Haley Videckis et al v. Ryan Weisenberg et al

Filing 41

AMENDED ORDER DENYING DEFENDANT PEPPERDINE UNIVERSITYS MOTION TO DISMISS THIRD, FOURTH, AND FIFTH CAUSES OF ACTION OF THE THIRD AMENDED COMPLAINT [AMENDED AS TO TYPOGRAPHICAL ERROR IN ORIGINAL CAPTION ONLY] 33 by Judge Dean D. Pregerson. (lc). Modified on 12/15/2015 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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HALEY VIDECKIS AND LAYANA
WHITE,

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Plaintiffs,
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v.
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PEPPERDINE UNIVERSITY, a
corporation doing business
in California,

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Defendant.
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___________________________

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Case No. CV 15-00298 DDP (JCx)
AMENDED ORDER DENYING DEFENDANT
PEPPERDINE UNIVERSITY’S MOTION TO
DISMISS THIRD, FOURTH, AND FIFTH
CAUSES OF ACTION OF THE THIRD
AMENDED COMPLAINT
[AMENDED AS TO TYPOGRAPHICAL
ERROR IN ORIGINAL CAPTION ONLY]
[Dkt. No. 33]

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Presently before the Court is Defendant Pepperdine University

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(“Pepperdine”)’s Motion to Dismiss the Third, Fourth and Fifth

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Causes of Action of the Third Amended Complaint and Prayer for

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Prejudgment Interest Pursuant to Fed. R. Civ. P. 12(b)(6) (“MTD”).

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(Dkt. No. 33.)

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heard oral argument, the Court DENIES the motion and adopts the

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following order.

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///

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///

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///

Having considered the parties’ submissions and

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I.

BACKGROUND

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Plaintiffs in this case are Haley Videckis (“Videckis”) and

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Layana White (“White”).

Videckis is a former member of

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Pepperdine’s women’s basketball team who transferred to Pepperdine

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from Arizona State University in July 2013.

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Complaint (“TAC”), Dkt. No. 31, ¶¶ 1, 47.)

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member of Pepperdine’s women’s basketball team who transferred to

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Pepperdine from Arizona State University in January 2014.

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2, 47.)

(Third Amended
White is also a former

(TAC ¶¶

Defendant Pepperdine is a university located in

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California.

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government and from the state of California.

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Weisenberg (“Coach Ryan”) is the head coach of the Pepperdine

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women’s basketball team.

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an athletic academic coordinator of the Pepperdine women’s

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basketball team.

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(Id. ¶ 3.)

Pepperdine receives funds from the federal

(Id. ¶ 7.)

(Id.)

Ryan

Adi Conlogue (“Conlogue”) is

(Id. ¶ 13.)

Plaintiffs’ suit arises out of allegedly intrusive and

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discriminatory actions that Pepperdine and its employees committed

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against Plaintiffs on account of Plaintiffs’ dating relationship.

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Plaintiffs allege that, in the spring of 2014, Coach Ryan and

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others on the staff of the women’s basketball team came to the

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conclusion that Plaintiffs were lesbians and were in a lesbian

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relationship.

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Ryan and the coaching staff were concerned about the possibility of

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the relationship causing turmoil within the team.

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Plaintiffs allege that, due to their concerns, Coach Ryan and

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members of the coaching staff harassed and discriminated against

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Plaintiffs in an effort to force Plaintiffs to quit the team.

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(Id.)

(Id. ¶ 17.)

Plaintiffs further allege that Coach

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(Id.)

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Plaintiffs allege that, beginning in February 2014, Conlogue

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would hold individual meetings with each of the Plaintiffs in order

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to determine Plaintiffs’ sexual orientation and their relationship

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status.

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specifically asked Plaintiffs whether there were any gay or

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bisexual players on the women’s basketball team.

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Conlogue would ask follow-up questions consisting of, among other

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things, how close Plaintiffs were, whether they took vacations

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together, where they slept, whether they pushed their beds

(Id. ¶¶ 19-22.)

During these meetings Conlogue

(Id. ¶ 21.)

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together, whether they went on dates, and whether they would live

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together.

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2014.

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(Id. ¶ 22)

The questioning lasted at least through June

(Id. ¶ 25.)
At the end of April, White reported to Coach Ryan that

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Conlogue was constantly trying to obtain information about White’s

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personal life instead of focusing on White’s academics.

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28.)

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monitor the players’ meetings with Conlogue, as other teammates had

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also complained about Conlogue not focusing on academics.

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Plaintiffs allege that Coach Ryan did not take any action to stop

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Conlogue’s inquiries into their personal lives.

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further allege that Conlogue’s persistent questioning during study

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hall deprived them of educational opportunities that other

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students, similarly situated at Pepperdine, received.

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(Id. ¶

Coach Ryan assured White that he would soon have a coach

(Id.)

(Id.)

Plaintiffs

(Id.)

On April 16, 2014, Coach Ryan held a team leadership meeting

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where he spoke on the topic of lesbianism.

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meeting, Coach Ryan stated that lesbianism was a big concern for

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him and for women’s basketball, that it was a reason why teams

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lose, and that it would not be tolerated on the team.
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(Id. ¶ 27.)

In the

(Id.)

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In May 2014, White met with Coach Ryan to discuss filing an

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appeal to the NCAA that would allow her to play basketball in her

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first year as a transfer student.

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White that he would be starting the process right away.

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Afterwards, however, White received no updates on the progress of

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the appeal.

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athletic director, Dr. Steve Potts (“Dr. Potts”), at Pepperdine,

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and learned that Dr. Potts had not been informed of any appeal on

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her behalf.

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(Id.)

(Id. ¶ 33.)

Coach Ryan assured
(Id.)

On June 12, 2014 White met with the Pepperdine

(Id. ¶ 36.)

White alleges that Dr. Potts offered to process the appeal for

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her, but that she still has not received a follow up on the status

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of her appeal.

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basketball player who transferred to Pepperdine was approved to

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play in 2015 immediately after transferring despite the fact that

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White was admitted to Pepperdine before the male player.

(Id.)

White further alleges that another male

(Id.)

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On June 4, 2014, Videckis complained to the coaching staff

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that Karissa Scherer (“Scherer”), an athletic trainer, had been

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asking Videckis inappropriate questions about dating women.

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Additionally, Plaintiffs claim that Scherer falsely accused them of

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breaking the training room rules.

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that Coach Ryan accused her of lying when she complained about the

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inappropriate questions.

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admitted to Coach Ryan that she did ask Videckis inappropriate

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questions about her sexual orientation, and Coach Ryan required the

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athletic trainer to apologize to Videckis.

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ignored Scherer’s accusations against Videckis for breaking the

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training room rules.

(Id.)

(Id.)

(Id. ¶ 34.)

(Id.)

Videckis alleges

However, the next day Scherer

(Id. ¶ 35.)

Coach Ryan

A Title IX investigation confirmed

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that Scherer improperly changed the time records so that Videckis

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and White appeared to arrive late to their training.

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(Id.)

Plaintiffs further allege that, in early July, Conlogue

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falsely accused Plaintiffs of academic cheating.

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Plaintiffs allege that there was no evidence to substantiate

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Conlogue’s claim, and the charges were later dropped.

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in July, Coach Ryan reached out to two of Plaintiffs’ teammates,

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recommended that the teammates not live with Plaintiffs, and stated

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that Plaintiffs were bad influences.

(Id.)

(Id. ¶ 41.)

(Id.)

Later

One of those teammates

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subsequently came forward to Plaintiffs, informing them that Coach

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Ryan was trying to turn the other players on the team against them.

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(Id.)

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On August 26, 2014, Coach Ryan and another member of the

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coaching staff asked two of Plaintiffs’ teammates whether

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Plaintiffs were dating.

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that the coaches had been asking their teammates about Plaintiffs’

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relationship status, White confronted Coach Ryan about the

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questioning.

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that the coaching staff had been asking teammates whether

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Plaintiffs were dating.

(Id.)

(Id. ¶ 42.)

When Plaintiffs found out

During this meeting, White was able to confirm

(Id.)

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At some time during the semester, White raised her GPA to a

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3.0, which under the team rules allowed her to attend study hall

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for fewer hours.

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immediately changed the team rule to require a minimum GPA of 3.2

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instead of 3.0, in an effort to force White to interact with

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Conlogue in study hall.

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(Id. ¶ 39.)

White alleges that Coach Ryan

(Id.)

In early September 2014, Conlogue and the coaching staff
accused White of being absent from a required study hall and
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punished White.

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and Conlogue issued White’s punishment, Conlogue walked up to White

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with a book White needed and slammed the book on the desk in front

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of White.

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(Id.)

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(Id. ¶ 44.)

(Id.)

After the meeting where Coach Ryan

That night, White attempted to commit suicide.

In June 2014, Videckis reported to Scherer that she was

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experiencing pain in her tailbone that she believed stemmed from

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basketball training, but that the injury would not affect her

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ability to play basketball.

(Id. ¶ 48.)

Videckis saw two separate

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doctors, neither of whom restricted her ability to play basketball.

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(Id.)

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On September 9, 2014, Videckis informed Coach Ryan that she

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would miss practice on September 12 because she was getting tested

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for cervical cancer.

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requested her gynecological records, but that she refused to give

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Pepperdine access because those records were unrelated to her

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ability to play basketball.

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other women or men on the basketball teams were asked to provide

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similar medical records.

(Id. ¶ 53.)

Videckis alleges that Scherer

(Id. ¶ 54.) Plaintiffs allege that no

(Id.)

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On September 16, 2014, Videckis met with Dr. Green at the

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Pepperdine Health Center, who told her that she was cleared for her

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condition.

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Videckis received an email from Scherer that stated Videckis would

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not be cleared for participation unless she provided the athletic

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medicine center with documentation from a spine specialist relating

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to her tailbone injury.

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(Id. ¶ 56.)

After leaving her appointment that day,

(Id. ¶ 57.)

On September 17, Videckis called the health center to request
documentation.

(Id.)

That same day, Videckis brought her “MRI,
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diagnosis, and treatment of prescription” to the athletic training

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room.

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athletic trainers informing her that the documentation she provided

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was insufficient, and that she needed to provide them with a

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diagnosis and treatment plan.

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Coach Ryan, telling him that she had given the trainers all of the

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documentation the doctor’s office had on file for her.

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Videckis requested Coach Ryan’s assistance in speaking with the

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trainers to clear her for her tailbone injury, but Coach Ryan

(Id. ¶ 58.)

Afterwards, Videckis received emails from the

(Id. ¶ 59.)

Videckis spoke with

(Id. ¶ 61.)

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informed Videckis that he would not help her.

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replied to the emails, informing the trainers that her diagnosis

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was in the documentation she had provided, but received no

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response.

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(Id.)

Videckis

(Id.)

On September 19, 2014, Videckis met with Dr. Potts, the

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Pepperdine athletic director, and told him of her concerns

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regarding unfair treatment by the women’s basketball staff.

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Videckis told Dr. Potts that she felt that the coaching staff was

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trying to keep her and White from playing, and furthermore that

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they were trying to get Plaintiffs kicked out of the school.

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¶ 64.)

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meeting and also that he yelled at her for bringing the issue to

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his attention.

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(Id.)

(Id.

Videckis alleges that Dr. Potts was very rude during the

(Id.)

That same day, Videckis called Coach Ryan and told him that

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she was very unhappy with the way she had been treated.

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Coach Ryan then told her that she would need to make a decision as

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to whether she wanted to remain on the team by Sunday.

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Videckis told him that she would need until Monday.

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Monday, Videckis called Coach Ryan and told him that she needed
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(Id.)

(Id.)

(Id.)

On

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more time.

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her decision by 5pm that day; otherwise, he would tell Dr. Potts

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that Videckis had quit voluntarily.

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(Id.)

In response, Coach Ryan told her that he needed

(Id. ¶ 65.)

Videckis sent Dr. Potts an email on September 24, stating that

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she had not made a decision to quit, and that she would like to

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speak with Dr. Potts later that week when she was back in town.

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(Id. ¶ 66.)

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concerns, the school had begun an investigation, and that until

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then, as requested, Videckis would be relieved from activities

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Dr. Potts replied, saying that due to Videckis’

having to do with the basketball team.

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(Id. ¶ 67.)

On November 7, 2014, Videckis received a letter from the Title

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IX coordinator.

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insufficient evidence to conclude that harassment or sexual

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orientation discrimination had occurred, and further that according

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to the team doctor, Dr. Green had not received the documentation

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necessary to assess Videckis’s fitness to play basketball.

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On December 1, 2014, Videckis sent the university a doctor’s note

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stating that “[i]t is acceptable for [Videckis] to return to

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basketball without restriction.”

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White were ever cleared to play basketball.

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(Id. ¶ 68.)

The letter stated that there was

(Id. ¶ 69.)

(Id.)

Neither Videckis nor

(Id.)

Plaintiffs previously filed a First Amended Complaint (“FAC”)

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that included a discrimination claim under Title IX.

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11.)

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did not cover claims based on sexual orientation discrimination.

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(Dkt. No. 13.)

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asked for leave to amend their Title IX cause of action.

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20.)

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it was inclined to find that Title IX did cover the types of

(Dkt. No.

Pepperdine moved to dismiss the FAC and argued that Title IX

Plaintiffs, in their opposition to the motion,
(Dkt. No.

The Court granted Pepperdine’s motion, although it noted that

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actions alleged in the FAC.

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filed a TAC.

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(Dkt. No. 25.)

Plaintiffs have now

Plaintiffs’ TAC alleges seven causes of action: (1) violation

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of the right of privacy under the California Constitution; (2)

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violation of California Educational Code §§ 220, 66251, and 66270;

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(3) violation of Title IX - deliberate indifference; (4) violation

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of Title IX - intentional discrimination; (5) violation of Title IX

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- retaliation for complaints against discrimination; (6) violation

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of the Unruh Act, California Civil Code §§ 51 et seq.; and (7)

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intentional infliction of emotional distress.

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Pepperdine now moves to dismiss Plaintiffs’ third, fourth, and

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fifth causes of action for failure to state a claim and moves to

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dismiss the claim for prejudgment interest.

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II.

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(See generally TAC.)

(See generally MTD.)

LEGAL STANDARD
A 12(b)(6) motion to dismiss requires the court to determine

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the sufficiency of the plaintiff's complaint and whether or not it

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contains a “short and plain statement of the claim showing that the

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pleader is entitled to relief.”

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Rule 12(b)(6), a court must (1) construe the complaint in the light

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most favorable to the plaintiff, and (2) accept all well-pleaded

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factual allegations as true, as well as all reasonable inferences

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to be drawn from them.

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F.3d 979, 988 (9th Cir. 2001), amended on denial of reh’g, 275 F.3d

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1187 (9th Cir. 2001); Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th

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Cir. 1998).

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Fed. R. Civ. P. 8(a)(2).

Under

See Sprewell v. Golden State Warriors, 266

In order to survive a 12(b)(6) motion to dismiss, the

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complaint must “contain sufficient factual matter, accepted as

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true, to ‘state a claim to relief that is plausible on its face.’”
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1

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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“[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.”

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556 U.S. at 678.

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cognizable legal theory or sufficient facts to support a cognizable

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legal theory.”

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1097, 1104 (9th Cir. 2008); see also Twombly, 550 U.S. at 561-63

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(dismissal for failure to state a claim does not require the

However,

Iqbal,

Dismissal is proper if the complaint “lacks a

Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d

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appearance, beyond a doubt, that the plaintiff can prove “no set of

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facts” in support of its claim that would entitle it to relief).

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complaint does not “suffice if it tenders ‘naked assertion[s]’

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devoid of ‘further factual enhancement.’”

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(quoting Twombly, 550 U.S. at 557).

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plausibility when the plaintiff pleads factual content that allows

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the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.”

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as true “legal conclusions merely because they are cast in the form

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of factual allegations.”

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F.3d 1136, 1139 (9th Cir. 2003).

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III.

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A

Iqbal, 556 U.S. at 678

“A claim has facial

Id.

The Court need not accept

Warren v. Fox Family Worldwide, Inc., 328

DISCUSSION
Pepperdine advances three main arguments in support of its

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motion to dismiss Plaintiffs’ three Title IX causes of action:

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first, that Title IX does not apply to claims based on sexual

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orientation discrimination; second, that Plaintiffs’ allegations do

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not support a Title IX claim based on gender stereotype

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discrimination; and third, that the Title IX claims should be

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dismissed because they are uncertain and not legally cognizable.
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(MTD at 5-22, 24-25.)

Pepperdine also contends that the fifth

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cause of action, for retaliation under Title IX, fails because

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Plaintiffs have not alleged any actionable retaliation.

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22-24.)

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prejudgment interest.”

(Id. at

Finally, Pepperdine moves to dismiss the “claim for
(Id. at 25.)

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A.

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Title IX provides, in relevant part, that “[n]o person in the

Plaintiffs’ Third, Fourth, and Fifth Claims Under Title IX

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United States shall, on the basis of sex . . . be subjected to

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discrimination under any education program or activity receiving

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Federal financial assistance.”

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enacted Title IX with the twin objectives of avoiding the use of

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federal resources to support discriminatory practices and providing

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individual citizens effective protection against those practices.

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Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998).

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20 U.S.C. § 1681(a).

Congress

In interpreting Title IX, courts often look to interpretations

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of Title VII for reference.

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Pub. Sch., 503 U.S. 60, 75 (1992).

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the legislative history of Title IX “strongly suggests that

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Congress meant for similar substantive standards to apply under

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Title IX as had been developed under Title VII.”

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of Oregon, 698 F.3d 715, 724 (9th Cir. 2012).

See, e.g., Franklin v. Gwinnett Cnty.
The Ninth Circuit has held that

Emeldi v. Univ.

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Title IX’s prohibition of discrimination “on the basis of sex”

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encompasses both sex - in the biological sense - as well as gender.

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Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000).

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Furthermore, discrimination based on gender stereotypes constitutes

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discrimination on the basis of sex under Title VII.

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Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989); Nichols v.

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Azteca Rest. Enters., Inc., 256 F.3d 864, 874-75 (9th Cir.
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Price

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2001)(holding that discrimination against either a man or a woman

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on the basis of gender stereotypes is prohibited).

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Ninth Circuit held that a male restaurant employee who was

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discriminated against at work for, among other things, walking

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“like a woman” and not having sexual intercourse with a female

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waitress friend had established an actionable claim for sexual

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harassment under Title VII.

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9

In Nichols, the

Nichols, 256 F.3d at 874-75.

Plaintiffs in this case argue that they have stated an
actionable Title IX claim because Title IX covers sexual

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orientation discrimination, and even if Title IX does not

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explicitly cover sexual orientation discrimination, the actions

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alleged in the TAC constitute gender stereotype discrimination.

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(Opp’n to MTD, Dkt. No. 34, at 6-13.)

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TAC alleges a straightforward claim of discrimination on the basis

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of sex.

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Further, they argue that the

(Id.)
1.

Sexual Orientation Discrimination

This Court, in its prior order dismissing in part Plaintiffs’

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FAC, stated that “the line between discrimination based on gender

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stereotyping and discrimination based on sexual orientation is

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blurry, at best.” (Dkt. No. 25.)

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argument, the Court concludes that the distinction is illusory and

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artificial, and that

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category distinct from sex or gender discrimination.

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of discrimination based on sexual orientation are covered by Title

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VII and IX, but not as a category of independent claims separate

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from sex and gender stereotype.

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orientation discrimination are gender stereotype or sex

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discrimination claims.

After further briefing and

sexual orientation discrimination is not a
Thus, claims

Rather, claims of sexual

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Other courts have acknowledged the difficulty of

2

distinguishing sexual orientation discrimination from

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discrimination based on sex or gender stereotypes.

4

Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 291 (3d Cir. 2009)

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(stating that “the line between sexual orientation discrimination

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and discrimination ‘because of sex’ can be difficult to draw”);

7

Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005)

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(acknowledging that it would be difficult to determine if an

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actionable Title VII claim was stated when a plaintiff stated she

See, e.g.,

10

was discriminated against based on her sex, her failure to conform

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to gender norms, and her sexual orientation, because “the borders

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[between these classes] are so imprecise” (alteration in

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original)); Centola v. Potter, 183 F. Supp. 2d 403, 408 (D. Mass.

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2002)(acknowledging that “the line between discrimination because

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of sexual orientation and discrimination because of sex is hardly

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clear”).

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sexual orientation discrimination is “difficult to draw” because

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that line does not exist, save as a lingering and faulty judicial

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construct.

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Simply put, the line between sex discrimination and

Pepperdine cites to opinions from various federal courts that

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state categorically that sexual orientation discrimination is not

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covered under Title IX.

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Circuit has held only that “an employee’s sexual orientation is

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irrelevant for purposes of Title VII,” and that “[i]t neither

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provides nor precludes a cause of action for sexual harassment.”

26

Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1063 (9th Cir. 2002)

(See MTD at 6-14.)

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28
13

However, the Ninth

1

(en banc) (plurality opinion).1

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Pepperdine relies, for the most part, dismiss analogous sexual

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orientation-based claims in a cursory and conclusory fashion.

4

e.g., Johnson v. Eckstrom, No. C-11-2052 EMC, 2011 WL 5975039, at

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*5 (N.D. Cal. Nov. 29, 2011) (stating, simply, that “neither Title

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VII nor any other federal law protects against discrimination on

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the basis of sexual orientation”).

8

of these cases, which do not fully evaluate the nature of claims

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based on sexual orientation discrimination.

10

Furthermore, the cases upon which

See,

The Court rejects the reasoning

In sexual orientation discrimination cases, focusing on the

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actions or appearance of the alleged victim of discrimination

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rather than the bias of the alleged perpetrator asks the wrong

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question and compounds the harm.

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orientation is irrelevant to a Title IX or Title VII claim because

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it is the biased mind of the alleged discriminator that is the

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focus of the analysis.

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sexuality cannot be defined on a homosexual or heterosexual basis;

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it exists on a continuum.

19

Contract of Bisexual Erasure, 52 Stan. L. Rev. 353, 380-81 (2000)

20

(discussing the “Kinsey scale,” which conceived of sexual

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orientation as a continuum with six ratings).

22

of discrimination who should be forced to put his or her sexual

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orientation on trial.

A plaintiff’s “actual” sexual

This is especially true given that

See Kenji Yoshino, The Epistemic

It is not the victim

We do not demand of a victim of alleged

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1

25
26
27
28

The concurring judges only joined in the result of the
plurality opinion, as the concurrences would have found “actionable
gender stereotyping harassment.” See Rene, 305 F.3d at 1068
(Pregerson, Trott, and Berzon, JJ., concurring); id. at 1069-70
(Graber, J., concurring) (finding facts indistinguishable from
Oncale v. Sundowner Offshore Servs., Inc., 532 U.S. 75 (1998),
where the Court held same sex harassment was covered by Title VII);
id. at 1070 (Fisher, J., concurring).
14

1

religious discrimination, “Prove that you are a real Catholic,

2

Mormon, or Jew.”

3

victim of alleged racial discrimination prove he is black, it is

4

absurd to demand a victim of alleged sex discrimination based on

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sexual orientation prove she is a lesbian.

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turn a Title IX trial into a broad inquisition into the personal

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sexual history of the victim.

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as not only highly inflammatory and offensive, but also irrelevant

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for the purposes of the Title IX discrimination analysis.

10

Just as it would be absurd to demand that a

The contrary view would

Such an approach should be precluded

Therefore, the Court finds that sexual orientation

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discrimination is a form of sex or gender discrimination, and that

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the “actual” orientation of the victim is irrelevant.

13

impossible to categorically separate “sexual orientation

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discrimination” from discrimination on the basis of sex or from

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gender stereotypes; to do so would result in a false choice.

16

Simply put, to allege discrimination on the basis of sexuality is

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to state a Title IX claim on the basis of sex or gender.

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19

2.

It is

Gender Stereotype Discrimination

It is undisputed that Title IX forbids discrimination on the

20

basis of gender stereotypes.

Gender stereotyping is a concept that

21

sweeps broadly.

22

beyond the day when an employer could evaluate employees by

23

assuming or insisting that they matched the stereotype associated

24

with their group, for ‘[i]n forbidding employers to discriminate

25

against individuals because of their sex, Congress intended to

26

strike at the entire spectrum of disparate treatment of men and

27

women resulting from sex stereotypes.’”) (quoting Los Angeles Dep’t

28

of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)).

See Price Waterhouse, 490 U.S. at 251 (“[W]e are

15

As

1

discussed above, discrimination based on gender stereotyping

2

encompasses sexual orientation discrimination.

3

Plaintiffs allege here that they were discriminated against

4

because of the Pepperdine women’s basketball staff’s belief that

5

Plaintiffs were lesbian.

6

stereotypes about lesbians and lesbianism formed the basis of the

7

staff’s harassment.

8
9

Plaintiffs also allege that the staff’s

(TAC ¶ 19.)

The type of sexual orientation discrimination Plaintiffs
allege falls under the broader umbrella of gender stereotype

10

discrimination.

11

general, stem from a person’s views about the proper roles of men

12

and women – and the relationships between them.

13

based on a perceived failure to conform to a stereotype constitutes

14

actionable discrimination under Title IX.

15

Supp. 2d at 410 (“Conceivably, a plaintiff who is perceived by his

16

harassers as stereotypically masculine in every way except for his

17

actual or perceived sexual orientation could maintain a Title VII

18

cause of action alleging sexual harassment because of his sex due

19

to his failure to conform with sexual stereotypes about what ‘real’

20

men do or don’t do.”).

21

Stereotypes about lesbianism, and sexuality in

Discrimination

See Centola, 183 F.

Here, Plaintiffs allege that they were repeatedly harassed and

22

treated differently from other similarly situated individuals

23

because of their perceived sexual orientation.

24

and support staff repeatedly queried Plaintiffs about their sexual

25

orientation, their private sexual behavior, and their dating lives.

26

Plaintiffs allege that they were told lesbianism would not be

27

tolerated on the women’s basketball team.

28

allege that they were not cleared to play basketball because of
16

Coaches, trainers,

Plaintiffs further

1

Pepperdine’s discriminatory views against lesbianism.

2

women’s basketball staff in this case had a negative view of

3

lesbians based on lesbians’ perceived failure to conform to the

4

staff’s views of acceptable female behavior, actions taken on the

5

basis of these negative biases would constitute gender stereotype

6

discrimination.

7

discrimination because they allege that Pepperdine treated them

8

differently due to their perceived lack of conformity with gender

9

stereotypes, and further that Pepperdine discriminated against them

10
11
12

If the

Consequently, Plaintiffs have stated a claim for

based on stereotypes about lesbianism.
3.

Sex Discrimination

In addition to stating a claim based on gender stereotyping

13

discrimination, Plaintiffs have stated a claim that they were

14

discriminated against because of their sex.

15

basis of sex can be defined as treating someone differently simply

16

because that person’s sex is different from a similarly situated

17

person of the opposite sex.

18

the “simple test of whether the evidence shows treatment of a

19

person in a manner which but for that person’s sex would be

20

different” (internal quotation marks omitted)); Oncale, 523 U.S. at

21

80 (describing the “critical issue” under Title VII as whether the

22

discrimination would have occurred if the sex of the victim had

23

been different).

24

Discrimination on the

See Manhart, 435 U.S. at 711 (applying

Here, Plaintiffs allege that they were told that “lesbianism”

25

would not be tolerated on the team.

26

dating females, instead of females dating females, they would not

27

have been subjected to the alleged different treatment.

28

have stated a straightforward claim of sex discrimination under
17

If Plaintiffs had been males

Plaintiffs

1

Title IX.

Cf. Latta v. Otter, 771 F.3d 456, 480 (9th Cir.

2

2014)(Berzon, J., concurring)(finding same-sex marriage bans were

3

facially discriminatory on the basis of sex because the bans

4

dictated who could marry who based on the sex of the marriage

5

participants).

6

This Court’s conclusion is in line with a recent Equal

7

Employment Opportunity Commission (“EEOC”) decision holding that

8

sexual orientation discrimination is covered under Title VII, and

9

therefore that the EEOC will treat sexual orientation

10

discrimination claims the same as other sex discrimination claims

11

under Title VII.

12

EEOC Appeal No. 0120133080, 2015 WL 4397641, at *10, (EEOC July 16,

13

2015) (holding that “allegations of discrimination on the basis of

14

sexual orientation necessarily state a claim of discrimination on

15

the basis of sex”).

16

show that the sexual orientation discrimination he or she

17

experienced was sex discrimination because it involved treatment

18

that would not have occurred but for the individual’s sex; because

19

it was based on the sex of the person(s) the individual associates

20

with; and/or because it was premised on the fundamental sex

21

stereotype, norm, or expectation that individuals should be

22

attracted only to those of the opposite sex.”

23

reasons, as well as for the reasons stated in this Order, this

24

Court agrees.

25

B.

26

Pepperdine further argues that Plaintiffs’ fifth cause of

27

Baldwin v. Anthony Foxx, Sec’y, Dep’t of Transp.,

The EEOC concluded that “[a]n employee could

Id.

For these

Plaintiffs’ Title IX Retaliation Claim

action, for retaliation under Title IX, must be dismissed because

28
18

1

Plaintiffs have not alleged facts establishing a prima facie case

2

of retaliation.

3

Under Title IX, “a plaintiff who lacks direct evidence of

4

retaliation must first make out a prima facie case of retaliation

5

by showing (a) that he or she was engaged in protected activity,

6

(b) that he or she suffered an adverse action, and (c) that there

7

was a causal link between the two.”

8

order to make out a prima facie case, a plaintiff “need only make a

9

minimal threshold showing of retaliation.”

10

Emeldi, 698 F.3d at 724.

In

Id.

Here, Plaintiffs have clearly pled a plausible claim for

11

retaliation.

12

complained to the coaching staff and Pepperdine’s Title IX

13

coordinator about the harassment they suffered.

14

Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005) (“Retaliation

15

against a person because that person has complained of sex

16

discrimination is another form of intentional sex discrimination

17

encompassed by Title IX's private cause of action.”).

18

Plaintiffs allege various retaliatory actions they experienced as a

19

result of their complaints.

20

They allege that, ultimately, they were forced off the basketball

21

team and lost their scholarships.

22

Plaintiffs were engaged in protected activity.

They

See Jackson v.

Furthermore,

(See, e.g., TAC ¶¶ 34-36, 63-69.)

Pepperdine argues that because Plaintiffs tried to hide their

23

relationship status, they therefore never could have made a

24

complaint about discrimination.

25

Plaintiffs clearly allege that they complained to the coaching

26

staff and school officials about the intrusive questioning and

27

harassment to which they were subjected.

28

may never have explicitly told school officials that they were

This argument is without merit.

19

The fact that Plaintiffs

1

dating is irrelevant to whether they complained that they were

2

being harassed.

3

sexual orientation or relationship status improperly focuses the

4

inquiry on the status of the victim rather than the bias of the

5

alleged harasser, and imposes a burden that Title IX does not

6

contemplate.

7

Again, requiring that Plaintiffs disclose their

C. Uncertainty of Plaintiffs’ Third, Fourth, and Fifth Causes
of Action

8
9

Pepperdine asserts that because Plaintiffs have chosen to

10

plead their Title IX theories under three separate causes of

11

action, this format renders Plaintiffs’ Title IX claims “uncertain

12

and not legally cognizable.”

13

argument is unavailing in light of the liberal pleading standards

14

of Federal Rule of Civil Procedure 8.

15

have pled their Title IX claims as a single cause of action, the

16

fact that they included them as three separate causes of action

17

does not require dismissal.

18

that the complaint must contain “a short and plain statement of the

19

claim showing that the pleader is entitled to relief.”

20

Civ. P. 8(a)(2).

21

technical form is required” for pleadings, and further that “[a]

22

party may set out 2 or more statements of a claim or defense

23

alternatively or hypothetically, either in a single count or

24

defense or in separate ones.”

25

Plaintiffs’ third, fourth, and fifth claims are not “legally

26

uncognizable” or “uncertain,” and cannot be dismissed for such a

27

reason.

28

///

(See MTD at 24-25.)

Pepperdine’s

Although Plaintiffs could

Under Rule 8, all that is required is

Fed. R.

In fact, Rule 8 expressly states that “[n]o

Fed. R. Civ. P. 8(d).

20

Accordingly,

1

D.

Prayer for Prejudgment Interest

2

Pepperdine also moves to dismiss Plaintiffs’ prayer for

3

prejudgment interest.

Strictly speaking, Plaintiffs’ request for

4

prejudgment interest is contained in their “Relief Requested”

5

rather than pled as a separate claim, and thus a motion to dismiss

6

under Rule 12(b)(6) is the improper vehicle to use in arguing

7

against prejudgment interest.

8

moved to strike the prayer for prejudgment interest.

9

Civ. P. 12(f).

Instead, Pepperdine should have
See Fed. R.

The Court will treat Pepperdine’s motion as a

10

motion to strike with respect to the prayer for prejudgment

11

interest.

12

Plaintiffs argue that, at this stage of the proceedings,

13

because the nature of their claims remain “in flux,” the Court

14

should defer ruling on the issue of prejudgment interest until a

15

later point in the case.

16

Pepperdine’s substantive arguments.

17

Plaintiffs have not responded to

California Civil Code Sections 3287 and 3288 govern awards of

18

prejudgment interest.

19

entitled to prejudgment interest on their state law claims because

20

the damages involved are for “the intangible, noneconomic aspects

21

of mental and emotional injury.”

22

Assn. v. City of Los Angeles, 26 Cal. 3d 86, 103 (1979).

23

the damages involved in the present case may go beyond mental and

24

emotional injury.

25

actions, Plaintiffs were forced off the women’s basketball team,

26

had their scholarships revoked, and withdrew from the school.

27

¶¶ 76-79, 136.)

28

tangible and economic, and thus eligible for prejudgment interest

Pepperdine contends that Plaintiffs are not

Greater Westchester Homeowners
However,

Plaintiffs allege that, due to Pepperdine’s

(TAC

Damages from these types of injuries may be

21

1

under Section 3288.

2

interest will not be stricken.

3

IV.

4

Accordingly, the request for prejudgment

CONCLUSION
For the foregoing reasons, the Court DENIES Pepperdine’s

5

motion to dismiss Plaintiffs’ third, fourth, and fifth causes of

6

action and prayer for prejudgment interest.

7
8
9

IT IS SO ORDERED.

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12

Dated: December 15, 2015
DEAN D. PREGERSON
United States District Judge

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