Pearson et al v. Logan University

Filing 87

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that defendant's motion for summary judgment 58 is granted, and plaintiffs' complaint is dismissed with prejudice. IT IS FURTHER ORDERED that the motion to strike 81 i s denied as moot. IT IS FURTHER ORDERED that defendant's request for a status conference 86 is denied as moot. A separate Judgment in accord with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on 7/31/2018. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MORGAN PEARSON, et al.,
Plaintiffs,
vs.
LOGAN UNIVERSITY,
Defendant.

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Case No. 4:16 CV 1450 CDP

MEMORANDUM AND ORDER
Morgan Pearson and Kirsten Kirkpatrick were chiropractic students at Logan
University who allege that they were sexually harassed by a fellow student (FS).
Plaintiffs claim they reported FS’s behavior to Logan, but Logan responded
inadequately to their complaints. They bring claims against Logan for gender
discrimination under 20 U.S.C. § 1681 (Title IX), as well as state law claims for
negligence and premises liability.1
Logan moves for summary judgment on all claims. Because the undisputed
material facts demonstrate that Logan is entitled to judgment as a matter of law on
all claims, the motion will be granted.

1

I dismissed plaintiffs’ Missouri Merchandising Practices Act claim by Memorandum and Order
dated February 27, 2017. [22].

Background Facts
Pearson and Kirkpatrick both started at Logan as undergraduate students
during the fall of 2015. As part of orientation, all new students, including Pearson
and Kirkpatrick, were provided with a link to Logan’s online academic catalog.
This catalog includes Logan’s policy prohibiting sexual assault, domestic violence,
dating violence, and stalking. It also provides information on how to report such
behavior to the Title IX coordinator and explains the investigative and hearing
process. Logan also shows all incoming students a video on sexual harassment and
stalking.
In the fall of 2015, FS was a student at Logan and older than the plaintiffs,
who were 19 and 20 at the time. Early in the semester, FS asked Pearson and
Kirkpatrick for their telephone numbers, saying he wanted to start a study group.
Both women gave him their cell phone numbers, even though they thought FS was
“creepy.” FS texted Pearson “maybe 10 times,” all during the month of
September. FS first asked Pearson by text if she wanted to form a study group.
When she responded “no,” he sent her a text asking her to grab a drink. She told
him “no” and that he “sounded creepy.” The next day, FS again asked Pearson by
text if she “wanted to study up on some knowledge?” Pearson ignored the texts.
She alleges, however, that she became frightened of FS, and that he “acted in a
threatening manner” by asking her “inconsequential questions he could have
2

learned from other sources.” Pearson also thought FS was following her because
he would try to walk her to her car or her job in the campus library. Pearson
alleges that FS would try to sit at her table in the library and would come into the
library when she was there and stare at her. She also claims that FS stared at her
during class.
On November 12, 2015, Pearson and FS, along with all the other students in
the class, were gathered around a cadaver on an embalming table during a human
biology lecture. Pearson alleges that FS pressed his body against her buttocks
while the students were crowding around the table. She felt fearful and humiliated
but did not report the incident to the instructor or the police.
FS and Kirkpatrick texted back and forth “probably 15 times” the first
Friday of the semester. FS asked Kirkpatrick if she wanted to meet up on Saturday
to study in the library. She told him no. When FS continued to suggest meeting
up, Kirkpatrick told him she had a boyfriend and ignored the remainder of his
texts. FS texted Kirkpatrick “maybe five times” after that to ask about homework
assignments. Although not pleaded in her complaint, in her deposition Kirkpatrick
testified that FS also walked in the same direction as her after classes. Even
though they both had the same class schedule, she thought he was waiting for her
or following her because he would talk to her if she was alone. Kirkpatrick talked
to FS “to be polite” and never told him to stop talking to her.
3

Sometime in early December, Pearson thought that FS was attempting to
change his class schedule to match her own. That information prompted her to talk
to Sandra Periello, Logan’s Associate Dean of Students, on December 8, 2015.
Pearson went to Periello because she thought she was being sexually harassed by
FS. Pearson told Periello that FS was coming into the library and inappropriately
staring at her during classes. Pearson also claims that she told Periello that she had
been sexually assaulted by FS during class on November 12, 2015 and that she was
afraid of retaliation. Periello asked Pearson to put her complaint in writing so that
she could pass it along to the Dean of Students and Title IX coordinator, Shelly
Sawalich.
Periello conveyed Pearson’s verbal complaint of harassment to Sawalich,
who met with Pearson the next day. In that meeting, Pearson told Sawalich what
she had already told Periello. She also told Sawalich that FS sent her text
messages asking her to study. When the November 12, 2015, lab incident was
brought up, Sawalich asked whether it could have been an accident. Pearson
responded, “Yeah, maybe. Like it could have been.” [Pearson Depo. 68-1 at 61].
Pearson never raised the lab incident again during the investigation of her claim,
the subsequent honor council hearing, or her appeal of the honor council’s
decision. During the meeting, Pearson asked that her complaint of harassment
remain anonymous. Sawalich explained that it would be difficult to investigate
4

without using Pearson’s name and, as a result, the investigation would be limited.
Sawalich asked Pearson for the names of witnesses to the harassment and to
provide her a written complaint.
Because of her schedule and at her request, Pearson did not provide a written
complaint until December 21, 2015. Sawalich accommodated Pearson’s request
for more time to provide her statement but told her the consequence was that she
would be unable to investigate until the students returned from the winter break,
which lasted from December 19, 2015, through January 5, 2016. Pearson’s written
complaint does not mention the November 12, 2015 lab incident. [61-11]. It does,
however, complain of FS texting her to study, offering to study with beer “even
though he knew [Pearson] was underage,” walking out of class with her, trying to
participate in her conversations during class, suggesting she could come to a
hockey game that he wanted to attend, trying to sit at a table with her in the library,
going to the library where she worked every day, looking at her in the library,
taking his computer to get repaired at the same time she took her computer to get
repaired, occasionally stopping to talk to her while she was in the library, going to
the library even though final exams were over, and trying to enter the same
program she was trying to enter. Sawalich confirmed receipt of Pearson’s written
complaint the same day and reiterated that her ability to investigate could be
limited by Pearson’s request to remain anonymous.
5

On the first day back from winter break, Sawalich sent FS an email asking
him to meet her. On January 8, 2016, Sawalich met with FS and told him that an
anonymous complaint had been made about him by another student. Sawalich told
FS that he had been accused of harassing and stalking the anonymous student. FS
denied harassing or stalking anyone. Sawalich did not disclose Pearson’s identity
and warned FS about retaliation. Sawalich met with FS again on January 12, 2016,
at his request. Although FS wanted more details about the allegations made
against him, Sawalich told him that she had shared all the information she could
and reminded him again about the prohibition against retaliation.
On January 16, 2016, Pearson emailed Sawalich and asked for an update on
the investigation. She stated that FS “continues to show up and make me
uncomfortable, and I continue to feel unsafe at Logan.” Pearson was
uncomfortable because FS had attended a school event that she also attended, and
he stared when Pearson’s friend measured her hip bone “and had to grab me on my
butt” in the library. Sawalich responded that same day by email, telling Pearson
that she had met with FS twice and offering to meet after the long holiday weekend
on January 19, 2016. Pearson met with Sawalich on January 19, 2016, and told
her about her meetings with FS, including that FS denied harassing anyone.
Sawalich also told Pearson that she could not interview Pearson’s list of witnesses
and keep Pearson’s complaint anonymous, so in light of Pearson’s continued to
6

desire to remain anonymous Sawalich did not intend to interview any additional
witnesses at that time. Pearson complained that FS may have classes with her, and
Sawalich responded that she could not guarantee that she would not have any
classes with FS in the future.
Pearson was dissatisfied with Sawalich’s investigation of her complaint, so
she met with Sawalich and Boyd Bradshaw, Vice President for Enrollment
Management, to complain about the investigation on February 3, 2016. At that
meeting, she stated that she thought FS was following her at the school event
because she saw him “too often.” She also reported that FS came into the library
that day and spoke to her and another student. Pearson then decided to drop her
request to remain anonymous and allow Sawalich to investigate by identifying her
as the complainant. Pearson provided Sawalich with the names of witnesses and
they discussed how the investigation would proceed. Sawalich told Pearson that
FS would be prohibited from going into the library and instructed to have no
contact with her during the pendency of the investigation.
Sawalich immediately began emailing Pearson’s witnesses to set up
interviews. One of the witnesses was Kirkpatrick. Sawalich interviewed
Kirkpatrick on February 4, 2016, as part of her investigation into Pearson’s
complaint. Kirkpatrick never contacted anyone at Logan or informed them that she
wanted to make a Title IX complaint. During the February 4, 2016, meeting,
7

Kirkpatrick told Sawalich that FS had solicited her telephone number on the first
day of class, stating that he was trying to set up a study group. She gave him her
telephone number, even though she thought he was “creepy.” She did not see him
ask anyone else for a telephone number. The first Friday of classes, FS texted her
asking her if she wanted to study in the library on Saturday. She responded “no,”
eventually telling him she had a boyfriend and then ignoring his texts. Kirkpatrick
never witnessed any interaction between FS and Pearson, and Kirkpatrick never
told Sawalich that FS was following her from class. Kirkpatrick never stated that
she felt sexually harassed or stalked, never told Sawalich that she wanted to bring
her own complaint against FS, and never asked Sawalich to start an investigation
on her behalf.
Between February 3, 2016, and February 5, 2016, Sawalich interviewed nine
student witnesses identified by Pearson. One of Pearson’s witnesses did not
respond for a request for interview because she was not interested in getting
involved. Sawalich’s notes of these interviews are attached as exhibits to Logan’s
summary judgment motion and are part of the record in this case. [61-23 through
61-31]. While most of the witnesses agreed that Pearson had complained to them
about FS, very few witnesses actually saw any interactions between the two. One
female student agreed that FS was “creepy” and asked all the girls out. Some
witnesses noticed that Pearson seemed uncomfortable when FS was around.
8

Others stated that FS was socially awkward but not harmful. Still others reported
that Pearson overreacted and that they disagreed with Pearson’s assessment of FS.
In particular, one of Pearson’s witnesses contacted Sawalich after her initial
interview to report that Pearson was inappropriately implying to other students that
FS was a potential rapist.
Sawalich met with FS for the third time on February 8, 2016. She told him
that Pearson had made the complaint against him and questioned him about her
allegations. FS admitting texting Pearson and others about getting together, but he
denied knowing that Pearson was underage so he did not think it was an issue
when he asked her if she wanted to grab a drink. He said he remembered texting
Pearson a few times but then she stopped responding, and he denied ever
intentionally trying to walk out of class with her. He denied lurking or stalking
Pearson in the library or staring at her, and he did not intentionally get his
computer fixed when Pearson was there. FS claimed that his potential schedule
change had nothing to do with Pearson. He stated that it seemed like Pearson did
not like him, and so he stopped trying to interact with her after the first few weeks
of school. He sometimes asked her chemistry questions. At the conclusion of the
meeting, Sawalich told FS he was not allowed in the library during the
investigation, to stay away from the undergraduate classrooms when he was not in
class, and to have no contact with Pearson. Sawalich also asked FS for a list of
9

witnesses, and she interviewed those six witnesses (including three instructors) as
well. Sawalich’s interview notes of these witnesses are also part of the record in
this case. [61-36 through 61-41]. These witnesses never saw any inappropriate
interactions between Pearson and FS. Most of these witnesses agreed that FS was
“awkward” but a “nice guy” and described Pearson as young and a troublemaker.
One witness reported Pearson complained that FS should not talk to her because it
was “creepy that he’s thirty.” Another witness reported Pearson referring to FS as
“fuckface.”
On February 22, 2016, Sawalich emailed Pearson to provide her with an
update on the investigation. Sawalich explained that she would provide a written
report to the University Honor Council, which would hear Pearson’s complaint.
Under Logan’s harassment policy, the honor council is responsible for adjudicating
Title IX complaints. Trained faculty and staff members make up the council, and
the five sitting members are determined by availability. Sawalich told Pearson that
both she and FS would have the opportunity to read and review her final report of
investigation and to comment on it. Sawalich also told Pearson that the council
may ask for more information before the hearing. Sawalich stated that she hoped
the honor council would render a decision by spring break. Sawalich then asked
Pearson to provide her with the text messages sent by FS. She also asked Pearson
whether Pearson ever told FS to leave her alone.
10

Sawalich met with Pearson on February 26, 2016. Pearson said that she had
deleted the text messages but that she would try to get copies from her cell phone
company. Pearson told Sawalich she could not specifically recall ever telling FS to
leave her alone. In her deposition Pearson claimed she never specifically told FS
to leave her alone because she was scared of him. [68-1 at 159-60]. Two days
later, Pearson wrote Sawalich that she was unable to timely retrieve any of the text
messages. None of the text messages between FS and Pearson and FS and
Kirkpatrick are part of the record in this case.
Sawalich prepared a written report of her investigation and provided it to the
honor council and to Pearson and FC. [61-46]. The report describes Pearson’s
allegations, the steps taken to investigate the allegations, and the witness
interviews. It does not include an account of the November 12, 2015 lab incident
as one of Pearson’s allegations. Pearson provided a written response to the report
and did not reference the lab incident. FS also provided a written response. All of
this information was provided to the honor council in advance of the hearing.
The five-person honor council first met on March 8, 2016, to adjudicate
Pearson’s complaint against FS. Pearson attended the hearing with her mother. As
the complainant, she met with the council first. FS was not present. Pearson was
given the opportunity to address the council without any time restrictions. She
never mentioned the lab incident to the council. The honor council then met
11

separately with FS on March 10, 2016. He was accompanied by another student.
He was also given the opportunity to address the council with no time limitations.
After consideration, the honor council unanimously determined that FS was not
responsible for harassing or stalking Pearson. Sawalich informed Pearson of the
decision by email on March 11, 2016. She advised Pearson of her right to appeal
the decision to the Vice President of Academic Affairs (Kimberly O’Reilly) and
notified her that the council had decided that there was to be no personal contact
between her and FS. Under the council’s decision, Pearson and FS could use all
Logan’s facilities, including the library, without restriction, but they were
prohibited from personal contact and instructed to ignore each other at school
sponsored events. Sawalich informed FS separately by email.
Pearson and her mother met with Bradshaw and O’Reilly on March 14,
2016, to discuss the council’s decision. O’Reilly told Pearson that she would need
to submit a written request to review the decision and that her role was limited to a
review of whether Logan’s policy was followed. Pearson submitted her written
request for review the next day. A few days later, Pearson emailed O’Reilly to
express her continued fear of being on campus and, in particular, the library.
O’Reilly responded by informing Pearson of her right to use campus security to
escort her and offered her a new work study position if that would make her feel
more comfortable. Based on O’Reilly’s review of Pearson’s appeal, O’Reilly
12

believed Pearson alleged that the council had not considered all of the evidence
submitted to it, including text messages and an audio recording of FS. For that
reason, O’Reilly stayed her decision on the appeal to allow Pearson to provide the
information. After Pearson clarified that she could not provide the text messages
and that there was not an audio recording of FS, O’Reilly lifted the stay and denied
the appeal on April 4, 2016.
Pearson left Logan in May of 2016. She alleges that she left because she did
not feel safe at Logan. She is now pursuing a different course of study at St. Louis
University. Kirkpatrick also left Logan in May of 2016 and enrolled at St. Louis
University because she no longer wanted to be a chiropractor.
Summary Judgment Standard
The standard for summary judgment is well settled. In determining whether
summary judgment should issue, the Court must view the facts and inferences from
the facts in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Littrell v. City of
Kansas City, Mo., 459 F.3d 918, 921 (8th Cir. 2006); Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005). The moving party has the burden to
establish both the absence of a genuine issue of material fact and that it is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
13

Enterprise Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). Once the
moving party has met this burden, the nonmoving party may not rest on the
allegations in his pleadings but by affidavit or other evidence must set forth
specific facts showing that a genuine issue of material fact exists. Fed. R. Civ. P.
56(e); Anderson, 477 U.S. at 256; Littrell, 459 F.3d at 921. “The party opposing
summary judgment may not rest on the allegations in its pleadings; it must set forth
specific facts showing that there is a genuine issue for trial.” United of Omaha Life
Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir. 2006) (internal quotation marks and
citation omitted). “Only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of summary
judgment.” Hitt v. Harsco Corp., 356 F.3d 920, 923 (8th Cir. 2004) (internal
quotation marks and citation omitted). An issue of fact is genuine when “a
reasonable jury could return a verdict for the nonmoving party” on the question.
Anderson, 477 U.S. at 248; Woods, 409 F.3d at 990.
To survive a motion for summary judgment, the “nonmoving party must
substantiate his allegations with sufficient probative evidence that would permit a
finding in his favor based on more than mere speculation, conjecture, or fantasy.”
Putman v. Unity Health System, 348 F.3d 732, 733–34 (8th Cir. 2003) (internal
quotation marks and alterations omitted). “The mere existence of a scintilla of
evidence in support of the plaintiff’s position will be insufficient; there must be
14

evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477
U.S. 242 at 252; Davidson & Associates v. Jung, 422 F.3d 630, 638 (8th Cir.
2005). “Mere allegations, unsupported by specific facts or evidence beyond the
nonmoving party’s own conclusions, are insufficient to withstand a motion for
summary judgment.” Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007).
“Simply referencing the complaint, or alleging that a fact is otherwise, is
insufficient to show there is a genuine issue for trial.” Kountze ex rel. Hitchcock
Foundation v. Gaines, 536 F.3d 813, 818 (8th Cir. 2008).
Discussion
Plaintiffs allege gender discrimination in violation of Title IX, which
provides that “[n]o person in the United States shall, on the basis of sex, . . . be
subjected to discrimination under any education program or activity receiving
Federal financial assistance.” 20 U.S.C. § 1681(a). As a recipient of federal funds,
Logan is subject to liability for violations of Title IX, but only for damages arising
from its own misconduct. Ostrander v. Duggan, 341 F.3d 745, 750 (8th Cir.
2003). Here, plaintiffs contend that Logan was deliberately indifferent to their
sexual harassment by FS. Student-on-student sexual harassment is included within
the meaning of “discrimination” under Title IX. Davis ex rel. LaShonda D. v.
Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643 (1999). However, Logan can only
be liable for student-on-student harassment if it was “(1) deliberately indifferent
15

(2) to known acts of discrimination (3) which occur under its control.” Shrum ex
rel. Kelly v. Kluck, 249 F.3d 773, 782 (8th Cir. 2001). “To be actionable an
institution’s deliberate indifference must either have caused the harassment or
made students vulnerable to it.” Roe v. St. Louis Univ., 746 F.3d 874, 882 (8th Cir.
2014). Plaintiffs must show that Logan had “substantial control over both [FS] and
the context in which the known harassment occurs.” Davis, 526 U.S. at 645. “In
order to avoid deliberate indifference liability an institution ‘must merely respond
to known peer harassment in a manner that is not clearly unreasonable.’” Roe, 746
F.3d at 882 (quoting Davis, 526 U.S. at 648–49). This standard is measured in
light of the known circumstances and is intended to afford flexibility to school
administrators. Davis, 526 U.S. at 648-49.
To violate Title IX, the “acts of discrimination must be on the basis of sex.”
Wolfe v. Fayetteville, Arkansas Sch. Dist., 648 F.3d 860, 864 (8th Cir. 2011)
(internal quotation marks omitted). “Harassment can constitute discrimination if it
is ‘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’ and if the school [] has ‘actual knowledge’ of the harassment.” Id.
(quoting Davis, 526 U.S. at 650).
Applying these standards, Logan’s response to Pearson’s complaint of
harassment was not “clearly unreasonable” as a matter of law. As soon as Pearson
16

made a verbal complaint of harassment to a Logan administrator, Logan officials
acted to investigate that complaint. Pearson was immediately referred to Sawalich,
the Title IX coordinator, who met with Pearson the very next day and requested
she file a written complaint. Sawalich thoroughly investigated Pearson’s
complaint, interviewing numerous witnesses and filing a comprehensive report.
Sawalich also met numerous times with Pearson to keep her updated on the
progress of the investigation. Although Pearson complains about the pace of the
investigation, any delays in the progress of the investigation are attributed to
Pearson herself. The investigation was initially stalled because Pearson did not
provide her written complaint until winter break had already started. Yet Sawalich
requested an interview with FS the very day classes resumed.
Pearson also ignores the fact that her request for anonymity placed enormous
restrictions on the investigation. Although Sawalich did speak to FS generally
about harassment of fellow students when he returned from winter break, she could
not place restrictions on his ability to use the library where Pearson worked or
otherwise limit his contact with Pearson without revealing that she was the
complainant. Moreover, Sawalich could not question any witnesses about the
interactions between Pearson and FS without revealing Pearson’s identity.
In Roe, the plaintiff complained to the university that she was sexually
assaulted by another student, but she did not identify the assailant and asked the
17

university not to inform her parents. 746 F.3d at 883. University officials met
with her as soon as she reported the incident and informed her of available
resources to help her. Id. After the plaintiff eventually told her parents about the
rape, her parents reported it to the police and the university. Id. The university
then began an investigation and cooperated with the police investigation as well.
Id. The plaintiff sued the university, claiming it was deliberately indifferent to her
sexual assault in violation of Title IX. In affirming the dismissal of the complaint,
the Eighth Circuit Court of Appeals concluded that the university was not
deliberately indifferent to plaintiff’s complaint where she “expressed [her] desire
for confidentiality while she was still on campus.” Id. The same is true here.
Logan investigated Pearson’s complaint to the extent possible consistent with her
expressed desire for confidentiality, and there is no evidence from which a
reasonable fact finder could conclude that it was deliberately indifferent to
Pearson’s complaint.
Moreover, after Pearson decided to no longer remain anonymous, Logan
undertook substantial additional steps to investigate Pearson’s complaint.
Sawalich interviewed fifteen witnesses, barred FS from the library and
undergraduate classrooms, prohibited FS from any contact with Pearson, and wrote
a written report summarizing Pearson’s allegations, FS’s response, and the witness
statements. Pearson had the opportunity to respond to the report. Logan then
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adjudicated Pearson’s complaint of harassment in accordance with its harassment
policy.2 Pearson was provided with the opportunity to address the council, and did
so in the company of her mother and without time limitation. After considering all
the evidence, the council decided that FS had not stalked or harassed Pearson.
Pearson was then given the opportunity to appeal the decision, and did so. When
Logan believed that Pearson wanted to submit additional evidence in support of
her claim, it stayed the appeal and provided her ample opportunity to do so. Only
when she declined to provide any additional evidence did Logan deny the appeal.
Even with the council’s finding, Logan still barred FS and Pearson from any social
contact and offered to switch Pearson’s work study from the library to a new
location to make her feel safe.
Logan’s investigation of Pearson’s complaint cannot be deemed “clearly
unreasonable” because it failed to include the November 12, 2015 lab incident.
When asked by Sawalich whether the physical contact between FS and Pearson
was accidental, Pearson agreed that it could have been and then never raised the
issue again, despite numerous opportunities to do so. Pearson did not include it in
her written complaint, her written response to Sawalich’s report of the
2

Pearson complains that the honor council was inadequate because one of the members once
made a remark which offended some female students. Pearson was not in the class where the
remark was made and did not have this faculty member as an instructor. No Title IX complaint
was made in connection with this isolated remark. Given that the honor council was made up of
five members who unanimously concluded that FS had not harassed Pearson, Logan’s response
to Pearson’s complaint was not “clearly unreasonable” because this faculty member sat on the
honor council.
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investigation, or her appeal. Moreover, she never raised the issue in any of her
numerous subsequent conversations with Sawalich or any of Logan’s other
administrators. Although Pearson now implies that she felt unable to raise the
issue, there is no evidence in the record from which a reasonable fact finder could
conclude that Logan’s investigation into Pearson’s harassment complaint was
“clearly unreasonable” for failing to investigate an incident which Pearson herself
deemed accidental and then never raised again.
In Ostrander, the Eighth Circuit held that the University of Missouri was not
liable as a matter of law under Title IX for its investigation of plaintiff’s complaint
of sexual assault by another student while in a fraternity house. 341 F.3d at 750.
After plaintiff complained of sexual assault to the university, university officials
met with the local fraternity president and informed him of the allegations. Id. at
751. The university then contacted the national fraternity president and advised
him that it expected the fraternity to investigate the allegations and require its
members to attend a training program on sexual violence. Id. The university did
not otherwise conduct an investigation or impose sanctions on the fraternity. Id.
The Eighth Circuit acknowledged that plaintiff was “dissatisfied” with the
university’s response to her complaint but concluded that its response was not
deliberately indifferent as a matter of law. Id. at 751.

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Here, Logan’s response to Pearson’s complaint far exceeded that found
sufficient in Ostrander. While Pearson was undoubtedly “dissatisfied” with
Logan’s investigation into her complaint and the ultimate finding by the honor
council, Pearson’s disappointment in the investigation and its outcome is
insufficient to create a genuine issue for trial. Logan was not deliberately
indifferent to her harassment as a matter of law. Summary judgment will be
granted in Logan’s favor on Pearson’s Title IX claim.
Kirkpatrick’s Title IX claim fails because she never made a complaint of
harassment to Logan. Title IX claims based on harassment require the school to
have actual knowledge of discrimination. K.T. v. Culver-Stockton College, 865
F.3d 1054, 1058 (8th Cir. 2017). “[T]he actual knowledge element requires
schools to have more than after-the-fact notice of a single instance in which the
plaintiff experienced sexual [discrimination].” Id. “Actual knowledge may be
established where the [school] has prior knowledge of (1) harassment previously
committed by the same perpetrator and/or (2) previous reports of sexual
harassment occurring on the same premises.” Id. (emphasis in original). The
harassment must be on the basis of sex, Wolfe, 648 F.3d at 864, and “severe,
pervasive, and objectively offensive.” Culver-Stockton, 865 F.3d at 1059.
Kirkpatrick fails to meet this test. First, it is undisputed that she never told
anyone at Logan that she wanted to make a Title IX complaint against FS. Instead,
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she was interviewed by Salawich on February 4, 2016, as part of Logan’s
investigation into Pearson’s complaint. During the February 4, 2016, meeting,
Kirkpatrick told Sawalich that FS had solicited her telephone number on the first
day of class, stating that he was trying to set up a study group. She gave him her
telephone number, even though she thought he was “creepy.” She did not see him
ask anyone else in the class for a telephone number. The first Friday of classes, FS
texted her asking her if she wanted to study in the library on Saturday. She
responded “no,” eventually telling him she had a boyfriend and then ignoring his
texts. Kirkpatrick never told Sawalich that FS was following her from class or that
she felt sexually harassed or stalked and never asked Sawalich to start an
investigation on her behalf. There is simply no evidence from which a reasonable
fact-finder could conclude that Logan had actual knowledge that Kirkpatrick was
subject to sex-based discrimination based on her conversation with Sawalich. The
alleged conduct described by Kirkpatrick does not rise to the severity and
objectively offensive level required to be actionable as sex-based discrimination
under Title IX, and Logan’s response to Kirkpatrick’s report was not deliberately
indifferent as a matter of law.
To evade summary judgment on their claims, plaintiffs attempt to muddy the
waters with unsubstantiated allegations of unrelated discrimination claims. These
allegations are insufficient to create a triable issue on plaintiffs’ Title IX claims as
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there is no evidence of any claims of prior harassment by FS3 or even student-onstudent harassment such that Logan could be said to meet the prior knowledge
element required to establish liability.4 See Culver-Stockton, 865 F.3d at 1059.
As Logan was not deliberately indifferent to plaintiffs’ allegations of
harassment as a matter of law, summary judgment will be entered in its favor on
plaintiffs’ Title IX claims.
Plaintiffs also bring claims for negligence and premises liability under
Missouri law, arguing that Logan had a responsibility to protect them from
harassment and failed to do so. To establish liability under either claim, plaintiffs
must demonstrate that Logan had a duty to protect them from injury. Johnston v.
Warren County Fair Ass’n, Inc., 110 F.3d 36, 38 (8th Cir. 1997) (negligence);
Ostrander, 341 F.3d at 749 (premises liability). Whether a duty exists is a question
of law. Lopez v. Three Rivers Elec. Coop., 26 S.W.3d 151, 155 (Mo. banc 2000).
“[S]ince the late 1970s, the general rule is that no special relationship exists
between a college and its own students because a college is not an insurer of the
safety of its students.” Freeman v. Busch, 349 F.3d 582, 587 (8th Cir. 2003)

3

Although some of the witnesses interviewed in connection with Pearson’s complaint alleged
that FS was “creepy” or made them feel uncomfortable, these statements were made to Logan
after Pearson first complained about FS, not before.
4

Plaintiffs make much of the fact that a complaint of pregnancy discrimination was filed against
Logan in 2013, but this complaint – even if well-founded – does not create a triable issue as to
whether Logan was “deliberately indifferent” to plaintiffs’ complaints of student-on-student
harassment.
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(citing authorities) (emphasis omitted); Nickel v. Stephens College, 480 S.W.3d
390, 401 (Mo. Ct. App. 2015) (citing Freeman with approval for the proposition
that in Missouri, “no special relationship exists between a college and its students
even when it comes to matters of safety.”). In Missouri, the general rule is that an
owner or possessor of a premises is under no duty to protect an invitee from
criminal acts of third persons, because such criminal acts are rarely foreseeable.
L.A.C.ex real D.C. v. Ward Parkway Shopping Ctr. Co., L.P., 75 S.W.3d 247, 257
(Mo. 2002).
Missouri recognizes two “special facts and circumstances” exceptions to the
general no-duty rule. Ostrander, 341 F.3d at 749. “Under the first exception, a
duty may arise when a person, known to be violent, is present on the premises or
an individual is present who has conducted himself so as to indicate danger and
sufficient time exists to prevent injury.” Id. (internal quotation marks and citation
omitted). “Under the second exception, business owners have a duty to protect
invitees from the criminal acts of unknown third persons in circumstances in which
there is a foreseeable likelihood that particular acts or omissions will cause harm or
injury.” Id. (internal quotation marks and citation omitted). “Courts have required
proof of specific incidents of violent crimes on the premises that are sufficiently
numerous and recent to put a defendant on notice, either actual or constructive, that

24

there is a likelihood third persons will endanger the safety of defendant’s invitees.”
Id. (internal quotation marks and citation added).
Plaintiffs have not demonstrated that Logan owed them a duty of care to
protect them from student-on-student harassment. As such, their state law claims
for negligence and premises liability fail as a matter of law. There is no evidence
that anyone had ever complained to Logan about FS before Pearson, and there is
no evidence of specific incidences of student-on-student harassment that are
“sufficiently numerous and recent” such that Logan had either actual or
constructive notice that plaintiffs were likely to be harassed. See Ostrander, 341
F.3d at 749 (affirming summary judgment in favor of premises possessor on
premises liability claim where there was no evidence of prior sexual misconduct at
the premises or prior complaints of sexual misconduct by assailant). Id. Plaintiffs’
unsubstantiated allegations of unrelated discrimination claims are insufficient to
create a triable issue on their state law claims. These allegations are too remote in
time, are unrelated to the claims made in this case,5 and involve a former faculty
member and a past member of Logan’s Board of Trustees, not student-on-student
harassment. As plaintiffs have failed to demonstrate that Logan owed them a duty

5

As with the Title IX claim, a complaint of pregnancy discrimination does not create a triable
issue as to whether Logan had sufficient notice of student-on-student sexual harassment such that
it owed plaintiffs a duty to protect them against harassment under state law.
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to protect them from student-on-student harassment, Logan is entitled to judgment
as a matter of law on plaintiffs’ negligence and premises liability claims.
As I am granting Logan’s motion for summary judgment, I will deny the
motion to strike plaintiffs’ affidavits as moot. In deciding this motion, I reviewed
the entirety of the record and relied only upon those facts which are genuinely
uncontroverted. To the extent plaintiffs contradicted their prior deposition
testimony by later-filed affidavits, I relied upon plaintiffs’ deposition testimony
instead of the affidavits. See Menz v. New Holland North America, Inc., 507 F.3d
1107, 1113 (8th Cir. 2007) (party cannot create genuine issue of fact by attempting
to contradict previous testimony with later-filed affidavit).
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion for summary
judgment [58] is granted, and plaintiffs’ complaint is dismissed with prejudice.
IT IS FURTHER ORDERED that the motion to strike [81] is denied as
moot.
IT IS FURTHER ORDERED that defendant’s request for a status
conference [86] is denied as moot.

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A separate Judgment in accord with this Memorandum and Order is entered
this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 31st day of July, 2018.

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