442 F.Supp.3d 1054
N.D. Ill.2020Background
- Plaintiff Erika Pogorzelska, a VanderCook student, alleges she was sexually assaulted and battered by classmate Eric Ballenger at an off-campus party on August 25, 2017 and reported the incident to police and VanderCook's Title IX representative within days.
- VanderCook promptly opened an investigation, interviewed witnesses, issued a No Contact Order, and met with both parties; investigators later concluded there was not a preponderance of evidence but nevertheless imposed sanctions (described in the complaint as “guilty but not guilty”).
- Plaintiff alleges VanderCook repeatedly failed to enforce the No Contact Order, denied requested accommodations (e.g., independent study), and did not adequately address ongoing harassment and retaliatory treatment by school officials and other students.
- Plaintiff experienced psychological injury, withdrew from VanderCook on December 11, 2017, and filed suit alleging: (I) Title IX deliberate indifference; (II) Title IX retaliation; (III) assault (state claim) against Ballenger; and (IV) battery (state claim) against Ballenger.
- VanderCook moved to dismiss under Rule 12(b)(6); Ballenger moved to dismiss the state claims under Rule 12(b)(1) for lack of supplemental jurisdiction.
- Court held that the deliberate-indifference Title IX claim may proceed (denying VanderCook’s motion in part), dismissed the Title IX retaliation claim without prejudice, and declined to dismiss Ballenger on supplemental-jurisdiction grounds (denying Ballenger’s motion).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Title IX deliberate indifference | VanderCook’s inadequate investigation, failure to enforce No Contact Order, and refusal of accommodations rendered its response clearly unreasonable and deprived Plaintiff of access to education | VanderCook argued its response was prompt, investigated witnesses, issued sanctions and thus cannot be deemed deliberately indifferent as a matter of law | Court: Denied dismissal as to deliberate indifference — allegations that VanderCook found Ballenger “guilty but not guilty” yet failed to enforce protections plausibly state deliberate indifference |
| Title IX retaliation | Reporting the assault triggered hostile treatment, disciplinary penalization, and withholding of accommodations — constituting materially adverse acts caused by protected activity | VanderCook contended Plaintiff failed to allege a retaliatory motive or the required but-for causal connection | Court: Dismissed retaliation claim without prejudice for failure to plead retaliatory motive/but-for causation |
| Supplemental jurisdiction over assault/battery claims against Ballenger | State tort claims arise from the same operative facts as the Title IX claims (assault and the institutional response) | Ballenger sought dismissal under Rule 12(b)(1) arguing lack of sufficient nexus to federal claims | Court: Denied Ballenger’s motion — state torts share a sufficient nucleus of operative facts with Title IX claims to support supplemental jurisdiction |
Key Cases Cited
- Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (establishes deliberate indifference standard for student-on-student harassment under Title IX)
- Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (retaliation for complaints of sex discrimination actionable under Title IX)
- Cannon v. Univ. of Chi., 441 U.S. 677 (recognizes private right of action under Title IX)
- Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60 (Title IX suits may seek damages)
- Nassar v. Univ. of Tex. Sw. Med. Ctr., 570 U.S. 337 (but-for causation standard for retaliation claims)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard: no mere conclusory recitals)
- Hansen v. Bd. of Trustees of Hamilton Se. Sch. Corp., 551 F.3d 599 (supplemental jurisdiction appropriate where state and federal claims derive from same operative facts)
- Ammerman v. Sween, 54 F.3d 423 (factual overlap between harassment extent and remedial response supports supplemental jurisdiction)
- Burton v. Bd. of Regents of Univ. of Wisconsin Sys., 851 F.3d 690 (elements required for Title IX retaliation claims)