Katharine Rouse v. Duke University

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cv-00549-CCE-JEP Copies to all parties and the district court/agency. [999158681].. [13-1059]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1059

KATHARINE ROUSE,
Plaintiff - Appellant,
v.
DUKE UNIVERSITY; LARRY MONETA,
Defendants - Appellees.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cv-00549-CCE-JEP)

Submitted:

June 4, 2013

Decided:

July 25, 2013

Before NIEMEYER, AGEE, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert C. Ekstrand, Stefanie A. Smith, EKSTRAND & EKSTRAND, LLP,
Durham, North Carolina, for Appellant. Paul K. Sun, Jr., Dixie
T. Wells, James M. Weiss, ELLIS & WINTERS LLP, Raleigh, North
Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In

February

2007,

Katharine

Rouse

was

raped

at

an

off-

campus party that she was attending as an undergraduate student
at Duke University.

After Rouse reported the incident, Duke

transported her to the hospital and contacted the Durham Police
Department, who arrested Michael Burch and charged him with the
rape.

Burch eventually pleaded guilty to the charge.

Conducting

a

brief

investigation,

Duke

concluded

that

although a Facebook invitation for the party had listed a campus
fraternity as a host, the fraternity had no involvement.

It did

learn that the party had taken place in a house owned by a
significant financial benefactor and leased to Duke students.
Thereafter, it ended the investigation and did not sanction any
fraternity or student.
Although Duke allowed Rouse to take a temporary leave-ofabsence, Rouse was not able to complete her courses from home
and, instead, took a personal leave-of-absence for the remainder
of the semester.
fall.

Later

She returned, however, to the campus the next

that

fall,

she

informed

Duke

that

she

was

transferring to another school, and Rouse’s academic dean sent
her a form letter confirming the transfer request and noting
that the request forfeited her eligibility to seek readmission
to Duke.

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Rouse commenced this action alleging that Duke was liable
for

“fail[ing]

to

investigate

or

initiate

disciplinary

proceedings against either the Duke fraternity, its members, or
the other Duke students who attended the party” and for “barring
her from ever applying to re-enroll at Duke,” in violation of
Title IX.
contract,

She also alleged state law claims for breach of
intentional

negligence.

The

infliction

district

of

court

emotional

granted

distress,

Duke’s

motion

and
for

summary judgment, and we affirm.

I
Katharine Rouse enrolled at Duke University in the fall of
2006.
emailed

Several months later, however, in January 2007, Rouse
her

academic

dean,

Dean

Diane

McKay,

to

discuss

transfer to a school closer to her home in New York.

her

On Dean

McKay’s suggestion, Rouse and the Dean met the following week to
discuss whether a transfer was in Rouse’s best interest.

Rouse

expressed an interest in transferring because her mother was
sick.

Dean

McKay’s

contemporaneous

notes

reflect

that

she

cautioned Rouse, explaining Duke’s rule that “if students enroll
as

full-time

enroll

at

students

Duke.”

elsewhere,

Rouse

they

testified

are

later

ineligible
that

she

to

re-

could

not

remember whether Dean McKay told her about the transfer policy.
The policy was published in its Bulletin as follows:

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If a student enrolled at Duke subsequently transfers
to another institution as a degree-seeking student,
the student will be ineligible to re-enroll as an
undergraduate at Duke.
Dean

McKay

recommended

that

Rouse

should

explore

all

of

her

options to make sure that a transfer would be the right one.
She also noted that there was a possibility of appealing the reentrance bar, but there could be no guarantees.
Several weeks after Rouse’s meeting with Dean McKay, on the
evening of February 10, 2007, Rouse attended an off-campus party
at a private house rented by six Duke students.

One of the

residents

Beta

at

the

house

was

a

member

of

the

Phi

fraternity, a fraternity formally recognized by Duke.

Sigma
At the

party, Michael Burch followed Rouse into a bathroom and raped
her.
of

Rouse thereafter returned to her dormitory, and residents

the

dormitory

Police.
room.

reported

the

rape

to

the

Duke

University

The Duke Police persuaded Rouse to go to the emergency
After learning that the attack occurred off campus, the

Duke Police immediately notified the Durham Police Department.
With

the

assistance

of

the

Duke

Police,

the

investigated, leading to the arrest of Burch.
pleaded guilty to the rape.

Durham

Police

He eventually

Burch was not formally affiliated

with Duke, although he played basketball at a campus gymnasium.
After the rape, Rouse went home to New York, and Dean McKay
sent notes to each of Rouse’s professors to allow her to make up

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any missed work.

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Dean McKay also spoke with Rouse’s mother and

later with Rouse to discuss academic options for the remainder
of the semester.

Rouse had hoped to complete at least some of

her courses remotely, in part because she had been considering
transferring
transfer

to

Columbia

students

complete

original institution.
complete

her

courses

courses,

but

Dean

Columbia

with

decided

to

a

a

full

which

required

academic

year

at

that
their

Duke, however, did not allow Rouse to
remotely

McKay

respect

take

University,

because

was

to

able

its

personal

to

of

the

secure

requirement.

leave-of-absence

intending to return to Duke in the fall.

nature
a

waiver

Rouse
for

of

the
from

thereupon

the

spring,

Duke credited her with

all of her tuition and pro-rated a portion of her room and
board.
Rouse returned to Duke in the fall of 2007, and Dean McKay
and the Registrar’s office arranged for her to retain the same
priority in class registration as if she had not taken a leave
of absence.

Rouse, therefore, was able to register for all of

the classes that she wanted.
Within

a

few

weeks

of

returning,

however,

Rouse

again

considered transferring because being on campus brought back bad
memories, and she was uncomfortable with her interaction with
other students.

Accordingly, in late October, she sent Dean

McKay an email stating, “I am planning on transferring, this
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time for real, next semester.”
McKay

soon

because

some

She asked to meet with Dean

schools

had

November

application

deadlines.
Rouse and Dean McKay met on November 8, and Rouse told Dean
McKay that she was going to transfer.

Dean McKay’s notes of the

meeting indicate that Rouse told the Dean that she “intends/is
fully determined to transfer to Hofstra or Fordham (or possible
FIT) at semester’s end.”

Rouse testified that, at that time,

she had no intention of returning to Duke, and she did not
engage Dean McKay on that subject.

Dean McKay’s contemporaneous

notes also state that Rouse “knows that she cannot apply to
return to Duke,” but Rouse testified that Dean McKay did not
tell her about the policy at that meeting.
The following day, November 9, Rouse emailed Dean McKay a
formal

statement,

drafted

for

Rouse

by

Dean

McKay,

of

her

intention to be “voluntarily transferred out of Duke University
and into Fordham University as of the Spring 2008 semester.”
Thereafter, she sent Dean McKay another email about her transfer
applications to the other schools, asking Dean McKay to send
forms to Hofstra, Stony Brook, and Fordham.

Dean McKay acted in

response to Rouse’s request by sending letters of recommendation
to

each

of

these

schools,

assertive, and creative.”
Rouse’s

transcripts.

describing

Rouse

as

“bright,

Duke also sent the schools copies of

Duke

processed
6

Rouse’s

withdrawal

as

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“voluntary”

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and

noted

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that

anticipated

return

was

“not

applicable.”
On December 18, 2007, Dean McKay sent Rouse a form letter
used

by

all

academic

deans

reiterating

Duke’s

policy

about

transfers:
I am writing to confirm that I have received your
written request to be voluntarily withdrawn from Duke
University so that you may complete your undergraduate
degree elsewhere. Accordingly, we have processed this
request and informed the relevant offices on campus
that you will not be returning to Duke.
Please know that effective August 28, 2006, Trinity
College policy is that students who withdraw from Duke
in order to attend another institution as a degreeseeking
student
may
not
re-enroll
here
for
undergraduate study.
Therefore, you have forfeited
your eligibility to seek readmission to Duke. If you
have any further questions about this policy, please
contact us at the Academic Advising Center . . . .
Dean McKay had used the same form letter to advise numerous
other students of the policy, both male and female, when told
that they were transferring from Duke. As Dean McKay said, “It
was my practice, and to my knowledge that of the other deans, to
send the letter when the student confirmed his or her intent to
withdraw from Duke and transfer.”
Rouse
surprised

said
and

that

when

angry,

but

she
she

received

the

acknowledged

letter,
that

she

she

was

did

not

contact anyone at Duke to ask questions about the policy because
she

“did

not

have

a

desire

to

7

go

back.”

Instead,

Rouse

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transferred to Hofstra in the spring of 2008 and graduated from
that institution in May 2011.
According to Rouse, in early 2009, she considered coming
back to Duke and discussed the possibility with her parents.
Rouse’s

father

President,
however,

then

Richard

met

called

Duke

Brodhead.

with

Rouse’s

and

Vice

father

asked

to

President

in

March

talk
Larry

2009,

and

to

its

Moneta,
Rouse’s

father used the meeting only to ask Vice President Moneta for
help

in

securing

a

meeting

with

President

Brodhead.

Moneta

agreed to talk to President Brodhead, but he never met with
Rouse’s father.
Rouse commenced this action in state court on December 17,
2010,

naming

defendants.

Duke
She

inadequate

University
alleged

investigation

and

that
of

Vice

the

the

President

rape

incident,

as

conducted

defendants

Moneta

an

created

or

allowed a hostile environment, and discriminated against her in
denying

her

return

to

Duke.

She

claimed

that

these

facts

amounted to a violation of Title IX and supported state law
claims for breach of contract; negligent infliction of emotional
distress;

intentional

infliction

of

emotional

distress;

and

negligence.
The defendants removed the case to federal court and then
filed a motion for judgment on the pleadings.

The district

court granted the motion as to all claims against Vice President
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Moneta

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because

limitations.

the

were

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barred

by

the

applicable

statute

of

As to Duke, the court denied the motion to dismiss

the claim for “hostile educational environment,” in violation of
Title IX, and denied the motion to dismiss the common law claims
“to

the

extent

those

claims

December 18, 2007 letter.”

arise

from

the

sending

of

the

It granted the motion to the extent

that the common law claims arose from other facts because they
were time barred.

Finally, the court granted the motion on all

other claims.
At
Duke’s
This

the

close

motion
appeal

for

of

discovery,

summary

followed.

the

judgment
Neither

district

on

the

party

court

granted

remaining

claims.

has

requested

oral

argument.

II
Rouse contends first that she is entitled to a jury trial
on her Title IX claim, including an argument that Duke failed to
investigate
program

and

her

rape

denied

and

her

of

“excluded
its

her

benefits

from
by

its

educational

refusing

to

make

reasonable modifications to its policies that were necessary to
accommodate her inability to remain on campus as a result of the
rape and Duke’s indifference to it.” *
*

Duke responds that the

To establish a Title IX sexual harassment claim, Rouse
would have to show that:

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district court correctly granted it summary judgment “because
[the Title IX] claim is time barred, because Duke cannot be held
liable under Title IX for the off-campus rape of a student by an
unaffiliated third party, because Duke did not sexually harass
Ms.

Rouse,

cause

any

sexual

harassment,

or

make

her

more

vulnerable to it, and because Duke’s response to the rape was
not clearly unreasonable.”
The statute of limitations for Rouse’s Title IX claim is
three years, as borrowed from state law.

See Wilmink v. Kanawha

Cnty. Bd. of Educ., 214 F. App’x 294, 296 n.3 (4th Cir. 2007)
(per curiam); N.C. Gen. Stat. Ann. § 1-52(16).

Because Rouse

commenced this action on December 17, 2010, the only alleged
events

falling

within

the

applicable

three-year

period

of

limitations are (1) Dean McKay’s December 18, 2007 form letter
informing Rouse that she could not seek re-enrollment at Duke

(1) she was a student at an educational institution
receiving federal funds, (2) she was subjected to
harassment based on her sex, (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) (en
banc). An institution can be liable for deliberate indifference
where “at a minimum, [it] cause[s] students to undergo
harassment or make them liable or vulnerable to it.”
Davis v.
Monroe Cnty. Bd. of Educ., 526 U.S. 629, 645 (1999) (internal
quotation marks and alterations omitted).
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(2)

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Rouse’s

father’s

President Brodhead.

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inability

to

secure

a

meeting

with

But neither of those acts contributed to

the hostile educational environment based on sex on which Rouse
bases her Title IX claim.

See Nat’l R.R. Passenger Co. v.

Morgan, 536 U.S. 101, 114-17 (2002); Gilliam v. S.C. Dep't of
Juvenile Justice, 474 F.3d 134, 140 (4th Cir. 2007); see also
Jennings, 482 F.3d at 695.
Dean

McKay’s

form

letter,

confirming

Rouse’s

request

to

transfer, was routinely used by Duke’s academic deans and was
based

on

a

generally

applicable

publicly available on the internet.

transfer

policy,

that

was

Moreover, Dean McKay’s form

letter was substantially similar to letters that she sent to
other students who had stated they were transferring from Duke.
In sum, the undisputed facts establish that Duke followed its
ordinary policy in sending the letter in response to a transfer
request.
Moreover, the letter directed Rouse to contact the Academic
Advising Center by phone or email if she had questions about
Duke’s transfer policy.

Rouse did neither.

And although Rouse

alleges that Duke misapplied the transfer policy to her because
she was not enrolled at another school at the time she received
the letter, Rouse did not request to re-enroll at Duke before
she transferred.

Indeed, Rouse testified that at the time she

received the letter she “did not have a desire to go back” and
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did not even think about returning to Duke until more than a
year later.
Hofstra.

At that point, she had already been enrolled at

Thus, the letter did not contribute to the hostile

environment claim.
That leaves Rouse’s father’s inability to secure a meeting
with Duke’s President Brodhead.
Vice

President

Brodhead,

Moneta

promised

communicate

with

Duke

that

or

to

she

was

request

generally applicable transfer policy.

to

President

But

assert

agreed

with

father, and she was therefore unable to seek re-enrollment.
not

never

confer

her

does

Brodhead

to

with

Rouse

President

Rouse asserts that although

meet

unable

an

otherwise

exception

to

to

Duke’s

Indeed, she identifies no

evidence suggesting that she ever expressed her desire to reenroll to Duke.
designee

to

a

A university president sending a high-level
meeting

and

himself

not

meeting

does

not

constitute a contributing act to a hostile environment claim.
Because the acts not barred by the statute of limitations
do not rise to the level of acts contributing to a Title IX
claim, the district court properly dismissed Rouse’s Title IX
claim.

III
As

to

intentional

the

state

infliction

law
of

claims

emotional

12

for

breach

distress,

of

and

contract,
negligence,

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the

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court

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dismissed

them

as

being

barred

by

the

applicable statute of limitations except for the claims that
might arise out of Dean McKay’s December 18, 2007 letter.

Rouse

did not appeal this application of the statute of limitations.
She also did not appeal the dismissal of her claim for negligent
infliction of emotional distress.
As to the letter’s support of a breach-of-contract claim,
Rouse contends that “[a] reasonable jury could conclude that
Duke breached its educational contract . . . by applying its
provisions
students

governing
in

students

another

who

institution”

enroll
to

as

her

degree-seeking

when

enrolled or admitted at another institution.

she

was

not

Rouse also argues

that “in misapplying the transfer policy to her . . . Duke
breached an implied covenant of good faith and fair dealing.”
We disagree.
sending

a

expression

Duke merely followed its standard procedure of
confirming

of

an

attending

Hofstra.

enrolling

at

Duke

letter

intent

to

Indeed,
until

the

after

transfer,
she

did

spring

it

received

which
not
of

Rouse

even

2009,

already been enrolled at Hofstra for a year.

a

formal

pursued

think
after

by

of

re-

she

had

Accordingly, we

affirm the district court’s dismissal of the breach-of-contract
claim.
As to Rouse’s claim for intentional infliction of emotional
distress, the district court concluded:
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[T]he record does not establish any basis for finding
that Ms. Rouse suffered severe emotional distress as a
result of Dean McKay’s letter. . . . [T]here is no
evidence that Dean McKay coerced, duped, or tricked
Ms. Rouse into transferring from Duke and forfeiting
her ability to reenroll. . . . Dean McKay’s actions do
not amount to extreme and outrageous conduct.
The record supports these conclusions, and we therefore affirm
the dismissal of that claim.
Finally, as to Rouse’s negligence claim, the district court
concluded:
Since Ms. Rouse told Dean McKay that she wanted to
transfer, Dean McKay had no reason to believe Ms.
Rouse would want to re-enroll at Duke, and Ms. Rouse
did not at the time have any intention to return to
Duke, Ms. Rouse cannot show that Duke violated any
duty of care in sending the letter or that the letter
caused her any reasonably foreseeable injury.
These conclusions are fully supported by the record and again,
we affirm the district court’s dismissal of that claim.
Rouse’s claim for punitive damages obviously cannot stand
with the dismissal of her other claims for compensatory damages.
See N.C. Gen. Stat. § 1D-15(a).
*

*

*

For the foregoing reasons, we affirm the judgment of the
district
facts

court.

and

materials

legal
before

We

dispense

with

oral

argument

contentions

are

adequately

the

and

argument

court

because

presented

would

not

the

in

the

aid

the

decisional process.
AFFIRMED
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