Klocke v. The University of Texas at Arlington et al

Filing 160

MEMORANDUM OPINION AND ORDER granting 118 Motion for Summary Judgment filed by The University of Texas at Arlington, denying 122 Motion for partial Summary Judgment filed by Wayne M. Klocke. The court ORDERS that the court's May 18, 20 18 order be, and is hereby, vacated and set aside, and that the May 31, 2018, briefs and appendices, Docs. 140-43, be, and are hereby, unfiled and stricken from the record of this action. Plaintiff shall take nothing on his claims against UTA; and that such claims be, and are hereby, dismissed. (Ordered by Judge John McBryde on 6/7/2018) (npk)

IN THE UNITED STATES DISTRI T CO RT
NORTHERN DISTRICT OF TE AS
JUN
FORT WORTH DIVISION
WAYNE M. KLOCKE, INDEPENDENT
ADMINISTRATOR OF THE ESTATE OF
THOMAS KLOCKE,

7 2018

C1fyRK, U.S. DISTRICT COURT

§
§

Deputy

§
§

Plaintiff,

§
§

vs.
THE UNIVERSITY OF TEXAS AT
ARLINGTON, ET AL.,
Defendants.

§
§
§
§
§
§

NO. 4:17-CV-285-A

MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of plaintiff, Wayne M.
Klocke,

Independent Administrator of the Estate of Thomas Klocke,

for partial summary judgment and the cross-motion of defendant
University of Texas at Arlington ("UTA") for summary judgment.
The court, having considered the motions, the responses, the
replies, the record, including the summary judgment evidence, and
applicable authorities, finds that defendant's motion should be
granted and that plaintiff's motion should be denied.
I.

Plaintiff's Claims
Wayne M. Klocke ("Wayne") is the father of Thomas Klocke
("Thomas"), who was a student at UTA. The operative pleading is

plaintiff's amended complaint filed April 11, 2018. Doc. 1 117. In
it, plaintiff alleges:
On or about May 19, 2016, during a class at UTA, Nicholas
Watson ("Watson"), a gay male student, made unwelcome sexual
advances and overtures to Thomas, a heterosexual male student.
Disappointed by the rejection, or perhaps fearing that Thomas
might complain to UTA about Watson's behavior, Watson contacted
Heather Snow ("Snow"), associate vice president of student
affairs and dean of students, who helped him draft a complaint
against Thomas. Doc. 117 , 3. Snow, aided by Daniel Moore
("Moore"), selectively implemented and enforced an alternate
grievance resolution process that was deliberately indifferent to
UTA's Title IX obligations and Thomas's rights thereunder. Id.
, 4. Thomas's rights to attend class, to communicate with anyone
in class, and to enter UTA'S business building were suspended.
Id. , 5. From May 19, 2016, through June 2, 2016, Thomas suffered
the denial of benefits and privileges of an educational
opportunity, program and activity that he was eligible to
receive. UTA's misconduct caused harm so severe that it led to
Thomas's death by suicide on June 2, 2016. Id. ,

7.

Plaintiff asserts a cause of action for violation of Title
IX, which provides:

1

The "Doc.

" reference is to the number of the item on the docket in this action.
2

No 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 educational program or activity receiving Federal
financial assistance
20 U.S.C.

§

168l(a). Doc. 117 ~~ 85-100.
II.
Grounds of the Motions

Plaintiff seeks judgment that UTA violated Thomas's rights
under Title IX as a matter of law and leaves for trial the issues
of causation and damages. Doc. 122. UTA,

in turn, seeks judgment

that plaintiff is not entitled to any relief. Doc. 118.
By order signed May 18, 2018, the court, consistent with the
authorization contained in Fed. R. Civ. P. 56(f) (2), notified the
parties that it was considering granting UTA's motion for summary
judgment on the ground that the summary judgment record as a
whole could not lead a rational trier of fact to find that the
conduct of UTA about which plaintiff complains caused, or was a
significant factor in causing, the death of Thomas. Doc. 133. The
court gave each party an opportunity to respond to the order and
to the response of the other party. The responses and supporting
materials have been filed,

Docs. 140-43, and, for reasons

discussed hereinafter, there is no need for the filing of
replies.

3

III.
Applicable Summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.

Fed. R. Civ.

P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986).

The movant bears the initial burden of pointing out to

the court that there is no genuine dispute as to any material
fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986)

The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim, "since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."

Id. at 323.

Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.

Id. at 324; see also Fed. R. Civ. P. 56 (c)

asserting that a fact
the assertion by
the record

("A party

is genuinely disputed must support
citing to particular parts of materials in

• fl )

•

If the evidence identified could not lead

a rational trier of fact to find in favor of the nonmoving party

4

as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587, 597 (1986).

In Mississippi Prot. & Advocacy

Sys., Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law.'

Celotex Coro., 477 U.S. at 323.

If the record taken as a

whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also Mississippi Prot. &
Advocacy Sys., 929 F.2d at 1058.

'In Boeing Co. v. Shipman, 411F.2d365, 374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the court should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.

5

IV.
Facts Established by Summary Judgment Evidence'
Watson and Thomas were students in a class that met from
8:00 a.m. to 11:45 a.m., Monday through Friday, from May 18 to
June 2, 2016. On May 19, the second day of class, the two sat
next to each other in an auditorium-style lecture hall. During
class, Watson posted to Facebook: "The guy sitting next to me
just typed into his computer 'ga;ys should die.' Then told me I
was a 'fa* *ot' and that I should 'kill myself. "' Doc. 124 at 182.
At 8:53 a.m., Watson emailed the professor who was teaching the
class, saying (in pertinent part):
During the course of this morning's class, I sat next
to a student who made me feel massively uncomfortable.
He typed into his computer search bar "gays should die"
and then proceeded to call me a "fa**ot" and that I
"should consider killing myself." I do not feel safe in
the class at this given time given the threatening
presence this student has provided.
Doc. 129 at 108. Watson approached the professor, Professor
Dwight Long ("Long"), after class and Long perceived that
whatever Watson had to say was urgent. Id. at 95. Long read the
email when he returned to his off ice and reported the comments

3

The court notes that the final pages of plaintiff's brief in response to UTA's motion for
summary judgment are devoted to a series of conclusory objections regarding UTA's summmy judgment
evidence. Doc. 131 at 48-49. As is its custom, the comt is giving the summary judgment evidence the
weight it deserves. In this regard, the cou1t notes that plaintiff's own list of undisputed facts contains
many erroneous citations, as well as misleading and unsupported statements. Doc. 123 at 5-24.
6

Watson had made in person and through the email to Jean Hood,

the

Title IX coordinator for UTA. Id.
Watson went to see Snow around lunchtime on May 19. He
appeared visibly upset, nervous, and shaken and talked very fast.
He said that he feared for his safety and did not want to be in
class with Thomas. Doc. 129 at 115-16, , 10. At Snow's request,
Watson typed an email addressed to her explaining what had
happened. Id. at 116, , 11; 165. Snow forwarded the email to
Moore. Id. at 5, ,

7. Snow advised that it would be appropriate

as an interim measure to forbid Thomas from attending class and
asked Moore to draft a letter to that effect. Id. at 6,

, 9.

Moore sent Thomas a letter stating that he must cease all contact
and communications with students in the class and that Thomas was
prohibited from attending class and being in the business
building until further notice. Id. at 22. Moore also sent a
letter to Watson, telling him not to contact Thomas. Id. at 6,
, 10. Moore did not consider that the statements Thomas allegedly
made fit within UTA's definition of sexual harassment. He
considered them to be in the nature of threats or harassment
generally. Id. at 6-7, , , 13-17.
At 3:56 p.m. on May 19, 2016, Thomas sent an email that
Moore received the next morning. Id. at 6, , 12. In the email,
Thomas stated that he had received a letter saying he was

7

involved in an alleged violation; that he was confused by the
allegations because he did not violate the Student Code of
Conduct; and that he was requesting further information. Id. at
48.

On May 20, Moore spoke with Thomas by phone. Id. at 7-8,
~

18. Thomas stated that he "knew what this was in reference to"

and he did not dispute the allegations. Thomas's demeanor was
stoic and unemotional; nothing about the call made Moore think
Thomas was a victim or was being framed by Watson. Thomas did not
protest being out of class and said that they could talk more at
a meeting scheduled for the following Monday. Id.
At 10:21 a.m. on May 20, 2016, Thomas bought a handgun at
Academy Sports & Outdoors in Grapevine. Doc. 124 at 239.
On May 20, Moore met with Watson, who explained that he had
made a comment about privilege in class and that Thomas had typed
"gays should die" on his web browser and showed it to Watson.
Watson wrote in his own search bar, "I'm gay." Thomas then acted
like he was yawning with his hand over his mouth and said,

"Well,

then, you're a faggot." Watson told Thomas he should leave.
Thomas replied,

"You should consider killing yourself." Thomas

packed up and left the room, returning about 15 minutes later and
taking a different seat. Watson said he passed his notebook to
Blake Lankford ("Blake"), a student seated next to Thomas's empty

8

seat with notes regarding what happened. Doc. 129 at 8, , 21.
After class, Watson told Long what had happened. Id. , 22. Watson
made very clear that he was scared of Thomas and did not feel
comfortable being in class with him. Watson seemed genuinely
worried and scared and Moore found him to be credible. Id. Moore
spoke to Long, who verified what Watson had reported. Id. at 9,
,

24.

On May 23, Moore met with Thomas. Wayne came with Thomas and
spoke with Moore, expressing concern that Thomas be allowed back
into the class given that it was a short semester. Wayne left and
Moore spoke with Thomas alone. Id. ,, 25-26. Moore advised that
Wayne could meet with them but Thomas would have to sign a
release, which Thomas acknowledged but did not request. Id. , 27.
Thomas told Moore he did not know who made the accusations
against him, but that the student sitting next to him had said
Thomas was "beautiful." Thomas responded on his web browser,
•stop--I'm straight.• The student typed into his own web browser,
"I'm gay.• Thomas said the student kept glancing at him and
Thomas told him to stop. Thomas denied saying,

•gays should die,•

•you're a faggot,• or •you should kill yourself.• Thomas said the
other student was typing into his phone and laughing and Thomas
moved across the room because of the distraction. Id. at 9-10,
, 28. Moore asked Thomas a number of questions, but Thomas kept

9

referring to a sheet of paper he had with him, which appeared to
be a script or outline. There were often long pauses before
Thomas responded and when he did, the responses were without
substance. Moore found Thomas's version of events suspect. Id. at
10, , 32. In every conversation with Moore, Thomas's tone was
matter-of-fact and calm, lacking any emotion, even when he said
he was scared of his accuser. Id. at 11, , 33.
On May 24, Moore met with Blake, who said that he heard
Watson tell Thomas that he should leave. Blake looked over and
saw that Watson and Thomas looked really tense. After about 30
minutes, Thomas left. Id. , 37. Blake leaned over and asked
Watson what had happened. Watson slid over his calendar with a
note of what Thomas allegedly said to Watson. Blake did not
observe Watson laughing or causing a distraction. Id. ,

38.

Thomas returned to the classroom about ten minutes later and took
a seat on the other side of the room. After class, when Watson
approached Long, Thomas was looking at Watson. Id. , 37.
On the evening of May 24, Thomas emailed Moore, saying that
he felt victimized, but also stating, "I am the one who moved to
alleviate any tension." Id. at 12, , 40; 90. Moore considered the
statement to be inconsistent with Thomas's claim that he had
moved because Watson was laughing and causing a distraction. Id.
at 12, , 40. Moore responded to the email that evening asking

10

Thomas to meet with him the next day and telling Thomas that he
had spoken to Long and Long would meet with Thomas one-on-one for
any instruction for the class and that Thomas would still work
with his group to complete projects. Id. at 90. Thomas responded,
"Thanks for your work and talking to professor Long. I really
appreciate it." Id.
On May 25, Moore met with Thomas to explain his findings and
discipline. He reiterated that Watson and Thomas were to have no
contact. Thomas could meet one-on-one with Long and continue
working with his class group on their project. At no time did
Thomas protest the decision or ask any questions as to how Moore
arrived at his decision. Id. at 13, , 45. Moore explained that
the decision could be appealed and the appeal process and that
Thomas had 14 days to appeal. Id. at 14, , 46. Thomas asked
whether the disciplinary record would be available to employers,
graduate schools, or law schools. Moore told him that it was not
on an academic transcript and that few employers would request
it. In any event, Thomas would have to sign a release before the
disciplinary record could be provided. Id.
Moore and Long sought to make arrangements so that Thomas
could still obtain the benefits of the course and obtain course
credit despite not being allowed in the classroom. Id. at 96,
, 17. Thomas took the first exam in the business office on May 24

11

and received a grade of 66. Id.; at 112; Doc. 124 at 117. Thomas
took the second exam on or around June 1 and received a grade of
74. Doc. 129 at 96, ,

17; 112. On May 31, Long met with Thomas

and Long assured Thomas that he was part of the class even though
he could not attend; that Long had Thomas "covered"; and that
Thomas would get the same grade as every other member of his team
on class participation, team presentation, and simulation. Id. at
96, ,
,

18. The meeting lasted approximately fifteen minutes. Id.

19. Long kept trying to explain the final exam to Thomas, who

cut him off, saying something to the effect of "I got this." Id.
at 97, , , 21-22. Thomas finished only the first two of five parts
of the final exam, but Long gave him a grade of 75. Id. , , 23,
25. Thomas submitted the last of his answers at 2:14 p.m. on June
2.

Id.

,

25. At approximately 5:20 on June 2, Thomas committed

suicide by shooting himself with the gun he had purchased on May
20. Doc. 124 at 279, 281, 239.
Moore made the decision as to the potential policy
violations he would investigate. No one told him what he should
investigate. He was the sole decision-maker. He determined that
Thomas was responsible for harassment but not making a threat. He
did not feel pressure from the government or any administrators
at UTA in making his decision. Doc. 129 at 15,

,

50. He

investigated the case in the same manner he investigates all

12

cases. He met with witnesses, reviewed documents, weighed the
credibility of the witnesses, and reached a conclusion. Id. ,

51.

v.
Analysis
In this day and age, it should go without saying that when
one student says to another,

"people like you should die" or "you

should kill yourself," the school must take such statements
seriously.' It is not the role of the court to second-guess the
decisions of school administrators. Plummer v. Univ. of Houston,
860 F.3d 767, 772-73

(5th Cir. 2017) (citing Davis ex rel.

Lashonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648
(1999)); Doe v. Univ. of St. Thomas, 240 F. Supp. 3d 984, 989-90
(D. Minn. 2017)
As stated, supra, Title IX provides that no person shall, on
the basis of sex, be excluded from or denied the benefits of any
education program receiving federal financial assistance. The
Supreme Court has recognized an implied private right of action
for violation of Title IX. Cannon v. Univ. of Chicago, 441 U.S.
677

(1979). To establish a claim under Title IX, a plaintiff must

establish that an educational institution receiving federal

4

That one student bought a gun the day after the incident underscores the seriousness of the
situation. Although there is no evidence that UTA had knowledge of the purchase or that Thomas ever
considered harming Watson, the fact is that the weapon was obtained and could have been used against a
fellow student.

13

assistance intentionally discriminated on the basis of the
plaintiff's sex. Fort v. Dallas Indep. Sch. Dist .. 82 F.3d 414,
1996 WL 167072, at *3 (5th Cir. 1996).
As another district court has noted, private challenges to
disciplinary proceedings under Title IX generally manifest
themselves under four broad theories:

(1) plaintiffs claiming an

erroneous outcome of a disciplinary proceeding;

(2) plaintiffs

claiming selective enforcement of university procedures to
students of different sexes;

(3) plaintiffs claiming deliberate

indifference to sexual harassment or assault on campus; and (4)
plaintiffs claiming a university's actions were based on archaic
assumptions about the roles and behavior of men and women. 5
Pacheco v. St. Mary's Univ., No. 15-CV-1131 (RCL), 2017 WL
2670758, at *11 (5th Cir. June 20, 2017). And, retaliation
against a person who has complained of sex discrimination is
another form of intentional discrimination encompassed by Title
IX's private cause of action. Jackson v. Birmingham Bd. of Educ.,
544 U.S. 167, 173

(2005).

In this case, no matter the theory, the evidence simply does
not support a finding that defendant intentionally discriminated

5

Although UTA seeks judgment on the archaic assumptions themy, Doc. 119 at 44-46, and
plaintiff makes a response thereto, Doc. 131 at 38-39, it is clear that plaintiff is not assetting that theory
as a basis for recove1y. See Docs. 117 & 123. The court is satisfied that the theory simply does not apply
to the facts of this case. See Pederson v. Louisiana State Univ., 213 F.3d 858 (5th Cir. 2000).

14

against Thomas on the basis of his sex. At best, sex played a
tangential role. See Sanches v. Carrollton-Farmers Branch Indep.
Sch. Dist., 647 F.3d 156, 165

(5th Cir. 2011). The undisputed

facts are that one student made comments that another perceived
as threatening. The threatened student cried out immediately via
social media to his friends and by email to his professor during
the middle of class. After class, the threatened student spoke to
the professor, who perceived that the threatened student was
genuinely upset. The threatened student met with Snow, who also
perceived that he was genuinely upset and afraid. Although Snow
may have perceived that the comments were of a sexual nature,

she

did not impose her view on Moore, who was asked to investigate
the matter. Moore recognized that the perceived threat should be
immediately addressed and issued the letters forbidding the
student who allegedly made the comments from attending class. He
then undertook an investigation that led him to conclude that the
comments had actually been made. The only other witness to the
exchange corroborated that the threatened student told the other
he should leave, which he did; when the witness asked what had
happened, the threatened student showed him his notes; the
student who allegedly made the threat watched as the threatened
student spoke with the professor after class; and, the witness
did not see the threatened student laughing or causing a

15

distraction. Moore did not believe the student who allegedly made
the threat when he said that the threatened student had
propositioned him. And, the statements of that student were
inconsistent with his claim of innocence, i.e., that he knew what
the meeting was about (that is, why he had been notified to meet
with Moore) and that he had moved to avoid the tense situation.
Moore made arrangements for the student who made the threat to be
able to complete the class. That student did not protest or
demand a hearing or appeal from the decision. He expressed
gratitude for Moore's help; he met with the professor (whose help
he acted like he was not interested in obtaining) and received
assurance that he would not be penalized for being unable to
attend class; he took the tests and continued to work with his
group. Ultimately, for no known reason, the student committed
suicide.
To establish an erroneous outcome theory, plaintiff must
show that Thomas was innocent and wrongly found to have committed
the offense and that gender bias was a motivating factor behind
the erroneous finding. Yusuf v. Vassar College, 35 F.3d 709, 715
(2d Cir. 1994). Here, although plaintiff repeatedly argues that
Thomas was punished based solely on Watson's uncorroborated
account,

the evidence does not support the argument. Rather, the

only reasonable conclusion to be drawn from the evidence is that

16

Watson's account is corroborated. Plaintiff simply disagrees,
which is not enough to show actual innocence. See Haidak v. Univ.
of Mass., No. 14-CV-30049-MAP, 2018 WL 1243956

(D. Mass. Mar.

2018); Pacheco v. St. Mary's Univ., No. 15-CV-1131
2670758

(W.D. Tex. June 20,

Supp. 3d 754

(N.D.

9,

(RCL), 2017 WL

2017); Doe v. Purdue Univ., 281 F.

Ind. 2017). Moreover, he has no evidence to

raise a genuine issue of material fact as to gender bias. See
Yusuf, 35 F.3d at 715.
In a selective enforcement claim, a plaintiff alleges that,
regardless of guilt or innocence, the decision to initiate
proceedings' or the penalty imposed was affected by plaintiff's
gender. Yusuf, 35 F.3d at 715; Pacheco, 2017 WL 2670758, at *18.
In other words, the plaintiff must show that a person of the
opposite sex was in circumstances sufficiently similar to
plaintiff's and was treated more favorably by defendant. Doe v.
Univ. of the South, 687 F. Supp. 2d 744, 756

(E.D. Tenn. 2009)

UTA has provided evidence of other student misconduct
investigations from 2013 to 2016. Doc. 120, Ex. 15. Plaintiff has
not shown that any female in circumstances similar to Thomas's
was treated more favorably.

See Gudgel v. Del Mar College, No.

2:16-CV-513, 2018 WL 472829, at *2

6

(S.D. Tex. Jan. 17, 2018).

In

Here the complaint was initiated by Watson; thus, there is no selective enforcement claim based
on initiation of the investigation. Doe v. Purdue Univ., 281 F. Supp. 3d 754, 784 (N.D. Ind. 2017).

17

fact plaintiff has not pointed to any comparator in nearly
identical circumstances. See Lee v. Kansas City S. Ry., 574 F.3d
253, 259-60

(5th Cir. 2009). And, even if he had identified such

a comparator, he has not shown that the same decision-maker was
involved. Lopez v. Kempthorne, 684 F. Supp. 2d 827, 857

(S.D.

Tex. 2010) (comparators are rarely similarly-situated where
different decision-makers are involved) .
With regard to deliberate indifference, plaintiff asserts
two different theories. First, he says that UTA failed to follow
its own policies and procedures in investigating Watson's
complaint. Second, he says that UTA was deliberately indifferent
to Thomas's claim of harassment by Watson. Doc. 131 at 19. Doc.
117 at 33-35,

~~

92-94; 35,

~

97. Neither is supported.

The Supreme Court has never held that there is an implied
right of action under Title IX for violation of administrative
requirements. K.S. v. Northwest Indep. Sch. Dist., 689 F. App'x
780, 794

(5th Cir. 2017); Sanches, 647 F.3d at 169. But even if

there is such a right, mere failure to follow policy does not
establish deliberate indifference. Sanches, 647 F.3d at 169.
Rather, the school's response, or lack thereof, to the harassment
must be clearly unreasonable in light of the known circumstances.
Id. at 167. The bar is high and neither negligence nor mere
unreasonableness is enough. Id. A defendant is not deliberately

18

indifferent where it takes some action. K.S., 689 F. App'x at
794.
Although plaintiff disagrees with the outcome, the record
reflects that UTA did consider Thomas's allegations against
Watson and determine them to be incredible. And, even if UTA
ignored Thomas's allegations, UTA is not liable for damages
unless its deliberate indifference subjected Thomas to
harassment.
minimum,

"That is, the deliberate indifference must, at a

'cause [students]

to undergo' harassment or 'make them

liable or vulnerable' to it.• Davis v. Monroe County Bd. of
Educ., 526 U.S. 629, 644-45

(1999). There is no evidence that

UTA's actions caused Thomas to be subjected to harassment by
Watson. Rather, UTA directed Watson to have no contact with
Thomas and cautioned him that failure to abide by the restriction
could result in disciplinary action against him. Doc. 120 at 480.
Further, and in any event, Thomas's allegations against
Watson were insufficient to amount to a sexual harassment
complaint meriting investigation under Title IX. Specifically,
the alleged harassment was not "so severe, pervasive, and
objectively offensive that it effectively barred [Thomas's]
access to an educational opportunity or benefit.• Sanches, 647
F.3d at 165. Only claims involving pervasive and widespread
conduct are actionable; a single incident is not enough.

19

Carmichael v. Galbraith, 574 F. App'x 286, 289-90

(5th Cir.

2014). See also Doe v. Miami Univ., 882 F.3d 579, 591 (6th Cir.
2018); Haidak v. Univ. of Mass., 2018 WL 1243956, at *21.
Finally, plaintiff maintains that UTA retaliated against
Thomas because he complained of sex discrimination. The Supreme
Court has recognized that retaliation against a person because
that person has complained of sex discrimination is another form
of intentional sex discrimination encompassed by Title IX's
private cause of action. Jackson, 544 U.S. at 173. "[W]hen a
funding recipient retaliates against a person because he
complains of sex discrimination, this constitutes intentional
'discrimination'

'on the basis of sex,' in violation of Title

IX." Id. at 174. Here, the facts do not fit the cause of action.
First, Thomas did not complain of sex discrimination. At
most, he reported one minor incident of harassment.' Further,
Thomas was already under investigation for allegedly having
threatened Watson and discipline had already been imposed before
Thomas ever mentioned that Watson had propositioned him. Thus,
there is no causal connection between Thomas's report and the
adverse action. See Gudgel, 2018 WL 472829

(summary judgment

granted where discipline had been imposed before the plaintiff

'Despite plaintiff's characterization, it is clear that Thomas did not independently complain about
Watson's actions, but rather made the allegations in defense to the accusations made by Watson.

20

filed his Title IX complaint). And, as UTA notes, after Thomas
made the allegations about Watson, the sanction against Thomas
was actually modified in his favor to allow him to work with his
group and be in the business school building and take exams.
While not dispositive, this tends to show that UTA did not
retaliate against Thomas for his report. Doe v. Salisbury Univ.,
123 F. Supp. 3d 748, 769-70

(D. Md. 2015).

Plaintiff has not shown that UTA's actions were clearly
unreasonable in light of the known circumstances. Sanches, 647
F.3d at 167. UTA is entitled to judgment as a matter of law.
VI.

Supplemental Filings'
Upon reading the May 31, 2018 briefs filed by plaintiff,
Doc.

142, and UTA, Doc.

140, the court realized that it had been

hasty in issuing the May 18, 2018 order raising under the
authority of Fed. R. Civ. P. 56(f) (2) of the Federal Rules of
Civil Procedure an issue as to causation of Thomas's death. As
plaintiff pointed out in his brief, he "does not seek a finding
in this case by the trier of fact that the conduct of UTA about
which he complains caused or was a significant factor in causing
the death of Thomas." Doc. 142 at 1. Thus,

there is no need for

'The court notes that the patties have also filed a number of motions to exclude expmt testimony.
Docs. 145-58. These motions are moot in light of the rulings made herein.

21

the briefing on that issue and the court has not considered any
of the documents filed in response to the May 18 order in
reaching the conclusions expressed in this memorandum opinion and
order. For that reason, the court is ordering that such documents
be unfiled and stricken from the record of this action.
VII.
Order
The court ORDERS that the court's May 18, 2018 order be, and
is hereby, vacated and set aside, and that the May 31, 2018,
briefs and appendices, Docs. 140-43, be, and are hereby, unfiled
and stricken from the record of this action.
The court further ORDERS that plaintiff's motion for partial
summary judgment be, and is hereby, denied.
The court further ORDERS that UTA's motion for summary
judgment be, and is hereby, granted; that plaintiff take nothing
on his claims against UTA; and that such claims be, and are
hereby, dismissed.

/

SIGNED June 7, 2018.

/

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