Doe v. University of Kentucky

Filing 111

MEMORANDUM OPINION & ORDER: 1) Dft.'s Motion to Dismiss 102 is DENIED. 2) Ptf.'s Motion for Discovery 107 GRANTED. 3) Parties shall have 45 days from entry of this Order to conducted limited discovery on Doe's remaining claim of retaliation. 4) W/in 60 days of entry of this Order parties SHALL each file Motions for Summary Judgment. Parties are cautioned to tailor their arguments.. Signed by Judge Joseph M. Hood on 09/15/2021.(JER)cc: COR

Case: 5:15-cv-00296-JMH Doc #: 111 Filed: 09/15/21 Page: 1 of 11 - Page ID#: 1102

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JANE DOE,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
UNIVERSITY OF KENTUCKY,
Defendant.
***

***

***

Civil No. 5:15-296-JMH

MEMORANDUM OPINION
AND ORDER
***

This matter comes before the Court on Defendant University of
Kentucky’s

(the

“University”)

Motion

to

Dismiss

pursuant

to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for alleged
lack of subject matter jurisdiction and failure to state a claim
upon which relief can be granted. Plaintiff has responded in
opposition and has also moved for discovery. For the reasons stated
below, the Court denies the University’s Motion to Dismiss (DE
102) and grants Plaintiff’s Motion for Discovery (DE 107).
I.

Background
Plaintiff Jane Doe (“Doe”) was enrolled in her first year at

the Bluegrass Community and Technical College (“BCTC”)1 in the fall
of 2014, when she alleged that she was sexually assaulted by a
Previously known as the Lexington Community College, BCTC was
an entity that was wholly owned, managed, and governed by the
University. While Doe was not enrolled as a University student,
Doe lived on campus in the University’s residence hall. At this
time, Doe had been enrolled in a dual academic program at BCTC,
whose successful completion would permit a credit transfer to the
University towards a bachelor’s degree. (DE 57, ¶¶ 7-9).
1

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University student. (DE 57, ¶ 7). Doe contends that she had
previously been in a relationship with the perpetrator, until
September 2014, when she terminated the relationship. (Id., ¶ 11).
On October 2, 2014, Doe alleges that the physical assault
occurred. During the encounter, her attacker
forcibly removed [her] leggings, attempted to cover
her mouth to prevent her from screaming, forced her
to bend over her bed, and then forcibly penetrated
his penis into her vagina. After the assault, the
Assailant stated, “I’m done playing with you.”
(Id., ¶ 12). Doe immediately reported the rape to the University’s
police department, and from then on investigations ensued. (Id.,
¶¶ 16-19). Doe contends that shortly after she “became the target
of harassment on campus and online in social media.” (Id., ¶ 21)
On October 15, 2014, Doe withdrew from campus housing and dropped
out of classes. (Id., ¶ 33). The following year, she chose not to
continue her education at BCTC, and instead enrolled in a dental
assistant certification program at MedQuest College. (Id., ¶ 62).
Over

the

course

of

two

and

a

half

years,

the University conducted four disciplinary hearings. (Id., ¶¶ 27,
41,

50,

70).

Although

Doe’s

alleged

perpetrator

was

found

responsible for the rape at the first three hearings (see id., ¶¶
30, 43, & 52) the University's appeal board (UAB) overturned the
findings based on procedural deficiencies. (Id., ¶¶ 39, 46, & 55).
At the fourth hearing, however, the alleged perpetrator was found
not responsible. (Id., ¶ 78).
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On

October

1,

2015,

Doe filed

suit

against

the University alleging deliberate indifference to her alleged
sexual assault violated Title IX. (DE 1, ¶¶ 41-47). Since 2015,
however, Doe has amended her complaint on multiple occasions. (See
DE 27, 42, and 57). In the latest amendment, filed on January 30,
2018, Doe added a Title IX claim of retaliation. (DE 57, ¶¶ 9599). The University moved for dismissal arguing (among other
things) that Doe lacked standing2 to bring suit. (DE 60). Having
attached several exhibits to the motion, the Court treated the
motion as one for summary judgment and considered limited discovery
relating to Doe’s status as a non-University student. Doe v. Univ.
of Ky., 357 F. Supp. 3d 620, 623 (E.D. Ky. 2019).
On appeal, the Sixth Circuit reversed the Court’s finding
that Doe lacked standing to bring suit and remanded for further
proceedings, consistent with deciding the merits of the deliberate
indifference claim pursuant to recent case law. Doe v. Univ. of
Ky., 971 F.3d 553, 558-59 (6th Cir. 2020); see Kollaritsch v.
Michigan State University Board of Trustees, 944 F.3d 613, 619-24
(6th Cir. 2019)(holding that Title IX deliberate-indifference
claims require actual proof from the victim of further harassment).
Shortly after the mandate was issued, however, the parties jointly

The University raised this argument in the context of Doe’s
then-existing claim of deliberate indifference. (See DE 60 at 1820).
2

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moved to dismiss Doe’s deliberate-indifference claim, leaving only
the claim of retaliation. (DE 101).
On September 29, 2020, the University filed this motion to
dismiss pursuant to Rules 12(b)(1) and 12(b)(6). This matter is
fully briefed. (DE 106; DE 108).
II.

Legal Standards

The University brings this motion pursuant to Rules 12(b)(1)
and

12(b)(6)

of

the

Federal

Rules

of

Civil

Procedure.

Rule

12(b)(1) provides that an action may be dismissed for lack of
subject matter jurisdiction. Assertions of sovereign immunity may
be brought under this rule for lack of jurisdiction.

Muniz-Muniz

v. U.S. Border Patrol, 741 F.3d 668, 671 (6th Cir. 2013). “[U]nlike
subject-matter

jurisdiction,

‘the

entity

asserting

Eleventh

Amendment immunity has the burden to show that it is entitled to
immunity.’ ” Nair v. Oakland Cty. Cmty. Mental Health Auth., 443
F.3d 469, 474 (6th Cir. 2006) (quoting Gragg v. Ky. Cabinet for
Workforce Dev., 289 F.3d 958, 963 (6th Cir. 2002)).
To survive a motion to dismiss under Rule 12(b)(6), “a
complaint must 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 Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
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liable for the misconduct alleged.” Id. However, “a formulaic
recitation of a cause of action’s elements will not do.” Twombly,
550 U.S. at 555. Courts “must construe the complaint in the light
most favorable to the plaintiff and accept all allegations as
true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012).
Yet, at the same time, Courts need not accept “legal conclusion[s]
couched as [] factual allegation[s].” Papasan v. Allain, 478 U.S.
265, 286 (1986).
The Court may only consider the Complaint and any of its
attachments, “public records, items appearing in the record of the
case and exhibits attached to defendant's motion to dismiss so
long as they are referred to in the Complaint and are central to
the claims contained therein.” Bassett v. Nat’l Coll. Athletic
Ass’n (528 F.3d 426, 430 (6th Cir. 2008). “[T]o consider matters
beyond the complaint … would convert the motion [] into a motion
for

summary

judgment.”

Mediacom

Southeast

LLC

v.

BellSouth

Telecomm., Inc., 672 F.3d 396, 399 (6th Cir. 2012) (citation
omitted).
III. Discussion
a. Sovereign Immunity
The University argues that sovereign immunity bars Doe from
pursuing the retaliation claim. (DE 102 at 6). Doe argues that the
Court previously considered the sovereign immunity defense, and
rejected the argument in an earlier decision. (DE 106 at 5; see

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generally DE 12: Memorandum Opinion and Order, Dated August 31,
2016).
Sovereign immunity is abrogated for Title IX claims against
the university. Franks v. Kentucky Sch. for the Deaf, 142 F.3d
360, 363 (6th Cir. 1998). In Franks, the Sixth Circuit explicitly
stated,

“since

Congress

made

states’ Title IX immunity
authority
Amendment,

to

do

we

so

hold

its

intention

unmistakably

pursuant
that

to

clear,

Section

Congress

to

5

abrogate

and

of

the

successfully

it

had

the
the

Fourteenth

abrogated

the

states’ Eleventh Amendment immunity from Title IX lawsuits.” Id.
Here,

the

University

attacks

the

validity

of Franks,

by

arguing that it does not control in the context of a retaliation
setting (see DE 102 at 10). However, to the extent the University
is arguing that the Court should ignore Franks, that assertion
(without more) is insufficient. “Until a court of appeals revokes
a binding precedent, a district court within the circuit is hard
put to ignore that precedent unless it has unmistakably been cast
into disrepute by supervening authority.” Eulitt v. Me. Dep't of
Educ., 386 F.3d 344, 349 (1st Cir. 2004). The Court is also not
convinced

that

discrimination.

retaliation
Nor

is

the

is
Court

a

different

convinced

that

subset
Franks

of
is

inapplicable in this Title IX context.
In any case, the Court need not decide the issue now. “The
Sixth

Circuit

has

not

explicitly

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decided

whether

a

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court must or may resolve

a

sovereign

immunity

defense

before

addressing the merits of a claim.” Wesley v. Campbell, 2010 WL
3120204, at *4 (E.D. Ky. Aug. 5, 2010) (citing Nair, 443 F.3d at
477). “Despite the lack of precedent clearly deciding this issue,
the trend favors granting federal courts discretion to first
address immunity issues or address the merits.” Id.
Here, in its discretion, the Court seeks to proceed with
adjudication on the merits. There is evidence to suggest that the
University has raised sovereign immunity as an alternative ground
for rejecting Doe’s retaliation claim; otherwise, it would not
have pursued dismissal on additional 12(b)(6) grounds.
b. Standing
The

University

briefly

asserts

that

the

Court

should

otherwise find that Doe lacks standing to assert her remaining
claim. (DE 102 at 15-16). This argument3 is premised on the fact
that Doe’s claim arises out of conduct that occurred long ago,
when Doe was no longer in University housing. (Id.) The University
adds that the claim arises out of the fourth disciplinary hearing,
in 2017, when Doe was just a “witness” and no longer a student.

The Court finds this argument curious. Ironically, the University
faults Doe for the timeline of this claim, when the University,
too, could have raised this standing argument in its previous
motion to dismiss but did not. (See generally Sealed Motion to
Dismiss Third Amended Complaint, filed February 20, 2018(DE 60 at
18-20, 27-28)).
3

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However, the Court cannot reduce Doe’s status as a mere a
witness; Doe’s status cannot merely be looked at in a vacuum. The
Court must look to the progression of the case, including the four
disciplinary hearings, and ultimately what lead to this claim. To
foreclose Doe from arguing the merits of the retaliation claim
would be unjust, as a causal connection to the University’s conduct
plainly exists.
c. Retaliation
The parties, at the least, agree on litigating this matter
under the same framework. (See DE 102 at 16, n.102; DE 106 at 15).
In unpublished authority, the Sixth Circuit has determined that a
Title IX plaintiff must make a prima facie showing “that (1) [s]he
engaged in protected activity, (2) [the funding recipient] knew of
the protected activity, (3) [s]he suffered an adverse schoolrelated action, and (4) a causal connection exists between the
protected activity and the adverse action.” Gordon v. Traverse
City Area Pub. Schs., 686 F. App'x 315, 320 (6th Cir. 2017). “Other
sister circuits apply similar tests.” Bose v. Bea, 947 F.3d 983,
988-89 (6th Cir. 2020),

cert. denied sub nom. Bose, Prianka v.

Bea, Roberto, et al., No. 20-216, 2021 WL 78095 (2021).
In her response, Doe clarifies the bases for her claim of
retaliation, arguing that the University retaliated against her
when it:

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(1) delayed scheduling the fourth [disciplinary]
hearing by more than fifteen months, (2) cancelled
the fourth hearing on the morning it was to start,
(3) failed to hold the required pre-hearing meeting,
(4) failed to make a request to continue the hearing
until
Officer
Sizemore
could
testify,
(5)
intentionally kept Officer Sizemore from testifying,
(6) permitted the Assailant to use Doe’s recorded
statements contrary to its prior ruling prohibiting
such use, (7) allowed the fourth hearing panel to
question her about her federal lawsuit during the
hearing, (8) found the Assailant not responsible after
three previous findings in her favor, (9) denied her
appeal, and (10) made her unable to re-enroll in
school because of the significant distress caused by
the three additional administrative hearings and lack
of appropriate supports. D.E. 57 ¶¶ 67, 71, 73, 7678, 80-82, 86.
(DE 106 at 18). In a separate filing, Doe then moves to clarify
the University’s motion to dismiss and for discovery. (DE 107).
Doe argues that, while the University’s motion is styled as
a motion to dismiss, it is actually another motion for summary
judgment because it relies on matters that fall outside of the
pleadings. (Id.; DE 106). The University does not deny this. (DE
102 at 5-6). Similar to before (see DE 65), Doe asks the Court to
unequivocally construe the University’s motion as one for summary
judgment; provide Doe an opportunity to conduct discovery on this
claim; provide her the opportunity to file a motion for summary
judgment;

and

preclude

the

University

from

supplementing

his

motion for summary judgment. (DE 107).
Like the Court previously found (see DE 76), there is no
denying that the University’s motion goes beyond the limits of a

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12(b)(6) motion. Doe states that discovery is “crucial” because it
is

the

only

University’s

way

it

motion

would

for

be

able

summary

to

judgment,

properly
and

oppose

allow

her

the
the

opportunity to draft her own motion for summary judgment. (DE 107
at 3).

Doe does not state how much time is required for this

discovery.
Rule 56(d) gives litigants a chance to secure “ ‘a full
opportunity to conduct discovery’ to be able to successfully defeat
a motion for summary judgment.”

Cline v. Dart Transit Co., 804 F.

App’x 307, 312 (6th Cir. 2020) (quoting Doe v. City of Memphis,
928 F.3d 481, 486 (6th Cir. 2019) (citation omitted). Rule 56(d)
provides the Court with a few options. “[T]he Court may: (1) defer
considering the motion or deny it; (2) allow time to obtain
affidavits or declarations or to take discovery; or (3) issue any
other appropriate order.” FED. R. CIV. P. 56(d) (emphasis added).
The Court, in fairness to all of the parties, and to provide
Doe the opportunity to be heard, will defer a ruling on the
retaliation

claim,

allowing

the

parties

the

opportunity

to

mutually conduct discovery on this issue and file respective
motions for summary judgment upon its conclusion.
IV.

Conclusion

Accordingly, for the reasons stated above,
IT IS hereby ORDERED as follows:
(1)

Defendant’s Motion to Dismiss (DE 102) is DENIED.
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(2)

Plaintiff’s Motion for Discovery (DE 107) is GRANTED to
the

extent

that

she

is

permitted,

along

with

the

University to conduct limited discovery and to file her
own

motion

for

summary

judgment

for

the

Court’s

consideration.
(3)

The parties SHALL have forty-five (45) days from the
entry of this Order to conduct limited discovery on
Doe’s remaining claim of retaliation.

(4)

Within sixty (60) days from the entry of this Order the
parties SHALL each file respective motions for summary
judgment. The parties are cautioned to tailor their
arguments to addressing the merits of Doe’s remaining
claim. Response and reply deadlines will be governed by
local rules.

This the 15th day of September, 2021.

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