Erika Pogorzelska, Plaintiff, v. VANDERCOOK COLLEGE OF MUSIC and Eric Ballenger, Defendant.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
March 2, 2020
Hon. Marvin
MEMORANDUM OPINION & ORDER
MARVIN E. ASPEN, District Judge:
Plaintiff Erika Pogorzelska (“Plaintiff”) alleges that she was sexually assaulted and battered by her classmate, Defendant Eric Ballenger (“Ballenger”). She relatedly alleges that her school, Defendant VanderCook College of Music (“VanderCook”), failed to conduct a reasonable investigation into her allegations and then retaliated against her in violation of Title IX of the Education Amendments Act of 1972 (“Title IX”),
BACKGROUND
The following facts are taken from Plaintiff’s Complaint and are deemed true for the purposes of this motion. See Bell v. City of Chi., 835 F.3d 736, 738 (7th Cir. 2016); see also Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Plaintiff is a former VanderCook student who alleges that she was sexually assaulted and battered by her classmate, Ballenger, during their sophomore years at VanderCook. (Compl. ¶¶ 8–10.) VanderCook is a higher education institution that receives federal funds within the meaning of
Both Plaintiff and Ballenger majored in music education and first met one another during freshman orientation. (Id. ¶ 11.) Due to VanderCook’s small size (about 100 students) and the fact that they shared majors, they were often in the same classes and college-sponsored activities. (Id. ¶¶ 11–12.)
On August 25, 2017, Plaintiff attended a party thrown by VanderCook students at Ballenger’s apartment. (Id. ¶ 15.) During the party, Ballenger allegedly sexually assaulted Plaintiff while she was unconscious, at times asleep, and intoxicated. (Id. ¶ 16.) Four days later, on August 29, 2017, Plaintiff reported the sexual assault to the Chicago Police Department after treatment by a doctor at Rush Hospital. (Id. ¶ 17.) She was also referred to Rape Victim Advocates (“RVA”), a non–profit organization that provides resources and support for survivors of sexual violence. (Id.)
On August 30, 2017, Plaintiff reported the sexual assault to VanderCook through its Title IX representative, Dr. Tsai. On the same day, Dr. Tsai notified VanderCook’s Dean of Undergraduate Studies, Dean Dolan, to notify of Plaintiff’s report. (Id. ¶ 19.) Dr. Tsai and Dean Dolan then met, and Dr. Tsai told Dean Dolan that Plaintiff had reported that Ballenger sexually assaulted her at an off-campus party. (Id.) Dean Dolan then emailed and met with Plaintiff. (Id. ¶ 20.) At the meeting, Plaintiff told Dean Dolan the details of the assault and named individuals who might have witnessed the events relating to the sexual assault. (Id.) Dean Dolan discussed immediate accommodations with Plaintiff, including imposing a No Contact Order
VanderCook investigated Plaintiff’s sexual assault report between August 30, 2017 and September 5, 2017. (Id. ¶ 25.) As part of that investigation, Dean Dolan and Professor Eccles met with seven students. (Id. ¶ 26.) They asked those students to explain their perspectives of any events that occurred at the party. (Id.) During this time period, Plaintiff saw and interacted with Ballenger in classes and required college-sponsored activities. (Id. ¶ 25.)
On September 5, 2017, Dean Dolan1 and Professor Eccles met to review the evidence and discuss any new evidence that may have been presented. (Id. ¶ 27.)
Before the results of the investigation were released, Plaintiff went to Dean Dolan’s office after meeting with a school counselor on September 6, 2017. (Id. ¶¶ 28–29.) She reported to Dean Dolan that she was harmed by the fact that the No Contact Order was not enforced as Ballenger was in both her classes and required college-sponsored activities. (Id.) Specifically, she told Dean Dolan that she “just couldn’t do this” anymore and that she has “tried, but everything on this campus reminds [her] of [Ballenger]” and that she “can’t make music with that monster.” (Id. ¶ 28.) Dean Dolan responded by stating that it was difficult to do anything to protect Plaintiff from having to interact or be in the same classes as Ballenger because it was a small school. (Id. ¶ 29.) Dean Dolan gave Plaintiff three options: (1) continue at VanderCook with some accommodations to Ballenger’s schedule; (2) withdraw from all but her theory and sightseeing courses; or (3) withdraw completely. (Id.)
Five days later, on September 11, 2017, Plaintiff returned to Dean Dolan’s office to ask follow-up questions. (Id. ¶ 30.) These follow-up questions pertained to her financial aid and grants, as well as request an independent study for her music history class so that she would not have to attend class with Ballenger. (Id.) Dean Dolan rejected Plaintiff’s request. (Id. ¶ 31.) Dean Dolan further explained that if Plaintiff were to drop out of school, she would not receive any credit for the semester and would still be responsible for the semester’s tuition. (Id.)
On September 12, 2017, Dean Dolan and Professor Eccles met to finalize their investigation. (Id. ¶ 32.) By that time, they had not given Plaintiff the chance to learn of what evidence Ballenger had presented or to rebut any such evidence or information. (Id. ¶ 34.) Nor did they do so with the information that they learned from their interviews of student witnesses. (Id. ¶ 35.) Nor was there a hearing regarding Plaintiff’s allegations against Ballenger. (Id. ¶¶ 27, 36.) At this meeting, both Dean Dolan and Professor Eccles determined for reasons unknown2 to Plaintiff that
yet they sanctioned Ballenger anyways. (Id. ¶ 37.) Ballenger’s sanctions included: (a) sexual misconduct training; (b) stepping back from leadership positions for the fall semester; (c) participation in a mediated meeting between Plaintiff and Ballenger to begin the healing process; and (d) a report of the incident would remain in Ballenger’s official file until graduation. (Id. 37.)
Following this outcome, Plaintiff contacted Life Span to assist her. (Id. ¶ 39.) Life Span is an advocacy organization for survivors of sexual assault and domestic violence. (Id.) Life Span contacted VanderCook on Plaintiff’s behalf. (Id. ¶ 39.) Two days later, on September 14, 2017, Life Span met with Dean Dolan and Plaintiff to go over the investigation and look into Plaintiff’s options. (Id. ¶ 40.) VanderCook’s procedure did not provide for any appeal process. (Id.) Dean Dolan provided Life Span with VanderCook’s findings. (Id.) Those findings included the list of sanctions highlighted above and a finding that he was “guilty but not guilty.” (Id.)
The next day, Plaintiff emailed Dean Dolan that she intended to remain enrolled in school. (Id. ¶ 41.)
Plaintiff alleges that she reported Ballenger’s numerous violations of the No Contact Order to VanderCook. (Id. ¶ 44.) Yet VanderCook did not enforce the No Contact Order. (Id.) Examples of Ballenger’s alleged violations of the No Contact Order include: signing up for a pep band extracurricular activity after Plaintiff had already signed up, having his friends videoconference him to watch a friend’s live recital performance despite being instructed not to attend the recital because Plaintiff would be present, and sitting directly in front of Plaintiff in class on multiple occasions. (Id. ¶ 43.)
On or about October 2, 2017, Plaintiff met with Dean Dolan about a report that Ballenger was not adhering to the No Contact Order. (Id. ¶ 45.) During that meeting, Dean Dolan allegedly became hostile towards Plaintiff and said something like “Why are you blaming and attacking the school, it is not the school’s fault that there were drugs and alcohol at the party” and that “there is nothing else the school can do for you.” (Id.) Dean Dolan also asked Plaintiff why she was so angry and recommended that “instead of being angry you should use that energy to focus and better yourself.” (Id.)
Plaintiff alleges that she was continually harassed and retaliated against by fellow students who were the perpetrator’s friends. (Id. ¶ 46.) She reported several of these incidents to Dean Dolan in writing. (Id.) Plaintiff alleges that VanderCook did not adequately investigate those reports and failed to protect Plaintiff from further ongoing harassment and retaliation. (Id.) For example, on October 12, 2017, it was brought to Dean Dolan’s attention via email that friends of Ballenger were harassing Plaintiff through inappropriate and aggressive comments. (Id. at ¶ 47.) Dean Dolan said that she would talk to those students. (Id.) Yet she neither followed up with Plaintiff nor took corrective action in that regard. (Id.)
Plaintiff also alleges that her professors retaliated against her. (Id. ¶ 48.) In support of this claim, she pleads that she was reprimanded for being absent despite having been instructed to provide Plaintiff with certain accommodations in light of her situation. (Id.)
At some point, Life Span had conversations with Dean Dolan and VanderCook President Dr. Rosenthal concerning the investigation, findings, and Ballenger’s violations of the No Contact Order. (Id. ¶ 53.) During one conversation, Dr. Rosenthal stated that Plaintiff was “paranoid,” that she felt bad for Ballenger because he “comes into [her] office crying,” and that “it’s a small school[,] [i]t’s not like I can kick him out.” (Id. ¶ 54.)
Plaintiff suffered mental anguish while still at the school and attended therapy to help her cope with stress, anxiety, depression, difficulty sleeping, flashbacks of the sexual assault, difficulty focusing, post-traumatic stress disorder, and panic attacks since the sexual assault. (Id. ¶ 55.) Plaintiff alleges that these experiences, coupled with the fact that Plaintiff kept running into Ballenger on campus and in class, caused Plaintiff to feel unsafe on campus and further caused panic attacks and severe distress. (Id. ¶¶ 56–57.)
On December 11, 2017, Plaintiff ultimately withdrew from VanderCook and transferred to a different college. (Id. ¶ 58.) Plaintiff states that she withdrew because she was frustrated by VanderCook’s inaction and its refusal to take disciplinary action against Ballenger. (Id.) Plaintiff alleges that VanderCook’s deliberate indifference to her sexual assault report and Ballenger’s continued presence on campus created a hostile environment that effectively deprived her of educational opportunities and benefits. (Id. ¶¶ 81–83, 88.)
Plaintiff alleges on information and belief that VanderCook failed to provide the appropriate training or education to administrators, staff, and students in compliance with Title IX. (Id. ¶¶ 71–72.) She also alleges that VanderCook’s sexual harassment and sexual assault policies were inequitable and inadequate with respect to investigating and properly responding to reports of student-against-student sexual harassment. (Id. ¶ 73.)
LEGAL STANDARD
A motion to dismiss under
Where a district court has original jurisdiction over one claim, it may exercise supplemental jurisdiction “over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United State Constitution.”
ANALYSIS
I. VanderCook’s Motion to Dismiss: Failure to State a Claim Under Title IX
Defendant VanderCook moves to dismiss the Title IX claims against it pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (Dkt. No. 10.) Title IX states that “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,” subject to certain exceptions.3
A. Deliberate Indifference
To establish a Title IX discrimination claim arising from student-on-student sexual assault or harassment, a plaintiff must allege: (1) that the school exercised substantial control over both the harasser and the context in which the known harassment occurs; (2) the plaintiff must have suffered harassment that is so severe, pervasive, and objectively offensive that it can be said to deprive them of access to the educational opportunities or benefits provided by the school; (3) the school must have had actual knowledge of the harassment; (4) the school must have acted with deliberate indifference to the harassment; and (5) the school’s deliberate indifference must have caused the plaintiff to undergo harassment or make that student vulnerable to it. See, e.g., Davis, 526 U.S. at 644–45. VanderCook’s motion to dismiss focuses exclusively on the deliberate indifference element. We focus our analysis accordingly.
Deliberate indifference is a “high standard” and must, at a minimum, cause students to undergo harassment or make them liable or vulnerable to it. See id. at 643–45; see also Hill v. Cundiff, 797 F.3d 948, 973 (11th Cir. 2015) (“A clearly unreasonable response causes students to undergo harassment or makes them more vulnerable to it.”). Yet the “deliberate indifference” standard does not require funding recipients to remedy the harassment. See Davis, 526 U.S. at 648–49 (“The dissent consistently mischaracterizes this standard to require funding recipients to “remedy” peer harassment . . . and to ‘ensur[e] that . . . students conform their conduct to’ certain rules. Title IX imposes no such requirements”) (first ellipsis added). Rather, under Davis, a school’s response to harassment will amount to deliberate indifference only if it is “clearly unreasonable in light of the known circumstances.” Id. Davis explained that this is “not a mere ‘reasonableness’ standard” and that there is “no reason why courts, on a motion to dismiss, for summary judgment, or for a directed verdict, could not identify a response as not “clearly unreasonable” as a matter of law. Id. at 649.
The Complaint alleges that that VanderCook’s investigation was inadequate. Plaintiff seeks to analogize her situation with several cases. For example, Plaintiff cites to Landon v. Oswego Unit Sch. Dist. # 308, No. 00-cv-1803, 2001 WL 649560, at *5 (N.D. Ill. June 8, 2001). There, the minor–plaintiff sued his school district under Title IX after the district’s employee (a bus driver named Johnson) had, among
The allegations concerning VanderCook’s response are very different than those concerning the school district in Landon. See id. Indeed, the allegations here rather suggest that VanderCook promptly took steps to investigate the allegations. For example, on the same day that Plaintiff reported the sexual assault to Dr. Tsai, VanderCook’s Title IX representative, Dr. Tsai then met with Dean Dolan, and Dean Dolan then met with Plaintiff. (Compl. ¶ 19–20.) On the same day, Dean Dolan and Professor Eccles met with Ballenger and issued a No Contact Order. (Id. ¶ 24.) From that day (August 30, 2017) until September 5, 2017, VanderCook investigated the matter by interviewing seven students who Plaintiff and Ballenger identified as witnesses. (Id. ¶¶ 18–27.) Plaintiff does not allege that VanderCook failed to interview any witness. Rather, she takes issue with the fact that only Dean Dolan interviewed her (and not Professor Eccles4) and that she was not given an opportunity to learn of what evidence Ballenger presented or given an opportunity to rebut it such as a hearing5. (Id. ¶¶ 32–36.) After Dean Dolan and Professor Eccles concluded their investigation, they determined (about two weeks after Plaintiff made her report) that there was not a preponderance of evidence against Ballenger. (Id. ¶ 37.) We would have held that they pleaded a compliant Title IX investigation had Plaintiff pleaded only these allegations.
But Plaintiff’s allegations continue, alleging that although VanderCook determined there was not a preponderance of evidence against Ballenger, they nevertheless found him “guilty but not guilty.” (Id. ¶¶ 37, 40.)6 And despite finding Ballenger
assault, but declined to do so. (See, e.g., id. ¶¶ 54, 86.) Thus, the pleaded fact that VanderCook determined that Ballenger was “guilty but not guilty” of sexual assault yet declined to enforce its own No Contact Order is enough to state a Title IX claim as those actions (or inactions) could plausibly be clearly unreasonable under the known circumstances such that they qualify as severe, pervasive, and objectively offensive conduct that supports Plaintiff’s deliberate indifference allegations.7
We therefore deny VanderCook’s motion, in part, and we allow Plaintiff’s Title IX deliberate indifference claim to proceed.
B. Retaliation
VanderCook also moves to dismiss Plaintiff’s claim for retaliation against VanderCook. Title IX prohibits educational institutions from retaliating against people who speak out against sexual harassment. See, e.g., Jackson, 544 U.S. at 183. To establish a claim for retaliation under Title IX, plaintiffs must allege that (1) they engaged in a statutorily protected activity; (2) the school took a materially adverse action against them; and (3) there existed a but-for causal connection between the two. See Burton v. Bd. of Regents of Univ. of Wisconsin Sys., 851 F.3d 690, 695 (7th Cir. 2017) (citing Milligan v. Bd. of Trs., 686 F.3d 378, 388 (7th Cir. 2012) and Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 337, 360 (2013)). A Title IX retaliation claim fails if the plaintiff
The facts pleaded here are like those in Columbia College, 299 F. Supp. 3d at 960, aff‘d, 933 F.3d at 849. There, Judge St. Eve held that the plaintiff’s Title IX retaliation claim failed because that plaintiff did not allege a causal connection between the protected activity (reporting sexual harassment) and the allegedly adverse action (disciplinary inaction). The pleaded facts in Columbia College were ultimately that the school failed to take disciplinary action generally with respect to any harassment, not just the harassment that the plaintiff complained about. Id. Here, Plaintiff’s retaliation theory does not allege that the basis for her retaliation theory was caused by a retaliatory motive. True, Plaintiff pleaded that Dean Dolan was hostile to her when Plaintiff sought help (Compl. ¶ 45), that professors reprimanded her for absences despite having been instructed to provide Plaintiff with certain accommodations for her situation (id. ¶ 48), that VanderCook failed to enforce the No Contact Order (see, e.g., id. ¶¶ 28–29), and failed to stop Ballenger’s friends from taunting her. (Id. ¶ 46.) But Plaintiff simply did not plead that VanderCook’s conduct (including its inactions) was intentional or based on a retaliatory motive. (See id. ¶¶ 98–106.) Thus, we grant VanderCook’s motion, in part, and we dismiss the retaliation claim without prejudice.
II. Ballenger’s Motion to Dismiss: Supplemental Jurisdiction
Ballenger asks us to dismiss the claims against him pursuant to
Ballenger cites no law supporting his position that an alleged sexual assault and battery does not share a nucleus of operative fact with its related Title IX investigation. Furthermore, case law refutes this position. See Hansen, 551 F.3d at 608; see also Ammerman, 54 F.3d at 425. Here, the overlap between the investigation into the claim and the facts of the sexual battery allegation is both clear and strong. We follow Ammerman’s reasoning and hold that the factual allegations underlying the extent of Ballenger’s conduct are highly relevant to assess whether VanderCook’s response was appropriate. See Ammerman, 54 F.3d at 425.
Defendant’s attempts to distinguish his position from Ammerman’s by the fact
Thus, we hold that accepting supplemental jurisdiction over Plaintiff’s state tort claims of assault and battery claims against Ballenger would be appropriate. See
CONCLUSION
For the above reasons, we grant VanderCook’s motion in part and deny it in part, and we deny Ballenger’s motion. (See Dkt. Nos. 10, 15.)
Honorable Marvin E. Aspen
United States District Judge
Dated: March 2, 2020
Chicago, Illinois