DAVIS v. UNIVERSITY OF NORTH CAROLINA AT GREENSBORO

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

AUTUMN DAVIS, )

)

Plaintiff, )

)

v. ) 1:19CV661

)

UNIVERSITY OF NORTH CAROLINA )

AT GREENSBORO, THE BOARD OF )

GOVERNORS OF THE UNIVERSITY OF )

NORTH CAROLINA, and RALEIGH )

SCHOOL OF NURSE ANESTHESIA, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Plaintiff Autumn Davis brings eight claims against

Defendants University of North Carolina at Greensboro (“UNCG” or

“the University”), the Board of Governors of the University of

North Carolina (the “Board”), and Raleigh School of Nurse

Anesthesia (“RSNA”). Defendants UNCG and the Board (collectively

“Defendants”) have moved to dismiss Plaintiff’s claims under

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), (Doc.

8), Plaintiff responded, (Doc. 10), and Defendants have filed a

reply, (Doc. 11). This case is ripe for adjudication. For the

reasons set forth herein, the court will grant Defendants’

motion in part and deny Defendants’ motion in part.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On a motion to dismiss, a court must “accept as true all of

the factual allegations contained in the complaint . . . .” Ray

v. Roane, 948 F.3d 222, 226 (4th Cir. 2020). The facts, taken in

the light most favorable to Plaintiff, are as follows.

A. Parties

Plaintiff Autumn Davis (“Plaintiff” or “Ms. Davis”) is a

resident of North Carolina. (Complaint (“Compl.”) (Doc. 1) ¶ 9.)

Defendant UNCG is a “component” of the University of North

Carolina (“UNC”) System. (Id. ¶ 1.) It is a state institution

located in Greensboro, North Carolina, established pursuant to

the laws of North Carolina. (Id.) Defendant UNCG receives

federal financial assistance for the purposes of Section 504 of

the Rehabilitation Act and is a public entity for the purposes

of Title II of the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12132 (Id. ¶ 2.)

The Board is “the policy-making body legally charged with

the general determination, control, supervision, management and

governance of all affairs of the constituent institutions,” and

has supervisory authority over the UNC system’s

member-institutions. (Id. ¶¶ 4–5.)

Defendant RSNA is a nonprofit corporation organized under

the laws of North Carolina. (Id. ¶ 6.) Defendant RSNA is

allegedly a “joint/single entity with UNCG.”1 (Id. ¶ 7.)

The following individuals are not defendants but are

relevant actors for Plaintiff’s Complaint. Dr. Robin Remsburg is

the Dean of UNCG’s School of Nursing. (Id. ¶ 18.) Dr. Kelly

Burke is the Dean of UNCG’s Graduate School. (Id. ¶ 19.) Dr.

Franklin Gilliam, Jr., is UNCG’s Chancellor. (Id. ¶ 20.) Jerry

D. Blakemore is UNCG’s General Counsel. (Id. ¶ 22.) Harry Smith,

Jr., is the Chair of the UNC Board. (Id. ¶ 23.) Thomas C.

Shanahan is the Senior Vice-President and General Counsel for

the UNC Board. (Id. ¶ 24.)

B. Factual Background

1. Plaintiff’s Participation in the DNP Program

Plaintiff enrolled in UNCG’s Doctor of Nursing Practice

(“DNP”) program in August 2015, in order to obtain a Master of

Science in Nursing degree, with a concentration in nurse

anesthesia. (Id. ¶ 15.) Plaintiff sought to become a Certified

Registered Nurse Anesthetist (“CRNA”). (Id. ¶ 14.) Plaintiff

also enrolled as required at RSNA, a nonprofit associated with

the DNP program. (Id. ¶ 15.)

1 Defendant RSNA has not moved to dismiss Plaintiff’s

Complaint.

“The DNP program requires, among other things, the

completion of academic courses and practicum courses, which are

to be completed in a supervised clinical setting through RSNA.”

(Id. ¶ 16.) UNCG and RSNA assigned Plaintiff to perform clinical

work at local North Carolina hospitals, such as Rex Hospital and

WakeMed Hospital, as a student nursing anesthetist. (Id. ¶ 17.)

A CRNA employed by the attending hospital supervised Plaintiff

while performing her clinical work. (Id.)

2. Plaintiff’s Sexual Harassment Complaints

UNCG assigned Plaintiff to work as a Student Registered

Nursing Anesthetist at WakeMed Raleigh Hospital (“WakeMed”) in

July 2016. (Id. ¶ 37.) A particular male CRNA (“male CRNA”)

acted as her direct supervisor during much of her time at

WakeMed. Plaintiff alleges that this male CRNA repeatedly “made

sexually suggestive and otherwise inappropriate jokes to

Ms. Davis.” (Id. ¶ 38.) For instance, “on one occasion where a

female patient was under anesthesia, the male CRNA stated in

front of Ms. Davis, ‘man, the surgeon can take as long as he

wants in this case, it’s a nice view. When I saw her tits, I

mean man.’” (Id.) This male CRNA also repeatedly asked Plaintiff

to strip for him. (Id. ¶ 38.) He also “asked Ms. Davis out on

dates, even after she asked him to stop,” and “pushed his erect

penis against Ms. Davis’ body while she was working.” (Id.)

Plaintiff was “mortified by the particular male CRNA’s

conduct and suffered substantial distress as a result, to the

point of being diagnosed with anxiety and depression.” (Id.

¶ 40.)

3. Plaintiff’s Reports

Plaintiff reported this conduct to Dr. Nancy Shedlick

(“Dr. Shedlick”) and Dr. Linda Stone (“Dr. Stone”) in July 2016.

(Id. ¶ 41.) Dr. Shedlick was the Program Administrator “in

charge of UNCG’s DNP program.” (Id. ¶ 35.) Dr. Stone served as

the RSNA Assistant Program Administrator for the DNP program and

reported directly to Dr. Shedlick. (Id. ¶ 36.) Upon receiving

Plaintiff’s first complaint, Dr. Stone “pointedly asked Ms.

Davis, ‘are you sure you want to make this type of complaint?’

in an attempt to intimidate Ms. Davis and otherwise cause her to

withdraw her complaint.” (Id. ¶ 42.) Moreover, “Dr. Shedlick and

Dr. Stone intentionally downplayed the particular male CRNA’s

conduct and tried to claim it somehow was ‘accidental.’” (Id.)

Both Dr. Shedlick and Dr. Stone then “pressured Ms. Davis not to

share her complaint with anyone else.” (Id.) Plaintiff did not

withdraw her complaint. (Id. ¶ 43.) Despite Plaintiff’s

allegations, no meaningful investigation of her complaint ever

occurred. (Id.)

Around the end of October 2016, Defendants assigned

Plaintiff to work with the same male CRNA again. (Id. ¶ 44.)

Plaintiff complained to the Chief CRNA at WakeMed and “asked why

she was assigned to the male CRNA notwithstanding his past

conduct towards her.” (Id.) The Chief CRNA told Plaintiff that

neither she nor the hospital had been advised about Plaintiff’s

sexual harassment complaint, nor had she been told that the

hospital should restrict interactions between Plaintiff and the

male CRNA. (Id.) The Chief CRNA directed Plaintiff to “speak

again with Dr. Shedlick and Dr. Stone and obtain their

authorization for restrictions on her contacts with the male

CRNA.” (Id.) Plaintiff followed this directive and emailed

Dr. Stone on November 1, 2016, in which Plaintiff stated that

“[e]very encounter with [the male CRNA] has escalated, and the

last encounter left me feeling sexually exploited for weeks.”

(Id. ¶ 45 (alterations in original).) Dr. Stone and Dr. Shedlick

responded by “reprimand[ing] Ms. Davis for going ‘outside the

chain of command’ by bringing this issue to [the Chief CRNA]’s

attention.” (Id. ¶ 46.) Dr. Stone then stated that, despite

Plaintiff’s previous complaints of harassment, Plaintiff “needed

to understand” that she “‘may work with [the male CRNA] when

assigned to Wake as he works the call schedule’” and she “‘may

be assigned with him on off-shifts.’” (Id.)

4. UNCG’s Alleged History with Sexual Harassment

Plaintiff also alleges that, prior to July 2016, “multiple

female students in the DNP program lodged sexual harassment

and/or related complaints while training as Registered Nurses at

local North Carolina hospitals,” that “some or all of these

complaints were made against the same male CRNA, who on

information and belief continues to remain employed within the

UNC Healthcare System,” and that “each of the named Defendants

were aware and/or should have been aware of the pre-July 2016

complaints.” (Id. ¶ 26.) Further, Plaintiff alleges, “UNCG

(including but not limited to its Human Resources Department,

its Legal Department and its General Counsel Jerry Blakemore),

the UNC Board (including but not limited to its General Counsel

Thomas Shanahan) and RSNA were and have been aware of the

unlawful sexual harassment and retaliation” and “have refused to

take appropriate steps to investigate and remedy the unlawful

conduct.” (Id. ¶ 29.)

5. Plaintiff’s Disability

Plaintiff suffers from attention deficit/hyperactivity

disorder (“ADHD”). (Id. ¶ 47.) Plaintiff “requested reasonable

accommodations from UNCG, including extended time for completing

exams and placement in a quiet environment when taking exams to

limit interruptions.” (Id. ¶ 48.) Though UNCG “granted” these

requests, Plaintiff alleges it “intentionally took steps to

ensure the accommodations were not implemented properly.” (Id.

¶ 49.) She alleges that “Dr. Stone and Dr. Shedlick (among

others) repeatedly interrupted Ms. Davis during testing and

otherwise ensured that she did not take exams in a quiet working

environment.” (Id.) Dr. Stone and Dr. Shedlick also frequently

mocked Plaintiff’s disability in front of other students and

yelled at Plaintiff prior to exams over her requested

accommodations. (Id. ¶ 50.) Further, Plaintiff alleges “Dr.

Stone and Dr. Shedlick . . . threatened to have Ms. Davis

dismissed from the DNP program if she complained about any of

their conduct towards her.” (Id.)

Despite these threats, Plaintiff complained to UNCG’s

Office of Accessibility and Resource Services about what she

perceived to be disability-based discrimination and retaliation.

(Id. ¶ 51.) Plaintiff alleges that, in response, throughout

2017 and 2018 “UNCG (through Dr. Shedlick, Dr. Stone and others)

engaged in a near daily campaign to inflict maximum harm upon

Ms. Davis, a student who had engaged in protected conduct under

the ADA, Title IX and other laws.” (Id. ¶ 53.) For example,

Plaintiff contends that UNCG retaliated against her by

continuing to assign her to work at WakeMed, sometimes under the

male CRNA’s supervision; having Dr. Shedlick and Dr. Stone claim

Plaintiff was not “fit for duty” for the DNP program, which

occurred as recently as June 2018; fabricating documents to make

it appear as though Plaintiff was not completing her clinical

work correctly, which occurred as recently as January 2019;

having Dr. Stone and Dr. Shedlick falsely accuse Plaintiff of

insubordination in June 2018; and having Dr. Stone and

Dr. Shedlick “repeatedly advise students that they were doing

everything they could to have Ms. Davis dismissed from the DNP

program.” (Id. 54.) Indeed, Plaintiff alleges that, “on multiple

occasions during 2017 and 2018, Dr. Shedlick and/or Dr. Stone

made comments to Ms. Davis like, ‘if I can’t get rid of you for

this [latest fabricated reason], I can get rid of you for

something else.’” (Id. ¶ 55.)

6. Plaintiff’s Dismissal

In June 2018, approximately one month before Plaintiff was

to complete the DNP program and receive her degree, Plaintiff

alleges that Dr. Stone, Dr. Shedlick, among others,

“orchestrated” her dismissal from the program for “false

reasons.” (Id. ¶ 56.) The stated reason for Plaintiff’s

dismissal was “unsafe nursing practices.” (Id. ¶ 56.)

Plaintiff had accepted a post-graduate job starting in

November 2018, which was contingent on Plaintiff obtaining her

Doctor of Nursing Anesthesia Practice degree. (Id. ¶ 57.)

Plaintiff alleges that Dr. Shedlick, Dr. Stone, and others “knew

or should have known” that Plaintiff had accepted this position.

(Id.) UNCG scheduled appeal hearings in August and October 2018.

(Id. ¶ 58.)

C. Procedural History

Plaintiff filed her Complaint in this court in July 2019.

(Compl. (Doc. 1).) Defendants UNCG and the Board moved to

dismiss Plaintiff’s Complaint, (Doc. 8), along with a supporting

brief. (Defs. Mem. of Law in Supp. of Mot. to Dismiss (“Defs.’

Br.”) (Doc. 9).) Plaintiff responded, (Pl.’s Resp. in Opp’n to

Defs.’ Mot. to Dismiss (“Pl.’s Resp.”) (Doc. 10)), and

Defendants replied, (“Defs.’ Reply”) (Doc. 11)). Summons was

issued for Defendant Raleigh School of Nurse Anesthesia, (Doc.

2-2), was served via certified mail, (Doc. 7), and has not

appeared in this case.

II. STANDARDS OF REVIEW

A. Rule 12(b)(6)

To survive a Rule 12(b)(6) motion, “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its

face if “the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is

liable” and demonstrates “more than a sheer possibility that a

defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 556–57). When ruling on a motion to

dismiss, this court accepts the complaint’s factual allegations

as true. Id. Further, this court liberally construes “the

complaint, including all reasonable inferences therefrom, . . .

in plaintiff’s favor.” Estate of Williams-Moore v. All. One

Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.

2004) (citation omitted). This court does not, however, accept

legal conclusions as true, and “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678.

B. Rule 12(b)(1)

Under Federal Rule of Civil Procedure 12(b)(1), a plaintiff

must prove by a preponderance of the evidence the existence of

subject-matter jurisdiction. See Demetres v. East West Constr.,

Inc., 776 F.3d 271, 272 (4th Cir. 2015). A defendant may

challenge subject-matter jurisdiction facially or factually. See

Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). In a

facial challenge, a defendant asserts that the allegations,

taken as true, are insufficient to establish subject-matter

jurisdiction. See id. The court then effectively affords a

plaintiff “‘the same procedural protection as he would receive

under a Rule 12(b)(6) consideration,” taking the facts as true

and denying the Rule 12(b)(1) motion if the complaint “alleges

sufficient facts to invoke subject matter jurisdiction.” Id.

(quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)).

In a factual challenge, a defendant asserts that the

jurisdictional allegations are false, and the court may look

beyond the complaint to resolve the disputed jurisdictional

facts without converting the motion to one for summary judgment.

Id. at 192–93. However, where the Eleventh Amendment bar has

been asserted by a party, that party has the burden of proving

that it is entitled to immunity. Hutto v. S.C. Ret. Sys., 773

F.3d 536, 543 (4th Cir. 2014).

III. ANALYSIS

Because Eleventh Amendment immunity is dispositive as to

four of Plaintiff’s claims, the court addresses this issue

first.

A. The Eleventh Amendment

Defendants argue that Plaintiff’s 42 U.S.C. § 1983 claims,

as well as Plaintiff’s state law claims, should be dismissed as

barred by the Eleventh Amendment under Rule 12(b)(1). (Defs.’

Br. (Doc. 9) at 6.)

Here, Defendants argue that the Eleventh Amendment bars

Plaintiff’s § 1983 claims and state law claims, which Plaintiff

concedes with regard to the § 1983 claims and the North Carolina

Constitutional claim insofar as she requests damages, but asks

the court to dismiss these claims without prejudice so that she

may amend her Complaint.2 (See Pl.’s Resp. (Doc. 10) at 22 n.7.)

Plaintiff does not concede that the Eleventh Amendment bars her

unjust enrichment claim. Plaintiff’s one-sentence request for

permission to amend the Complaint is not in the form necessary

2 The court also finds the following finding of the Fourth

Circuit applicable here:

An alternative and potentially dispositive basis for

denial of the § 1983 claims against NCSU, the NCSU

governing board, the Board of Governors of the

University of North Carolina, and the individual

defendants in their official capacities is that, as

alter egos of the state, they are not “persons” within

the meaning of § 1983. Because this ground was not

advanced or argued by the parties, the Court does not

here rely on it.

Huang v. Bd. of Governors of Univ. of N.C., 902 F.2d 1134, n.6

(4th Cir. 1990) (citing Will v. Michigan Dept. of State Police,

491 U.S. 58 (1989)).

Further, while Plaintiff requests injunctive relief, the

court notes that the Ex Parte Young, 209 U.S. 123 (1908),

exception to the Eleventh Amendment does not apply here because

that exception only applies to “state officials,” and Defendants

are not “state officials.” See Franks v. Ross, 313 F.3d 184, 197

(4th Cir. 2002).

to move to amend.3 See L.R. 15.1 (“[T]he moving party shall

attach the proposed amended pleading to the motion.”).

Defendants are entitled to Eleventh Amendment immunity. See

Emanuelson v. Univ. of N.C. at Greensboro, No. 1:17CV534, 2018

WL 1779342, at *4 (M.D.N.C. Apr. 12, 2018) (“UNCG is a

constituent institution of the University of North Carolina and,

as such, UNCG, like the University of North Carolina, is an

agency of the State of North Carolina entitled to Eleventh

Amendment immunity.”); see also Huang v. Bd. of Governors of

Univ. of N.C., 902 F.2d 1134, 1139 n.6 (4th Cir. 1990) (finding

that the Eleventh Amendment barred a suit for damages against

UNC); McCants v. NCAA, 251 F. Supp. 3d 952, 959 (M.D.N.C. 2017)

(noting that UNC has Eleventh Amendment immunity); McAdoo v.

Univ. of N.C. at Chapel Hill, 248 F. Supp. 3d 705, 718-19

(M.D.N.C. 2017) (concluding that UNC is an arm of the state).

The court will therefore examine whether Plaintiff’s unjust

enrichment claim is barred by the Eleventh Amendment.

A plaintiff can overcome Eleventh Amendment immunity in

three ways. First, Congress may abrogate Eleventh Amendment

immunity through statute “if it makes its intention to abrogate

3 Nevertheless, because the court will dismiss this claim

under Rule 12(b)(1), the dismissal is without prejudice and

Plaintiff is free to seek leave to amend her Complaint.

unmistakably clear in the language of the statute and acts

pursuant to a valid exercise of [constitutional authority].”

Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 726 (2003).

Second, a plaintiff can overcome the Eleventh Amendment bar if

the State clearly and unambiguously waives sovereign immunity.

Pense v. Md. Dep’t of Pub. Safety & Corr. Servs., 926 F.3d 97,

101 (4th Cir. 2019). Finally, a plaintiff can prevail if Ex

Parte Young, 209 U.S. 123 (1908) applies, which strips immunity

when a suit seeking prospective relief is brought against state

officials in their official capacities, so long as the violation

is ongoing. Republic of Paraguay v. Allen, 134 F.3d 622, 627

(4th Cir. 1998). Absent one of these excepted scenarios,

Plaintiff cannot overcome Eleventh Amendment immunity to assert

unjust enrichment against Defendants.

None of the three ways to overcome Eleventh Amendment

immunity apply to Plaintiff’s unjust enrichment claim. First,

there is no federal statute here which would abrogate the

state’s Eleventh Amendment immunity; as unjust enrichment is a

state law claim.

Second, Plaintiff has failed to allege that the State has

waived sovereign immunity. “The doctrine of sovereign immunity

bars actions against public officials sued in their official

capacities.” Phillips v. Gray, 163 N.C. App. 52, 56–57, 592

S.E.2d 229, 232 (2004) (citation omitted). Sovereign immunity is

“absolute unless the [covered entity] has consented to [suit] or

otherwise waived its right to immunity.”4 Fullwood v. Barnes, 250

N.C. App. 31, 37, 792 S.E.2d 545, 550 (2016) (quoting

Schlossberg v. Goins, 141 N.C. App. 436, 440, 540 S.E.2d 49, 52

(2000)). As legal alter egos of the state, UNCG and the Board of

Governors both receive sovereign immunity. See McAdoo, 248

F. Supp. 3d at 718–19 (collecting cases concerning the UNC

system’s sovereign immunity); see also Huang, 902 F.2d at 1139

n.6 (recognizing the Board of Governors of the University of

North Carolina as an alter ego of the State of North Carolina).

Generally, in order to waive sovereign immunity on a claim

of unjust enrichment, a defendant must have consented to some

implied or explicit contract. See M Series Rebuild, LLC v. Town

of Mt. Pleasant, 222 N.C. App. 59, 67-68, 730 S.E.2d 254, 259

(2012) (holding that an unjust enrichment claim cannot abrogate

sovereign immunity absent allegations of a valid contract). In

North Carolina, implied contracts are insufficient to justify an

unjust enrichment claim. The North Carolina Supreme Court has

4 One recent North Carolina Court of Appeals case, however,

notes that “even as public officials acting within the scope of

their official authority, sovereign immunity will not shield

Individual Defendants from suit for actions they took which were

malicious or corrupt.” McCullers v. Lewis, 265 N.C. App. 216,

828 S.E.2d 524, 531 (2019).

held that “[o]nly when the State has implicitly waived sovereign

immunity by expressly entering into a valid contract . . . may a

plaintiff proceed with a claim against the State upon the

State's breach.” Whitfield v. Gilchrist, 348 N.C. 39, 43, 497

S.E.2d 412, 415 (1998). Similarly, North Carolina courts have

“decline[d] ‘to imply a contract in law in derogation of

sovereign immunity to allow a party to recover under a theory

of’ unjust enrichment.” M Series Rebuild, 222 N.C. App. at 67,

730 S.E.2d at 260 (quoting Data Gen. Corp. v. Cnty. of Durham,

143 N.C. App. 97, 103, 545 S.E.2d 243, 248 (2001)).

Plaintiff has failed to allege that Defendants expressly

entered a valid contract in this case. In fact, at no point does

Plaintiff allege Defendants entered into a contract at all. The

court finds that the State has not waived sovereign immunity

with respect to Plaintiff’s unjust enrichment claim.

Finally, the aforementioned third Eleventh Amendment

exception also does not apply, as Plaintiff has not sued any

individuals.

Since no exceptions to Eleventh Amendment immunity apply,

the Eleventh Amendment bars Plaintiff’s unjust enrichment claim.

Plaintiff concedes that the Eleventh Amendment bars her § 1983

claims and her North Carolina Constitutional claim. The court

will therefore grant Defendants’ motion to dismiss Plaintiff’s

Third, Fourth, Fifth, and Eighth claims under Rule 12(b)(1).

B. Title IX Sex Discrimination

Defendants move to dismiss Plaintiff’s Title IX claims

under Rule 12(b)(6). (Defs.’ Br. (Doc. 9) at 9–16.) Title IX

states that “[n]o person . . . 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). Title IX contains an implied private right of action

permitting aggrieved parties to sue educational institutions for

alleged violations. Cannon v. Univ. of Chi., 441 U.S. 677, 713

(1979).

1. Claim One: Sex Discrimination & Sexually Hostile

Educational Environment

Title IX liability can extend to the educational

institution when teachers or other students harass a victim

student due to the victim's sex. See Davis v. Monroe Cnty. Bd.

of Educ., 526 U.S. 629, 646–47 (1999) (finding that a school can

be liable for “known acts of student-on-student sexual

harassment [when] the harasser is under the school's

disciplinary authority”); Gebser v. Lago Vista Indep. Sch.

Dist., 524 U.S. 274, 278 (1998) (stating that a teacher had a

sexual relationship with a teenage student).

A Title IX sexual harassment plaintiff must plausibly

allege that:

(1) she was a student at an educational institution

receiving federal funds, (2) she was subjected to

harassment based on her sex, (3) the harassment was

sufficiently severe or pervasive to create a hostile

(or abusive) environment in an educational program or

activity, and (4) there is a basis for imputing

liability to the institution.

Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007);

see also Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st

Cir. 2002).

Plaintiff clearly alleges the first element: she was a

student at a school which receives federal funds, UNCG. (Compl.

(Doc. 1) ¶¶ 2, 15.) The three remaining elements are at issue.

a. Harassment Based on Sex

The second element of a Title IX sexual harassment claim

asks whether Plaintiff was subjected to harassment based on her

sex. Courts consider this prong satisfied when the harassment at

issue clearly stems from sexual desire. See, e.g., Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (finding

that when “challenged conduct . . . involves explicit or

implicit proposals of sexual activity; it is reasonable to

assume those proposals would not have been made to someone of

the same sex”). Plaintiff has pled facts which plausibly allege

this element.

b. Harassment was Severe, Pervasive, and

Created Hostile Environment

Next, Plaintiff must allege that the sex-based harassment

was “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.” Davis, 526

U.S. at 650.

The Fourth Circuit has defined the deprivation of access to

educational opportunities as any “concrete, negative effect on

[the victim's] ability to participate in an educational program

or activity.” Jennings, 482 F.3d at 699 (alteration in original)

(internal quotation marks omitted). Whether sexual harassment is

sufficient to create this concrete, negative effect “depends on

a constellation of surrounding circumstances, expectations, and

relationships.” Id. at 696 (internal quotation marks omitted).

Courts analyze the frequency and severity of the harassment to

determine whether such a negative effect exists. See Doe v. Bd.

of Educ. of Prince George's Cnty., 982 F. Supp. 2d 641, 652 (D.

Md. 2013), aff'd, 605 F. App'x 159 (4th Cir. 2015).

Here, Plaintiff alleges that the harassment occurred

“repeatedly” and “[t]hroughout” her time at WakeMed. (Compl.

(Doc. 1) ¶ 38.) Moreover, courts have found harassment

particularly severe where it involves physical contact, Davis,

526 U.S. at 653; or where it causes the victim serious

discomfort or anxiety.5 Jennings, 482 F.3d at 699. Both of these

factors are present here. Plaintiff alleges consistent

harassment with at least one instance of physical touching:

namely, the male CRNA “push[ed] his erect penis against

[Plaintiff’s] body while she was working.” (Pl.’s Resp. (Doc.

10) at 3.) Moreover, Plaintiff alleges that she “suffered

substantial distress as a result, to the point of being

diagnosed with anxiety and depression.” (Id.) Contrary to

Defendants’ argument, (Defs.’ Br. (Doc. 9) at 13), a decline in

academic performance is not necessary to demonstrate that

Plaintiff was deprived of educational opportunities. See

Jennings, 526 F.3d at 699-700. Plaintiff has plausibly alleged

that the harassment was frequent and severe enough to

demonstrate a negative effect on her ability to participate in

her educational program.

c. Liability may be Imputed to Defendants

Plaintiff does not allege that her harasser was formally

affiliated with Defendants. When a federal funding recipient

does not engage in harassment directly, the court can only

5 Other factors that may indicate severe conduct include the

presence of multiple victims or a downward trend in the victim’s

academic performance. See Doe, 982 F. Supp. 2d at 652. Courts

also consider the ages of both the victim and the harasser in

analyzing severity. Id.

impute liability to an institution if it is “deliberately

indifferent to sexual harassment, of which [it has] actual

knowledge,” Davis, 526 U.S. at 650, and its “deliberate

indifference ... cause[s] [the victim] to undergo harassment or

make[s] [her] liable or vulnerable to it.” Id. at 644-45

(internal quotation marks omitted). Three prongs are required:

actual knowledge, deliberate indifference, and Plaintiff’s

resulting vulnerability to future harassment. Plaintiff alleges

sufficient facts to plausibly establish that Defendants had

actual knowledge of the harassment, were deliberately

indifferent to it, and made her vulnerable to continued

harassment by the male CRNA.

First, Plaintiff plausibly alleges actual knowledge by

Defendants. Plaintiff first complained about “sexual harassment

and physical assault” to two officials, one of whom was her

UNCG-employed supervisor, in July 2016 – her first month at

WakeMed. (Compl. (Doc. 1) ¶ 41.)6 She later complained a second

6 Plaintiff also alleges that Defendants had extensive

knowledge of previous complaints by other victims of sexual

harassment. (Compl. (Doc. 1) ¶¶ 26-28.) However, Plaintiff fails

to provide any details about these alleged complaints, including

the identities of the victims, dates of the reports, content of

the allegations, or information about who received the

complaints. Though this court considers Plaintiff’s allegations

regarding past victims conclusory at this stage, Plaintiff

provides enough information about her own experience to

(Footnote continued)

time to that same UNCG supervisor, Dr. Shedlick, who served as

the Program Administrator in charge of Plaintiff’s three-year

DNP program. (Id. ¶ 35.) These two instances sufficiently

establish actual knowledge on the part of UNCG. See Jennings,

482 F.3d at 700 (finding that where victim met with “an official

responsible for fielding sexual harassment complaints” to

describe harassment, sufficient evidence existed for a jury to

decide whether the victim “gave [the official], and by extension

UNC, actual notice” of harassment) (emphasis added).

Plaintiff also alleges deliberate indifference by

Defendants. An institution will be deemed deliberately

indifferent to harassment “only where [its] response to the

harassment or lack thereof is clearly unreasonable in light of

the known circumstances.” Rouse v. Duke Univ., 914 F. Supp. 2d

717, 723–24 (M.D.N.C. 2012), aff'd, 535 F. App'x 289 (4th Cir.

2013) (quoting Davis, 526 U.S. at 648). After Plaintiff’s July

2016 complaint, no action was taken. (Compl. (Doc. 1) ¶ 43.)

Moreover, the Chief CRNA at WakeMed made clear that no one from

UNCG so much as attempted to keep Plaintiff separate from her

harasser, in spite of Defendants’ ability to do so. (Id. ¶ 44.)

establish the elements of a sexual harassment claim without

relying on prior victims at this stage in the pleadings. Though

more information may arise at a later stage, this court will not

incorporate these conclusory allegations into its present

analysis.

Thus, Plaintiff was forced to continue working “under the male

CRNA’s direct supervision” even after both of her complaints to

UNCG. (Id. ¶ 54.) The Fourth Circuit has found far more robust

responses than this one plausibly inadequate. See Feminist

Majority Found. v. Hurley, 911 F.3d 674, 689 (4th Cir. 2018)

(finding that a university’s response to harassment complaints

was plausibly unreasonable even when the university held

“listening circles,” sent an email about the issue, and gave a

threatened student a campus police guard for one evening”);

Jennings, 482 F.3d at 701 (finding that a “[u]niversity’s

failure to take any action to remedy the [harassment] would

allow a rational jury to find deliberate indifference to ongoing

discrimination”).

Moreover, Defendants controlled Plaintiff’s educational

environment. Deliberate indifference may only be alleged where

the university “exercises substantial control over both the

harasser and the context in which the known harassment occurs.”

Davis, 526 U.S. at 645. Defendants argue that Plaintiff fails to

allege UNCG could “exercise control over CRNA/student

supervision assignments” or “in any way influence” the clinical

experience. (Defs.’ Br. (Doc. 9) at 13.) However, Plaintiff

clearly alleges that the Chief CRNA at WakeMed told her UNCG

officials could “obtain . . . restrictions on [Plaintiff’s]

contacts with the male CRNA”.” (Compl. (Doc. 1) ¶ 44.) Nor did

WakeMed get the final say over student supervision: in fact, the

WakeMed employee advised Plaintiff to talk with her

administrators from UNCG and RSNA to get their “authorization”

for the change. Id. While Defendants may not have lacked

complete authority over the male CRNA’s actions, the University

had the ability to remove him from a supervisory role over

Plaintiff and could thereby “exercise control over . . .

supervision assignments.” (Defs.’ Br. (Doc. 9) at 13.) Thus, by

communicating the issues to Dr. Shedlick, Plaintiff reported the

harassment to “an official of the recipient entity with

authority to take corrective action to end the discrimination.”

Gebser, 524 U.S. at 290.

Furthermore, Plaintiff asserts that Defendants “proceeded

. . . to assign [Plaintiff] to the same male CRNA, even after

she advised them in November 2016 of her continued hostile

environment.” (Pl.’s Resp. (Doc. 10) at 10 (emphasis added).)

Plaintiff’s repeated allegation that Defendants “assigned” her

to the male CRNA, (id. at 2, 4, 10, 13; Compl. (Doc. 1) ¶¶ 37,

44, 54), also implies Defendants’ substantial control over the

harasser’s supervisory role within the UNCG program.7

Defendants also had substantial control over the context in

which the known harassment occurred. Plaintiff alleges that she

was “assigned” to WakeMed by Defendants as part of her

curriculum at UNCG. (Pl.’s Resp. (Doc. 10) at 2-3.) Her months-

long presence at WakeMed was a direct part of her UNCG education

and is reasonably inferred from the Complaint as a matter within

the University’s discretion. This alone means the Defendants

could “influence the clinical work environment” — by all

accounts, the University Defendants placed Plaintiff in that

environment over other clinical offerings. Plaintiff suggests

the availability of alternative offerings by faulting Defendants

for “continuing to assign [Plaintiff] to perform clinical work

at WakeMed hospital.” (Compl. (Doc. 1) ¶ 54.) These facts,

along with Dr. Shedlick’s supervisory role and ability to

restrict Plaintiff’s contacts within the hospital, constitute

plausible allegations of substantial control.

Finally, as is required for a deliberate indifference

claim, Plaintiff plausibly alleges that she was left vulnerable

7 While Defendants are correct that Plaintiff does not

provide details about how the supervision program is

orchestrated, taking all facts in the light most favorable to

Plaintiff, she has clearly alleged that Defendants played a role

in her assignments.

to harassment after her supervisors dismissed her initial

complaints. When she reached out again to Drs. Shedlick and

Stone on November 1, Plaintiff seems to indicate that the

harassment had continued since her first complaint four months

earlier, stating “[e]very encounter with [the male CRNA] has

escalated, and the last encounter left [her] feeling sexually

exploited for weeks.” (Id. ¶ 45.) Contrary to Defendants’

assertions, Plaintiff also alleges elsewhere that the harassment

occurred “throughout the time [Plaintiff] performed her clinical

work at WakeMed,” (id. ¶ 38), referencing her “continued hostile

environment” after complaining. (Pl.’s Resp. (Doc. 10) at 10

(emphasis added).)

Moreover, Davis does not require that a plaintiff be

actually subjected to further harassment after her complaint,

but rather that she be “[made] liable or vulnerable” to it. 526

U.S. at 645. Upon bringing the issue up with her supervisors

again, Plaintiff was chastised and informed she would continue

working with her harasser. (Compl. (Doc. 1) ¶ 46.) Despite

Plaintiff’s complaints, she alleges “no meaningful investigation

. . . ever occurred.” (Id. ¶ 43.) Plaintiff was subsequently

assigned, by Defendants, to further shifts under the direct

supervision of her harasser. (Id. ¶ 54.) Thus, Plaintiff has

plausibly alleged that Defendants, at a minimum, left her

vulnerable to continued harassment.

Plaintiff has alleged facts to support all four elements of

a sexual harassment claim, including the multiple prongs

required to impute liability to Defendants. Thus, Defendants’

motion to dismiss under Rule 12(b)(6) will be denied.

2. Claim Two: Retaliation for Reporting, Opposing

and Attempting to Remedy a Sexually Hostile

Educational Environment

Title IX includes an implied right of action protecting

those who are retaliated against for reporting sexual

discrimination. Jackson v. Birmingham Bd. of Educ., 544 U.S.

167, 183-84 (2005). Retaliation under Title IX occurs “when a

funding recipient retaliates against a person because [s]he

complains of sex discrimination, this constitutes intentional

‘discrimination’ ‘on the basis of sex,’ in violation of Title

IX.” Id. at 174. A prima facie retaliation claim must show (1)

engagement in a protected activity; (2) an adverse action; and

(3) a causal connection between the protected activity and the

adverse action. See Coleman v. Md. Court of Appeals, 626 F.3d

187, 190 (4th Cir. 2010) (applying this retaliation framework to

Title VII claims); Goodman v. Archbishop Curley High Sch., Inc.,

149 F. Supp. 3d 577, 582 (D. Md. 2016) (applying the framework

to Title IX claims); DeCecco v. Univ. of S.C., 918 F. Supp. 2d

471 (D.S.C. 2013) (same).

Defendants concede that Plaintiff’s report of the

harassment constitutes protected activity. (Defs.’ Br. (Doc. 9)

at 15.) Defendants instead dispute the latter two prongs of

Plaintiff’s retaliation case, arguing that Plaintiff’s dismissal8

was the only adverse action taken and was not causally connected

to her complaints. Id.

As a matter of purely temporal linkage, Plaintiff cannot

directly tie either dismissal with her complaints. Nearly two

years elapsed between Plaintiff’s final complaint to Drs.

Shedlick and Stone in November 2016 and her initial dismissal

from the DNP Program in June 2018. (Compl. (Doc. 1) ¶¶ 45, 56.)

This period is too long to establish a temporal connection on

its own. See King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir.

2003) (finding, in the Title VII context, that even two and a

8 Notably, Plaintiff was technically dismissed two times by

UNCG, once in June 2018 and again in February 2019 after her

reinstatement. (Compl. (Doc. 1) ¶¶ 56, 58.)

half months was probably too long a lapse in time, barring other

circumstances to explain the gap).9

Plaintiff has a stronger temporal case tying her complaints

to her supervisors’ subsequent campaign against her, which

itself may be considered an adverse action under Title IX.

Feminist Majority Found., 911 F.3d, at 695 (“[R]etaliatory

harassment can be a materially adverse action.”). Though

Plaintiff does not allege an exact date that her supervisors

began pushing to have her expelled, it began sometime in 2017,

possibly as soon as two months after her final complaint in

November 2016. However, given Plaintiff does not allege when in

2017 Drs. Stone and Shedlick began mistreating her, temporal

linkage on its own cannot lift her retaliation claim to the

level of plausibility.

Even absent a perfect temporal link, the court may consider

other evidence linking Plaintiff’s complaints with her

dismissal. Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir.

2007) (finding that, in the Title VII context, if a substantial

amount of time passes between the protected activity and the

9 The Fourth Circuit has held that “Title VII, and the

judicial interpretations of it, provide a persuasive body of

standards to which [a court] may look in shaping the contours of

a private right of action under Title IX.” Preston v.

Commonwealth of Va. ex rel. New River Cmty. Coll., 31 F.3d 203,

207 (4th Cir. 1994).

retaliatory conduct, “courts may look to the intervening period

for other evidence of retaliatory animus”).

Plaintiff has provided enough facts to plausibly allege

that Dr. Shedlick and Dr. Stone’s personal animus against

Plaintiff stemmed from her complaints of sexual harassment.

Plaintiff complained about the male CRNA during her very first

month at WakeMed. (Compl. (Doc. 1) ¶¶ 37, 41.) Upon hearing

Plaintiff’s complaint, both supervisors “intentionally

downplayed” the harassment and “pressured [Plaintiff] not to

share her complaint with anyone else.” (Id. ¶ 42.) When

Plaintiff complained to WakeMed’s Chief CRNA about the

harassment in November 2016, Dr. Shedlick and Dr. Stone

“reprimanded” Plaintiff for “going ‘outside the chain of

command’” and reporting the harassment above their heads. (Id.

¶¶ 44, 46.)

Thereafter, in 2017, Dr. Shedlick and Dr. Stone’s attacks

on Plaintiff began: Plaintiff alleges that during 2017 and 2018,

both supervisors consistently tried to expel Plaintiff. (Id.

¶¶ 53, 54.) She also alleges that they fabricated documents and

evidence to undermine Plaintiff’s studies during this time

period. (Id. 54.) Dr. Shedlick and Dr. Stone also falsely

accused Plaintiff of not being “fit for duty” in the nursing

program, “despite no medical evidence supporting their claims.”

(Id.) Plaintiff alleges malicious conduct of this nature

continued throughout 2017 and 2018. (Id.)

This conduct alone, given its spread-out timing over a two-

year period, does not independently link Plaintiff’s complaints

with her dismissal. However, Plaintiff alleges that her

supervisors made specific comments, both to her and to other

students, that demonstrated these actions were motivated by

retaliatory animus and intentionally aimed at expelling

Plaintiff from the program.

For example, “on multiple occasions in 2017 and 2018,” Dr.

Shedlick and Dr. Stone “repeatedly advise[d] students that they

were doing everything they could to have Ms. Davis dismissed

from the DNP program.” (Id.) This directly links Plaintiff’s

dismissal with her supervisors’ hostile conduct throughout 2017

and 2018. Dr. Shedlick and Dr. Stone also made “multiple”

comments to Plaintiff indicating that if they couldn’t “get rid

of [her]” for one thing, they would find a way to “get rid of

[her] for something else.” (Id. ¶ 55.) Once again, this clearly

connects Plaintiff’s dismissal with Dr. Shedlick and Dr. Stone’s

ongoing animus against her throughout 2017 and 2018. Finally,

Plaintiff also alleges that both supervisors outright

“threatened to have [Plaintiff] dismissed from the DNP program

if she complained about any of their conduct towards her.”10 (Id.

¶ 50.) Plaintiff does not allege any hostile conduct of this

nature until after her harassment complaint.

Taking facts in the light most favorable to Plaintiff, the

comments attributed to Dr. Stone and Dr. Shedlick illustrate a

coordinated plan to expel Plaintiff that began after she

complained to them about harassment a second time. As Defendants

argue, this plan may have stemmed merely from unrelated personal

animus. (Defs.’ Reply (Doc. 11) at 9.) However, at this stage in

the pleading, Plaintiff has plausibly alleged that this campaign

to dismiss her was connected to her harassment reporting.

C. Claim Six: ADA Violations

1. Disability Discrimination

Under Title II of the ADA, “no qualified individual with a

disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132. In order

to state a claim under the ADA, Plaintiff must allege that (1)

she has a disability, (2) she is otherwise qualified to receive

10 Plaintiff references this comment when discussing

Plaintiff’s ADA claims, however, Plaintiff seems to allege it

related to all of Dr. Shedlick and Dr. Stone’s retaliatory

conduct. (Compl. (Doc. 1) ¶¶ 52, 53.)

the benefits of a public service, program, or activity, and (3)

she was excluded from participation in or denied the benefits of

such service, program, or activity, or otherwise discriminated

against, on the basis of her disability. Constantine v. Rectors

& Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir.

2005); Baird ex rel. Baird v. Rose, 192 F.3d 462, 467-70 (4th

Cir. 1999).

Defendants do not dispute that Plaintiff has a disability.

(Defs.’ Br. (Doc. 9) at 19.) To fulfill the second prong,

Plaintiff must allege that she was qualified for the educational

program so long as UNCG provided reasonable accommodations to

ensure her success. See Halpern v. Wake Forest Univ. Health

Sciences, 669 F.3d 454, 462 (4th Cir. 2012). Plaintiff

requested, and received, reasonable accommodations from the

University, including “extended time for completing exams and a

quiet testing environment.” (Pl.’s Resp. (Doc. 10) at 3); see

Constantine, 411 F.3d at 488 (holding that institutions must

make “reasonable accommodations for disabled students to ensure

that they are able to participate in the educational program”).

While Plaintiff alleges that Dr. Shedlick and Dr. Stone “mocked”

her ADHD and threatened to dismiss her from the program, these

facts do not materially affect the actual accommodations of

extended time and a quiet testing environment. (Pl.’s Resp.

(Doc. 10) at 4.)

Plaintiff does allege that Shedlick and Stone “interfered

. . . by repeatedly interrupting her during testing and ensuring

Plaintiff lacked a quiet test-taking environment.” (Id. at 3-4.)

Plaintiff does not allege when or how often these interruptions

occurred, or how severely they affected her quiet environment.

Nor does she allege any facts indicating that these

interruptions affected her test-taking performance. This single

fact is the sole allegation that Plaintiff’s accommodations were

anything short of reasonable.

Plaintiff cites Constantine, 411 F.3d 474, as support for

her allegation of disability discrimination; however, the

student in that case was denied the opportunity to re-take an

exam after her disability prevented her from taking it on time.

411 F.3d at 499. Though the student was eventually allowed to

re-take the test, she was given only three days to prepare and

received a failing grade, ultimately preventing her graduation.

Id. Plaintiff was not prevented from taking exams, nor was she

outright denied extra time or quiet test-taking rooms. (Compl.

(Doc. 1) ¶ 49.) Plaintiff does claim that her supervisors

sometimes interrupted her, (id.), but the vague interruptions

alleged are a far cry from the severity of Constantine. As

Defendants note, Plaintiff fails to allege that she was

“excluded from the DNP program or was even prevented from

advancing within it – either as a result of failed examinations,

poor academic performance, or some other reason – because she

has ADHD or because certain individuals frustrated the approved

accommodations.” (Defs.’ Br. (Doc. 9) at 19–20.) In fact,

Plaintiff specifically alleges she was dismissed from the

program for non-academic reasons. (Compl. (Doc. 1) ¶ 56.)

Thus, Plaintiff has failed to allege facts that suggest

“more than a sheer possibility” that Defendants failed to

provide reasonable accommodations. Iqbal, 556 U.S. at 678

(citing Twombly, 550 U.S. at 556–57). Nor does Plaintiff provide

any additional facts to suggest that she was dismissed from the

program specifically due to her ADHD. (See Compl. (Doc. 1)

¶ 135.) Plaintiff’s ADA claim will therefore be dismissed

pursuant to Rule 12(b)(6).

2. Retaliation under the ADA

Plaintiff also alleges a claim of retaliation under the

ADA.11 In order to plausibly state a claim of retaliation under

the ADA, a plaintiff must allege “(1) that she has engaged in

11 Plaintiff does not clearly set apart retaliation under

the ADA as a separate claim in her Complaint. However, the court

will assess the claim anyway, as it is loosely alleged in a

paragraph under the ADA claim heading. (Compl. (Doc. 1) ¶ 135.)

conduct protected by the ADA; (2) that she suffered an adverse

action subsequent to engaging in the protected conduct; and (3)

that there was a causal link between the protected activity and

the adverse action.” Freilich v. Upper Chesapeake Health, Inc.,

313 F.3d 205, 216 (4th Cir. 2002).

Plaintiff alleges she complained to UNCG’s Office of

Accessibility and Resources Services (“OARS”). (Compl. (Doc. 1)

¶ 51.) This constitutes a protected activity under the ADA.

Morris v. BellSouth Telecomms., Inc., 302 F. Supp. 2d 515, 521

(M.D.N.C. 2004) (holding that a protected activity includes

“openly oppos[ing] . . . [discrimination] in any way or . . .

hav[ing] made a charge, participated in an investigation,

etc.”). Plaintiff’s request for exam accommodations was also a

protected activity under the ADA. Haulbrook v. Michelin N. Am.,

Inc., 252 F.3d 696, 706 (4th Cir. 2001) (finding a plaintiff’s

request for reasonable accommodations constitutes a protected

activity under the ADA). The first element of retaliation is

therefore satisfied.

Second, Plaintiff was ultimately dismissed from the DNP

program, which constitutes an adverse action. (Compl. (Doc. 1) ¶

135; see Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,

68 (2006) (defining an adverse action as one which “a reasonable

[person] would have found . . . materially adverse, [i.e., one

which] might have dissuaded a reasonable [person] from making or

supporting a charge of discrimination”); Jacobs v. N.C. Admin.

Office of the Courts, 780 F.3d 562, 577 (4th Cir. 2015) (noting

that firing an employee “clearly” constitutes an adverse action

under the ADA”).)

Plaintiff’s claim fails at the third element of

retaliation. While her supervisors did threaten potential

retaliation if Plaintiff complained, (Compl. (Doc. 1) ¶ 50),

Plaintiff has failed to plausibly allege that (1) Drs. Shedlick

and Stone knew she complained, or (2) that the supervisors’

hostile conduct began or escalated in response to the disability

discrimination complaint. First, it is not alleged that the

supervisors who arranged her dismissal even knew of her OARS

complaint regarding their activity. See Graves v. Bank of Am.,

N.A., 54 F. Supp. 3d 434, 443 (M.D.N.C. 2014) (finding that in

the Title VII context, “[e]mployer knowledge of an EEOC charge

is ‘absolutely necessary’ for a finding of retaliation” (citing

Dowe v. Total Action Against Poverty, 145 F.3d 653, 657 (4th

Cir. 1998))).

This distinguishes her disability discrimination complaint

from her sexual harassment complaints, in which Plaintiff

reported directly to the supervisors who began to retaliate

against her. (Compl. (Doc. 1) ¶¶ 42, 45.)

Moreover, the lack of a date for the OARS complaint makes

it impossible to draw sufficient temporal linkage between the

complaint and Plaintiff’s dismissal. Plaintiff alleges general

dates demonstrating that her supervisors began treating her

poorly after she complained twice about sexual harassment. (Id.

¶¶ 42, 45, 53.) However, Plaintiff fails to adequately place her

OARS complaint on this timeline. Plaintiff’s failure to allege

an approximate date for her OARS complaint makes it entirely

possible that Plaintiff reported disability discrimination well

after her supervisors’ two-year “near daily campaign to inflict

maximum harm on Ms. Davis” was already underway. (Id. ¶ 53.) For

these reasons, Plaintiff is unable to plausibly allege a

sufficient causal link between her dismissal and her OARS

complaint.

D. Claim Seven: Rehabilitation Act

Finally, Plaintiff brings a claim under § 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794, which operates

similarly to the ADA. The Rehabilitation Act differs from the

ADA only “with respect to the third element, causation. To

succeed on a claim under the Rehabilitation Act, the plaintiff

must establish [s]he was excluded ‘solely by reason of’ [her]

disability,” a stricter standard than that imposed by the ADA.

Halpern, 669 F.3d at 461-62 (4th Cir. 2012) (quoting Baird ex

rel. Baird, 192 F.3d at 468–69). Defendants argue that

Plaintiff’s allegations here mirror her ADA arguments and should

be dismissed for the same reasons. (Defs.’ Br. (Doc. 9) at 22–

23.) Once again, Plaintiff has failed to demonstrate how

Defendants failed to provide reasonable accommodations in a way

that denied her the benefits of the university education.

Plaintiff only alleges interruptions by supervisors, without

indicating how often those interruptions occurred or whether

those interruptions impacted her ability to complete the exams.

(Compl. (Doc. 1) ¶ 49.) Given Plaintiff was dismissed for

nonacademic reasons, it is not alleged that any failures on

these exams contributed to her dismissal from the program. (Id.

¶ 56.)

Plaintiff also alleges retaliation under the Rehabilitation

Act. (Id. ¶ 145.) However, Defendants correctly point out that

“the same temporal proximity problems that prevent the drawing

of the inference of causation for her ADA claim also doom

Plaintiff’s claim for retaliation under the Rehabilitation Act.”

(Defs.’ Br. (Doc. 9) at 23.) Given that the Rehabilitation Act

requires even stronger causal links than Plaintiff’s ADA claim,

Plaintiff’s Rehabilitation Act claims will be dismissed pursuant

to Rule 12(b)(6).

Iv. CONCLUSION

For the aforementioned reasons, this court will grant in

part and deny in part the Motion to Dismiss filed by Defendants

University of North Carolina at Greensboro and the Board of

Governors of the University of North Carolina.

IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss,

(Doc. 8), is GRANTED IN PART AND DENIED IN PART. The motion is

GRANTED as to Claims Three, Four, Five, and Hight and these

claims are DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ.

P. 12(b) (1). The motion is GRANTED as to Claims Six and Seven

and these claims are DISMISSED WITHOUT PREJUDICE pursuant to

Fed. R. Civ. P. 12(b) (6). The motion is DENIED regarding Claims

One and Two.

This the 29th day of September, 2020.

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