# Doe 1 v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College

> District Court, M.D. Louisiana · November 3, 2022

URL: https://www.frixlaw.com/law-library/cases/10192441

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** November 3, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10192441

## How later opinions describe it (automated extraction)

- finding that the plaintiff could not state a claim under § 1983 based on an underlying violation of Title IX because Title IX does not allow suit against individuals

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JANE DOE #1, ET AL. CIVIL ACTION

VERSUS 21-564-SDD-SDJ

BOARD OF SUPERVISORS OF
LOUISIANA STATE UNIVERSITY
AND AGRICULTURAL AND MECHANICAL
COLLEGE, ET AL.

RULING
This matter is before the Court on the Motion to Dismiss1 by LSU, the Board of
Supervisors of Louisiana State University and Agricultural and Mechanical College (the
“Board” & “LSU”), Troy Blanchard (“Blanchard”), Lindsay Madatic (“Madatic”), and
Jennifer Normand (“Normand”) or (collectively “LSU”). Plaintiffs, Jane Does #1 - #6
(“Plaintiffs”) filed an Opposition to this motion,2 to which LSU filed a Reply.3 For the
following reasons, the Court finds that LSU’s motion must be granted. Also before the
Court are the Motion to Dismiss by Defendant Jennie Stewart (“Stewart”)4 and the Motion
to Dismiss by Adelaide Russo (“Russo”).5 These motions shall also be granted.

1 Rec. Doc. No. 17.
2 Rec. Doc. No. 37.
3 Rec. Doc. No. 48.
4 Rec. Doc. No. 16. Plaintiff opposed this motion, Rec. Doc. No. 35; Stewart filed a Reply, Rec. Doc. No.
41.
5 Rec. Doc. No. 18. Plaintiff opposed this motion, Rec. Doc. No. 34; Russo filed a Reply, Rec. Doc. No.
49.
I. FACTUAL & PROCEDURAL BACKGROUND6
A. Parties
Plaintiffs are six individuals who identify themselves as Does #1-6. Does #1-5 are
current or former students of LSU.7 Doe #4 and Doe #5 allege that they began graduate
programs in the LSU Department of French Studies in August 2017, and they were

employed by LSU as graduate or teaching assistants.8 Doe #6 identifies herself as an
Associate Professor in the Department of French Studies at LSU.9
Defendant Board of Supervisors of Louisiana State University and Agricultural and
Mechanical College (the “Board” or “LSU”) is the governing body of the Louisiana State
University system and is a public constitutional corporation organized and existing under
the laws of the State of Louisiana to operate, manage, and control the system, including
its campus in Baton Rouge.10
Defendant Dr. Adelaide Russo (“Russo”), in her official and personal capacity, was
at all relevant times a person of the age of majority and an agent and/or employee of LSU;

since August of 2017, Russo has served as the Chair of LSU’s Department of French
Studies.11
Defendant Troy Blanchard (“Blanchard”), in his official and personal capacity, was
at all relevant times a person of the age of majority and an agent and/or employee of LSU;
he served as Interim Dean of the College of Humanities and Social Sciences at LSU from
May 2018 to November 2019, and thereafter as Dean of the College.12

6 The 130-page Complaint in this matter contains 474 individual allegations. Rec. Doc. No. 1.
7 Rec. Doc. No. 1, ¶ 46.
8 Id. at ¶¶ 6, 67.
9 Id. at ¶ 47.
10 Id. at ¶ 48.
11 Id. at ¶ 50.
12 Id. at ¶ 51.
Defendant Jennifer Normand (“Normand”), in her official and personal capacity,
was at all relevant times a person of the age of majority and an agent and/or employee
of LSU; she has served as Executive Director of Employee Relations at LSU since May
of 2002.13
Defendant Jennie Stewart (“Stewart”), in her official and personal capacity, was at

all relevant times a person of the age of majority and an agent and/or employee of LSU;
she served as LSU’s Title IX Coordinator from 2015 to March 2021.14
Defendant Lindsay Madatic (“Madatic”), in her official and personal capacity, was
at all relevant times a person of the age of majority and an agent and/or employee of LSU;
she has served as Associate Director of Employee Relations since June of 2010. During
all relevant times, she also served as Deputy Title IX Coordinator for Employees with
HRM.15
B. General Allegations
This case presents disturbing allegations of sexually predatory conduct by an LSU

employee and graduate student, Edouard d’Espalungue (“d’Espalungue”). The Plaintiffs,
former and current LSU students and an LSU assistant professor, allege that they were
victim to d’Espalungue’s deviant behavior, in various ways, which they reported to LSU
officials and engaged LSU’s Title IX process, to no avail. Unfortunately, the Plaintiffs are
confronted by Louisiana’s one-year statute of limitations, the shortest in the nation.16 The
conduct complained of and reported to LSU primarily occurred more than one year before

13 Id. at ¶ 52; Employee Relations is part of the Office of Human Resources Management (HRM) .
14 Id. at ¶ 53.
15 Id. at ¶ 54.
16 Only Louisiana, Kentucky, and Tennessee have a one-year statute of limitations. The other 47 States
have 2, 3, 4, 5 and even 6-year statutes of limitation.
the Plaintiffs filed their suit. If these events had occurred in the neighboring states of
Mississippi, which has a 3-year statute of limitations, or Texas, where there is a 2-year
status of limitations, most, if not all, of Plaintiffs’ claims would be timely. But, because
Plaintiffs face Louisiana’s one-year statute of limitations, in large part, their claims will not
be heard, and LSU will not be held to answer the allegations.

This case arises out the alleged conduct of d’Espalungue a man Plaintiffs describe
as a “charming, handsome, and successful serial sexual predator from France” who was
a graduate student and employee in LSU’s Department of French Studies from August
17, 2017 through November 20, 2020 when LSU suspended d’Espalungue for the
alleged September 6, 2020 rape of Doe #1.17 d’Espalungue is not named as a defendant
in this lawsuit because he fled the United States in December 2020 and is not likely to
return.
On September 30, 2018, d’Espalungue was arrested for sexual battery of a 21-
year-old student from the University of Louisiana at Lafayette (“ULL”) at a Catholic retreat
held in Rapides Parish, Louisiana.18 He was released on bond and returned to LSU.19

Plaintiffs allege that various officials at LSU learned of the arrest no later than October
10, 2018, after the arrest had been publicized in local media, including LSU’s student
newspaper.20
The Plaintiffs allege that after d’Espalungue’s 2018 rape arrest in Rapides Parish,
and continuing into the Spring of 2021, even after he fled to France, d’Espalungue
“subjected Does #1-5 and many other female LSU students, both within and outside the

17 Id. at ¶ 1.
18 Id. at ¶ 69.
19 Id.
20 Id. at ¶ 74.
Department of French Studies, to unwelcome sexual harassment, including quid pro quo
harassment, sexual assault, and/or rape that constituted discrimination on the basis of
sex.”21 Plaintiffs allege that LSU officials with authority to address the situation had actual
knowledge that d’Espalungue posed a substantial risk of sexual harassment and severe
harm to students based on his arrest for sexual battery.22 Yet, LSU’s “sole response” was

to remove d’Espalungue from the French 1001 class he was teaching in the Fall of 2020.23
LSU did not terminate d’Espalungue’s employment, nor did LSU take any actions to
prevent him from having access to LSU students.24
Plaintiffs allege that after his rape arrest, “Dr. Adelaide Russo (“Russo”), Chair of
the Department of French Studies, immediately hired d’Espalungue as her personal
research assistant, essentially promoting him to a status of greater influence and prestige
within the department. He continued leading French Department activities such as French
Table and French Movie Night which brought him in touch with undergrads, including his
former students Doe #2 and Doe #3.”25 d’Espalungue was also in charge of the French

Department web page and the LSU French Club, including its social media platforms,
which enabled him to interact with LSU undergrads and other students.26 In March of
2019, Russo aided d’Espalungue in creating the American Journal of French Studies
(AJFS) in connection with the LSU French Department and funded by LSU.27
Following d’Espalungue’s arrest, Russo met individually with grad students and
faculty in the French Department, including Does #4-6, and advised them that

21 Id. at ¶ 4.
22 Id. at ¶ 5.
23 Id. at ¶ 6.
24 Id. at ¶ 7.
25 Id. at ¶ 8.
26 Id. at ¶ 9.
27 Id. at ¶ 384. (“Notably, LSU and LSU French Studies are still listed as a ‘Institutional Partners.’”).
d’Espalungue was “innocent,” that he should be supported and his privacy respected, and
that any further discussion of his rape arrest would violate the law.28 Grad students Does
#4 and #5 reported to Russo that they had been sexually harassed by d’Espalungue and
had witnessed him sexually harass other students. Russo dismissed these claims and
appeared “irritated” by the reports. Russo told Doe #4 she should consider

d’Espalungue’s verbal harassment “a compliment,” foreshadowing what became “a
continuing series of comments and behaviors by Russo reinforcing gender stereotypes
and dismissing women.”29
Both grad students reported their complaints to other LSU officials with authority
to take action, but no investigation or interim protective measures materialized.30 Doe
#6, a professor in the French Department, filed multiple urgent complaints with various
LSU officials - all of whom had authority to act - beginning in 2018 and continuing until
2021 regarding d’Espalungue’s conduct, his access to undergrads, Russo’s hostility to
reports of harassment by d’Espalungue, and concern for undergrads required to interact

with d’Espalungue as a “leader” of French Department activities. Due to her reporting,
Doe #6 claims she was subjected to a hostile work environment and a continuing series
of retaliatory actions.31
On November 7, 2018, Associate Dean Jason Hicks (“Hicks”) of the College of
Humanities and Social Sciences met with d’Espalungue and Russo, advised them about
the complaints, and “made clear” why d’Espalungue had been removed from the
classroom. Hicks directly asked if d’Espalungue was “leading anything,” and Russo and

28 Id. at ¶ 10.
29 Id. at ¶ 11.
30 Id. at ¶ 12.
31 Id. at ¶ 13.
d’Espalungue falsely denied it.32 Doe #6 claims that, later that day, she texted Dean Troy
Blanchard (“Blanchard”) explaining that as long as d’Espalungue was engaging in a
variety of French Department activities, students were at risk.33 Despite this report, no
action was taken.34 In the following weeks, more complaints were made to LSU officials
about d’Espalungue’s conduct.35 Plaintiffs claim LSU was deliberately indifferent to the

complaints, launched no investigation, and implemented no interim protective
measures.36
On January 24, 2019, Hicks met with Russo again, and Russo denied that
d’Espalungue was engaged in any activities that would permit him contact with other
students despite her knowledge of numerous reports to the contrary.37
For the next two and a half years, more complaints of d’Espalungue’s conduct were
reported to LSU officials with authority, including the Dean’s Office, the Title IX Office,
and Human Resources Management.38 Although a few Title IX cases were opened,
“students were not informed of the outcomes or whether investigations had even been

conducted. There is no record that any investigation was launched, or interim measures
implemented.”39 In at least one case, the Title IX office found that the complaints of
harassment did not rise to a level warranting an investigation even though d’Espalungue
was still facing criminal rape charges, and multiple complaints against him for sexual
harassment had been lodged.40 d’Espalungue’s reported behavior included a wide range

32 Id. at ¶ 14.
33 Id. at ¶ 15.
34 Id. at ¶ 16.
35 Id. at ¶ 17.
36 Id. at ¶ 18.
37 Id. at ¶¶ 19-20.
38 Id. at ¶ 21.
39 Id. at ¶ 22.
40 Id.
of inappropriate conduct, from: “comments about students’ bodies, marital status, weight,
sexual history, and physical appearance, to sexualized and improper text messages, to
following students to their cars on multiple occasions, to blocking them from LSU French
Club social media accounts in retaliation for reporting harassment or declining his
advances, to unwelcomed touching, hugs, fondling, sexual assault, sexual battery and

rape.”41
Plaintiffs claim the deliberate indifference of LSU officials to d’Espalungue’s
reported conduct created a hostile educational and work environment for Does #4 and
#5, causing Doe #4 to give up her full-time status as a Ph.D. student at the end of the fall
semester 2019.42 Doe #5 “gave up the pursuit of her Ph.D. altogether after the spring
semester 2021, even though she had completed her Masters’ degree and all coursework
for her Ph.D” because “[s]he could no longer endure the mental, emotional and
psychological pain caused by the hostile environment in the French Department.”43
Plaintiffs also claim they suffered great distress due to the multiple activities

d’Espalungue was allowed to lead and/or participate in, giving him access to high school
students, one of whom he seduced and engaged in a sexual relationship with for several
months.44 In November 2020, five LSU undergrads filed Title IX complaints alleging
harassment by d’Espalungue and the endangerment of other female LSU students and
high school students.45 Three students submitted written statements:
32. Doe #3’s written statement described d’Espalungue’s extreme charm
and relentless sexual pursuit of her and other much younger women,
including unwelcome touching, grabbing, and attempts at kissing despite

41 Id. at ¶ 23.
42 Id. at ¶ 26.
43 Id. at ¶ 27.
44 Id. at ¶¶ 28-30.
45 Id. at ¶ 31.
her consistent refusals to engage in a sexual relationship with him; how he
used his 10-year age difference and his positions as leader of [the American
Journal of French Studies a/k/a AJFS] and French Club to “groom” her and
other young women; how he used an alias to shield his identity.46

33. Doe #3 attached more than 50 pages of screenshots of d’Espalungue’s
raunchy and inappropriate texts. Among them were, “You have beautiful
boobs;” “U just uncomfortable talking bout sexy stuff;” “u need to chill and
grow up;” “I think u have a problem with anything that relates to sex and
guys seriously;” “If we kiss it’s easier to shut up.” He repeatedly asked her
to meet him alone. He claimed to be collecting nudes from all over
Louisiana, texting, “I want to get my first country nudes,” “I still have no
nudes from [her Parish],” “Trying to do the entire map of Louisiana.” “You
know like boardgame.” “A flag on every district.”47

34. Doe #3 expressed fear for young female LSU and high school students:

He is still, however, the leader of AJFS and the leader of the LSU French
Club, which has very young girls in it, and one of which where he has made
a freshman his “vice president.” Like with us, he offers opportunities to those
that do not have the qualifications and makes it so they owe him. I am
obviously worried that the same things will happen or is happening to them
and that he will groom them like he did us. I do not think he is fit to be in
these positions and I think LSU should look at our accounts and his past
history and reevaluate him.48

Doe #2, Doe #3, and a third LSU undergrad participated in a Zoom conference
with Title IX Coordinator Jennie Stewart on November 16, 2020. Plaintiffs allege that and
Stewart’s response to the complaints that d’Espalungue was “using AJFS/LSU French
Club to meet and groom high school students was, ‘well, that’s not LSU policy,’ and ‘he
didn’t do anything illegal.’”49 Plaintiffs claim that “LSU officials with authority to rectify the

46 Id. at ¶ 32.
47 Id. at ¶ 33.
48 Id. at ¶ 34.
49 Id. at ¶ 35.
situation and who personally were involved and had actual knowledge of Plaintiffs’
complaints included:
• Jennie Stewart, Title IX Coordinator;
• Jeff Scott, Title IX Lead Investigator;
• Kimberly Davis, Title IX Graduate Assistant Investigator;
• Daniel DeLuca, Assistant Director of Student Advocacy & Accountability,
• Troy Blanchard, Dean of the College of Humanities and Social Sciences (HSS);
• Jason Hicks, Associate Dean of HSS;
• Jennifer Normand, Executive Director of Employee Relations with HRM;
• Lindsay Madatic, Deputy Title IX Coordinator for Employees and Assistant
Director of Employee Relations with HRM;
• Anissa Chenevert, Senior Employee Relations Consultant/Employee Relations
Coordinator;
• Kevin Bongiorni, Director of Undergraduate Studies, and
• Katharine Jensen, Director of Graduate Studies/French Studies.”50

Problematic for the Plaintiffs is the fact that the alleged conduct by d’Espalungue
and the complaints to LSU administrators occurred more than one year before this suit
was filed. The statute of limitations for these claims is one year, as will be discussed more
fully below. Plaintiffs claim they did not know, and could not have known, of the causal
connection between LSU’s official policy and practice of deliberate indifference to
discrimination and sexual harassment generally, and as they experienced, until the March
3, 2021 release of the Husch Blackwell Report.51 This Report
describes long-standing policies at LSU of underfunding and under-staffing
the Title IX Office, ignoring guidance from the Department of Education,
ignoring recommendations of its own Task Force in 2017, and allowing an
organizational culture in which complaints of sexual assault and/or
harassment were rarely investigated or taken seriously. “Institutional

50 Id. at ¶ 136.
51 Id. at ¶ 36. LSU retained the Husch Blackwell law firm to conduct the independent review in response to
a November 2020 USA Today article by Kenny Jacoby titled LSU mishandled sexual misconduct complaints
against students, including top athletes, USA TODAY, Nov. 16, 2020, https://www.usatoday.com/in-
depth/sports/ncaaf/2020/11/16/lsu-ignored-campus-sexual assault-allegations-against-derrius-guice-
drake-davis-other-students/6056388002/. A copy of the Report is available online at
https://www.lsu.edu/titleix-review/ (accessed Sep. 26, 2021).
policies were unclear, edicts were issued by supervisors that conflicted with
policy, employees were overburdened with vast institutional roles and not
provided with appropriate resources, calls for additional resources went
unheeded, concerns were not responded to, etc.”52

Plaintiffs claim they have suffered mental, emotional, and financial damages as a
result of LSU’s Title IX violations and its deliberate indifference to the risks to students
and faculty posed by its policies, practices, and custom.53
C. Specific Title IX Complaints
1. Doe #1
In August of 2020, d’Espalungue and Doe #1 met on the LSU campus when he
helped her with a flat tire on her bicycle. He gave her his phone number, and she thanked
him via text. They began casual communications and made plans to meet. Doe #1
insisted on a public place, so they met for a picnic, during which d’Espalungue began
asking about her sexuality and started touching her leg. She told him she wanted to go
home, and he offered to drive her; however, instead of driving to her apartment, he drove
to his own apartment where he raped her. Doe #1 had a rape kit performed, and the rape
was reported to the Title IX Office on September 8, 2020. The Title IX office transferred
the case to the Student Advocacy and Accountability Office (SAA) because the rape had
occurred off campus. After an investigation, Daniel DeLuca, Assistant Director of SAA,
informed the parties on November 9, 2020, that d’Espalungue had been suspended from
LSU from November 9, 2020 through December 31, 2021 for Sexual Misconduct,
Endangerment, and Disorderly Conduct based on Doe #1’s rape.54

52 Id. at ¶ 37 (quoting Husch Blackwell Report, “Recommendations,” p. 137).
53 Id. at ¶¶ 40-45.
54 Id. at ¶ 173.
d’Espalungue appealed and the matter was set for hearing on November 20, 2020,
before a University Hearing Panel via Zoom. At the hearing, d’Espalungue was
represented by an attorney while Doe #1 was accompanied only by a Lighthouse
advisor.55 The hearing lasted several hours, “during which Doe #1 had to endure
questioning and cross-examination by her attacker, and her advisor was not allowed to

speak. This procedure violates Title IX regulations adopted August 14, 2020.”56 Doe #1
endured questions about her behavior following the rape, which caused her severe
mental and emotional pain.57 d’Espalungue’s suspension was upheld by the University
Hearing Panel. He appealed to the Dean of the College of Humanities and Social
Sciences. His appeal was denied on December 11, 2020.58
In October 2020, after Doe #1 reported her rape but before any action was taken
by LSU, Russo emailed faculty and graduate students in the French Department and
directed them “to report any Title IX complaints to her and she would decide whether they
should be reported to Title IX. She wrote, ‘[a]ll instances covered by these regulations

must be reported to the Department Chair, and I will instruct you to contact the Dean’s
Office and the Title IX office if you have reason to lodge a complaint.’”59 Plaintiffs allege
this instruction violates LSU’s policy and Title IX regulations because, “[i]n no situation is
it permissible to instruct students that they are barred from reporting sexual harassment,

55 Id. at ¶ 174 (noting “The Lighthouse is a confidential interpersonal violence prevention and advocacy
program which offers free services to the LSU campus community See https://lsu.edu/shc/wellness/the-
lighthouse-program/index.php”).
56 Id. (noting “Effective August 14, 2020, Title IX regulations require postsecondary institutions to hold a live
hearing with the opportunity for each party’s advisor to conduct cross-examination of parties and witnesses.
§ 106.45(b)(6)(i)”).
57 Id. at ¶ 175.
58 Id. at ¶ 176.
59 Id. at ¶ 177.
sexual assault, or retaliation to the Title IX Coordinator.”60 Russo’s conduct was reported
to LSU officials, but no action was taken against her.61
2. Does #2 and #3
In the fall of 2020, “at least six” female undergraduate students discussed filing
formal Title IX complaints based on d’Espalungue’s conduct; five students actually filed,

including Doe #2 and Doe #3.62 On November 6, 2020, Doe #3 lodged a formal Title IX
complaint of sexual misconduct against d’Espalungue. Doe #3 requested that
d’Espalungue be removed from school complaining that:
she feels he continues to involve more people. . .On November 10, 2020,
Stewart spoke to Doe #3 by telephone. Doe #3 reported that d’Espalungue
had created ‘journal in the French department – partnership, he’s still in
charge of that and French Club; Doe #3 was no longer affiliated with the
journal; she refused to meet with him alone, under table touching leg;’ ‘Texts
received where he was asking her to come over, saying things appear to be
inappropriate.’ Apparently, Stewart asked a representative of the
Lighthouse Program to contact Doe #3.63

On November 16, 2020, Stewart held a video conference with three undergrads
who had experienced or witnessed d’Espalungue’s sexual harassment, including Doe #2
and Doe #3. During this conference, Doe #3 provided her a own written statement and
the written statements of two other students who were not on the call. These five students
filed formal Title IX complaints on November 16, 2020.64
Stewart’s notes, made in Doe #3’s complaint file, detail conduct that she believed
might violate multiple federal statutes.65 Both Stewart’s notes and the students written

60 Id. at ¶ 178.
61 Id. at ¶ 179.
62 Id. at ¶ 180.
63 Id. at ¶¶ 181, 182.
64 Id. at ¶ 183.
65 Id. at ¶ 184 (footnote omitted).
statements contain lengthy descriptions of specific instances of d’Espalungue’s
conduct.66 As to the report that d’Espalungue had used the Journal to recruit/groom high
school students, and had sex with one of them, Stewart’s response was: “oh, well, that’s
not LSU policy,” and “he didn’t do anything illegal.”67 LSU’s Title IX office closed all five
complaints without investigation on November 16, 2020, even though d’Espalungue’s

suspension from LSU technically ended on December 31, 2021.68
3. Doe # 4
On December 11, 2020, Doe #4 filed a formal Title IX complaint, alleging that she
was retaliated against by Russo for reporting d’Espalungue’s conduct directly to the Title
IX office instead of to Russo.69 Stewart conducted a video conference with Doe #4 on
December 11, 2020, and Doe #4 recounted Russo’s admonition to bring complaints about
d’Espalungue directly to her; she also complained that Russo cut Doe #4’s pay after she
complained about d’Espalungue. Doe #4 complained that Russo was rude and
disrespectful, causing Doe #4 to seek therapy for her continued fear of retaliation as she
completed her dissertation.70

On December 18, 2020, Title IX Lead Investigator Jeff Scott held a video
conference with Doe #4 on January 12, 2021, at which Doe #4 detailed the hostile work
and education environment she was enduring based on Russo’s treatment.71 However,
Plaintiffs allege no action was ever taken on Doe #4’s complaint.72

66 Id. at ¶¶ 186, 190-193 (statements of Doe #3 and the 2 other students not on the call with Stewart).
67 Id. at ¶ 194.
68 Id. at ¶ 195.
69 Id. at ¶ 196.
70 Id. at ¶ 197.
71 Id. at ¶¶ 198-199.
72 Id. at ¶ 200.
D. d’Espalungue’s Escape to France/Aftermath
On November 23, 2020, three days after d’Espalungue’s one-year suspension was
imposed by the University Hearing Panel, d’Espalungue’s criminal defense attorney
sought, and was granted, permission for d’Espalungue to travel to Paris, France to spend
Christmas with his family, even though France is a non-extradition country.73

D’Espalungue left for France on December 14, 2020 and has never returned.74
Nevertheless, in February 2021, the Rapides Parish District Attorney finally presented the
rape case of the ULL student to a grand jury. The grand jury returned a true bill indicting
d’Espalungue for Third Degree Rape.75
Plaintiffs allege that, as of February 24, 2021, despite being a fugitive living in
France, d’Espalungue “ was still in control of the LSU French Club social media accounts,
was hosting and planning LSU French Club meetings with undergrads, was moderating
their interaction through the GroupMe app and had just received a $1000 grant from the
LSU French Department for AJFS.”76 Plaintiffs allege that through these contacts,

d’Espalungue continued to harass students at LSU and that this ongoing harassment was
reported to LSU’s Title IX office on multiple occasions.77 On February 10, 2021, Doe #4
complained to Jeffrey Scott in the Title IX office that d’Espalungue continued to work for
the American Journal of French Studies, partnered with and created by LSU, which
provided him access to LSU undergraduates and high school students.78 Scott replied
advising Doe #4 that the AJFS was no longer affiliated with LSU, to which Doe #4 replied

73 Id. at ¶¶ 200-201.
74 Id. at ¶ 203.
75 Id. at ¶ 204.
76 Id. at ¶ 205.
77 Id. at ¶ 206.
78 Id. at ¶ 207.
that the AJFS website still lists LSU as a partner and donor. Scott never responded.79
Doe #4 pressed the issue further and contacted Scott again, advising that d’Espalungue
was still hosting and planning LSU French Club meetings, and he continued to act as the
leader of this group.80 Scott responded, advising that he shared the information with
Stewart to review; however, there was never any follow-up response from Scott or

Stewart.81
On February 25, 2021, Doe #4 met with Stewart (Title IX) and DeLuca (SAA) and
was advised they had no power to stop d’Espalungue from claiming an affiliation with
LSU.82 Also on this date, Doe #6 “urgently” contacted various LSU officials, including
Russo, Hicks, Kevin Bongiorni, Director of Undergraduate Studies, and Kate Jensen,
Director of Graduate Studies, and informed them that d’Espalungue was continuing to run
LSU’s French Club via a social media platform purportedly affiliated with LSU, that he had
blocked students who had reported his conduct from the platform, and that he was using
the platform to continue his pattern of harassment and grooming.83 Russo responded,

claiming a different student was President of the French Club, but she admitted she was
“‘unaware of the French Club’s social media presence.’”84
On February 25, 2021, Doe #2 checked the French Club’s social media platforms,
only to discover that she had been blocked or removed. She was able to regain access
and observed that d’Espalungue removed her on January 22, 2021.85 Doe #2 posted
innocuously about her love of languages. On February 26, 2021, d’Espalungue

79 Id. at ¶ 208.
80 Id. at ¶ 211.
81 Id. at ¶ 212.
82 Id. at ¶ 213.
83 Id. at ¶¶ 215-216.
84 Id. at ¶ 217.
85 Id. at ¶ 219.
communicated with her through the French Club app. When Doe #2’s boyfriend posted
on the AJFS Instagram page about d’Espalungue’s suspension from LSU, d’Espalungue
then sent multiple texts to Doe #2 threatening to file a criminal complaint against her if
her boyfriend did not stop “harassing” d’Espalungue.86
Plaintiffs claim:

221. A series of texts ensued with d’Espalungue stating that his is the
founder and president of the French Club and was helping Dr. Russo who
“needs more students involved” and he was “just trying to put you on a
team.” Screenshots of d’Espalungue’s texts of February 26, 2021, state:

As far as the group, I am the president and founder of this club so
f*** off with your BS accusations; Hey I am done w this conversation,
this guy only wants problems. I have no academic authority on you
[Doe #2], I was acting like you seems to b very motivated in the group
and Pr. Russo does have a need for more students involve is found
in the project so, forget my offer. I was genuinely trying to put you on
a team, but this is just going too far.87

222. Doe #2 forwarded all of the information with screen shots to Stewart in
the Title IX office, which comprise[d] her second Title IX complaint. She
summarized d’Espalungue’s harassment and control over LSU clubs and
educational programs as follows:

Bottom line: He acts and says he is president of the LSU French
Club, as well as uses LSU for his journal (American Journal of French
Studies.

• He affiliates LSU with his Journal by noting on his Instagram
that it is “hosted by @LSU” and lists the address as his former
office in Hodges Hall.

• He is admin of the French Club GroupMe and I believe that
he is (still) the admin of the Facebook group for French Club
LSU.

86 Id. at ¶ 220.
87 Id. at ¶ 221.
• He claims he is the president of the club and still acts as
such (organizing meetings, etc.).

• The groupme for the club is directly linked from French Club
LSU page.

• The group is LSU students, mostly female.88

On March 1, 2021, Doe #2 asked Stewart how she could protect young women
interacting with d’Espalungue via the LSU sites and apps.89 Stewart’s response was that
LSU could do nothing, and she recommended starting new clubs to follow while admitting
that those following d’Espalungue’s platforms would have to choose to leave.90
D’Espalungue continued to run these social media platforms under the guise of being
affiliated with LSU despite LSU officials being fully apprised of what was going on.91
E. The Husch Blackwell Report
The Husch Blackwell Report, published on March 3, 2021, concluded that: “The
University’s Title IX Office has never been appropriately staffed or provided with the
independence and resources to carry out Title IX’s mandates.”92 Plaintiffs’ Complaint
reproduces and recounts a plethora of deficiencies identified in the Husch Blackwell
Report, excerpted in part, below:93
“Institutional reporting policy and training have been unclear for years”94

[F]ive reviews in prior years flagged problems with LSU’s Title IX processes
but LSU leadership implemented few of the recommendations.95

88 Id. at ¶ 222.
89 Id. at ¶ 223.
90 Id. at ¶ 224.
91 Id. at ¶¶ 226-232.
92 Id. at ¶¶ 233-234 (quoting the Husch Blackwell Report, p. 4)(internal quotation marks omitted).
93 Id. at ¶¶ 235-248
94 Id. at ¶ 235 (quoting the Husch Blackwell Report, p. 4)(internal quotation marks omitted).
95 Id. at ¶ 236 (citing the Husch Blackwell Report, p. 36).
“Institutional policies were unclear, edicts were issued by supervisors
that conflicted with policy, employees were overburdened with vast
institutional roles and not provided with appropriate resources”96

The Husch Blackwell report concluded that LSU failed to appropriately staff its Title
IX Office despite many “alarms” sounded by the Title IX office itself.97 Plaintiffs allege
that, during the time period relevant this lawsuit, LSU “had only one Title IX Coordinator,
Jennie Stewart, and one ‘lead’ investigator for a campus with over 34,000 students.”98
The Complaint sets forth facts that plausibly show that LSU’s Title IX office has been
understaffed and ill-resourced from 2016 up to and including the times relevant to this
lawsuit.
Stewart was hired as LSU’s first “full-time” Title IX Coordinator in September
2016.99 “Stewart realized within her first six months that LSU’s ‘Title IX staffing was
woefully behind peer institutions and that she needed additional resources and staff to
avoid a bevy of potential harms including ‘litigation, damages, reputation costs, lost
enrollment, [unfavorable] media, harm to folks who’ve chosen LSU.’”100 In September
2016, Stewart requested $329,000 to properly staff and train the Title IX office, including
funds to hire investigators and other assistance.101 The only additional assistance
provided was a lead investigator, a position it took 19 months to fill.102

96 Id. at ¶ 237 (quoting the Husch Blackwell Report, p. 137).
97 Id. at ¶ 238 (quoting the Husch Blackwell Report, p. 36).
98 Id. at ¶ 239.
99 Id. at ¶ 240 (quoting U.S. Dep’t Ed. Office for Civil Rights, “Dear Colleague Letter: Sexual Violence”
(2011). A copy of the 2011 Dear Colleague Letter, which was rescinded by the Department in September
2017, is available at
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.).
100 Id. at ¶ 241 (quoting the Husch Blackwell Report, p. 36).
101 Id. at ¶ 242 (quoting the Husch Blackwell Report, pp. 42-43).
102 Id. at ¶ 243 (quoting the Husch Blackwell Report, p. 43).
Scott was hired in March 2018 to be the Lead Title IX Investigator for the LSU
system, responsible for “investigating all Title IX complaints for LSU students at all nine
campuses.”
The Husch Blackwell Report also concluded that LSU ignored Department
guidelines on staffing and conflicts of interests, one example being that Stewart reported

directly to LSU’s Office of General Counsel, a reporting hierarchy “‘rife with conflict of
interest.’”103
The Husch Blackwell Report concluded LSU consistently failed to develop policies
and procedures to properly investigate claims of sexual harassment, assault, and
violence, and it failed to provide policy, procedures or training for staff and students.104 It
is the Husch Blackwell Report that Plaintiffs rely on to save their claims from being time
barred. Plaintiffs contend:
[LSU] actively concealed its own misconduct by “going through the motions”
of commissioning task forces, listening to power point presentations of its
Title IX Coordinator, and receiving other reports outlining its many policy
failures which resulted in rampant sexual harassment and discrimination
within its university system, all the while intentionally deciding to ignore the
reports and take no substantive action to address the system-wide failures
which were well-documented by at least 2017.105

Plaintiffs maintain this information was “intentionally and fraudulently concealed from the
public and from Plaintiffs until the release of the Husch Blackwell Report on March 3,
2021.”106

103 Id. at ¶ 247 (quoting the Husch Blackwell Report, p. 141).
104 Id. at ¶ 250.
105 Id. at ¶ 251.
106 Id. at ¶ 252.
F. Damages
All Plaintiffs claim they have suffered significant damages due to LSU’s actions or
inactions, including: emotional and physical pain and suffering, mental distress,
humiliation, medical expenses for mental and physical health treatment, anxiety, physical
assault, denials of access to educational benefit, loss of educational benefit including

academic work and scholarship opportunities, loss of income, loss of enjoyment of life,
economic damages associated with moving, denial of career advancement and equity
pay, and other economic or non-economic damages, for which they are entitled to just
compensation.107
Doe #4 claims she suffered emotional distress due to the “unbearable hostile
environment resulting from Russo’s ongoing retaliation for Doe #4’s Title IX complaints
about d’Espalungue’s harassment and Russo’s reprisals.”108 Doe # 4 ultimately gave up
her status as a full-time LSU student at the end of the fall semester of 2019, and she lost
her “graduate assistant positions which had paid for her tuition; she lost lost physical

access to the LSU library and continues to suffer stress and anxiety due to the hostile
educational environment, even long distance.”109 She still fears retaliation from Russo.110
Doe #4 details what she classifies as “a cumulative, continuing series of hostile acts
beginning in 2018 and continued through at least August of 2021.”111
Doe #5 claims she abandoned her Ph.D program at LSU, even though she had
completed her coursework, because “she could no longer endure the hostile educational

107 Id. at ¶ 259.
108 Id. at ¶ 265.
109 Id.
110 Id.
111 Id. at ¶ 266.
environment and the retaliation and disrespect from Dr. Russo.”112 Doe #5 eventually
abandoned her Ph.D prospects due to the hostile environment at LSU.113
Does #1-5 claim “they were deprived of a normal educational environment and
equal access to educational programs and benefits due to LSU’s deliberate indifference
and official policy of gender discrimination.”114

Doe #6, an Associate Professor in LSU’s French Department, claims that, in
retaliation for her advocacy for the students subjected to d’Espalungue’s sexual
harassment and assaults, Russo caused her to be “the lowest-paid tenured professor in
the LSU Department of French Studies, despite having more seniority, a greater number
and quality of published articles, and a doctoral degree from Harvard.”115 After Doe #6
reported d’Espalungue’s conduct, her equity raise “came to a halt,” and she received no
salary increase even though she took on additional work responsibilities which should
have been accompanied by an increased salary.116 Finally, Doe #6 claims that, in April
2020, an endowed professorship became available that came with an increased salary,

but Russo advised Doe #6 that Doe #6 was ineligible to apply because she already had
a named professorship; thus, Doe #6 did not apply. Russo, however, successfully applied
herself despite also already having a named professorship.117
G. Claims for Relief
In Count I, Does #1-3 claim the LSU Board of Supervisors were deliberately
indifferent under Title IX.118 In Count II, all Plaintiffs assert a hostile environment claim in

112 Id. at ¶ 268.
113 Id.
114 Id. at ¶ 269.
115 Id. at ¶ 270.
116 Id.
117 Id.
118 Id. at ¶¶ 271-286.
violation of Title IX.119 In Count III, Doe #3 asserts Quid Pro Quo and Clery Act
harassment under Title IX.120 In Count IV, Does #1-5 assert a heightened risk claim under
Title IX.121 In Count V, Does #4-6 assert retaliation claims under Title IX.122
In Count VI, all Plaintiffs assert a denial of equal protection claim under 42 U.S.C.
§ 1983 and the Fourteenth Amendment.123 In Count VII, Does #2-3 assert a denial of

procedural due process (state created danger) claim under 42 U.S.C. § 1983 and the
Fourteenth Amendment.124 In Count VIII, all Plaintiffs assert a Deterrence and Retaliation
claim under 42 U.S.C. § 1983 and the First Amendment.125 In Count IX, Does #1-5 assert
a claim for denial of procedural due process (bodily integrity) under 42 U.S.C. § 1983 and
the Fourteenth Amendment.126 In Count X, Does #2-5 assert a denial of due process
claim under 42 U.S.C. § 1983 and the Fourteenth Amendment.127
Plaintiffs also assert claims under Louisiana state law. In Count XI, all Plaintiffs
assert a negligence claim under Louisiana Civil Code Article 2315.128 In Count XII, all
Plaintiffs assert claims of negligent and intentional infliction of emotional distress under
Louisiana Civil Code Article 2315.129

Plaintiffs concede dismissal is appropriate for the following claims: Doe #3’s Clery
Act Claim,130 § 1983 claims against the Board and against Blanchard, Madatic, and

119 Id. at ¶¶ 287-299.
120 Id. at ¶¶ 300-311.
121 Id. at ¶¶ 312-321.
122 Id. at ¶¶ 322-332.
123 Id. at ¶¶ 333-360.
124 Id. at ¶¶ 361-391.
125 Id. at ¶¶ 392-420.
126 Id. at ¶¶ 421-443.
127 Id. at ¶¶ 444-456.
128 Id. at ¶¶ 457-466.
129 Id. at ¶¶ 467-474.
130 Rec. Doc. No. 37, p. 19.
Norman in their official capacities,131 negligence claims asserted by Does #4-6 as barred
by the Louisiana Workers’ Compensation Act,132 and claims for punitive damages under
Title IX or against the individuals in their official capacities under Section 1983.133
Accordingly, those claims shall be dismissed with prejudice and will not be addressed
below.

II. LAW & ANALYSIS
When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well
pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”134 The
court may consider “the complaint, its proper attachments, documents incorporated into
the complaint by reference, and matter of which a court may take judicial notice.”135 “To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state
a claim to relief that is plausible on its face.’”136 In Bell Atlantic Corp. v. Twombley, the
United States Supreme Court set forth the basic criteria necessary for a complaint to
survive a Rule 12(b)(6) motion to dismiss. “While a complaint attached by a Rule 12(b)(6)

motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to
provide the grounds of his entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.”137 A complaint
is also insufficient if it merely “tenders ‘naked assertion[s]’ devoid of ‘further factual

131 Id. at p. 27.
132 Id. at pp. 53-54.
133 Id. at p. 56.
134 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
135 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).
136 In re Katrina Canal Breaches Litigation, 495 F.3d at 205.
137 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and brackets
omitted) [hereinafter Twombly].
enhancement.’”138 However, “[a] claim has facial plausibility when the plaintiff pleads the
factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.”139 In order to satisfy the plausibility standard, the
plaintiff must show “more than a sheer possibility that the defendant has acted
unlawfully.”140 “Furthermore, while the court must accept well-pleaded facts as true, it will

not ‘strain to find inferences favorable to the plaintiff.’”141 On a motion to dismiss, courts
“are not bound to accept as true a legal conclusion couched as a factual allegation.”142
Rather, the inquiry is whether the allegations in the Complaint plausibly state a claim for
relief.
A. Title IX Claims

Title IX prohibits discrimination on the basis of sex in federally-funded educational
programs.143 Title IX 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.”144 Title IX is enforceable by private right of action for damages.145 There are
two avenues to pursue a claim under Title IX: one based on an institution’s official policy
of intentional discrimination on the basis of sex and one that seeks to hold an institution

138 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations
omitted) [hereinafter Iqbal].
139 Twombly, 550 U.S. at 556.
140 Iqbal, 556 U.S. at 678.
141 Taha v. William Marsh Rice University, No. 11-2060, 2012 WL 1576099, at *2 (S.D. Tex. May 3, 2012)
(quoting Southland Sec. Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004)).
142 Twombly, 550 U.S. at 556 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
143 20 U.S.C. § 1681(a).
144 20 U.S.C. § 1681(a).
145 Franklin v. Gwinnett Cty. Public Schs., 503 U.S. 60 (1992).
liable for teacher-on-student or student-on-student sexual harassment.146 Plaintiffs in this
case make both claims.147
“A plaintiff may obtain damages under Title IX ‘where the funding recipient
engages in intentional conduct that violates the clear terms of the statute.’”148 “The
Supreme Court has ‘consistently interpreted Title IX's private cause of action broadly to

encompass diverse forms of intentional discrimination.’”149 Deliberate indifference to
student on student claims is considered an intentional violation of Title IX.”150 Retaliation
for making a complaint of sex discrimination also constitutes intentional discrimination in
violation of Title IX.151
1. Prescription/Tolling
LSU argues that Plaintiffs’ Title IX claims are “largely prescribed.”152 “A statute of
limitations may support dismissal under Rule 12(b)(6) where it is evident from the
plaintiff's pleadings that the action is barred and the pleadings fail to raise some basis for
tolling or the like.”153 Title IX claims are subject to state statutes of limitations for personal
injury actions.154 Louisiana Civil Code article 3492 provides that the prescriptive period

for personal injury actions is one year. “Absent tolling, the limitations period runs from the
moment a plaintiff's claim ‘accrues,’ and while we borrow the limitations period from state

146 See Pederson v. Louisiana State University, 213 F.3d 858, 882 (5th Cir. 2000); see also Doe 1 v. Baylor
University, 240 F.Supp.3d 646, 657 (W.D. Tex. 2017).
147 Rec. Doc. No. 37, p. 14.
148 Klocke v. Univ. of Tex. at Arlington, 938 F.3d 204, 209-210 (5th Cir. 2019) (citing Davis v. Monroe Cnty.
Bd. of Educ., 526 U.S. 629, 642 (1999)).
149 Id. at 210 (citing Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183 (2005)).
150 Id. (citing Davis, 526 U.S. at 643–46).
151 Jackson, 544 U.S. at 174.
152 Rec. Doc. No. 17-2, p. 8.
153 King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 758 (5th Cir. 2015) (quoting Jones v. Alcoa, Inc.,
339 F.3d 359, 366 (5th Cir. 2003)).
154 Sewell v. Monroe City Sch. Bd., 974 F.3d 577, 583 (5th Cir. 2020); King-White v. Humble Indep. Sch.
Dist., 803 F.3d at 759; Griffin v. Round Rock Indep. Sch. Dist., 82 F.3d 414, 1996 WL 166999, at *1 (5th
Cir. 1996) (unpublished per curiam).
law, ‘the particular accrual date of a federal cause of action is a matter of federal law.’”155
The Fifth Circuit has held that, under federal law, a claim accrues when a plaintiff knows
or has reason to know of the injury giving rise to the claim—that is, the limitations period
begins to run the moment a plaintiff becomes aware that she has suffered an injury or
otherwise obtains sufficient information to know that she has been injured.156 “A plaintiff’s

awareness encompasses two elements: (1) the existence of the injury; and (2) causation,
that is, the connection between the injury and the defendant’s actions.”157 The plaintiff
bears the burden of showing that a case presents a rare and exceptional circumstance to
which equitable tolling applies.158
In Chappell v. Emco Machine Works Co., the Fifth Circuit set forth three non-
exclusive circumstances which warrant equitable tolling of the limitations period: (1) the
pendency of a suit between the same parties in the wrong forum; (2) plaintiff's
unawareness of the facts giving rise to the claim because of the defendant's intentional
concealment of them; and (3) the EEOC's misleading the plaintiff about the nature of her
rights under Title VII.159 Although the Fifth Circuit has left open the possibility “that there

may be other bases that warrant equitable tolling,”160 the recognized bases provide
important guidance.161

155 King-White, 803 F.3d at 762. (quoting Frame v. City of Arlington, 657 F.3d 215, 238 (5th Cir. 2011)).
156 Id.
157 Id. (citations and internal quotation marks omitted).
158 Hood v. Sears Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999). Teemac v. Henderson, 298 F.3d 452,
457 (5th Cir. 2002) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)).
159 601 F.2d 1295, 1302-03 (5th Cir. 1979). See Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 644 (5th Cir.
1988)(listing the three potential bases for equitable tolling); see also Manning v. Chevron Chemical Co.,
LLC, 332 F.3d 874, 880 (5th Cir. 2003)(same); see also Melgar v. T.B. Butler Publishing Co., Inc., 931 F.3d
375 (5th Cir. 2019)(same).
160 Melgar, 931 F.3d at 381 (citing Hood., 168 F.3d at 232); Blumberg, 848 F.2d at 644–645.
161 Lewis v. Louisiana State University, No. 21-198-SM-RLB, 2021 WL 4139138, *6 (M.D. La. Sep. 10,
2021).
Plaintiffs’ lawsuit was filed on October 4, 2021; thus, LSU contends only claims
accruing on or after October 4, 2020 are timely.
Plaintiffs concede that the prescriptive period applicable to their claims is one year.
However, Plaintiffs invoke the equitable tolling doctrines of fraudulent concealment, the
continuing violation doctrine, and contra non valentum to save their claims from being

time-barred.162 The gravamen of the Plaintiff’s tolling arguments is that “they did not know
and could not have known until the Husch-Blackwell Report was released on March 3,
2021, that LSU had longstanding official policies and practices of deliberate indifference
to gender discrimination and that there was a direct causal connection between this
official policy and the injuries they experienced.”163
To find shelter under the doctrine of fraudulent concealment, the Plaintiffs must
plead facts which plausibly show that, despite due diligence, they were effectively
precluded from discovering the facts that form the basis of their claims because LSU
concealed the alleged conduct.164 Concealment must be accomplished by commission

as opposed to omission. “[T]he defendant ‘must be guilty of some trick or contrivance
tending to exclude suspicion and prevent inquiry.’”165 Silence is not enough, and “denial
of wrongdoing” is not enough.166
“Under the continuing violations doctrine, a plaintiff may complain of otherwise
time-barred discriminatory acts if it can be shown that the discrimination manifested itself
over time, rather than in a series of discrete acts.”167

162 Rec. Doc. No. 37, p. 6.
163 Id. at p. 7.
164 State of Tex. v. Allan Const. Co., Inc., 851 F.2d 1526, 1528 (5th Cir. 1988).
165 Id. at 1528-1529; accord Rx.com v. Medco Health Solutions, 322 Fed.Appx. 394, 398 (5th Cir. 2009).
166 Id. at 1532; See also, In re Pool Products Distribution Market Antitrust Litigation, 988 F.Supp.2d 696,
723 (E.D. La. 2013).
167 Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003).
Contra non valentem is a state law equitable tolling doctrine, available only in
“exceptional circumstances,” that “suspends the prescriptive period [when] the cause of
action is not known or reasonably knowable by the plaintiff, even though his ignorance is
not induced by the defendant.”168 Sometimes referred to as the “discovery rule,” contra
non valentem looks to the reasonableness of the tort victim's action or inaction vis-à-vis

discovery.169
Invoking the fraudulent concealment doctrine, Plaintiffs rely on the decision of the
Western District of Texas in Lozano v. Baylor University.170 Lozano involved a female
student at Baylor University who was verbally and physically assaulted in the spring of
2014 by her boyfriend, a Baylor football player.171 Although she reported the assaults to
the University, no action was taken.172 However, on May 26, 2016, the Pepper Hamilton
law firm published an investigative report on campus sexual assault which had been
commissioned by Baylor.173 Thereafter, in October 2016, the plaintiff filed her first Title
IX complaint. Baylor moved to dismiss pursuant to the two-year statute of limitations

period applicable to Title IX claim under Texas law. The court denied the motion, finding
the plaintiff had plausibly alleged fraudulent concealment by Baylor regarding her Title IX
heightened risk claim. The court held:
Although Lozano was aware of the existence of an injury when Chafin
assaulted her in March and April 2014, it is not evident from the complaint
that Lozano was aware of facts that would cause a reasonable person to

168 Renfroe v. State ex rel. Dept. of Transp. & Dev., 809 So. 2d 947, 953 (La. 2002), cited in Meggs v. Davis
Mortuary Serv., Inc., 301 So. 3d 1208, 1213 (La. App. 5 Cir. 2020), and Ellis v. Evonik Corporation, --- F.
Supp.3d ---, 2022 WL 1719196, *3 (E.D. La. 2022).
169 Griffin v. Kinberger, 507 So. 2d 821, 824 n.2 (La. 1987); See also, Jordan v. Emp. Transfer Corp., 509
So. 2d 420, 423 (La. 1987)(“[A] plaintiff will be responsible to seek out those whom he believes may be
responsible for a specific injury”.)
170 408 F.Supp.3d 861 (W.D. Tex. 2019).
171 Id.
172 Id. at 875.
173 Id. at 903.
conclude that there was a causal connection between her assaults and the
conduct of Baylor staff and officials, or to seek professional advice on this
question. She alleges that at the time of her assaults, "Lozano was unaware
of Baylor's pervasive failings ... [in] response to a known issue of sexual
misconduct and domestic violence within its football program dating back
several years prior to Lozano's assault." (2d Am. Compl., Dkt. 50 ¶ 160).
She alleges that she "could not with reasonable diligence, have learned this
information independently" until the Pepper Hamilton Findings of Fact were
published on May 26, 2016. (Id. ¶ 160–61). She also alleges that "Baylor
engaged in a practice of failing to address and actively concealing from the
public, specific instances of violence and sexual violence committed by its
football players." (Id. ¶ 53). In other words, the nature of her injury may have
been inherently undiscoverable at the time of her assaults, and could not
be discovered until the Pepper Hamilton Findings of Fact.174

Plaintiffs also rely on another decision from the Western District of Texas in Doe 1
v. Baylor,175 wherein the same court held that it was plausible that, based on the “media
reports regarding the rampant nature of sexual assault on Baylor’s campus,” which first
came to light in 2016, liability for plaintiffs’ heightened risk claims did not accrue until
spring of 2016.176
LSU counters that, in both Lozano and Doe 12 v. Baylor, all “post-reporting” Title
IX claims except the heightened risk claim were found to be “conclusively time-barred.”177
LSU argues Lozano and Doe 1 v. Baylor are inapposite because the Fifth Circuit does
not recognize a Title IX heightened risk claim.
First, LSU correctly notes that Lozano, Doe 1, and Doe 12 applied equitable tolling
based on the investigative report only as to the plaintiffs’ Title IX heightened risk claims.

174 Id. at 900-901. Plaintiffs acknowledge this decision is not binding on this Court. Rec. Doc. No. 37, p. 6,
fn 29.
175 Plaintiffs mistakenly refer and cite to Doe 12 v. Baylor University, 336 F. Supp. 3d 763, 784 (W.D. Tex.
2018); however, the language they quote is from Doe 1 v. Baylor, 240 F.Supp.3d 646, 663 (W.D. Tex.
2018).
176 240 F.Supp.3d at 663.
177 Lozano, 408 F.Supp.3d at 878, n. 3, 5; Does 12-15, 336 F.Supp.3d at 784-85.
Equitable tolling doctrines did not save other Title IX claims from dismissal on statute of
limitation grounds.178
The Court finds that the publication of the Husch Blackwell Report does not support
Plaintiffs’ allegations of fraudulent concealment by LSU, nor does it support the
application of contra non valentem. Plaintiffs concede they were aware of their “injuries”

at the time they occurred but argue that causation could not be determined until the
Report was published.179 Under the facts of this Complaint, the Court finds it implausible
that Plaintiffs did not know or should not have known of their Title IX claims well before
the release of the Husch BIackwell Report.
The paragraphs in the Complaint to which Plaintiffs refer as sufficient allegations
of fraudulent concealment are conclusory, only repeatedly stating that LSU’s concealment
caused Plaintiffs’ injuries. Plaintiffs’ allegations do not plausibly allege that LSU engaged
in “affirmative acts of concealment,” or that that LSU affirmatively lulled Plaintiffs into
inaction or perpetrated “some trick or contrivance tending to exclude suspicion and

prevent inquiry” such to excuse late filing. Accordingly, Plaintiffs’ allegations are
insufficient to warrant the application of the tolling principle of fraudulent concealment.
For the same reasons, the contra non valentum doctrine does not save the
Complaint from dismissal as time barred. The findings of the Husch Blackwell Report do
not supply plausible grounds from which to conclude that the Plaintiffs claims were not
known or reasonably knowable.

178 Rec. Doc. No. 48, p. 2 (citations omitted).
179 Rec. Doc. No. 37, p. 5.
The Court will address the applicability of the continuing violations doctrine below
in connection with the claims which Plaintiffs argue the doctrine saves. The Court now
turns to the specific Title IX claims alleged in the Complaint.
2. Deliberate Indifference
To support their claim of Title IX deliberate indifference, Plaintiffs assert both a

heightened risk claim and a post-reporting claim. The inquiry in a heightened risk claim
“revolves around the official policy or custom of the educational institution.”180 “If a
recipient truly has an ‘official policy or custom’ of permitting sexual assault, surely the
recipient can be held liable without the plaintiff having to point to ignorance by any one
administrator.”181
“In a post-report[ing] claim, a plaintiff argues that the funding recipient violated Title
IX by failing to adequately respond to the plaintiff's report of sexual harassment committed
by another student or teacher.182 ‘The school district, as the recipient of federal funds, is
liable for its own lack of corrective action rather than the actions of the offending
student.’”183

a. No Heightened Risk Claim
The Parties dispute whether the Fifth Circuit recognizes a Title IX heightened risk
claim. The most recent Fifth Circuit case addressing a heightened risk claim was in
Poloceno v. Dallas Independent School District, wherein the court held: “We have never

180 Doe I on Behalf of Doe II v. Huntington Independent School District, 2020 WL 10317505 at *5 (E.D.
Tex. Oct. 5, 2020)(citing Doe 1 v. Baylor, 240 F. Supp. 3d at 661 (“[C]ourts must consider whether the
defendant-institution's policy or custom inflicted the injury.”)).
181 Id. (citing Bd. Cty. Comm'rs Bryan Cty., 520 U.S. at 403-04 (“[A]n act performed pursuant to a ‘custom’
that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to
liability on the theory that the relevant practice is so widespread as to have the force of law.”)).
182 Id. (citing e.g., Davis v. Monroe, 526 U.S. 629 (1999)).
183 Id. (quoting Watkins v. La Marque Indep. Sch. Dist., 308 Fed. App'x 781, 783 (5th Cir. 2009)(citing Davis,
526 U.S. at 641)).
recognized or adopted a Title IX theory of liability based on a general “heightened risk” of
sex discrimination, and we decline to do so.”184 Despite this unequivocal statement,
Plaintiffs contend that the Fifth Circuit has not foreclosed the claim. Plaintiffs point to the
next sentence in Poloceno, wherein the court continued: “Moreover, the cases from our
sister circuits that recognize the “heightened risk” analysis limit this theory of liability to

contexts in which students committed sexual assault on other students, circumstances
not present here.”185 Plaintiffs cite to other District Courts within the Fifth Circuit which
have recognized a heightened risk claim.186 However, nearly all the cases cited predate
Poloceno. One exception is found Roe v. Cypress-Fairbanks Independent School District,
wherein the Southern District of Texas found:
[D]efendant cites the Fifth Circuit's recent opinion in Poloceno v. Dallas
Independent School District, 826 F. App'x 359, 363 (5th Cir. 2020), for the
statement that “[w]e have never recognized or adopted a Title IX theory of
liability based on a general ‘heightened risk’ of sex discrimination, and we
decline to do so.” Plaintiff argues that Poloceno is inapposite. Because the
claims at issue in Poloceno did not stem from sexual harassment or assault
but, instead, from excessive physical exercise, and the Fifth Circuit
explained its decision not to recognize the heightened risk theory in that
case by stating that “the cases from our sister circuits that recognize the
‘heightened risk’ analysis limit this theory of liability to contexts in which
students committed sexual assault on other students, circumstances not
present here,” id., the court concludes that the Fifth Circuit has not
foreclosed the possibility of recognizing the heightened risk theory in an
appropriate case. But this is not an appropriate case.187

184 826 Fed. App’x 359, 363 (5th Cir. 2020)(emphasis added). In Aguiluz v. Univ. of Tex. Health Sci. Ctr. at
San Antonio, 2021 WL 148057, at *5 (W.D. Tex. Jan. 15, 2021), one district court in Western District of
Texas acknowledged this holding in Poloceno.
185 Id. (citation omitted).
186 See Rec. Doc. No. 37, pp. 21-22.
187 Roe v. Cypress-Fairbanks Independent School District, 2020 WL 7043944, *8 (S.D. Tex., Dec. 1, 2020).
The only other case found post- Poloceno is P.S. by and through Stephenson v. Brownsboro Independent
School District, 2022 WL 3697965, *5 (E.D. Tex. Aug. 25, 2022), wherein an Eastern District of Texas court
held likewise.
In this Court’s view, the Fifth Circuit in Poloceno unequivocally communicated that
it has “never recognized or adopted” a heightened risk claim under Title IX, it “decline[s]
to do so.”188 Thus, the Court finds that Plaintiffs do not have a viable heightened risk
claim, and Count IV shall be dismissed with prejudice.
b. Post-Reporting Claims

Plaintiffs argue that the statute of limitations on their post-reporting claims is
equitably tolled until the release of the Husch Blackwell Report. LSU points out that the
cases upon which Plaintiffs rely expressly reject the argument that equitable tolling
applied to the plaintiffs’ post-report claims.
The most analogous case is Doe v. Baylor University, wherein the plaintiff argued
that her post-reporting claims did not accrue until a similar investigative report, the Pepper
Hamilton report, was published.189 Although Doe v Baylor arose in Texas and thus the
Texas statute of limitations applied, the accrual date, which is the precise inquiry here, is
a matter of federal law.190 “Under federal law, a claim accrues and ‘the limitations period

begins to run the moment the plaintiff becomes aware that he has suffered an injury or
has sufficient information to know that he has been injured.’” 191
The plaintiff in Doe v Baylor reported an assault to Baylor and alleged that Baylor
did nothing in response. Quoting well established Fifth Circuit law that “a claim accrues
... the moment the plaintiff becomes aware that [s]he has suffered an injury or has
sufficient information to know that [s]he has been injured,” the court concluded that the

188 826 Fed. App’x. at 363.
189 313 F. Supp. 3d 786, 792 (W.D. Tex. 2018).
190 Id. at 791.
191 Id. (quoting Spotts v. United States, 613 F.3d 559, 574 (5th Cir.2010) (quoting Piotrowski v. City of
Houston, 237 F.3d 567, 576 (5th Cir.2001); King-White v. Humble Independent School Dist., 803 F.3d 754,
762 (C.A.5 (Tex.), 2015)).
Pepper Hamilton report did not toll the limitations period.192 The court also rejected the
plaintiff’s fraudulent concealment argument, finding that the plaintiff had knowledge of the
cause of action when “[s]he knew she had been assaulted. She knew she had reported
the assaults and that, according to her complaint, Baylor had done nothing in
response.”193

Other cases also compel the same conclusion in this case. In Lozano, the court
noted that “[t]he heightened risk claim is Lozano's only live Title IX claim—the Court
dismissed her post-reporting claim as conclusively time-barred.”194 In Doe 12, the court
reached the same conclusion and denied the application of fraudulent concealment or
equitable tolling to Doe 13’s post-reporting claims, finding that she could not “take
advantage of Texas' discovery rule because she [ ] provided no explanation” as to why
her injuries were “‘inherently undiscoverable.’”195 The court continued: “Nor can she take
advantage of the equitable tolling doctrines she invoke[s]—fraudulent concealment and
equitable estoppel—because, again, Plaintiffs have not alleged any facts from which the

Court can reasonably infer that they could not have ‘discovered’ their post-reporting
causes of action in the exercise of due diligence.”196
The reasoning and analysis from the above cases are easily applicable the post-
reporting claims alleged by the instant Plaintiffs. Generally, Plaintiffs knew the facts
behind their reporting claims specific to their experiences well before October 4, 2020.
The allegations show that Plaintiffs knew they had reported claims of assault and/or

192 Id. (quoting King–White, 803 F.3d at 762).
193 Id. at 793.
194 Lozano, 408 F.Supp.3d 861, 878 n. 5.
195 Doe 12, 336 F.Supp.3d at 786 (citing King-White, 803 F.3d at 764).
196 Id. (citing Owen v. King, 130 Tex. 614, 111 S.W.2d 695, 697 (1938)).
sexual harassment on many occasions, and they believed long before October 4, 2020
that LSU had been outright dismissive,197 or at least non-responsive, to their
complaints.198 Doe #2 and Doe #3 made various reports of d’Espalungue’s conduct in
late 2018 and continuing throughout 2019. Plaintiffs specifically alleged that, on
November 9, 2018, Hicks investigated their complaints, but nothing happened. Plaintiffs

also alleged that, on January 24, 2019, Hicks met with Russo regarding Plaintiffs’ claims
that she was undermining the Title IX process and defending d’Espalungue; Russo
allegedly denied these claims, and no further action was taken.199 Paragraph 89 of the
Plaintiffs’ Complaint is replete with allegations of complaints made without corresponding
action by LSU in 2018.
The only reports that occurred after October 4, 2020, are the November 2020
complaints about d’Espalungue’s continued harassing behavior, the November 16, 2020
complaints made via video conference by Doe #2 and Doe #3 regarding d’Espalungue’s
continued use of social media and text messaging to harass women, and Doe #4’s formal

complaint regarding Russo on December 11, 2020 after Russo instructed students on
October 5, 2020 to report Title IX claims within the French Department to her, rather than
the proper channels. However, these were reports of continuing conduct that had already
been the subject of prior complaints. These reports came long after Plaintiffs knew or
should have known that they had claims against LSU for allegedly taking no action in
response to the many preceding complaints about d’Espalungue. Moreover, the reports
about d’Espalungue continuing to use social media and text messaging to sexually harass

197 Rec Doc. 1, ¶ 88.
198 Id. at ¶ 89.
199 Id. at ¶¶ 12-22.
LSU students and female high school students came after LSU suspended
d’Espalungue, and he escaped to France. Accordingly, Count I is dismissed with
prejudice.
3. Quid Pro Quo Claim
Doe #3’s quid pro quo claim is also untimely for the reasons set forth above. Count

III is dismissed with prejudice.
4. Retaliation/“Retaliatory Harassment”
Doe #4, Doe #5, and Doe #6 argue that the continuing violations doctrine interrupts
prescription as to their Title IX retaliation claims. Merging the facts underlying their
harassment and retaliation claims Does #4, #5 and #6 seek to urge claims of retaliatory
harassment. However, the Fifth Circuit does not recognize a claim for “retaliatory
harassment.” Plaintiffs concede this point but cite cases within the Fifth Circuit wherein
courts nevertheless proceed to evaluate such a claim.200
On the one hand, Plaintiffs repeatedly rely on Title VII cases in their Opposition,

yet they argue that Title IX retaliation claims should not be analogized with Title VII
retaliation claims because the Supreme Court in Jackson v. Birmingham Bd. of Educ.
declared them to be “vastly different.”201 However, since Jackson, the Fifth Circuit and
district courts therein have held repeatedly that Title VII standards apply in evaluating
Title IX retaliation claims. For example, in Collins v. Jackson Public School Dist., the Fifth
Circuit stated that “[t]he language of the anti-retaliation provision of Title IX and that of
Title VII are similar and ‘should be accorded a similar interpretation.’”202 In Minnis v.

200 Rec. Doc. No. 37, p. 17, n.72.
201 544 U.S. 167, 175 (2005).
202 609 F. App’x. 792, 795 (5th Cir. 2015)(quoting Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 252 n.
18 (5th Cir.1997)(citations omitted)).
Board of Supervisors of Louisiana State University, another section of this Court noted
that “[r]etaliation claims under Title IX are analyzed using the same burden-shifting
framework applicable to Title VII retaliation claims.”203 In IF v. Lewisville Independent
School Dist., the court noted that, “as the court has stated in prior orders, Title IX
retaliation claims may be judged under the standards of Title VII.”204

LSU argues that Plaintiffs’ Title IX retaliation claims “by definition, must be based
upon ‘discrete’ adverse employment ‘events’ and that plaintiffs’ claims are untimely
because many of them occurred before October 4, 2020.”205 Plaintiffs take issue with
LSU’s reliance on well-settled Title VII law that “retaliation is, by definition, a discrete act,
not a pattern of behavior,”206 and thus, the “[t]he continuing violation doctrine does not
apply to claims based on discrete actions,”207 “even if those actions are serial.”208 Plaintiffs
argue that “Title IX retaliation is not limited to ‘adverse employment actions’ for obvious
reasons: funding recipients covered by Title IX are schools and universities, and thus,
victims of discrimination or retaliation under Title IX may be students or employees.”209

The fact that Title IX retaliation is not limited to adverse employment events does not
compel the conclusion that the continuing violation doctrine applies to toll the running of

203 55 F.Supp.3d 864, 884 (M.D. La. 2014)(citing Lowrey v. Tex. A & M Univ. System, 11 F.Supp.2d 895,
911 (S.D.Tex.1998); Pemberton v. W. Feliciana Parish Sch. Bd., No. 09–30, 2012 WL 443860 (M.D.La.
Feb. 10, 2012)).
204 No. 4:14-cv-359, 2017 WL 4506804 at *4 (E.D. Tex. June 20, 2017)(citations omitted).
205 Rec. Doc. No. 37, pp. 23-24.
206 Hamic v. Harris Cty. W.C. & I.D. No. 36, 184 F. App'x 442, 447 (5th Cir. 2006). The Court is unpersuaded
by Plaintiffs’ argument that Hamic is inapposite.
207 Rushing v. Yazoo County, 861 F. App’x. 544, 553 (5th Cir. 2021)(quoting Gen. Land Office v. U.S. Dep't
of the Interior, 947 F.3d 309, 319 (5th Cir. 2020) (citing Doe v. United States, 853 F.3d 792, 802 (5th Cir.
2017))(internal quotation marks omitted).
208 Id. (emphasis added)(quoting Doe, 853 F.3d at 802)(quoting Nat'l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002))).
209 Rec. Doc. No. 37, p. 25.
prescription. Rather the applicability of the continuing violation doctrine rests on the
nature of what constitutes retaliation.
The Fifth Circuit is clear that retaliation is a discrete act; thus, the continuing
violations doctrine is unavailable. The Fifth Circuit has explicitly held that the “continuing
violations doctrine does not apply to claims of retaliation because retaliation is, by

definition, a discrete act, not a pattern of behavior.”210 The unique characteristic of a claim
of retaliation as a discrete, “easy to identify” act that “occurs on the day that it happens”
renders the continuing violation doctrine inapplicable.211
Plaintiffs herein attempt to “lump together” discrete acts committed by Russo on
specific dates and times with Russo’s alleged rude and disrespectful treatment of them,
including making Doe #4’s life a “living hell.”212
Doe #4’s allegations demonstrate that the alleged retaliatory events by Russo
occurred in 2018 and 2019; thus, they are untimely.213 While she claims Russo’s
retaliation continued until August 2021, she fails to allege any retaliatory events that

occurred after October 4, 2020. LSU concedes that Doe #4’s removal from the LSU in
the French Alps program could form the basis of a timely retaliation claim; however, Doe
#4 failed to plead a causal connection between this removal and her protected activity.

210 Hamic v. Harris Cnty. W.C. & I.D. No. 36, 184 Fed.Appx. 442, 447 (5th Cir. 2006); see also Heath v.
Board of Supervisors Southern University, 850 F.3d 731, 737 (5th Cir. 2017)(drawing the distinction
between hostile work environment claims and retaliation claims: “Claims alleging discrete acts are not
subject to the continuing violation doctrine; hostile workplace claims are. Hostile environment claims are
“continuing” because they involve repeated conduct, so the “unlawful employment practice” cannot be said
to occur on any particular day.”).
211 National R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2070, 536 U.S. 101, 110 (2002).
212 Rec. Doc. No. 1, ¶¶ 198, 199, 266.
213 Rec. Doc. No. 1 at ¶¶ 197, 199.
Doe #5 has failed to allege any timely events of retaliation. While Doe #5 alleges
she complained to Madatic about Russo in April of 2021, she fails to identify any specific
retaliatory event that occurred.214
As for Doe #6, the only timely potential act of retaliation is her failure to apply for
a professorship at the alleged deceitful manipulation by Russo, who then applied and

received said professorship. LSU argues that “her mere allegation that Russo (a
competitor for the position) discouraged her application is hardly an adverse employment
action. Further, her allegation that Russo then applied for and received the same
professorship suggests Russo’s motive was self-interest, not retaliation.”215 The Court
agrees that Doe #6’s allegations surrounding this event are lacking; however, the Court
finds that Doe #6 should be allowed an opportunity to amend this claim.
Accordingly, the Court will dismiss Count V, Does #4-6’s retaliation claims, without
prejudice and allow Plaintiffs leave to amend to plead, if they can, discrete acts of alleged
retaliation occurring after October 4, 2020.

5. Hostile Educational and/or Work Environment
LSU argues that Plaintiffs’ Title IX hostile educational and hostile work environment
claims are prescribed, and they fail to state a claim against the Board. At times relevant
to the Complaint, Does # 1-5 were LSU French Department students and Doe #6 was an
LSU French Department employee. As to Does #1-3, who allege that they were assaulted
by d’Espalungue, LSU contends that any liability on the part of the Board ended on

214 Rec. Doc. No. 1 at ¶ 268.
215 Rec. Doc. No. 17-2, p. 12.
November 9, 2020, when d’Espalungue was suspended from LSU.216 Thus, LSU argues
only conduct alleged between October 4, 2020 and November 9, 2020 could be timely.
As to Does #4-6, LSU argues that, having not been assaulted by d’Espalungue,
their hostile education or work environment claims “stem from their alleged Title IX
retaliation claims,” which LSU argues are prescribed.217 LSU also argues that Doe #6, a

non-student employee, cannot bring a Title IX hostile environment claim and that Title VII
is Doe #6’s exclusive remedy for a hostile work environment claim.
a. Does # 1 -3
Countering LSU’s argument that, once suspended, LSU’s liability for
d’Espalungue’s conduct ceased, Plaintiffs argue that their Title IX hostile education
environment claims are based on LSU’s conduct, not d’Espalungue’s. Plaintiffs’ hostile
environment claims are based upon LSU’s deliberate indifference to multiple Title IX
reports over a period of years regarding d’Espalungue’s conduct.218
b. Does # 4 – 6

Plaintiffs contend Does #4-6 were subjected to hostile educational and work
environments based on Dr. Russo’s conduct and LSU’s deliberate indifference to the
multiple reports made about both d’Espalungue and Russo. On December 18, 2020, Doe
#4 reported to Scott that Russo was making her life a “living hell” ever since Doe #4 made
a formal Title IX complaint to HRM about d’Espalungue. Doe #4 claims after this report,
Russo conduct included “public insults, dismissive remarks, a successful effort to get Doe

216 Id. at p. 9 (citing Rec. Doc. No. 1, ¶ 173).
217 Id.
218 Rec. Doc. No. 37, p. 14. Plaintiffs also contend their hostile education/work environment claims are
based upon LSU’s official policies as documented by the Husch Blackwell Report, but the Court has
dismissed the official policy “heightened risk” claim.
#4 removed from the LSU … French Alps program, denial of salary, and general hostility
and disrespect.”219
With respect to hostile education environment claims by Does# 4 and 5, Plaintiffs
contend the Fifth Circuit allows for the application of the continuing violation doctrine to
encompass the cumulative effect of individual acts. According to the Supreme Court in

Davis v. Monroe County Board of Education,220 to prevail on a student-to-student221
harassment claim, the plaintiff must prove: (1) the school acted with deliberate
indifference to sexual harassment of which it had (2) actual knowledge, and (3) the
harassment must be so severe, pervasive, and objectively offensive that it can be said to
deprive the victim of access to the educational opportunities or benefits provided by the
school.222 Liability for deliberate indifference is limited to circumstances where the
recipient of federal funds exercises substantial control over both the harasser and the
context in which the known harassment occurs.223
In Heath v. Board of Supervisors Southern University,224 the Fifth Circuit

acknowledged that the continuing violations doctrine is applicable to claims of hostile work
environment:
As one circuit has helpfully described Morgan’s reasoning, a plaintiff's
hostile environment claim “is based on the cumulative effect of a thousand
cuts, rather than on any particular action taken by the defendant,” so “the
filing clock cannot begin running with the first act, because at that point the
plaintiff has no claim; nor can a claim expire as to that first act, because the
full course of conduct is the actionable infringement.” O'Connor v. City of
Newark, 440 F.3d 125, 128 (3d Cir. 2006).225

219 Id. at p. 15 (citing Rec. Doc. No. 1, ¶¶ 198, 199, 266).
220 526 U.S. 629 (1999).
221 The Court recognizes that d’Espalungue was both a student and a teacher at all relevant times.
222 Davis, 526 U.S. at 650.
223 Id. at 645.
224 850 F.3d 731 (5th Cir. 2017).
225 Id. at 737.
While the continuing violations doctrine may be applied to hostile education
environment claims, the Court finds there are two issues with Plaintiffs’ allegations
regarding same. First, Plaintiffs have not sufficiently pled that LSU maintained substantial
control over d’Espalungue after he left the country for France on December 14, 2020.
Substantial control over the alleged harasser is required to support a finding of deliberate

indifference to student-on-student harassment. LSU claims Plaintiffs’ harassment
“ceased” when d’Espalungue absconded to France.226 However, Plaintiffs allege that he
continued to harass them from France via text messages and his ability to block Plaintiffs
from activities allegedly sanctioned by LSU through its French Department. Plaintiffs
make the conclusory allegation that d’Espalungue was working for Russo during this time,
he was never released from LSU’s employment, and the social media platforms he
controlled advertised his “partnership” with LSU. On the other hand, Plaintiffs’ allegations
also acknowledge that LSU officials advised them that LSU no longer had control over
d’Espalungue and could not control or shut down social media platforms he initiated.227

The Plaintiff’s Complaint fails to plausibly plead LSU’s substantial control over
d’Espalungue after he absconded to France.
The second issue involves the hostile environment claims asserted by Does #4
and #5. These allegations merge general facts about the harassment they endured with
discrete acts of retaliation. the Court has held that retaliatory harassment is not
recognized by the Fifth Circuit. The allegations are unclear as to what conduct Doe’s 4
and 5 claim constitutes a hostile environment.

226 Rec. Doc. No. 48, p. 3.
227 See Rec. Doc. No. 1, ¶¶ 173, 194, 213, 223-225.
c. Doe #6
It is undisputed that Doe #6 may assert a Title IX retaliation claim. However, as
pled, the Court reads Doe #6’s allegations as a retaliatory hostile work environment claim
– namely, a claim that her work environment was hostile based on retaliatory events.
Because the discrete retaliatory events pled in the Complaint are prescribed, Doe #6’s

claim survives dismissal only by invoking the continuing violations doctrine available in
hostile work environment claims. The question before the Court is whether a non-student,
like Doe #6, can bring a hostile work environment claim under Title IX. This issue was
addressed in Lewis v Louisiana State University, where the plaintiff, a non-student,
argued that the retaliation she suffered for reporting complaints of the sexual harassment
of students was so severe it created a hostile environment.228 The Lewis court’s rationale
is applicable here. Like the plaintiff in Lewis, Doe #6’s hostile work environment claim is
“based on retaliatory events.”229 The court stated:
Title IX is meant to protect students, not school employees, from sexual
harassment. Plaintiff argues she was subjected to a hostile environment for
reporting coaches’ and football players’ acts of sexual misconduct toward
students. In all reported Fifth Circuit Title IX sexual harassment cases, the
plaintiff was a student, not an employee complaining of harassment of a
student.230 A non-student plaintiff such as the Plaintiff in this case does not
have a private right of action under Title IX to bring claims of sex-based
employment discrimination, including hostile environment claims.231

After reviewing the plaintiff’s allegations, the court stated that,

228 No. 21-198-SM-RLB, 2021 WL 5752239, *19 (M.D. La. Dec. 2, 2021). The Lewis court went on to say
that the plaintiff “may have a claim for a retaliatory hostile work environment under Title VII.” Id. For reasons
set forth herein, this Court disagrees.
229 Id.; Rec. Doc. No. 1, ¶¶ 13, 25.
230 Id. at *18 (Compare Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th
Cir. 2011) (citing Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650, 119 S.Ct.
1661, 143 L.Ed.2d 839 (1999)) with Doe v. Edgewood Indep. Sch. Dist., 964 F.3d 351, 356 (5th Cir. 2020)
(citing Gebser v. Lago Vista Independent School District, 524 U.S. 274, 277, 118 S.Ct. 1989, 141 L.Ed.2d
277 (1998)).
231 Id.
it indisputable that Plaintiff's “hostile environment” claim in her proposed
second amended complaint is based on retaliatory events. For example,
Plaintiff expressly alleges she experienced a hostile environment in
retaliation for reporting Title IX complaints and other sexual misconduct by
coaches and star football players. Plaintiff alleges she hid under a desk
because the retaliation was so bad. Additionally, Plaintiff alleges Ausberry
told her she would never be promoted because she filed Title IX complaints,
which sounds in retaliation. The Court finds to the extent Plaintiff's hostile
environment claim is premised on retaliation in violation of Title IX, the
amendment should be denied because Plaintiff already has a claim for Title
IX retaliation[.]232

The Lewis court discussed the case law that has developed on this issue, noting that, “in
Lakoski v. James, the Fifth Circuit held there is no private right of action for employment
discrimination under Title IX because such a claim falls within the exclusive purview of,
and is preempted by, Title VII.”233 The plaintiff relied on Lowery v. Texas A & M Univ.
System234 and Jackson v. Birmingham Board of Educ.,235 arguing that “these cases
recognize a private right of action under Title IX for sex discrimination, which
encompasses a hostile work environment claim.”236 In Lowery, the Fifth Circuit found that
Title IX provides a private right of action for retaliation against employees who report Title
IX violations.237 In Jackson, the Supreme Court resolved a circuit split and, consistent
with Lowery, held that “the private right of action implied by Title IX includes claims for
retaliation against students or employees who report or complain of sexual
discrimination.”238 The court found that the plaintiff’s reliance on Lowery to support her
argument “ignores the explicit statement in Lowrey that ‘Title IX does not afford a private
right of action for employment discrimination on the basis of sex in federally funded

232 Id.
233 Id. at *19 (citing Lakoski v. James, 66 F.3d 751, 754 (5th Cir. 1995)).
234 117 F.3d 242 (5th Cir. 1997).
235 544 U.S. 167.
236 Lewis at *19.
237 Lowery, 117 F.3d at 249.
238 Lewis at *19 (citing Jackson, 544 U.S. at 178).
educational institutions.’”239 Rejecting the plaintiff’s argument that she could bring a
hostile work environment claim under Title IX, the court found:
Jackson and Lowrey provide no support for the existence of a private right
of action for employment discrimination under Title IX. The Court concludes
Lakoski remains good law within the Fifth Circuit, and, in the Fifth Circuit,
“Title VII is the exclusive remedial scheme for employment discrimination
claims, including hostile work environment claims.”240 Accordingly, Plaintiff's
Title IX hostile environment claim is preempted by Title VII.241

Under the same rationale, the Court concludes that Doe #6 cannot assert a hostile
work environment claim under Title IX, as such a claim is preempted by Title VII. However,
as set forth above, the Court will give leave for Doe #6 to amend her retaliation claim to
expand allegations of timely, discrete, adverse employment actions taken against her for
reporting Title IX complaints.
Accordingly, the Court will dismiss Count II without prejudice and allow Does #1-5
leave to amend to address the issues raised by the Court regarding their hostile education
environment claims. Doe #6’s hostile work environment claim is dismissed with prejudice.
B. Section 1983 Claims
Plaintiffs assert the following constitutional claims pursuant to Section 1983 and
the First and/or Fourteenth Amendments: 1) denial of equal protection; 2) denial of due
process (state created danger) claim; 3) First Amendment deterrence and retaliation; 4)
denial of procedural due process (bodily integrity); 5) and denial of due process. Plaintiffs
sue Blanchard, Madatic, Normand, Stewart, and Russo in their individual capacities under

239 Id. (quoting Lowery, 117 F.3d at 247).
240 Id. (quoting Normore v. Dallas Indep. Sch. Dist., No. 3:18-CV-2506-N, 2019 WL 2189258, at *3 (N.D.
Tex. May 21, 2019)(citing Lakoski, 66 F.3d at 754)).
241 Id.
Section 1983. The Court finds that these claims asserted against individual LSU officials
must be dismissed.
In Fitzgerald v. Barnstable School Committee, the plaintiff sued both the school
committee and its superintendent.242 The plaintiff alleged Section 1983 claims for
violations of both Title IX and the Equal Protection Clause of the Fourteenth Amendment,

and the district court dismissed the Section 1983 claims.243 The Supreme Court granted
certiorari to address whether Title IX precludes the use of Section 1983 to redress
unconstitutional gender discrimination in schools.244 After analyzing the purpose and
scope of both statutes, the Court held that Title IX did not preclude use of Section 1983
to redress unconstitutional gender discrimination in schools: “Title IX was not meant to be
an exclusive mechanism for addressing gender discrimination in schools, or a substitute
for § 1983 suits as a means of enforcing constitutional rights.”245
In Wilkerson v. University of North Texas,246 the plaintiff, relying on Fitzgerald,
argued that he could assert a Section 1983 claim against an individual based on a
violation of Title IX.247 The court disagreed, finding that

the issue that the Supreme Court resolved in Fitzgerald is different than the
argument Plaintiff makes here. The Supreme Court's holding did not deal
with the specific issue of whether a plaintiff could base his § 1983 claim on
a violation of Title IX. Rather, the Supreme Court analyzed whether
Congress's enactment of Title IX inferred that § 1983 claims based on
violations of the Equal Protection Clause were wiped out by Title IX. In
determining whether such intent could be inferred, the Supreme Court
compared the rights and protections of each statute and those existing
under the Constitution248 … while the Supreme Court recognized the
varying schemes available under Title IX and § 1983, it ultimately held that

242 555 U.S. 246, 250 (2009).
243 Id.
244 Id.
245 Id. at 258.
246 223 F.Supp.3d 592 (E.D. Tex. 2016).
247 Id. at 608.
248 Id. (citing Fitzgerald, 555 U.S. at 252).
“parallel or concurrent § 1983 claims” would not allow access to new
remedies.249

Based on the holding in Fitzgerald, the court held that the plaintiff could not state a claim
under Section 1983 “based on an underlying violation of Title IX.250 Title IX does not allow
suit against individuals.”251 The court found that the plaintiff sought “to avoid this
restriction by nesting a Title IX claim into a § 1983 claim and claiming that Title IX is the
substantive right violated. The Court reasoned that this would conflict with Fitzgerald by
giving Plaintiff rights that would be unavailable under Title IX.”252 Thus, the court
dismissed the plaintiff’s Section 1983 claim under Rule 12(b)(6).
The district court for the Northern District of California reached this conclusion as
well in Doe v. Napa Valley Unified School District.253 The plaintiff in Napa Valley asserted
Section 1983 claims against individual district defendants for alleged violations of Title IX.
The court analyzed the analysis in Fitzgerald and concluded that it did not “provide
support for Plaintiff to bring a Section 1983 claim against the individual Defendants based
on alleged violations of Title IX.”254 The court cited support from several cases, stating:
Because a plaintiff can only bring a Title IX claim against institutions and
programs that receive federal funds, and Section 1983 claims can be
brought against individuals, “providing a § 1983 claim against
individuals for Title IX liability ‘would permit an end run around Title
IX's explicit language limiting liability to funding recipients.’”255

249 Id (quoting Fitzgerald, 555 U.S. at 256).
250 Id. (citing Cox v. Sugg, 484 F.3d 1062, 1067 (8th Cir. 2007); Williams v. Bd. of Regents of Univ. Sys. of
Ga., 477 F.3d 1282 (11th Cir. 2007); Seamons v. Snow, 84 F.3d 1226, 1234 n.8 (10th Cir. 1996).
251 Id. (citing Fitzgerald, 555 U.S. at 257).
252 Id. (citing Fitzgerald, 555 U.S. at 256).
253 2018 WL 4589978 (N.D. Cal. Apr. 24, 2018).
254 Id. at *4
255 Id. (quoting Doe v. Town of Stoughton, 917 F. Supp. 2d at 66 (quoting Doe v. School Bd. of Broward
County, Fla., 604 F.3d 1248, 1266 n. 12 (11th Cir. 2010)); see also Wilkerson v. Univ. of N. Texas, 223 F.
Supp. 3d 592, 608 (E.D. Tex. 2016) (finding that the plaintiff could not state a claim under § 1983 based
on an underlying violation of Title IX because Title IX does not allow suit against individuals)).
A plain reading of the Complaint herein compels the conclusion that the Plaintiffs
have sued certain LSU officials in their individual capacities under Section 1983, based
on underlying Title IX violations, in a seeming “end run around Title IX's explicit language
limiting liability to funding recipients.” For the same reasoning and analysis discussed
above, the Section 1983 claims brought against Blanchard, Madatic, Normand, Stewart,

and Russo are dismissed with prejudice.
Alternatively, the Court finds that the Section 1983 claims asserted are prescribed.
As with Title IX, “[c]ourts considering claims under § 1983 must borrow the relevant state's
statute of limitations for personal injury actions.”256 “The statute of limitations for Section
1983 claims is the forum state's personal-injury limitations period, which in Louisiana is
one year.”257 Federal law, however, governs when a § 1983 claim accrues.258 “The
limitations period begins to run when the plaintiff becomes aware that he has suffered an
injury or has sufficient information to know that he has been injured.”259 Further, “[a]
plaintiff need not realize that a legal cause of action exists; [she] need only know the facts
that would support a claim.”260 For the same reasons set forth by the Court regarding Title

IX claims, the Court finds Plaintiffs’ Section 1983 claims are prescribed.
The Court also rejects application of the continuing violations doctrine to the
Section 1983 claims in this case. While the continuing violation doctrine may apply to
Section 1983 claims, “[t]he Supreme Court has stressed that the equitable version of the
continuing violation doctrine is to be invoked only sparingly.”261 Indeed, “[t]he Fifth Circuit

256 Redburn v. City of Victoria, 898 F.3d 486, 496 (5th Cir. 2018)(citations omitted).
257 Smith v. Reg'l Transit Auth., 827 F.3d 412, 421 (5th Cir. 2016)(cleaned up).
258 Redburn, 898 F.3d at 496 (citing Piotrowski v. City of Houston, 51 F.3d 512, 516 n.10 (5th Cir. 1995)).
259 Id. (cleaned up).
260 Piotrowski, 51 F.3d at 516 (citation omitted).
261 Lehman v. Guinn, No. 2:20-cv-736, 2021 WL 935887 at *4 (W.D. La. Feb. 9, 2021)(citing Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
has noted that ‘courts, including this one, are wary to use the continuing violation doctrine
to save claims outside the area of Title VII discrimination cases.’”262 Moreover, “a plaintiff
‘cannot use the continuing violation theory “to resurrect claims about [civil rights
violations] concluded in the past, even though [their] effects persist.”’”263
The allegations that form the basis for Plaintiffs’ Section 1983 claims refer only to

conduct that took place before October 4, 2020. They are, thus, prescribed.
C. State Tort Claims
Plaintiffs argue their state law tort claims are viable because “they are all subject
to the same equitable tolling principles of accrual, continuing violation doctrine, fraudulent
concealment and …contra non valentem,”264 a claim the Court has rejected for the many
reasons set forth above. Accordingly, the Court finds that Plaintiffs’ state law tort claims
are likewise prescribed, and they are dismissed with prejudice.
III. CONCLUSION
For the foregoing reasons, the Motion to Dismiss265 by LSU, the Motion to Dismiss
by Stewart,266 and the Motion to Dismiss Russo are GRANTED.267

Upon Plaintiffs’ concession, the following claims are dismissed with prejudice: Doe
#3’s Clery Act Claim; Section 1983 claims against the Board and against Blanchard,
Madatic, and Norman in their official capacities; negligence claims asserted by Does #4-
6 as barred by the Louisiana Workers’ Compensation Act; and claims for punitive

262 Id. (quoting McGregor v. Louisiana State Univ. Bd. Of Sup'rs, 3 F.3d 850, 866 n. 27 (5th Cir. 1993)).
263 Id. (quoting McGregor, 3 F.3d at 866 n. 27 (quoting Berry v. Bd. of Sup'rs of L.S.U., 715 F.2d 971, 979
(5th Cir. 1983))).
264 Rec. Doc. No. 37, p. 46.
265 Rec. Doc. No. 17.
266 Rec. Doc. No. 16.
267 Rec. Doc. No. 18.
damages under Title IX or against the individuals in their official capacities under Section
1983.
Count I is dismissed with prejudice.
Count II is dismissed without prejudice as to Does #1-5, and they are allowed leave
to amend these claims. Count II is dismissed with prejudice as to the claim of Doe #6.

Count III is dismissed with prejudice.
Count IV is dismissed with prejudice.
Count V is dismissed without prejudice; Plaintiffs will have leave to amend these
claims.
Counts VI-XII are dismissed with prejudice.
The leave to amend granted to Plaintiffs as to Counts II and V is limited to those
claims only. Plaintiffs do not have leave to allege new causes of action, new legal
theories, or any claims inconsistent with the Court’s findings herein. The Amended
Complaint must be filed on or before December 2, 2022.

IT IS SO ORDERED.
Baton Rouge, Louisiana, this 3rd day of November, 2022.

S
________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10192441. Public record. Not legal advice.