Blank v. Knox College

Filing 12

ORDER & OPINION entered by Judge Joe Billy McDade on 1/23/15. Defendant's Motion to Dismiss 8 is GRANTED as to Count II of the Amended Complaint ONLY. The Court expresses no judgment as to the propriety of Count I, an Illinois state law claim. When a court dismisses a claim pursuant to a Rule 12(b)(6) motion, the dismissal must be with prejudice because the claim is not one upon which relief can be granted. Kamelgard v. Macura, 585 F.3d 334, 339 (7th Cir. 2009). Amendment of the claim wi ll only be allowed upon motion and upon a showing that such amendment would not be futile. See Stanard v. Nygren, 658 F.3d 792, 797 (7th Cir. 2011). Therefore, the Court grants twenty-one days of the date of entry of this Order and Opinion to file a motion to amend along with a proposed Second Amended Complaint attached. Should the Plaintiff fail to file a motion to amend within the time allotted, the Court will decline to exercise its supplemental jurisdiction under 28 U.S.C. § 1367(c) over the remaining state law claim and remand the action to the Illinois Circuit Court of Knox County, Ninth Judicial Circuit.(FDT, ilcd)

E-FILED

Monday, 26 January, 2015 09:34:58 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JACK BLANK,

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Plaintiff,
vs.
KNOX COLLEGE,
Defendant.

Case No. 14-cv-1386

ORDER & OPINION
On September 23, 2014, the above-captioned civil action was removed to this
Court from the Circuit Court of Knox County, Illinois pursuant to a Notice of
Removal citing several sections of Chapter 89, Title 28 of the United States Code.
(See Doc. 1). Several days later, Defendant, Knox College, filed a motion to dismiss
the removed Complaint. (Doc. 4). Plaintiff, Jack Blank, responded by filing an
Amended Complaint. (Doc. 6). Defendant parried with another motion to dismiss.
(Doc. 8). That motion is now pending before the Court, is fully briefed and ready for
ruling. For the reasons stated below the Motion to Dismiss is GRANTED in part.
BACKGROUND1
Plaintiff was a student at Knox College. In the fall semester of 2013, two
female students accused Plaintiff of sexual misconduct. At Plaintiff’s request,

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These facts are taken from the Amended Complaint and are deemed true.
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Defendant conducted a grievance hearing2 to address the sexual misconduct
complaints. At this grievance hearing, Plaintiff presented some exculpatory
evidence but was not allowed to present all of his evidence. One of his accusers did
not appear at the hearing. Plaintiff was not allowed to cross-examine witnesses.
After consideration of the information presented at the grievance hearing, including
only a partial amount of the information offered by Plaintiff, Defendant determined
that Plaintiff’s conduct violated its policy against sexual misconduct as to both
complainants. Defendant subsequently determined that Plaintiff should be
suspended for two terms.
Plaintiff now brings a two count action seeking a preliminary injunction and
compensatory relief. In Count I, Plaintiff asserts an Illinois state law breach of
contract claim. In Count II, Plaintiff asserts that Defendant violated 20 U.S.C. §
1681, which prohibits sex or gender discrimination by any educational program or
activity that receives federal assistance. He seeks to enjoin Defendant from
imposing the two-term suspension he has already served, require Defendant to take
steps to prevent sex-based discrimination and harassment, expunge all findings of

The Plaintiff complains of the Defendant’s actions occurring at a grievance
hearing, which leaves the impression he was only given one opportunity to present
his “case” to the Defendant. According to the Defendant, Plaintiff was actually
granted an appeal and given another hearing, after which he was still found to have
committed the accused acts of sexual misconduct. It is not at all clear which of the
two hearings Plaintiff is complaining of in his Amended Complaint. Moreover, since
the existence of an appeal and second hearing are not pled in the Amended
Complaint, the Court cannot consider them. Plaintiff alleges he has exhausted his
administrative remedies (Doc. 6 at ¶¶ 35 and 40), so the Court must take that
allegation as true for purposes of disposing of the instant 12(b)(6) motion. However,
this issue may be of significance later on in the case should the matter proceed
further.
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misconduct from Plaintiff’s academic record, and compensate him for his expenses
in pursuing this lawsuit.
LEGAL STANDARDS
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must include “a
short and plain statement of the claim showing that the pleader is entitled to
relief.” Though detailed factual allegations are not needed, a “formulaic recitation
of a cause of action’s elements will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). “The complaint must contain ‘enough facts to state a claim to relief that
is plausible on its face.’” Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 602 (7th
Cir. 2009) (quoting Twombly, 550 U.S. at 557; Tamayo v. Blagojevich, 526 F.3d
1074, 1084 (7th Cir. 2008)). “A claim has facial plausibility ‘when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.’” Bissessur, 581 F.3d at 602
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“In ruling on Rule 12(b)(6) motions, the court must treat all well-pleaded
allegations as true and draw all inferences in favor of the non-moving party.” In re
marchFIRST, Inc., 589 F.3d 901, 904 (7th Cir. 2009) (citing Tamayo, 526 F.3d at
1081 (7th Cir. 2008)). To survive a motion to dismiss under Rule 12(b)(6), a
plaintiff’s complaint must plausibly suggest that the plaintiff has a right to relief,
“raising that possibility above a ‘speculative level.’” EEOC v. Concentra Health
Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (citing Twombly, 550 U.S. at 555).

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DISCUSSION
The Court will discuss Count II of the Amended Complaint first because it is
the only claim encompassing federal law and the touchstone of this Court’s
jurisdiction over the matter.
As the Plaintiff himself states in his Memorandum in opposition to the
Motion to Dismiss, “to state a claim under Title IX, a plaintiff must allege 1) that he
or she was excluded from participation in or denied benefits of or subjected to
discrimination in an educational program; 2) that receives federal financial
assistance; and 3) that the exclusion was on basis of sex, i.e., gender.” (Doc. 11 at 10
citing Torrespico v. Columbia Coll., No. 97 C 8881, 1998 WL 703450, at *17 (N.D.
Ill. Sept. 30, 1998)). The Amended Complaint contains an allegation that Knox
College is an educational institution receiving federal funds. (Doc. 6 at ¶ 23). The
Amended Complaint also contains allegations that Plaintiff was not allowed to fully
participate in the grievance hearing. (Doc. 6 at ¶¶28-32). What the Amended
Complaint lacks are plausible allegations that the Defendant disallowed Plaintiff
from participating fully in the grievance hearing because of his sex.
The closest Plaintiff comes to fulfilling the minimal pleading requirement is
Paragraph 32 in which he states:
Defendant violated Plaintiff’s civil rights on the basis of gender by
denying a portion of relevant evidence he presented at hearing as well
as failing to consider all of the relevant evidence he presented in
hearing while fully considering any evidence presented by or on behalf
of the alleged female victims in making its decision in an arbitrary and
capricious manner.
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(Doc. 6 at ¶32). Essentially, Plaintiff argues that he was discriminated against
because (1) Defendant disallowed him from presenting all of the evidence he
deemed relevant and (2) Defendant deemed his accusers’ evidence more compelling
than some of the evidence he was allowed to present, (3) all because his alleged
victims are female. A careful reading of the quoted text reveals that Plaintiff never
actually states that the sex of his accusers is the reason why the Defendant acted as
it did in the grievance hearing. He leaves it to the Court to infer that connection,
which is an unsound manner of pleading a Title IX claim since the crux of such a
claim must be intentional sex discrimination. See generally, Parker v. Franklin
Cnty. Cmty. Sch. Corp., 667 F.3d 910, 919 (7th Cir. 2012) (reaffirming that the
purpose of Title IX is to ensure that federal funds are not used to facilitate
intentional sex discrimination). But suppose Plaintiff simply affirmatively alleged:
“Defendant violated Title IX when it made adverse evidentiary rulings against me,
thereby denying me full participation in an educational program, and found my
accusers’ evidence more relevant, credible and compelling because my accusers are
female and I am male.” Even that, by itself, would be insufficient under federal
pleading requirements because such a statement would be a mere conclusion. The
Supreme Court has explained that when pleading a federal cause of action, mere
labels or legal conclusions are entitled to no weight. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 555).

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Defendant contends that Plaintiff is asserting an “erroneous outcome” claim.
(Doc. 9 at 3).3 Under such a claim, the Second Circuit has held a plaintiff must
“allege particular facts sufficient to cast some articulable doubt on the accuracy of
the outcome of the disciplinary proceeding. . .” and “particular circumstances
suggesting that gender bias was a motivating factor behind the erroneous finding.”
Yusuf v. Vassar College, 35 F.3d 709, 715 (2d Cir. 1994). In the most analogous case
from this judicial circuit, Torrespico v. Columbia College, No. 97 C 8881, 1998 WL
703450 (N.D. Ill. Sept. 30, 1998), the district court explained that it found Yusuf
instructive in the apparent absence of Seventh Circuit precedent. Id. at *18 n. 11.
While the Torrespico court did not endorse the Yusuf court’s apparent requirement
that a Title IX plaintiff show “particularized facts” substantiating her claim, the
Torrespico court did find that the plaintiff in that case had failed to even provide
conclusory allegations that supported his claim. Id. at *18.
Defendant advocates application of Yusuf’s particularized fact pleading. (Doc.
9 at 3-4). This Court declines to find that a Title IX plaintiff must present

Courts have recognized two distinct categories of Title IX claims attacking
university disciplinary proceedings, “erroneous outcome” claims and deliberate
indifference” claims. “In the first category, the claim is that the plaintiff was
innocent and wrongly found to have committed an offense. In the second category,
the plaintiff alleges selective enforcement.” E.g. Yusuf, 35 F.3d at 715. Plaintiff
makes no mention of under which category his Title IX claim falls. The Court agrees
with the Defendant that Plaintiff’s claim falls under the “erroneous outcome”
category given the nature of the allegations that he presented evidence “acquitting
himself” of sexual misconduct yet was nevertheless found to have had committed
the alleged acts of sexual misconduct. (Doc. 6 at ¶¶29 and 31).
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“particularized facts” substantiating his claim. That is a pleading standard found in
Federal Rule of Civil Procedure 9(b) that applies specifically to allegations of fraud
or mistake. The standard pleading requirements articulated in Federal Rule of Civil
Procedure 8 apply here. However, both the Torrespico and Yusuf decisions predate
the rejection of the relatively lax pleading standard articulated in Conley v. Gibson,
355 U.S. 41 (1957) (abrogated by Twombly, 550 U.S. 544). Under current precedent,
not only must a complaint comply with the literal requirements of Rule 8 of plainly
and concisely stating the claims, it must also provide factual allegations in the
claims that are sufficient to raise the possibility of relief above the “speculative
level,” assuming that all of the allegations in the complaint are true. E.E.O.C., 496
F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555).
Taking everything in the Amended Complaint as true, Plaintiff has not
provided enough factual allegations to allow one to plausibly conclude that
Defendant either disallowed Plaintiff from presenting some of his evidence or
believed his accusers over Plaintiff due to his sex, or the sex of his accusers.
Plaintiff’s Memorandum in opposition to the Motion to Dismiss highlights the
purely speculative nature of his claim. He writes:
. . . in the present case, there are several decisions of the board
suggesting gender bias including permitting evidence from absent
witnesses without Plaintiff being able to question the witnesses,
including one alleged victim, regarding their statements as compared
to the complete disregard of Plaintiff’s two eyewitnesses who were
specifically told by the board that their testimony did not matter
because the only thing the board was to decide is whether or not the
alleged incident occurred.
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(Doc. 11 at 13 (emphasis added)). Quite to the contrary, nothing in the Amended
Complaint shines any light on how “the several decisions of the board” were
motivated by gender bias, as opposed to being gender-neutral acts of simple
procedural discretion afforded to the board by the governing rules.
Plaintiff attached to his Amended Complaint a copy of Defendant’s Grievance
Hearing Procedures as an exhibit. Those procedures explicitly provide that the
complainant or respondent (the “parties”) or witnesses do not have to appear
physically at the hearing; the chairperson of the hearing panel retains the authority
to determine the relevancy and appropriateness of any questions; and witnesses not
part of the investigation may appear only subject to the discretion of Hearing Panel.
(See Doc. 6-1 at 5 – 7). Furthermore, nothing in the procedures provided by the
Plaintiff purports to limit admissible evidence in the college’s grievance hearings to
non-hearsay evidence. Moreover, none of the procedures purport to apply to one sex
or gender over any other or are of a nature that a court could infer that the
procedures are skewed to accommodate one gender over the other. Therefore, the
“several decisions” of which Plaintiff complains are all authorized by the College’s
procedures and the Plaintiff has provided no basis for the Court to conclude that the
procedures either (1) are skewed to favor an accuser over an accused, let alone one
sex over another; or (2) were manipulated to intentionally disadvantage Plaintiff
during the hearing on account of his sex.
The Yusuf court did provide some useful guidance as to how a Title IX
erroneous outcome plaintiff could sufficiently allege his claim. 35 F.3d at 715. That
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court explained that a Title IX plaintiff might proceed as a Title VII plaintiff and
plead allegations of statements touching upon gender made by members of the
disciplinary panel or the university at large, or perhaps cite patterns—not a single
instance—of decision-making that would also demonstrate the influence of
entrenched gender discrimination. See id. Plaintiff has not pled anything remotely
similar to those foregoing examples. In fact, the Amended Complaint contains no
information whatsoever from which a court can fairly conclude Plaintiff’s allegation
of discrimination is nothing more than a mere label or legal conclusion, which of
course is entitled to no weight under Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). The claim must be dismissed.
CONCLUSION
Defendant’s Motion to Dismiss (Doc. 8) is GRANTED as to Count II of the
Amended Complaint ONLY. The Court expresses no judgment as to the propriety of
Count I, an Illinois state law claim. When a court dismisses a claim pursuant to a
Rule 12(b)(6) motion, the dismissal must be with prejudice because the claim is not
one upon which relief can be granted. Kamelgard v. Macura, 585 F.3d 334, 339 (7th
Cir. 2009). Amendment of the claim will only be allowed upon motion and upon a
showing that such amendment would not be futile. See Stanard v. Nygren, 658 F.3d
792, 797 (7th Cir. 2011).
Therefore, the Court grants twenty-one days of the date of entry of this Order
and Opinion to file a motion to amend along with a proposed Second Amended
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Complaint attached. Should the Plaintiff fail to file a motion to amend within the
time allotted, the Court will decline to exercise its supplemental jurisdiction under
28 U.S.C. § 1367(c) over the remaining state law claim and remand the action to the
Illinois Circuit Court of Knox County, Ninth Judicial Circuit.
Entered this 23rd day of January, 2015.

s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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