Brown v. University of Massachusetts Amherst

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_______________________________________

)

MATTHEW BROWN, )

)

Plaintiff, )

) Civil Action No.

v. ) 22-30068-FDS

)

UNIVERSITY OF MASSACHUSETTS )

AMHERST, )

)

Defendant. )

_______________________________________)

MEMORANDUM AND ORDER ON

DEFENDANT’S MOTION TO DISMISS

SAYLOR, C.J.

This is an action involving a university’s response to a reported case of sexual harassment

of a graduate student. Plaintiff Matthew Brown has filed suit against the University of

Massachusetts Amherst (“UMass”) alleging that it violated Title IX of the Education

Amendments of 1972, 20 U.S.C. § 1681 et seq., by failing to investigate his complaint that a

fellow student was sexually harassing him and by failing to provide support or protection. He is

proceeding pro se.

UMass has moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for

failure to state a claim upon which relief can be granted. For the reasons set forth below, the

motion to dismiss will be denied.

I. Background

The following facts are drawn from the complaint and exhibits attached to the

complaint.1

A. Factual Background

The University of Massachusetts Amherst is a university located in Amherst,

Massachusetts. (Compl. at 2). Matthew Brown is a former UMass graduate student. (Compl.

Ex. 3 at 2).2

On February 19, 2019, Brown sent an e-mail to the Dean of Students Office with the

subject line, “Harassment issues with another student.” (Compl. Ex. 1 at 2). In the e-mail, he

wrote:

To the Dean’s Office:

I am graduate student here at UMass Amherst in the School of Public Policy’s

MPPA program. I feel that I’ve been harassed, possibly sexually harassed, by a

fellow student in my cohort, [CD]. I will be referring to CD as “they/them” in

this email, because that is their preferred pronoun.

Harassment

I was placed in a group project with CD last semester that required me to meet

with them outside of class. We developed a friendship, and we frequently met in

Machmer W-31 (the SPP student office) to work. On a few occasions, when I

arrived at the office CD was alone. They would shut the door and sort of

compulsively start talking to me about sex. This included describing their

genitals in detail (they are transgender), describing their history as a sex worker,

and describing their master/submissive relationship with a man in town. They

described the sexual acts they do in the master/slave relationship, which I found

repulsive.

I never consented to these conversations, but I didn’t leave the room either.

Generally I was caught off guard and remained silent. I tried to give them signals

that I was not comfortable, but they didn’t seem to be getting them. I felt I had to

work with them for the group project, and hoped that they would knock it off, so I

1 Two of the exhibits are communications for settlement purposes from Brown’s former lawyers to UMass.

(See Compl. Ex. 3; Compl. Ex. 4). For purposes of this motion, the Court construes the factual allegations in those

letters as allegations in the pro se complaint.

2 According to the complaint, Brown attended UMass to obtain a Master’s in Public Policy and

Administration. (Compl. Ex. 3 at 2). He began the program in the fall of 2018 and completed it in the fall of 2020.

(Id.).

continued meeting with them for the rest of the semester as required.

Their frequent use of sexual language continued throughout the semester. When

the semester ended I was able to get some distance from CD, avoiding them for

about 40 days. However, I have been placed in a group project with them again

this semester, and my strategy of evading them is failing.

I reach out to the Dean’s Office now to hopefully discuss this situation, and help

orient me toward the next steps I should take to succeed in my program.

Academic Dishonesty

There is another unfortunate layer to our relationship. CD has been hounding me

to help them cheat since midterms in October. They asked me to give them test

answers, completed homework, and to take their tests for them. They asked me to

take my phone into our economics final, take photographs of it, and send it to

them. This trend continues this semester.

I always say “no,” but they don’t seem to get the message, because they just keep

asking me for things they know I cannot give them. Unfortunately, when I do say

“no” they sometimes get hostile with me. This included spreading false gossip

about me to other students when they were angry with me. For example, they told

another male student in my cohort that I was sexually attracted to him. My wife

witnessed CD speaking about this particular incident, and she wrote a letter of

concern documenting it, which I have attached.

I have also attached some emails and a Facebook conversation documenting CD’s

repeated requests for academic material that we are not supposed to share. They

are careful of what they say over email, but they are referring to what I believe is

attempted cheating in each of them.

I am sorry to make first contact with your office on such a somber note, but I am

concerned about my interactions with CD and am unsure how to proceed. I had

hoped to avoid them after the conclusion of last semester, but now that I cannot

do that, I am unsure what to do. Thank you for any help you can provide.

(Id. at 2-3). Less than 24 hours later, Dean Appel-Silbaugh responded to him with the following

e-mail:

Thank you for the emails regarding your interactions with CD. I have asked my

Associate Dean of Students for Conduct & Compliance to review the information

and determine next steps. Given much of this is related to course work we might

refer the matter to Academic Affairs for academic honesty review. Regardless,

either myself or one of my colleagues will be in touch with you.

(Id. at 2). Brown replied to her e-mail that same day:

Thank you! I hope to discuss this soon. My main concern is the

harassment/sexual harassment component of their interactions with me.

I also want to let you know that I delicately brought up some of these concerns to

the professor who placed me into a group with CD this semester, and she seemed

unsympathetic. Given that I suffer from a registered anxiety disorder, and that I

have been scheduled to work intensively with CD for the rest of the semester

(including 1.5 hours unsupervised tonight), I elected to drop the course for now. I

hope to discuss that as well.

(Id. at 4).

According to the complaint, Brown’s case was assigned to Dean Landeta-Burdick, who

met with him to discuss the matter on February 28, 2019. (Compl. Ex. 3 at 4). The complaint

asserts that she told him that he needed to enforce stricter boundaries with CD and tell CD to

leave him alone. (Id.).

On March 9, Brown allegedly sent CD an e-mail instructing CD not to have any further

contact with him. (Id.).

On March 19, Dean Landeta-Burdick sent Brown the following e-mail:

I am following up from our meeting on February 28, 2019 to check-in to see how

you are doing. I also wanted to inform you that the student we discussed has met

with a staff member within my office and the concerns you raised in our meeting

were addressed. Additionally, the student was directed not to speak with you

moving forward.

During our meeting you mentioned working with your faculty to get an

independent study to make up for the course you withdrew from, were you able to

get confirmation on a faculty member who would be your advisor?

As I shared during our meeting, if you would like assistance connecting to

campus resources/services, please do not hesitate to contact my office at 413-545-

2684.

(Compl. Ex. 2 at 3).

On March 22, Dean Landeta-Burdick telephoned Brown. (Compl. Ex. 4 at 2).

According to the complaint, Brown—who stepped out of a statistics class he had with CD to

answer her call—was unable to have a proper discussion at that time because he was in a public

hallway. (Id.).

Brown next contacted Dean Landeta-Burdick on May 1:

Hi Dean Landeta-Burdick,

I wanted to follow up with you on our last conversation, and check in on the

status of removing the DR from my record.

Unfortunately CD did not leave me alone after our last conversation, and

continued to bother me off and on for the rest of the semester. I had a very

difficult time with them on our third Beacon Hill trip, they showed up to a social

event that I planned, and they generally continued to try to interact with me

however possible in class. As a result I missed out on experiences with my peers

and had a very uncomfortable time finishing my semester. Hopefully now that

they are graduating, I won’t have any more courses with them and that should be

the end of that.

However, I remain concerned about the class I withdrew from. Have you had a

chance to follow up on any of that? I would primarily like to get the DR removed

from my record. I had a 100% grade and perfect attendance in the course when I

withdrew. Ideally I would also like to not have to pay for the course again next

year when I register for it.

(See Compl. Ex. 2 at 2). Unbeknown to Brown, Dean Landeta-Burdick had gone on a leave. He

did not receive a reply, so he e-mailed the Dean of Students Office on May 13:

Hello DOSO,

I am following up on my prior email sent to you on 5/1/19, to which I did not

receive a reply.

I had a harassment issue with another student last semester. I reached out to your

office earlier in the year and my case was assigned to Dean Landeta-Burdick.

Dean Burdick agreed to help me, but did not finish doing so. She was to get back

to me about mitigating my academic losses, but did not and then went on leave. I

am now asking anyone from your office to help me, so that I can put this behind

me and get on with my education.

At this point, all I am asking for is the DR to be removed from my record and to

not have to pay for the course again in the Spring when I have to re-register for it.

I believe that is reasonable.

Can someone please assist me? I want to put this behind me and move on. This

experience was painful.

(Id.).

It appears that Brown did not receive a response to that email. According to the

complaint, Brown’s issues with CD delayed the completion of his master’s degree by seven

months. (See Compl. Ex. 3 at 10; Ex. 4 at 4).

B. Procedural Background

Plaintiff filed the complaint in this action on May 24, 2022, asserting a violation of Title

IX. According to the complaint, defendant’s failure to provide support or protection from CD’s

misconduct had a negative impact on his academic performance, his social connections with

other students, and his ability to take advantage of networking opportunities. (Compl. Ex. 3 at

9). He seeks $150,000 in damages and “justice in the form of a formal apology.” (Compl. at 4).

Defendant has moved to dismiss the complaint for failure to state a claim upon which

relief can be granted. Plaintiff has not filed an opposition to that motion.

II. Standard of Review

To survive a motion to dismiss, the complaint must state a claim that is plausible on its

face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In other words, the “[f]actual

allegations must be enough to raise a right to relief above the speculative level, . . . on the

assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555

(citations omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but it

asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). When determining whether a

complaint satisfies that standard, a court must assume the truth of all well-pleaded facts and give

the plaintiff the benefit of all reasonable inferences. See Ruiz v. Bally Total Fitness Holding

Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)).

Dismissal is appropriate if the complaint fails to set forth “factual allegations, either direct or

inferential, respecting each material element necessary to sustain recovery under some actionable

legal theory.” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Médico

del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).

Where, as here, a motion to dismiss is filed against a pro se litigant, any document filed

by the pro se party is “to be liberally construed,” and “a pro se complaint, however inartfully

pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))

(internal quotation marks omitted); see also Fed. R. Civ. P. 8(e) (“Pleadings must be construed

so as to do justice.”). However, while pro se complaints “are accorded ‘an extra degree of

solicitude’ . . . even a pro se plaintiff is required ‘to set forth factual allegations, either direct or

inferential, respecting each material element necessary to sustain recovery under some actionable

legal theory.’” Wright v. Town of Southbridge, 2009 WL 415506, at *2 (D. Mass. Jan. 15, 2009)

(quoting Adams v. Stephenson, 116 F.3d 464, at *1 (1st Cir. 1997) (per curiam)).

III. Analysis

A. Title IX

The complaint asserts a claim for a violation of Title IX of the Education Amendments of

1972. Subject to certain exceptions not applicable here, the relevant provision of 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.” 20 U.S.C. § 1681(a).

Under Title IX, “a recipient of funding from the United States Department of Education

may be liable for damages if ‘its deliberate indifference [to peer-on-peer sexual harassment]

“subjects” its students to harassment.’” Porto v. Town of Tewksbury, 488 F.3d 67, 72 (1st Cir.

2007) (alteration in original) (quoting Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of

Educ., 526 U.S. 629, 644 (1999)). “To succeed in bringing such a ‘deliberate indifference’

claim, a plaintiff must show that (1) ‘he or she was subject to “severe, pervasive, and objectively

offensive” sexual harassment’; (2) ‘the harassment caused the plaintiff to be deprived of

educational opportunities or benefits’; (3) the funding recipient was aware of such harassment;

(4) the harassment occurred ‘in [the funding recipient’s] programs or activities’; and (5) the

funding recipient’s response, or lack thereof, to the harassment was ‘clearly unreasonable.’” See

Doe v. Brown Univ., 896 F.3d 127, 130 (1st Cir. 2018) (alteration in original) (quoting Porto,

488 F.3d at 72-73). The legal standard for claims of sexual harassment does not vary according

to the gender or sexual orientation of the alleged victim or that of the alleged perpetrator.

Defendant has moved to dismiss the complaint on the grounds that (1) its response was

not clearly unreasonable and (2) the alleged sexual harassment was not severe, pervasive, and

objectively offensive. For the reasons set forth below, the Court concludes that the allegations of

the complaint are sufficiently plausible to survive a motion to dismiss.

1. Whether Defendant’s Response Was “Clearly Unreasonable”

“The bar for a showing of deliberate indifference under Title IX is a high one.” Doe v.

Wentworth Inst. of Tech., Inc., 2022 WL 1912883, at *4 (D. Mass. June 3, 2022). “Significantly,

the Supreme Court has described deliberate indifference as ‘an official decision by [the person

with notice] not to remedy the violation.’” Id. (alteration in original) (quoting Gebser v. Lago

Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998)).

As noted, in cases of student-on-student sexual harassment, a school may be found to be

deliberately indifferent only where its response “is clearly unreasonable in light of the known

circumstances.” Davis, 526 U.S. at 648. Furthermore, to prove liability, a plaintiff must show

that the school’s deliberate indifference subjected him or her to harassment or made him or her

vulnerable to it. Id. at 645. If an educational institution takes “timely and reasonable measures

to end the harassment, it is not liable under Title IX for prior harassment.” Wills v. Brown Univ.,

184 F.3d 20, 26 (1st Cir. 1999). But if earlier measures have proved inadequate to prevent

further harassment, a school “may be required to take further steps to avoid new liability.” Id.;

see also Porto, 488 F.3d at 74 (stating that a school may be found deliberately indifferent “where

it had notice of the sexual harassment” and “failed to take additional reasonable measures after it

learned that its initial remedies were ineffective”).

However, “Title IX does not require educational institutions to take heroic measures, to

perform flawless investigations, [or] to craft perfect solutions . . . .” Fitzgerald v. Barnstable

Sch. Comm., 504 F.3d 165, 174 (1st Cir. 2007), rev’d on other grounds, 555 U.S. 246 (2009). It

is sufficient if a school takes “timely and reasonable” measures to address the harassment, even

if those measures fall short of perfection. See Wills, 184 F.3d at 26.

In substance, the complaint asserts that defendant violated plaintiff’s rights under Title IX

by responding with deliberate indifference to his reports of sexual harassment. Specifically, the

complaint contends that defendant did not adequately respond to his report of sexual harassment

because it failed to complete a formal Title IX investigation and failed to provide him with

adequate protection as the other student continued to harass him.

According to the complaint, plaintiff first notified the Dean of Students Office that he

was being “possibly sexually harassed” on February 19, 2019. (Compl. Ex. 1 at 2-3; Compl. at

6). Within 24 hours, Dean Appel-Silbaugh personally responded to his e-mail and indicated that

the Associate Dean of Students for Conduct and Compliance would review the information, and

that either she or one of her colleagues would be in touch regarding next steps. (Compl. Ex. 1 at

2). Plaintiff thanked her and indicated that his “main concern is the harassment/sexual

harassment component of [CD’s] interactions with me.” (Id. at 4).

On February 28, plaintiff met with Dean Landeta-Burdick—who had been assigned to the

matter—to discuss the matter. (Compl. Ex. 3 at 4). She allegedly told him that he needed to

enforce stricter boundaries with CD and tell CD to leave him alone. (Id.). In addition, on March

19, she informed him by e-mail that a staff member within the Dean of Students Office had met

with CD and directed CD not to speak with him moving forward. (Compl. Ex. 2 at 3).

Had the matter ended there, the Court might well conclude that UMass did not display

deliberate indifference to his complaint. And that could be true even if the school’s efforts were

not successful, and the harassment did not immediately cease. As a general matter, “[t]o avoid

Title IX liability, an educational institution must act reasonably to prevent future harassment; it

need not succeed in doing so.” Fitzgerald, 504 F.3d at 175; see also Porto, 488 F.3d at 74

(“[T]he fact that measures designed to stop harassment prove later to be ineffective does not

establish that the steps taken were clearly unreasonable in light of the circumstances known by [a

defendant] at the time.”); Doe v. Pawtucket Sch. Dep’t, 969 F.3d 1, 9 (1st Cir. 2020) (“[F]unding

recipients are not required to have perfect foresight or manage all student interactions

expertly.”).

According to the complaint, however, the harassment thereafter “escalated into more

public settings and new stalking behaviors.” (Compl. at 6). On May 1, 2019, five weeks after

his telephone call with Dean Landeta-Burdick, plaintiff emailed her to say that CD had

“continued to bother [him] off and on for the rest of the semester,” adding, “Hopefully now that

they are graduating, I won’t have any more courses with them and that should be the end of

that.” (See Compl. Ex. 2 at 2). The complaint also alleges that “[plaintiff] and his wife

repeatedly followed up with the Dean of Students Office to state that CD was continuing to

harass and stalk [him].” (Compl. Ex. 3 at 9). However, the complaint does not list any of the

dates on which those conversations allegedly occurred. And in his May 13 follow-up e-mail,

plaintiff stated that the dean “was to get back to me about mitigating my academic losses.”

(Compl. Ex. 2 at 2). Plaintiff did not receive responses to those emails, and eventually he

suffered a delay in obtaining his graduate degree due to the harassment.

It is true that “a claim that the school system could or should have done more is

insufficient to establish deliberate indifference.” Porto, 488 F.3d at 73. Nonetheless, the Court

is not prepared to find, at this stage, that the complaint does not plausibly allege a claim of

deliberate indifference. According to the complaint, at least, UMass responded promptly to his

original email of February 19, and engaged with him and CD over the ensuing several weeks.

However, the complaint also alleges that after May 1, and after Dean Landeta-Burdick went on

leave, the school did nothing to respond to his subsequent complaints of continued harassment.

Whether or not that is true—and the Court has no way to assess it—it is sufficient to make out a

plausible claim of deliberate indifference.

2. Whether the Alleged Sexual Harassment Was Severe, Pervasive, and

Objectively Offensive

“[S]evere, pervasive, and objectively offensive” sexual harassment “effectively bars the

victim’s access to an educational opportunity or benefit.” Davis, 526 U.S. at 633. “Whether

gender-oriented conduct rises to the level of actionable ‘harassment’ . . . ‘depends on a

constellation of surrounding circumstances, expectations, and relationships.’” Id. at 651 (quoting

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998)); see also id. at 653 (“The

relationship between the harasser and the victim necessarily affects the extent to which the

misconduct can be said to breach Title IX’s guarantee of equal access to educational benefits and

to have a systemic effect on a program or activity.”). “Peer harassment, in particular, is less

likely to satisfy these requirements than is teacher-student harassment.” Id. at 653.

Here, the complaint plausibly alleges that CD subjected plaintiff to “severe, pervasive,

and objectively offensive” sexual harassment. According to the complaint, when plaintiff met

with CD on campus for assigned coursework, “CD repeatedly described their genitals to

[plaintiff]; made gestures to imitate themselves masturbating; spoke in explicit detail about

sadomasochistic sexual encounters; [and] degraded [plaintiff] using sexual language . . . .”

(Compl. Ex. 3 at 8).3 In addition, the complaint asserts that when plaintiff refused to help CD

cheat, CD spread false rumors about him, including that he was sexually attracted to another

male student. (See Compl. Ex. 1 at 3).

The complaint further alleges that plaintiff withdrew from a course in which he was

assigned to work together with CD because “[t]he prospect of having to further interact with CD

was too much to handle.” (Compl. Ex. 3 at 3-4). In addition, after plaintiff met with Dean

Landeta-Burdick and instructed CD to leave him alone, CD allegedly “began stalking him on and

off campus . . . and harass[ing] him at SPP networking events.” (Id. at 4). “Eventually,” the

complaint asserts, plaintiff “stopped attending all social events and lost connection with the

majority of his cohort.” (Id.).

Thus, under the circumstances, the complaint plausibly alleges that plaintiff was subject

to sexual harassment that effectively barred his access to the benefits of his academic program.

Accordingly, the motion to dismiss will be denied.

IV. Conclusion

For the foregoing reasons, defendant’s motion to dismiss is DENIED.

3 For example, CD allegedly told plaintiff that “he was small, he was weak, he had womanly eyes, he had a

‘twink body,’ and he was gay.” (Compl. Ex. 3 at 3).

So Ordered.

/s/ F. Dennis Saylor IV

F. Dennis Saylor IV

Dated: March 6, 2023 Chief Judge, United States District Court