: Duke, (Doc. 37), Broderick, (Doc. 39), and Bishop, (Doc. 38). Each Defendant then replied: Duke, (Doc. 42), Broderick, (Doc. 43), and Bishop, (Doc. 44).

         C. Jurisdiction and Governing Law

         This court has jurisdiction over Plaintiff's Title IX claim because it arises under federal law. See 28 U.S.C. § 1331. When a federal court has federal question jurisdiction over some claims, it may exercise supplemental jurisdiction over all related claims that “form part of the same case or controversy.” See 28 U.S.C. § 1367; see also Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 616 (4th Cir. 2001) (observing that the district court had discretion to exercise supplemental jurisdiction and could retain or remand to state court any state law claims after all federal claims were dismissed). Plaintiff's state claims all relate to the same factual nexus as Plaintiff's federal claims: Plaintiff's alleged rape, attempts to report and seek treatment following the rape, and the alleged harassment of Plaintiff by Bishop and Broderick. Therefore, these claims are all part of the same case or controversy, and this court may properly exercise supplemental jurisdiction over the state law claims.

         A federal court sitting in diversity or supplemental jurisdiction applies state substantive law and federal procedural law. Hanna v. Plumer, 380 U.S. 460, 465-66 (1965); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 72-73, 79-80 (1938); see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (holding that federal courts are “bound to apply state law” to pendant claims); In re Exxon Valdez, 484 F.3d 1098, 1100 (9th Cir. 2007) (finding that Erie's central holding applies to supplemental jurisdiction cases).

         This court, sitting in supplemental jurisdiction, “has a duty to apply the operative state law as would the highest court of the state in which the suit was brought.” Liberty Mut. Ins. Co. v. Triangle Indus., Inc., 957 F.2d 1153, 1156 (4th Cir. 1992). If the state's highest court has not addressed an issue, then a “state's intermediate appellate court decisions constitute the next best indicia of what state law is although such decisions may be disregarded if the federal court is convinced by other persuasive data that the highest court of the state would decide otherwise.” Id. (internal quotation marks and citation omitted).

         D. Standard of Review

          “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To be facially plausible, a claim must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable” and must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556-57). When ruling on a motion to dismiss, a court must accept the complaint's factual allegations as true. Id. Further, “the complaint, including all reasonable inferences therefrom, [is] liberally construed in the plaintiff's favor.” Estate of Williams-Moore v. All. One Receivables Mgmt., Inc., 335 F.Supp.2d 636, 646 (M.D. N.C. 2004) (citation omitted).

         Nevertheless, the factual allegations must be sufficient to “raise a right to relief above the speculative level” so as to “nudge[] the[] claims across the line from conceivable to plausible.” Twombly, 500 U.S. at 555, 570; see also Iqbal, 556 U.S. at 680; Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (applying the Twombly/Iqbal standard to evaluate the legal sufficiency of pleadings). A court cannot “ignore a clear failure in the pleadings to allege any facts which set forth a claim.” Estate of Williams-Moore, 335 F.Supp.2d at 646. Consequently, even given the deferential standard allocated to pleadings at the motion to dismiss stage, a court will not accept mere legal conclusions as true and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, [will] not suffice.” Iqbal, 556 U.S. at 678.

         E. Statute of Limitations

         The statute of limitations for a Title IX claim is determined by reference to the state statute most closely analogous to Title IX, which is usually a personal injury cause of action. See, e.g., Curto v Edmundson, 392 F.3d 502, 503-04 (2d Cir. 2003). In North Carolina, the statute of limitations for a personal injury claim is three years. N.C. Gen. Stat. § 1-52(16); see also Misenheimer v. Burris, 260 N.C. 620, 622, 637 S.E.2d 173, 175 (2006). This period begins to run when injury “becomes apparent or ought reasonably to have become apparent to the claimant, whichever event occurs first.” N.C. Gen. Stat. § 1-52(16).

         A four-year statute of limitations applies to Plaintiff's North Carolina unfair and deceptive trade practices claim. See Lucky Ducks, Ltd. v. Leeds, No. COA07-1469, 2008 WL 2968123, at *2 ( N.C. Ct. App. 2008). Plaintiff's other state law claims are all subject to a three-year statute of limitations. See N.C. Gen. Stat. § 1-52; Benedith v. Wake Forest Baptist Med. Ctr., No. COA17-284, 2017 WL 3027619, at *1 ( N.C. Ct. App. 2017); Birtha v. Stonemor, N.C., LLC, 220 N.C.App. 286, 292, 727 S.E.2d 1, 7 (2012); Waddle v. Sparks, 331 N.C. 73, 85-86, 414 S.E.2d 22, 28-29 (1992).

         The Complaint includes only three dates: Plaintiff states that Broderick moved her private practice into Bishop's home in March 2014, that Broderick began living with Bishop in September 2015, and that Plaintiff filed a formal civil rights complaint in October 2015. (Am. Compl. (Doc. 20) ¶¶ 42, 45.) Plaintiff filed her initial complaint in this matter on June 29, 2017. (Doc. 4.) With only these dates established, it is impossible at this time to determine whether any of Plaintiff's various claims are barred by their respective statutes of limitation.

         Duke raises statute of limitations as an affirmative defense. (Def. Duke's Mem. in Supp. of Mot. to Dismiss (“Def. Duke's Mem.”) (Doc. 30) at 8-9.) Claims ordinarily are not dismissed due to statute of limitations at the 12(b)(6) stage, unless “the . . . complaint sets forth on its face the facts necessary to conclude that plaintiff's claims are barred by the statute of limitations.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007); see also Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993) (stating that a statute of limitations “defense may be raised under Rule 12(b)(6), but only if it clearly appears on the face of the complaint”) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357, at 348-49 (2d ed. 1990)). At a later point in this case, it may become clear through discovery that certain or all of the alleged conduct falls outside of the relevant statute of limitations, barring any of the remaining claims. However, it is not clear from the face of the Complaint that any specific allegations are time-barred, and this court will not presently dismiss any claims for this reason.


         A. Legal Framework

         Title IX states that “[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681. While not explicitly mentioned in the statute itself, Title IX contains an implied private right of action that permits aggrieved parties to sue educational institutions for alleged violations. Cannon v. Univ. of Chi., 441 U.S. 677, 713 (1979).

         The typical Title IX violation is some direct conduct by school administrators against a student that discriminates on the basis of that student's sex. See, e.g., Cannon, 441 U.S. at 680 (stating that the school denied admission to a female applicant because she was female); Mercer v. Duke Univ., 190 F.3d 643, 644-45 (4th Cir. 1999) (stating that the school refused to allow the female plaintiff to participate meaningfully in an intercollegiate football team). Title IX liability also extends to the institution when teachers or other students harass a victim student due to the victim's sex. See Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 646-47 (1999) (finding that a school can be liable for “known acts of student-on-student sexual harassment [when] the harasser is under the school's disciplinary authority”); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 278 (1998) (stating that a teacher had a sexual relationship with a teenage student).

         A Title IX plaintiff must plausibly allege that:

(1) she was a student at an educational institution receiving federal funds, (2) she was subjected to harassment based on her sex [under one of the fives theories listed below], (3) the harassment was sufficiently severe or pervasive to create a hostile (or abusive) environment in an educational program or activity, and (4) there is a basis for imputing liability to the institution.

Jennings v. Univ. of N.C. , 482 F.3d 686, 695 (4th Cir. 2007); see also Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir. 2002).

         Generally speaking, Title IX encompasses five separate theories of liability: namely, that the institution (1) perpetuated and condoned a sexually-hostile environment, (2) was deliberately indifferent to discrimination by individuals under its control, (3) reached an erroneous outcome in disciplinary proceedings due to sex discrimination, (4) selectively enforced its internal rules on the basis of sex, or (5) used “archaic assumptions” to make athletic funding decisions. See Pederson v. La. State Univ., 213 F.3d 858, 881 (5th Cir. 2000) (finding Title IX discrimination where the university “perpetuated antiquated stereotypes and fashioned a grossly discriminatory athletics system”); Doe v. Claiborne Cty., 103 F.3d 495, 515 (6th Cir. 1996) (stating that Title IX borrows the hostile environment concept from Title VII); Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994) (explaining the difference between erroneous outcome and selective enforcement claims). In each case, the harassment or discrimination must be “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Davis, 526 U.S. at 650.

         To impute liability to the institution, a school official with authority to remedy the discrimination must have actual notice or knowledge of the alleged discriminatory conduct and exhibit “deliberate indifference to discrimination.” Jennings, 482 F.3d at 700; Gebser, 524 U.S. at 290-91. Crucially, an institution subject to Title IX is liable “only for its own misconduct”; i.e., only when the institution “exercises significant control over the harasser.” Davis, 526 U.S. at 640- 41, 646; see also Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170, 1178-79, 1184-85 (10th Cir. 2007) (finding that deliberate indifference to sexual assaults allegedly committed by football team members could constitute a Title IX violation).

         B. Analysis

         1. Deliberate Indifference to Bishop's Conduct

          Plaintiff attempts to state a deliberate indifference Title IX claim against Duke. (Am. Compl. (Doc. 20) ¶ 56.) However, Plaintiff cannot make out such a claim based on her alleged rape, assault, or harassment by Bishop. While Bishop allegedly sexually harassed Plaintiff, thereby engaging in sex discrimination, [4] it appears that Bishop has never been affiliated with Duke in any way. The Supreme Court has clearly stated that “[d]eliberate indifference makes sense as a theory of direct liability under Title IX only where the funding recipient has some control over the alleged harassment.” Davis, 526 U.S. at 644. This is because Title IX covers only discrimination that occurs “under any education program or activity, ” 20 U.S.C. § 1681, and not discrimination perpetrated by an unaffiliated third party. Bishop was, apparently, neither a Duke student nor a Duke employee, and the Complaint contains no allegations suggesting that Bishop had any relationship to Duke. Plaintiff also does not plead facts suggesting that the alleged rape occurred in a Duke-owned building or a location over which Duke had any control. Plaintiff fails to establish that Duke possessed “control over the harasser and the environment in which the harassment occur[ed].” Davis, 526 U.S. at 644.

         The facts here are even further removed from the educational setting than in those cases finding insufficient university control over student-on-student harassment at private, off-campus locations, because Bishop was not a fellow student. See, e.g., Roe v. St. Louis Univ., 746 F.3d 874, 884 (8th Cir. 2014) (finding that a sexual assault at a privately-owned fraternity did not occur under a university program or activity); Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1121 n.1 (10th Cir. 2008) (holding that in-school teasing and bullying regarding sexual assaults that occurred at off-campus locations was not “a sufficient nexus” to “create liability under Title IX”); Ostrander v. Duggan, 341 F.3d 745, 750 (8th Cir. 2003) (similar holding). Here, Bishop's behavior clearly falls outside the limited scope of relationships that the Supreme Court has recognized as imputing Title IX liability to an educational institution.[5] Therefore, Plaintiff does not state a Title IX claim against Duke based on Bishop's alleged conduct.

         2. Deliberate Indifference to Broderick's Conduct

          Plaintiff's Title IX claim as to Broderick's conduct is more clear-cut. There is no question that Duke had control over the alleged harasser sufficient to support a Title IX claim, because Duke employed Broderick. See Gebser, 524 U.S. at 290-91. However, the allegations in the Complaint do not plausibly establish that Broderick discriminated against Plaintiff because of Plaintiff's sex.

         The gravamen of Title IX is that any discrimination must be “on the basis of sex.” 20 U.S.C. § 1681. Here, the evidence that Broderick refused Plaintiff's request for counseling and treatment and allegedly harassed and intimidated Plaintiff because Plaintiff was female is decidedly lacking. Broderick worked as the “University's Coordinator of Gender Violence Intervention Services” at the Duke University Women's Center, (Am. Compl. (Doc. 20) ¶¶ 16-17), and Plaintiff has provided no allegations to suggest that Broderick treated Plaintiff less favorably than male Duke students who reported assaults. While the Complaint may establish that Broderick treated Plaintiff outrageously, there is nothing to suggest that Plaintiff was treated differently from any male student. It is not sufficient to allege that Plaintiff may have been treated differently from other female victims of sexual assault; this may plausibly state an intentional infliction of emotional distress (“IIED”) claim, but it does not constitute gender-based discrimination.

         Further, the allegations point in an entirely different direction. It appears that Broderick's conduct was motivated not by Plaintiff's sex, but by Plaintiff's allegedly coerced sexual involvement with Broderick's boyfriend and by a desire to retaliate against Plaintiff for reporting the rape and assault.[6]See, e.g., Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165-66 (5th Cir. 2011) (finding that the alleged harassment was not based on sex and thus not actionable, because “[t]here is nothing in the record to suggest that [the harasser] was motivated by anything other than personal animus”); Seamons v. Snow, 84 F.3d 1226, 1233 (10th Cir. 1996) (“The fact that the coach, and perhaps others, described these qualities as they pertain to his situation in terms of the masculine gender does not convert this into sexual harassment.”). While sexual harassment or rape constitutes discrimination based on the victim's sex, see Franklin, 503 U.S. at 74-75, this court finds the allegations to establish that Broderick was more likely motivated by revenge rather than discriminatory intent and would have likely acted in the same manner had a male Duke student been assaulted by Bishop and reported that assault.

         Because this court finds that any harassment by Broderick was likely driven by personal animus unrelated to Plaintiff's sex, this harassment is not cognizable under Title IX. At the motion to dismiss stage, Plaintiff must plausibly allege “a causal connection between the [university's actions] and gender bias.” Yusuf, 35 F.3d at 715. To determine whether a plaintiff has met this standard, this court may consider “an ‘obvious alternative explanation' that overwhelms any potential inference of gender bias.” Doe v. Univ. of Colo., 255 F.Supp.3d 1064, 1079 (D. Colo. 2017) (quoting Iqbal, 556 U.S. at 682); see also Doe v. Columbia Univ., 831 F.3d 46, 57 (2d Cir. 2016) (finding, at the 12(b)(6) stage, that alleged pro-victim bias did “not necessarily relate to bias on account of sex”; nevertheless holding that other allegations established the plausibility of sex-based discrimination). Here, this court finds, based on the allegations, that personal animus unrelated to Plaintiff's sex predominately motivated Broderick's conduct and that this fact defeats any plausible inference of sexual bias.

         Assuming for argument that Plaintiff has alleged sex-based harassment by Broderick, Duke's response must still rise to the level of deliberate indifference. The Supreme Court has endorsed the same deliberate indifference standard used for § 1983 civil rights claims in the Title IX context. See Gebser, 524 U.S. at 290. Where a need or deficiency is obvious to officials “and the inadequacy so likely to result in the violation of constitutional rights, . . . [those officials] can reasonably be said to have been deliberately indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989) (footnote omitted). Stated differently, deliberate indifference occurs “where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648.

         To act with deliberate indifference, an authoritative official must have actual notice of the harassment. Gebser, 524 U.S. at 277. Here, Plaintiff alleges that a colleague of Broderick “reported Ms. Broderick's past and planned retaliation against Plaintiff to . . . managing employees of the University.” (Am. Compl. (Doc. 20) ¶ 49.) This court finds Plaintiff has plausibly alleged that Duke officials “with supervisory power over the offending employee” had notice of Broderick's alleged retaliatory conduct. Gebser, 524 U.S. at 280.

         Plaintiff further alleges that Duke officials did nothing in response to notice of Broderick's alleged harassment, and further states that Broderick's colleague informed Plaintiff that her letter reporting a sexual assault would not be kept confidential and that Duke was not investigating Plaintiff's concerns about Bishop. (Am. Compl. (Doc. 20) ¶¶ 32-33.) The Supreme Court has held that, when an institution “ma[kes] no effort whatsoever either to investigate or to put an end to . . . harassment, ” such inaction amounts to deliberate indifference under Title IX. Davis, 526 U.S. at 654. Plaintiff has alleged facts sufficient to plausibly show that Duke acted with deliberate indifference to Broderick's behavior.[7]

         However, because Plaintiff has not plausibly alleged that she was harassed or discriminated against by Broderick on the basis of sex, Plaintiff does not state a Title IX claim against Duke based on Broderick's alleged conduct. Therefore, Duke's motion to dismiss Plaintiff's Title IX claim will be granted.

         III. PENDANT ...

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