ORDER
Plaintiff Jasmin Hernandez (“Plaintiff’), a former student at Baylor University who was sexually assaulted by a fellow student during her freshman year, brings this suit against Defendants Baylor University (“Baylor”), (Second Am. Compl., Dkt. 53, ¶ 1); former Baylor Head Football Coach Art Briles (“Defendant Briles”), (id. ¶2); and former Baylor Athletic Director Ian McCaw (“Defendant McCaw”), (id. 113). Plaintiff seeks to hold Baylor liable under Title IX of the Education Amendments Act of 1972 (“Title IX”), which 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(a); (Second Am. Compl., Dkt. 53, at 15). She also seeks to hold Baylor, Defendant Briles, and Defendant McCaw liable under the common law doctrines of negligence and intentional infliction of emotional distress. (Id. at 18,22, 24).
At this stage of litigation, the Court considers only whether Plaintiffs Complaint contains plausible factual allegations
I. STANDARD OF REVIEW
Pursuant to Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but must provide the [plaintiffs] grounds for entitlement to relief— including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.’ ” Cuvillier v. Taylor,
II. FACTUAL BACKGROUND
Before proceeding further, the Court considers Plaintiffs Request for Judicial Notice. (Dkt. 81). Plaintiff requests that the Court, pursuant to Federal Rule of Evidence 201, take judicial notice of the allegations contained in (1) the Complaint and Jury Demand in Elizabeth Doe v. Baylor University, No. 6:17-CV-27 (W.D. Tex.); and (2) the Original Answer filed by Defendants Cary Gray, Ron Murff, and David Harper in Colin Shillinglaw v. Baylor University et al., No. DC-17-01225 (116th Dist. Ct., Dallas County).
Federal Rule of Evidence 201 allows a court to take judicial notice of an “adjudicative fact” if the fact is not subject to reasonable dispute in that' it is (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resort to resources whose accuracy cannot be questioned. Taylor v. Charter Med. Corp.,
Here, Plaintiff asks the Court to take judicial notice of more than 100 pages of documents,, consisting primarily of allegations made by other parties in other lawsuits. Those allegations are not “adjudicative facts” within the meaning of Federal Rule of Evidence 201, nor are they generally known or beyond reasonable dispute. Accordingly, these facts are not appropriate for-proof by judicial notice. This position is consistent with the law governing courts’ consideration of motions to dismiss. Dorsey v. Portfolio Equities, Inc.,
Having denied Plaintiffs request to take judicial notice of the material described above, the Court proceeds to a summary of
A. Allegations Regarding Plaintiffs Assault and Reporting Experience
Plaintiff enrolled at Baylor in the fall of 2011. (Second Am. Compl., Dkt. 53, ¶ 53). On April 15, 2012, she was sexually assaulted by Tevin Elliott (“Elliott”) while attending an off-campus party. (Id. ¶ 55). At the time, Elliott was. a player on the Baylor football team. (Id. ¶27). Plaintiff immediately reported the assault to the Waco Police Department. (Id. ¶ 57).
Two days after the assault, Plaintiffs mother reported the incident to the Baylor Counseling Center ahd Baylor Student Health Center. (Id. ¶¶ 59, 60). Staff at both service providers allegedly responded that Plaintiff could not receive treatment because the . Centers were “too busy” or “full.” (Id.). A few days later, Baylor’s Academic Services Department also allegedly “refused to provide .any accommodations.” (Id. 1161). During the relevant time period, Baylor did not have a dedicated Title IX coordinator. (Id. ¶ 68).
Plaintiffs mother subsequently called Defendant Briles to inform him of the assault; she allegedly received a return phone call from a member of Defendant Briles’s staff informing her that the office had “heard of the allegations” and was “looking into it.” (Id. ¶ 62). Plaintiffs father also allegedly called Defendant Briles’s office “several times,” but never heard back. (Id. 1Í 63).
Despite these reports, Plaintiff alleges, Baylor “did not take any action whatsoever to investigate [her] claim.” (Id. ¶ 64). Elliott was “allowed to remain on campus” until transferring to another school during the summer of 2012, thereby subjecting Plaintiff to additional harassment by “making her vulnerable to an encounter with Elliott ... at any time at any place on campus.” (Id. ¶ 65). As a result, she alleges, she was “deprived of a multitude of educational opportunities and/or benefits, including but not limited to [a] significant drop in her grades, [b]eing placed on' academic probation as a result of her drop in grades; [a]voidance of social activities on campus; [a]voidance of certain areas of campus; [a] loss of her academic scholarship[ ]; and Withdrawal from Baylor altogether.”' (Id. ¶ 75).
B. Allegations Regarding Baylor’s General Handling of Reports of Sexual Assault
Plaintiffs Complaint relies, in substantial part, on findings made by the law firm Pepper Hamilton LLP as part of an investigation the firm conducted into Baylor’s handling of sexual assault allegations between 2012 and 2016. (Id. ¶¶ 44-46). The “findings of fact” released by the firm in May 2016 concluded that “the University’s student conduct processes were wholly inadequate to consistently provide a prompt and equitable response under Title IX.” (Id. ¶ 47-48). “Baylor did not pursue [administrative] hearings in the majority of reports [of sexual assault],” the report found, leading the university to “fail[ ] to take action to identify and, as needed, eliminate a potential hostile environment, prevent its recurrence, or address any effects on the individual complainant or broader campus community.” (Id. If 51). The investigations the university did conduct were “wholly inadequate to fairly and reliably evaluate whether sexual violence had occurred,” and “[a]dministrators engaged in conduct that could be perceived as victim-blaming.” (Id.).
According to Plaintiff, Baylor has failed to address and actively concealed sexual violence committed by its football players for several years. (Id. ¶ 33).
Pepper Hamilton documented “specific failings within both the football program and Athletics Department leadership, including a failure to identify and respond to a pattern of sexual violence by a football player, to take action in response to reports of a sexual assault by multiple football players, and to take action in response to a report of dating violence.” (Id. ¶49). Specifically, football coaches or staff allegedly were repeatedly and directly informed of sexual assaults committed by football players and did not report the misconduct {Id. ¶ 52). Athletic staff instead “conducted their own untrained internal inquiries, outside of policy, which improperly discredited complainants and denied them the right to a fair, impartial, and informed investigation.” {Id. ¶ 52). Those reports “were not shared outside of [the athletics department],” and “[f]óotball coaches and staff took affirmative steps to maintain internal control over discipline of players and to actively divert cases from the student conduct or criminal processes.” {Id.). The university therefore “missed critical opportunities to impose appropriate disciplinary action that would have removed offenders from campus and possibly precluded future acts of sexual violence against Baylor students.” {Id.). Moreover, the situation gave rise to an “overall perception that football was above the rules and that there was no culture of accountability for misconduct.” {Id.).
A former member of Baylor’s advisory board allegedly stated that “Baylor officials have known about the larger problem of sexual assaults committed by student-athletes for several years.” {Id. ¶ 31). According to that individual, male student-athletes at Baylor are responsible for between 25 percent and 50 percent of all reported assaults that occur at the university. {Id. ¶ 32).
D. Allegations Regarding Defendants’ Knowledge of Prior Reports Involving Tevin Elliott
At some point prior to Plaintiffs sexual assault, an unidentified fémale student ah legedly'informed Baylor Chief Judicial 'Officer Bethany McCraw (“McCraw”) that she had been sexually assaulted by Tevin Elliott (“Elliott”). (Id. ¶ 27). McCraw allegedly told the unidentified student that she was the sixth student to report a sexual assault by Elliott, that Defendant Briles was aware of the reports, and that “there was nothing the school could do” for the student absent a “court determination” that Elliott had indeed assaulted her. (Id. ¶28). Separately, McCraw, Baylor, and Defendant Briles were also allegedly aware that Elliott was cited for misdemeanor sexual assault in Novémber 2011. (Id. ¶ 30).
III. TITLE IX
Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in all federally-funded educational programs. 20 U.S.C. § 1681(a). Specifically, it provides:
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 education program" or ■ activity receiving Federal financial assistance.
Id. When Congress first passed Title IX more than forty years ago, it had two related objectives: first, Congress wanted to prevent federal funds from being used to support discriminatory practices; second, it wanted to provide individuals “effective protection against those practices.”
Title IX is enforceable through an individual’s private right of action and allows for the recovery of damages. Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ.,
Title IX claims are commonly asserted in response to a student’s sexual harassment or assault. The Supreme Court has held that sexual harassment within a school or school program is a form of sex discrimination when the harassment is so severe, pervasive, and objectively offensive that it deprives the victim of educational opportunities or benefits provided by the school. Davis,
In the instant case, Plaintiff alleges two types of Title IX claims. First, Plaintiff alleges what might be considered a “traditional” claim for sexual assault under Title IX. She argues that she was sexually assaulted by a peer at Baylor, that she reported her assault to the university, and that Baylor’s deliberately indifferent response to that report deprived her of educational opportunities and benefits provided by the school. The Court will refer to this as Plaintiffs “post-reporting claim.”
Second, Plaintiff alleges that even prior to her report of sexual assault, Baylor’s actual notice of the threat posed by Elliott and other student-athletes and deliberate indifference to that threat—manifested by the university’s alleged discouragement of reporting, failure to investigate claims or punish assailants, and perpetuation of a culture in which football players were protected from allegations of misconduct— constituted actionable intentional discrimination that substantially increased Plaintiffs risk of being sexually assaulted. The Court will refer to this as Plaintiffs “heightened-risk claim.”
A. Post-Reporting Sexual Harassment
Plaintiff alleges that Baylor was deliberately indifferent to her report of sexual assault, thereby creating a hostile educational environment and subjecting her to further harassment.
As the Court previously explained, under Title IX, a school “may be liable for failing to address student-on-student sexual harassment ‘only where [the school is] deliberately indifferent to ... harassment, of which [it has] actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.’ ” Estate of Lance v. Lewisville Indep. Sch. Dist.,
While allegations of further assault or harassment are necessary for a claim under Title IX, the Supreme Court has made clear that to “subject” a student to harassment a school need only make the student vulnerable to that harassment. Davis,
Baylor argues that non-compliance with regulatory, and administrative
The Court finds that Plaintiff has plausibly alleged' Baylor was deliberately indifferent to her report of sexual assault, thereby depriving her of educational opportunities to which she was entitled. First, Plaintiff alleges she was sexually assaulted by another student while at Baylor. (Second Am. Compl., Dkt. 53, ¶55). Second, Plaintiff alleges she reported her assault to the Baylor Counseling Center, Student Health Center, Academic Services Department, and Athletic Department. (Id. ¶¶ 59-63). Third, Plaintiff alleges Baylor did nothing (or almost nothing) in response to her report of sexual assault. (Id. ¶¶ 59-65). She also alleges that Baylor failed to adequately investigate her assault and failed to ensure she would not be subjected to continuing assault and harassment. (Id.). Finally, she alleges concrete harms based on Baylor’s inadequate response, including a decline in grades, avoidance of social activities on campus, avoidance of certain areas of campus, .the loss of financial aid, and withdrawal from Baylor altogether. (Id. ¶ 75).
The Court is therefore satisfied that Plaintiff has pled sufficient facts to state a plausible claim for post-reporting sexual harassment.
B. Heightened Risk of Sexual Harassment or Assault
Plaintiff also claims that Baylor’s actual notice of the threat posed by Elliott and other student-athletes and deliberate indifference to that threat subjected her to a heightened risk of sexual assault. Specifically, Plaintiff alleges that Baylor failed to address and actively concealed sexual violence committed by its football players for several years, (id. ¶33); that university staff were repeatedly and directly informed of sexual assaults committed by football players and neither reported the misconduct nor conducted appropriate investigations, (id. ¶ 52); and that those actions gave rise to an “overall perception that football was above the rules and that there was no culture of accountability for misconduct,” (id.). With respect to her specific assailant, Plaintiff alleges that Baylor knew of at least six previous assaults committed by Elliott against female students and was aware that Elliott had been cited for misdemeanor sexual assault, but failed to take any protective action. (Id. ¶ 27-30).
As noted above, institutions may be held liable in damages under Title IX “where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational'-opportunities or benefits provided by the school.” Davis,
In the instant case, Baylor argues-that Plaintiff fails to state a viable claim under Title IX because Plaintiff makes allegations regarding alleged non-compliance with federal regulations and administrative guidance. (Mot. Dismiss, Dkt. 32, at 18).
Moreover, the- Court is satisfied that Plaintiff has alleged sufficient facts to, if accepted as true, "state a claim to relief that is plausible on its face.’” Iqbal,
C. Statute of Limitations
In addition to arguing that Plaintiff has failed to state a claim under Title IX, Baylor also argues that any such claims are barred by the statute of limitations. “A motion to dismiss may be granted on a statute of limitations defense where it is evident from the pleadings that the action is time-barred, and the pleadings fail to raise some basis for tolling.” Taylor v. Bailey Tool Mfg. Co.,
“Absent tolling, the limitations period runs from the moment a plaintiffs claim ‘accrues/ ” and while the limitations period is borrowed from state law, “the particular accrual date of a federal cause of action is a matter of federal law.” King-White,
Baylor argues that Plaintiff was fully aware of her injury and Baylor’s alleged inaction four years ago when, after she was sexually assaulted, she reported her sexual assault to Baylor and the school did nothing. Plaintiff argues that her claims under Title IX did not accrue until early 2016, when later investigations revealed Baylor’s alleged role in her assault. She further argues that, to the extent her claims accrued earlier, they are subject to tolling or equitable estoppel under state law.
With respect to Plaintiffs pre-as-sault claim, the Court concludes that it is not evident from the pleadings that Plaintiffs claim is time-barred. Plaintiff was sexually assaulted by Elliott on April 15, 2012. She alleges that she “first became aware of Baylor’s deliberate indifference to a known issue of sexual misconduct within its football program in May of 2016,” when the Pepper Hamilton report was released. (Second Am. Compl., Dkt. 53, ¶ 84). Thus, while Plaintiff certainly knew of her injury—the sexual assault—in 2012, based on her allegations, she had no reason to know of Baylor’s role in causing the assault until 2016. ‘
Baylor argues that Plaintiff would certainly have known of its alleged involvement in her assault by the January 2014 criminal trial of Elliott, when three women in addition to Plaintiff testified that they had been assaulted by Elliott. At that point, Baylor argues, Plaintiff “had sufficient information that would have prompted a reasonable person to make inquiry.” (Mot. Dismiss, Dkt. 32, at 18). That Plaintiff knew Elliott had assaulted other women,
Further, the cases on which Baylor relies to suggest that Plaintiffs claims accrued at or near the time of her assault are distinguishable. For example, in King-White v. Humble Independent School District,
Here, however, Plaintiff was sexually assaulted by another student. Unlike the plaintiffs in King-White, where the abuser was a school employee, Plaintiff therefore had no reason to suspect that Baylor’s alleged deliberate indifference played a role in her assault. And based on the allegations in her complaint, Plaintiff had no other reason to know or suspect that Baylor had actual knowledge of Elliott’s prior sexual assaults until January 2016. in other words, it was not until January 2016 that Plaintiff first knew that, based on her allegations, Baylor could have stopped or prevented her assault. Plaintiffs pre-as-sault claim is therefore not time-barred.
With respect to ’ Plaintiffs post-reporting claim, however, the reasoning from the cases cited above dictates that the claim is barred. Plaintiff knew of her post-reporting injury, including her continuing vulnerability to Elliott’s presence on campus, in 2012. She also knew that Baylor had failed to intervene. Further, because she notified Baylor of her assault, Plaintiff knew the university had actual knowledge of her assault and her continuing vulnerability to Elliott.
Plaintiff argues that even if her post-assault claim accrued in 2012, it should be tolled. First, Plaintiff argues that under the “fraudulent concealment” doctrine, her claims should be tolled because Baylor “actively concealed from [Plaintiff] any policy regarding Title IX, or that she had a Title IX right to be free from a sexually hostile environment.” (Resp., Dkt. 37, at 18). But as Plaintiffs response itself notes, the fraudulent concealment doctrine applies “[w]hen a defendant has fraudulently concealed the facts forming the basis of the plaintiffs claims.” (Id. at 17 (quoting KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp.,
Second, Plaintiff argues that Baylor is equitably estopped from asserting a
In light of the above, Baylor’s Motion to Dismiss is hereby DENIED with respect to Plaintiffs pre-assault claim. With respect to Plaintiffs post-assault claim, the Motion is GRANTED.
Y. STATE LAW CLAIMS
In addition to her Title IX claims against Defendant Baylor University, Plaintiff brings claims for negligence and intentional infliction of emotional distress against all defendants. Each defendant has moved to dismiss these claims.
The Court’s jurisdiction over Plaintiffs state law claims is supplemental to its federal question- jurisdiction. 28 U.S.C. § 1367(a); A federal court exercising supplemental jurisdiction over state law claims must apply the substantive law of the state in which it sits. Sommers Drug Stores Co. Employee Profit Sharing Trust,
A. Negligence
In Texas, to prove a claim of negligence, a “plaintiff must produce evidence of a legal duty owed by the defendant to the plaintiff, a breach of that duty, and damages proximately caused by that breach.” Lee Lewis Const., Inc. v. Harrison,
1. Baylor University
Plaintiff makes two primary arguments that Baylor owed her a duty. First, she argues that Texas law permits a court to determine that Plaintiff was owed a duty based on a multi-factor duty assessment and that the Court should do so here. Second, Plaintiff argues that Baylor had a duty to train its employees who were tasked with responding to sexual assault reports. In support of these arguments, Plaintiff asserts that while courts generally conclude that a college or university has no
Defendant Baylor University responds that Plaintiffs negligence claim should be dismissed because “it is well settled that universities do not have a legal duty to protect their students,” - (Mot.' Dismiss, Dkt. 32, at 22), and because' Title IX, a non-discrimination statute, does not establish a mandatory standard of conduct. Baylor also argues that these claims are time-barred by the statute of limitations.
“In determining whether the defendant was under a duty, [Texas courts] consider several interrelated fac: tors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.” Greater Hous. Transp. Co. v. Phillips,
Applying the multi-factor test to the facts at issue here leads the Court to conclude that- Texas law may impose a duty of reasonable care on Baylor. Plaintiff alleges that Baylor knew Elliott had previously been cited for misdemeanor sexual assault and knew that six other students at Baylor had reported being sexually assaulted by Elliott. Accepting these allegations as true, a factfinder could conclude that the risk, likelihood-,-and foreseeability that Elliot might sexually assault another student should have been apparent to Baylor. The same factfinder could conclude that the social utility of Baylor’s alleged conduct in responding to this knowledge was minimal. According to Plaintiff, Baylor refused to investigate these allegations or conducted cursory investigations. While this conduct gave Elliott the benefit of being allowed to remain at school and on the football team, any arguable social utility from his remaining in school could be outweighed by the risk and likelihood that other students might be victimized. Further, Baylor could have taken simple actions to protect students once aware of the threat posed by Elliott, such as conducting an unbiased investigation and administering an appropriate punishment aimed at deterring sexual assault.
The Court acknowledges tee burden that allowing universities to face tort liability stemming from ,the acts of their students creates. Based on tee multi-factor test established by tee Texas Supreme Court, however, this burden is commensurate with “the risk, foreseeability, and like*-lihood of injury.” If, for example, a university were to admit or recruit a student who it knew had been convicted of rape, that school might be obligated-to take certain additional precautions related to that student’s admission, programming, and housing,
Furthermore, here,, Plaintiff has alleged more than just Baylor’s prior knowledge of Elliott’s alleged sexual assaults,. She has further asserted teat the school’s active involvement in handling reports of sexual assault—generally, with respect to football players, and with respect to. Elliott specifically—put her at a more severe risk. The Texas Supreme Court, has explained that
While a person is generally under no legal duty to come to the aid of another in distress, he is under a duty to avoid any affirmative act which might worsen the situation. See W. Prosser, The Law of Torts § 56 at 343 (4th ed. 1971). One who voluntarily enters an affirmative course of action affecting the interests of another is regarded as assuming a duty to act and must do so with reasonable care.
Otis Eng’g Corp. v. Clark,
Plaintiff seeks to analogize this case to Golden Spread Council, Inc. v. Akins,
In evaluating the case, the Texas Supreme Court applied the multi-factor analysis to determine whether a duty might be imposed on the council. That analysis led the Court to conclude that the council did in fact owe a duty to the children and parents involved in the new troop. Id. at 290-93. The Court explained that the “affirmative act of recommending Estes as a potential scoutmaster to the church created a duty on the part of the council to use reasonable care in light of the information it had received.” Id. at 291. In doing so, it emphasized certain factors, “including whether one party has superior knowledge of the risk or the right to control the actor whose conduct caused the harm.” Id. Ultimately, the Court found that the council’s duty was best stated by “comment e to Section 302B of the Restatement (Second) of Torts, which recognizes that there may be liability ‘[w]here the actor has brought into contact or association with the other a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct, under circumstances which afford a peculiar opportunity or temptation for such misconduct.’ ” Id. (citing Restatement (Second) of Torts § 302B, cmt. e, ¶ D).
Here, Baylor is alleged to have put Elliott in an environment where it knew or should have known that he was particularly likely to continue his pattern of sexual assault. Pursuant to the allegations in the complaint, this environment consisted not only of the broader campus community, but also the athletic department and, more specifically, the football team. Like the Boy Scout council in Golden Spread, Baylor is alleged to have had far more infor
2. Defendants Briles and McCaw
Plaintiff also alleges negligence claims against Defendants Briles and McCaw. In response, they argue they cannot be held liable in their individual capacity because any duty they have exists solely because of their position as Baylor agents or employees. The Court disagrees.
Under Texas law, for an employee to be liable for negligence related to actions taken within the scope of his employment, an independent duty must exist separate from any duty owed by the employer. Leitch v. Hornsby,
Applying the multi-factor test used by the Texas Supreme Court, this Court concludes that Plaintiffs allegations are sufficient to allege that Defendants Briles and McCaw may have had a separate and independent duty to act with reasonable care. Plaintiff alleges that Defendants Briles and McCaw (1) took affirmative acts that put her at greater risk by implementing an internal discipline system that gave Elliott and other players the perception that rules were not ■ applicable to them, (Second Am. Compl., Dkt. 53, ¶ 52; (2) knew Elliott had previously been cited for misdemeanor sexual assault, (id. ¶ 30); and (3) knew of previous allegations by six other students that Elliott had sexually assaulted them, (id. ¶ 28). While Defendants allege that the latter two of these allegations are conclusory and implausible, the Court—in light of Plaintiffs allegations regarding the Pepper Hamilton findings of fact—disagrees.
Defendant McCaw seeks to distinguish this case from Golden Spread Council by arguing that the facts in that ease “are much more specific and disturbing” than the allegations present here. (McCaw Reply, Dkt. 72, at 5). With respect to Defendant McCaw’s specificity argument, the Court notes that the Golden Spread Council opinion involved a motion for summary judgment, not a motion to dismiss. With respect to which case contains more disturbing facts, the Court—though it agrees with Defendant McCaw that allegations of child abuse are horrifying—cannot agree with the suggestion that thé facts alleged in the instant case are not equally so. Plaintiff alleges that all Defendants knew of six sexual assaults allegedly committed by Elliott against other students, but that they—instead of informing law enforcement, conducting an unbiased investigation, or disciplining Elliott—insulated Elliott from the repercussions of his actions, leaving him free to commit additional assaults. “Disturbing” is an apt descriptor for allegations that Defendants put the interests of the football team or the reputation of the university ahead of other
Defendant Briles, in contrast, analogizes this case to Golden Spread Council. He argues that he is in the same position as the council employees in that case, who knew of the alleged molestation but were not sued. (Briles Reply, Dkt. 73, at 3-4), He asserts that those employees were not sued because no liability existed for their actions. (Id.). First, the Court disagrees with this reasoning generally. That a party was not sued is little evidence of that party’s non-liability; a plaintiff may file claims against only certain possible defendants for any number or reasons. Second, the facts of Golden Spread Council in fact suggest that the council employees could have been held liable for their failure to report Estes. Texas law expressly imposes a duty upon “a person having cause to believe that a child’s ... welfare has been or may be adversely affected by abuse or neglect by any person” to “immediately make a report” to the proper authorities. See Golden Spread Council,
The Court thérefore concludes that Plaintiff has plausibly alleged negligence claims against Defendants Briles and McCaw.
B. Intentional Infliction of Emotional Distress
Plaintiff also alleges a claim of intentional infliction of emotional distress (“IIED”) against ' all Defendants. (Second Am. Compl., Dkt. 63, at 24-25). Defendants contend this claim should be dismissed because it is barred by the statute of limitations and because Plaintiff fails to state a claim for which relief can be granted. (Baylor Mot. Dismiss, Dkt. 56, at 3; Briles Mot. Dismiss, Dkt. 61, at 3; McCaw Mot. Dismiss, Dkt. 67, at 4-6,15-17).
To establish a claim for IIED, a plaintiff must show: (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. Hoffmann-La Roche Inc. v. Zeltwanger,
The Court agrees with Defendants that Plaintiff has not adequately pled a claim for IIED. With respect to Baylor, any potential IIED claim would overlap with Plaintiffs Title IX and negligence claims. And while Plaintiff has not alleged Title IX claims against Defendants Briles and McCaw,- she has alleged negligence claims against those defendants. Given the Court’s conclusion that Texas law imposed a duty on Briles and McCaw, Plaintiffs negligence claims All any “gap” that would be covered by the tort of IIED. (See, e.g., Resp. Briles Mot. Dismiss, Dkt. 70, at 20 (“If this Court finds that Briles
C. Statute of Limitations
As discussed above, Texas applies a two-year statute of limitations to personal injury claims. Tex. Civ. Prac, & Rem. Code § 16.003(a). Plaintiff asserts, however, that the statute of limitations applicable to her negligence claims is five-years because Texas uses a five-year statute of limitations for personal injury claims in which the injury arises as a result of sexual assault or aggravated sexual assault. Tex. Civ. Prac. & Rem. Code § 16.0045(b); (Resp., Dkt. 70, at 8). The Court agrees that the five-year statute of limitations applies to Plaintiff’s negligence claims and that those claims are therefore not barred.
Defendants acknowledge that the five-year rule has been applied to claims against non-perpetrators, but ■ urge that those cases “have involved perpetrators that actually were employed by the institution.” (Resp., Dkt. 32, at 22). Because Elliott was not an employee of Defendants, they argue, Plaintiffs claims are subject to the two-year statute of limitations and thereby time-barred. {Id.). While Defendants are correct to note that- most of the state court applications of the five-year statute of limitations involve perpetrators employed by the institution, they fail to identify any section of those opinions that suggest the distinction between an assailant’s status as an employee is relevant. Indeed, the Court is not convinced that it is. See Doe v. Roman Catholic Archdiocese of Galveston-Houston ex rel. Dinardo,
Defendants urge the Court to consider Doe v. Linam,
Finally, Baylor argues that Hernandez’s post-assault claim is subject to the two-year statute of limitations because that claim “do[es] not involve assaultive conduct.” (Mot. Dismiss, Dkt. 32, at 22). “Irrespective of whether Baylor may be held liable for Elliott’s assault,” the university asserts, “Plaintiff also asserts a claim for damages based on [post-assault breaches]” that are not subject to the five-year statute of limitations. (Baylor Reply, Dkt. 44, at 11). The Court finds this argument unpersuasive for two reasons. First, it inappropriately imports Title IX’s pre- and post-assault division into Plaintiffs negligence claim, which alleges a variety of breaches and a variety of resulting injuries. (See Second Am. CompL, Dkt. 53, ¶¶ 86-96). Second, it circumscribes the reach of Section 16.0045 beyond the language of that statute. Section 16.0045, by its plain language, applies to any injury that “arises as a result” of sexual assault. Tex. Civ. Prac. & Rem. Code § 16.0045(b).
The Court therefore concludes that the five-year statute of limitations applies to Plaintiffs state-law claims. Those claims accrued, at the absolute earliest, when Plaintiff enrolled in Baylor in the fall of 2011. Because her suit was filed in March 2016, her claims are not time-barred.
V. CONCLUSION
For the foregoing reasons, the court hereby ORDERS that Defendants’ motions to dismiss, (Dkts. 56, 61, 67) are GRANTED IN PART and DENIED IN PART, consistent with the terns of this Order. Specifically:
• With respect to Plaintiffs post-reporting claims, Baylor’s Motion to Dismiss is GRANTED.
• With respect to Plaintiffs heightened-risk claims, Baylor’s Motion to Dismiss is DENIED.
• With respect to Plaintiffs negligence claims, the Motions are DENIED.
• With respect to Plaintiffs intentional infliction of emotional distress claims, the Motions are GRANTED.
Notes
. Baylor did not hire a full-time Title IX coordinator until 2014. (Second Am, Compl, Dkt. 53, ¶ 68),
. Plaintiff refers to this as a claim of “pre-assault deliberate indifference.” (Resp., Dkt. 37, at 2). Because the actionable discrimination of which she complains involves a heightened vulnerability to sexual assault, see infra
. Baylor also seeks dismissal based on the statute of limitations, an argument the Court addresses in the following subsection. See infra Section III(B).
. Another avenue for Title IX claims, including those concerning heightened-risk, involves an official policy of intentional discrimination by an institution. See Franklin,
. The opinion from the state appellate court attached as Exhibit B to Baylor's motion to dismiss provides little information other than that three other women testified that Elliot sexually assaulted them. See Elliot v. State of Texas, No. 10-14-00112-CR, 2015 WL
. Because the Court concludes Plaintiff was owed a duty based on a multi-factor duty assessment, it does not address her allegation that Baylor had a duty to adequately train its employees.
. Doe v. St. Stephen’s Episcopal Sch.,
. Because the Court concludes that the five-year statute of limitations applies to Plaintiff's state law claims and that those claims are therefore viable, it does not address whether the claims would still be viable under the two-year statute of limitations. The Court notes, however, that much of the accrual and tolling analysis in the section of this Order addressing Title IX would also be applicable to Plaintiff’s state-law claims.