Doe v. Northern Kentucky University et al

Filing 198

MEMORANDUM OPINION & ORDER: 1) NKU's motion for summary judgment 165 is DENIED; 2) Plf's motion to strike NKU's motion for summary judgment 169 is DENIED AS MOOT; and 3) The motion for summary judgment by Def Kachurek 164 continues UNDER ADVISEMENT. Signed by Judge William O. Bertelsman on 4/6/2017.(ECO)cc: COR

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON

CIVIL ACTION NO. 2:16-CV-28 (WOB-JGW)
JANE DOE

PLAINTIFF

VS.

MEMORANDUM OPINION AND ORDER

NORTHERN KENTUCKY
UNIVERSITY, ET AL.

DEFENDANTS

This matter is before the Court on the motion for summary
judgment defendant Northern Kentucky University (“NKU”) (Doc.
165), plaintiff’s response thereto (Doc. 179), and NKU’s reply
(Doc. 195).

The Court has reviewed this matter carefully and, in

the interest of moving this matter forward expeditiously, now
issues the following Memorandum Opinion and Order.
Because the Court concludes that the record is rife with
genuine disputes of material fact, and because all inferences at
this stage must be drawn in plaintiff’s favor, the Court concludes
that summary judgment is inappropriate.

The Court will thus keep

this opinion brief.
Analysis
Summary judgment is proper where “there is no dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.”

Fed. R. Civ. P. 56(a).

“In determining whether

a genuine dispute exists, we assume the truth of the nonmoving

party’s

evidence

and

draw

favorable to that party.”

all

inferences

in

the

light

most

Bohannon v. Town of Monterey, No. 16-

5537, 2017 WL 347442, at *2 (6th Cir. Jan. 24, 2017) (citing
Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006)). Should
sufficient evidence exist for a trier of fact to find for the
nonmoving party, summary judgment is inappropriate.”

Id.

Plaintiff Jane Doe filed this action on January 20, 2016
against NKU and other defendants alleging, inter alia, that NKU
violated

Title

IX

—

20

U.S.C.

§

1681

—

by

responding

with

deliberate indifference to her claims of sexual assault by another
NKU student.

Specifically, plaintiff was raped by Student M in

September 2013; she reported the rape to NKU around May 1, 2014;
a hearing panel found 3-0 that plaintiff was a victim of “nonconsensual sex by force”; and NKU imposed certain sanctions on
Student M as a result.

It is the adequacy of NKU’s response that

is the pivotal question in this case.
A plaintiff may prevail on a Title IX claim for student-onstudent sexual harassment by demonstrating the following elements:
(1)

The sexual harassment was so severe, pervasive, and
objectively offensive that it could be said to deprive
the plaintiff of access to the educational opportunities
or benefits provided by the school;

(2)

The funding recipient had actual knowledge of the sexual
harassment; and

(3)

The funding recipient was deliberately indifferent to
the harassment.

2

Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 258 (6th
Cir. 2000) (citing Soper v. Hoben, 195 F.3d 845, 854 (6th Cir.
1999)).
Deliberate indifference may be proven by showing that the
school’s response was “clearly unreasonable . . . in light of the
known circumstances.”

Id. at 260 (quoting Davis v. Monroe Cnty.

Bd. Of Educ., 526 U.S. 629, 648 (1999)).

“Although no particular

response is required, and although the school . . . is not required
to eradicate all sexual harassment, the school . . . must respond
and must do so reasonably in light of the known circumstances.”
Id. at 260-61.
“Thus, where a school . . . has knowledge that its remedial
action is inadequate and ineffective, it is required to take
reasonable action in light of those circumstances to eliminate the
behavior.”

Id. at 261.

“Where a school district has actual

knowledge that its efforts to remediate are ineffective, and it
continues to use those same methods to no avail, such [school] has
failed to act reasonably in light of the known circumstances.”
Id.
The fact that NKU’s papers in support of its motion debate
the weight to be given to the testimony of various witnesses; the
interpretation of certain documents; and the credibility of many
witnesses indicates that this case is not an appropriate one for
summary disposition.
3

NKU admits that many of the incidents cited by plaintiff
actually occurred:
1. NKU advised Plaintiff not to pursue a criminal complaint.
(Doc. 165-1, p. 3).
2. Student M showed up in the same cafeteria where Plaintiff
was eating. When she called the police, it was revealed
that they had never been advised concerning Student M’s
sanctions or provided with a picture of him. Id. at 8.
3. Plaintiff received a Snapchat notice from Student M.
at 10.
4. Student M was working in
Plaintiff frequented. Id.

a

recreation

center

Id.

which

5. Student M was permitted to work in a program helping
students move into dorms where he was encountered by
Plaintiff.
6. The chief of the University police circulated an email
stating that Plaintiff was “slandering” Student M.
7. Problems arose with permission for Student M to be at
locations where Plaintiff would encounter him.
8. In his deposition, the chief of the campus police testified
that NKU declined to adopt measures to assure a “safe
campus.”
9. The chief further testified that the University refused to
implement his suggestion that ingress to the dorms be
monitored by an attendant.1
NKU attempts to downplay these and other incidents, urging
that, even taken as a whole, they do not amount the “deliberate
indifference.” While one might conclude that some of the incidents

1

Many other incidents are cited by Plaintiff in her response.
4

were due simply to negligence, it is for a jury to review all the
evidence and determine whether NKU’s response as a whole amounted
to “deliberate indifference.”

See Doe v. Claiborne Cnty., 103

F.3d 495, 515 (6th Cir. 1996) (whether educational entity took
appropriate action after knowing of inappropriate conduct is a
factual question for a jury to resolve).
The Court thus holds that there are genuine disputes of
material fact that preclude the grant of summary judgment.
Therefore, having reviewed this matter, and the Court being
advised,
IT IS ORDERED that:
(1)

NKU’s motion for summary judgment (Doc. 165) be, and is
hereby, DENIED;

(2)

Plaintiff’s motion to strike NKU’s motion for summary
judgment (Doc. 169) be, and is hereby, DENIED AS MOOT;
and

(3)

The motion for summary judgment by defendant Kachurek
(Doc. 164) continues UNDER ADVISEMENT.

5

This 6th day of April, 2017.

6