Farley et al v. New River Community and Technical College et al

Filing 20

MEMORANDUM OPINION AND ORDER: Wherefore, after thorough review and careful consideration, the Court ORDERS that New River Community and Technical College's 6 MOTION to Dismiss be GRANTED. Signed by Judge Irene C. Berger on 2/1/2017. (cc: attys; any unrepresented party) (msa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

REBECCA FARLEY
and KEVIN FARLEY,
Plaintiffs,
v.

CIVIL ACTION NO. 5:16-cv-09442

NEW RIVER COMMUNITY AND
TECHNICAL COLLEGE, and
MICHAEL S. CURRY,
Defendants.

MEMORANDUM OPINION AND ORDER

The Court has reviewed New River Community and Technical College’s Motion to Dismiss
(Document 6) and Memorandum of Law in Support (Document 5), the Plaintiffs’ Response to New
River Community and Technical College’s Motion to Dismiss with Incorporated Memorandum of
Law (Document 12), and New River Community and Technical College’s Reply to Plaintiffs’
Response to Its Motion to Dismiss (Document 13). The Court has also reviewed all attached
exhibits and the Plaintiff’s Complaint (Document 1-1). For the reasons stated herein, the Court
finds that the motion should be granted.
FACTUAL AND PROCEDURAL BACKGROUND
The Plaintiffs, Rebecca and Kevin Farley, initiated this suit in the Circuit Court of Raleigh
County, West Virginia, on September 2, 2016.

They named New River Community and

Technical College (“New River”) and Michael S. Curry as defendants. New River removed the

matter to this Court on October 10, 2016, citing federal question jurisdiction. The Plaintiffs allege
that Rebecca Farley was a student at New River from the time she enrolled in January of 2012
until she graduated in May of 2015. In the fall semester of 2012, Ms. Farley took two classes
from the Defendant, Professor Michael Curry. While taking his classes, Ms. Farley exchanged
text messages with Professor Curry, but alleges that the text messages strictly concerned course
related matters.
At some point during the month of December 2012, the Plaintiffs allege that Professor
Curry sent an inappropriate email to Ms. Farley containing a picture of “his erect penis.” (Pls.’
Complaint, at ¶29.) On or about December 21, 2012, the Plaintiffs allege that Professor Curry
also sent an inappropriate text message to Ms. Farley’s phone containing “a picture of [his] naked
and hairy legs.” (Id. at ¶17-20.) Ms. Farley’s husband saw the picture before Ms. Farley did,
and, suspecting that Ms. Farley was having an affair, confronted her about the message. Ms.
Farley denied ever engaging in any type of inappropriate relationship with Professor Curry. Mr.
Farley alleges that he promptly reported the conduct to New River, but that New River refused to
investigate his complaint because he was not a student. Ms. Farley also alleges that she then
complained to the school about Professor Curry’s conduct, but states that she “did not press her
complaint, however, because Professor Curry was teaching a course the following semester . . .
that was a required course for Rebecca’s major,” and she “feared that pressing her complaint . . .
would harm her ability to succeed in Professor Curry’s class.” (Id. at ¶33-35.) Ms. Farley alleges
that, because she did not press her complaint, New River did not appropriately investigate it.
After the spring semester of 2013, Ms. Farley had no more classes with Professor Curry.

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On September 6, 2014, Ms. Farley went to New River’s Raleigh County campus. That
evening, at approximately 11:00 p.m., Professor Curry allegedly sent another text to Ms. Farley’s
phone. Mr. Farley noticed the text before Ms. Farley, and again became very angry. Mr. Farley
alleges that he began to respond to Professor Curry’s texts to ensure that it was him. Mr. Farley
alleges that he woke Ms. Farley up to show her the texts, and that the two began to continue
exchanging texts “in order to further draw out Professor Curry.” (Id. at ¶49.) The Plaintiffs
allege that Professor Curry sent texts to Ms. Farley’s phone that expressed how he was aroused by
Ms. Farley and how he wanted her to “jump [his] bones,” and that Professor Curry again sent a
picture to Ms. Farley’s phone “contain[ing] a picture of his erect penis.”

(Id. at ¶44-45.)

Professor Curry also allegedly sent text messages to Ms. Farley “instructing her to ‘Take off those
shorts.’” (Id. at ¶50.)
On the following Monday, September 8, 2014, Ms. Farley complained to New River about
Professor Curry’s messages, and New River initiated an investigation into Professor Curry’s
reported conduct. However, Ms. Farley asserts that in conducting their investigation, New River
only interviewed her, and that questions posed to her attempted to minimize the alleged incident
and seek out whether she had incidents similar to this in her past. Professor Curry resigned from
New River in October of 2014. Ms. Farley alleges that, as a result of Professor Curry’s conduct,
she lost her passion for school, her attendance fell, and her grades slipped. She also alleges that
New River offered no assistance to help with what Professor Curry had done to her, and that she
had to endure rumors and speculation throughout campus that she engaged in inappropriate
conduct with Professor Curry. She alleges that these circumstances took away her drive to attend
college and led her to look for reasons to skip class and not be on campus. Mr. and Mrs. Farley

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assert causes of action of sexual harassment and discrimination by both Professor Curry and New
River in violation of Title IX.

The Plaintiffs also assert a claim of reckless infliction of emotional

distress against Professor Curry himself.
New River filed a motion to dismiss the claims against it on October 12, 2016. The
Plaintiffs filed a response in opposition on November 7, 2016 and New River filed its reply on
November 11, 2016. The motion is fully briefed and ripe for review.
STANDARD OF REVIEW
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or
pleading. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). Additionally, allegations “must be simple, concise, and direct.” Fed. R. Civ.
P. 8(d)(1).

“[T]he pleading standard Rule 8 announces does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly,
550 U.S. 544, 555 (2007)). In other words, “a complaint must contain “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly,
550 U.S. at 555. Moreover, “a complaint [will not] suffice if it tenders naked assertions devoid
of further factual enhancements.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557)
(internal quotation marks omitted).

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The Court must “accept as true all of the factual allegations contained in the complaint.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual
inferences from those facts in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231,
244 (4th Cir. 1999). However, statements of bare legal conclusions “are not entitled to the
assumption of truth” and are insufficient to state a claim. Iqbal, 556 U.S. at 679. Furthermore,
the court need not “accept as true unwarranted inferences, unreasonable conclusions, or
arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice . . . [because courts] ‘are not bound to accept as true a legal conclusion couched as
a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). In other words, this “plausibility standard requires a plaintiff
to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.’” Francis, 588
F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the complaint, “articulate
facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling him to relief.”
Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557). “Determining whether a complaint
states [on its face] a plausible claim for relief [which can survive a motion to dismiss] will . . . be
a context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.

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DISCUSSION
New River seeks dismissal of the Plaintiffs’ Title IX claim. At the outset, the Court notes
that the Plaintiffs and the Defendant agree that Mr. Farley has no standing to assert Title IX claims
against New River because he was not a student at New River. Both parties further agree that the
Plaintiffs cannot recover damages on any alleged harassment that occurred in 2012 because the
statute of limitations has lapsed. The Court agrees and finds that any Title IX claims asserted by
Mr. Farley must be dismissed because at no time was he a student at New River. Further, pursuant
to W.Va. Code § 55-2-12, the statute of limitations for Title IX claims is two years. Accordingly,
any claims for recovery based on alleged harassment that occurred in 2012 should be dismissed.
Title IX provides that “[n]o person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination under
any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681.
“To establish a Title IX claim on the basis of sexual harassment, a plaintiff must show that (1) she
was a student at an educational institution receiving federal funds, (2) she was subjected to
harassment based on her sex, (3) the harassment was sufficiently severe or pervasive to create a
hostile (or abusive) environment in an educational program or activity, and (4) there is a basis for
imputing liability to the institution.” Jennings v. Univ. of N. Carolina, 482 F.3d 686, 695 (4th
Cir. 2007).
A. Severe and Pervasive Harassment
Conceding that Ms. Farley has satisfied the first two elements of a Title IX claim, New
River first argues that Ms. Farley’s Title IX claims must fail because she has not pled sufficient
facts to establish that Professor Curry’s alleged harassment was severe or pervasive. New River

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argues that the Plaintiffs only point to two occasions of alleged harassment over a period of three
and a half years, and that the only occurrence of alleged harassment came in the form of text
messages. New River further contends that Ms. Farley did not have any classes with Professor
Curry at the time she received the text messages in December 2014, and that when those messages
were received, Ms. Farley and her husband sent responses to Professor Curry that led him to
believe the exchange was welcome and consensual.

Therefore, New River argues that the

Plaintiffs have not proven that the alleged harassment was severe or pervasive enough to constitute
a Title IX violation.
The Plaintiffs argue that the text messages sent to Ms. Farley were more than merely
sexually suggestive, but were obscene, including an alleged close-up picture of Professor Curry’s
genitalia in an aroused state. Further, the Plaintiffs contend that Professor Curry’s texts were
predatory in nature when considered in conjunction with his position as a professor at the time
they were sent. Because of Professor Curry’s position of authority and trust, the Plaintiffs argue
that the messages sent to Ms. Farley were indeed severe and pervasive enough to satisfy a Title IX
claim.
Concerning the severity element of a Title IX claim, the Jennings Court stated as follows:
Harassment reaches the sufficiently severe or pervasive level when it creates an
environment that a reasonable person would find hostile or abusive and that the
victim herself subjectively perceives to be abusive. Whether gender-oriented
harassment amounts to actionable (severe or pervasive) discrimination depends on
a constellation of surrounding circumstances, expectations, and relationships. All
the circumstances are examined, including the positions and ages of the harasser
and victim, whether the harassment was frequent, severe, humiliating, or physically
threatening, and whether it effectively deprived the victim of educational
opportunities or benefits.
Jennings, 482 F.3d at 696 (internal quotations emitted) (emphasis added).

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Ms. Farley alleged in her complaint that she received a string of lewd text messages from
Professor Curry, including inappropriate pictures and statements clearly insinuating that Professor
Curry wished to engage in a sexual relationship with Ms. Farley. While Ms. Farley was not in
Professor Curry’s class at the time, Professor Curry was still a professor at New River when he
sent the messages, and still maintained a position of power and authority. While in this position,
Ms. Farley alleges that Professor Curry said things like “Saw you as I was leaving. Wanted you
badly,” “Want you to jump my bones,” and “You smiled and dismissed my erection.” (Pls.’
Complaint, Ex. 1.) Ms. Farley also alleges that Professor Curry sent a picture of “his erect penis”
in this string of text messages (Id. at ¶45.), that she subjectively perceived this to be abusive and
physically threatening, and that she felt feelings of humiliation and discomfort at receiving these
messages as a married woman.
Given Professor Curry’s position as her past professor and a current educational employee
at New River when the text messages were sent, and accepting as true Ms. Farley’s allegations
regarding the content of the messages, the Court assumes, without finding, for purposes of this
ruling, the facts alleged by Ms. Farley are sufficient to support severe and pervasive acts for
purpose of a Title IX claim, regardless of the Plaintiffs’ responses to the messages.1
B. Hostile or Abusive Environment
Second, New River seeks to dismiss Ms. Farley’s Title IX claim on the ground that she has
not stated facts sufficient to show she was deprived of any educational benefit at New River. New
River argues that Ms. Farley has not alleged any facts in her complaint that she was discouraged
from pursuing a complaint against Professor Curry, and that she has not alleged that New River

1 The Court notes that, even if responses from Mr. and Ms. Farley may partially mitigate the continued inappropriate
conduct by Professor Curry, Professor Curry himself initiated the conversation and sent the first message.

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retaliated against her in any way after she lodged a formal complaint. New River also contends
that Ms. Farley was not deprived of any educational benefit because she did not have any class
with Professor Curry at the time the alleged harassment occurred in 2014, Professor Curry resigned
from New River shortly after the alleged incident, and Ms. Farley graduated in May of 2015 with
her associate’s degree.
Ms. Farley counters that up until the alleged incident with Professor Curry in 2014, she
earned excellent grades and her attendance was stellar. However, after the alleged incident, Ms.
Farley’s grades and attendance both suffered.

Ms. Farley further asserts that even though

Professor Curry resigned from the school once an investigation was initiated, he still managed “to
ruin the last year of her academic career” due to the interviewing process she was forced to undergo
during the college’s investigation and because of the rumors she was forced to endure while she
finished her degree, hardships she otherwise would not have had to endure in completing her
education. The Plaintiffs contest that these allegations sufficiently state that Ms. Farley was
deprived of educational benefits and therefore discriminated against under Title IX.
In proving actionable discrimination in a Title IX claim, “a plaintiff must establish sexual
harassment of students so severe, pervasive, and objectively offensive, and that so undermines and
detracts from the victims’ educational experience, that the victim-students are effectively denied
equal access to an institution’s resources and opportunities.” Davis v. Monroe Cnty. Bd. of Educ.,
526 U.S. 629, 651 (1999). Further, “[t]he relationship between the harasser and the victim
necessarily affects the extent to which the misconduct can be said to breach Title IX’s guarantee
of equal access to educational benefits and to have a systematic effect on a program or activity.”
Id. at 653. The Fourth Circuit explained in Jennings that, based on the Supreme Court’s holding

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in Davis, a victim’s sexual harassment can be said to have denied the victim equal access to
educational opportunities or benefits when, among other things, the harassment “has ‘a concrete
negative effect on [the victim’s] ability’ to participate in an educational program or activity.”
Jennings, 428 F.3d at 699 (internal citations omitted).
In Jennings, the Fourth Circuit found that the plaintiff had provided sufficient evidence to
show that she suffered severe and pervasive sexual harassment in a manner that had a concrete
negative effect on her ability to participate in the soccer program at her university. Id. The
plaintiff, a member of the women’s soccer team at the defendant university, presented evidence
that the soccer coach regularly brought up and discussed inappropriate details of the players’ sex
lives in a manner that created a “sexually charged atmosphere” around the team. Id. at 697-99.
The court noted that the plaintiff satisfied the Davis standard because she was not merely subjected
to one encounter of sexual comments by the soccer coach, but that the coach had created an
“atmosphere” under which the plaintiff and others on the team “had to endure sexual harassment
in order to play.” Id. at 700. The court further noted that the plaintiff had suffered two direct
instances of harassment by the coach, one of which included an encounter in a hotel room wherein
the coach asked her personal questions about her sex life with no other players around. Id. at 693.
The plaintiff testified that the hostile atmosphere created by her soccer coach’s constant discussion
of the players’ personal sex lives made her feel humiliated, anxious, and uncomfortable, which
negatively affected her performance on the soccer team and in the classroom. Id. at 699. Thus,
the court found that the coach’s persistent talk about players’ sex lives and the direct targeting of
the plaintiff on two occasions created a hostile environment that lead to a drop in the plaintiff’s

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academic and athletic performance, thereby having a concrete, negative effect on her ability to
participate in an educational program or activity. Id. at 700.
Here, the Court finds that Ms. Farley has not alleged sufficient facts in her complaint to
survive a motion to dismiss under this prong of the Jennings elements. Ms. Farley’s complaint
alleges that on one actionable occasion Professor Curry sent her text messages clearly showing
that he sought to engage in a sexual relationship with her while she was a student at New River.
(Pls.’ Complaint at ¶44-46.) While there can be no doubt that the messages Ms. Farley received
were objectively offensive and clearly inappropriate, there are no allegations that Ms. Farley was
forced to endure sexual harassment on a regular basis while earning her degree. Ms. Farley
admitted in her complaint that Professor Curry was not her professor at the time he sent the text
messages, and that he resigned from New River shortly after the investigation began. Thus, unlike
the plaintiff in Jennings, Ms. Farley was not required to have continued contact with Professor
Curry, was not subject to his leadership after the alleged incident occurred, and does not claim that
any similar actions occurred after the conduct alleged in her complaint.
Ms. Farley does allege that she suffered embarrassment, stress, and anxiety due to the
rumors on campus surrounding her allegations, and that her grades fell because of this stress and
embarrassment. However, stress and embarrassment resulting from rumors and falsehoods is not
the same as fear or continued suffering resulting from a persistent atmosphere of sexual harassment
necessarily endured in order to finish school. The latter factual scenario is not alleged by Ms.
Farley. Further, the Supreme Court in Davis failed to find that “a mere ‘decline in grades is
enough to survive’ a motion to dismiss.” Davis, 526 U.S. at 652. Given the absence of allegations
in Ms. Farley’s complaint supporting an atmosphere of sexual harassment that she had to endure

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to earn her degree, the Court finds that she has not alleged sufficient facts to show that the alleged
conduct created a hostile environment such that she was denied equal access to her institution’s
resources and opportunities. See, DeCecco v. Univ. of S.C., 918 F. Supp. 2d 471, 479 (D.S.C.
2013) (holding that one instance of alleged harassment wherein a soccer coach held a meeting with
a player behind a locked door and allegedly toucher her thigh was not severe or pervasive under
the Davis standard to create a hostile environment that denied plaintiff access to educational
benefits or opportunities); Doe v. Georgetown Cty. Sch. Dist., No. 2:14-CV-01873-DCN, 2015
WL 5923610, at *1 (D.S.C. Oct. 9, 2015) (holding that one instance of alleged sex-based
inappropriate comment by cheerleading coach to a student cheerleader was not severe or pervasive
enough to effectively deny the student equal access to an institution’s resources and opportunities
and thus did not constitute harassment under Title IX).
The Court finds that the Plaintiff has not pled sufficient facts (when accepted as true) to
support a finding that the alleged harassment she suffered was such that it deprived her of equal
access to the institution’s educational resources or opportunities.

In other words, the Court

grants New River’s motion to dismiss inasmuch as the Plaintiff has not sufficiently alleged that
the harassment of which she complains was sufficiently severe or pervasive to create a hostile or
abusive environment in an educational program or activity. As a result, the Court need not
address the Defendant’s arguments on institutional liability.
CONCLUSION
WHEREFORE, after thorough review and careful consideration, the Court ORDERS that
New River Community and Technical College’s Motion to Dismiss (Document 6) be GRANTED.

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The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:

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February 1, 2017