Doe v. Ohio University

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JANE DOE,

Plaintiff,

Case No. 2:21-cv-00858

v. Judge Edmund A. Sargus, Jr.

Magistrate Judge Chelsey M. Vascura

OHIO UNIVERSITY, et al.,

Defendants.

OPINION AND ORDER

This matter arises on Defendant Ohio University’s Motion for Summary Judgment.

(ECF No. 56). Also disposed of in this opinion is Defendants’ Motion for Partial Judgment on

the Pleadings. (ECF No. 43). For the reasons stated below, Defendant’s Motion for Summary

Judgment is DENIED. Defendant’s Motion for Partial Judgment on the Pleadings is

GRANTED as to the issue of punitive and emotional distress damages under Plaintiff’s Title IX

claim.

A. Factual Background

Plaintiff, a graduate of Ohio University (the “University”), brings this action against the

University and its employees for allegedly mishandling Plaintiff’s sexual assault report and

exhibiting deliberate indifference to known, actionable harassment by her peers. (ECF No. 56, at

2) (ECF No. 21, at 23) (ECF No. 1, at 1–2). Plaintiff maintains the University’s inattention to

her complaints caused her to be subjected to a hostile educational environment and peer

harassment. She also claims that the University’s investigation process was unfair and favored

her attacker over her because of her gender. (ECF 21, at 1).

As described in her amended complaint, Plaintiff attended a house party on or about

February 23, 2019. (ECF No. 21, at 12). According to her amended complaint, Plaintiff became

intoxicated to the point where she vomited multiple times, was unable to talk or walk without

assistance, and lost consciousness in various places in the house. (Id., at 12–13). While she was

in this state, Plaintiff alleges that “there were numerous photos taken of her by the party

attendees.” (Id., at 13).

Plaintiff states that the next thing she could recall was waking up in a dark room as “Smith

was aggressively kissing her.” (Id., at 14). She was unable to stop his advances and fell in and

out of consciousness. (Id.). Plaintiff then woke up in Smith’s bed where he was having sexual

intercourse with her. (Id.). At this point she was still unable to leave or speak. (Id.). When she

finally told Smith that she wanted to go home, he ignored her and continued having intercourse

with her. (Id., at 14).

a. Plaintiff Reports the Assault

Plaintiff received a rape examination at a hospital the next day, on or about February 24,

2019. (ECF No. 21, at 16). Four days later, she reported the incident to the University’s Title IX

office and submitted a Sexual Misconduct, Relationship Violence, and Stalking Incident Report

to the University. (Id.) (ECF No. 52, at 20). Plaintiff “also made a formal criminal complaint

with the local police department.” (ECF No. 21, at 16) (ECF No. 50, at 25)

b. The University Initiates an Investigation

Upon receiving her report, the University contacted Plaintiff and scheduled an interview.

(ECF No. 21, at 16) (ECF No. 55, at 20–21). On or about March 5, 2019, Plaintiff met with the

two Investigators assigned to her case to discuss the University’s investigative process. (ECF No.

21, at 23). The investigators advised Plaintiff of her right to an advisor and to attend a hearing

regarding the Complaint. (Id.). The University also issued a No Contact Directive which barred

both direct and indirect contact between Plaintiff and Smith. (Id.)

The University provided Plaintiff with a Process Advisor named Andrew. (Id., at 23)

(ECF No. 50, at 45). Plaintiff alleges that Andrew was obviously very inexperienced. (ECF No.

21, at 23). Further, Plaintiff avers there was no apparent evidence that Andrew had received any

formal training in the Title IX, investigation, or adjudication processes. (Id., at 23).

The University began the process of interviewing witnesses on April 1, 2019. (Id., at 24).

Many of the witnesses confirmed that Plaintiff “had blacked out,” “face planted on the floor,”

“was like a zombie,” “could not walk properly,” was vomiting in the toilet and hit her head on

the toilet, and “could not walk or talk.” (Id., at 24–25). The witnesses submitted videos and

photos of Plaintiff on the night in question. (Id., at 25). One witness told investigators that

Smith, the attacker, was “the most sober” she had ever seen him. (Id.). Another witness

submitted a text message from Smith wherein he stated that he was “a piece of shit for this one”

and admitted that he hooked up with Plaintiff and was “99 percent sure she was completely

gone.” (Id., at 26). The University interviewed Smith on May 1, 2019. (Id.) (ECF No. 53, at

36).

c. Peer Harassment

During the investigation, Plaintiff attended several classes with Smith’s friends. (ECF

No. 21., at 27). They called her a liar, spread rumors about her, and accused her of filing a

complaint against Smith, who is African American, because she is racist. (Id.) (ECF No. 59,

Exhibit 1, at 47, 48, 50–51). In one classroom group, some of Smith’s friends harassed her by

calling her names. (Id.). The students taunted Plaintiff by physically poking and prodding her to

get her attention only to call her a liar and a racist again for her complaint against Smith. (Id., at

27) (ECF No. 50, at 11, 47). A few of Plaintiff’s classmates witnessed the harassment and asked

her professor to step in and stop it. (ECF No. 21, at 29). Plaintiff suffered extreme stress and

anxiety because of the harassment. (Id.) (ECF No. 50, at 15). She missed classes out of fear of

experiencing further harassment. She had trouble sleeping and lost weight. As a result of these

conditions, Plaintiff suffered a hernia and underwent an emergency surgery. (Id., at 28).

d. Plaintiff Reports Peer Harassment

Plaintiff reported the harassment to the University. (Id., at 29) (ECF No. 52, Page 20). In

response, the University allegedly told her that it supported her efforts to fix the problem herself

but took no steps to investigate the ongoing harassment. (Id., at 30). The University allegedly

refused to investigate her complaint or talk to any students in Plaintiff’s classes, unless and until

Plaintiff specifically pinpointed each person and instance of harassment. (Id.). Two investigators

told her that, in the meantime, there was “not much” the University could do. (Id.) (ECF No. 50,

at 26). When Plaintiff told one professor that she had missed class because of peer harassment,

the trauma of her assault, and the feeling that the classroom was no longer a safe environment,

the professor allegedly responded that she was not surprised that the students in class were acting

“less than mature” but assured Plaintiff that “eventually you will get stronger and be able to deal

with these scenarios.” (Id., at 29). The professor allegedly advised Plaintiff that the best solution

was for Plaintiff to stop attending class and Plaintiff should learn the material on her own. (Id.).

After Plaintiff stopped going to classes, Smith’s friends created a social media group dedicated

to posting photos of Plaintiff whenever she was on campus. (Id., at 28) (ECF No. 50, at 19). She

continued to suffer physically and mentally. As a result of her rapid weight loss and depression,

Smith’s friends allegedly spread rumors that she had cancer. (ECF No. 21, at 28).

e. The University Finds Smith Responsible

Following the investigation, the University released an investigative report and convened

a Hearing Panel, consisting of Defendants Tackett and Bennett, to adjudicate Plaintiff’s

Complaint. (ECF No. 21, at 31–32) (ECF No. 54, at 21–22). Plaintiff alleges that she was

treated less favorably than Smith throughout the proceeding. (ECF No. 21, at 32). The Panel

permitted Smith to scream at Plaintiff several different times. (Id.). Plaintiff excused herself

from the hearing due to emotional distress several times. (Id.). The Panel refused to continue

the hearing without Plaintiff present, even though she had been told that the hearing could have

occurred without her. (Id., at 32–33). On July 8, 2019, the Panel issued an outcome letter finding

Smith responsible for non-consensual sexual intercourse and non-consensual sexual contact. The

Panel recommended Smith’s immediate expulsion. (Id., at 33) (ECF No. 53, at 59).

f. The University Grants Smith’s Appeal and Overturns the Initial

Determination

Smith was permitted five business days to appeal the determination. The bases for appeal

were limited to: (i) inappropriate sanction; (ii) procedural defect in the original hearing; and (iii)

presence of new evidence that was not available at the time of the hearing. (ECF No. 21, at 34).

Smith filed an appeal on July 15, 2019 contending that there was a procedural defect in the

original investigation or hearing. (Id., at 34) (ECF No. 53, at 60). According to Plaintiff, Smith

did not actually allege a procedural defect in his appeal and instead disagreed with the Panel’s

interpretation of the evidence submitted, particularly the text message he sent about his

knowledge of Plaintiff’s incapacitation. (ECF No. 21, at 34). Nonetheless, Vice President of

Student Affairs Pina allowed the appeal to proceed. (Id., at 35). Pina ordered that a re-hearing

take place on the issue of Smith’s knowledge of Plaintiff’s incapacitation on the night in

question. (Id.).

The Panel held a limited re-hearing on September 6, 2019. (Id., at 36) (ECF No. 53, at

59–60). Plaintiff alleges that Smith did not present new evidence at the hearing. (ECF No. 21, at

35). Following the hearing, Plaintiff continued to experience harassment from other students.

Students approached her on campus and said, “aren’t you that girl who was raped and is a total

mess now?” (Id., at 36). Her grades and mental health suffered. Plaintiff and her father again

complained to the University, but it allegedly did not act in response. (Id., at 36–37).

On September 17, 2019, the Panel reversed its initial determination and found Smith not

responsible for any policy violations because he did not know that Plaintiff was incapacitated at

the time of the incident. (Id., at 37) (ECF No. 53, at 62). Smith was permitted to continue

attending the University. (ECF No. 21., 38) (ECF No. 53, at 62).

g. The University Denies Plaintiff’s Appeal

Plaintiff was given the same option for appeal. Defendant Tackett, one Panel member,

told Plaintiff that without new evidence, the University would not entertain any appeal by her or

review the evidence again. (ECF No 21, at 39). Plaintiff submitted an appeal contending that

the Hearing Panel abused its authority in rendering its conclusions. (Id.). Vice President Pina

denied Plaintiff’s appeal without any explanation. (Id., at 40).

h. Plaintiff Allegedly Suffers Additional Harassment

Plaintiff and Smith returned to campus for the 2020 Fall semester. (ECF No 21, at 40) (ECF

No. 51, Page 12). Plaintiff regularly saw Smith on campus, which triggered her depression.

(ECF No. 21, at 40) (ECF No. 50, at 41). Smith had been indicted on criminal charges for rape

and was subject to a protective order requiring him to stay away from Plaintiff. (ECF No. 21, at

40). Plaintiff avers that Smith routinely violated the protective order to the point that both

Plaintiff and the prosecutor spoke to the University to ask the University to step in and help

protect Plaintiff. (Id.) (ECF No. 50, at 41-42). The University allegedly did nothing. (ECF No.

21, at 40). On one occasion, Smith walked up to Plaintiff while at a bar. (ECF No. 50, at 41-42).

Afterward, Plaintiff reported this incident to the prosecutor and the University. (Id.) Again, the

University did not act. The prosecutor, however, did. The prosecutor secured a warrant for

Smith’s arrest on the basis that he had violated his bond and the protective order. Smith was

arrested. (ECF No. 21, at 41). On or about July 21, 2020, Smith pled guilty to a charge of

Sexual Battery against Plaintiff. (Id.). He is currently serving a three-year prison sentence.

(Id.). Plaintiff alleges that the University’s actions and inaction led to further bullying and

harassment from other students. Smith’s friends continued to call her names, spread rumors, and

openly tell her “even the school knows you’re full of shit.” (Id.) (ECF No. 50, at 47–48). She

became severely depressed and still suffers from depression today. (ECF No. 21, at 42).

Plaintiff alleges that her physical and mental ailments caused her to fall behind in her

schoolwork, resulting in her delayed graduation and start of her career. (Id.).

B. Procedural Background

Plaintiff filed this action in federal court on February 26, 2021, against Ohio University,

Ohio University Board of Trustees, Assistant Dean of Students and Director for Community

Standards Taylor J. Tackett, Assistant Director of Community Standards and Student

Responsibility T. Dane Bennett, and Vice President for Student Affairs Jason Pina. (ECF No. 1).

She alleges “violations of Title IX of the Educational Amendments of 1972, 20 U.S.C. §1681, et

seq. (‘Title IX’) stemming from the University’s gross mishandling and willful disregard of

Plaintiff’s report of sexual assault.” (ECF No. 21, at 2–3). Defendants T. Dane Bennett, Ohio

University, Ohio University Board of Trustees, Jason Pina, Taylor J Tackett soon after filed a

motion to dismiss. (ECF No. 23). The Court granted their motion in part and denied it in part.

(ECF No. 32). Defendants Bennett, Tackett, and Pina were dismissed from the case, leaving

only Ohio University and its Board of Trustees (hereinafter “University” or “Defendant”). (ECF

No. 32, at 16). On June 10, 2022, Defendant filed a motion for partial judgment on the

pleadings. (ECF No. 43). Defendant challenged Plaintiff’s entitlement to punitive and

emotional damages stemming from her Title IX claim. Plaintiff chose not to contest the motion.

(ECF No. 45).

On December 13, 2022, Defendant filed this instant motion for summary judgment. (ECF

No. 56). Plaintiff responded roughly a year later, on January 10, 2023. (ECF No. 68).

Defendant replied on January 24, 2023. (ECF No. 71).

C. Standard

Summary judgment is appropriate “if the movant shows that there is no genuine issue as

to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(a). The Court may therefore grant a motion for summary judgment if the nonmoving party

who has the burden of proof at trial, fails to make a showing sufficient to establish the existence

of an element that is essential to that party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388–89 (6th Cir. 1993).

To avoid summary judgment, the nonmovant “must do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986); accord Moore v. Philip Morris Cos., 8 F.3d 335, 340 (6th Cir. 1993).

“[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In evaluating a motion for summary judgment, the evidence must be viewed in the light

most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59

(1970); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (stating that

the court must draw all reasonable inferences in favor of the nonmoving party and must refrain

from making credibility determinations or weighing evidence). Furthermore, the existence of a

mere scintilla of evidence in support of the nonmoving party’s position will not be sufficient;

there must be evidence on which the jury reasonably could find for the nonmoving party.

Anderson, 477 U.S. at 251; see Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also

Matsushita, 475 U.S. at 587–88 (finding reliance upon mere allegations, conjecture, or

implausible inferences to be insufficient to survive summary judgment). It is with this standard

in mind that the instant motion will be decided.

The moving party bears the burden of production first. “The moving party bears the

burden of showing the absence of a genuine issue of material fact as to at least one essential

element on each of Plaintiff's claims.” See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

The non-moving party then must present sufficient evidence from which a jury could reasonably

find for her. See Anderson Liberty Lobb y, Inc., 477 U.S. 242, 249 (1986). The court must

determine “whether the evidence presents sufficient disagreement to require submission to a jury

or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251–52.

D. Analysis

Two of Plaintiff’s claims under Title IX against the University survived Defendant’s motion

to dismiss. Count One, deliberate indifference and Count Two, hostile environment. Defendant

maintains that neither count can survive summary judgment. (ECF No. 56, at 1). Their position

is that “the material facts are not in dispute and the University is entitled to judgment as a matter

of law. (Id., at 3). Plaintiff disagrees, contending that “Defendants’ motion for summary

judgment should be denied in its entirety and this matter should be set down for trial.” (ECF No.

68, at 2).

a. Threshold Matter: Defendant’s Motion for Partial Judgment on the

Pleadings

As a part of her requested relief, Plaintiff sought both emotional distress and punitive

damages under Title IX against the University. (ECF No. 21, at 58). Defendant, however,

challenges Plaintiff’s entitlement to such relief. Defendant argues that “punitive and emotional

distress damages under Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 (“Title

IX”)” are not recoverable in light of the Supreme Court’s rulings in Barnes v. Gorman, 536 U.S.

181 (2002) and Cummings v. Premier Rehab Keller, P.L.L.C., 142 S.Ct. 1562 (April 28, 2022).

(ECF No. 43, at 1). In Barnes, the Court held that punitive damages are not recoverable under

Spending Clause legislation, such as Title IX. Barnes v. Gorman, 536 U.S. 181, 189 (2002).

And in Cummings, the Court “applied Barnes to hold that emotional distress damages are also

not recoverable under Spending Clause legislation.” (ECF No. 43, at 1).

Plaintiff did not respond to Defendant’s motion in a timely manner. (ECF No. 44).

When Plaintiff did respond, it was to notify the Court that “Plaintiff does not oppose and does

not intend to file a response to Defendants’ pending Motion for Partial Judgment on the

Pleadings to strike those portions of Plaintiff’s Prayer for Relief seeking punitive and emotional

distress damages.” (ECF No. 45, at 1). As such, Defendant’s Motion for Partial Judgment on

the Pleadings is GRANTED. (ECF No. 43).

b. Title IX: Deliberate Indifference (Count One)

Title IX of the Education Amendments of 1972 is a federal statute designed to prevent

sexual discrimination and harassment in educational institutions that receive federal funding.

“Title IX provides 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.’” Williams ex rel. Hart v. Paint Valley Loc. Sch.

Dist., 400 F.3d 360, 366 (6th Cir. 2005) (quoting 20 U.S.C. § 1681(a)).

At the summary judgment stage, a plaintiff bringing a deliberate indifference action must,

at minimum, raise a genuine issue of material fact, that she (i) suffered actionable sexual

harassment, (ii) the school had actual knowledge of the harassment, (iii) the deprivation of access

to educational opportunities or benefits provided by the school; and (iv) causation, or, in other

words, that the school’s response to known actionable sexual harassment caused the plaintiff

further injury. Kollaritsch v. Michigan State Univ. Bd. of Trustees, 944 F.3d 613, 623-24 (6th

Cir. 2019); see also Doe v. Univ. of Kentucky, 959 F.3d 246, 250 (6th Cir. 2020).

Defendant moves to dismiss Plaintiff’s claim for deliberate indifference under Title IX,

arguing Plaintiff cannot show “that Plaintiff suffered actionable harassment; the University knew

about it and exhibited deliberate indifference; and the University’s deliberate indifference denied

Plaintiff access to educational opportunities because of her sex.” (ECF No. 56, at 12). Plaintiff

counters by arguing that she can show a genuine issue of material fact as to all these elements.

(ECF No. 68, at 20). The Court finds for Plaintiff.

i. Actionable Harassment

Under Title IX, actionable harassment is behavior that is “severe, pervasive, and

objectively offensive.” Snyder-Hill v. Ohio State Univ., 48 F.4th 686, 712 (6th Cir. 2022) (J.

Ralph B. Guy dissenting) (quoting Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ.,

at 651). See also, Doe v. Univ. of Kentucky, 959 F.3d at 250. “‘Severe’ means something more

than just juvenile behavior among students, even behavior that is antagonistic, non-consensual,

and crass.” Kollaritsch v. Michigan State Univ. Bd. of Trustees, 944 F.3d 613, 620 (6th Cir.

2019). “‘Pervasive’ means ‘systemic’ or ‘widespread.’” Id. “‘Objectively offensive’ means

behavior that would be offensive to a reasonable person under the circumstances, not merely

offensive to the victim, personally or subjectively.” Id., at 621. Defendant argues the

harassment Plaintiff suffered did not reach this standard. “The alleged peer harassment about

which Plaintiff complains takes the form of the kind of juvenile behavior found to fall short of

Title IX’s “high standard.” (ECF No. 56, at 12). Defendant justifies this position by contending

that “only the inappropriate comment made to Plaintiff by a female student in October of 2019

could conceivably be considered linked to Plaintiff’s sex or status as a survivor of sexual assault.

There’s no evidence that the other incidents brought to the University’s attention (the pre-assault

poking and the alleged SnapChat about Plaintiff’s absences) were related to Plaintiff’s gender or

her status as a sexual assault survivor.” (Id.)

Plaintiff argues the record would allow a reasonable juror to find actionable harassment.

She points to the following behaviors as evidence of actionable harassment.

“(i) was subjected to repeated comments, accusations, jokes and gossip—such as being

called a liar and submitting a “bull***” Title IX complaint against Smith; (ii) was the target of a

malicious social media group designed solely to taunt and follow her on campus; (iii) was

subjected to comments—made to her and loud enough in the presence of others—that people

should avoid her so as not to “catch a case”, a reference to Plaintiff’s ongoing Title IX and criminal

cases against Smith; (iv) experienced unwanted physical touching in class from a male student; (v)

was triggered by seeing Smith, which interactions happened on two major occasions and

repeatedly in passing; and (vi) was called a “racist” at least twice by fellow students, at least one

of which was a known friend of Smith’s.”

(ECF No. 68, at 16)

Viewing the evidence in the light most favorable to Plaintiff, a juror could conclude that

actionable harassment was inflicted upon her. Plaintiff can point to record evidence that she

was called a liar (ECF No. 50, at 50), was the target of a social media group (ECF No. 50, at 19),

was subject to mean comments (Id., at 25), experienced unwanted poking (Id., at 28), was

triggered by Smith’s presence (Id., at 24), was called a racist (Id., at 47), and that these incidents

took place over the course of months. If Plaintiff is to be believed, her harassment was severe,

pervasive, and objectively offensive. The Court finds a genuine issue as to whether she was

subject to actionable harassment.

This instant case contrasts with that of Dahmer v. W. Ky. Univ. There, the plaintiff

pointed to run ins with the perpetrator at SGA meetings, a twitter parody account, and “being

subjected to unspecified instances of 'gender stigma and some terms being used'” as evidence of

actionable harassment. Dahmer v. W. Kentucky Univ., 2022 U.S. App. LEXIS 28533, at **10-12

(Oct. 13, 2022). The Court found this evidence “neither specific nor severe enough to constitute

actional sexual harassment.” Id., at 10. Here, however, Plaintiff also shown more incidents of

harassment and more specificity regarding her allegations. As such, Plaintiff has carried her

burden of showing that a reasonable juror could conclude she had been subject to actionable

harassment.

ii. Actual Knowledge

A victim of actionable harassment must show that her school had “actual knowledge of

actionable sexual harassment” to prevail on her title IX claim. Kollaritsch v. Michigan State

Univ. Bd. of Trustees, 944 F.3d 613, 618 (6th Cir. 2019). “Knowledge” means that the defendant

school had “actual knowledge” of an incident of actionable sexual harassment that prompted or

should have prompted a response. Defendant argues that the school lacked actual knowledge of

the harassment Plaintiff suffered. “‘Of the alleged harassment that was reported to the

University, only the inappropriate comment made to Plaintiff by a female student in October of

2019 could conceivably be considered linked to Plaintiff’s sex or status as a survivor of sexual

assault.” (ECF No. 56, at 12). Plaintiff counters that from the record a reasonable juror could

conclude the University had actual knowledge of the harassment visited upon her. (ECF No. 68,

at 17).

“Actual knowledge requires only that a single school administrator with authority to take

corrective action had actual knowledge of the sexual harassment.” Stiles ex rel. D.S. v. Grainger

Cty., 819 F.3d 834, 848 (6th Cir. 2016). Plaintiff can meet this burden. As detailed in the

amended complaint, and reiterated through deposition testimony, both Plaintiff and her father

report complaining about ongoing harassment to her professor. (ECF No. 21, at 30) (ECF No.

50, at 30) (ECF No. 51, at 30). This professor oversaw the class where the harassment took

place. Plaintiff and her father also complained of harassment to the University’s appointed Title

IX investigators and Title IX Coordinator. (ECF No. 50, at 28, 40) (ECF No. 51, at 8,14). Thus,

Plaintiff created a genuine issue of fact as to whether the University had actual knowledge that

she experienced sexual harassment.

iii. Deliberate Indifference

The next prong Plaintiff must prove in her Title IX sexual harassment action is that the

university acted with “deliberate indifference” toward the harassment she received.

“‘[D]eliberate indifference’ means that the defendant both knew and consciously disregarded the

known risk to the victim. Kollaritsch v. Michigan State Univ. Bd. of Trustees, 944 F.3d 613, 621

(6th Cir. 2019); see also Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 410, 117 S. Ct. 1382, 137

L. Ed. 2d 626 (1997). Universities are deliberately indifferent to harassment when they behave

in a manner that is “clearly unreasonable in light of what [they] knew.” Kesterson v. Kent State

Univ., 967 F.3d 519, 529 (6th Cir. 2020). This deliberate indifference must, “at a minimum,

cause students to undergo harassment or make them liable or vulnerable” or “subjected” to it.

Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 643–44 (1999). However, the institution need

not “remedy” the harassment, Id. at 648, or “engage in a particular disciplinary action.”

Patterson v. Hudson Area Schs., 551 F.3d 438, 446 (6th Cir. 2009). Instead, a university is only

liable if its efforts amounted to “an official decision…not to remedy the violation.” Davis, 526

U.S. at 642.

Defendant denies that the University was anything but supportive of Plaintiff. “The

University’s earnest efforts cannot be painted as deliberate indifference under either standard of

lability.” (ECF No. 56, at 13). Plaintiff, however, argues that the University took only minimal,

and ineffective action to prevent her ongoing harassment. (ECF No. 68, at 18).

Here, when taking the allegations as true, and drawing all reasonable inferences in her

favor, Plaintiff has carried her burden of showing deliberate indifference. As the Court noted in

its March 28 opinion

“Plaintiff alleges that even after the school knew she faced harassment in a class, neither

the University nor the professor acted to stop it. Plaintiff alleges she was placed in classroom

groups with Smith’s friends, subject to poking and prodding, name-calling, and other abuses. She

alleges that the University did not act even after other students asked the professor to step in.

Instead, the professor suggested that the other students were immature and that Plaintiff would

learn how to deal with them. When Plaintiff and her father complained to the University several

times over the course of months, Plaintiff alleges that the University again did not act. Then, when

Smith violated the protective order to stay away from Plaintiff and the prosecutor asked the

University to step in, she alleges that it did nothing.”

(ECF No. 32, at 11)

Further, Plaintiff has elicited deposition testimony supporting these allegations. (ECF

Nos. 50, 51, 52, 53,54,55). A reasonable juror would find the University “refusing to take action

to bring the [harassers] into compliance.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,

290 (1998). Such a decision would constitute deliberate indifference where [the University]

“exercises substantial control” over the harassers and the context—such as in a classroom

setting. See Foster v. Bd. of Regents of Univ. of Michigan, 982 F.3d 960, at 970 (6th Cir. 2020)

(citing Davis, 526U.S. at 645). Plaintiff has created a genuine issue of material fact that, aside

from removing her from her cluster, Defendant took no action to prevent ongoing harassment

from her classmates. It is enough that, viewing the evidence in the light most favorable to

Plaintiff and making all reasonable inferences on her behalf, a reasonable juror could find for

Plaintiff.

iv. Causation

The last prong in Plaintiff’s title IX deliberate indifference claim is that of causation.

“‘Causation’ means the ‘Act’ caused the “Injury,” such that the injury is attributable to the post-

actual-knowledge further harassment, which would not have happened but for the clear

unreasonableness of the school's response. Kollaritsch v. Michigan State Univ. Bd. of Trustees,

944 F.3d 613, 622 (6th Cir. 2019); see Davis v. Monroe County Board of Education, 526 U.S.

629, 644 (1999).

Defendant does not argue this point. Instead, Defendant appears to concede that Plaintiff

can show an issue of material fact as to this element. (ECF No. 56, at 12). As such, Plaintiff has

shown a material issue of fact on each of the four elements of her IX deliberate indifference

claim. Summary Judgment is DENIED as to count one.

c. Title IX: Hostile Environment (Count Two)

“A Title IX hostile-environment claim is analogous to a Title VII hostile-environment

claim.” Doe v. Miami Univ., 882 F.3d 579, 590 (6th Cir. 2018). A plaintiff bringing either claim

“must allege that her educational experience was permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive [so as] to alter the conditions of her

educational environment.” Id. “For a plaintiff to proceed on a claim against an educational

institution under Title IX, a plaintiff must establish a prima facie case showing that: 1) she was

subjected to quid pro quo sexual harassment or a sexually hostile environment; b) she provided

actual notice of the situation to an ‘appropriate person,’ who was, at a minimum, an official of

the educational entity with authority to take corrective action and to end discrimination; and c)

the institution's response to the harassment amounted to ‘deliberate indifference.’” Klemencic v.

Ohio State Univ., 263 F.3d 504, 510 (6th Cir. 2001); See Morse v. Regents of the Univ. of

Colorado, 154 F.3d 1124, 1127-28 (10th Cir. 1998).

As mentioned in this Court’s March 28 opinion, Plaintiff sufficiently plead a hostile

environment claim.

“According to the Complaint, Plaintiff endured daily taunting, physical prodding, name-

calling, and other harassment in her classroom and throughout campus. She provided actual notice

to University personnel who had power to take corrective actions, including her professor and the

University’s Title IX coordinator and investigators, but failed to act. She sufficiently pleads that

the University’s response amount to deliberate indifference.”

(ECF No. 32, at 13).

However, Defendant argues Plaintiff’s claim cannot survive summary judgment. “[T]here’s

no evidence that Plaintiff was excluded from any of the University’s programs or activities.”

(ECF No. 56, at 13). Plaintiff, however, counters, by arguing that she was deprived of a number

of educational opportunities. (ECF No. 68, at 18–19). Plaintiff points to specific educational

opportunities that were deprived from her. These include class absences attributable to

harassment, alienation from an “cluster” group and being compelled to finish a group project

alone, and a delay in graduation. (ECF No. 68, at 18–19).

Defendant also contends Plaintiffs’ “failure to avail herself of the University’s offer of help

precludes any finding that the University was deliberate indifferent.” (ECF No. 72, at 7).

Defendant is incorrect. Defendant fails to provide any citations to justify this assertion that a

single refused offer of help precludes any finding of deliberate indifference, despite making it in

both their Motion and their Reply. (ECF Nos 56, at 31 and ECF No. 72, at 7). Nor could this

Court find any such proposition. Further, Plaintiff did in fact seek and accept help from

Defendant. She and her father reported her ongoing harassment to the University. (ECF No. 21,

at 36–37) (ECF No. 50, at 28, 40) (ECF No. 51, at 8,14).

1 Here, Defendant refers to “offers of help,” plural. However, throughout its motion and reply, Defendant points

to only one offer, an offer from Professor Jordan.

Defendant has failed to carry their burden of production. If Plaintiff’s evidence is to be

believed, and all inferences are made in her favor, Plaintiff has created a genuine issue of

material fact as to the whether she was subjected to a sexually hostile environment, whether she

provided actual notice to an appropriate person, and whether the University was deliberately

indifferent to the harassment directed at Plaintiff.

E. Conclusion

For the reasons stated above, Defendant’s Motion for Summary Judgment is DENIED.

(ECF No. 56). Defendant’s Motion for Partial Judgment on the Pleadings is GRANTED to the

extent that Plaintiff’s claims for punitive and emotional distress damages under Title IX are

EXTINGUISHED. (ECF No. 43). Plaintiff, as described in her July 15, 2022 Notice, has

declined to contest that motion. (ECF No. 45). This case is to remain open.

IT IS SO ORDERED.

March 27, 2023 /s/ Edmund A. Sargus, Jr.

DATE EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE