Orr v. S.D. Bd. of Regents

492 F.Supp.3d 964

Dr. Thomas ORR, Plaintiff,

v.SOUTH DAKOTA BOARD OF REGENTS, Dr. Timothy Downs, NSU President, in His Official Capacity; Dr. Kelly Duncan, Former NSU Dean of Education, in Her Individual Capacity; and Members of The South Dakota Board of Regents, in Their Official Capacities, Defendants.

1:19-CV-01023-CBK

United States District Court, D. South Dakota, Northern Division.

Signed October 5, 2020

Stephanie E. Pochop, Johnson Pochop & Bartling Law Office, Gregory, SD, James H. Kaster, Pro Hac Vice, Matthew A. Frank, Pro Hac Vice, Nichols Kaster PLLP, Minneapolis, MN, for Plaintiff.

Justin L. Bell, Robert B. Anderson, Terra M. Larson, May, Adam, Gerdes & Thompson LLP, Pierre, SD, for Defendants South Dakota Board of Regents, Dr. Timothy Downs, Dr. Kelly Duncan.

Justin L. Bell, Terra M. Larson, May, Adam, Gerdes & Thompson LLP, Pierre, SD, for Defendant Members of the South Dakota Board of Regents.

MEMORANDUM OPINION AND ORDER

CHARLES B. KORNMANN, United States District Judge

This matter is before the Court on defendants’ motion to dismiss Count III of plaintiff's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, Doc. 25.

BACKGROUND

Plaintiff Thomas Orr was an assistant professor in the School of Education at Northern State University ("NSU") from 2011 until his dismissal from the university in 2019. Doc. 23 at 1. When plaintiff joined the NSU faculty, he did so as a "tenure track" professor. Id. at 3. Though the complaint fails to state specific dates, it appears that plaintiff applied for tenure at some point in his final year at NSU, the 2018-2019 school year. Plaintiff's tenure application was subsequently denied and his employment with the University was terminated. Id. at 8.

Plaintiff's complaint states multiple claims for relief, including claims for interference with a covered employee's taking parental leave under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601 – 2654, and a denial of full benefits under the same. Plaintiff also states in three separate claims that his tenure was denied, and his employment was terminated, in retaliation for his engaging in constitutionally protected activities that upset university decision makers.

Count III of plaintiff's complaint claims that, in denying him tenure and terminating his employment, the university retaliated against him in violation of Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681 et seq. Plaintiff's factual claims that apply to this count of the complaint concern his decision to take FMLA leave as a male employee.

Defendants’ motion ignores the factual basis of Count III and, instead, focuses on a legal argument. It is defendants’ assertion that Title IX does not grant an individual right of action for employees of covered institutions who were themselves the victim of sex discrimination. Doc. 26 at 2. Defendants argue that plaintiff's sole avenue for relief for this claim lies under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.

LEGAL STANDARD

When reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court assumes that all facts in the complaint are true and construes any reasonable inferences from those facts in the light most favorable to the nonmoving party. Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008). To decide the motion, the court may consider the complaint, some materials that are part of the public record, or materials embraced by the complaint. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999). To survive the motion to dismiss, the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level ..." Id. at 555, 127 S.Ct. 1955. The factual contents of the complaint must "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Braden v. Wal-Mart Stores, 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

That said, courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). When evaluating a motion to dismiss under Rule 12(b)(6), a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679, 129 S.Ct. 1937. All legal conclusions must be supported by plausible factual allegations to survive a motion to dismiss under Rule 12(b)(6). Id.

DISCUSSION

"Title IX proscribes gender discrimination in education programs or activities receiving federal financial assistance." N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 514, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982). Its prohibition of gender discrimination states: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ..." 20 U.S.C. § 1681(a). The statute goes on to list a number of exceptions to the rule that have no bearing on the present case.¹

While there is no direct precedent answering the narrow question of whether an employee of a covered institution who is a direct victim of sex discrimination may bring an individual claim for relief under Title IX, the Supreme Court has addressed several related questions that necessarily inform the Court's analysis. First, in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Court "held that Title IX implies a private right of action to enforce its prohibition on intentional sex discrimination." Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). "In Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), [the Court] held that it authorizes private parties to seek monetary damages for intentional violations of Title IX." Id. Then, in North Haven Board of Education v. Bell, the Court held that employees of covered institutions are "persons" for the purposes of Title IX's prohibition of intentional sexual discrimination. Bell, 456 U.S. at 535-36, 102 S.Ct. 1912.

Bell concerned "the validity of regulations promulgated by the Department of Education pursuant to Title IX." Id. at 514, 102 S.Ct. 1912. Two covered institutions challenged the Department's power under the Act to promulgate rules governing "employment practices of educational institutions." Id. at 517, 102 S.Ct. 1912. While the Court upheld the regulations at issue in Bell because it considered employees to be within the scope of Title IX's proscription of sex discrimination, the case did not involve an individual right of action, and concerned only the rulemaking authority of a Federal agency. Id. at 535-36, 102 S.Ct. 1912. When read together, however, Cannon and Bell seem to suggest that employees have just as much right as any other "person" to file a private right of action under Title IX. As stated by the Bell Court:

Section 901(a)’s broad directive that "no person" may be discriminated against on the basis of gender appears, on its face, to include employees as well as students. Under that provision, employees, like other "persons," may not be "excluded from participation in," "denied the benefits of," or "subjected to discrimination under" education programs receiving federal financial support.

Bell, 456 U.S. at 520, 102 S.Ct. 1912. The Supreme Court thought that because Title IX "neither expressly nor impliedly excludes employees from its reach" the term "persons" should be construed to include them because it is the natural implication of the word. Id. at 521, 102 S.Ct. 1912. Indeed, employees are people, and a broader more encompassing word could not have been chosen. Id. The Court also stated that "the absence of a specific exclusion for employment among the list of exceptions tends to support the [lower court's] conclusion that Title IX's broad protection of ‘person[s]’ does extend to employees of educational institutions." Id. at 521-22, 102 S.Ct. 1912.

The Bell Court's interpretation of the term "person" also supports the conclusion that no two types of "person" should be treated differently under the statute. The statute does not distinguish between categories of "person," which was a significant factor in the Court's determination that employees were included within its scope via the same term that included students. It would turn that analysis on its head to argue that the term "person" is meant to include both students and employees but, as to employees, the potential remedies for a violation are limited. Neither the statute itself, nor any of the Supreme Court cases interpreting it, has made such a distinction. This is likely because there is no indication in the text of the statute that Congress intended to make such a distinction. Employees, like students, are included in Title IX's protection via the same mechanism and terminology, thus, in the absence of a statutory distinction it would make little sense for a court to imply one.

Defendants would argue that the distinction exists because sex discrimination in employment has previously been addressed by Congress in Title VII of the Civil Rights Act of 1964. Essentially, defendants assert that because interpreting Title IX to provide a private right of action for employees of covered educational institutions would allow said employees an avenue for relief for sex discrimination in addition to the one contained in Title VII, Congress could not have so intended. But nothing...