Chenier v. Southeastern Louisiana University et al

Filing 50

ORDER: IT IS HEREBY ORDERED that Defendant Board of Supervisors for the University of Louisiana System's 22 Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. The motion is granted in part to the extent that the Court treats it as a motion to dismiss for lack of subject matter jurisdiction and dismisses Plaintiff's state law negligence claim without prejudice pursuant to Defendant's Eleventh Amendment immunity defense. The motion is denied in part to the extent that there are disputed issues of material fact precluding summary judgment on Plaintiff's Title IX claim. Signed by Judge Nannette Jolivette Brown on 8/8/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KALA CHENIER

CIVIL ACTION

VERSUS

NO. 16-4125

BOARD OF SUPERVISORS FOR THE LOUISIANA
SYSTEM

SECTION: “G”(3)

ORDER
In this litigation, Plaintiff Kala Chenier (“Plaintiff”) alleges that she was sexually
harassed and discriminated against on the basis of her gender by her professor while a student at
Southeastern Louisiana University (“Southeastern”) in violation of 28 U.S.C. § 1681 (“Title IX”)
and Louisiana state law.1 Pending before the Court is Defendant Board of Supervisors for the
University of Louisiana System’s (“Defendant”) “Motion for Summary Judgment.”2 Having
considered the motion, the memoranda in support and in opposition, and the applicable law, the
Court will dismiss Plaintiff’s state law negligence claims without prejudice for lack of subjectmatter jurisdiction and deny Defendant’s motion for summary judgment in all other respects.
I. Background
A.

Factual Background
In this litigation, Plaintiff alleges that she was sexually harassed by her professor, Dr.

Rick Miller, in the spring semester of 2015 while she was a student at Southeastern Louisiana
University.3 Plaintiff alleges that Dr. Miller engaged in “severe and pervasive” harassment and
1

Rec. Doc. 46 at 7–9.

2

Rec. Doc. 22.

3

Rec. Doc. 46 at 4–5.

1

discrimination throughout the semester, such as unwanted physical touching of Plaintiff during
class, asking Plaintiff to smell the crotch of his pants, and touching himself inappropriately while
alone with Plaintiff in Southeastern’s greenhouse.4 Plaintiff contends that she reported Dr.
Miller’s behavior at the end of the semester, but Defendant failed to take any action against the
unlawful sexual harassment and gender discrimination, despite the fact that they had also
received “numerous complaints” from other students and faculty about Dr. Miller’s behavior in
the past.5 Plaintiff asserts that she was subject to a hostile environment, sexual harassment, and
assault by Dr. Miller, and asserts a claim for gender discrimination under Title IX and a
negligence claim under Louisiana state law.6
B.

Procedural Background
On May 3, 2016, Plaintiff filed the complaint in this matter.7 On May 12, 2017, Plaintiff

filed a first amended complaint.8 On February 27, 2017, Defendant filed the instant motion.9
Plaintiff filed an opposition on March 7, 2017.10 On March 17, 2017, with leave of Court,
Defendant filed a reply.11 On March 23, 2017, Plaintiff filed a supplemental memorandum with
leave of Court.12
4

Id. at 4–6.

5

Id. at 6–8.

6

Id. at 7–10.

7

Rec. Doc. 1.

8

Rec. Doc. 46.

9

Rec. Doc. 22.

10

Rec. Doc. 23.

11

Rec. Doc. 29.

12

Rec. Doc. 35.

2

II. Parties’ Arguments
A.

Defendant’s Arguments in Support of the Motion for Summary Judgment
1.

Plaintiff’s Title IX Claim

In its motion, Defendant first argues that summary judgment should be granted in its
favor on Plaintiff’s Title IX claim, asserting that: (1) Plaintiff failed to provide timely notice to
Defendant of the alleged harassment by Dr. Miller, and thus Defendant did not have an
opportunity to take corrective action; (2) Plaintiff was not barred from accessing any educational
opportunity or benefit by Dr. Miller’s alleged conduct; and (3) Defendant was not deliberately
indifferent to the alleged harassment that was not disclosed until after the semester was over.13
In particular, Defendant avers that Plaintiff did not inform Defendant of her allegations of
sexual harassment by Dr. Miller, her Ecology professor in the spring semester of 2015, until after
the semester was over and after Plaintiff received a final grade of “B” for Dr. Miller’s class.14
Defendant points out that Plaintiff transferred schools after the end of the spring semester of
2015 and did not re-enroll in Southeastern.15 Thus, Defendant argues that Plaintiff did not
provide adequate notice to allow Defendant to take corrective action, and that Defendant
therefore could not have been “deliberately indifferent” to the alleged harassment.16

13

Rec. Doc. 22-2 at 1–2.

14

Id. at 4–5.

15

Id.

16

Id.

3

Furthermore, Defendant contends that Dr. Miller, a tenured professor, resigned before a tenure
revocation hearing could be prosecuted.17
Defendant further avers that Plaintiff admits that she took and completed Dr. Miller’s
class, received a final grade, and enrolled in another university for the fall semester of 2015, and
thus Defendant argues that she was not denied any educational opportunity or benefit by
Defendant.18 Moreover, Defendant asserts that Plaintiff’s allegations fail to meet the “objectively
severe and pervasive standard” required to recover on a Title IX claim and to show that Plaintiff
was “effectively barred” from an educational opportunity or benefit by Dr. Miller’s actions.19
Defendant argues that “Plaintiff subjectively chose to endure the alleged inappropriate behavior
until the class ended without reporting it to any Southeastern official,” and consequently, “as a
matter of law, [P]laintiff’s allegations of harassment fail to meet the objectively severe and
pervasive standard necessary to recover damages under Title IX.”20
2.

Plaintiff’s Negligence Claim

With regard to Plaintiff’s negligence claim under Louisiana state law, Defendant asserts
that it is an arm of the state of Louisiana and is thus immune from Plaintiff’s state law claim
under the Eleventh Amendment to the United States Constitution.21 Defendant contends that the

17

Id. at 6.

18

Id. at 5.

19

Id. at 6.

20

Id.

21

Id. at 7–8.

4

Louisiana legislature has not waived Eleventh Amendment immunity for state law claims in
federal court, but rather expressly reserved its immunity.22
B.

Plaintiff’s Arguments in Opposition to the Motion for Summary Judgment
1.

Plaintiff’s Title IX Claim

In opposition, Plaintiff points to evidence that Dr. Miller engaged in “inappropriate,
perverse, harassing, and altogether manipulative behavior” against Plaintiff multiple times over
the semester while he was Plaintiff’s Ecology professor.23 For example, among other allegations,
Plaintiff asserts that Dr. Miller: (1) repeatedly contacted and harassed Plaintiff via personal
email, text messages, private phone calls, and in-person visits to Plaintiffs’ place of employment
to discuss personal and inappropriate matters, making her feel “stalked;” (2) asked Plaintiff to
smell his crotch for traces of his wife’s perfume in the middle of class; (3) physically touched
Plaintiffs’ backside and breast while leaning in close to Plaintiff during class on “numerous
occasions;” (4) instructed Plaintiff to mix fertilizer on the ground while she was on her hands and
knees and he stood behind her and watched; and (5) touched himself inappropriately” in front of
Plaintiff after requesting that Plaintiff come to the university’s greenhouse with him alone and
telling another student not to come.24
Plaintiff agrees that actual notice of a harasser’s misconduct is required to recover under
Title IX in a private action, but argues that Title IX does not require the victim herself to give
such notice.25 Plaintiff points out that the Office of Civil Rights for the United States Department
22

Id.

23

Rec. Doc. 23 at 1–2.

24

Id. at 1–5, 9–13. See Rec. Doc. 23-4 at 1; Rec. Doc. 35-2 at 20–27.

25

Rec. Doc. 23 at 6.

5

of Education (“OCR”) published a “Dear Colleague Letter” in 2011, which, according to
Plaintiff, advises universities that they must respond immediately to notice of harassment
provided by anyone, even if the victims themselves do not report the harassment.26
Here, Plaintiff asserts that Defendant received actual notice from her when she submitted
a detailed letter containing a description of Dr. Miller’s conduct and met with the head of the
Department of Biological services, Dr. Christopher Beachy, and Southeastern’s Title IX
compliance officer, Gene Pregeant, at the end of the semester.27 Moreover, Plaintiff avers that
Defendant had actual notice of Dr. Miller’s sexual misconduct from the numerous past
complaints made by other students and faculty.28 Plaintiff points out that when she went to see
Dr. Beachy to report that “one of her professors” had sexually harassed her over the semester,
Dr. Beachy’s secretary immediately and correctly asked Plaintiff, “Is this about Dr. Miller?”29
Plaintiff asserts that the secretary’s reaction shows that Defendant was already well aware of Dr.
Miller’s misconduct towards students.30 Furthermore, according to Plaintiff, during her separate
meetings with Dr. Beachy and then Gene Pregeant, both officials informed Plaintiff that they
were already aware of Dr. Miller’s misconduct and that this was not the first time such a
complaint had been made against him.31 According to Plaintiff, during her meeting with Gene

26

Id. at 7 (quoting Rec. Doc. 23–7 at 4).

27

Id.

28

Id. at 8.

29

Id.

30

Id.

31

Id. at 8–9.

6

Pregeant, he also “referred to a file held on Dr. Miller allegedly detailing such complaints.”32
Plaintiff argues that for each of these complaints, Defendant was required to take immediate
corrective action, but instead Defendant continued to employ Dr. Miller and “sit idly by while
students of its university repeatedly suffered sexual harassment and discrimination by Dr.
Miller.”33
Additionally, Plaintiff asserts that, even though she chose to endure the harassment to
finish her class and receive a grade, Dr. Miller’s sexual harassment denied Plaintiff educational
opportunities or benefits.34 Plaintiff contends that Dr. Miller’s misconduct was so severe and
pervasive that it denied Plaintiff an opportunity to learn in an environment free from harassment,
and compelled Plaintiff to leave the university to finish her education out of state and seek
therapy.35 Plaintiff further argues that she was unable to attend several Ecology classes due to
Dr. Miller’s behavior, and, after the incident in the greenhouse when Dr. Miller allegedly
touched himself in front of her, she stopped going to class altogether.36 According to Plaintiff,
she was also denied a fair and unbiased grade, as she maintained an “A” throughout the class and
only began receiving lower grades from Dr. Miller so that he could “save himself” from other
students’ accusations that he was giving preferential treatment to Plaintiff.37

32

Id. at 9.

33

Id. at 9–10.

34

Id. at 13–14.

35

Id. at 14.

36

Id.

37

Id. at 15.

7

Furthermore, Plaintiff argues that Defendant was deliberately indifferent to the
harassment and failed to respond reasonably to the risk of harm against Plaintiff.38 Plaintiff
points out that even though she complained at the end of the semester, Defendants had several
months to investigate Plaintiff’s allegations and take action against Dr. Miller.39 Instead, Plaintiff
avers, Dr. Miller maintained his employment well into the next academic year, and Defendant
provided “little information” to her regarding the status of the investigation or whether
Defendant took “any meaningful action whatsoever.”40 Plaintiff further contends that the “basic
information conveyed to Plaintiff” was that Dr. Miller was tenured, and that it would be difficult
to remove him.41
2.

Plaintiff’s Negligence Claim

Finally, Plaintiff argues that this Court may exercise supplemental jurisdiction over
Plaintiff’s state law negligence claim.42 Plaintiff contends that Defendant unequivocally waived
its Eleventh Amendment immunity to Title IX causes of action in federal court when it accepted
federal financial assistance, and therefore the Court has original jurisdiction over Plaintiff’s Title
IX claim.43 According to Plaintiff, the Seventh Circuit and the Tenth Circuit have recognized that

38

Id.

39

Id. at 16.

40

Id.

41

Id. at 4, 16.

42

Id. at 16.

43

Id. at 16–17.

8

courts can hear state law claims in conjunction with a Title IX claim when they arise out of the
same case or controversy, as they do here.44
C.

Defendant’s Arguments in Further Support of the Motion for Summary Judgment
In reply, Defendant argues that Plaintiff was required to give actual notice of the alleged

sexual harassment against Plaintiff in particular, and that constructive notice cannot support a
Title IX claim.45 Defendant asserts that notice of other unrelated complaints against Dr. Miller is
insufficient to satisfy the actual notice element of Title IX claims, as it does not give Defendant a
reasonable chance to take remedial action while Plaintiff was actually enrolled at Southeastern
and before she moved out of state.46 Defendant further contends that the prior complaints are too
distinguishable from Plaintiff’s complaint for Plaintiff to assert that they provided actual notice
of her allegations.47
Moreover, Defendant argues that Plaintiff left Southeastern within a few months after her
initial report of harassment, and so Defendant “never had a reasonable chance or amount of time
to take remedial action while [P]laintiff was actually enrolled in Southeastern.”48 According to
Defendant, the persons necessary to conduct an investigation into Plaintiff’s allegations against
Dr. Miller were not present on campus or readily available over the summer break after Plaintiff
complained.49 Thus, Defendant asserts that it was never given a chance by Plaintiff “to remove
44
Id. at 17–18 (citing Varnell v. Dora Consol. Sch. Dist., 756 F.3d 1208 (10th Cir. 2014); Doe-2 v. McLean
County Unit Dist. 5 Bd., Directors, 593 F.3d 507 (7th Cir. 2010)).
45

Rec. Doc. 29 at 2.

46

Id. at 2, 4.

47

Id. at 3.

48

Id. at 4.

49

Id. at 4–5.

9

Dr. Miller from her classes or presence,” or to conduct a tenure revocation hearing because
Plaintiff “chose to immediately move away” and “never returned to the school.”50 Therefore,
Defendant contends that it could not have been deliberately indifferent to the alleged harassment,
as its actions were not “clearly unreasonable in light of the known circumstances.”51
Additionally, Defendant argues that supplemental jurisdiction does not override a state’s
immunity under the Eleventh Amendment.52 According to Defendant, a constitutional
amendment providing immunity to damages in federal court pursuant to state law causes of
action “cannot be stripped away” by a federal statute.53
D.

Plaintiff’s Arguments in Further Opposition to the Motion for Summary Judgment
In Plaintiff’s supplemental memorandum, Plaintiff argues that several courts have held

that Title IX’s actual notice prong only requires that Defendant knew the harasser engaged in
sexual harassment and was deliberately indifferent to it, and that Title IX does not require that
Defendant have actual notice of the exact acts directed against a particular plaintiff.54
Furthermore, Plaintiff represents that she was recently provided evidence of multiple formal
complaints against Dr. Miller dating back to at least 2001 that were in Defendant’s possession
and, according to Plaintiff, further support denying Defendant’s motion.55

50

Id. at 5.

51

Id. at 3.

52

Id. at 6.

53

Id.

54
Rec. Doc. 35 at 6 (citing Board of Trustees of Hamilton, 551 F.3d 599, 605–06 (7th Cir. 2008); Williams
v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1293 (11th Cir. 2007); Escue v. N. Okla. Coll., 450 F.3d 1146,
1153 (10th Cir. 2006); Doe v. Blackburn Coll., No. 06-3205, 2012 WL 640046, at *9 (C.D. Ill. Feb. 27, 2012)
(citing Delgado v. Stegall, 367 F.3d 668, 672 (7th Cir. 2004)).
55

Id. at 1, 5.

10

For example, Plaintiff points to a May 19, 2003 letter to Dr. Miller in which a research
associate at Southeastern informed Dr. Miller that his comment that she needed to be “spanked”
were “insulting and inappropriate,” and noted that he had engaged in similar “verbal
suggestions” and “unwanted touching” with graduate students.56 Plaintiff avers that on June 3,
2003, another student wrote a letter to Gene Pregeant to inform him that Dr. Miller once tugged
on the zipper of her sweatshirt and attempted to look down her neckline.57 The same letter also
detailed “unwanted touching” when Dr. Miller attempted to rub aloe lotion on the student’s back
and neck.58 Likewise, on June 19, 2003, the then-Head of Biological Sciences wrote to Dr. Miller
informing him that there had been three reported incidents of sexual harassment across a period
of fifteen months, which “indicate a continual pattern of unacceptable language and poor
judgment with regard to your interactions with women.”59
More recently, Plaintiff points to a July 16, 2007 letter from Gene Pregeant to Dr. Miller,
in which Pregeant avers that a graduate biology student “levied serious accusations against [Dr.
Miller] concerning comments that could have been construed as discriminatory and harassing,”
and Pregeant “strongly caution[s] [Dr. Miller] about crossing boundaries of familiarity with
students.”60 Likewise, Plaintiff asserts that a “group of concerned students” wrote in a 2013 letter
that “inappropriate comments and inappropriate behavior have become common place” in Dr.

56

Id. at 4; Rec. Doc. 35-2 at 1.

57

Id.

58

Id.

59

Id. at 4; Rec. Doc. 35-2 at 7.

60

Rec. Doc. 35 at 5; Rec. Doc. 35-2 at 10.

11

Miller’s classroom.61 According to Plaintiff, on November 5, 2013, a faculty member who was
also Dr. Miller’s mentee described a “pattern of harassment that began to emerge at the
beginning of the semester” and expressed concerns about “further escalation.”62 The letter states
that the faculty member was experiencing a “feeling of discomfort . . . when [she] see[s] Dr.
Miller in the hallway,” and requests that she “not be associated with Dr. Miller professionally or
otherwise in the future.”63
In sum, Plaintiff argues that this “clear pattern of inexcusable conduct” was “allowed by
Defendant’s frustrating, deliberate indifference.”64 Plaintiff asserts that only the June 19, 2003
letter advises Dr. Miller that “a repeated incident in the future will result in severe disciplinary
action,” but Plaintiff contends that Defendant failed to take any action against the multiple
incidents of harassment since that letter.65
Plaintiff also provides evidence of her lost educational opportunities.66 Plaintiff points out
that in emails she sent to Dr. Beachy and Gene Pregeant during the summer of 2015, she
expressed interest in staying at Southeastern for her final year to graduate, but informed them
that she was told that Dr. Miller “was probably not going to be terminated” and that she could
not return to Southeastern if he would still be there.67 Plaintiff also stated that it was “extremely
hurtful” to learn that Dr. Miller had “a history of crossing lines with female students,” and asked

61

Id.; Rec. Doc. 35-2 at 13–14.

62

Rec. Doc. 35 at 5.

63

Rec. Doc. 35-2 at 15.

64

Rec. Doc. 35 at 5.

65

Id. at 6.

66

Id. at 7.

12

why Dr. Miller was “allowed to be inappropriate with me if the school knew he had a problem
with boundaries when it came to young females.”68 Plaintiff argues that the fact that Dr. Miller
remained employed by Defendants into the next year without facing any consequences for his
“decade plus long career of Title IX violations at Southeastern University” further supports
denying the motion.69
III. Law and Analysis
A.

Legal Standard for Motions for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits

show that “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”70 When assessing whether a dispute as to any material fact exists,
the court considers “all of the evidence in the record but refrains from making credibility
determinations or weighing the evidence.”71 All reasonable inferences are drawn in favor of the
nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory
facts and conclusions of law’ are insufficient to either support or defeat a motion for summary
judgment.”72 If the record, as a whole, “could not lead a rational trier of fact to find for the nonmoving party,” then no genuine issue of fact exists and the moving party is entitled to judgment

67

Rec. Doc. 35-3 at 1–2.

68

Id. at 2.

69

Rec. Doc. 35 at 7.

70

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
71

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

72

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

13

as a matter of law.73 The nonmoving party may not rest upon the pleadings, but must identify
specific facts in the record and articulate the precise manner in which that evidence establishes a
genuine issue for trial.74
The party seeking summary judgment always bears the initial responsibility of informing
the Court of the basis for its motion and identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact.75 Thereafter, the nonmoving party
should “identify specific evidence in the record, and articulate” precisely how that evidence
supports his claims.76 To withstand a motion for summary judgment, the nonmoving party must
show that there is a genuine issue for trial by presenting evidence of specific facts.77 The
nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by
creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by
“unsubstantiated assertions,” or “by only a scintilla of evidence.”78 Rather, a factual dispute
precludes a grant of summary judgment only if the evidence is sufficient to permit a reasonable
trier of fact to find for the nonmoving party. Hearsay evidence and unsworn documents that
cannot be presented in a form that would be admissible in evidence at trial do not qualify as
competent opposing evidence.79

73

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).

74

See Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

75

Celotex, 477 U.S. at 323.

76

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994).

77

Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty, 477 U.S. 242, 248–

49 (1996)).
78

Little, 37 F.3d at 1075.

79

Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R .Civ. P. 56(c)(2).

14

B.

Legal Standard for Title IX Sexual Harassment Claims
20 U.S.C. § 1681(a) provides, in relevant part, 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.” Title IX is enforceable through an implied private right of action, and “sexual
harassment of a student by a teacher constitutes actionable discrimination for the purposes of
Title IX.”80
In Gebser v. Lago Vista Independent School District, the Supreme Court held that a
school district may not be held liable for damages under Title IX for a teacher’s sexual
harassment of a student “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.”81 The
Supreme Court further determined that “the response must amount to deliberate indifference to
discrimination.”82 The Fifth Circuit has held that the “deliberate indifference standard is a high
one.”83 School officials may avoid liability under the deliberate indifference standard by
“responding reasonably to a risk of harm . . . even if the harm ultimately was not averted.”84
“Actions and decisions by officials that are merely inept, erroneous, ineffective, or negligent do

80

20 U.S.C. § 1681(a); Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 383 (5th Cir. 2000)
(citing Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75 (1992)); see also Matthews v. Nwankwo, 36 F. Supp.
3d 718, 722 (N.D. Miss. 2014).
81

524 U.S. 274, 290 (1998); see Doe, 220 F.3d at 384.

82

Gebser, 524 U.S. at 290.

83

Doe, 220 F.3d at 384 (citations omitted).

84

Id. (citing Farmer v. Brennan, 511 U.S. 825, 844 (1994)).

15

not amount to deliberate indifference.”85 Determining what remedial action is appropriate
depends on the facts of each case.86 In sum, the Fifth Circuit has held that a plaintiff asserting a
sexual harassment claim against a professor can defeat a motion for summary judgment by
adducing evidence to show that: (1) a supervisory official with authority to institute corrective
measures; (2) had actual notice of the discrimination; and (3) acted with deliberate indifference.87
C.

Analysis
1.

Plaintiff’s Title IX Claim

In its motion, Defendant argues that summary judgment in its favor is warranted because:
(1) Plaintiff failed to provide timely notice to Defendant of the alleged harassment by Dr. Miller,
and thus Defendant did not have an opportunity to take corrective action; (2) Plaintiff was not
barred from accessing any educational opportunity or benefit by her professor’s alleged conduct,
and the alleged sexual harassment was not “so severe, pervasive, and objectively offensive that it
effectively barred [Plaintiff’s] access to an educational opportunity or benefit;” and
(3) Defendant was not deliberately indifferent to the alleged harassment that was not disclosed
until after the semester was over.88 As a preliminary matter, the Court notes that Defendant does
not argue that Plaintiff failed to satisfy the first prong of her Title IX claim, i.e. that the
university officials to whom Plaintiff reported the alleged harassment were “supervisory
official[s] with authority to institute corrective measure[s].” 89 The Court will proceed to consider

85

Doe v. Dallas Ind. School Dist., 153 F.3d 211, 219 (5th Cir. 1998).

86

Id. (quoting Rosa H. v. San Elizario Independent School Dist., 106 F.3d 648, 660-61 (5th Cir. 1997)).

87

Id.

88

Rec. Doc. 22-2 at 1–2, 5–6.

89

Doe, 220 F.3d at 384.

16

each of Defendant’s arguments in turn.
i.

Actual Notice

First, Defendant asserts that Plaintiff failed to provide timely, actual notice to Defendant
of Dr. Miller’s alleged harassment before she left Southeastern, and thus Defendant did not have
an adequate opportunity to take corrective action in response to the allegations.90 Defendant
further contends that past complaints from other students regarding Dr. Miller’s misconduct is
insufficient to satisfy the actual notice requirement.91 In opposition, Plaintiff argues that she is
only required to show that Defendant had actual notice of Dr. Miller’s misconduct, and that this
can be satisfied by showing that Defendant knew about similar complaints from other students
before Dr. Miller began harassing Plaintiff and failed to appropriately respond.92 Moreover,
Plaintiff asserts that she provided actual notice of the harassment against her as well, and that she
only left Southeastern after it became apparent to her that Defendant would take little to no
action against Dr. Miller in response.93
In Gebser v. Lago Vista Independent School District, the Supreme Court determined that
a school district may not be held liable for damages under Title IX under a respondeat superior
or constructive notice theory, i.e. that the district “should have known about harassment but
failed to uncover and eliminate it.”94 The Supreme Court held that Title IX only permits damages
in a private action if the school district or university had “actual knowledge of discrimination in

90

Rec. Doc. 22-2 at 1–2.

91

Id.

92

Rec. Doc. 35 at 6–7.

93

Id.

94

Gebser, 524 U.S. at 282, 285.

17

the recipient’s programs and fails adequately to respond.”95 The Supreme Court noted that the
“central purpose” of the actual notice requirement is to “avoid diverting education funding from
beneficial uses where a recipient was unaware of discrimination in its programs and is willing to
institute prompt corrective measures . . . to end the harassment or to limit further harassment.”96
Here, the parties dispute whether the actual notice requirement may be satisfied by past
complaints from students regarding similar sexual harassment allegations against the same
professor, or if Defendant must have had actual notice of the specific acts of sexual harassment
against Plaintiff herself. The Court notes that in Gebser, the Supreme Court did not explicitly
require actual knowledge of the particular instance of harassment complained of by a plaintiff.97
Rather, the Supreme Court focused on a school’s actual knowledge of “discrimination in the
recipient’s programs” and whether the school adequately responded to “end the harassment or to
limit further harassment.”98 While the Supreme Court in Gebser did hold that complaints from
parents of other students regarding inappropriate comments made by a teacher during class did
not provide actual notice of sexual abuse in that case, it was because such comments were
“plainly insufficient to alert the principal to the possibility that [the teacher] was involved in a
sexual relationship with a student.”99
Moreover, although it does not appear that the Fifth Circuit has directly addressed this
question, the Fifth Circuit has held that a school district has actual knowledge of the harassment

95

Id. at 290.

96

Id. at 289.

97

Id. at 290.

98

Id. at 289–90 (emphasis added).

99

Id. at 291.

18

when it knew that “there was a substantial risk that sexual abuse would occur.”100 In fact, several
other courts of appeal and district courts have determined that knowledge of a history of similar
sexual misconduct with students may satisfy the actual notice prong.101 Moreover, a requirement
that actual notice is not provided unless a university receives a report of sexual harassment from
the Title IX plaintiff herself “would protect [universities] from liability whenever a student was
abused by a teacher, although the [university] might have had notice that the teacher had abused
other students in the past.”102
Regardless, the Court need not decide this issue here, as Plaintiff has pointed to sufficient
evidence that Defendant had actual notice of Dr. Miller’s harassment from both the history of
similar complaints against him by female students and Plaintiff’s own report of sexual

100

Rosa H., 106 F.3d at 652–53 (emphasis added).

101

See, e.g., Doe v. Sch. Bd. of Broward Cty., Fla., 604 F.3d 1248, 1257 (11th Cir. 2010) (“[N]o circuit has
interpreted Gebser’s actual notice requirement so as to require notice of the prior harassment of the Title IX plaintiff
herself.”); Escue v. N. OK Coll., 450 F.3d 1146, 1154 (10th Cir. 2006) (“Although Gebser makes clear that ‘actual
notice requires more than a simple report of inappropriate conduct by a teacher . . . the actual notice standard does
not set the bar so high that a school district is not put on notice until it receives a clearly credible report of sexual
abuse from the plaintiff-student.’” (quoting Doe v. Sch. Admin. Dist. No. 19, 66 F. Supp. 2d 57, 62 (D. Me. 1999));
Warren ex rel. Good v. Reading School District, 278 F.3d 163, 172–73 (3d Cir. 2002) (holding that memorandum
from a principal to a teacher directing the teacher to stop playing classroom games that involved physical contact
constituted evidence that the principal had “actual knowledge” that the teacher was abusing students); Baynard v.
Malone, 268 F.3d 228, 238 n.9 (4th Cir. 2001) (“We note that a Title IX plaintiff is not required to demonstrate
actual knowledge that a particular student was being abused. We believe that the actual notice requirement could
have been satisfied, for example, if Malone had had actual knowledge that Lawson was currently abusing one of his
students, even without any indication of which student was being abused.”); Doe v. Farmer, No. 06-0202, 2009 WL
3768906, at *9 (M.D. Tenn. Nov. 9, 2009) (“The court finds that the plaintiff can meet her burden by showing that
the defendant knew that Farmer was abusing Janie II, because such abuse implies a substantial risk that Farmer was
abusing other students as well.”); N.B. v. San Antonio I.S.D., No. 05-0239, 2007 WL 4205726, at *4 (W.D. Tex.
Nov. 27, 2007) (finding that the “known allegations dating as far back as 1996 create a fact issue as to whether the
school district knew there was a substantial risk that Mass would engage in sexual abuse of students”); Folkes v.
New York Coll. of Osteopathic Med. of New York Inst. of Tech., 214 F. Supp. 2d 273, 284 (E.D.N.Y. 2002) (finding
that “actual knowledge of discrimination in the recipient’s programs, the requirement set forth in Gebser, is simply
not the same thing as knowledge of each and every specific discriminatory act”); Gordon ex rel. Gordon v. Ottumwa
Community School District, 115 F. Supp. 2d 1077, 1082 (S.D. Iowa 2000) (agreeing that the school officials’
knowledge that the teacher had in the past hugged a student and then kissed that student on the lips and patted her
buttocks placed the school district on notice that the teacher presented a risk of sexually inappropriate conduct).
102

Doe, 66 F. Supp. 2d at 63.

19

harassment provided several months prior to transferring universities. With regard to the actual
notice from previous complaints, Plaintiff has adduced sufficient evidence of over ten years of
complaints of sexual harassment against Dr. Miller provided to Defendant that are similar to
Plaintiff’s allegations, including: (1) multiple complaints in 2003 regarding “insulting and
inappropriate” suggestive comments, “unwanted touching” of students, and a “continual pattern
of unacceptable language and poor judgment with regard to [his] interactions with women;” (2) a
complaint in 2007, where a graduate student “levied serious accusations against [Dr. Miller]
concerning comments that could have been construed as discriminatory and harassing;” and
(3) several complaints in 2013 regarding “inappropriate comments and inappropriate
behavior.”103 Moreover, Plaintiff offered evidence contemporaneous with her own complaint that
Defendant had actual notice of Dr. Miller’s past misconduct. For example, Plaintiff points to the
correct guess by Dr. Beachy’s secretary that the professor who had sexually harassed Plaintiff
over the semester was Dr. Miller.104 Plaintiff also points to Dr. Beachy’s and Gene Pregeant’s
statements made during their meetings with Plaintiff that they were both aware that other
complaints of sexual misconduct had been made against Dr. Miller.105
Even if Plaintiff was required to show that Defendant had actual notice of her specific
sexual harassment allegations against Dr. Miller, the Court finds that Plaintiff has submitted
sufficient evidence to preclude summary judgment here. Plaintiff has pointed to evidence that
she met with both Dr. Beachy and Gene Pregeant at the end of the 2015 spring semester to file a

103

See Rec. Doc. 35-2.

104

See Rec. Doc. 23 at 4.

105

Id. at 4–5.

20

sexual harassment claim against Dr. Miller.106 Plaintiff also points out that Dr. Beachy’s office
asked her to return with a written statement, which she provided.107 Moreover, Plaintiff has
offered as evidence a series of emails throughout June and July of 2015 regarding her sexual
harassment allegations that were sent between her, Gene Pregeant, Dr. Beachy, and Dr. John
Crain, the president of Southeastern.108 In those emails, Plaintiff again informs Dr. Crain and
Gene Pregeant of her allegations.109 Plaintiff states that she “was recently told that [Dr. Miller]
was probably not going to be terminated,” and expresses her disbelief that audio recordings of
Dr. Miller asking her to smell his crotch during class and evidence of “hundreds of pages of text
messages as well as emails” from Dr. Miller is not “enough for the school to take action.”110 In
another email, Plaintiff also states that she wanted to finish her last year of undergraduate
education at Southeastern, but that she could not “go into a building where [Dr. Miller] is
teaching.”111 Plaintiff also provides evidence that Dr. Beachy forwarded that email to Gene
Pregeant, in which Dr. Beachy remarks that Plaintiff’s email was “sad and powerful . . . [and]
demonstrates how harmful [Dr. Miller’s] actions are.”112
In addition, Plaintiff has produced sufficient evidence to create a genuine dispute of
material fact regarding whether her notice was timely. Plaintiff points out that she filed a formal

106
See Rec. Doc. 23-4 at 2. Plaintiff has also provided evidence that she met with the Dean of Students and
another professor, Dr. Penny Shockett, and that she emailed the President of Southeastern. Id.; Rec. Doc. 35-3 at 2.
107

Id. See also Rec. Doc. 23-2.

108

Rec. Doc. 35-3.

109

Id. at 2.

110

Id.

111

Id. at 1–2.

112

Id. at 1.

21

complaint against Dr. Miller regarding her own allegations several months prior to her decision
to transfer to a new university to avoid Dr. Miller,113 and that “[m]uch time . . . passed before
getting a call from Gene Pregeant” informing Plaintiff “of Dr. Miller’s tenure and the difficulty
in removing a tenured professor.”114 Plaintiff also states in her Declaration that “several more
months [passed] before hearing much else,” at which point “the university sent one follow-up
mailing explaining Dr. Miller was still employed into the next school year, again, despite the
numerous complaints.”115 Thus, the Court finds that Plaintiff has pointed to sufficient evidence
to show that Defendant had an adequate opportunity to take corrective action in response to the
allegations. By contrast, Defendant has pointed to no authority, nor has the Court found any, that
the foregoing evidence was insufficient notice as a matter of law to support a Title IX claim.
In sum, the Court finds that Plaintiff has pointed to sufficient evidence to create a genuine
issue of material fact on whether Defendant had actual notice through her own allegations and
past allegations against Dr. Miller, and that Defendant had sufficient time to respond to her
complaints. Accordingly, the Court finds that Plaintiff has pointed to sufficient evidence to
create a genuine dispute of material fact as to whether Defendant had “actual knowledge of
discrimination in the [its] programs”116 or actual notice that “there was a substantial risk that
sexual abuse would occur.”117
113
Compare Rec. Doc. 23 at 4 (Plaintiff stating that she reported her allegations of sexual harassment after
the course ended in May of 2015) with Rec. Doc. 35-3 at 3 (email from Plaintiff to Gene Pregeant on July 13, 2015,
asking when a decision will be made concerning Dr. Miller’s employment at Southeastern and informing Pregeant
that Plaintiff “will not be returning to Southeastern if [Dr. Miller] is there”) (emphasis added).
114

Rec. Doc. 23-4 at 2.

115

Id. at 3.

116

Gebser, 524 U.S. at 290.

117

Rosa H., 106 F.3d at 652–53.

22

ii.

Denied an Educational Opportunity and Objectively Severe and
Pervasive

Second, Defendant argues that summary judgment in its favor is warranted because
Plaintiff was not barred from accessing any educational opportunity or benefit by Dr. Miller’s
alleged conduct.118 Defendant asserts that because Plaintiff completed her course with Dr. Miller,
received a final grade, and enrolled in another university the next semester, she was never denied
an educational opportunity or benefit by Defendant.119 Defendant further contends that the
alleged sexual harassment against Plaintiff was not “objectively severe and pervasive” such that
it “effectively barred [Plaintiff’s] access to an educational opportunity or benefit.”120
In opposition, Plaintiff argues that she was denied multiple educational opportunities and
benefits by Dr. Miller’s alleged harassment.121 Plaintiff contends that Dr. Miller’s misconduct,
detailed above, was so severe and pervasive that it denied Plaintiff an opportunity to learn in an
environment free from harassment, and compelled Plaintiff to leave the university to finish her
education out of state and seek therapy.122 Plaintiff further argues that she was unable to attend
several Ecology classes due to Dr. Miller’s behavior, and eventually forced to stop going to class
altogether.123 According to Plaintiff, she was also denied a fair and unbiased grade in Dr.
Miller’s course.124 Plaintiff also points out that she had expressed interest in staying at

118

Rec. Doc. 22-2 at 4.

119

Id.

120

Id. at 5–6.

121

Rec. Doc. 23 at 14.

122

Id.

123

Id.

124

Id. at 15.

23

Southeastern for her final year to graduate, but ultimately transferred after she was told that Dr.
Miller “was probably not going to be terminated.”125
As stated supra, Title IX provides, in relevant part, 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.”126 As a preliminary matter, the Court notes that both parties appear to cite to case
law discussing the standard governing a school’s Title IX liability for student-on-student
harassment.127 It does not appear that the Fifth Circuit has directly addressed whether Title IX
claims of teacher-on-student harassment must meet the same requirement.128 However, several
courts of appeal appear to have arrived at different conclusions as to whether the same “severe,
pervasive, and objectively unreasonable” standard applies to claims for teacher-on-student
harassment.129 Moreover, in both Davis and Sanches, the Supreme Court and Fifth Circuit cases
125

Rec. Doc. 35-3 at 1–2.

126

20 U.S.C. § 1681(a).

127

See Rec. Doc. 22-2 at 3–4 (Defendant citing two student-on-student harassment cases, Sanchez and
Davis, to argue that Plaintiff must establish severe, pervasive, and objectively offensive sexual harassment); Rec.
Doc. 23 at 6 (Plaintiff citing the same cases); see generally Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist.,
647 F.3d 156, 165 (5th Cir. 2011) (“A school district that receives federal funds may be liable for student-on-student
harassment if the district (1) had actual knowledge of the harassment, (2) the harasser was under the district's
control, (3) the harassment was based on the victim's sex, (4) the harassment was “so severe, pervasive, and
objectively offensive that it effectively bar[red] the victim’s access to an educational opportunity or benefit,” and
(5) the district was deliberately indifferent to the harassment.” (emphasis added) (citing Davis ex rel. LaShonda D. v.
Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650 (1999)).
128

Matthews v. Nwankwo, 36 F. Supp. 3d 718, 723 (N.D. Miss. 2014) (noting that the “Fifth Circuit does
not appear to have ruled on the applicable standard for sexual harassment claims brought under Title IX,” but
concluding that the severe and pervasive standard applies to teacher-on-student harassment).
129

Compare Sauls v. Pierce Cty. Sch. Dist., 399 F.3d 1279, 1284 (11th Cir. 2005) (“The Supreme Court has
applied a more rigorous standard when a Title IX plaintiff seeks damages against a school district for student-onstudent harassment . . . Because this case involves teacher-on-student harassment, Appellants need not establish
Blythe's misconduct was ‘so severe, pervasive, and objectively offensive’ that it denied Dustin equal access to
educational programs or opportunities.”) with Jennings v. Univ. of N. Carolina, 482 F.3d 686, 695 (4th Cir. 2007)
(applying the severe and pervasive standard for a student’s claim of sexual harassment against a coach).

24

cited by the parties in support of applying the “severe, pervasive, and objectively unreasonable”
standard here, the courts recognized that “[p]eer harassment is less likely to support liability than
is teacher-student harassment.”130 Indeed, in Sanches, the Fifth Circuit noted that it is more
“understandable” in the school context for students to engage in “insults, banter, teasing,
shoving, pushing, and gender-specific conduct.”131 “Thus, to be actionable, the harassment must
be more than the sort of teasing and bullying that generally takes place in schools; it must be
‘severe, pervasive, and objectively unreasonable.’”132
Regardless, the Court need not decide this issue at this time, as Plaintiff has produced
sufficient evidence to create genuine disputes of material fact on whether Dr. Miller’s
harassment against Plaintiff denied her an educational opportunity or benefit or was “so severe,
pervasive, and objectively offensive that it effectively bar[red] [her] access to an educational
opportunity or benefit.”133 As the Fifth Circuit has recognized, “[w]hether conduct rises to the
level of actionable harassment depends on a constellation of surrounding circumstances,
expectations, and relationships, including, but not limited to, the ages of the harasser and the
victim and the number of individuals involved.”134 Here, Plaintiff has pointed to evidence that
Dr. Miller’s harassment began “almost immediately” at the beginning of the semester in January
of 2015 and included: (1) sending Plaintiff “hundreds of pages of text messages as well as

130

Davis, 526 U.S. at 653; Sanches, 647 F.3d at 165.

131

Sanches, 647 F.3d at 167

132

Id.

133

Sanches, 647 F.3d at 165.

134

Id. at 167 (quoting Davis, 526 U.S. at 651) (quotation marks omitted).

25

emails;”135 (2) arriving unannounced at Plaintiff’s work;136 (3) asking Plaintiff to smell his crotch
during class;137 (4) standing behind Plaintiff and watching her while she mixed fertilizer on her
hands and knees;138 (5) physically touching and brushing against Plaintiff’s hands, neck,
backside, and breasts in an “inappropriate and unwanted” manner;139 (6) requesting that Plaintiff
“accompany him alone under the guise of education-related requests,”140 and (7) touching the
crotch of his pants “inappropriately” while alone with Plaintiff in Southeastern’s greenhouse.141
Moreover, Plaintiff has presented evidence that Dr. Miller’s alleged sexual harassment caused
her to skip several classes and, after the incident when Dr. Miller allegedly touched himself in
front of her, stop going to class altogether.142 Plaintiff also presents evidence that she was denied
a fair and unbiased grade and was ultimately compelled to leave Southeastern when it became
clear that Dr. Miller would remain employed into the fall semester.143
Thus, the Court finds that Plaintiff has presented sufficient evidence to show that there
are genuine disputes of material fact as to whether Plaintiff was denied an educational
opportunity or benefit and whether Dr. Miller’s harassment was “so severe, pervasive, and
objectively offensive that it effectively bar[red] [Plaintiff’s] access to an educational opportunity
135

Rec. Doc. 35-3 at 2; Rec. Doc. 23-4 at 1.

136

Rec. Doc. 23-2 at 5.

137

Id. at 2.

138

Id. at 4.

139

Id. at 9; see also Rec. Doc. 23-4 at 1.

140

Rec. Doc. 23-4 at 1.

141

Rec. Doc. 23-2 at 5–9; Rec. Doc. 23-4 at 1.

142

Rec. Doc. 23 at 14–15.

143

Id.

26

or benefit.”144
iii.

Deliberately Indifferent

Finally, Defendant argues that summary judgment in its favor is proper because it was
not deliberately indifferent to the alleged harassment of which it did not receive timely, actual
notice.145 In opposition, Plaintiff asserts that Defendant’s argument fails because Defendant did
have actual knowledge and notice of the allegations of sexual harassment against Dr. Miller.146
Moreover, Plaintiff contends that Defendant does not deny that Dr. Miller was never removed by
Defendant and that he was still employed at Southeastern “well into the next academic year”
before he resigned.147 Plaintiff argues that Defendant had several months after Plaintiff reported
her allegations to investigate and proceed with actions against Dr. Miller, but Defendant failed to
do so.148 According to Plaintiff, she was provided little information as to whether Defendant was
taking any meaningful action whatsoever, and instead was told that it would be hard to remove
Dr. Miller because he was a tenured professor.149 Furthermore, Plaintiff asserts that Defendant
had actual notice of ten years of similar complaints against Dr. Miller, but that “nothing was ever
done.”150
The Fifth Circuit has determined that a school is deliberately indifferent when its

144

Sanches, 647 F.3d at 165.

145

Rec. Doc. 22-2 at 1–2.

146

Rec. Doc. 23 at 15.

147

Id. at 16.

148

Id.

149

Id.

150

Rec. Doc. 35 at 6.

27

response to harassment was “clearly unreasonable in light of the known circumstances.”151 “That
is a high bar, and neither negligence nor mere unreasonableness is enough.”152 “Schools are not
required to remedy the harassment or accede to a parent’s remedial demands,” and “courts
should

refrain

from

second-guessing

the

disciplinary

decisions

made

by

school

administrators.”153
The Court finds that there are genuine issues of disputed fact regarding whether
Defendant’s response to Dr. Miller’s sexual harassment amounts to deliberate indifference.
Plaintiff has pointed to evidence that Defendant offered little to no response to over ten years of
allegations of sexual harassment against Dr. Miller that were similar to Plaintiff’s allegations.
Plaintiff has also pointed to evidence that she provided actual notice to Defendant of her own
allegations, and that several months passed without Defendant taking any meaningful action.
Moreover, Plaintiff points to evidence that Dr. Miller remained employed at Southeastern in the
fall semester of 2015, and that Plaintiff was told it would be difficult to remove Dr. Miller from
his teaching position. Furthermore, Plaintiff has provided evidence of emails between her and
Southeastern officials sent over several months, in which she states that she wishes to continue
attending Southeastern in the fall semester but that she could not “go into a building where [Dr.
Miller] is teaching” and that she would “not be returning to Southeastern if he is there.”154 By
contrast, Defendant failed to attach any evidence to its motion or reply memorandum for the
Court to consider what actions, if any, Defendant took in response to Plaintiff’s allegations.
151

Sanches, 647 F.3d at 167.

152

Id. (citations omitted).

153

Id. at 167–68 (citations omitted).

154

See Rec. Doc. 35-3.

28

Defendant did not provide any evidence as to what investigations were launched after Plaintiff
filed her complaint or what actions were taken to remedy the situation or protect Plaintiff from
further harassment by Dr. Miller. Accordingly, the Court finds that there are genuine issues of
disputed fact regarding whether Defendant was deliberately indifferent and therefore summary
judgment is unwarranted.
In sum, the Court finds that Plaintiff has pointed to sufficient evidence to create genuine
issued of disputed fact regarding whether: (1) Plaintiff provided actual notice to Defendant of the
alleged harassment by Dr. Miller such that Defendant had an opportunity to take corrective
action; (2) Plaintiff was barred from accessing any educational opportunity or benefit by Dr.
Miller’s alleged conduct or that the alleged sexual harassment was “so severe, pervasive, and
objectively offensive that it effectively barred [Plaintiff’s] access to an educational opportunity or

benefit;” and (3) Defendant was deliberately indifferent to the alleged harassment.155 Therefore,
the Court hereby denies Defendant’s motion for summary judgment as to Plaintiff’s Title IX
claim.
2.

Plaintiff’s Negligence Claim

With regard to Plaintiff’s negligence claim under Louisiana state law, Defendant asserts
that it is an arm of the state of Louisiana and is thus immune under the Eleventh Amendment to
the United States Constitution from Plaintiff’s state law claim.156 Defendant contends that the
Louisiana legislature has not waived Eleventh Amendment immunity for state law claims in
federal court, and instead has expressly reserved its immunity.157 In opposition, Plaintiff argues
155

Rec. Doc. 22-2 at 1–2.

156

Id. at 7–8.

157

Id.

29

that Defendant expressly waived its immunity to Title IX causes of action when it accepted
federal funding, and that the Court may exercise supplemental jurisdiction over Plaintiff’s related
negligence claim pursuant to 28 U.S.C. § 1367(a).158 According to Plaintiff, both the Seventh
Circuit and the Tenth Circuit have recognized that federal courts may hear state law claims in
conjunction with a Title IX claim if they arise out of the same case or controversy.159
“The Eleventh Amendment grants a State immunity from suit in federal court by citizens
of other States, and by its own citizens as well.”160 A state’s immunity from suit under the
Eleventh Amendment “is not absolute,” however, and “a state may waive its immunity by
voluntarily consenting to suit.”161 “A federal court must examine each claim in a case to see if
the court’s jurisdiction over that claim is barred by the Eleventh Amendment.”162 The Fifth
Circuit has concluded that, pursuant to 42 U.S.C. § 2000d–7(a)(1), Louisiana waived its Eleventh
Amendment immunity to claims under Title IX by accepting federal funds.163 However, the Fifth
Circuit has also recognized that Louisiana has not expressly waived its immunity under the
Eleventh Amendment for all claims filed in federal court pursuant to Louisiana Revised Statute

158

Rec. Doc. 23 at 16–17.

159

Id. at 17–18 (citing Varnell v. Dora Consol. Sch. Dist., 756 F.3d 1208 (10th Cir. 2014); Doe-2 v.
McLean County Unit Dist. 5 Bd., Directors, 593 F.3d 507 (7th Cir. 2010)).
160

Union Pac. R. Co. v. Louisiana Pub. Serv. Comm’n, 662 F.3d 336, 340 (5th Cir. 2011).

161

Id. (citations omitted).

162

Pennhurst State Sch. & Hosp. v. Haldermann, 465 U.S. 89, 121 (1984).

163

Pederson v. Louisiana State Univ., 213 F.3d 858, 875 (5th Cir. 2000). See also Thomas v. University of
Houston, 155 F. App’x 115, 117 (5th Cir. 2005) (noting that “Section 2000d–7 validly conditions acceptance of
federal funds on a waiver of sovereign immunity to claims under Title IX.”). 42 U.S.C. § 2000d–7(a)(1) provides
that: “[a] State shall not be immune under the Eleventh Amendment of the Constitution of the United States from
suit in Federal court for a violation of . . . title IX of the Education Amendments of 1972.”

30

§ 13:5106(A),164 which provides that “[n]o suit against the state or a state agency or political
subdivision shall be instituted in any court other than a Louisiana state court.”165
Plaintiff appears to argue that, because Louisiana has waived its Eleventh Amendment
immunity defense to Title IX claims, Louisiana cannot assert its Eleventh Amendment immunity
to the state law negligence claim, as the Court can exercise supplemental jurisdiction over those
claims.166 Plaintiff argues that the Tenth Circuit and Seventh Circuit “have acknowledged their
ability to hear State law claims specifically in conjunction to a Title IX claim if they form a part
of the same case or controversy.”167 However, neither of those cases address whether the
Eleventh Amendment bars exercising supplemental jurisdiction over state law claims where, as
here, the state has asserted the affirmative defense of Eleventh Amendment immunity.168
Moreover, the Fifth Circuit rejected a similar argument in Hernandez v. Texas
Department of Human Services.169 There, the plaintiff brought discrimination claims against his
employer, the Texas Department of Human Services, under Title VII and Texas state law.170 The
state filed a motion to dismiss the state law claims asserting the affirmative defense of Eleventh
Amendment immunity, and the district court denied the motion, finding that because it had
federal question jurisdiction over the plaintiff’s federal claims it could exercise supplemental

164

Delahoussaye v. City of New Iberia, 937 F.2d 144, 147 (5th Cir. 1991).

165

La. Rev. Stat. § 13:5106(A).

166

Rec. Doc. 23 at 16–17.

167

Id. at 17–18.

168

See Varnell, 756 F.3d at 1208 (finding that the district court could properly decline to exercise
supplemental jurisdiction after dismissing the plaintiff’s federal claims); Doe-2, 593 F.3d at 507.
169

Hernandez v. Texas Dep’t of Human Services, 91 F. App’x 934, 935 (5th Cir. 2004).

170

Id.

31

jurisdiction over the plaintiff’s state law claims.171 On appeal, the Fifth Circuit reversed the
district court, finding that “the Eleventh Amendment bars the adjudication of pendent state law
claims against nonconsenting state defendants in federal court.”172 The Fifth Circuit reasoned
that “the supplemental jurisdiction statute, 28 U.S.C. § 1367, which codified pendent
jurisdiction, does not abrogate Eleventh Amendment immunity.”173 Thus, the Fifth Circuit held
that the district court was barred by the Eleventh Amendment from exercising jurisdiction over
the plaintiff’s state law claims.174
Plaintiff has pointed to no authority, nor has the Court found any, that demonstrates that
Louisiana has waived its Eleventh Amendment immunity to state law negligence claims in
federal court. Thus, based on the foregoing, the Court finds that Defendant is entitled to
immunity under the Eleventh Amendment on Plaintiff’s state law negligence claim.
The Court notes that the Fifth Circuit has held that dismissing a claim pursuant to an
Eleventh Amendment immunity defense is a dismissal for lack of subject matter jurisdiction, and
therefore must be without prejudice.175 In Warnock v. Pecos County, Texas, the Fifth Circuit held
that a district court erred in dismissing a claim against a state party with prejudice pursuant to the
Eleventh Amendment, as “claims barred by sovereign immunity can be dismissed only under
171

Id.

172

Id. (citing Pennhurst, 465 U.S. at 120).

173

Id. (citing Raygor v. Regents of the Univ. of Minn., 534 U.S. 533, 541–42 (2002)).

174

Id.

175

See Bryant v. Texas Dep’t of Aging & Disability Servs., 781 F.3d 764, 769 (5th Cir. 2015) (“When the
Eleventh Amendment applies, courts lack subject-matter jurisdiction over the claim.”); Verret v. Elliot Equip. Corp.,
734 F.2d 235, 238 (5th Cir. 1984) (determining that “a dismissal for lack of subject matter jurisdiction in federal
court is not on the merits and therefore is not with prejudice with regard thereto”); see also Warnock v. Pecos Cty.,
Tex., 88 F.3d 341, 343 (5th Cir. 1996) (noting that Eleventh Amendment immunity “deprives the court of
jurisdiction” and thus can only be dismissed without prejudice).

32

Rule 12(b)(1) and not with prejudice.”176 Similarly, in Voisin’s Oyster House, Inc. v. Guidry, the
Fifth Circuit determined that a district court erred in granting a motion for summary judgment on
a claim against the state of Louisiana pursuant to an Eleventh Amendment immunity defense.177
The Fifth Circuit held that “the proper course of action for the district court would have been to
treat the motion for summary judgment on the Eleventh Amendment immunity issue as a motion
for dismissal for lack of subject matter jurisdiction” and dismiss the claim without prejudice.178
Accordingly, because the Court finds that Plaintiff’s state law negligence claim is barred by
Defendant’s Eleventh Amendment immunity defense, the Court will treat Defendant’s motion as
a motion to dismiss for lack of subject matter jurisdiction,179 and hereby dismisses Plaintiff’s
negligence claim without prejudice.
IV. Conclusion
Based on the foregoing, the Court finds that there are genuine issues of disputed fact
precluding summary judgment here. The Court finds that Plaintiff has pointed to sufficient
evidence to create a genuine issue of disputed fact regarding whether: (1) Plaintiff provided

176

88 F.3d 341, 343 (5th Cir. 1996) (emphasis added).

177

799 F.2d 183, 188–89 (5th Cir. 1986). See also Hix v. U.S. Army Corps. of Engineers, 155 F. App’x
121, 128 (5th Cir. 2005) (noting that the district court erred when it dismissed the claims against the state entity on
summary judgment instead of on Rule 12(b)(1) grounds).
178

Id. See also Bank One Texas v. United States, 157 F.3d 397, 403 (5th Cir. 1998) (“We construe the
district court’s grant of summary judgment as a dismissal for lack of subject matter jurisdiction because of the
jurisdictional nature of QTA limitations.”).
179
See generally United States v. One 1988 Dodge Pickup, 959 F.2d 37, 39 (5th Cir. 1992) (treating a
motion under Rule 55 and Rule 60 as one under Rule 59, as “it is clear that the proper characterization of the motion
for these purposes is not determined by the label that the motion bears”); Med. Components, Inc. v. Osiris Med.,
Inc., 226 F. Supp. 3d 753, 760 (W.D. Tex. 2016) (“Although Defendants submit a Motion seeking summary
judgment, the Court construes the Motion as a motion to dismiss for lack of subject-matter jurisdiction.”); Kirt v.
LaFargue, No. 13-580, 2014 WL 4369979, at *2 (W.D. La. Sept. 2, 2014) (“For the purposes of challenging the
subject matter jurisdiction of this Court, the Romeros’ Motion for Summary Judgment is best construed as a Motion
to Dismiss under 12(b)(1) of the Federal Rules of Civil Procedure.”).

33

actual notice to Defendant of the alleged harassment by Dr. Miller such that Defendant had an
opportunity to take corrective action; (2) Plaintiff was barred from accessing any educational
opportunity or benefit by Dr. Miller’s alleged conduct or that the alleged sexual harassment was
“so severe, pervasive, and objectively offensive that it effectively barred [Plaintiff’s] access to an
educational opportunity or benefit;” and (3) Defendant was deliberately indifferent to the alleged
harassment.180 Therefore, the Court denies Defendant’s motion for summary judgment as to
Plaintiff’s Title IX claim. The Court further finds that Defendant is entitled to immunity under
the Eleventh Amendment against Plaintiff’s state law negligence claim. Therefore, following
Fifth Circuit precedent on the issue, the Court dismisses Plaintiff’s negligence claim without
prejudice for lack of subject matter jurisdiction.181 Accordingly,

180

Rec. Doc. 22-2 at 1–2.

181

Warnock v. Pecos Cty., Tex., 88 F.3d 341, 343 (5th Cir. 1996) (noting that Eleventh Amendment
immunity “deprives the court of jurisdiction” and thus can only be dismissed without prejudice); Bonin v. Gee, No.
14-00771, 2015 WL 3682609, at *3 (M.D. La. June 12, 2015) (same); see also Bryant v. Texas Dep’t of Aging &
Disability Servs., 781 F.3d 764, 769 (5th Cir. 2015) (“When the Eleventh Amendment applies, courts lack subjectmatter jurisdiction over the claim.”); Verret v. Elliot Equip. Corp., 734 F.2d 235, 238 (5th Cir. 1984) (determining
that “a dismissal for lack of subject matter jurisdiction in federal court is not on the merits and therefore is not with
prejudice with regard thereto”).

34

IT IS HEREBY ORDERED that Defendant Board of Supervisors for the University of
Louisiana System’s “Motion for Summary Judgment”182 is GRANTED IN PART and DENIED
IN PART. The motion is granted in part to the extent that the Court treats it as a motion to
dismiss for lack of subject matter jurisdiction and dismisses Plaintiff’s state law negligence claim
without prejudice pursuant to Defendant’s Eleventh Amendment immunity defense. The motion
is denied in part to the extent that there are disputed issues of material fact precluding summary
judgment on Plaintiff’s Title IX claim.
NEW ORLEANS, LOUISIANA this _____ day of August, 2017.
8th
________________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

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Rec. Doc. 22.

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