Schaefer v. Fu et al

Filing 18

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERFor the foregoing reasons, the motion to dismiss by defendant Trustees of Boston University (Docket No. 9) is, with respect to Counts VI and VII, ALLOWED, but is, with respect to Count VIII, DENIED.(Caruso, Stephanie)

United States District Court
District of Massachusetts

Alicia Schaefer,
Plaintiff,
v.
Yongjie Fu and Trustees of
Boston University,
Defendants.

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Civil Action No.
17-10238-NMG

MEMORANDUM & ORDER
GORTON, J.
This case arises out of a physical altercation between two
students enrolled at Boston University (“BU” or “defendant”).
Plaintiff Alicia Schaefer (“plaintiff” or “Schaefer”) alleges
that individual defendant Yongjie, a/k/a Thomas, Fu (“Fu”)
stalked and eventually assaulted her and that as a result, she
suffered serious physical injuries and emotional harm.

Schaefer

alleges that BU is blameworthy.
Pending before the Court is BU’s motion to dismiss Counts
VI, VII and VIII of Schaefer’s amended complaint for failure to
state a claim upon which relief can be granted.

For the reasons

that follow, the motion will be allowed, in part, and denied, in
part.

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I.

Background
In the 2012 fall semester, Thomas Fu and Alicia Schaefer

became acquainted after enrolling in the same lecture course at
Boston University.

In that class, Fu sat close to Schaefer, who

subsequently moved her seat to avoid him.

Fu was purportedly

often disruptive during lectures and Schaefer was told by one of
her friends that Fu had attempted to force himself on her at a
party.
From the spring 2013 semester through the fall 2013
semester, Fu exhibited behavior that made Schaefer feel
uncomfortable.

He was allegedly aggressive, loud and

confrontational during class, and he often attempted to sit
close to Schaefer.

Fu allegedly attempted, on numerous

occasions, to talk with Schaefer and, at one point, told
Schaefer that she should be a Bose headphones model.

Schaefer

spoke to two of her professors regarding Fu’s classroom behavior
and at least one of the professors indicated that she was
familiar with Fu’s antics.
On or about October 29, 2013, Schaefer was waiting in line
at a campus dining hall when Fu stood in line behind her.

Fu

attempted to place his order first but when Schaefer told him
that it was not his turn, he allegedly began swearing at her.
Schaefer picked up her sandwich and attempted to walk away but
Fu body-checked her from behind, causing physical injuries to

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Schaefer, including a concussion.

Schaefer was later diagnosed

with post-traumatic stress disorder resulting from the incident.
In October, 2016, plaintiff filed a complaint in the
Massachusetts Superior Court for Suffolk County.

She amended

that complaint in January, 2017 and shortly thereafter, BU
removed the case to federal court on federal question and
supplemental jurisdiction grounds.

Plaintiff’s eight-count

amended complaint contains four counts against Fu and four
counts against BU.

Plaintiff alleges intentional or reckless

infliction of emotional distress (Count I), negligent infliction
of emotional distress (Count II), battery (Count III) and
assault (Count IV) against Fu.

She alleges a violation of

Section 504 of the Rehabilitation Act, 29 U.S.C. §794 (Count V),
a violation of Title IX, 20 U.S.C. §1681 (Count VI), a violation
of M.G.L. c.214, §1(C) (Count VII) and negligence (Count VIII)
against BU.
The following week, BU filed a motion to dismiss Counts VI,
VII and VIII of plaintiff’s amended complaint for failure to
state a claim upon which relief can be granted.
the subject of this memorandum.

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That motion is

II.

Motion to Dismiss
A.

Legal Standard

To survive a motion to dismiss for failure to state a claim
under Fed. R. Civ. P. 12(b)(6), a complaint must contain
“sufficient factual matter” to state a claim for relief that is
actionable as a matter of law and “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is

facially plausible if, after accepting as true all nonconclusory factual allegations, the court can draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d
1, 12 (1st Cir. 2011).

A court may not disregard properly pled

factual allegations even if actual proof of those facts is
improbable. Id.

Rather, the relevant inquiry focuses on the

reasonableness of the inference of liability that the plaintiff
is asking the court to draw. Id. at 13.
When rendering that determination, a court may not look
beyond the facts alleged in the complaint, documents
incorporated by reference therein and facts susceptible to
judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st
Cir. 2011).

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B.

Application
1.

Count VI: Violation of Title IX, 20 U.S.C. § 1681

Pursuant to Title IX of the Educational Amendments of 1972,
20 U.S.C. §§ 1681-1688,
[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.
20 U.S.C. § 1681(a).
To state a claim for harassment under Title IX, the alleged
harassment must be
so severe, pervasive, and objectively offensive that
it can be said to deprive the victims of access to the
educational opportunities or benefits provided by the
school.
Porto v. Town of Tewksbury, 488 F.3d 67, 72 (1st Cir. 2007)
(quoting Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650
(1999)).

Moreover, such harassment must actually be “based upon

sex”. Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir.
2002).
Here, plaintiff alleges that Fu interacted with her in a
variety of ways, including inter alia, sitting near her in
class, introducing himself to her at the dining hall and telling
plaintiff she could be a headphone model.

Most of those

contacts were not, however, sexual in nature.

Although Fu’s

comment alluding to plaintiff’s appearance is “based upon sex,”

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a single comment does not constitute severe sexual harassment.
See Hankey v. Town of Concord-Carlisle, 136 F. Supp. 3d 52, 67
(D. Mass. 2015) (holding that a single instance of “keying” a
sex-based slur on plaintiff’s car bumper is not “severe and
pervasive sexual harassment, as required for a Title IX
claim.”).
Accordingly, Count VI will be dismissed for failure to
state a claim upon which relief can be granted.
2.

Count VII: Violation of M.G.L. c. 214, §1(C)

Plaintiff also has not alleged sufficient facts to state a
claim for a violation of M.G.L. c. 214, §1(C).
That statute has not been interpreted as providing a cause
of action for peer-on-peer sexual harassment, which is what is
alleged in this case.

Rather it creates a cause of action only

in
scenario[s] in which the institution itself, through
its administrators or employees, acts as the harasser.
See Doe v. Town of Stoughton, No. 12-10467, 2013 WL 6498959, at
*5 (D. Mass. Dec. 10, 2013).
Here, plaintiff’s allegations demonstrate that she and Fu
were peers.

Although plaintiff alleges that at some point Fu

was a teaching assistant at BU, she does not allege that he was
ever her teaching assistant.

Thus, plaintiff has not stated a

claim for violation of M.G.L. c. 214, §1(C). See Doe, 2013 WL

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6498959, at *5 (allowing defendant’s motion for summary judgment
on plaintiff’s M.G.L. c. 214, §1(C) claim because the
“allegations center only on the conduct of peers”).
Accordingly, Count VII of plaintiff’s amended complaint
will be dismissed.
3.

Count VIII: Negligence

BU is liable for negligence if 1) it owed plaintiff a duty
of reasonable care, 2) it breached that duty, 3) plaintiff
suffered damages and 4) those damagers were caused by its breach
of the duty. Jorgensen v. Mass. Port Auth., 905 F.2d 515, 522
(1st Cir. 1990).
Defendant maintains that plaintiff has not alleged any duty
to protect her from the alleged harassment and physical harm she
suffered as a result of the altercation between her and Fu in
the campus dining hall.

Plaintiff responds that she told two

professors about Fu’s behavior which was sufficient to put BU on
notice of the possibility that Fu would harm her.
In the university context, an institution has a duty to
protect its students from harm when it could have foreseen that
the institution
would be expected to take affirmative action to
protect the plaintiff and could anticipate harm to the
plaintiff from the failure to do so.
Irwin v. Town of Ware, 467 N.E.2d 1292, 1300 (Mass. 1984)

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Here, plaintiff alleges that she told two of her professors
about Fu’s loud and disruptive behavior in class.

During one of

those conversations, plaintiff alleges that her professor stated
that other students and faculty members had also discussed Fu’s
behavior.

Viewing those allegations in a light most favorable

to plaintiff, as the Court must, a reasonable inference can be
drawn that Fu’s alleged verbal and physical harassment of
plaintiff was foreseeable and that the University should have
taken some action to prevent that harassment from occurring.
Thus, plaintiff has sufficiently alleged that BU owed a duty to
her to protect her from the harassment. Cf. Mullins v. Pine
Manor Coll., 449 N.E.2d 331, 335-36 (Mass. 1983) (holding that a
college owed a duty of reasonable care “to protect resident
students from foreseeable harm”).
Because plaintiff has properly alleged a duty, the Court
will deny BU’s motion to dismiss Count VIII.

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ORDER
For the foregoing reasons, the motion to dismiss by
defendant Trustees of Boston University (Docket No. 9) is, with
respect to Counts VI and VII, ALLOWED, but is, with respect to
Count VIII, DENIED.
So ordered.
/s/ Nathaniel M. Gorton
d
Nathaniel M. Gorton
United States District Judge
Dated August 10, 2017

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