Doe v. Elson S Floyd College of Medicine at Washington State University

Filing 80

ORDER GRANTING IN PART AND DENYING IN PART 31 DEFENDANT'S MOTIONS FOR JUDGMENT ON THE PLEADINGS AND 74 PLAINTIFF'S PARTIAL MOTION TO DISMISS; GRANTING IN PART AND DENYING IN PART 41 Second Motion for Judgment on the Pleadings. Cause s of Action One through Six and Thirteen through Nineteen are DISMISSED WITH PREJUDICE. Causes of Action Ten, Eleven, and Twenty are DISMISSED WITHOUT PREJUDICE. Plaintiff may amend her Complaint by no later than March 19, 2021. Signed by Judge Salvador Mendoza, Jr. (CLP, Case Administrator)

Case 2:20-cv-00145-SMJ

ECF No. 80

filed 02/17/21

PageID.888 Page 1 of 16
FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Feb 17, 2021
SEAN F. MCAVOY, CLERK

2
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

3
4

JANE DOE,

No. 2:20-cv-00145-SMJ

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6
7
8
9

Plaintiff,
v.
ELSON S FLOYD COLLEGE OF
MEDICINE AT WASHINGTON
STATE UNIVERSITY,

ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANT’S MOTIONS FOR
JUDGMENT ON THE
PLEADINGS AND PLAINTIFF’S
PARTIAL MOTION TO DISMISS

Defendant.

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11

Before the Court is Defendant’s First Motion for Judgment on the Pleadings,

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ECF No. 31, Defendant’s Second Motion for Judgment on the Pleadings, ECF No.

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41, and Plaintiff’s Opposed Partial Motion to Dismiss Without Prejudice, ECF No.

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74. Defendant seeks dismissal of Causes of Action One through Six, Eleven, and

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Thirteen through Twenty with prejudice. ECF Nos. 31, 41. Plaintiff asks this Court

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to dismiss Causes of Action Ten through Thirteen and Fifteen through Twenty

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without prejudice. ECF No. 74.

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Plaintiff initially sued Defendant in the Spokane County Superior Court,

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alleging twenty causes of action, including six due process violations, two

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violations of her right to privacy, harassment, seven gender discrimination claims,
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTIONS FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFF’S
PARTIAL MOTION TO DISMISS – 1

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three disability-rights violations, and the tort of outrage. ECF No. 2-2. Defendant

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afterward removed the suit to federal court. ECF No. 2. This Court dismissed

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Causes of Action Seven through Nine in a previous Order. ECF No. 51. The Court

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is fully informed and grants in part and denies in part each pending motion.
PLAINTIFF’S ALLEGATIONS

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6

Plaintiff enrolled in Defendant’s medical school in August 2017. ECF No. 2-

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2 at 3. During her studies, she began dating a fellow student, and the relationship

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ended when it became abusive. Id. at 4. After the relationship ended, her former

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partner became romantically involved with another student, one of Plaintiff’s close

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friends. Id. But when her former partner began dating her friend, she “confronted

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him about his indiscretions,” and he “screamed, swore, and flipped a coffee table at

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her.” Id. She informed Washington State University (WSU) staff of the abuse, but

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it did not take her concerns seriously. Id.

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Separately, Plaintiff suffers from depression and PTSD, diagnoses which

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relate to “an incredibly traumatic event” she witnessed while in Kenya on an

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academic research trip. Id. She informed Assistant Director Lisa Burch-Windrem,

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Defendant’s employee, of her disabilities at the beginning of her 2018 academic

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year. Id. She later informed Burch-Windrem of AF’s abusive behavior; Burch-

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Windrem did not provide her with any resources for abuse victims nor any safety

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plan. Id. at 5.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTIONS FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFF’S
PARTIAL MOTION TO DISMISS – 2

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During this time, her former partner and his new girlfriend began fabricating

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allegations against Plaintiff, and these allegations were taken seriously despite

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Plaintiff having previously reported her former partner’s abuse. Id. Her former

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partner reported Plaintiff for harassing him over Defendant’s messaging platform,

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Slack, conduct which Plaintiff represents was her attempt to ask him to leave her

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alone. Id. After her former partner reported this communication, WSU sanctioned

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her for a lack of professionalism, but provided her no explanation, guidelines, or

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definition of professionalism. Id. at 7.

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Plaintiff raised concerns with Burch-Windrem and Dr. Dawn DeWitt that her

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former partner had recruited students to follow her and report back to him, but that

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they dismissed her allegations without investigation. Id. at 8. WSU sanctioned her

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for violating a no-contact order, yet she had never signed a no-contact order, and

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WSU refused to assign her to a new “small group” when she had been placed in a

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small group that included her former partner’s new girlfriend. Id. at 9. At one point,

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Plaintiff contacted her former partner to ask him not to attend a student-planned ski

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trip and he recorded the conversation without her consent. Id. at 11. Plaintiff

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reported the unlawful recording to Student Affairs, though no action was taken. Id.

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Plaintiff was not provided with sufficient evidence to defend herself against

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allegations brought against her by her former partner’s new girlfriend. Id. at 13.

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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTIONS FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFF’S
PARTIAL MOTION TO DISMISS – 3

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Three of the five voting members of SEPAC1 should have recused themselves

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because they, respectively, (1) supervised her former partner’s new girlfriend’s

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cohort, (2) served as a leader for the Art and Practice of Medicine small group in

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which her former partner was a member, and (3) served as the faculty leader for a

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student organization for which her former partner and his new girlfriend were

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founding members and accompanied the two on a WSU-endorsed conference trip.

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Id. at 14. A fourth, non-voting SEPAC member served improperly as a both an

8

advocate for Plaintiff and a non-voting SEPAC member. Id. at 16.

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The appeals process from the SEPAC sanctions took four months and was

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highly stressful, causing her to fail two exams. Id. at 17. Professors did not give her

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the chance to remediate the exams she failed, in spite of WSU policy. Id.

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Defendant’s Office of Student Affairs, one hour before her exam, sent her an email

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about a required meeting later that day intentionally, so that she would become too

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anxious to pass the examination. Id. at 18.

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Plaintiff and her counsel asked the WSU to stop sending her emails, but

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Defendant continued to send her emails about courses and other matters. Id. at 19.

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Finally, after she filed a tort claim with Defendant’s office of risk management,

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20

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Plaintiff does not define “SEPAC” in her Complaint. See ECF No. 2-2. But
Defendant notes in the First Motion for Judgment on the Pleadings that the acronym
stands for the “Student Evaluation, Promotion and Awards Committee” of the
medical school. ECF No. 31 at 11.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTIONS FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFF’S
PARTIAL MOTION TO DISMISS – 4

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Burch-Windrem removed her from a group within Slack (a “Slack channel”) in a

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way that notified other students of her removal. Id. at 20.
LEGAL STANDARD

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4

A.

Motions for Judgment on the Pleadings

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Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a

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“short and plain statement of the claim showing that the pleader is entitled to relief.”

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The complaint need not provide “detailed factual allegations,” but it “requires more

8

than labels and conclusions, and a formulaic recitation of the elements of a cause of

9

action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiffs

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must plead enough facts “to ‘state a claim to relief that is plausible on its face.’”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

12

Though Iqbal announced the standard governing a Rule 12(b)(6) motion, the Ninth

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Circuit has “said that Rule 12(c) is ‘functionally identical’ to Rule 12(b)(6) and that

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‘the same standard of review’ applies to motions brought under either rule.” U.S. ex

15

rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir.

16

2011).

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“A claim has facial plausibility when the plaintiff pleads factual content that

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allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin

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to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTIONS FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFF’S
PARTIAL MOTION TO DISMISS – 5

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defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

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“[W]hether a complaint states a plausible claim for relief . . . [is] a context-specific

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task that requires the reviewing court to draw on its judicial experience and common

4

sense.” Id. District courts must accept as true all factual allegations in the complaint

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and construe the complaint, and resolve all doubts, in the light most favorable to the

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plaintiff. See id.; see also McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th

7

Cir. 1988).

8

B.

Motions for Voluntary Dismissal

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Under Federal Rule of Civil Procedure 41(a)(2), after a defendant has filed a

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responsive pleading, a plaintiff may request that a court dismiss an action “on terms

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that the court considers proper.” Unless the order states otherwise, a dismissal under

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Rule 41(a)(2) is without prejudice.
DISCUSSION

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14

A.

Private Rights of Action

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Defendant’s arguments for dismissing the state law causes of action largely

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center on the assertion that Plaintiff has not alleged a basis for a private right of

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action. See generally ECF Nos. 31, 41 (arguing the Court should dismiss Causes of

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Action One through Six and Thirteen through Nineteen for this reason). In response,

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Plaintiff states that she does not claim a private right of action is created by the

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statues, regulations, and constitutional provisions themselves, and argues that the
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTIONS FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFF’S
PARTIAL MOTION TO DISMISS – 6

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Washington Law Against Discrimination (WLAD), Wash. Rev. Code § 49.60.030,

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creates a private right of action. See ECF Nos. 53; 58. But Plaintiff only refers to

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WLAD in the “Jurisdiction and Venue” section and her Prayer for Relief. ECF No.

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2-2 at 3, 34. Defendant argues that this does not give it adequate notice of the claims

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against it. ECF No. 67 at 2.

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More importantly, the Washington Law Against Discrimination does not

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create private rights of action for each of the provisions under which Plaintiff brings

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her claims (i.e., WLAD does not create a private cause of action under the

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Washington State due process clause). Instead, WLAD creates a cause of action

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under the statute itself, pursuant to which Plaintiff can raise her claims.

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Plaintiff also makes a breach of implied contract argument that she asserts

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should save her due process claims. ECF No. 58 at 3–7. It is unclear whether she is

13

arguing that the Court should construe these Causes of Action as causes of action

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for breach of implied contract, or whether Defendant’s alleged breach of any

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implied contract constitutes the property interest of which Plaintiff was deprived of

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without due process. In any event, Plaintiff does not mention an implied contract in

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her Complaint. See ECF No. 2-2.

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Any implied contract does not create a due process private right of action.

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Washington State does not have an equivalent of 19 U.S.C. § 1983, so there is no

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private right of action for a state Due Process Clause claim. See Sys. Amusement
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTIONS FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFF’S
PARTIAL MOTION TO DISMISS – 7

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Inc. v. State, 500 P.2d 1253 (Wash. App. 1972) (corporations); Spurrell v. Bloch,

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701 P.2d 529 (Wash. App. 1985) (individuals); Brock v. Wash. State Dep’t of Corr.,

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No. C085167RBL, 2009 WL 3429096, at *9 (W.D. Wash. Oct. 20, 2009)

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(“Washington courts have consistently rejected invitations to establish a cause of

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action for damages based upon constitutional violations”); Stearns-Groseclose v.

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Chelan Cnty. Sheriff’s Dep’t, No. CV-04-0312-RHW, 2006 WL 195788, at *18 n.5

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(E.D. Wash. Jan. 17, 2006).

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The Court thus dismisses those state law claims for which there is no private

9

right of action under the statute pursuant to which they are brought—Causes of

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Action One through Six and Thirteen through Nineteen. But the Court will allow

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Plaintiff to amend her Complaint to state causes of action under WLAD and implied

12

breach of contract. Even though the deadline for amendment has passed, allowing

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Plaintiff to amend her complaint will not cause undue delay because it will not add

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new parties who would need to be served and file responsive pleadings nor will it

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substantially increase the amount of required discovery. Cf. ECF No. 51; see also

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McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996) (affirming a dismissal with

17

prejudice when Plaintiff failed to provide a “short and plain statement” in their third

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amended complaint but acknowledging that dismissal with prejudice “is a harsh

19

remedy,” so the court should consider “less drastic alternatives”).

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//
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTIONS FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFF’S
PARTIAL MOTION TO DISMISS – 8

Case 2:20-cv-00145-SMJ

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B.

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Remaining Causes of Action

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The Court dismisses Cause of Action Ten without prejudice because this is

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uncontested by the parties. ECF No. 76 at 2. The Court also dismisses Causes of

4

Action Eleven and Twenty without prejudice because it is not clear that Plaintiff

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could not remedy any deficiencies through amendment.

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1.

Cause of Action Eleven

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Defendant argues that Plaintiffs cause of action alleging violation of Title IX

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based on peer-on-peer harassment fails because Plaintiff affirmatively pleaded that

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she herself chose not to proceed with an investigation or notify student conduct

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officers. ECF No. 31 at 15–16.

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Title IX protects from sex discrimination individuals in programs that receive

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federal funding. 20 U.S.C. § 1681(a). Although there is a private right of action,

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Cannon v. Univ. of Chi., 441 U.S. 677, 709 (1979), damages are only available in

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certain situations, such as if an institution’s “official policy” discriminates on the

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basis of sex, or if “an official who at a minimum has authority to address the alleged

16

discrimination and to institute corrective measures on the recipient’s behalf has

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actual knowledge of discrimination in the recipient’s programs and fails adequately

18

to respond.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).

19

A student-on-student harassment claim requires Plaintiff to establish, as a

20

threshold matter, that Defendant received Federal financial assistance and that
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTIONS FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFF’S
PARTIAL MOTION TO DISMISS – 9

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Plaintiff experienced sex-based discrimination. Karasek v. Regents of the Univ. of

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Cal., 956 F.3d 1093, 1105 n.1 (9th Cir. 2020). After that, Plaintiff must establish

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five elements:

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5
6
7
8
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10
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[1] the school must have exercised substantial control over both the
harasser and the context in which the known harassment occurred.
[2] the plaintiff must have suffered harassment that is so severe,
pervasive, and objectively offensive that it can be said to deprive the
plaintiff of access to the educational opportunities or benefits
provided by the school.
[3] a school official with authority to address the alleged
discrimination and to institute corrective measures on the school's
behalf must have had actual knowledge of the harassment.
[4] the school must have acted with deliberate indifference to the
harassment, such that the school’s response to the harassment or lack
thereof was clearly unreasonable in light of the known
circumstances. This is a fairly high standard—a negligent, lazy, or
careless response will not suffice. Instead, the plaintiff must
demonstrate that the school's actions amounted to an official decision
not to remedy the discrimination.
[5] the school’s deliberate indifference must have subjected the
plaintiff to harassment. Put differently, the school must have caused
the plaintiff to undergo harassment or made the plaintiff liable or
vulnerable to it.

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15

Id. at 1105 (internal citations and alterations omitted).

16

Defendant argues Plaintiff fails to state a claim as to the fourth element; that

17

the school acted with deliberate indifference. ECF No. 31 at 17. Absent an

18

unreasonable response, courts should not “second-guess” a school’s decisions.

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Davis, 526 U.S. at 649. Defendant points to the fact that it provided her the option

20

to “present her concerns to the Office of Equal Opportunity in Pullman,” which
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTIONS FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFF’S
PARTIAL MOTION TO DISMISS – 10

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Plaintiff chose not to pursue. ECF No. 31 at 18 (citing ECF No. 2-2 at 15). And

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Defendant argues that Plaintiff does not assert that she reported her abuser’s

3

conduct to student conduct officers as she was told she could. ECF No. 2-2 at 11–

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12. As alleged, Defendant argues that it was not any failure, or “an official decision

5

not to remedy the discrimination” by Defendant that prevented Plaintiff from relief

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from her harassment. See Karasek, 956 F.3d at 1105; see also Gebser, 524 U.S. at

7

290. Instead, it asserts it was Plaintiff’s lack of exercise of her options that prevented

8

the resolution—or at least, prevented Defendant the opportunity to reach a

9

resolution.

10

On the other hand, Plaintiff argues that Defendant’s response to her reporting

11

the abuse “was a pointed attack.” ECF No. 58 at 9. She argues that the “few

12

measures [Defendant] did implement to protect Doe” were used “as a weapon

13

against her in future disciplinary proceedings.” Id. But Plaintiff does not support

14

this assertion with any factual examples. See id. She is likely referring to the

15

allegation in the Complaint that SEPAC later stated that she had violated a condition

16

of her probation by contacting her abuser. ECF No. 2-2 at 12.

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Plaintiff also argues that even though Defendant told her she could contact a

18

student conduct officer, she was not told what that meant. See ECF No. 2-2 at 11–

19

12. Defendant also allegedly did not tell her that she could contact law enforcement

20

or that her abuser recording her was a crime. See ECF No. 2-2 at 8–9. Defendant
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTIONS FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFF’S
PARTIAL MOTION TO DISMISS – 11

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allegedly refused to remove her from a school group of which her abuser’s new

2

girlfriend was also a member. ECF No. 2-2 at 9–10.

3

Finally, in her response, Plaintiff states that “[a]t no point in time has Plaintiff

4

indicated that Defendant is responsible for peer-on-peer violations” rather, that

5

“Defendant needs to be held liable for their gross mismanagement of a domestic

6

violence situation.” ECF No. 58 at 9. Defendant argues that that “mismanagement”

7

is not a viable Title IX theory of liability, and that Plaintiff has effectively conceded

8

this cause of action. ECF No. 70 at 9. It appears, though, that Plaintiff is merely

9

trying to convey, rather clumsily, that she is not arguing that Defendant caused the

10

abuse, rather that it knew about it and acted with deliberate indifference. See

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Karasek, 956 F.3d at 1105.

12

Altogether, Plaintiff has alleged no facts that show “deliberate indifference”

13

to Plaintiff’s abuse. Although Plaintiff may not be satisfied with the options

14

provided by Defendant, it did give her some. The Court therefore dismisses this

15

cause of action without prejudice.

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2.

Cause of Action Twenty – Tort of Outrage

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Plaintiff also alleges the common law tort of outrage. ECF No. 2-2 at 33– 34.

18

Defendant argues that Plaintiff’s allegations do not amount to “extreme and

19

outrageous conduct beyond all bounds of human decency. ECF No. 41 at 16.

20
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTIONS FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFF’S
PARTIAL MOTION TO DISMISS – 12

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Moreover, “[a]t worst, [Plaintiff’s allegations merely] reflect inaction, or that the

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College simply did not believe her.” Id.

3

The tort of outrage requires Plaintiff to show: (1) extreme and outrageous

4

conduct; (2) intentional or reckless infliction of emotional distress; and (3) that

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Plaintiff actually suffered severe emotional distress as a result. Kloepfel v. Bokor,

6

66 P.3d 630, 632 (Wash. 2003). Juries generally decide whether conduct is

7

“extreme and outrageous,” but courts act as gatekeepers. Christian v. Tohmeh, 366

8

P.3d 16, 30 (Wash. App. 2015), review denied, 377 P.3d 744 (Wash. 2016). “[M]ere

9

insults, indignities, threats, annoyances, petty oppressions, or other trivialities” do

10

not suffice. Kloepfel, 66 P.3d at 632. Instead, the defendant’s conduct must be “so

11

outrageous in character, so extreme in degree, as to go beyond all possible bounds

12

of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

13

community.” Id. (emphasis omitted).

14

Courts have found that actions that are not public, egregious, or humiliating

15

is less likely to constitute outrageous conduct. See, e.g., Richards v. Healthcare Res.

16

Grp., Inc., 131 F. Supp 3d 1063, 1075 (E.D. Wash. 2015) (reasoning that conduct

17

was not extreme and outrageous where defendant allegedly forged plaintiff’s initials

18

on a performance improvement plan and then used the plan as a basis to fire

19

plaintiff); Dicomes v. State, 782 P.2d 1002 (Wash. 1989) (determining privately

20

discharging plaintiff and responding to media inquiries about her discharge did not
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTIONS FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFF’S
PARTIAL MOTION TO DISMISS – 13

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constitute extreme and outrageous conduct). But courts have adopted factors to

2

determine if conduct is sufficiently extreme and outrageous to result in liability

3

include:

8

(a) the position occupied by the defendant; (b) whether plaintiff was
peculiarly susceptible to emotional distress and if defendant knew this
fact; (c) whether defendant’s conduct may have been privileged under
the circumstances; (d) the degree of emotional distress cause by a party
must be server as opposed to constituting mere annoyance,
inconvenience or the embarrassment which normally occur in a
confrontation of the parties; and, (e) the actor must be aware that there
is a high probability that his conduct will cause severe emotional
distress and he must proceed in a conscious disregard of it.

9

Birklid v. The Boeing Co., 904 P.2d 278, 286 (Wash. 1995) (internal quotations

10

omitted). Plaintiff argues that she was “peculiarly susceptible,” and Defendant was

11

aware of her particular sensitivity. ECF No. 53 at 7–9.

4
5
6
7

12

Defendants argue that Plaintiff alleges she was placed on leave only after

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professional conversations, investigations, letters, and appeals. ECF No. 41 at 18.

14

Defendant first placed Plaintiff on probation and then administrative leave and

15

heard “many” appeals. Id. It argues that does not rise to extreme and outrageous

16

conduct as a matter of law. Id. Plaintiff responds that her disabilities—anxiety,

17

depression, and PTSD—and her treatment for them were documented with

18

Defendant when it took its actions. ECF No. 53 at 8–9; see also ECF No. 2-2 at 4–

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5. She had just left an abusive relationship and was forced to interact with her abuser

20

and his new partner at school, which Defendant allegedly knew. See ECF No. 2-2
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTIONS FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFF’S
PARTIAL MOTION TO DISMISS – 14

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at 4, 8–9. Plaintiff told several members of the college staff, including Burch-

2

Windrem and Dr. Dewitt, “about how much of a struggle she was having

3

maintaining her equilibrium.” ECF No. 53 at 9; see also ECF No. 2-2 at 5, 8. Despite

4

its awareness of Plaintiff’s particular sensitivities, she argues, Defendant denied

5

every request for help to lower this stress.

6

Unlike in Richards and Dicomes, Plaintiff has alleged a particular sensitivity

7

based on her mental health diagnoses, as well as her experience in an abusive

8

relationship. ECF No. 2-2. She alleges that Defendant was aware of these

9

sensitivities. Id. Defendant allegedly denied Plaintiff’s requests for relief and help.

10

Id. Rather than inaction, those denials constitute affirmative actions that allegedly

11

caused Plaintiff severe emotional distress. And unlike in Richards and Dicomes,

12

which involved singular nefarious actions by employers, Defendant’s alleged

13

actions constituted an ongoing pattern of potentially distressing actions, such as the

14

handling of the student conduct appeals process, refusing to remove Plaintiff from

15

a group with her abuser’s new girlfriend, and frequently contacting Plaintiff. See

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ECF No. 2-2. Finally, by publicly removing Plaintiff from the Slack channel could

17

constitute a public, egregious, and humiliating action, making Defendant’s conduct

18

more outrageous than in Richards. See ECF No. 2-2 at 20–21.

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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTIONS FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFF’S
PARTIAL MOTION TO DISMISS – 15

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While Plaintiff’s Complaint does not currently state a claim for tort of

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outrage, an amendment might remedy that issue. So, the Court dismisses this cause

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of action without prejudice.

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Accordingly, IT IS HEREBY ORDERED:

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1.

is GRANTED IN PART AND DENIED IN PART.

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2.

3.

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Causes of Action One through Six and Thirteen through Nineteen are
DISMISSED WITH PREJUDICE.

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Plaintiff’s Opposed Partial Motion to Dismiss Without Prejudice, ECF
No. 74, is GRANTED IN PART AND DENIED IN PART.

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Defendant’s Second Motion for Judgment on the Pleadings, ECF No.
41, is GRANTED IN PART AND DENIED IN PART.

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Defendant’s First Motion for Judgment on the Pleadings, ECF No. 31,

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Causes of Action Ten, Eleven, and Twenty are DISMISSED
WITHOUT PREJUDICE.

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6.

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IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and

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Plaintiff may amend her Complaint by no later than March 19, 2021.

provide copies to all counsel.
DATED this 17th day of February 2021.
___________________________
SALVADOR MENDOZA, JR.
United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTIONS FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFF’S
PARTIAL MOTION TO DISMISS – 16