Nefertiti Takla et al v. The Regents of The University of California

Filing 37

MINUTES OF DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT 20 held before Judge Christina A. Snyder. In accordance with the foregoing, UCLA's motion to dismiss the First Amended Complaint is denied as to Taklas Title IX claims and granted as to Glasgow's vicarious liability claim without leave to amend. IT IS SO ORDERED. Court Reporter: Laura Elias. (lom)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

2:15-cv-04418-CAS(SHx)

Title

NEFERTITI TAKLA AND KRISTEN HILLAIRE GLASGOW V. THE
REGENTS OF THE UNIVERSITY OF CALIFORNIA

Present: The Honorable

Date

November 2, 2015

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Laura Elias
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Vincent Fisher

Hailyn Chen
Sara Taylor

Proceedings:

I.

DEFENDANT’S MOTION TO DISMISS FIRST AMENDED
COMPLAINT (Dkt. 20, filed September 28, 2015)

INTRODUCTION

On August 28, 2015, plaintiffs Nefertiti Takla (“Takla”) and Kristen Hillaire
Glasgow (“Glasgow”) filed their First Amended Complaint (“FAC”) against defendant
the Regents of the University of California (“UCLA”). Dkt. 18. In their FAC, Takla and
Glasgow, Ph.D. candidates at UCLA’s History Department, allege that they were
sexually harassed by Gabriel Piterberg (“Piterberg”), a history professor at UCLA. Takla
and Glasgow assert sexual-harassment and hostile-environment claims against UCLA
under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), and Glasgow
additionally asserts a claim for vicarious liability against the university on the basis of the
negligent supervision, training, and/or retention of Piterberg.
On September 28, 2015, UCLA filed a motion to dismiss Takla’s Title IX claims
and Glasgow’s vicarious-liability claim pursuant to Federal Rule of Civil Procedure
12(b)(6). Dkt. 20. On October 12, 2015, plaintiffs filed their opposition. Dkt. 31. On
October 19, 2015, UCLA filed a reply. Dkt. 32. Having carefully considered the parties’
arguments, the Court finds and concludes as follows.1
1

On October 28, 2015, plaintiffs filed a motion for leave to file a sur-reply to
UCLA’s motion to dismiss the FAC. Plaintiffs seek leave to file a sur-reply on the basis
that UCLA raised a new issue in its reply brief, namely that Takla conceded that UCLA
“promptly investigated” her claims of sexual harassment. The Court grants plaintiffs
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-cv-04418-CAS(SHx)

Title

NEFERTITI TAKLA AND KRISTEN HILLAIRE GLASGOW V. THE
REGENTS OF THE UNIVERSITY OF CALIFORNIA

II.

Date

‘O’

November 2, 2015

BACKGROUND
Takla

Takla alleges that Piterberg, her dissertation advisor, began sexually harassing her
in the summer of 2011. (FAC ¶ 11.) On June 12, 2013, Takla reported the harassment to
UCLA’s former Title IX Coordinator, Pamela Thomason (“Thomason”). (Id. ¶ 55.) On
June 26, 2013, Takla met with the former Chair of UCLA’s History Department, David
Myers, and requested that Piterberg be replaced by a new advisor. (Id. ¶ 61.) Professor
Myers agreed, but asked her not to speak to anyone about what happened with Piterberg.
(Id.)
On July 2, 2013, Takla received an e-mail from Thomason informing her that she
had interviewed Piterberg, who admitted to the “basic facts” but denied “manipulating or
trying to coerce” her. (Id. ¶ 63) Thomason informed Takla that UCLA would handle her
case through a process called, “Early Resolution,” in lieu of a formal hearing before the
Academic Senate, which was Takla’s preference. (Id. ¶¶ 63, 66.) Thomason
discouraged Takla from filing a written request for a formal investigation, stating that
Piterberg’s peers may well side with him. (Id. ¶ 71.) According to Takla, Thomason
convinced her that Early Resolution was the best way to handle this matter because it
would be faster and more efficient and would eliminate the need for Takla to testify
before the Academic Senate. (Id. ¶ 66.) Thomason assured Takla that she would still be
informed of the university’s punishment and sanctions against Piterberg. (Id.)
Thomason noted, however, that in order for UCLA to handle Takla’s claims through
Early Resolution, UCLA’s Vice Chancellor of Academic Personnel, Carol Goldberg,
would need to confirm that Piterberg had not sexually harassed other women on campus.
(Id. ¶ 67.) Thomason learned through her investigation that Piterberg sexually harassed
another graduate student at UCLA, a junior professor in another department, and a junior

leave to file their sur-reply. The proposed sur-reply accompanying plaintiffs’ request,
however, fails to address the new issue that UCLA allegedly raised in its reply. Rather,
the sur-reply is in the nature of a supplemental brief that essentially repeats the arguments
in plaintiffs’ opposition.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:15-cv-04418-CAS(SHx)

November 2, 2015

Title

NEFERTITI TAKLA AND KRISTEN HILLAIRE GLASGOW V. THE
REGENTS OF THE UNIVERSITY OF CALIFORNIA

professor in the History Department. (Id. ¶ 68.) Nonetheless, UCLA settled Takla’s case
through Early Resolution. (Id. ¶ 69.) It is against UCLA’s policy on sexual harassment
to proceed with Early Resolution in cases involving sexual assault or multiple complaints
of sexual misconduct. (Id.)
In March 2014, nine months after Takla first reported Piterberg’s harrassment,
UCLA concluded its investigation without making any formal findings. (Id. ¶ 73.) The
delay in concluding the investigation was in violation of UCLA’s Title IX policies. (Id.)
When Takla requested a formal investigative report in May 2014, Thomason informed
Takla that there was no formal documentation or report, again in violation of UCLA’s
policies. (Id. ¶ 72.) Takla never learned the outcome of Early Resolution nor whether
Piterberg was sanctioned for his conduct. (Id. ¶ 74.)
Fear of running into Piterberg and being subjected to additional sexual harassment
has prevented Takla from going to UCLA’s campus. (Id. ¶ 77.)
Glasgow
Glasgow alleges that she was sexually harassed by Piterberg from February 2008
to October 2013. (Id. ¶¶ 80, 81.) On July 7, 2013, Glasgow received a call from a
faculty member in the History Department informing her that Takla had filed a sexual
harassment complaint against Piterberg to no avail. (Id. ¶ 93.) On July 8, 2013, Glasgow
reported to Thomason that she too was sexually harassed by Piterberg. (Id. ¶ 94.)
Glasgow also contacted Professor Myers and informed him of this fact, but Professor
Myers asked Glasgow not to share her story with others. (Id. ¶ 98.)
In August 2013, Piterberg asked Glasgow to have coffee him on campus. (Id. ¶
115.) During this encounter, Piterberg steered the conversation toward the topic of sex.
(Id.) It became clear to Glasgow at that point that Piterberg did not know that she had
reported him and that Thomason had not followed up with her report. (Id.) On October
5, 2013, at an annual party for graduate students of the History Department, Glasgow was
again sexually harassed by Piterberg. (Id. ¶ 118.)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-cv-04418-CAS(SHx)

Title

NEFERTITI TAKLA AND KRISTEN HILLAIRE GLASGOW V. THE
REGENTS OF THE UNIVERSITY OF CALIFORNIA

III.

Date

‘O’

November 2, 2015

LEGAL STANDARD

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
legal sufficiency of the claims asserted in a complaint. Under Rule 12(b)(6), a district
court properly dismisses a claim if “there is a ‘lack of a cognizable legal theory or the
absence of sufficient facts alleged under a cognizable legal theory.’ ” Conservation Force
v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988), overruled on other grounds by Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 552-63, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
“[F]actual allegations must be enough to raise a right to relief above the speculative
level.” Id.
In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all
material allegations in the complaint, as well as all reasonable inferences to be drawn
from them. Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be
read in the light most favorable to the nonmoving party. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Parks Sch. of Bus., Inc. v. Symington, 51
F.3d 1480, 1484 (9th Cir. 1995). However, “[i]n keeping with these principles a court
considering a motion to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009) (“[F]or a complaint to survive a motion to dismiss, the non-conclusory ‘factual
content,’ and reasonable inferences from that content, must be plausibly suggestive of a
claim entitling the plaintiff to relief.”) (citing Twombly and Iqbal); Sprewell, 266 F.3d at
988; W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Ultimately,
“[d]etermining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:15-cv-04418-CAS(SHx)

November 2, 2015

Title

NEFERTITI TAKLA AND KRISTEN HILLAIRE GLASGOW V. THE
REGENTS OF THE UNIVERSITY OF CALIFORNIA

Unless a court converts a Rule 12(b)(6) motion into a motion for summary
judgment, a court cannot consider material outside of the complaint (e.g., facts presented
in briefs, affidavits, or discovery materials). In re American Cont'l Corp./Lincoln Sav. &
Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom.
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 118 S.Ct. 956,
140 L.Ed.2d 62 (1998). A court may, however, consider exhibits submitted with or
alleged in the complaint and matters that may be judicially noticed pursuant to Federal
Rule of Evidence 201. In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir.
1999); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001), overruled on other
grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002).
IV.

DISCUSSION
A.

Takla’s Title IX Claims

Title IX of the Education Amendments of 1972 states, with certain exceptions not
at issue here, that “[n]o person in the United States 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(a). Title IX provides a private cause of action to students who are sexually harassed
by their teachers. Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 75 (1992) (“Title
IX placed on the Gwinnett County Public Schools the duty not to discriminate on the
basis of sex, and when a supervisor sexually harasses a subordinate because of the
subordinate’s sex, that supervisor discriminates on the basis of sex. We believe the same
rule should apply when a teacher sexually harasses and abuses a student.”) (internal
quotation marks and citation omitted).
To state a claim against UCLA for its faculty member’s sexual harassment of a
student under Title IX, a plaintiff must allege: (1) the institution had “substantial
control” over both the harasser and the context in which the harassment occurred; (2)
plaintiff suffered harassment “that is so severe, pervasive, and objectively offensive that
it can be said to deprive the victim[] of access to the educational opportunities or benefits
provided by the school;” (3) the institution had “actual knowledge” of the harassment;
and (4) the institution acted with “deliberate indifference” to the known harassment, and
this deliberate indifference “cause[d] students to undergo harassment or ma[d]e them
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:15-cv-04418-CAS(SHx)

November 2, 2015

Title

NEFERTITI TAKLA AND KRISTEN HILLAIRE GLASGOW V. THE
REGENTS OF THE UNIVERSITY OF CALIFORNIA

liable or vulnerable to it.” Gebster v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290-93
(1998) (faculty-on-student sexual harassment); Davis v. Monroe Cnty. Bd. of Educ., 526
U.S. 629, 645, 650 (1999) (student-on-student sexual harassment); see Stanley v. Trs. of
Cal. State Univ., 433 F.3d 1129, 1137 (9th Cir. 2006) (adopting Davis’ “deliberate
indifference” standard for imputing liability to educational institutions for faculty
members’ sexual harassment).
UCLA contends that Takla’s Title IX claims should be dismissed for failure to
allege the fourth element. According to UCLA, Takla failed to allege that she
experienced further harassment after making her report, and that UCLA responded to her
report with deliberate indifference. Mot. at 7:21-19:6. For the reasons below, the Court
finds that Takla’s allegations are sufficient to withstand UCLA’s motion to dismiss.
(1)

Further Harassment

In response to UCLA’s argument that Takla has not alleged that she has suffered
further harassment after making her report, Mot. at 7:21-11:9, Takla contends that she has
alleged three forms of further harassment from Piterberg. First, Piterberg delivered a
mediocre Fulbright Fellowship recommendation letter at least a month after he said he
would, and after Takla reported his harassment and rejected a quid pro quo arrangement
where he would provide a research assistant position to Takla in exchange for sex. Opp.
at 6:7-12, citing FAC ¶¶ 40, 47. Second, UCLA became a sexually hostile environment
for Takla after she made her report because Piterberg was still teaching in the History
Department and every time Takla saw Piterberg, she was fearful that he would harass her
again. 6:26-7:6. Third, after Takla filed her report, Piterberg, on one occasion, “stared at
her with an angry look on his face and looked her up and down” and on another occasion,
“closely follow[ed] her and a friend as they walked through campus . . . .” Opp. 7:6-10.
UCLA attacks plaintiff’s first contention on the grounds that the FAC does not
specify whether Piterberg delivered his recommendation letter after Takla reported his
harassment. Reply at 3:9-4:8. UCLA has presented the Court with Piterberg’s
recommendation letter for Takla, which, according to the accompanying Fulbright
reference form, was submitted on May 16, 2013, before plaintiff reported the harassment

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:15-cv-04418-CAS(SHx)

November 2, 2015

Title

NEFERTITI TAKLA AND KRISTEN HILLAIRE GLASGOW V. THE
REGENTS OF THE UNIVERSITY OF CALIFORNIA

to UCLA. Given that the judicially noticed document establishes that Piterberg submitted
the recommendation letter prior to Takla’s report, the Court declines to recognize the late
submission of the recommendation letter as further harassment.
As to Takla’s contention that she was fearful that Piterberg would harass her again after
making her report, which made UCLA a sexually hostile environment for her, UCLA
argues that the FAC does not specify whether UCLA became a sexually hostile
environment after her report. Reply at 4:9-25. Although the FAC does not make the
temporal sequence completely clear, the Court is inclined to read the FAC to mean that
UCLA became a sexually hostile environment after Takla filed her report. (FAC ¶ 140
(“For Plaintiff Takla, UCLA became a sexually hostile environment where her harasser
was still on campus and teaching within the History Department and every time she saw
him there was a fear that he would sexually harass her verbally and/or physically.”).)
As to Takla’s third contention that she encountered Piterberg on campus on two
occasions, UCLA argues that plaintiff has alleged new facts that are not in the FAC.
Reply at 4:26-6:2. UCLA further contends that even if the Court were to consider the
new allegations, Takla will have failed to sufficiently allege further harassment because
occasional sightings of an alleged harasser or allegations that the harasser “followed” or
“stared at” the plaintiff is insufficient to constitute further harassment for purposes of
imposing Title IX liability on an educational institution. Reply at 5 n.1; see Frazer v.
Temple Univ., 25 F. Supp. 3d 598, 614 (E.D. Pa. 2014) (dismissing Title IX claim where
plaintiff’s only allegations of subsequent harassment were that her harasser “followed
her, sat outside her dormitory, . . . ‘and stood directly beside her [in the cafeteria] and
stared at her while she was having a conversation with a fellow student’ ”); O’Hara v.
Colonial Sch. Dist., 2002 U.S. Dist. LEXIS 12153, at *18-19 (E.D. Pa. Mar. 25, 2002)
(dismissing Title IX claim, holding that plaintiffs’ allegations that her harasser “could
occasionally be found in the same vicinity as [plaintiff] and that he would stare at her”
were “not claims of actionable harassment under Title IX”); Ha v. Northwestern Univ.,
2014 WL 5893292, at *2 (N.D. Ill. Nov. 13, 2014) (“[O]ccasional glimpse of [harasser]
on the campus” and “claims that knowledge of [harasser’s] presence on the campus
caused [plaintiff] considerable grief” are not actionable under Title IX).
However, none of these cases explicitly considers whether Title IX liability attaches
when a school’s deliberate indifference “makes [plaintiffs] liable or vulnerable” to further
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:15-cv-04418-CAS(SHx)

November 2, 2015

Title

NEFERTITI TAKLA AND KRISTEN HILLAIRE GLASGOW V. THE
REGENTS OF THE UNIVERSITY OF CALIFORNIA

harassment, as opposed to “causing [students] to undergo” harassment.2 In Davis, the
U.S. Supreme Court interpreted the language of Title IX to delineate the conditions under
which a school’s “deliberate indifference” would permit imposing liability on an
educational institution. 526 U.S. at 644-45. Because Title IX dictates that no person
shall “be subjected to discrimination” on the basis of sex, the Supreme Court looked to
the dictionary meaning of “subject” to hold that deliberate indifference must, at a
minimum, “cause [students] to undergo” or “make liable or vulnerable” to harassment.
Id. UCLA would have this Court understand the phrase, “make liable and vulnerable[,]”
to “describe a type of causation by which an institution’s conduct can be alleged to have
resulted in further harassment.” Mot. 10:3-13. Based on UCLA’s interpretation of
Davis, therefore, a Title IX claim cannot be brought “based merely on alleged
‘vulnerability’ without an allegation that any further harassment actually occurred.” Id.
10:6-13. The Court disagrees. Given that the phrase, “cause [students] to undergo”
harassment already contains an element of causation and that the phrase, “make liable and
vulnerable” would be redundant if construed to require further harassment, the Court is
not persuaded that UCLA’s interpretation is correct.
Although there is a dearth of case law interpreting the phrase “make liable and
vulnerable[,]” courts have recognized that a “vulnerability” to harassment created by a
university’s inadequate response, in the absence of “actual” harassment, can be
actionable. In Kelly v. Yale University, a case analogous to the case at hand, a college
student was sexually assaulted by a fellow student, and claimed that the university was
deliberately indifferent in its response to the sexual assault where it failed to
accommodate her repeated requests for academic and residential accommodations that
would separate her from her assailant. 2003 WL 1563424, at *4 (D. Conn. Mar. 26,
2003). The plaintiff had “related to administrators the discomfort and fear that she would
2

UCLA claims that the court in Moore v. Murray State Univ. held that the
plaintiff’s Title IX claim failed as a matter of law because there were “no allegations that
the indifference caused [plaintiff] to experience further or additional harassment.” 2013
WL 960320, at *5 (W.D. Ky. Mar. 12, 2013); Mot. at 8 n. 1. But the complaint in that
case also failed to allege that the school’s deliberate indifference “made [the plaintiff]
liable or vulnerable to” harassment. In other words, the case does not necessarily stand
for the proposition that a plaintiff must allege “actual” post-report harassment in order to
plead deliberate indifference.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

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Case No.

2:15-cv-04418-CAS(SHx)

November 2, 2015

Title

NEFERTITI TAKLA AND KRISTEN HILLAIRE GLASGOW V. THE
REGENTS OF THE UNIVERSITY OF CALIFORNIA

feel if she encountered [the assailant].” Id. The court denied summary judgment for the
university on the issue of whether the university was deliberately indifferent, stating that
“[a]lthough [the plaintiff] was not subjected to further harassment by [the assailant], it
was her departure from her classes and her dormitory, not any immediate action taken by
Yale, that assured that outcome” and that “[t]herefore, a reasonable jury could find that
Yale’s response, or lack thereof, rendered [the plaintiff] ‘liable or vulnerable’ to [the
assailant’s] harassment.” Id. (emphasis added); see also Doe, ex rel. Doe v. Derby Bd. of
Educ., 451 F. Supp. 2d 438, 444 (D. Conn. 2006) (in the context of determining the
severity of the harassment suffered by the plaintiff, the court noted, “[the plaintiff] was
constantly exposed to a potential encounter with her assailant because [their schools]
were housed in the same building such that students from each could readily come in
contact with each other. In fact, [the plaintiff’s] affidavit states that she saw [the
assailant] many times during the school year and that the experience of seeking him ‘was
very upsetting’ and made the ‘school year very hard.’ Thus, even absent actual postassault harassment by [the assailant], the fact that he and plaintiff attended school
together could be found to constitute pervasive, severe, and objectively offensive
harassment.”).3
The Court agrees with plaintiffs that placing undue emphasis on whether further
harassment actually occurred to gauge the responsiveness of an educational institution
would penalize a sexual harassment victim who takes steps to avoid the offending
environment in which she may again encounter the harasser. 2003 WL 1563424, at *4;
see also Williams v. Bd. of Regents of the Univ. Sys. of Georgia, 477 F.3d 1282, 1297
(11th Cir. 2007) (“Although Williams withdrew from UGA the day after the . . . incident,
we do not believe that at this stage her withdrawal should foreclose her argument that
3

At oral argument, UCLA’s counsel argued that Kelly and Doe are not controlling
given that the Ninth Circuit in Reese v. Jefferson Sch. Dist. held that “under Davis, the
school district cannot be deemed to have ‘subjected’ the plaintiffs to the harassment”
because “there was no evidence that any harassment occurred after the school district
learned of the plaintiffs’ allegations.” 208 F.3d 736, 740 (9th Cir. 2000). However,
Reese does not specifically address Davis’ vulnerability prong. Moreover, the
harassment there ended only because “[b]y that time, the school year had ended.” Id. In
other words, even if the school had done nothing, plaintiffs could not have been subjected
to further harassment nor be made vulnerable to it.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:15-cv-04418-CAS(SHx)

November 2, 2015

Title

NEFERTITI TAKLA AND KRISTEN HILLAIRE GLASGOW V. THE
REGENTS OF THE UNIVERSITY OF CALIFORNIA

UGA continued to subject her to discrimination. In light of the harrowing ordeal that
Williams faced on January 14, her decision to withdraw from UGA was reasonable and
expected.”). That Takla took it upon herself to avoid her alleged harasser by not setting
foot on the UCLA campus should not absolve UCLA of its responsibility to take
reasonable measures to end the harassment.
Accordingly, the Court denies UCLA’s motion to dismiss Takla’s Title IX claims on the
basis of her failure to plead “actual” further harassment.
(2)

Deliberate Indifference

Deliberate indifference is a high standard that requires the plaintiff to prove
conduct that is beyond mere negligence on the part of the educational institution. Oden,
440 F.3d at 1089. An educational institution acts with deliberate indifference “only
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 (emphasis added). “Under
this standard, if an institution takes timely and reasonable measures to end the
harassment, it is not liable under Title IX for prior harassment.” Lilah R. v. Smith, 2011
U.S. Dist. LEXIS 81023, at *14 (N.D. Cal. Jul. 22, 2011). “If, on the other hand, an
institution either fails to act, or acts in a way which could not have reasonably been
expected to remedy the violation, then the institution is liable for what amounts to an
official decision not to end discrimination.” Id., citing Gebster, 524 U.S. at 290 (“The
administrative enforcement scheme presupposes that an official who is advised of a Title
IX violation refuses to take action to bring the recipient into compliance. The premise, in
other words, is an official decision by the recipient not to remedy the violation.”).
UCLA asks this Court to dismiss Takla’s Title IX claims, contending that her
allegations do not support the inference that UCLA responded to her report of sexual
harassment with deliberate indifference. Mot. at 11:10-19:6. The Court finds that it is
premature to dismiss Takla’s claims at the pleading stage on the basis that UCLA’s
response was not deliberately indifferent as a matter of law.
The FAC contains a number of allegations that, taken together, makes a plausible
claim that UCLA’s response to her report of sexual harassment was deficient and not
reasonably expected to remedy the violation. First, UCLA handled Takla’s report
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UNITED STATES DISTRICT COURT
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Case No.

2:15-cv-04418-CAS(SHx)

November 2, 2015

Title

NEFERTITI TAKLA AND KRISTEN HILLAIRE GLASGOW V. THE
REGENTS OF THE UNIVERSITY OF CALIFORNIA

through what appears to be a truncated process called “Early Resolution,” rather than a
formal hearing before the Academic Senate, even though Thomason learned through her
investigation that Piterberg had previously harassed another graduate student and two
junior professors. (FAC ¶¶ 66, 68.) This was in violation of UCLA’s own Title IX
policy, which prohibits the use of Early Resolution in cases that involve multiple
complaints of sexual misconduct. (Id. ¶ 69.) Second, Thomason discouraged Takla from
filing a written request for a formal investigation, stating that Piterberg’s peers may well
side with him and that Early Resolution would be faster and more efficient. (Id. ¶ 71.)
Third, Takla requested a formal investigative report after the conclusion of Early
Resolution, but was told that no formal documentation or report existed because the
matter was handled through Early Resolution. (Id. ¶ 72.) This too was in violation of
UCLA’s own policy, which states that Early Resolution efforts should be documented.
(Id.) Fourth, UCLA took nine months to investigate Takla’s report but did not make any
findings at the conclusion of its investigation, again in violation of UCLA’s policy. (Id. ¶
73.) Fifth, UCLA did not inform Takla of the outcome of Early Resolution or whether
Piterberg was sanctioned for his conduct. (Id. ¶ 74.) These allegations, read in the light
most favorable to Takla, are plausibly suggestive of a claim entitling Takla to relief. See
Lilah R. v. Smith, 2011 U.S. Dist. LEXIS 81023, at * (N.D. Cal. Jul. 22, 2011) (denying
school’s motion to dismiss where plaintiff’s allegations showed that the school failed to
timely complete its investigation in violation of Board of Education policy, failed to
address steps it would take to limit the alleged harasser’s future contact with plaintiff, and
refused to transfer the alleged harasser from his position).
The Court recognizes, as UCLA argues, that Takla’s allegations, taken
individually, may not constitute deliberate indifference. Specifically, Title IX does not
impose on schools the duty to make particular disciplinary decisions. Oden, 440 F.3d at
1089 (“An aggrieved party is not entitled to the precise remedy that he or she would
prefer.”). Nor do delays in completing an investigation into reports of sexual harassment
or violations of the school’s own rules for investigating sexual harassment, necessarily
amount to deliberate indifference. Id. (affirming summary judgment for school where
there was a nine-month delay in convening a hearing on plaintiff’s charges and the school
violated its own policy by failing to convene a hearing within 30 days of receiving a
report). A failure to inform the student of the disciplinary action taken against the alleged
harasser may also be excusable. Ha, 2014 WL 5893292, at *2 (granting university’s
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:15-cv-04418-CAS(SHx)

November 2, 2015

Title

NEFERTITI TAKLA AND KRISTEN HILLAIRE GLASGOW V. THE
REGENTS OF THE UNIVERSITY OF CALIFORNIA

motion to dismiss where “[d]efendant took disciplinary action against [harasser] without
disclosing the specifics other than instructing him to have no contact with Plaintiff.”).
In both Oden and Ha, however, the schools’ response went significantly beyond
what is alleged here. In Oden, the college formed a committee and commenced hearings
on the plaintiff’s allegations, assisted the plaintiff in filing a formal complaint, issued a
written decision after the hearing finding that the alleged harasser was guilty of sexual
harassment, and took disciplinary measures against the alleged harasser including a
suspension and a denial of a raise. 440 F.3d at 1087-89. In Ha, the university issued a
memorandum at the conclusion of its investigation, informing the plaintiff of the
university’s conclusion that her professor was guilty of sexual harassment and that
corrective and remedial actions would be taken. 2014 WL 5893292, at *1.
In its briefings, UCLA makes several fact-intensive assertions, describing in detail
the measures that it took to investigate Takla’s report and its efforts to protect Takla from
further harassment. These arguments are better decided on a motion for summary
judgment. At that time, plaintiffs and UCLA will have the opportunity to present
evidence supporting their respective arguments as to whether UCLA’s actions were, or
were not, “clearly unreasonable in light of the known circumstances.” At the pleading
stage, however, the Court declines to find that UCLA’s response was not deliberately
indifferent as a matter of law.
B.

Glasgow’s Vicarious Liability Claim

Glasgow claims that UCLA is vicariously liable for the negligent supervision,
training, and retention of Piterberg by three of its employees, who could have prevented
the harassment that occurred after she filed her report: (1) UCLA’s former Title IX
Officer, Pamela Thomason; (2) the former Chair of UCLA’s History Department, David
Myers, and (3) UCLA’s Vice Chancellor of Academic Personnel, Carole Goldberg.
(FAC. ¶¶ 123-30, 159-62.) Glasgow premises her vicarious liability claim on section
815.2 of the California Government Code, which states:
A public entity is liable for injury proximately caused by an act or omission
of an employee of the public entity within the scope of his employment if
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:15-cv-04418-CAS(SHx)

November 2, 2015

Title

NEFERTITI TAKLA AND KRISTEN HILLAIRE GLASGOW V. THE
REGENTS OF THE UNIVERSITY OF CALIFORNIA
the act or omission would, apart from this section, have given rise to a cause
of action against that employee or his personal representative.

Cal. Gov’t Code § 815.2(a).
UCLA contends that Glasgow’s claim fails as a matter of law for two reasons: (1)
Glasgow fails to allege a “special relationship” between UCLA personnel and herself,
which, according to UCLA, is necessary for stating a claim of vicarious liability against
UCLA; and (2) UCLA, as a public entity, is immune from tort liability arising from its
employees’ discretionary acts under sections 815.2(b) and 820.2 of the California
Government Code. Mot. at 19:7-24:26.
The Court finds that UCLA is immune from vicarious liability under the code
sections cited above, and does not reach UCLA’s alternate argument that Glasgow failed
to allege a “special relationship” with UCLA.
Discretionary Immunity
Sections 815.2(b) and 820.2 of the California Government Code together grant
immunity to a public entity whose employees are alleged to have caused injury through
their discretionary actions taken within the scope of their employment. Section 815.2(b)
states:
Except as otherwise provided by statute, a public entity is not liable for an
injury resulting from an act or omission of an employee of the public entity
where the employee is immune from liability.
Cal. Gov’t Code § 815.2(b). Section 820.2 states:
Except as otherwise provided by statute, a public employee is not liable for
an injury resulting from his act or omission where the act or omission was
the result of the exercise of the discretion vested in him, whether or not such
discretion be abused.
Id. § 820.2.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:15-cv-04418-CAS(SHx)

November 2, 2015

Title

NEFERTITI TAKLA AND KRISTEN HILLAIRE GLASGOW V. THE
REGENTS OF THE UNIVERSITY OF CALIFORNIA

A “discretionary act is one which requires the exercise of judgment or choice” and
an “equitable decision of what is just and proper.” Johnson v. State of California, 69 Cal.
2d 782, 788 (1968). Public entities are not, however, shielded from “lower-level, or
ministerial decisions that merely implement a basic policy already formulated.”
Caldwell v. Montoya, 10 Cal. 4th 972, 981 (1995); Johnson, 69 Cal. 2d at 788 (“[A]
discretionary act is one which requires personal deliberation, decision and judgment
while an act is said to be ministerial when it amounts only to . . . the performance of a
duty in which the officer is left no choice of his own.”) (internal quotation marks and
citation omitted). Courts have drawn this distinction, recognizing the need for “judicial
abstention in areas in which the responsibility for basic policy decisions has been
committed to coordinate branches of government.” Johnson, 69 Cal. 2d at 793 (emphasis
in original).
Glasgow argues that UCLA administrators’ negligent hiring, supervision, and
retention of Piterberg were not policy, or “planning-level,” decisions but rather the
“ministerial acts” of executing UCLA’s Title IX and employment policies. Case law,
however, holds otherwise. Decisions regarding the hiring and retention of employees and
regarding the proper responses to allegations of harassment, are discretionary acts and
subject to immunity under sections 815.2(b) and 820.2 of the California Government
Code. Nicole M. ex rel. Jacqueline M. v. Martinez Unified. Sch. Dist., 964 F. Supp.
1369, 1389-90 (N.D. Cal. 1997) (“Decisions by a school principal or superintendent to
impose discipline on students and conduct investigations of complaints [of sexual
harassment] necessarily require the exercise of judgment or choice, and accordingly are
discretionary, rather than ministerial, acts.”); Doe ex rel. Doe v. Petaluma City Sch. Dist.,
830 F. Supp. 1560, 1582-83 (N.D. Cal. 1993) (holding that school counselor was immune
from liability under section 820.2 for negligent and intentional infliction of emotional
distress based on his allegedly inadequate responses to plaintiff’s reports of sexual
harassment); Caldwell, 10 Cal. 4th at 981-82 (holding that school board’s decision to
terminate school principal was a discretionary act entitling board members to immunity
under section 820.2); Kemmerer v. Cnty. of Fresno, 200 Cal. App. 3d 1426, 1438 (1988)
(holding that administrators’ decision to “institute disciplinary proceedings against”
county employee “was a policy decision involving the exercise of discretion entitling
them to immunity under Government Code section 820.2”).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:15-cv-04418-CAS(SHx)

November 2, 2015

Title

NEFERTITI TAKLA AND KRISTEN HILLAIRE GLASGOW V. THE
REGENTS OF THE UNIVERSITY OF CALIFORNIA

Given that UCLA is immune from liability for its employees’ discretionary acts,
Glasgow’s claim for vicarious liability against UCLA on the basis of its employees’
negligent supervision, training, and retention of Piterberg fails as a matter of law.
V.

CONCLUSION

In accordance with the foregoing, UCLA’s motion to dismiss the First Amended
Complaint is denied as to Takla’s Title IX claims and granted as to Glasgow’s vicariousliability claim without leave to amend.
IT IS SO ORDERED.4
00
Initials of Preparer

:

14

CMJ

4

The Court declines to take judicial notice of Exhibit 9, an email from Thomason
to Piterberg, informing Piterberg of Takla’s report and instructing him to avoid contact
with Takla. Plaintiffs argue that the email is admissible under California Evidence Code
§ 452(c), which permits a court to take judicial notice of “[o]fficial acts of the legislative,
executive, and judicial departments of the United States.” Whether the email in question
constitutes an “official act,” however, is a fact-specific inquiry that this Court declines to
conduct at this stage of the proceeding.
UCLA also seeks to have this Court take judicial notice of a variety of emails.
Because, at best, these emails could be judicially noticed to demonstrate that they were
sent, and not for the truth of the matters asserted, the Court declines to judicially notice
them.
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