Bailey v. New York Law School et al

Filing 24

OPINION AND ORDER re: 11 MOTION that the Court take notice of the plaintiff's jury demand, filed by Theresa Bailey; 19 MOTION to Dismiss The Amended Complaint, filed by Jeffery Becherer, Anthony Crowell, Howard Meyers, De borah Archer, Erika Wood, New York Law School. For the foregoing reasons, Defendants' motion to dismiss the Amended Complaint is GRANTED in part and DENIED in part. Plaintiff is permitted to proceed on her Title IX retaliation claim and GBL § 349 claim against NYLS, and Plaintiff is granted leave to replead her breach of contract claim against NYLS, her fraud claims against all Defendants, her intentional infliction of emotional distress claims against all Defendants, her Section 1 985(3) claims against all Defendants, and her Title VI claim against NYLS. Plaintiff's remaining claims are dismissed with prejudice. Plaintiff's Second Amended Complaint must be filed, if at all, on or before March 29, 2017. The parties ar e directed to appear for a conference on May 3, 2017 at 10:30 a.m. The Clerk of the Court is respectfully directed to terminate the motions, Docs. 11 and 19. (Amended Pleadings due by 3/29/2017., Status Conference set for 5/3/2017 at 10:30 AM before Judge Edgardo Ramos.) (Signed by Judge Edgardo Ramos on 3/1/2017) (cla)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

THERESA BAILEY,
Plaintiff,
– against –

OPINION AND ORDER
16 Civ. 4283 (ER)

NEW YORK LAW SCHOOL, ANTHONY
CROWELL, DEBORAH ARCHER, HOWARD
MEYERS, JEFFERY BECHERER, and ERIKA
WOOD,
Defendants.

Ramos, D.J.:
Pro se plaintiff Theresa Bailey (“Plaintiff”) brings this action against New York Law
School (“NYLS” or the “School”), Anthony Crowell, Deborah Archer, Howard Meyers, Jeffery
Becherer, and Erika Wood (collectively, “Defendants”), alleging, among other things, that
Defendants failed to adequately discipline a classmate who assaulted her and then retaliated
against her for reporting the attack in violation of Title IX and Section 1983. Before the Court is
Defendants’ motion to dismiss the Amended Complaint. For the reasons discussed below,
Defendants’ motion is GRANTED in part and DENIED in part. Plaintiff will be given an
opportunity to replead.

I. BACKGROUND 1
A. Factual Background
Plaintiff is a 32-year-old woman of color and a United States Marine who attended NYLS
as an evening student from August 2012 until her graduation in May 2016. Am. Compl. (Doc.
17) ¶ 1. The individual Defendants are all affiliated with the School: Anthony Crowell is the
School’s Dean; Deborah Archer is the Dean of Diversity and Inclusion and Director of the Racial
Justice Project; Howard Meyers is a professor and Associate Director for the Center for Business
and Financial Law; Jeffery Becherer is an Associate Dean for Career Planning; and Erika Wood
is a professor. Id. ¶ 3.
Plaintiff’s suit centers on an incident that occurred on the campus of NYLS on October 6,
2014. That evening, Plaintiff left a class to use the restroom. Id., Ex. C at 1. In the hallway, she
encountered Stephen Nesbit, a 6-foot, 200-pound white student she had theretofore avoided
based on observations of him with other women on campus. Id. ¶ 4, Ex. C at 1 (“always too
close, making physical contact without permission, interrupting their lives to make space for his
agenda, staring for long periods, and ogling our bodies”), Ex. E at 2. Nesbit allegedly trapped
Plaintiff so that she could not pass, pushing her into a wall and sliding his body across hers. Id.,
Ex. E at 2–3. Plaintiff was able to free herself, and when she turned to confront her attacker, she
realized his pants were down and his butt and thighs were exposed. Id. ¶ 4, Ex. E at 3.
According to Plaintiff, Nesbit was “clearly on drugs.” Id. ¶ 4. “His eyes were red and glazed
over, he was drooling, his chest was rising and falling, he was clenching and unclenching his
fists, and his shoulders were rounded in an aggressive posture.” Id., Ex. E at 3. Nesbit began

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The following facts are based on the allegations in the Amended Complaint, which the Court accepts as true for
purposes of the instant motion, as well as the documents attached to it and incorporated by reference. See Koch v.
Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010); Eaves v. Designs for Fin., Inc., 785 F. Supp. 2d 229, 244 (S.D.N.Y. 2011).

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walking towards Plaintiff, and Plaintiff headed towards a stairwell. Id., Ex. E at 3. There she
encountered Paul Metcalf, another student. Id., Ex. A at 2, Ex. E at 3. Plaintiff told Metcalf
what had just occurred, and Metcalf walked her back to her class and then reported the incident
to a School security officer. 2 Id., Ex. E at 3.
The following day, Plaintiff reported the incident to Oral Hope, the School’s Registrar
Dean; Victoria Eastus, the School’s Title IX coordinator; and Sally Harding, the School’s
Director of Student Life. Id. ¶ 4. Hope allegedly told Plaintiff that Nesbit was “no longer at
NYLS.” Id. ¶ 5. Days later, Eastus allegedly characterized Nesbit as “well-liked” and “good”
and told Plaintiff that NYLS had no other complaints about him. Id. Plaintiff did not initially
report the incident to the police, because of the fact that Nesbit had been removed from campus.
Id., Ex. C at 3.
On October 10, 2014, Defendant Meyers, serving as Chair of the School’s Harassment
and Discrimination Review Board (“Board”), convened an Investigation Panel (“Panel”) to
investigate the October 6, 2014 incident and record its findings and recommendations, pursuant
to the School’s Non-Discrimination and Harassment Policy (“Harassment Policy”). Id., Ex. A at
1. The Panel consisted of Defendants Becherer and Wood. Id. Plaintiff was interviewed by the
Panel on October 20, 2014, and she described feeling scared, unsafe, and vulnerable on campus
as a result of the incident. Id., Ex. A at 3. Plaintiff also alleges that as a result of the incident,
she suffered panic attacks in the hallways of the School and had to leave class numerous times
because of her emotional distress. Id., Ex. C at 2, Ex. E at 3. Plaintiff talked to School Deans

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Plaintiff did not attempt to speak to a security officer because of a past experience she described. Am. Compl. ¶ 4.
Namely, as Plaintiff reported in a NYLS survey in 2012, while she was speaking with another female student, she
observed a security guard “stop[] in his tracks and turn[] 180 degrees to look at a third female student walking down
the hall.” Id., Ex. C at 2. From that point on, Plaintiff did not feel safe interacting with security officers and made
sure never to be on campus late at night. Id.

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regarding her safety concerns, but she was dissatisfied with the way her concerns were
addressed. Id., Ex. E at 3.
On October 23, 2014, after being assessed by a mental health professional, Nesbit was
permitted to return to NYLS. Id. ¶¶ 5, 8, Ex. C at 3. According to Plaintiff, Nesbit told the
mental health professional that he had not engaged in any other incidents at NYLS and that he
had no history of alcohol abuse. Id., Ex. C at 3. Based on the information Nesbit provided, the
mental health professional determined that Nesbit was not a threat to himself or others. Id.
Upon learning that Nesbit was returning to campus, Plaintiff attempted to report the attack to the
police. Id. ¶ 5, Ex. C at 3. The police allegedly told her that too much time had passed to arrest
Nesbit or to obtain a temporary restraining order against him. Id. ¶ 5, Ex. E at 3.
On October 26, 2014, Plaintiff emailed Defendants Crowell and Archer about the
incident. 3 Id. ¶ 6. Crowell never responded, but the next day, Plaintiff met with Archer. Id. ¶ 6,
Ex. B at 2. According to Plaintiff, Archer was “hostile” and suggested that Plaintiff had failed to
report the incident to the appropriate employee. Id. ¶ 6. Plaintiff met with the Panel again on
November 5, 2014 and again described feeling scared, unsafe, and vulnerable on campus. Id.,
Ex. A at 3.
Sometime thereafter, the Panel issued its findings and recommendations, which the Board
adopted on November 25, 2014. Id. ¶ 7, Ex. A. The Panel’s findings—which were based on a
report from a security officer, security camera footage, interviews with Plaintiff, Nesbit, and
Metcalf, and conversations with certain School administrators—largely tracked Plaintiff’s
allegations regarding what took place on October 6, 2014. Id., Ex. A at 2. According to the

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Plaintiff’s email was used by the School as her “formal written complaint” against Nesbit. Am. Compl., Ex. A at
1, Ex. B at 2.

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report, Nesbit did not deny any of Plaintiff’s allegations regarding the attack. Id., Ex. A at 3.
Instead, he stated that he was under the influence of prescription medication that day and claimed
to have no memory of being on campus that night. Id., Ex. A at 3.
The report also detailed the Panel’s findings regarding two other incidents involving
Nesbit. One of the incidents occurred shortly after Plaintiff’s encounter on the same evening. A
female student was walking down a stairwell when she observed Nesbit sitting on the bottom
stair, talking to himself. Id. As the student walked past him, he looked up and made eye contact
with her, appearing upset and angry. Id. The student continued walking, and Nesbit began to
follow her. Id. When she sat down on a couch outside a classroom, Nesbit sat down on a couch
opposite hers. Id. He stared at her with bloodshot eyes for approximately one minute and
appeared to be trying to get her attention. Id. He attempted to put his hands in his jacket
pockets, but fumbled and was unable to do so. Id. The student was made uncomfortable by
Nesbit’s stares, and she got up, walked to the security desk, and reported the incident. Id., Ex. A
at 3–4. As with the incident involving Plaintiff, Nesbit did not deny any of these allegations, but
instead claimed to have no memory of being at the School that evening. Id., Ex. A at 4.
The other incident detailed in the report occurred a little over one month earlier. 4 On
August 28, 2014, two female students separately reported to security that Nesbit approached
them in an unwelcomed manner at the School while he was inebriated. Id., Ex. A at 1. Nesbit
approached the first student between 3:00 and 3:30 p.m., and he flirted with her and spoke about
being her friend. Id. Once he left, the student called security and reported the incident. Id.
Shortly thereafter, Nesbit sat down near the second student and began speaking with her, telling

4

Plaintiff alleges that if the School had told her that Nesbit had previously been reported for similar acts, she would
have filed a police report sooner. Am. Compl., Ex. E at 3.

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her that he was her friend and could help her. Id. The student told him to leave her alone. Id.
Security officers observed Nesbit speaking to the second student, observed that he appeared
drunk and smelled like alcohol, and escorted him off campus. Id. Nesbit admitted to the Panel
that he was intoxicated on campus that day. Id.
Based on the foregoing findings of fact, the Board concluded that Nesbit had violated
Section I.B.2 of the Harassment Policy, which prohibited “subjecting an individual to
humiliating, offensive, abusive or threatening conduct that creates an intimidating, hostile or
abusive work, residential or academic environment, . . . or unreasonably interferes with an
individual’s academic . . . performance on the basis of the individual’s Protected Classification.”
Id., Ex. A at 1, 4. The Board issued a number of sanctions against Nesbit, including:
(1) prohibiting him from appearing on campus until January 11, 2015 and restricting his presence
on campus thereafter to only his classes and co-curricular activities; (2) placing him on probation
through his graduation at NYLS, meaning that any further Harassment Policy violation would
result in his immediate expulsion; (3) permitting him to enroll only in classes that met between
9:00 a.m. and 5:40 p.m.; (4) preventing him from enrolling in any classes in which Plaintiff was
enrolled; (5) requiring him to obtain approval of his schedule from the Assistant Dean for
Academic Affairs; and (6) requiring him to attend a harassment training program. Id., Ex. A at
4–5. Furthermore, following his graduation from NYLS, Nesbit would be permitted to appear on
campus only to attend a bar review course, and upon completing the bar examination in July
2015, Nesbit would be prohibited from appearing on campus until Plaintiff graduated and
completed her bar examination. Id., Ex. A at 5.
Dissatisfied with what she considered to be inadequate sanctions, Plaintiff appealed the
Board’s decision and requested a hearing, which was held in March or April 2015. Id. ¶¶ 7, 8,

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Ex. B at 2, Ex. E at 4. Plaintiff noted in her appeal that Nesbit lied on his safety risk evaluation
and that the hearing took place after an unreasonable delay. Id. ¶ 8. On April 9, 2015, Plaintiff
received NYLS’s final decision on the matter. Id., Ex. D. Nesbit was not expelled, and he was
able to graduate in 2015. Id. ¶ 8, Ex. E at 1, 4.
In light of the way the School handled the matter, Plaintiff made the decision to transfer
to another law school. Id. ¶ 9, Ex. D. In April 2015, she wrote to Defendant Crowell, as well as
several professors at the School, seeking assistance. Id., Ex. C at 3–4, Ex. D. Plaintiff also met
with Crowell in June 2015, along with an individual from the Admissions Office who was
supposed to aid her transfer. Id. ¶ 6. According to Plaintiff, her transfer application was
returned unread because she was unable to obtain a letter of recommendation from a NYLS
professor. Id. ¶ 9, Ex. E at 1, 4.
Unable to transfer to another school, Plaintiff returned to NYLS for the fall 2015
semester. Id., Ex. E at 1. That semester, Plaintiff received the worst grades of her law school
career, including a D+ and an F. Id. ¶ 10, Ex. E at 1, Ex. F at 2. Plaintiff requested that the
School investigate whether she received poor grades in retaliation for her complaints about
Nesbit, specifically naming two NYLS professors, Barbara Graves-Pollar and David
Schoenbrod. Id. ¶ 11, Ex. E at 1. Plaintiff is not aware of any investigation by the School into
her claims. Id. ¶ 11.
B. Procedural Background
On April 29, 2016, Plaintiff filed suit against Defendants in the Supreme Court of the
State of New York, New York County, alleging a host of federal and state law claims. Doc. 1,
Ex. A. On June 8, 2016, Defendants removed the case to this Court. Doc. 1. Defendants
thereafter filed a letter, in accordance with this Court’s Individual Practices, requesting a pre-

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motion conference and leave to file a motion to dismiss the Complaint. Doc. 14. Plaintiff
responded to Defendants’ letter, Doc. 16, and on June 30, 2016, a pre-motion conference was
held. At the conference, the Court heard arguments regarding Defendants’ proposed motion to
dismiss. The Court granted Plaintiff leave to amend her Complaint, and Defendants were
granted leave to file a motion to dismiss the amended version of the pleading.
On July 5, 2016, Plaintiff filed her Amended Complaint. Doc. 17. Plaintiff alleges
federal claims under Title IX and Section 1983, as well as a number of claims under state law.
Id. at 4. Plaintiff seeks $5 million in damages to cover, among other things, her paid tuition to
the School, lost wages, pain and suffering, and punitive damages. Id. On August 8, 2016,
Defendants filed their motion to dismiss the Amended Complaint. Docs. 19–20. Plaintiff filed
her opposition brief on September 1, 2016, Doc. 21, and on September 21, 2016, Defendants
filed their reply, Doc. 22.
II. LEGAL STANDARD
When ruling on a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the Court must accept all factual allegations in the complaint as true and draw
all reasonable inferences in the plaintiff’s favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.
2014). The Court is not required to credit “mere conclusory statements” or “[t]hreadbare recitals
of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’”
Id. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). More specifically, the

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plaintiff must allege sufficient facts to show “more than a sheer possibility that a defendant has
acted unlawfully.” Id. If the plaintiff has not “nudged [his] claims across the line from
conceivable to plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570; see
Iqbal, 556 U.S. at 680.
The same standard applies to motions to dismiss pro se complaints. See Hill v. Curcione,
657 F.3d 116, 122 (2d Cir. 2011). The Court is also obligated to construe a pro se complaint
liberally and to interpret a pro se plaintiff’s claims as raising the strongest arguments that they
suggest. Id.; Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006). The
obligation to be lenient while reading a pro se plaintiff’s pleadings “applies with particular force
when the plaintiff’s civil rights are at issue.” Jackson v. N.Y.S. Dep’t of Labor, 709 F. Supp. 2d
218, 224 (S.D.N.Y. 2010) (citing McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)).
“However, even pro se plaintiffs asserting civil rights claims cannot withstand a motion to
dismiss unless their pleadings contain factual allegations sufficient to raise a ‘right to relief
above the speculative level.’” Id. at 224 (quoting Twombly, 550 U.S. at 555). A complaint that
“tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement’” will not suffice. Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 557); see also Triestman, 470 F.3d at 477 (“[P]ro
se status ‘does not exempt a party from compliance with relevant rules of procedural and
substantive law.’”) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
III. DISCUSSION
A. Section 1983 Claims
To state a claim under 42 U.S.C. § 1983, Plaintiff must allege that Defendants violated
her federal rights while acting “under color of state law.” McGugan v. Aldana-Bernier, 752 F.3d
224, 229 (2d Cir. 2014) (citing 42 U.S.C. § 1983). NYLS is a private educational institution and

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the individual Defendants are employees of that private entity. In evaluating whether such actors
may be held liable under Section 1983, courts consider whether: (a) the State compelled their
conduct (the “compulsion test”); (b) there is a sufficiently close nexus between the State and
their private conduct (the “close nexus test” or “joint action test”); or (c) their private conduct
consisted of activity that has traditionally been the exclusive prerogative of the State (the “public
function test”). McGugan, 752 F.3d at 229 (quoting Hogan v. A.O. Fox Mem. Hosp., 346 F.
App’x 627, 629 (2d Cir. 2009)). 5 “The fundamental question under each test is whether the
private entity’s challenged actions are ‘fairly attributable’ to the state,” McGugan, 752 F.3d at
229 (quoting Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012)), an inquiry that is
“necessarily fact-bound,” Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S.
288, 298 (2001) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982)).
Here, under any of the foregoing tests, the allegations in the Amended Complaint are
insufficient to support a claim that Defendants were acting under color of state law. In her brief,
Plaintiff argues that the State “compelled” Defendants’ conduct, because the School’s federal
funding could be terminated if it violated Title IX. Pl.’s Opp’n Mem. (Doc. 21) at 8. The receipt
of public funds is not, however, “sufficient to transform the actions of a private entity into ‘state
action’ for purposes of a lawsuit under § 1983.” Cain v. Christine Valmy Int’l Sch. of Esthetics,
Skin Care, & Makeup, No. 16 Civ. 170 (GHW), 2016 WL 6127514, at *4 (S.D.N.Y. Oct. 20,
2016); see also Dawkins v. Biondi Educ. Ctr., No. 13 Civ. 2366 (KMK), 2017 WL 325262, at
*3–7 (S.D.N.Y. Jan. 20, 2017) (dismissing Section 1983 claims where the plaintiff failed to

5

Cf. Hayut v. State Univ. of N.Y., 352 F.3d 733, 744 (2d Cir. 2003) (“We think it clear that a professor employed at
a state university is a state actor.”).

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plausibly plead that a private high school and its employees were acting under color of state
law).
Plaintiff also argues that Defendants “insert[ed] themselves into the police function,” and
that Defendants “obstructed [her] access to a police investigation” by “barring access to evidence
that would have enabled police to conduct a separate investigation.” Pl.’s Opp’n Mem. at 8.
Plaintiff’s own allegations demonstrate that to be inaccurate, however, as she admits she could
have reported the incident to the police at any time, choosing to delay doing so because her
attacker had been removed from campus. Am. Compl. ¶ 5, Ex. C at 3.
Plaintiff attempts to liken her case to McGrath v. Dominican College of Blauvelt, 672 F.
Supp. 2d 477 (S.D.N.Y. 2009), wherein the district court found that a private college and its
administrators acted under color of state law for Section 1983 purposes. Pl.’s Opp’n Mem. at 8–
9. In McGrath, however, there was significant collaboration between the college and a state
official. Namely, the college delegated its responsibility to investigate the plaintiff’s complaint
of sexual assault to the police, through a police detective who was also an employee of the
college. 672 F. Supp. 2d at 489–90. Here, there is no allegation that the police or any other state
official was entwined in any way in the School’s handling of Plaintiff’s complaints.
Accordingly, Plaintiff’s Section 1983 claims warrant dismissal. 6
B. Title IX Claims
Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of
gender in educational programs and activities receiving federal financial assistance, providing,
with certain exceptions, that “[n]o person in the United States shall, on the basis of sex, be

6

The Court need not decide whether Plaintiff’s Section 1983 claims against Defendants Crowell and Archer should
alternatively be dismissed for failure to plausibly allege that these individuals were personally involved in a
constitutional deprivation. See Defs.’ Mem. (Doc. 20) at 9–10.

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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).
It is well settled that an aggrieved individual has an implied right of action under Title IX for
injunctive relief and monetary damages. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246,
255 (2009). It is also clear that sexual harassment in the educational context—whether teacheron-student or student-on-student—may constitute discrimination in violation of the statute.
Davis v. Monroe Cnty. Bd. of Edu., 526 U.S. 629, 649–50 (1999).
Plaintiff brings her Title IX claims against NYLS and the individual Defendants alike.
However, the statute “has consistently been interpreted as not authorizing suit against school
officials, teachers, and other individuals,” since they do not personally receive federal education
funding. Fitzgerald, 555 U.S. at 257; see also Bliss v. Putnam Valley Cent. Sch. Dist., No. 06
Civ. 15509 (WWE), 2011 WL 1079944, at *5 (S.D.N.Y. Mar. 24, 2011) (dismissing Title IX
claims against individual defendants). Accordingly, Plaintiff’s Title IX claims against the
individual Defendants must be dismissed.
NYLS, on the other hand, as a Title IX funding recipient, may be held liable for studenton-student harassment, but only if the School was: (1) deliberately indifferent; (2) to sexual
harassment; (3) of which it had actual knowledge; (4) that was so severe, pervasive, and
objectively offensive that it deprived the victim of access to the educational opportunities or
benefits provided by the school. Davis, 526 U.S. at 650. In order to constitute deliberate
indifference, the School’s actions must be “clearly unreasonable in light of the known
circumstances.” Davis, 526 U.S. at 648; see also Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d
655, 666 (2d Cir. 2012) (same). “[T]his is not a mere ‘reasonableness’ standard that transforms
every school disciplinary decision into a jury question.” Gant v. Wallingford Bd. of Edu., 195

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F.3d 134, 141 (2d Cir. 1999) (quoting Davis, 526 U.S. at 649) (internal quotation marks
omitted). “On the contrary, the recipient must merely respond to known peer harassment in a
manner that is not clearly unreasonable.” Davis, 526 U.S. at 648–49.
The Amended Complaint, on its face, alleges facts demonstrating that NYLS did not act
with deliberate indifference in response to Nesbit’s harassment of female students. The
Amended Complaint reflects that on August 28, 2014, upon receiving notice that Nesbit was
intoxicated on campus attempting to flirt with female students, Nesbit was removed from
campus. Am. Compl., Ex. A at 1. After Nesbit’s attack on Plaintiff on October 6, 2014, the
School also promptly removed Nesbit from campus, permitting him to return only after being
assessed by a mental health professional. Id. ¶¶ 5, 8, Ex. C at 3. The School convened a Panel to
investigate the attack within days of its occurrence, and approximately one month after Nesbit’s
return—after reviewing evidence, interviewing witnesses, and speaking with School
administrators—the Board implemented a number of sanctions against Nesbit targeted to limit
his presence on campus, particularly at times when Plaintiff would also be there. Id., Ex. A at 4–
5 (listing sanctions). Although Plaintiff contends that Nesbit should have been expelled for his
conduct, “victims do not have a right to specific remedial measures.” Zeno, 702 F.3d at 666
(citing Davis, 526 U.S. at 648). In light of the circumstances, including the non-physical nature
of the August 28, 2014 incidents and the severity of the sanctions ultimately imposed by the
Board, the Court concludes that the School’s response to Nesbit’s harassment was not clearly
unreasonable as a matter of law. Accordingly, Plaintiff’s Title IX claim premised on Nesbit’s
harassment must be dismissed. See Davis, 526 U.S. at 649 (“In an appropriate case, there is no
reason why courts, on a motion to dismiss, . . . could not identify a response as not ‘clearly
unreasonable’ as a matter of law.”).

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Plaintiff additionally alleges that NYLS violated Title IX by retaliating against her for
complaining about harassment. Am. Compl. ¶¶ 9–11. “[R]etaliation against individuals because
they complain of sex discrimination is ‘intentional conduct that violates the clear terms of [Title
IX].’” Jackson v. Birmingham Bd. of Edu., 544 U.S. 167, 183 (2005) (quoting Davis, 526 U.S. at
642). In order to succeed on such a claim, Plaintiff will first need to establish a prima facie case
by showing: (1) protected activity; (2) knowledge by the defendant of the protected activity;
(3) adverse school-related action; and (4) a causal connection between the protected activity and
the adverse action. Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 91 (2d
Cir. 2011). 7 At the pleading stage, however, a plaintiff need not plead facts giving plausible
support to the “ultimate question” of whether an adverse action was attributable to
discrimination; rather, the facts need only give plausible support to a “minimal inference” of
discriminatory motivation. Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015).
The Second Circuit has clarified that “the inference of discriminatory intent supported by the
pleaded facts [need not] be the most plausible explanation of the defendant’s conduct. It is
sufficient if the inference of discriminatory intent is plausible.” Doe v. Columbia Univ., 831
F.3d 46, 57 (2d Cir. 2016) (emphasis in original); see also Dawson v. N.Y.C. Transit Auth., 624
F. App’x 763, 770 (2d Cir. 2015) (summary order) (“At the pleading stage, district courts would
do well to remember this exceedingly low burden that discrimination plaintiffs face . . . .”).
Here, Plaintiff has met her exceedingly low burden of demonstrating a plausible minimal
inference that NYLS retaliated against her because of her complaints. Plaintiff alleges that she
complained to School officials throughout the 2014–2015 school year and actively participated

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“Once a plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its actions. After the defendant has done so, the burden shifts back to the plaintiff to
demonstrate that the articulated reasons are pretextual.” Papelino, 633 F.3d at 92 (citing McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802, 804–05 (1973)) (citation omitted).

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in the School’s disciplinary process against Nesbit. Am. Compl. ¶¶ 6–8, Ex. A, Ex. B at 2, Ex. E
at 3–4. Shortly after she received the School’s final decision with respect to Nesbit, Plaintiff
made known to School officials her decision to transfer law schools. Id. ¶ 9, Ex. D. However,
Plaintiff was unable to obtain a letter of recommendation that was required for her application.
Id. ¶ 9, Ex. E at 1, 4. When she returned to NYLS for the fall 2015 semester, she received the
worst grades of her law school career. Id. ¶ 10, Ex. E at 1, Ex. F at 2. Assuming Plaintiff’s
allegations to be true, as the Court must at this stage, the Court finds it at least minimally
plausible to infer that the School took adverse action against Plaintiff because of her repeated
complaints. See Papelino, 633 F.3d at 91 (“Close temporal proximity between the plaintiff’s
protected activity and the . . . adverse action may in itself be sufficient to establish the requisite
causal connection.”) (quoting Kaytor v. Elec. Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010)).
Accordingly, Plaintiff may proceed on her Title IX retaliation claim against NYLS. 8
C. State Law Claims
Plaintiff’s state law claims are not entirely clear. The Amended Complaint states broadly
that Plaintiff is seeking damages for Defendants’ “violations of tort, contract and [New York’s
General Business Law (“GBL”)] § 349.” Am. Compl. ¶ V. The pleading also references
Plaintiff’s “[s]evere emotional distress from defendants’ intentional and persistent failure to
respond reasonably to complaints” and Defendants’ “misrepresentations,” “inducements” to
minority applicants, and “fraud.” Id. ¶ IV. Plaintiff slightly clarifies her claims in her opposition
brief by making arguments as to “common law fraud,” “misrepresentation,” having been

8

The Court’s decision to allow Plaintiff to go forward on her retaliation claim “in no way suggests that [the] court
has any view, one way or the other, on the likely accuracy of what Plaintiff has alleged. . . . The role of the court at
this stage of the proceedings is not in any way to evaluate the truth as to what really happened, but merely to
determine whether the plaintiff’s factual allegations are sufficient to allow the case to proceed.” Doe, 831 F.3d at
59.

15

“fraudulently induced,” and “hav[ing] not received” the benefit of her contract with NYLS. Pl.’s
Opp’n Mem. at 27–28.
The submissions of a pro se litigant must be construed liberally and interpreted to raise
the strongest arguments that they suggest. Hill, 657 F.3d at 122; Triestman, 470 F.3d at 475. At
the same time, a party’s pro se status does not exempt her from compliance with relevant rules of
procedural and substantive law, and the Court cannot read into pro se submissions claims that are
not consistent with the allegations. Triestman, 470 F.3d at 477. With these principles in mind,
the Court construes the Amended Complaint to assert state law claims against Defendants for
violations of GBL § 349, breach of contract, fraud, and intentional infliction of emotional
distress. 9 The Court addresses each of these claims in turn.
1. GBL § 349
GBL § 349 prohibits “[d]eceptive acts or practices in the conduct of any business, trade
or commerce or in the furnishing of any service in this state.” N.Y. Gen. Bus. Law § 349(a). “In
addition to [a] right of action granted to the attorney general,” the statute permits “any person
who has been injured by reason of any violation” of the statute to bring an action for damages
and/or injunctive relief. Id. § 349(h). “Although a person’s actions may at once implicate both,
[GBL] § 349 contemplates actionable conduct that does not necessarily rise to the level of
fraud.” Gaidon v. Guardian Life Ins. Co. of Am., 725 N.E.2d 598, 603 (N.Y. 1999).
In order to succeed on her GBL § 349 claim, Plaintiff must ultimately prove that
(1) Defendants engaged in an act or practice that is deceptive or misleading in a material way;
(2) she was injured by reason thereof; and (3) the deceptive act or practice is “consumer

9

Plaintiff explicitly disclaims liability on the basis of negligence. Am. Compl. ¶ 5; see also id. ¶ IV (referring to
Defendants’ “intentional” conduct).

16

oriented.” Gaidon, 725 N.E.2d at 603–04. A “deceptive act or practice” is a representation or
omission “likely to mislead a reasonable consumer acting reasonably under the circumstances.”
Id. at 604 (quoting Karlin v. IVF Am., Inc., 712 N.E.2d 662, 668 (N.Y. 1999)).
Here, Plaintiff alleges that NYLS advertised and marketed the diversity of the School and
reputation of its faculty to diverse and minority applicants like herself, that the School’s
representations in this regard were false, and that she detrimentally relied on these
“inducements” by deciding to attend and remain at NYLS and accrue over $200,000 in student
loan debt. Am. Compl. ¶ IV. Irrespective of whether Plaintiff will ultimately be able to satisfy
her burden of proof, the Court finds Plaintiff’s allegations sufficient to make out a plausible
claim against NYLS for violation of GBL § 349. See, e.g., Gomez-Jimenez v. N.Y. Law Sch., 103
A.D.3d 13, 17 (1st Dep’t 2012) (noting that NYLS’s efforts to sell its services to prospective
students was “consumer-oriented,” but dismissing plaintiff’s claim under GBL § 349 because the
information published by the School was truthful). Accordingly, Plaintiff will be permitted to
proceed on this claim. As none of the aforementioned allegations relate specifically to any of the
individual Defendants’ conduct, however, Plaintiff’s GBL § 349 claims against those Defendants
are dismissed.
2. Breach of Contract
In New York, a student may bring a breach of contract action against an institution of
higher education, such as NYLS. Keefe v. N.Y. Law Sch., 71 A.D.3d 569, 570 (1st Dep’t 2010);
see also Papelino, 633 F.3d at 93; Nungesser v. Columbia Univ., 169 F. Supp. 3d 353, 369
(S.D.N.Y. 2016); Pearson v. Walden Univ., 144 F. Supp. 3d 503, 509 (S.D.N.Y. 2015).
“However, only specific promises set forth in a school’s bulletins, circulars and handbooks,
which are material to the student’s relationship with the school, can establish the existence of an

17

implied contract.” Keefe, 71 A.D.3d at 570. “Where the essence of the complaint is that the
school breached its agreement by failing to provide an effective education, the complaint must be
dismissed as an impermissible attempt to avoid the rule that there is no claim in New York for
‘educational malpractice.’” Gally v. Columbia Univ., 22 F. Supp. 2d 199, 206–07 (S.D.N.Y.
1998) (quoting André v. Pace Univ., 170 Misc. 2d 893, 896 (2d Dep’t 1996)).
Here, Plaintiff does not allege the existence of a contract with any individual Defendant.
As a result, her contract claims against those individuals must be dismissed. By contrast,
although the Amended Complaint is silent on the point, Plaintiff argues in her opposition brief
that she entered into a contract with NYLS “for education services that [she] [did] not receive[].”
Pl.’s Opp’n Mem. at 28. This allegation alone is too vague to serve as the basis for a contract
claim against an educational institution under New York law and, accordingly, the claim against
NYLS must also be dismissed. See Keefe v. N.Y. Law Sch., 25 Misc. 3d 1228(A), at *2 (Sup. Ct.,
N.Y. Cnty. 2009) (granting motion to dismiss a contract claim against NYLS where the plaintiff
“fail[ed] to point to any document or communication that [gave] rise to a promise which NYLS
[had] breached”), aff’d, 71 A.D.3d 569 (1st Dep’t 2010); see also Gally, 22 F. Supp. 2d at 207
(“[T]he mere allegation of mistreatment without the identification of a specific breached promise
or obligation does not state a claim on which relief can be granted.”). Because it is not clear that
granting Plaintiff leave to replead her contract claim against NYLS would be futile, however, the
claim against NYLS is dismissed without prejudice.
3. Fraud
To state a claim for fraud in New York, a plaintiff must allege “that the defendant
knowingly made a false statement of material fact with the intent to induce the plaintiff’s
reliance, and also that the plaintiff did in fact rely on that false statement to [her] detriment.”

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Apex Maritime Co. v. OHM Enters., Inc., No. 10 Civ. 8119 (SAS), 2011 WL 1226377, at *2
(S.D.N.Y. Mar. 31, 2011) (quoting Lomaglio Assocs. Inc. v. LBK Marketing Corp., 876 F. Supp.
41, 44 (S.D.N.Y. 1995)). In addition, the plaintiff must “state with particularity the
circumstances constituting fraud.” Fed. R. Civ. P. 9(b). In other words, the complaint must:
“(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker,
(3) state where and when the statements were made, and (4) explain why the statements were
fraudulent.” Hirsch v. Columbia Univ., Coll. of Physicians & Surgeons, 293 F. Supp. 2d 372,
381 (S.D.N.Y. 2003) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.
1993)).
Here, Plaintiff fails to state with particularity the elements of her fraud claims against the
Defendants. Having reviewed the Amended Complaint and Plaintiff’s opposition brief, it is still
unclear to the Court whether Plaintiff is alleging that the fraud consisted of statements NYLS
made in advertising materials or a campus safety poll, or statements School administrators made
in meetings concerning Nesbit. See Am. Compl. ¶ 5, 7, IV; Pl.’s Opp’n Mem. at 12, 27–28.
Because Plaintiff’s claim for fraud fails to satisfy Rule 9(b), the claim must be dismissed.
Plaintiff will, however, have the opportunity to replead her claim in a Second Amended
Complaint.
4. Intentional Infliction of Emotional Distress
To state a claim for intentional infliction of emotional distress in New York, a plaintiff
must allege: (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a
substantial probability of causing, severe emotional distress; (3) a causal connection between the
conduct and injury; and (4) severe emotional distress. McGrath, 672 F. Supp. 2d at 492; see also
Howell v. N.Y. Post Co., 612 N.E.2d 699, 702 (N.Y. 1993). The standard for asserting a claim is

19

“rigorous, and difficult to satisfy.” TC v. Valley Cent. Sch. Dist., 777 F. Supp. 2d 577, 604
(S.D.N.Y. 2011) (quoting Howell, 612 N.E.2d at 702). “Liability has been found only where the
conduct has been so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Howell, 612 N.E.2d at 702.
Plaintiff alleges that certain School administrators lied to her about whether other
students had complained about Nesbit prior to her attack, told her Nesbit was “good” and “wellliked” while she made her complaints, were hostile to her in response to her complaints, and
retaliated against her for complaining by preventing her from transferring schools and awarding
her bad grades. Am. Compl. ¶¶ 5–11. Despite the serious nature of these allegations, the Court
cannot conclude that Defendants’ treatment of Plaintiff approached the level of extreme and
outrageous conduct required to state a claim for intentional infliction of emotional distress under
New York law. Accordingly, Plaintiff’s claim for intentional infliction of emotional distress is
dismissed. Since Plaintiff may be able to supplement her allegations, Plaintiff will be permitted
to replead the claim in a Second Amended Complaint.
D. New Claims
In her opposition brief, Plaintiff asserts, for the first time, claims under 42 U.S.C.
§ 1985(3), Title VI of the Civil Rights Act of 1964, and the First Amendment. Pl.’s Opp’n Mem.
at 21–25. Because these claims were not asserted in the Amended Complaint, the Court may not
consider them in deciding Defendants’ motion to dismiss. Jordan v. Chase Manhattan Bank, 91
F. Supp. 3d 491, 500 (S.D.N.Y. 2015); see also O’Brien v. Nat’l Prop. Analysts Partners, 719 F.
Supp. 222, 229 (S.D.N.Y. 1989) (“[I]t is axiomatic that the Complaint cannot be amended by the

20

briefs in opposition to a motion to dismiss.”). The Court has, however, considered whether to
allow Plaintiff the opportunity to plead these claims in a Second Amended Complaint.
To state a claim for conspiracy to commit a civil rights deprivation under Section
1985(3), a plaintiff must plausibly allege:
(1) a conspiracy; (2) to deprive directly or indirectly any person of
equal protection of the laws, or of equal privileges and immunities;
and (3) an act in furtherance of the conspiracy; (4) whereby his
person or property is injured or he is deprived of any right of a U.S.
citizen.
Roberts v. City of New York, No. 14 Civ. 5198 (GHW), 2016 WL 4146135, at *8 (S.D.N.Y. Aug.
2, 2016). Plaintiff alleges that Defendants conspired to prevent her from reporting Nesbit’s
attack to the police because of her gender. Pl.’s Opp’n Mem. at 21–22; see N.Y. State Nat’l Org.
for Women v. Terry, 886 F.2d 1339, 1359 (2d Cir. 1989) (holding that women may constitute a
class for purposes of Section 1985(3)). Plaintiff provides no allegations regarding any acts taken
in furtherance of a conspiracy, however, and she fails to raise even a plausible minimal inference
that Defendants were motivated by discriminatory animus towards women.
Title VI provides that “[n]o person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial assistance.”
42 U.S.C. § 2000d. To state a claim for a violation of the statute, a plaintiff must plausibly
allege that (1) the defendant discriminated against her on the basis of race, color, or national
origin; (2) the discrimination was intentional; and (3) the discrimination was a substantial or
motivating factor for the defendant’s actions. Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir.
2001). Plaintiff alleges that NYLS “targeted diverse students . . . through fraudulent, misleading,
and unsavory advertising and marketing strategies” and that “asking for help at NYLS as a black

21

student will not get you anywhere.” Pl.’s Opp’n Mem. at 24. These cryptic race-related
allegations are insufficient to adequately state a claim under Title VI.
Although Plaintiff fails to set forth facts to sufficiently plead a claim under either Section
1985(3) or Title VI, Plaintiff will be permitted an opportunity to supplement her allegations as to
these claims in a Second Amended Complaint. Amending her complaint to include a First
Amendment claim would be futile, however, as Plaintiff cannot show that Defendants acted
under color of state law. See supra Section III.A; Rendell-Baker v. Kohn, 457 U.S. 830, 837
(1982) (“[I]t is fundamental that the First Amendment prohibits governmental infringement on
the right of free speech.”).
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss the Amended Complaint is
GRANTED in part and DENIED in part. Plaintiff is permitted to proceed on her Title IX
retaliation claim and GBL § 349 claim against NYLS, and Plaintiff is granted leave to replead
her breach of contract claim against NYLS, her fraud claims against all Defendants, her
intentional infliction of emotional distress claims against all Defendants, her Section 1985(3)
claims against all Defendants, and her Title VI claim against NYLS. Plaintiff’s remaining claims
are dismissed with prejudice. Plaintiff’s Second Amended Complaint must be filed, if at all, on
or before March 29, 2017. The parties are directed to appear for a conference on May 3, 2017

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