Doe 5 v. Southern Illinois University

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JANE DOE 5,

Plaintiff,

v. Case No. 19-CV-00934-NJR

SOUTHERN ILLINOIS UNIVERSITY,

d/b/a SOUTHERN ILLINOIS

UNIVERSITY AT CARBONDALE, and

DR. KAREN RENZAGLIA,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Pending before the Court is a Motion to Dismiss filed by Defendants Southern

Illinois University at Carbondale and Dr. Karen Renzaglia (Doc. 34) and a Response to

Defendants’ Motion to Dismiss filed by Plaintiff Jane Doe 5 (Doc. 51). For the reasons set

forth below, the Court grants in part and denies in part Defendants’ Motion to Dismiss.

FACTUAL & PROCEDURAL BACKGROUND

Jane Doe 5 was a research and education specialist at Southern Illinois University

at Carbondale (“SIUC”) in the Plant Biology Department from May 2016 to May 2018 (Id.,

¶ 15, Doc. 35, p. 2). Nicholas Flowers1 was a former graduate student at SIUC in the same

department as Doe (Doc. 29, ¶ 22, Doc. 35, p. 2). Defendant Dr. Karen Renzaglia is a

professor of Plant Biology at SIUC (Doc. 29, ¶ 9).

1 Doe filed a Motion to Voluntarily Dismiss Defendant Nicholas Flowers Without Prejudice after she made

several failed attempts to serve him (Doc. 48). The Court dismissed Flowers from the case in January 2020

(Doc. 52). Count VI of the Amended Complaint was brought solely against Flowers (Doc. 29, pp. 21-22).

According to the Amended Complaint, Renzaglia, while working for SIUC as

Doe’s supervisor, pressured Doe to enter a romantic relationship with Flowers, a grad

student Renzaglia was close to, co-authored scholarly articles with, and, at times, shared

an office with (Id., ¶¶ 36, 37). In September 2016, after going to see a band with Flowers,

Doe alleges she was raped by Flowers while she was unconscious (Id., ¶¶ 39, 40). She did

not report the sexual assault (Id., ¶ 41, Doc. 35, p. 3). Following the rape, Doe claims that

Flowers kept pursuing her and continued to hurt her physically, emotionally, and

sexually (Doc. 29, ¶¶ 42, 43). Renzaglia continued encouraging a romantic relationship

between the two (Id., ¶ 42).

In December 2017, Renzaglia told Doe that she had fired two previous employees

in Doe’s position, and that she gave them negative professional reviews, which made Doe

think that her position was insecure (Id., ¶ 46). Renzaglia further told Doe that she had

knowledge that Flowers was violent with women and asked Doe if Flowers had been

violent with her (Id., ¶ 47). Doe states that she did not reveal Flowers’s violent tendencies

to Renzaglia because she feared retribution and retaliation from Renzaglia and SIUC (Id.,

¶ 48).

In February 2018, Renzaglia kicked Flowers out of her office after having an

argument with him (Id., ¶ 49). Seeing this incident as an opportunity to escape the abusive

situation (Id., ¶ 50), on March 25, 2018, Doe reported to Renzaglia what Flowers had done

to her (Id., ¶ 51). Renzaglia asked Doe if she had said “no” and if it was just “rough sex”

(Id., ¶ 52). Renzaglia did not report the complaint until April 20, 2018, which was after

Doe told Renzaglia that she was planning to report Flowers to the police (Id., ¶ 53).

On April 24, 2018, Doe reported to the Carbondale Police Department that Flowers

had sexually and physically assaulted her multiple times from 2016 to 2018 (Id., ¶ 54).

Following the report, Doe alleges that Renzaglia repeatedly asked her for details of the

sexual abuse and failed to keep the issue confidential (Id., ¶ 58). Doe says she could hear

her co-workers discussing her abuse while she was at work (Id.). Doe claims she

repeatedly told her Department Chair, Sara Baer, as well as Renzaglia, that she felt unsafe

on campus (Id., ¶ 65), but both SIUC and Renzaglia did not provide a safe workplace by

prohibiting Flowers’s presence on campus (Id., ¶ 64).

Doe further reported to Chair Baer on two occasions that Renzaglia had been

harassing her and asking her inappropriate questions (Id., ¶ 66, 70). Baer purportedly did

not take any action to provide safety to Doe (Id., ¶ 67). Doe then reported Renzaglia’s

harassment to the police (Id., ¶ 68). When contacted by the police, Baer said that she was

aware of the problem and would speak to Renzaglia (Id., ¶ 69).

Eventually, Doe requested Family and Medical Leave Act (“FMLA”) leave from

her employment (Id., ¶ 71, Doc. 35, p. 3) because, she states, it became too much for her

to bear the harassment, retaliation, and fear for her safety (Doc. 29, ¶ 71). When Doe

informed Renzaglia that she would take FMLA leave, she claims that Renzaglia criticized

her in person in front of other staff (Id., ¶ 73). Renzaglia accused her of not performing

her job and being overpaid (Id.). Doe asserts that Renzaglia had not made negative

comments about her performance before she reported Flowers for sexual assault (Id.).

In May 2018, Doe began a leave of absence (Id., ¶ 75, Doc. 35, p. 3). Her

employment was discharged less than one month later (Doc. 29, ¶ 76). Doe then filed a

Charge of Discrimination with the Equal Employment Opportunity Commission

(“EEOC”) against SIUC (Id., ¶ 81), and received a Notice of Right to Sue from the EEOC

in June 2019 (Id., ¶ 84). Doe initiated this lawsuit in August 2019 (Doc. 1), and she filed

an Amended Complaint in November of that same year (Doc. 29).

In her Amended Complaint, Doe alleges that, from 2016 to 2018, she suffered

extraordinary and severe harm due to sexual, physical, and emotional assaults from

Flowers (Id., ¶¶ 132-136), and a sexually hostile work environment created by SIUC (Id.,

¶¶ 89, 90, 108, 118). Doe claims that SIUC and Renzaglia failed to take appropriate actions

to protect her against sexual harassment at SIUC (Id., ¶¶ 92-102, 103-113, 126-131), despite

having actual notice of Flowers’s past lewd and inappropriate conduct (Id., ¶¶ 94, 130);

discriminated against her in the context of her employment at SIUC (Id., ¶¶ 88-91); and

retaliated against her for reporting the sexual abuse (Id., ¶¶ 114-125), all in violation of

Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 (“Title IX”), Civil

Rights Act of 1871, 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e (“Title VII”), as well as the rights guaranteed to her by the United States and

Illinois Constitutions, statutes, laws, and regulations (Id., pp. 14- 26, Doc. 34, ¶ 4).

Specifically, Doe brings six claims:

Count I: Violations pursuant to 20 U.S.C. § 1681(C), Title IX of the

Education Amendments Act of 1972 against SIUC and

Renzaglia;

Count II: Civil Rights Violation pursuant to 42 U.S.C. § 1983

Substantive Due Process, State Created Danger against

Renzaglia;

Count III: Sexual Harassment under Title VII of the Civil Rights Act of

1964 against SIUC;

Count IV: Retaliation under Title VII of the Civil Rights Act of 1964

against SIUC;

Count V: Negligence and Negligent Supervision against SIUC.

(Doc. 29, pp. 14-21).

In December 2019, Defendants SIUC and Renzaglia (collectively “Defendants”)

filed a Motion to Dismiss Counts I, II, and V of Doe’s Amended Complaint (Doc. 34).

Defendants argue that Counts I and II should be dismissed for failure to state claims upon

which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 35,

pp. 5-13), and Count V should be dismissed because this Court lacks subject matter

jurisdiction over this claim because the Illinois Court of Claims has exclusive jurisdiction

(Id., pp. 13-14). Doe filed a Response to Defendants’ Motion to Dismiss in January 2020.

(Doc. 51).

LEGAL STANDARD

Defendants move to dismiss under 12(b)(6) of the Federal Rule of Civil Procedure.

In ruling on a motion to dismiss for failure to state a claim upon which relief can be

granted under Rule 12(b)(6), a court must determine whether the complaint includes

“enough factual information to state a claim to relief that is plausible on its face” and raise

a right to relief above the speculative level. Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d

732, 736 (7th Cir. 2014) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

The Court of Appeals for the Seventh Circuit has clarified that, even after Twombly,

courts must still approach Rule 12(b)(6) motions by construing the complaint in the light

most favorable to the non-moving party, accepting as true all well-pleaded facts alleged,

and drawing all possible inferences in the non-moving party’s favor. Hecker v. Deere &

Co., 556 F.3d 575, 580 (7th Cir. 2009), cert denied, 668 U.S. 1148 (2010) (quoting Tamayo v.

Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008)).

ANALYSIS

I. Motion to Dismiss Title IX Claim (Count I)

A. Title IX Claim against Renzaglia

Defendants first argue that Doe’s Title IX claim should be dismissed against

Renzaglia because she does not have a claim against Renzaglia under Title IX. Title IX

provides, in relevant part: “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.” 20 U.S.C.

§ 1681.

Although neither the Supreme Court of the United States nor the United States

Court of Appeals for the Seventh Circuit has addressed the issue of individual liability

under Title IX, the Supreme Court has held that the purpose of Title IX is to prevent

discrimination by grant recipients. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286

(1998); Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 658 (1999). Additionally, the Seventh

Circuit has held that Title IX claims may “only be brought against a grant recipient and

not an individual.” Smith v. Metro. Sch. Dict. Perry Twp., 128 F.3d 1014, 1019 (7th Cir. 1997)

(emphasis added).

Acknowledging that the Count I Title IX claim can only be brought against SIUC,

Doe voluntarily dismisses this claim against Renzaglia in her Response to Defendants’

Motion to Dismiss. Accordingly, the Court dismisses Renzaglia from Count I.

B. Title IX Claim against SIUC

Next, Defendants allege that the Title IX claim against SIUC is preempted by the

Title VII claims. Citing cases from the Northern District of Illinois and one Seventh Circuit

case, Defendants assert that Title VII provides an exclusive remedy for employees

alleging discrimination on the basis of sex in federally funded education institutions. See

Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 862 (7th Cir. 1996); Ludlow v. Nw. Univ., 125 F.

Supp. 3d 783, 790 (N.D. Ill. 2015); Saud v. DePaul Univ., 2019 WL 557239, at *4 (N.D. Ill.

Oct. 29, 2019). In response, Doe contends that this issue is premature to a motion to

dismiss because her position as a Research Assistant at SIUC is a complicated one to

assess to determine whether it is a full employment position or a student position. She

argues that if she does not qualify as an employee as defined by Title VII, her Title IX

claim should not be preempted.

The Seventh Circuit approaches this issue by analyzing the circumstances of the

employee-employer relationship. See Heinemeier v. Chemetco, Inc., 246 F.3d 1078, 1082 (7th

Cir. 2001) (“look to the ‘economic realities’ of the relationship and degree of control the

employer exercises.”) (quoting Knight v. United Farm Bureau Mut., 950 F.2d 377, 378-80

(7th Cir. 1991)). In determining whether Doe was an employee of SIUC, this Court

employs the Seventh Circuit’s approach and considers factors such as the control SIUC

exercised over Doe along with her compensation and benefits. See Heinemeier, 246 F.3d at

1083.

Applying the Seventh Circuit approach, a district court in the Northern District of

Indiana found an employee-employer relationship in an employment discrimination case

where the defendant university compensated the plaintiff for her work at the university

and provided a temporal term of employment. Ruiz v. Trustees of Purdue U., 2008 WL

833125, at *11 (N.D. Ind. Feb. 20, 2008), report and recommendation adopted, 2008 WL

833130 (N.D. Ind. Mar. 26, 2008).

Here, no specific facts evidencing SIUC’s control exerted over Doe or payroll

records have been presented. In her Amended Complaint, however, Doe admitted that

she is a scientist who earned a Ph.D. in 2007 before being hired by SIUC; she was an

employee at SIUC from 2016 to 2018; her title was Research and Education Specialist; her

responsibilities include recruiting, training, mentoring students, performing research,

grant writing, and administrative duties associated with her job; she reported to

Renzaglia in her employment, who is a professor at SIUC; she was dependent on SIUC

for her livelihood; she requested and took a leave of absence from her employment with

SIUC; she claims that her employment at SIUC was constructively discharged following

her FMLA leave; and she lost her livelihood after the discharge. Under the circumstances

presented in this case, the Court finds that Doe was an employee of SIUC for Title VII

purposes.

In Waid, the Seventh Circuit determined that Title VII preempted any of the

plaintiff’s equitable relief under Title IX. Waid, 91 F.3d at 862 (“It is well-established that

Title VII’s own remedial mechanisms are the only ones available to protect the rights

created by Title VII”). Although the Waid court only dealt with a claim for equitable

relief,2 other district courts in the Seventh Circuit followed the Waid holding and found

that Title VII preempts Title IX claims. Kowal-Vern v. Loyola Univ. of Chi., 2002 WL 1880131,

at *5 (N.D. Ill. Aug. 14, 2002) (“Congress intended Title VII to exclude a damage remedy

under Title IX for individuals alleging employment discrimination.”) (citation omitted);

Blazquez v. Bd. of Educ. of City of Chicago, 2006 WL 3320538, at *11 (N.D. Ill. Nov. 14, 2006)

(“While the overall scope of Plaintiff’s claims might seem more appropriately addressed

as a systemic educational problem under Title IX, this particular claim is based upon the

harassment Plaintiff herself suffered. There is therefore no reason to look beyond the

comprehensive scope of remedies and actions available to Plaintiff under Title VII.”);

Ludlow, 125 F. Supp. 3d at 791. (A claim for employment discrimination under Title IX is

preempted by Title VII.).

Accordingly, the Court finds that Count I Title IX claim is preempted by Title VII.

The Court grants Defendants’ Motion to Dismiss Count I.3

2 The Seventh Circuit in Waid only dealt with a claim for equitable relief because the claim arose before the

amendments to Title VII allowed for more than equitable relief. See Waid, 91 F.3d at 862; Ludlow, 125 F.

Supp. 3d at 789. There is a circuit split on this issue: The Fifth and Seventh Circuits found that Title IX

claims are preempted by Title VII while the First, Third, and Fourth Circuits found that Title IX rights are

deemed independent of and not preempted by Title VII. Compare Lakoski v. James, 66 F.3d 751 (5th Cir 1995);

Waid, 91 F.3d 857; with Lipsett v. Univ. of Puerto Rico, 864 F.2d 881 (1st Cir. 1998); Doe v. Mercy Catholic Medical

Center, 850 F.3d 545 (3th Cir. 2017); Preston v. Com. Of Va. Ex Rel. New River Com. Col., 31 F.3d 203 (4th Cir.

1994).

3 Because the Court dismisses Count I of Doe’s Amended Complaint on the ground that Title VII preempts

Title IX claim, the Court need not address the issues of actual notice and deliberate indifference raised by

Defendants.

II. Motion to Dismiss Claim under 42 U.S.C. § 1983 against Renzaglia (Count II)

Defendants first seek to dismiss the 42 U.S.C. § 1983 (“Section 1983”) claim against

Renzaglia on the basis that Renzaglia is entitled to qualified immunity if she is sued in

her individual capacity.

To state a Section 1983 claim against Renzaglia in her individual capacity, Doe

must allege that Renzaglia caused or personally participated in the statutory or

constitutional violation. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.1995). Alleging

liability based on theories of respondeat superior or negligent supervision of

subordinates is not sufficient to establish a claim against an individual

under Section 1983. Wilson v. City of Chicago, 6 F.3d 1233, 1241 (7th Cir. 1993). At the same

time, to hold an individual liable under Section 1983, a plaintiff need not allege direct

participation in the deprivation of constitutional rights. Crowder v. Lash, 687 F.2d 996,

1006 (7th Cir.1982).

An individual may be held liable under Section 1983 if “she acts or fails to act with

a deliberate or reckless disregard of plaintiff’s constitutional rights, or if the conduct

causing the constitutional deprivation occurs at her direction or with her knowledge and

consent.” Id. (citations omitted). Supervisors may be held liable for the misconduct of

their subordinates where the “supervisors [knew] about the conduct and facilitate[d] it,

approve[d] it, condone[d] it, or turn[ed] a blind eye for fear of what they might

see.” Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467, 477 (7th Cir.1997) (quoting Jones

v. City of Chicago, 856 F.2d 985, 992 (7th Cir.1988). Such conduct by supervisors satisfies

the deliberate, reckless indifference standard required for liability under Section 1983.

Jones, 856 F.2d at 993.

Doe properly states an equal protection claim pursuant to Section 1983 against

Renzaglia in her individual capacity. Doe has alleged facts that, if accepted as true,

establish that Renzaglia knew about Flowers’s violent history with women and still

pressured Doe into entering a romantic relationship with Flowers (Doc. 29, ¶¶ 36, 37).

Doe alleges that she informed Renzaglia of Flowers’s sexual harassment on March 25,

2018, and that Renzaglia did not report the complaint until April 20, 2018—after Doe told

Renzaglia that she was planning to report Flowers to the police (Id. at ¶¶51, 53). After

reporting his conduct, Renzaglia failed to confiscate Flowers’s key to Doe’s workplace

following her report of the assaults (Id. at ¶67).

Assuming Doe’s allegations are true, a reasonable inference can be drawn that

Renzaglia was aware of the conduct but intentionally disregarded it. Doe also alleged

that Renzaglia failed to take any corrective action. Thus, Doe has established that

Renzaglia was aware of the conduct, facilitated it, approved it, condoned it, or even

turned a blind eye to the alleged harassment.

Renzaglia is not entitled to the defense of qualified immunity. Under this defense,

a government official is shielded from liability for performing discretionary functions

“insofar as [the] conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Lanigan, 110 F.3d at 471–72

(quotations omitted). Sexual harassment has long been recognized as a violation of the

Equal Protection Clause. See Bohen v. E. Chi., 799 F.2d 1180, 1185 (7th Cir. 1986). A

supervisor, like Renzaglia, is liable under Section 1983 for the misconduct of her

subordinates if the supervisor acts with deliberate, reckless indifference. See Jones, 856

F.2d at 993.

Here, the qualified immunity defense fails because Doe alleges that Renzaglia

intentionally disregarded the conduct she reported. Accordingly, the Court denies

Defendants’ motion to dismiss Count II with respect to Renzaglia in her individual

capacity.

As for Defendants’ next argument, while Count II of the Amended Complaint

clearly states that Renzaglia is “sued herein in her individual capacity,” for the sake of

clarification, this Court agrees that Renzaglia is immune from suit under Section 1983

regarding her official capacity, which closes the door on any claim by Doe for

compensatory damages from SIUC under Section 1983 (Doc. 29, ¶ 93). The Supreme

Court has ruled that Section 1983 applies to “persons” acting under color of law, and that

it is not applicable to government entities. Monroe v. Pape, 365 U.S. 167, 190-92 (1961). The

Court further reiterated its holding in Will v. Michigan Department of State Police, where

the Court held that neither a State nor its officials acting in their official capacities are

“persons” under Section 1983. Will v. Mich. Dep’t of State Police, 491, U.S. 58, 71 (1989).

SIUC, a state university which is considered to be an arm of the State, qualifies as

a “State” for purposes of Section 1983. See Turpin v. Koropchak, (S.D. Ill. June 11, 2008); see

also Kaimowitz v. Bd. of Trs. of Univ. of Ill., 951 F.2d 765, 767 (7th Cir. 1991) (finding that a

state university is not a person within the meaning of Section 1983). Renzaglia, acting in

her official capacity, is not a “person” under Section 1983. See Will, 491, U.S. at 71.

Defendants also allege that Doe failed to state a claim for constitutional violation

under Section 1983. This Court addressed the constitutional violation in the discussion

on the applicability of the defense of qualified immunity and disagrees.

Therefore, this Court denies Defendants’ Motion to Dismiss Count II.

III. Motion to Dismiss Negligence and Negligent Supervision Claim against SIUC

(Count V)

Lastly, Defendants argue that Count V regarding negligence and negligent

supervision should be dismissed due to lack of subject matter jurisdiction because the

Illinois Court of Claims has exclusive jurisdiction over all claims sounding in tort against

the Board of Trustees of SIU. See 705 ILCS 505/8(d). In her response, Doe seeks to

voluntarily dismiss Count V. Accordingly, this Court dismisses Count V.

CONCLUSION

For the reasons set forth above, the Court GRANTS in part and DENIES in part

Defendants’ Motion to Dismiss (Docs. 34, 35). Specifically, the motion is GRANTED as

to Counts I and V, and those claims are DISMISSED with prejudice. The motion is

DENIED as to Count II. The action will proceed on Counts II, HI, and IV only.

IT IS SO ORDERED.

DATED: August 13, 2020

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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