# DAVIS v. UNIVERSITY OF NORTH CAROLINA AT GREENSBORO

> District Court, M.D. North Carolina · September 29, 2020

URL: https://www.frixlaw.com/law-library/cases/10253585

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** September 29, 2020
- **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/10253585

## How later opinions describe it (automated extraction)

- finding a plaintiff’s request for reasonable accommodations constitutes a protected activity under the ADA
- holding that institutions must make “reasonable accommodations for disabled students to ensure that they are able to participate in the educational program”
- 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”
- 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”

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253585. Public record. Not legal advice.