Keel v. Delaware State University Board of Trustees et al
Filing
23
MEMORANDUM OPINION. Signed by Judge Maryellen Noreika on 2/8/2019. (dlw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MAI-AJAH KEEL,
)
)
Plaintiff,
)
)
v.
)
)
DELAWARE STATE UNIVERSITY
)
)
BOARD OF TRUSTEES; CANDY
YOUNG, in her individual capacity; PAULA )
DUFFY, in her individual capacity; and
)
RANDOLPH JOHNSON, in his individual
)
capacity,
)
Defendants.
)
C.A. No. 17-1818 (MN)
MEMORANDUM OPINION
Laura Davis Jones, James I. Stang, James E. O’Neill – PACHULSKI STANG ZIEHL & JONES LLP,
Wilmington, DE; Alexander S. Zalkin, Ryan M. Cohen – THE ZALKIN LAW FIRM, P.C., San Diego
CA – Attorneys for Plaintiff
James D. Taylor, Jr., SAUL EWING ARNSTEIN & LEHR LLP, Wilmington, DE – Attorneys for
Defendants
February 8, 2019
Wilmington, Delaware
NOREIKA, U.S. DISTRICT JUDGE:
Presently before the Court are the objections of Plaintiff Mai-Ajah Keel (“Plaintiff” or
“Keel”) (D.I. 20) to Magistrate Judge Fallon’s Report and Recommendation (D.I. 19, “the
Report”).
The Report recommended granting the motion of Defendants Delaware State
University Board of Trustees, Candy Young, Pamela Duffy, and Randolph Johnson (collectively
“Defendants”) to dismiss this case. (D.I. 10). The Court has reviewed the Report (D.I. 19),
Plaintiff’s objections and Defendants’ responses thereto (D.I. 20, 22), and the Court has
considered de novo the objected-to portions of the Report and the relevant portions of Defendants’
motion to dismiss and Plaintiff’s response to the motion (see D.I. 10, 11, 14, 15, 17). For the
reasons set forth below, Plaintiff’s objections are OVERRULED, the Report is ADOPTED and
Defendant’s motion to dismiss is GRANTED. 1
I.
BACKGROUND
Plaintiff was a student at Delaware State University (“DSU”) prior to her graduation on
December 21, 2015. (D.I. 1 ¶¶ 9, 44). Defendant DSU University Board of Trustees is “the
official governing body of [DSU] and is charged with operating and governing [DSU] . . . .”
(D.I. 1 ¶ 1). Defendant Candy Young (“Young”) was “the Director of the Title IX Office” at
DSU. (D.I. 1 ¶ 2). Plaintiff alleges that Young “was responsible for participating in making,
communicating, enforcing, and implementing all policies and practices at [DSU] with respect to
Title IX, including insuring [DSU’s] policies and procedures concerning Title IX comply with
federal law.” (Id.) Defendant Paula Duffy (“Duffy”) is “the Director of the Office of Judicial
1
The Report recommended granting the motion to dismiss with prejudice. The Court,
however, is not entirely certain that Plaintiff cannot allege facts sufficient to survive a
motion to dismiss pursuant to Rule 12(b)(6), and thus will grant the motion without
prejudice.
1
Affairs at [DSU].” (Id. ¶ 3). Plaintiff alleges that Duffy is “responsible for overseeing the
enforcement of [DSU] policies, regulations, and rules, including but not limited to compliance
with the Student Code of Conduct, as well as implementing and overseeing any judicial
proceedings relative to alleged violations of [DSU] policies, regulations, and rules and sanctions
issued by the judicial body.” (Id.). Defendant Randolph Johnson “is the Director of Bands” at
DSU and “is responsible for overseeing all band activities at [DSU] including providing
supervision, direction, and insuring the safety of all band participants.” (Id. ¶ 4).
Plaintiff filed her Complaint on December 19, 2017, alleging gender discrimination in
violation of Title IX (Count 1) and violation of the Equal Protection Clause of the Fourteenth
Amendment pursuant to 42 U.S.C. § 1983 (Count 2). (D.I. 1 ¶¶ 53-66). The allegations arise
from an alleged sexual assault of Plaintiff by another DSU student on November 22, 2013 and
the subsequent actions (or inactions) of the Defendants with respect to Plaintiff following that
assault. The timeline of Plaintiff’s allegations is as follows:
On November 22, 2013, Jason Faustin (“Faustin”), a fellow DSU male student, sexually
assaulted Keel. (Id. ¶¶ 13-16). On or about November 25, 2013, Keel reported the assault to
Dr. Brian Stark, a professor of criminology at DSU. (Id. ¶ 18). Thereafter, Keel was referred to
Dr. Pauline Meek in DSU’s counseling services department. (Id. ¶¶ 18-19). Despite Plaintiff
“expressing her fear of encountering Faustin on campus,” Dr. Meek arranged a meeting with Keel
and Faustin “a couple of weeks” after the assault. (Id. ¶¶ 19-20). At the meeting, “Faustin
apologized to Keel and agreed that he would no longer contact [her], including no longer touching
or talking to her.” (Id. ¶ 20).
Plaintiff continued to attend counseling sessions with Dr. Meek until February of 2015.
(Id. ¶ 22). Plaintiff alleges that “during this time” Faustin continued “to repeatedly hug, touch,
2
and attempt to speak with, and otherwise contact [her] . . . .” (Id.). Faustin reportedly “hugged
Keel at band practice on an almost daily basis, making Keel angry and uncomfortable.” (Id.).
Plaintiff reported this conduct to Dr. Meek. (Id.).
“On or about August 22, 2014, and again on or about February 4, 2015, Keel reported”
the assault anonymously through “silent witness forms on the [DSU Police Department
(“DSUPD”)] website.” (Id. ¶¶ 23-24). On or about February 5, 2015, Plaintiff “detailed the rape
to DSUPD Sergeant Joi Simmons, including that she told Faustin ‘no’ and asked him to stop, but
he continued to assault her.” (Id. ¶ 24). Plaintiff provided additional information to Sergeant
Simmons, including Faustin’s “history of this behavior,” the identity of “five additional women”
who purportedly had similar experiences with Faustin and Plaintiff’s “mental and emotional
anguish.” (Id.). “Later that day, Sergeant Simmons spoke with Faustin” who admitted that “Keel
said stop several times and he did not stop.” (Id.). DSUPD continued its investigation later in
February of 2015 – including talking to “several female students” who reported similar
experiences to Plaintiff’s. (Id. ¶ 30). Ultimately, Faustin was arrested. (Id. ¶ 27).
After talking to Sergeant Simmons, Plaintiff “also spoke with Delaware State Title IX
coordinator Candy Young.” (Id. ¶ 26). Plaintiff alleges that she “detailed the rape and subsequent
harassment she suffered to Ms. Young” and informed her of Plaintiff’s “academic struggles and
that she shared class with Faustin. Despite this, Ms. Young failed to offer accommodations to
Keel. Further, despite agreeing to provide Keel with a no contact order, Ms. Young never
followed through with enacting a no contact order.” (Id. ¶ 26).
Eventually Faustin was arrested. After Faustin’s arrest, Keel alleges that she suffered
harassment from DSU students and employees. (Id. ¶¶ 27-28). This included students “making
aggressive gestures and calling her derogatory names” and on one occasion threatening to push
3
her as she walked past. (Id.). With respect to DSU employees, Plaintiff alleges that as she
“struggled with the ramifications of the sexual assault and the ongoing retaliatory behavior from
other students, her attendance at band functions decreased. In response, Assistant Band Director
Lenny Knight made harassing comments to Keel such as that he was tired of people who did not
show up for band or who did not care because of ‘bullshit’ and ‘drama.’” (Id. ¶ 28). Plaintiff
alleges that Mr. Knight “berated” her for “making big things out of little things” and that he
“ignored her concerns and made no attempt to stop the behavior.” (Id.).
In March 2015, DSU “began a series of hearings to adjudicate whether Faustin was
responsible for the sexual assault and rape of Keel.” (Id. ¶ 33). “On or about March 31, 2015,
the panel hearing the complaint found Faustin ‘not responsible’ for the sexual assault, rape, and
harassment of Keel.” (Id. ¶ 36). Thereafter, on April 2, 2015, Keel appealed this decision, and a
new hearing was granted on April 14, 2015 based on a “lack of due process, i.e. when a student
can show an error in the hearing or arbitrariness in the finding against the weight of the evidence.”
(Id.). On May 11, 2015, “a second panel found Faustin ‘responsible’ for the sexual assault and
rape of Keel” and suspended him for “a minimum of one (1) academic year – specifically 20152016.” (Id. ¶ 37). In doing so, the panel stated:
Having been found responsible for the sexual assault and rape of the complainant,
the respondent is in violation of the General Standards of Conduct and Decorum
and has exhibited violent behavior by sexually assaulting and raping the
complainant. (Delaware State University, Division of Student Affairs Student
Judicial Handbook, p. 5) Furthermore, the complainant has a right to continue her
education and feel as though she is matriculating in a safe and secure academic
environment. The complainant is now a senior. Removing the respondent for at
least the 2015-2016 academic year will provide the complainant with the
opportunity to do so.
4
(Id. ¶ 38). 2 Plaintiff alleges that she was also informed that “Faustin would not be allowed on
campus, but assured . . . that if he were to come on campus, she would be informed and provided
a police escort.” (D.I. 1 ¶ 39).
Plaintiff alleges that “[i]n or about September of 2015, [DSU] allowed Faustin back on
campus.” (Id. ¶ 40). Specifically, she alleges that she entered her advisor’s office and she came
into “direct contact” with Faustin who was seated in the faculty member’s office. (Id.) There is
no allegation that the two were ever alone or unsupervised. Nor is there any allegation that DSU
or any of the named Defendants had expected Keel would visit the office that day or that other
security measures were not in place. Keel alleges, on information and belief, that Faustin “was
allowed on the [DSU] campus” on “multiple occasions,” though there are no allegations that she
ever saw him again, nor are there allegations regarding the time frame during which he was
purportedly on campus. (Id. ¶ 41).
Keel graduated from DSU on December 21, 2015. (Id. ¶ 44). The following semester,
DSU readmitted Faustin earlier than the time originally set based on the condition that he “abide
by the Student Code of Conduct,” and noting his prior unacceptable behavior. (Id. ¶ 46).
II.
LEGAL STANDARDS
A.
Motion to Dismiss for Failure to State a Claim
In ruling on a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the Court must accept all well-pleaded factual allegations as true and view them in the
light most favorable to the plaintiff. See Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010);
see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232-33 (3d Cir. 2008). “To survive a motion
2
Plaintiff quotes from documents in her Complaint but did not attach those documents to
the Complaint.
5
to dismiss, [however,] a civil plaintiff must allege facts that ‘raise a right to relief above the
speculative level on the assumption that the allegations in the complaint are true (even if doubtful
in fact).’” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Dismissal under Rule 12(b)(6) is appropriate if a complaint
does not contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570)); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). A claim is
facially plausible “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678. The Court is not obligated to accept as true “bald assertions” or “unsupported conclusions
and unwarranted inferences.”
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997) Schuylkill Energy Res., Inc. v. Pennsylvania Power & Light Co., 113 F.3d 405,
417 (3d Cir. 1997). Instead, “[t]he complaint must state enough facts to raise a reasonable
expectation that discovery will reveal evidence of [each] necessary element” of a plaintiff’s claim.
Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008) (internal
quotation marks omitted).
B.
Statute of Limitations
The statute of limitations for a cause of action under Title IX is subject to the pertinent
state’s statute of limitations for personal injuries. See Bougher v. Univ. of Pittsburgh, 882 F.2d
74, 77-78 (3d Cir. 1989). The statute of limitations for filing a cause of action under 42 U.S.C.
§ 1983 is also the relevant state’s statute of limitations governing causes of action for personal
injuries. See Wilson v. Garcia, 471 U.S. 261, 276-78 (1985); accord Sameric Corp. of Delaware,
Inc. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998).
6
Delaware’s statute of limitations for personal injury claims is two years. See 10 Del. C.
§ 8119. Thus, Keel’s Title IX claims and her § 1983 claims are subject to a two-year statute of
limitations. See Lamb-Bowman v. Delaware State Univ., C.A. No. 98-658 MMS, 1999 WL
1250889, at *8-9 (D. Del. Dec. 10, 1999); see also Smith v. Delaware, 236 F. Supp. 3d 882, 888
(D. Del. 2017) (“In Delaware, § 1983 claims are subject to a two-year limitations period.”
(internal citations omitted)). Section 1983 claims accrue “when the plaintiff knew or should have
known of the injury upon which its action is based.” Sameric, 142 F.3d at 599.
The statute of limitations is an affirmative defense that a defendant must usually plead in
his answer. Stephens v. Clash, 796 F.3d 281, 288 (3d Cir. 2015) (citing Schmidt v. Skolas, 770
F.3d 241, 249 (3d Cir. 2014)). Nevertheless, the Third Circuit “permit[s] a limitations defense to
be raised by a motion under Rule 12(b)(6) . . . if the time alleged in the statement of a claim shows
that the cause of action has not been brought within the statute of limitations.” Id. (internal
quotation marks omitted). Thus, “a district court may grant a motion under Rule 12(b)(6) raising
a limitations defense if ‘the face of the complaint demonstrates that the plaintiff’s claims are
untimely.” Id. (citing Schmidt, 770 F.3d at 249 (internal quotations omitted)).
III.
DISCUSSION
A.
Statute of Limitations
There is no dispute that the statute of limitations for Title IX and § 1983 actions in
Delaware is two years – making the relevant date in this case December 19, 2015. The dispute is
whether Plaintiff’s claims fit within the continuing-violation doctrine, which is generally
recognized under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., to provide
that discriminatory acts that are not individually actionable may be aggregated to make out a
hostile environment claim. Doe v. Mercy Catholic Med Ctr., 850 F.3d 545,566 (3d Cir. 2017)
7
(citing Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013)). 3 These acts can
occur at any time if they are linked in a pattern of actions continuing into the limitations period.
Id. All alleged acts, however, must be part of the same unlawful practice, meaning they involved
“similar conduct by the same individuals, suggesting a persistent, ongoing pattern.” Id.
The continuing-violation doctrine “is an ‘equitable exception to the timely filing
requirement.’” Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001) (quoting West v. Phila.
Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995)). Under the doctrine, “when a defendant’s conduct is
part of a continuing practice, an action is timely so long as the last act evidencing the continuing
practice falls within the limitations period.” Montanez v. Sec’y Pennsylvania Dep’t of Corr., 773
F.3d 472, 481 (3d Cir. 2014) (quoting Cowell, 263 F.3d at 292). 4 “[T]he court will grant relief
for the earlier related acts that would otherwise be time barred.” Cowell, 263 F.3d at 292. The
doctrine, however, focuses on “continual unlawful acts, not continual ill effects from an original
violation.” Weis–Buy Servs., Inc. v. Paglia, 411 F.3d 415, 423 (3d Cir. 2005) (quoting Cowell,
263 F.3d at 293). Only defendants’ “affirmative acts” count. Tearpock-Martini v. Borough of
Shickshinny, 756 F.3d 232, 235 (3d Cir. 2014) (quoting Cowell, 263 F.3d at 293).
“[A]
government official’s refusal to undo or correct [a] harm [caused by the official’s unlawful
conduct] is not an affirmative act for purposes of establishing a continuing violation.” TearpockMartini, at 236 n. 8.
3
As the Report noted, it is an “open question” in the Third Circuit whether this doctrine
applies under Title IX. (See D.I. 19 at 6) (quoting Doe v. Mercy Catholic Med. Ctr., 850
F .3d 545, 566 (3d Cir. 2017)). Even were the Court to apply it, however, as discussed
above, Keel’s claims – as alleged – are time barred.
4
The continuing-violation doctrine “creates a ‘narrow’ and ‘equitable exception to the
timely filing requirement.’” Gould v. Borough, 615 F. App’x 112, 116 (3d Cir. 2015).
8
Plaintiff objects to the Report and asserts that “[a] genuine issue of material fact exists as
to whether Plaintiff’s Title IX claim accrued on December 21, 2015, when she graduated from
DSU, and she was no longer exposed to a sexually hostile environment.” (D.I. 20 at 2). As the
Report found, however, Plaintiff’s claims involve no allegations of wrongdoing within the
limitations period.
Indeed, the acts alleged to show “deliberate indifference” supporting
Plaintiff’s Title IX and § 1983 claims occurred – and ended – before September 2015 and are thus
untimely. Specifically, Plaintiff alleges that DSU:
•
“[Engaged] in an unjustifiable delay in investigating and adjudicating Keel’s
reports of rape and ongoing harassment;”
•
“[Came] to an initial, erroneous outcome when adjudicating Plaintiff’s report;”
•
“[Engaged] in a biased and inequitable investigation and adjudicatory process;
•
“[Failed] to implement and enforce reasonable interim measures for Keel’s
protection;” and
•
“[Failed] to comply with federal requirements for responding to instances of
sexual misconduct.”
(D.I. 14 at 9-15, D.I. 20 at 5-6). All of those complaints ended on May 11, 2015 when Faustin
was found responsible and suspended by DSU. (D.I. 1 ¶ 37). As to later events, in Plaintiff’s
objections and the underlying allegations cited in the Complaint, the only date 5 mentioned
regarding the statute of limitations issue is September of 2015:
After the issuance of this sanctioning document, Keel did not experience a “safe
and secure academic environment” because Faustin was allowed to come back to
campus, and was actually on campus multiple times. (D.I. 1 at ¶¶ 40-41.) Keel
actually encountered Faustin in September of 2015 in an academic building on
campus, while he was supposed to be suspended. (Id. ¶ 40.) Keel was not informed
that Faustin would be on campus, nor was she provided a police escort, as was
required by DSU’s sanction. (Id.) Further, Faustin continued to be allowed on
campus during his suspension. (Id. ¶ 41.) She was similarly never informed of his
5
The Complaint asserts that Faustin was readmitted in January of 2016, after Plaintiff
graduated, but that date is not addressed in Plaintiff’s objections.
9
continued presence on campus, nor provided a police escort as required. (Id.) In an
attempt to get DSU to abide by its sanctioning requirements, and secure a safe
academic environment for herself free from potential exposure to her supposedly
suspended rapist, Keel reported Faustin’s presence on campus during his
suspension to both DSU’s Title IX office and Judicial Affairs office. (Id. ¶ 42.)
Neither office took responsibility for enforcing the sanctioning requirements and
ensuring that Faustin would not be on campus, or if he was, ensuring that Plaintiff
would be informed and provided a police escort. (Id.) Unsatisfied, Keel reported
these violations to DSU’s Police Sergeant Simmons, who similarly failed to offer
to enforce the sanctioning requirements. (Id. ¶ 43.)
(D.I 20 at 4).
Plaintiff asserts that “Keel was forced to endure a circumstance in which she could
encounter the man that raped her, and continued to harass her after the rape, on campus at any
time. Accordingly, Keel took it upon herself to avoid areas of campus and lock herself in her
room to keep herself safe.” (D.I. 20 at 4 (citing D.I. 1 ¶ 44)). This is tantamount to alleging that
she continued to suffer ill effects of the alleged earlier wrongdoing. As noted above, a “continuing
violation is occasioned by continual unlawful acts [however], not continual ill effects from an
original violation.” Cowell, 263 F.3d at 293 (internal quotation marks and citation omitted); see
also Chestang v. Alcorn State Univ., 940 F. Supp. 2d 424, 430 (S.D. Miss. 2013) (“[T]he
continuing tort doctrine ‘does not apply when a plaintiff simply alleges that harm reverberates
from one wrongful act or omission.’” (quoting Walker v. Epps, 550 F.3d 407, 417 (5th Cir. 2008)).
Here, there is no allegation that Faustin returned to campus during the limitations period, or that
Defendants engaged in any acts during the limitations period. Thus, as currently alleged,
Plaintiff’s claims are time-barred.
B.
Plaintiff’s Title IX Claim
The Report correctly sets out the law regarding claims brought under Title IX. Title IX
provides 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
10
program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). A public-school
student may bring suit against a school under Title IX for student-on-student sexual harassment,
“but only where the [school] acts with deliberate indifference to known acts of harassment in its
programs or activities” and “only for harassment that is so severe, pervasive, and objectively
offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”
Davis Next Friend LaShonda D. v. Monroe Cty. Bd of Educ., 526 U.S. 629, 633 (1999).
Deliberate indifference requires a response (or failure to respond) that is “clearly
unreasonable in light of the known circumstances.” Id at 648; see also Mercy Catholic Med Ctr.,
850 F.3d at 566. To establish deliberate indifference, a plaintiff must show that the school knew
about the plaintiff’s sexual assault and ensuing harassment and failed to respond adequately.
See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1989) (“[W]e hold that a damages
remedy will not lie under Title IX unless an official who at a minimum has authority to address
the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual
knowledge of discrimination in the recipient’s programs and fails adequately to respond.”); see
also Terrell v. Delaware State Univ., C.A. No. 09-464 (GMS), 2010 WL 2952221, at *2 (D. Del.
July 23, 2010). 6 “To establish deliberate indifference, a plaintiff must show that the school made
an official decision not to remedy the sexual harassment.” Terrell, 2010 WL 2952221, at *2
(citing Gebser, 524 U.S. at 290).
“Deliberate indifference claims impose a significant burden on the plaintiff and
consequently rarely proceed beyond a motion to dismiss.” Saravanan v. Drexel Univ., 2017 WL
6
The required showing is purposefully high “to eliminate any ‘risk that [a recipient of
federal funds] would be liable in damages not for its own official decision but instead for
its employees’ independent actions.’” Davis, 526 U.S. at 643 (quoting Gebser, 524 U.S.
at 290-91).
11
5659821, at *7 (E.D. Pa. Nov. 24, 2017); see also T.B. v. New Kensington-Arnold Sch. Dist., 2016
WL 6879569, at *7 (W.D. Pa. Nov. 22, 2016) (“The deliberate indifference standard sets a high
bar for a plaintiff seeking to recover under Title IX.”)
As noted above (see supra § III.A), Plaintiff asserts that “deliberate indifference” as to her
assault has been alleged in the form of DSU’s “unjustifiable delay in investigating and
adjudicating” her complaints; its initially “coming to an [], erroneous outcome;” its “biased and
inequitable investigation and adjudicatory process;” its “failing to implement and enforce interim
measures” and its “failing to comply with federal requirements for responding to instances of
sexual misconduct.” (D.I. 14 at 8-15, D.I. 20 at 5-6). Plaintiff objects that the Report “did not
directly address Plaintiff’s theories of deliberate indifference, and their legal bases” and simply
“concluded that these actions, ‘fail to amount to a showing that ‘an official decision’ was made
‘not to remedy the violation.’” (D.I. 20 at 7 (quoting D.I. 19 at 9)). As an initial matter, the Court
agrees with the Report that the allegations in the Complaint do not allege or amount to an
allegation that an “official decision” was made not to remedy the violation and, thus, the
allegations are legally insufficient. (D.I. 19 at 9). As is clear from the Complaint, DSU did act
on Plaintiff’s claims regarding her assault. DSUPD conducted a criminal investigation of
Plaintiff’s claims, which resulted in Faustin’s arrest. DSU’s Title IX office conducted an
investigation and held disciplinary hearings, which, though initially unavailing, ultimately
resulted in the removal of Faustin from DSU for the remainder of Plaintiff’s tenure at DSU.
Plaintiff was also offered counseling services, which she accepted and in which she participated.
Although DSU’s process was not perfect, and Plaintiff may have hoped DSU could have done
more, that is not the standard under Title IX.
12
Similarly, with respect to Plaintiff’s allegations of harassment and retaliation from
Faustin, members of the DSU band and a DSU employee (D.I. 1 ¶¶ 27-28), “schools are not
required to ‘remedy’ harassment or to conform their students’ behavior to a certain manner of
conduct. Instead, as the Supreme Court has made clear, the effectiveness of a [school’s] methods
is not a factor considered in the Title IX analysis and ineffectiveness is not dispositive of Title IX
liability.” P.K. ex rel. Hassinger v. Caesar Rodney High School, C.A. No. 10-783 (GMS), 2012
WL 253439 at *9 (D. Del. Jan. 27, 2012) (citing Davis, 526 U.S. at 648-49 (“[schools] are not
required to ‘remedy’ the harassment or ‘purg[e] their schools of actionable peer harassment’ to
avoid Title IX liability”)). Thus, these allegations are not supported by any authority that would
establish an actionable claim under Title IX.
Moreover, the Court notes that in opposing Defendants’ motion (D.I. 14), Plaintiff relied
on numerous allegations that were not included in her Complaint. Without addressing whether
those allegations would be sufficient to plead a Title IX claim (or to overcome the statute of
limitations), the Court notes that it cannot consider unsupported and conclusory allegations in
briefs that were not in the pleadings. See Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010)
(“In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached
to the complaint, matters of public record, as well as undisputedly authentic documents if the
complainant’s claims are based upon these documents.”).
C.
Plaintiff’s Section 1983 Claim
Plaintiff objects to dismissal of her §1983 claim for violation of the Equal Protection
clause, asserting that “Plaintiff’s allegations raise a question of fact as to whether the named
individual Defendants acted with deliberate indifference.” (D.I. 20 at 7-8). “Section 1983
imposes civil liability upon any person who, acting under the color of state law, deprives another
13
individual of any rights, privileges, or immunities secured by the Constitution or laws of the
United States.” Shuman ex rel. Sherizer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir.
2005) (citing Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000)). As the Report makes clear
(D.I. 19 at 9-10), to bring a successful Section 1983 claim for the denial of Equal Protection,
“plaintiffs must prove the existence of purposeful discrimination.” Shuman, 422 F.3d at 151
(citing Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990) (citing Batson v. Kentucky,
476 U.S. 79, 93 (1986)). “In other words, they must demonstrate that they received different
treatment from that received by other individuals similarly situated.” Id. (citing Andrews, 895
F.2d at 1478; Kuhar v. Greensburg-Salem Sch. Dist., 616 F.2d 676, 677 n.1 (3d Cir. 1980)).
Specifically, for a claim of sexual discrimination, a plaintiff must show that any disparate
treatment was based upon his or her gender. Id. (citing Bohen v. City of East Chicago, 799 F.2d
1180, 1186-87 (7th Cir. 1986)).
Here, as the Report recognized, Plaintiff “has failed to allege purposeful disparate
treatment and discrimination based on gender” and “fails to address how she was arguably treated
differently from others similarly situated.” (D.I. 19 at 11). Plaintiff does not address either of
these failures in her objections. Rather, the objections simply repeat Plaintiff’s allegations that
the named Defendants acted with deliberate indifference without alleging why or how or
explaining how their treatment of Plaintiff differed from those similarly situated. Specifically,
Plaintiff asserts:
With respect to Defendant Candy Young, DSU’s Title IX Coordinator, Keel alleged
that Young, (1) failed to offer any accommodations, including a no-contact order,
to Keel after Keel reported her rape and ongoing harassment by Faustin and others
(D.I. 1, ¶ 26); and (2) failed to enforce the sanctioning requirements that Keel be
informed when Faustin would be back on campus, and be provided a police escort
when Faustin was back on campus, when Keel reported that Faustin was actually
on campus several times despite being suspended. (Id. ¶ 42.)
14
With respect to Defendant Paula Duffy, DSU’s Director of the Office of Judicial
Affairs, similarly failed to enforce the aforementioned sanctioning requirements
when Keel reported to her that Faustin was actually on campus several times despite
his suspension. (Id.) Finally, with respect to Defendant Randolph Johnson, DSU’s
Director of Bands, Keel alleged that Johnson retaliated against Keel for reporting
her rape and ongoing harassment (Id. ¶ 32.)
(D.I. 20 at 8). These general statements and the underlying allegations in the Complaint on which
they are based are insufficient to state an Equal Protection claim. See, e.g., Black v. Coupe, C.A.
No. 14-214 (RGA), 2015 WL 1737433, at *2 (D. Del. Apr. 10, 2015) (“A civil rights complaint
must state the conduct, time, place, and persons responsible for the alleged civil rights
violations.”).
D.
Qualified Immunity
Plaintiff objects to the Report’s determination that the individual defendants –
Ms. Young, Ms. Duffy, and Mr. Johnson – are immune from suit because of qualified immunity.
“The doctrine of qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Pearson v. Callahan, 129 S. Ct. 808,
815 (2009) (internal quotation marks omitted); see also George v. Rehiel, 738 F.3d 562, 572
(3d Cir. 2013) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A right is clearly
established when “[t]he contours of the right [are] sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S.
635, 640 (1987). “[T]he question is whether a reasonable public official would know that his or
her specific conduct violated clearly established rights.” Grant v. City of Pittsburgh, 98 F.3d
116, 121 (3d Cir. 1996). Qualified immunity, thus, protects government officials from liability
for “mere mistakes in judgment, whether the mistake is one of fact or one of law.” Butz v.
Economou, 438 U.S. 478, 479 (1978). Indeed, properly applied, the doctrine protects “all but
15
the plainly incompetent or those who knowingly violate the law.” George v. Rehiel, 738 F.3d at
572 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In addressing qualified immunity,
the Court must first determine whether the facts alleged in the Complaint show the violation of
a constitutional right, and, if so, the Court must then determine whether that right was clearly
established at the time of the alleged violation. See Torisky v. Schweiker, 446 F.3d 438, 442-43
(3d Cir. 2006).
Plaintiff objects to the Report’s recommendation as to qualified immunity on two grounds:
(1) “Keel has alleged facts that establish the violation of her right to equal protection by virtue of
the individual Defendants’ deliberate indifference to her report of rape and ongoing harassment”
and (2) “the right to be free from gender based discrimination, in the form of freedom from a
sexually hostile environment, was clearly established at the time of the violation.” (D.I. 20 at 89).
Plaintiff, in her objections, asserts that “the right to be free from gender based
discrimination . . . was clearly established at the time of the violation.” (D.I. 20 at 9). Plaintiff,
however, fails to provide any basis or justification as to how or why this statement is supported
by any facts pleaded in her Complaint. Indeed, as the Court has already found, Plaintiff has failed
to allege violation of her Equal Protection rights (see supra § III.C) or to allege facts of disparate
treatment, let alone disparate treatment based upon her gender to support a claim of gender-based
discrimination.
IV.
CONCLUSION
For the foregoing reasons, the Court OVERRULES Plaintiff’s objections (D.I. 20) and
ADOPTS the Report and Recommendation (D.I. 19), and Defendants’ motion to dismiss (D.I. 10)
is GRANTED.
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