Boucher v. Trustees of Canisius College

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF NEW YORK

SIERRA BOUCHER, LILY ENGEBRECHT, )

NATASSIA TUHOVASK, HANNAH )

WHELAN, and CASSIDY WOOD, )

)

Plaintiffs, )

)

Vv. ) Case No. 1:22-cv-00381

)

TRUSTEES OF CANISIUS COLLEGE, )

)

Defendants. )

OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANTS’ MOTION TO DISMISS

(Doc. 5)

Plaintiffs Sierra Boucher, Lily Engebrecht, Natassia Tuhovak, Hannah Whelan,

and Cassidy Wood (“Plaintiffs”) bring this action against Defendants Trustees of

Canisius College (the “College”’) alleging causes of action for violations of Title IX of the

Educational Amendments of 1972, 20 U.S.C. § 1681, for sexual harassment/hostile

educational environment (Count I), gender discrimination (Count IT), and retaliation

(Count IIT), Plaintiffs also assert breach of contract (Count IV), estoppel and reliance

(Count V),! and negligent retention and supervision (Count VD.

Pending before the court is the College’s motion to dismiss for failure to state a

claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 5.) On

September 1, 2022, Plaintiffs opposed the College’s motion to dismiss (Doc. 10), and on

September 15, 2022, the College replied (Doc. 12), at which time the court took the

pending motion under advisement.

On November |, 2022, the court issued a text order denying in part without

prejudice the College’s motion for summary judgment, finding that motion inappropriate

' Plaintiffs have withdrawn Count V. See Doc. 10 at 27 n. 2,

at this stage while a motion to dismiss is pending and without the benefit of discovery.

See Doc, 14,

Plaintiffs are represented by Daniela Elizabeth Nanau, Esq. The College is

represented by Thomas S. D’Antonio, Esq. and Christine Marie Naassana, Esq.

1. Allegations in the Complaint.

The College is a private institution that provides both undergraduate and graduate

degree programs with approximately 4,000 enrolled students at any given time. Plaintiffs □

are students who attended the College between approximately 2016 and 2020,

Plaintiffs allege that they “specifically attended [the] College to obtain a degree

from the” school’s Animal Behavior, Ecology and Conservation Program (“ABEC

Program”), which “is one of the country’s first interdisciplinary courses of study

combining the behavioral biology of animals[] with issues relating to animal welfare[]

and wildlife conservation, with a focus on experiential learning[.]” (Doc. 1 at 6, 427.)

Non-party Michael Noonan (“Professor Noonan”), a tenured professor, worked at

the College for forty years, founded the ABEC Program, and chaired the ABEC Program

for at least part of those forty years. Professor Noonan was known as a “specialist in

animal behavior and conservation” who “attract[ed] significant grant and donor money to

the school{.]” /d. at 8, { 42. He also served, at times, as the Director of Canisius

Ambassadors for Conservation (“CAC”), which provided students with the opportunity to

visit “distant locations to study wildlife and conservation issues[] first-hand[.]” Jd. at

4 46. On CAC trips, students recorded video footage for short films.

Alleging that Professor Noonan “used CAC trips to spend unmonitored time away

from the College with targeted students,” id, at 9, 4/49, Plaintiffs claim he was a “serial

sexual predator” and the College “demonstrated deliberate indifference to numerous

complaints[] raised by or on behalf of many women students and others{] regarding the

discriminatory mistreatment they were subjected to by” Professor Noonan. /d. at 1, { 1.

Plaintiffs further assert that Professor Noonan used his positions as Chair of the ABEC

Program and Director of CAC “to condition mentorship and departmental support on a

student’s submission to his constant sexually suggestive behavior that regularly crossed

the line of acceptable conduct[.]” /d. at J 2. In addition to “sexually suggestive discourse”

wherein he insisted “on engaging in ‘girl talk’ about his own dating history([,]” Professor

Noonan allegedly requested hugs from students, engaged in “constant inappropriate

touching of student[s’] hair and clothing, including their bra straps and underwear[,|”

inquired “about the sex lives of his students[,]” and made “numerous suggestions,”

including to each Plaintiff, “that young women should be open to dating older menj.]”

(Doc, 1 at 2, § 3.) Plaintiffs allege that Professor Noonan told female students what they

could and could not wear and dictated how students styled their hair before filming CAC

events. /d. at 24, | 161, 42, 4305.

The College allegedly knew of Professor Noonan’s behavior as early as 2014

because it “received numerous complaints regarding sexual harassment and gender-based

discrimination perpetuated by” him. /d. at 2, 47. Plaintiffs assert that the College “failed

to adjudicate those complaints pursuant to” its policies. 7d. For example, in 2018,

Plaintiff Tuhovak raised complaints about Professor Noonan’s behavior to Susan

Margulis, the ABEC Program Chair, which “went unremedied.” /d. at 3, ¢ 12.7 After

complaining, Plaintiff Tuhovak “learned that Paul Waldau, the former Director of the

[College’s] graduate program in anthrozoology, reported [Professor] Noonan to [the

College’s] Title IX office in 2014 on behalf of a woman student in the graduate

department.” Jd. at 39, 9, 275.

During a January 2019 CAC trip, Professor Noonan told Plaintiff Wood “that

women students and staff had complained about his conduct in the past to the College,

but {the College] never found a ‘significant violation’ of the rules and nothing ever came

of those complaints.” Jd. at 50, 4 368. In a support group for science and math scholarship

students, Professor Andrew Stewart “routinely remark[ed] on how ‘mean’ he found

[Professor] Noonan and how he had observed [Professor] Noonan be an ‘asshole? to other

faculty.” (Dac. { at 17, 4 106.) Many of the students in the support group agreed with

* In this meeting, Plaintiff Tuhovak allegedly complained about Professor Noonan’s verbal and

emotional abuse. In response, Ms. Margulis stated, “We all know he’s difficult to work with.

That’s just the way he is!” (Doc. 1 at 36, ] 255.)

Professor Stewart, “claiming that [Professor] Noonan treated them poorly[] and only

focused his attention on a few, select students.” /d. at | 107. From these comments,

Plaintiff Boucher understood “that [the College] knew about [Professor] Noonan’s

inappropriate conduct” and condoned such misbehavior because it allowed him to

continue to teach at the College. fd. at | 108.

Professor Elizabeth Hogan, who was Co-Chair of the Biology Department at the

time, “learned from another Canisius professor that [Professor] Noonan had subjected

one of the women on his research team to sexual misconduct and that the student wanted

to file a Title IX complaint against [Professor] Noonan.” /d. at 3, | 11. Professor Hogan

allegedly interviewed that unnamed student, who led her to Plaintiff Tuhovak, who, in

turn, requested guidance from Professor Hogan regarding how to file a Title IX

complaint. In January 2019, Professor Hogan referred the matter to the College’s Title [x

officer, Linda Walleshauser. Plaintiff Tuhovak “knew that other women had been

subjected to the same sexual misconduct she suffered and urged them to come forward to

complain about [Professor] Noonan.” /d, at { 15.

In January 2019, Professor Noonan and his students planned “to collect

information and video footage for Project Tiger, a film intended to be about India’s

efforts to protect tigers and their national habitat in the country[.]” Jd. at 9, 4] 51 (“Project

Tiger”). In late January or early February 2019, after completion of the trip, Plaintiffs

“attended meetings with the other students who had previously attended CAC trips and/or

studied under [Professor] Noonan, including [Plaintiff] Tuhovak. During those meetings,

Plaintiffs and their ABEC Program colleagues began to realize that [Professor] Noonan

subjected all of them to the same kinds of sexual harassment and manipulative, abusive

conduct.” (Doc. 1 at 10-11, 457.) Plaintiffs joined several other female students in

presenting a document to the College’s Title IX office which “provid[ed] specific detail

about [Professor] Noonan’s sexual! harassment and gender-based misconduct|.]” /d. at 3,

{ 16; see also id, at 11, | 58 (alleging that Plaintiffs and five other students reported

Professor Noonan’s behavior to the College’s administration, including the Title [X

officer, “during January and February 2019”). Ms. Walleshauser told the students that she

would investigate their allegations “and assured Plaintiffs and the other women present

that their voices would be heard during the process[] and that they would be protected

from retaliation and given support by [the College.]” Jd. at 4, 9 17.

Plaintiffs allege that they “work[ed] for and stud[ied] under [Professor] Noonan

for four... weeks after they came forward with their Title [X complaints about him, ail

the time unaware as to whether [Professor] Noonan had been notified of their claims[]

and fearing he would lash out at them once he did find out.” /d. at 4 19. At the end of

February 2019, the College “removed [Professor] Noonan from campus and relieved him

of all teaching duties, prohibiting him from contacting anyone at [the College] until the

completion of the alleged Title [X investigation.” Jd. at | 20. Despite removing him from

campus, Plaintiffs allege the College “made no immediate effort to obtain the footage in

[Professor] Noonan’s possession for Project Tiger.” (Doc. | at 12, § 68.) As a result, the

students who had worked on Project Tiger, including the majority of Plaintiffs, were

unable to complete the project as originally conceived and instead produced a series of

podcasts about their experiences in India.

On April 26, 2019, Plaintiffs and the other women who had filed Title IX

complaints met with Ms. Walleshauser “to complain about the lack of information

regarding the College’s alleged investigation of [Professor] Noonan.” /d. at 4, 21. Ms.

Walleshauser promised the students that they would be part of the process once her

investigation was completed. She advised “that Plaintiffs and the other complainants

would be permitted to review and comment on her investigative report to the College,”

but “refused to provide any specific overview of the College’s Title IX process, which

Plaintiffs and the other women complainants repeatedly asked for.” Jd. at 4-5, | 22; see

also id, at 11,9 61 (alleging that Ms. Walleshauser “never directed [Plaintiffs] to review

the Sexual Harassment and Gender-Based Misconduct Policy”). Plaintiffs allege the

College never issued such a report, nor did it share with Plaintiffs “any other information

about [its] alleged Title [X investigative process regarding [Professor] Noonan.” /d. at 5,

q 23.

On June 11, 2019, some Plaintiffs received an email from Ms. Walleshauser

notifying them that Professor Noonan had retired from the College effective June 1,

2019. No additional information regarding the outcome of the investigation of his alleged

misconduct was provided.

After Plaintiffs complained about Professor Noonan’s behavior, the College

allegedly retaliated against them by undermining their efforts to obtain footage from

Project Tiger, neglecting to provide them with instructors to support the completion of

the Project Tiger film in a timely manner, and failing to provide them with mentors and

advisors to replace Professor Noonan, “thereby depriving them of recommendation letters

and information regarding graduation requirements[] and[] failing to provide [Professor]

Noonan’s research students with viable ways to continue their research projects after

[Professor] Noonan was removed from campus.” /d. at 6, § 29.

As a result of the alleged acts and omissions of the College, Plaintiffs allege they

have suffered harm to their mental health and their future educational and professional

prospects and endeavors.

II. Conclusions of Law and Analysis.

A. Standard of Review.

To survive a motion to dismiss filed pursuant to Fed. R. Civ, P. 12(b)(6), “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 Ail. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

The sufficiency of a plaintiff's complaint under Rule 12(b)(6) is evaluated using a

“two-pronged approach[.]” Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010)

(internal quotation marks omitted) (quoting /gbal, 556 U.S. at 679). First, the court

discounts legal conclusions and “{t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements[.]” Jgbal, 556 U.S. at 678. The court is also

“‘not bound to accept as true a legal conclusion couched as a factual allegation[.]’” Jd.

(citation omitted), Second, the court considers whether the factual allegations, taken as

true, “plausibly give rise to an entitlement to relief.” /d. at 679, This second step is fact-

bound and context-specific, requiring the court “to draw on its judicial experience and

common sense.” Jd. The court does not “weigh the evidence” or “evaluate the likelihood”

that a plaintiffs claims will prevail. Christiansen v. Omnicom Grp., Inc., 852 F.3d 195,

201 (2d Cir. 2017).

The Second Circuit has “cautioned district courts against imposing too high a

burden on plaintiffs alleging discrimination at the 12(b)(6) stage.” Doe v, Columbia

Univ., 831 F.3d 46, 55 n.8 (2d Cir. 2016); see also Littlejohn v. City of New York, 795

F.3d 297, 311 (2d Cir. 2015) (“The discrimination complaint ... must be viewed in light

of the plaintiff's minimal burden to show discriminatory intent.”); Dawson v. New York

City Transit Auth., 624 F. App’x 763, 770 (2d Cir. 2015) (“At the pleading stage, district

courts would do well to remember this exceedingly low burden that discrimination

plaintiffs face even after they have survived a motion to dismiss.”).

B. Whether Plaintiffs’ Title IX Claims are Time-Barred.

The College asserts that all of Plaintiffs’ Title [X claims are time-barred because

the Complaint was not filed within three years of Professor Noonan’s alleged misconduct

and the College’s alleged deliberate indifference.? “[TJhe statute of limitations is

ordinarily an affirmative defense that must be raised in an answer,” but “a statute of

limitations defense may be decided on a Rule 12(b)(6) motion if the defense appears on

the face of the complaint.” Thea v. Kleinhandler, 807 F.3d 492, 501 (2d Cir, 2015)

(quoting Ellul v. Congregation of Christian Bros., 774 F.3d 791, 798 n.12 (2d Cir, 2014))

3 Plaintiffs characterize Count I (sexual harassment/hostile school environment) as offering two

theories of liability. See Doc. 10 at 15 (explaining that “[t]he allegations in Plaintiffs’ Complaint

support. , . ‘pre-assauit’ sexual harassment/hostile schoo! environment” and “‘post-assault’

sexual harassment/hostile school environment” theories of liability). “[A] pre-assault claim

alleges that the school maintained a policy of deliberate indifference to sexual harassment that

created a heightened risk of it and, ultimately, led to a plaintiff's particular harassment[.]”

Karasek v. Regents of Univ, of Cal., 500 F. Supp. 3d 967, 970 (N.D. Cal. 2020). A post-assault

claim, in turn, “alleges that a school’s response to a complaint of sexual misconduct violated

Title IX[.J” dd. Plaintiffs’ Complaint does not mention either theory of liability.

(internal quotation marks omitted); see also Allen v. Dairy Farmers of Am., Inc., 748 F.

Supp. 2d 323, 354 (D. Vt. 2010) (“A statute of limitations analysis is generally riddled

with questions of fact, which the Defendants must establish in order to bar Plaintiffs’

claims” and thus “are generally not resolved with a motion to dismiss under Rule

12(b)(6).”) (footnote omitted).

Because Title [X does not include an express statute of limitations and the four-

year federal statute of limitations does not apply,’ courts apply “the most appropriate or

analogous state statute of limitations.” Purcell v. N.Y. Inst. of Tech.-Coll. of Osteopathic

Med., 931 F.3d 59, 62-63 (2d Cir. 2019) (quoting Curto v. Edmundson, 392 F.3d 502,

504 (2d Cir, 2004) (per curia)); see also Graham Cnty. Soil & Water Conservation

Dist. v. U.S. ex rel. Wilson, 545 U.S, 409, 414 (2005) (“To determine the applicable

statute of limitations for a cause of action created by a federal statute, we first ask

whether the statute expressly supplies a limitations period. If it does not, we generally

‘borrow’ the most closely analogous state limitations period.”).

The Second Circuit has held that “personal injury actions are the ‘most closely

analogous’ to Title IX claims, and thus applie[s] New York’s three-year statute of

limitations to Title IX claims,” Purcell, 931 F.3d at 63 (quoting Curto, 392 F.3d at 504).

“In a federal question case... when a federal court determines the limitations period by

applying an analogous state statute of limitations, the court .. . looks to federal common

law to determine the time at which the plaintiff's federal claim accrues.” Guilbert v.

Gardner, 480 F.3d 140, 149 (2d Cir. 2007).

A claim typically accrues “when it comes into existence[,]” ie., “when the

plaintiff has a complete and present cause of action.”” Gabelli v. SE.C., 568 U.S. 442,

448 (2013) (internal citations and quotation marks omitted), However, under the

4 See Purcell y, N.Y. Inst. of Tech.-Coll. of Osteopathic Med. , 931 F.3d 59, 62 & n.10 (2d Cir.

2019) (“[A] cause of action aris[es] under an Act of Congress enacted after December 1, 1990—

and therefore is governed by § 1658’s 4-year statute of limitations—if the plaintiffs claim

against the defendant was made possible by a post-1990 enactment. . . . Title IX [was] enacted

prior to December 1, 1990.”) (internal citations and quotation marks omitted).

discovery rule, a cause of action accrues when, “‘with reasonable diligence,’ the plaintiff

‘has or... should have discovered the critical facts of both his injury and its cause.’”

ex rel. Castillo vy. United States, 656 F.3d 135, 140 (2d Cir. 2011) (quoting Barrett

v. United States, 689 F.2d 324, 327 (2d Cir. 1982)); see also Rotella v. Wood, 528 U.S.

549, 555 (2000) (“[I}n applying [the] discovery accrual rule, .. . discovery of the injury,

not discovery of the other elements of a claim, is what starts the clock.”); Karasek v.

Regents of Univ. of Cal., 500 F. Supp. 3d 967, 979 (N.D. Cal, 2020) (explaining that the

discovery rule requires that a Title [X plaintiff “be put on notice not just of the concrete

injury but of its ‘cause[,]’” meaning the policy of deliberate indifference).

“(Neither the Supreme Court nor the Second Circuit has explicitly held that the

discovery tule should apply to accrual of [Title IX] claims.” Doe v. Nat'l Ramah

Comin’n, Inc., 2018 WL 4284324, at *5 (S.D.N.Y. Sept. 7, 2018), In Sayder-Hill v. Ohio

State University, the Sixth Circuit reasoned that the discovery rule applies in the Title [X

context because it applies in the § 1983 context, and “[t]he analysis concerning when the

statute of limitations [for a Title IX claim] [begins] to run is the same as [for a § 1983

claim.]” 48 F.4th 686, 698 (6th Cir, 2022) (internal citations and quotation marks

omitted) (third alteration added), In King- White v. Humble Independent School District,

the Fifth Circuit likewise “[held] that Title [X should be treated like § 1983 for

limitations purposes.” 803 F.3d 754, 759 (5th Cir. 2015). District courts in the Second

Circuit have similarly applied the discovery rule to Title [X cases. See, e.g., Austin v.

Fordham Univ,, 2022 WL 4626485, at *4 (S.D.N.Y, Sept. 30, 2022) (“Though the

Second Circuit has not definitively resolved the issue, the [c]ourt assumes that

the... [discovery accrual rule] applies to this Title IX action.”). The weight of authority

thus supports applying the discovery rule in the context of Plaintiffs’ claims.

In JD1 v. Canisius College, this court held that “a plaintiff's Title [X pre-assault

claim accrues when the plaintiff knows or has reason to know of the school’s policy of

deliberate indifference that created a heightened risk of harassment.” 2022 WL 2308902,

at *12 (W.D.N.Y. June 27, 2022) (quoting Karasek, 500 F. Supp. 3d at 978) (internal

quotation marks omitted). The Fifth Circuit has suggested that post-assault Title [x

claims accrue when a plaintiff’s complaints to the school’s administration “go|]

unheeded[.]” King-White, 803 F.3d at 763.° Gender discrimination claims “accrue when

the discriminatory act takes place and the plaintiff reason to know of it[,]” Brown v.

Castleton State Coll., 663 F. Supp. 2d 392, 397 (D. Vt. 2009), and retaliation claims

accrue when the plaintiff “discovered or could have discovered that [the school’s]

administrators were taking adverse action against [the plaintiff] based on protected

activity.” Austin, 2022 WL 4626485, at *5.

The College argues that all of Plaintiffs’ Title [X “claims accrued, at the latest, in

February 2019” when Plaintiffs reported Professor Noonan’s behavior to the Title [x

officer and when the College suspended Professor Noonan and banned him from its

campus. (Doc. 5-6 at 11.) It therefore claims that Plaintiffs’ Complaint was required to be

filed by February 2022 to be timely. Because Plaintiffs did not initiate this suit until May

20, 2022, the College requests dismissal of this action.

1. Sexual Harassment/Hostile Educational Environment Claims

(Count I).

Plaintiffs counter that their “pre-assault claims are based on [the] College’s

condonation of ongoing sexual harassment of women students who studied under

[Professor] Noonan in the ABEC and CAC Programs, which constitutes a policy of

deliberate indifference to reports of [Professor] Noonan’s sexual misconduct[,]”(Doc. 10

at 15.) They argue that such claims accrued on June 11, 2019, which is the date “they

were informed by e-mail that [Professor] Noonan ha[d] been permitted to retire.” Jd. at

19, Prior to receipt of that email, Plaintiffs allegedly “were not on notice that [the]

> For this reason, several courts have explained that “pre-assault ... claim[s] may not accrue

until well after [] post-assault Title [X claim|[s].” Sayder-Hill v. Ohio State Univ,, 48 F.4th 686,

704 (6th Cir, 2022); see also Doe v. Bd. of Supervisors of Univ. of La. Sys., 2023 WL 143171, at

#16 (M.D, La, Jan, 10, 2023) (“In cases... . alleging pre-and post-assault Title IX claims|, |

courts often find that the post-assault claim accrued before the pre-assault claim.”), While a

plaintiff “will typically know or have reason to know that a school mishandles their own report

of an assault close to the time of the school’s inadequate response[,] .. . that same plaintiff may

have no reason to know of a school’s deliberate indifference that gave rise to their heightened-

risk claim.” Sayder-Hill, 48 F 4th at 704.

10

College had a policy of deliberate indifference to complaints about [Professor] Noonan’s

sexual misconduct.” /d. Plaintiffs state that their post-assault claims accrued on the same

date, at which point they were put “on notice” that the College would not respond to their

complaints about Professor Noonan. /d. at 21.

At the pleading stage, Plaintiffs plausibly allege that they did not discover the

College’s deliberate indifference to reports of Professor Noonan’s misconduct until June

11, 2019, when Ms. Walleshauser allegedly informed Plaintiffs that the College had

discontinued its investigation due to Professor Noonan’s retirement. Similarly, Plaintiffs □

plausibly allege that they did not have reason to know that their complaints to the College

had “gone unheeded” or had otherwise been mishandled until that same date.° Plaintiffs

thus plausibly allege that their post-assault sexual harassment/hostile educational

environment claims did not accrue until June 11, 2019. The College’s motion to dismiss

their sexual harassment/hostile educational environment claims on statute of limitations

grounds is therefore DENIED.

2. Gender Discrimination Claims (Count I).

Plaintiffs’ gender discrimination claims, however, warrant different treatment.

Plaintiffs allege that they reported Professor Noonan’s gender-based misconduct in

February 2019 and thus were aware of his discriminatory acts more than three years

6 Plaintiff Tuhovak may not be similarly situated to the other Plaintiffs. She first complained of

Professor Noonan’s behavior in 2018 and alleges that those complaints “went unremedied.”

(Doc. 1 at 3, | 12.) She may thus have become aware of the College’s policy of deliberate

indifference, at least with respect fo any post-assault claims, at an earlier date than the other

Plaintiffs. See Snyder-Hill, 48 F.4th at 704 (“A plaintiff will typically know or have reason to

know that a school mishandles their own report of an assault close to the time of the school’s

inadequate response.”). On the other hand, her complaints in 2018 focused on verbal and

emotional abuse, not sexual harassment. See Harris v. City of New York, 186 F.3d 243, 250 (2d

Cir, 1999) (“[D]ismissal [on timeliness grounds] is appropriate only if a complaint clearly shows

the claim is out of time.”), A determination must thus await a factual record. Plaintiffs’

continuing violation theory of accrual must also be analyzed in the context of a factual record.

See Walker v. Accenture PLC, 511 F. Supp. 3d 169, 192 (D. Conn. 2020) (“Whether the alleged

events... constitute a continuing pattern of discrimination triggering the continuing violation

doctrine or, instead, are discrete events is a question better addressed on a summary judgment

motion after discovery.”).

11

before they filed their Complaint. Plaintiffs do not plausibly allege a continuing violation,

Although in their Complaint Plaintiffs allege that they “are entitled to the application of

the continuing violation doctrine” (Doc. 1 at 57, | 415) with respect to Count I, they do

not allege an instance of gender discrimination that took place within the limitations

period. To the contrary, once Professor Noonan was barred from the College’s campus,

they allege no further contact with him.

“(Under the continuing violation doctrine, a plaintiff may bring claims for

discriminatory acts that would have been barred by the statute of limitations as long as an

act contributing to that [discrimination] took place within the statutory time period.”

Purcell, 931 F.3d at 65 (quoting Papelino v. Albany Coll. of Pharmacy of Union Univ.,

633 F.3d 81, 91 (2d Cir, 2011)) (alteration in original); see also Patterson v. Cnty. of

Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004) (“To bring a claim within the continuing

violation exception, a plaintiff must at the very {east allege that one act of discrimination

in furtherance of the ongoing policy occurred within the limitations period.”). Plaintiffs

fail to identify an instance of gender discrimination within the statutory period. Their

claims set forth in Count Il are thus time-barred and must be DISMISSED.

3, Retaliation Claims (Count ITD).

Plaintiffs assert that their retaliation claims are timely because “they allege that

[the College’s] retaliation began during the Spring of 2019 and continued to the time four

of them graduated the following year, in 2020.” (Doc. 10 at 27.) In their Complaint, they

allege a series of retaliatory acts and omissions by the College that took place throughout

the Spring 2019 semester and into the summer. These include failing to provide Project

Tiger footage until the summer of 2019; declining to fully apprise Plaintiffs of the

College’s Title IX investigatory and adjudicative process; depriving Plaintiffs of

supportive measures in contravention of the College’s Sexual Harassment and Gender-

Based Misconduct Policy; failing to notify Plaintiffs of their rights; and neglecting to

provide Plaintiffs with new advisors and other academic supports, resulting in their

inability to obtain letters of recommendation for graduate school and other professional

endeavors. As each of the alleged acts of retaliation postdate Professor Noonan’s removal

12

from the College’s campus, they are not untimely based on the four comers of the

Complaint. See Conn. Gen. Life Ins. Co. v. BioHealth Labs., Inc., 988 F.3d 127, 131-32

(2d Cir, 2021) (“Although the statute of limitations is ordinarily an affirmative defense

that must be raised in the answer, a statute of limitations defense may be decided ona

Rule 12(b)(6) motion if the defense appears on the face of the complaint.”) (quoting

Thea, 807 F.3d at 501) (internal quotation marks omitted); Simunons v. Reich, 2021 WL

§023354, at *1 (2d Cir. Oct. 29, 2021) (“A defendant may raise the affirmative defense

that a claim is time-barred in a motion to dismiss if that defense is apparent from the face

of the complaint.”); see also Harris v. City of New York, 186 F.3d 243, 250 (2d Cir.

1999) (denying motion to dismiss on timeliness grounds when complaint showed it was

possible for the plaintiff to demonstrate that “some discriminatory act .. . occur[red]

within the statute of limitations”). The College’s motion to dismiss Plaintiffs’ retaliation

claims on statute of limitations grounds is therefore DENIED.

C. Whether Plaintiffs Have Plausibly Pled Title IX Discrimination.

The College asserts that all of Plaintiffs’ Title [X claims are inadequately pled

under Fed. R. Civ. P. 12(b)(6) because each fails to plausibly plead one or more essential

elements of those claims.

Under Title IX, “[n]o person in the United States shall, on the basis of sex,

be... subjected to discrimination under any education program or activity receiving

Federal financial assistance[.]” 20 U.S.C. § 1681(a). Title LX applies to all public and

private educational institutions that receive federal funding, including the College. See

Posso vy. Niagara Univ., 518 F. Supp. 3d 688, 696 (W.D.N.Y. 2021) (citing Roskin-

Frazee v. Columbia Univ., 2018 WL 6523721, at *4 (S.D.N.Y. Nov. 26, 2018)). Federal

courts have long recognized a private right of action under Title IX, see Fitzgerald v.

Barnstable Sch. Comm., 555 U.S. 246, 255 (2009) (“[T]his Court has recognized an

implied private right of action” under Title IX); Hayut v. State Univ. of N.Y., 352 F.3d

733, 749-50 (2d Cir. 2003) (“The Supreme Court has recognized an implied private right

of action under Title LX[.]’’), and interpret the statute “by looking to ... caselaw

interpreting Title VII.” Yusufv. Vassar Coil. 35 F.3d 709, 714 (2d Cir. 1994).

13

1. Whether Plaintiffs Plausibly Plead a Sexual Harassment/Hostile

Educational Environment Claim Under Title EX (Count I.

Plaintiffs claim that the College’s deliberate indifference to Professor Noonan’s

sexual harassment resulted in a hostile educational environment violation of Title IX that

was So severe, pervasive, and offensive that it interfered with their educational

opportunities. The College seeks dismissal of this claim, arguing that it promptly

responded to Plaintiffs’ complaints, relying predominantly on information beyond the

four corners of the Complaint.’

“{S]exual harassment is a form of discrimination” prohibited by Title 1X. Davis

Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 649-50 (1999).

“To allege a Title LX claim arising from harassment, a plaintiff must plausibly allege” (1)

“a federally funded recipient is” (2) “deliberately indifferent to sexual harassment,” (3)

“of which they have actual knowledge,” (4) “that is so severe, pervasive and objectively

offensive that it can be said to deprive the plaintiff of access to the educational

opportunities or benefits provided by the school.” Doe v. Sarah Lawrence Coll., 453 F.

Supp. 3d 653, 665 (S.D.N.Y. 2020) (quoting Davis, 526 U.S. 629 at 650).

Because a hostile educational environment claim is “governed by traditional Title

VII ‘hostile environment’ jurisprudence[,]” Papelino, 633 F.3d at 89 (quoting Hayut, 352

F.3d at 744), a claimant must also plead that (1) “[she] subjectively perceived the

? The College’s reliance on this information was proper for its motion for summary judgment

under Rule 56 but cannot be credited for its motion to dismiss under Rule 12(b)(6). See Brass □□

Am. Filn Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993) (“When determining the sufficiency of

plaintiffs’ claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in

plaintiffs’ [] complaint, which are accepted as true, to documents attached to the complaint as an

exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to

documents either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in

bringing suit.”); see also Khaytin v. Stern & Stern, Esqs., 2013 WL 5520000, at *5 (E.D.N.Y.

Sept. 30, 2013) (“Although Defendant’s arguments are substantiated with evidence, most of this

evidence cannot be considered upon a motion to dismiss. ... While this [c]ourt could consider

this evidence by converting Defendant’s proposed motion into a motion for summary

judgment, .. . it would be inappropriate to do so at this juncture since it is unclear whether

Plaintiff has yet had a sufficient opportunity to conduct the discovery necessary to controvert

Defendant’s evidence.”).

14

environment to be hostile or abusive” and (2) “the environment objectively was hostile or

abusive, that is, that it was permeated with discriminatory intimidation, ridicule, and

insult sufficiently severe or pervasive to alter the conditions of [her] educational

environment.” /d. Each Plaintiff asserts that, as a result of Professor Noonan’s

harassment, she is currently in mental health therapy for various conditions including

depression, anxiety, and post-traumatic stress disorder. Plaintiffs Engebrecht, Whelan,

and Wood further allege that they have postponed graduate school or changed their career

plans as a result of Professor Noonan’s sexual harassment and the College’s inaction.

An educational institution has “actual knowledge” of sexual harassment when “a

school official with authority to address the alleged discrimination had actual knowledge,

as opposed to mere constructive knowledge, of the discrimination.” Carabello v. New

York City Dep’t of Educ., 928 F. Supp. 2d 627, 638 (E.D.N.Y. 2013), “[I]t would

‘frustrate the purposes’ of Title [X to permit a damages recovery against a school district

for a teacher’s sexual harassment of a student based on principles of respondeat superior

or constructive notice, ie., without actual notice to a school district official.” Gedser vy.

Lago Vista Indep. Sch. Dist., 524 U.S. 274, 285 (1998). In addition, actual knowledge is

present only if the complaint is made to an “appropriate person.” See id. at 290 (“[T]he

express remedial scheme under Title IX is predicated upon notice to an ‘appropriate

person’ and an opportunity to rectify any violation[.]”) (citing 20 U.S.C. § 1682). In

teacher-on-student harassment cases, courts have held that those with authority to

investigate misconduct constitute “appropriate” people. See, e.g., Warren ex rel. Good v.

Reading Sch. Dist., 278 F.3d 163, 173 (3d Cir. 2002) (holding that school principal was

an “appropriate person” due to her “authority to... investigate a complaint of

misconduct” despite her lack of authority to terminate or suspend a teacher), Williams v.

Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1294-95 (11th Cir. 2007) (holding

that plaintiff adequately alleged university’s president and athletic director were

appropriate persons because both “had authority to take corrective measures” for the

school).

The actual knowledge standard “does not set the bar so high that a school district

15

is not put on notice until it receives a clearly credible report of sexual abuse from the

plaintiff-student.” Escue v. N. OK Coll., 450 F.3d 1146, 1154 (10th Cir. 2006) (internal

quotation marks omitted) (quoting Doe v. Sch. Admin. Dist. No. 19, 66 F. Supp. 2d 57, 62

(D. Me. 1999)); aecord Posso, 518 F. Supp. 3d at 701; see also Baynard v. Malone, 268

F.3d 228, 238 n.9 (4th Cir. 2001) (“We note that a Title IX plaintiff is not required to

demonstrate actual knowledge that a particular student was being abused.”) (emphasis

supplied). In this case, there is no dispute that the College received what it deemed a

credible report. The only issue is when it had “actual knowledge” of Professor Noonan’s

conduct prior to that time and whether it responded to that actual knowledge with

deliberate indifference.

“The analysis of actual knowledge is often ‘inextricably intertwined’ with the

analysis of deliberate indifference.” Carabello, 928 F. Supp. 2d at 638. “A defendant acts

with deliberate indifference for Title IX purposes ‘when the defendant’s response to

known discrimination is clearly unreasonable in light of the known circumstances.”

Posso, 518 F. Supp. 3d at 697 (quoting Roskin-Frazee, 2018 WL 6523721, at *4). “This

is a fairly high standard[,]” Karasek v. Regents of Univ. of Cal., 956 F.3d 1093, 1105 (9th

Cir. 2020), which is not satisfied by mere negligence. Posso, 518 F. Supp. 3d at 697.

Instead, “‘a plaintiff must allege additional facts beyond past incidents of assault on

campus[,]’ . .. but those facts need only give the school notice ‘of a heightened risk that

is specific enough to allow it to remedy such a policy.’” /d@. (quoting Tubbs v. Stony

Brook Univ., 2016 WL 8650463, at *8, *10 (S.D.N.Y. Mar. 4, 2016)). In other words,

Plaintiffs must prove the College’s deliberate indifference “amounted to ‘an official

decision... not to remedy’ the discrimination.” Karasek, 956 F.3d at 1105 (quoting

Oden vy. N, Marianas Coll., 440 F.3d 1085, 1089 (9th Cir. 2006)).

“A school’s delayed response constitutes deliberate indifference if it prejudices the

plaintiff or if the delay was a ‘deliberate attempt to sabotage [the p|laintiff’s complaint or

its orderly resolution.’” JD/, 2022 WL 2308902, at *13 (quoting Emily O. v. Regents of

the Univ. of Cal., 2021 WL 1535539, at *6 (C.D. Cal, Mar. 9, 2021)) (alteration in

original). “{T]he reasonableness of a delayed investigation depends heavily upon the

16

surrounding circumstances, including the school’s actions throughout the delay.” /d.

(quoting Emily O,, 2021 WL 1535539, at *6) (internal quotation marks omitted).

Allegations that a school failed to fully explain to a plaintiff his or her rights and

options may support a plausible claim for deliberate indifference, but only if such failure

transcends mere negligence. See, e.g., Sarah Lawrence, 453 F. Supp. 3d at 666 (holding

that complaint sufficiently alleged deliberate indifference when plaintiff claimed that the

meeting in which she reported an assault was “rushed, disorganized[,] and

undocumented” and school “never fully explained her rights and options”); but see

Roskin-Frazee, 2018 WL 6523721, at *9 (“Defendant’s failure to inform [p]laintiff of her

Title [X rights[] constitutes, at most, negligence, which falis short of Title IX’s clearly

unreasonable standard.”).

Plaintiffs allege that the College “received numerous complaints regarding sexual

harassment and gender-based discrimination perpetuated by [Professor] Noonan” (Doc. 1

at 2, j 7) and thus had actual knowledge of the risks posed by Professor Noonan long

before a formal Title IX complaint was lodged. See Posso, 518 F. Supp. 3d at 701-02

(explaining that the court would focus on “the particularized risk posed by male

swimmers—not on the risk to a particular person” when assessing actual knowledge).

Those complaints include Professor Waldau’s 2014 reporting of Professor Noonan to the

College’s Title IX office, see Doc, | at 39, § 275; Plaintiff Tuhovak’s 2018 mecting with

Ms, Margulis wherein she complained of Professor Noonan’s “verbal and emotional

abuse[,]” éd. at 35, | 253; and an unnamed student’s alleged complaints to Professor

Hogan. Plaintiffs also allege that Professor Noonan told Plaintiff Wood in January 2019

“that women students and staff had complained about his conduct in the past to the

College, but [the College] never found a ‘significant violation’ of the rules and nothing

ever came of those complaints.” /d. at 50, 4 368,

At the time Ms. Margulis and Professor Hogan were allegedly notified of

Professor Noonan’s behavior, Ms. Margulis was Chair of the ABEC Program and

Professor Hogan was Co-Chair of the Biology Department. While Plaintiffs allege that

their complaints constituted notice to the College, satisfying the “actual knowledge”

17

requirement, additional facts are necessary to determine whether these representatives of

the College were “appropriate” people under Gedser.® At the pleading stage, the court

draws reasonable inferences in Plaintiffs’ favor and assumes that Ms. Margulis and

Professor Hogan are “appropriate persons,” as each occupied a supervisory role, See

Francis v. Kings Park Manor, Inc., 992 F.3d 67, 72 (2d Cir. 2021) (“In assessing the

complaint, we ‘accept all factual allegations as true, and draw all reasonable inferences in

the plaintiff's favor.’”) (quoting Austin v. Town of Farmington, 826 F.3d 622, 625 (2d

Cir. 2016)).

Accepting Plaintiffs’ allegations as true, Plaintiffs plausibly plead that the College

neglected to take corrective action; inadequately investigated their complaints; declined

to adjudicate their claims; and, when a formal Title IX complaint was filed, allowed

Professor Noonan to retire mid-investigation without punishment. It also allegedly failed

to apprise Plaintiffs of their rights and options and failed to provide sufficient academic

supports. Because Plaintiffs have adequately pled the essential elements of their claim,’

the court DENIES the College’s request to dismiss on failure to plausibly plead deliberate

8 See Wyler v. Connecticut State Univ. Sys., 100 F. Supp. 3d 182, 191 n.5 (D. Conn. 2015) (on

motion for summary judgment, describing it as “at best disputed” that “chairs of [a] music

department[] had authority to take corrective action as required by Gebser’’), Poe v. Se. Delco

Sch. Dist., 165 F, Supp. 3d 271, 280 (E.D. Pa. 2015) (ruling that plaintiffs adequately pled actual

knowledge by an appropriate person despite “few details about” former principal’s “supervisory

powers and discretion”); cf Blue v, Dist. of Columbia, 850 F. Supp. 2d 16, 32 (D.D.C, 2012)

(granting motion to dismiss Title IX claim when, among other things, plaintiff allegedly told

“school personnel” she thought she was pregnant but did not identify those personnel in her

complaint or plead facts suggesting they had authority to take corrective measures).

° See Karasek, 500 F. Supp. 3d at 988 (finding that plaintiff plausibly pled a policy of deliberate

indifference when plaintiff alleged that the university failed to respond “in any way to three

assaults taking place over four years in one of its clubs”) (emphasis omitted); JD/ v. Canisius

College, 2022 WL 2308902, at *10 (W.D.N.Y, June 27, 2022) (finding that plaintiff plausibly

alleged a policy of deliberate indifference based on the school’s failure to respond to another

plaintiff's sexual assault and the court’s inference that the college was “aware of some

[anonymous reports of sexual misconduct] before [plaintiff] was assaulted”), Tubbs v. Stony

Brook Uniy., 2016 WL 8650463, at *7 (S.D.N.Y. Mar. 4, 2016) (“Plaintiff alleges a number of

instances of misconduct that a reasonable jury could conclude were clearly unreasonable in light

of the circumstances, including [that] campus police did not explain [the plaintiff's] options to

her[.|”).

18

indifference grounds.

Because Plaintiffs have plausibly pled a sexual harassment/hostile educational

environment claim (Count I), the College’s Rule 12(b)(6) motion to dismiss Count I is

DENIED.

2. Whether Plaintiffs Plausibly Plead a Claim for Retaliation under

Title EX (Count ITD).

Plaintiffs allege that the College retaliated against them after they complained of

Professor Noonan’s harassing and discriminatory behavior. The College seeks dismissal

of this claim because, as a matter of law, a failure to act does not constitute retaliation.

In Jackson v. Birmingham Board of Education, the Supreme Court held that Title

IX includes a private right of action for retaliation. 544 U.S. 167, 171 (2005). “{A]

plaintiff claiming retaliation under Title [X must first establish a prima facie case by

showing: (1) protected activity by the plaintiff, (2) knowledge by the defendant of the

protected activity; (3) adverse school-related action; and (4) a causal connection between

the protected activity and the adverse action.” Papelino, 633 F.3d at 91.

Title IX retaliation claims are subject to the McDonnell Douglas burden-shifting

framework. Jd. at 92. “Once a plaintiff establishes a prima facie case, the burden shifts to

the defendant to articulate a legitimate, nondiscriminatory reason for its actions. After the

defendant has done so, the burden shifts back to the plaintiff to demonstrate that the

articulated reasons are pretextual.” Jd. (citing McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802, 804-05 (1973) (internal citation omitted)). Plaintiffs must allege that “a

retaliatory motive play[ed] a part” in the adverse action. Sarah Lawrence Coll., 453 F.

Supp. 3d at 667 (quoting Papelino, 663 F 3d at 92) (alteration in original).

The College does not dispute that Plaintiffs engaged in protected activity when

they filed their Title [IX complaints with Ms. Walleshauser, as it was an “‘action taken to

protest or oppose statutorily prohibited discrimination[.]’” Castro v. Yale Univ., 518 F.

Supp. 3d $93, 611 (D. Conn. 2021) (quoting Siuzdak v. Sessions, 295 F. Supp. 3d 77, 96

(D. Conn. 2018)); see also id. (explaining that protected activity “includes a wide range

of activities, like reporting discrimination, testifying in a proceeding, or otherwise

19

participating in an investigation about discrimination[.]”). The College, however,

contends that retaliation claims require affirmative efforts to punish Title EX claimants

and Plaintiffs merely allege that the College failed to act. See Andersen v. Rochester City

Sch, Dist., 2011 WL 1458068, at *7 (W.D.N.Y. April 15, 2011) (stating that “failure to

act... is not considered an adverse employment action for the purpose of determining

whether retaliation in violation of Title VIT has occurred.”); Fincher v. Depository Tr.

and Clearing Corp,, 604 F.3d 712, 721 (2d Cir. 2010) ([A]n employer’s failure to

investigate a complaint of discrimination” in a § 1981 case “cannot be considered an

adverse employment action taken in retaliation for the filing of the same discrimination

complaint.”). Because an adverse action is “any action that ‘could well dissuade’” a

claimant “from making or supporting a charge of discrimination[,]” Vega v. Hempstead

Union Free Sch, Dist,, 801 F.3d 72, 90 (2d Cir. 2015) (Title VII case) (quoting

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)), Plaintiffs’

allegations other than the mere failure to act must be considered.

“(A]t the pleading stage, ‘a plaintiff need not plead facts giving plausible support

to the “ultimate question” of whether an adverse action was attributable to the

discrimination; rather, the facts need only give plausible support to a “minimal inference”

of discriminatory motivation.’” Novio v. N.Y. Acad. of Art, 286 F. Supp. 3d 566, 578

(S.D.N.Y. 2017) (quoting Bailey v. NY. L. Sch., 2017 WL 835190, at *7 (S.D.N.Y. Mar.

1, 2017)). Here, Plaintiffs contend that the College acted, but did so in an untimely and

inadequate manner by abandoning its investigation and allowing Professor Noonan to

retire. Plaintiffs further contend that the College’s delay and failure to provide academic

supports prejudiced Plaintiffs academically and in their prospective careers. More

specifically, Plaintiffs assert the College “depriv[ed] Plaintiffs of the ability to... make

the Project Tiger film as they intended[,] (Doc. 1 at 63, § 440f), and failed to assign

Plaintiffs new academic advisors and mentors, see id. at 6, § 29, 60, § 428h, 63-64,

{ 440h, after they engaged in protected activity.

Although a close question, at the pleading stage, Plaintiffs sufficiently allege

20

retaliation, Other courts have permitted retaliation claims on this basis.!° Not only is there

close temporal proximity between Plaintiffs’ protected activity and the College’s alleged

retaliatory response, but there is arguably no reasonable explanation for failing to provide

Plaintiffs with the academic supports they presumably requested and needed. Although

evidence of the College’s discriminatory motivation is, at this point, “minimall,]” Novio,

286 F. Supp. 3d at 578, Plaintiffs’ allegations are not implausible. The College’s motion

to dismiss Plaintiffs’ retaliation claim (Count III) is therefore DENIED.

D. Whether Plaintiffs Plausibly Plead a Claim for Breach of Contract

(Count TY).

“Under New York law, an implied contract is formed when a university accepts a

student for enrollment[.]” Papelino, 633 F.3d at 93 (citing Carr v. St. John’s Univ., 231

N.Y.S.2d 410, 413 (N.Y. App. Div. 1962)). The terms of that contract “are ‘contained in

the university’s bulletins, circulars[,] and regulations made available to the student.’” /d.

(quoting Vought v. Teachers Coll., Columbia Univ., 511 N.Y.S. 2d 880, 881 (N.Y. App.

Div. 1987)).

To state a plausible breach of contract claim under New York law, Plaintiffs must

plead: “(1) the formation of a contract, (2) the plaintiffs performance of his or her

obligations thereunder, (3) the defendant’s failure to perform its obligations, and (4)

resulting damages to the plaintiff.” Posso, 518 F. Supp. 3d at 703 (citing Nakano v. Jamie

10 See, e.g., Irrera v. Humpherys, 859 F.3d 196, 198-99 (2d Cir, 2017) (holding that plaintiff

plausibly alleged retaliation when he allegedly failed to receive a single interview after applying

to twenty-eight teaching positions, despite being highly qualified, after declining sexual

advances from the chair of his department); Bailey v. N.¥. L. Sch, 2017 WL 835190, at *7

(S.D.N.Y. Mar. 1, 2017) (finding that plaintiff who attempted transfer law schools after

complaining of a sexual assault by a fellow student met the “exceedingly low burden of

demonstrating a plausible minimal inference” of retaliation when she alleged that she “was

unable to obtain a letter of recommendation that was required for her [transfer] application” and

“received the worst grades of her law school career” the semester after reporting the assault);

Novio vy. N.Y, Acad. of Art, 286 F. Supp. 3d 566, 578-79 (S.D.N.Y, 2017) (finding that plaintiff

sufficiently alleged retaliation by graduate school for reporting sex discrimination and

harassment when, among other things, school allegedly “stopped making plaintiff aware of

Academy functions, art shows, and networking events that could help her find employment{,]”

discouraged her from atfending school events, and “refus[ed] to provide references or

recommendations”).

21

Sadock, Inc., 2000 WL 680365, at *5 (S.D.N.Y. May 25, 2000)).

“(T]he mere allegation of mistreatment without the identification of a specific

breached promise or obligation does not state a claim on which relief can be granted.”

Nungesser v. Columbia Univ., 169 F. Supp. 3d 353, 369 (S.D.N.Y. 2016) (quoting Gally

v. Columbia Univ., 22 F. Supp. 2d 199, 206 (S.D.N.Y. 1998) (alteration in original)). For

this reason, “general promises about ethical standards . . . are far different from the types

of specific promises which have led to valid breach of contract claims against

universities.” Gally, 22 F. Supp. 2d at 207. Compare Clarke v. Trs. of Columbia Univ.,

1996 WL 609271, at *5-6 (S.D.N.Y. Oct. 23, 1996) (finding that student who alleged that

she did not receive fieldwork supervision she was promised in student handbook

adequately stated a claim for breach of contract), with Gally, 22 F. Supp. 2d at 208

(explaining that a university’s statement of adherence to antidiscrimination laws did “not

create a separate and independent contractual obligation.”).

Although Plaintiffs identify a number of “general statement[s] of adherence” to

antidiscrimination laws in the College’s Sexual Harassment and Gender-Based

Misconduct Policy, see id., which do not support a breach of contract claim,'' they also

cite to a provision of the policy that states the “Title IX Coordinator is responsible for

coordinating the effective implementation of Supportive Measures[,]” which may include

“(cjounseling; [e]xtensions of deadlines or other course-related adjustments;

[mJodifications of work or class schedules; [c]ampus escort services; and [r]estrictions on

contact between the parties .. . and; [o]ther Supportive Measures deemed appropriate by

the Title LX Coordinator.” (Doc. 1 at 59, 4 425.) Plaintiffs contend the College violated

this policy when it “fail[ed] to afford Plaintiffs any supportive measures|,]” /d. at 58,

{ 424, causing them damages. At the pleading stage, these allegations suffice to state a

breach of contract claim under New York law in an educational setting, The court thus

DENIES the College’s motion to dismiss Plaintiffs’ breach of contract claim (Count IV).

See, e.g, Gally v. Columbia Univ., 22 F, Supp. 2d 199, 208 (S.D.N-Y. 1998) (finding that

provision in school’s code of conduct that “[a]ll students should receive fair and equal

treatment ,.. does not create a separate and independent contractual obligation”).

22

Ki. Whether Plaintiffs’ Claim for Negligent Retention and Supervision of

Professor Noonan is Time-Barred (Count V1).

“To establish a cause of action based on negligent hiring, negligent retention, or

negligent supervision, it must be shown that the employer knew or should have known of

the employee’s propensity for the conduct which caused the injury[.]” Shor v. Touch-N-

Go Farms, Inc., 933 N.Y.S.2d 686, 688 (N.Y. App. Div. 2011) (citation omitted).

The College argues that Plaintiffs’ claim for negligent retention and supervision of

Professor Noonan is time-barred because Plaintiffs filed their complaint more than three

years after Professor Noonan was removed from campus. As Plaintiffs point out,

however, Professor Noonan was still employed by the College as of June 1, 2019, which

would render their claim timely if the sexual harassment continued until this date.

In New York, a three-year statute of limitations applies to claims for negligent

retention or supervision, see N.Y.C.P.L.R. 214(5), meaning an action must be

commenced within “three years [of the] the last act of alleged sexual abuse.” Sharon B. v.

Reverend S., 665 N.Y.S.2d 139, 140 (N.Y. App. Div. 1997) (explaining that a “three-year

[s]tatute of [l]imitations applies to a cause of action for negligent retention or

supervision” and finding that “defendants failed to establish that the action was

commenced more than three years after the last act of alleged sexual abuse.”). The last

possible date on which Professor Noonan could have sexually harassed Plaintiffs is

February of 2019 when he was suspended and banned from the College’s campus.

Although he was not terminated at this time, it is uncontested that he had no contact with

Plaintiffs thereafter. Even though he remained an employee of the College for several

months, nothing he did during those months was an “act of alleged sexual abuse” or

caused Plaintiffs harm due to the College’s failure to formally terminate his employment.

Because Plaintiffs filed the Complaint over three years from the last date of

alleged negligent retention and supervision, the court GRANTS the College’s motion to

dismiss Plaintiffs’ negligent retention and supervision claim (Count VI).

23

CONCLUSION

For the foregoing reasons, the court DENIES the College’s motion to dismiss

Counts [, III, and IV, and GRANTS the College’s motion to dismiss Counts II and

VI (Doc. 5.)

SO ORDERED, fe

Dated this | 7 day of March, 2023.

oy

Christina Reiss, District Judge

United States District Court

24