OPINION AND ORDER
After suffering from alleged sexual harassment and retaliation by the former director of his graduate program and receiving limited redress from the University once he made his complaints known, Plaintiff Jonathan Woon Teck Yap, a graduate student, brings this suit against Northwestern University (“Northwestern”) under Title IX of the Education Act of 1972, 20 U.S.C. § 1681(a), et seq. for discrimination, hostile educational environment, and retaliation resulting from Northwestern’s alleged failure to properly investigate his complaints. Northwestern moves to dismiss Yap’s Complaint as time-barred and for failure to state a claim for sexual harassment, sex discrimination, or retaliation. Northwestern’s motion [10] is granted in part and denied in part. For the
BACKGROUND
Yap is a full-time student at Northwestern’s Medical Scientist Training Program (“MSTP”), a combined M.D. and Ph.D. program. Yap joined the program in 2007, completed his Ph.D. in 2013 and expects to complete his M.D. in May 2016. Northwestern is an institute of higher education that receives federal financial assistance for its educational programs. The MSTP is supported in part by a federal grant from the National Institutes of Health.
In October 2006, the program’s then Director, Dr. David Engman recruited Yap making certain representations to him, including that: Yap could simultaneously pursue a third degree, a Master of Science in Clinical Investigation (“MSCI”), as a unique feature of Northwestern’s program; Yap would be awarded a fellowship for five years; and MSTP would supplement the fellowship for the remainder of his time in the program. Based on those assurances, Yap accepted the offer of admission and enrolled in the MSTP in July 2007.
Within three months of Yap’s enrollment in the program, Engman ■ commenced “making suggestive comments about [Yap’s] appearance while conspicuously looking at [Yap] and ogling him.” Compl. ¶ 13. In August 2007, at the mandatory annual off-campus MSTP retreat, when Yap was aboard Engman’s boat and wearing only a bathing suit, Engman complimented Yap’s teeth while leering and smiling lasciviously at him. In September 2007, in a department conference room, Engman again leered at Yap and smiled in a suggestive manner while referencing Yap’s teeth. At the same time, Engman began asking Yap’s fellow graduate students about Yap’s sexual orientation.
Around November 2007, when Yap had not responded to Engman’s repeated sexual advances and sexually suggestive comments, Engman began interfering with Yap’s academic opportunities.: Engman opposed Yap’s application for an International Health Fellowship, opposing Yap’s acceptance of the same fellowship, and assigning Yap an unsatisfactory grade in a Grand Rounds course despite Yap’s having completed the requirements as agreed. Engman denied Yap a paid leave, of absence for a family emergency, despite routinely granting such absences to other students. Yap describes Engman’s actions against him as “continuous[ ] sabotage! ].” Id. ¶20. Engman would use Yap’s requests for an explanation of these adverse actions as an excuse to meet with Yap in private.
Engman arranged to ride alone with Yap to the August 2010 mandatory MSTP retreat, but Yap declined the offer and secured other transportation. At the retreat, Engman approached Yap while Yap was wearing a bathing suit and sitting with a fellow student. Engman commented that Yap “had really nice hair,” while “leering and smiling at him creepily in a lascivious manner.” Id. 1122., Engman said Yap’s “hair was really long and needed to be cut,” and invited Yap to come to his hotel room later that night so he could cut Yap’s hair. Id. “Engman’s invitation was made with a very provocative sexual overtone.” Id. Later that night, Engman stated to Yap at the mandatory dinner, “You have the most beautiful hair that I have ever seen. Don’t you all agree?” Id.
When Yap did not respond to these sexual advances, Engman retaliated by sabotaging Yap’s application for a fellowship from the Howard Hughes Medical Institute by not forwarding his application for consideration. This resulted in Yap’s loss of the opportunity for career advancement as an academic physician, enhanced income, and scholastic prestige.
In August 2011, Engman again arranged for Yap to ride with him to the MSTP mandatory retreat, but Yap again declined. An emergency in his thesis advisor’s laboratory meant that Yap was not able to attend the 2011 retreat.
Around October 2011, Engman was replaced as Director of MSTP by Dr. Dane Chetkovich. A sexual harassment complaint had just been filed against Engman by then Assistant Director Dr. Elise Covic.
In November 2012, Dr. Jamys Peterson, the MSTP Assistant Director since 2012, showed Yap a disciplinary letter in his student file that had been issued by Eng-man and Dr. Elise Covic, the MSTP Assistant Director' from 2010 to 2011. That letter reprimanded Yap for missing the 2011 retreat and stated that Yap was required to travel to that retreat with Eng-man in his private car. The MSTP never issued letters of reprimand to students who missed the annual retreats and it was common for students not to attend for various reasons.
Even after Engman was removed from the directorship, he continued to exert control over the program and to retaliate and harass Yap directly and indirectly through his successor Chetkovich, who continued to discuss matters related to Yap with Eng-man.
In July 2012, Yap received an email that MSTP students could not also pursue the MSCI degree. Yap had already completed almost all the requirements for the degree at that time. Yap asked Chetkovich about the third degree option. Chetkovich asked Engman, who told Chetkovich that there was no formal arrangement between the two programs to offer MSTP students the opportunity for the MSCI degree, even though it was understood that MSTP students could take the MSCI classes. This was in contrast to Engman’s representations to Yap during Yap’s recruitment to the MSTP program. And despite Eng-man’s representations to Chetkovich in 2012, a similarly situated MSTP student told Yap that in 2012 the MSTP administration “proactively and enthusiastically supported and negotiated his pursuit and conferral of the MSCI degree in 2011,” during Engman’s tenure as director. Id. ¶ 32.
Around September 2012, Yap noticed that his stipend was missing the additional fellowship funds. Yap told Chetkovich that it was his understanding that MSTP would provide this fellowship for the remainder of his time in the program. Yap’s understanding of this was based on information received in 2007 and 2008 from then MSTP Assistant Director Dr. Sandra Lee. When Engman recruited Yap to the program, Engman told Lee that - he had committed the program to paying the supplement through Yap’s completion of both the M.D. and Ph.D, (i.e. for the sixth through eighth years of his graduate work). However, when Chetkovich asked Engman, he said that he instructed Lee to retract this offer. Engman also told Lee to tell Yap that the extended fellowship supplement was an assumption on Lee’s part. Yap states that Engman’s actions cost him the prestigious fellowship and causéd the new MSTP leadership to believe Yap was a problem student causing
In late November 2012, Yap told Dr. Lonnie Shea, his Ph.D. thesis advisor, about Engman’s sexual harassment and retaliation. Shea told Yap to report the harassment to Northwestern’s Sexual Harassment Prevention Office (the “Office”).
On March 5, 2013, after realizing Northwestern would not take action on the matter, Yap contacted Slavin to request an investigation. Slavin did not respond promptly to Yap to find a date to schedule an appointment. Around April 2013, Sla-vin met with Yap and his medical school faculty mentor Dr. Deborah Reed. Although Northwestern’s policy requires the prompt handling of sexual harassment complaints and Northwestern knew of a prior sexual harassment complaint against Engman, Slavin did not meet with Yap until six months after Shea made the initial report of harassment and more than a month after Yap contacted her. Slavin then conducted an investigation, talking with Engman, Chetkovich, and the Vice Dean for Scientific Affairs and Graduate Education at the medical school. Slavin did not interview key witnesses to the harassment and retaliation, including Lee and Yap’s classmate who had witnessed the harassment. • Slavin did not promptly conclude the investigation, despite Yap and Reed’s repeated follow-up.
On or about May 30, 2013, Yap filed an EEOC charge.
While Yap’s harassment complaint was pending in the Office, Yap contacted Peterson to request an exception to the MSTP policy that, in order to return to the third year of medical school, MSTP students have their Ph.D. degree and their first author publication accepted with minor revisions and without additional experiments. Yap asked for this exception because, although his first author paper had been accepted for publication, his committee members’ schedules meant he could not schedule his Ph.D. defense in June 2013. Therefore, without an exception, his return to medical school would be delayed by several months. Exceptions to this requirement had been granted in the past. Peterson told Yap in person and via email that he would not grant the exception. Yap and Shea were told that no.exceptions to this requirement had been granted since Chetkovich took over as director and the policy had been re-announced at that time. Yap was aware, that a classmate had been granted this exception on May 23, 2013
Around June 28, 2013, Slavin emailed Yap the findings of her investigation. She found that “Dr. Engman did comment on your long hair and offer to give you a haircut at the 2010 retreat.” Id. ¶ 57. • She also found that “it is more likely than not that Dr. Engman did make one or two other comments about your teeth and hair at those retreats.” Id. Slavin concluded, “[w]hile I find that these comments were ill-advised and unwelcome to you, I do not find that they were sexual in nature, and therefore do not find that they violated the Policy on Sexual Harassment.” Id. ¶58. Yap pleads that this conclusion is in direct conflict ■’ with Northwestern’s Sexual Harassment Policy that states, “some examples of sexual harassment may include: unnecessary reference to parts of the body ... [r]emarks about person’s gender - or sexual orientation.” Id. Slavin did not interview key witnesses and credited Eng-man and Chetkovich’s statements over Yap’s in concluding Engman did not retaliate against him. Slavin’s only actions to protect Yap at the conclusion of the investigation were to provide Engman with Northwestern’s policy on non-retaliation and sexual harassment and to advise him to keep the matter strictly confidential.
Around September 9, 2013, Yap filed a complaint with the Department of Education’s Office for Civil Rights (“OCR”) because he beliéved 'that Northwestern’s internal procedure could not provide him the protection or remedies he was seeking. Around May 2014, Yap retained an attorney and notified Northwestern of his intent to pursue legal action.
Yap asserts that Engman and the MSTP program continued to retaliate against him and single him out for differential treatment. Engman repeatedly included Yap in a selected MSTP recipient email list about non-educational events, despite the fact that Engman does not have any official title, role, or affiliation with MSTP. This continued communication with Eng-man was unwelcome and unnecessary and occurred despite Yap’s clear communication to Slavin during the investigation that he wished to have no further contact with Engman. Engman also discussed Yap’s complaint with another faculty member with whom Yap and his advisor Shea work closely on research projects.' Engman told this faculty mémber that Yap had been “going around and making things up about him;” Id. ¶ 68.
Around June 2014, Peterson and Chet-kovich told Yap that he could be “excused” from the 2014 mandatory annual MSTP retreat in July because Engman would attend the first day of events and they wanted to “protect" Yap from Engman. Id, ¶ 69. The MSTP retreat is a required educational activity for MSTP students providing networking with mentors and the opportunity to enhance future career opportunities. Yap had planned to attend the retreat before being contacted by Peterson and-Chetkovich. Yap told Peterson
Yap filed his Complaint in this Court on November 26, 2014, alleging a Title IX discrimination, hostile educational environment, and retaliation claim against Northwestern.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed.R.Civ.P. 12(b)(6); Gibson v. City of Chicago,
ANALYSIS
I. Title IX Sexual Harassment Claim
A. Statute of Limitations
As an initial matter, Northwestern argues that Yap’s sexual harassment claim is time barred because any harassment by Engman ended by 2010 at the latest and Yap filed this action in November 2014. Yap counters that his claim for Title IX violations accrued when he learned, after Shea’s initial complaint on his behalf in late November 2012, Northwestern would not be following-up on his complaint.
Title IX actions, like other federal civil rights cases, are governed by the applicable state law personal injury statute of limitations. Doe v. Howe Military Sch.,
Yap’s characterization of his sexual harassment claim is one for hostile educational environment stemming from Northwestern’s treatment of his complaint. The statute of limitations for this claim is measured not by incidents of underlying sexual harassment, but from Yap’s interactions with the Office about his complaint. Yap alleges that in late November 2012, he first reported the harassment to his thesis advisor, Shea, who told Yap to report the harassment to the Office and then told Yap that Northwestern “will not .follow up” on Yap’s report because the harassment “happened two years ago.” • Compl. ¶¶ 38-39, 41. Yap further alleges that he contacted Slavin on March 5, 2013 to request an investigation, but Slavin did not promptly
To the extent Yap has pleaded a hostile work environment sexual harassment claim based on Northwestern’s treatment of his complaint against Engman, that claim is not barred by the statute of limitations.
B. Failure to State a Claim
Northwestern also moves to dismiss on the basis that Yap’s Complaint fails to state a claim under Title IX for sexual harassment. Yap argues that he has “sufficiently alleged a claim for sexual harassment under Title IX for the underlying sexual harassment by Engman,” even though “this instant action is based on Northwestern’s own discrimination against [Yap] based on his gender, not necessarily the, sexual harassment by Engman himself.” Resp. at 14.
Title IX prohibits sexual harassment and sex discrimination in connection with educational programs or activities that receive federal funding. See 20 U.S.C. § 1681(a). A Title IX plaintiff may allege sexual harassment under two theories: quid pro quo and hostile environment. Smith v. Metro. Sch. Dist. Perry Twp.,
Northwestern cannot, as a matter of law, be liable for any alleged sexual harassment until notified of that harassment. Therefore, only acts of harassment alleged to have occurred after Yap notified a Northwestern official are actionable. Yap states that he told his thesis advisor, Shea, in “late November 2012” about Engman’s actions.
Because Yap does not allege' that any incidents of sexual harassment occurred after he reported his complaint to Northwestern, he has failed to state a claim for sexual harassment against Northwestern under Title IX. Ha v. Northwestern Univ., No. 14 C 895,
II. Title IX Sex Discrimination Claim
Yap also brings a claim against Northwestern for sex discrimination in its handling of his complaint against Engman. Northwestern argues that this claim fails because Yap has not pleaded a materially adverse action or connected his gender to the alleged problems with Northwestern’s investigation.
To plead a claim for Title IX sex discrimination, Yap must allege: (1) that he “was excluded from participation in or denied benefits of or subjected to discrimination in an educational program; (2) that receives federal financial assistance; and (3) that the exclusion was on [the] basis of sex, i.e. gender.” Torrespico v. Columbia Coll., No. 97 C 8881,
Yap alleges that Northwestern did not promptly respond to his sexual harassment complaint because he is male, while Northwestern promptly investigates similar .complaints by female students. Yap also claims that, on at least one occasion, Northwestern investigated a sexual harassment incident that was over two years old when brought by a female student. These allegations sufficiently connect Northwestern’s initial refusal to investigate with Yap’s gender. See Yusuf v. Vassar Coll.,
Yap has also sufficiently pleaded materially adverse consequences in his educational experience. Yap has alleged repercussions beyond the failure to promptly investigate including that Engman remained in contact , with him and turned current department leadership against him. Cf. Kuhn v. United Airlines,
The Court finds that, taken together and in the light most favorable to Yap, the Complaint sufficiently states a claim for sex discrimination in Northwestern’s'failure to promptly investigate Yap’s sexual harassment and retaliation complaint.
HI, Title IX Retaliation Claim
Northwestern seeks dismissal of Yap’s retaliation claim on the grounds that Yap has not alleged any adverse actions and Yap does not state a causal connection between the alleged retaliation and his protected activity. Yap argues that this claim is sufficiently pleaded and that the Court should look at the context and totality of the circumstances.
To state a Title IX retaliation claim, Yap must allege that he engaged in protected activity and that Northwestern subjected him to an adverse action because of that protected activity. See
As an initial matter, the retaliation of which Yap complains must have occurred, at the very earliest, after his late November 2012 reporting of the harassment to Shea. See Leonard v. E. Ill. Univ.,
CONCLUSION
For the foregoing reasons, Northwestern’s motion to dismiss [10] is-granted in part and denied in part. Yap’s sexual harassment claim is dismissed without prejudice. Yap’s sex discrimination and retaliation claims may proceed. The Court gives Northwestern until August 28, 2015 to file its answer to the remaining allegations in Yap’s complaint.
Notes
. The facts are taken from the Complaint and are presumed true for the purpose of resolving Northwestern’s motion to dismiss. See Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir.2011).
. Northwestern’s Sexual Harassment Prevention Office has an anti-discrimination policy on its website that states in relevant part: "Northwestern University does not discriminate or permit discrimination by any member of its community against any individual on the basis of ... sex, .., sexual orientation, gender identity, gender expression, ... or any other classification protected by law in matters of admissions, employment, housing, or services or in the educational programs or activities it operates.” Id. ¶ 59.
. The Court specifically does not make any finding as to whether Shea is an “official” for purposes of Title IX liability. The only two potential incidents occur after Yap notified both Shea and Slavin. Therefore whether the Court considers Yap’s contact with Shea or Slavin as Northwestern's first notice of the complaint for Title IX purposes does not affect the analysis here.
. Northwestern’s citation to Ludlow here is inapposite. In Ludlow, the plaintiff university professor alleged that Northwestern's investigation into complaints about his behavior was a Title IX violation. See Ludlow, 79 F,Supp.3d at 834 n. 5, 20Í
. The Supreme Court recently held Title VII retaliation claims must be proved according to traditional principles of but-for causation, i.e. a Title VII retaliation claim "requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, — U.S. -,