Owens v. La. State Univ.

666 F.Supp.3d 561

Abby OWENS, et al. v. LOUISIANA STATE UNIVERSITY, et al.

CIVIL ACTION NO. 21-242-WBV-SDJ

United States District Court, M.D. Louisiana

Signed March 31, 2023

Catherine E. Lasky, Endya Hash, Katie Lasky Law Associate, New Orleans, LA, Elizabeth Kamm Abdnour, Pro Hac Vice, Elizabeth Abdnour Law, PLLC, Lansing, MI, Karen Truszkowski, Pro Hac Vice, Temperance Legal Group, PLLC, Lansing, MI, for Abby Owens, et al.

Susan W. Furr, Michael B. Victorian, Molly C. McDiarmid, Shelton Dennis Blunt, Karleen Joseph Green, Phelps Dunbar LLP, Baton Rouge, LA, for Board of Supervisors for Louisiana State University and Agricultural and Mechanical College.

ORDER AND REASONS

WENDY B. VITTER, United States District Judge

Before the Court is a Motion to Dismiss Second Amended Complaint by the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.¹ Plaintiffs oppose the Motion,² and the Board of Supervisors has filed a Reply.³ After careful consideration of the parties' memoranda and the applicable law, the Motion is GRANTED in part and DENIED in part.

I. FACTUAL and PROCEDURAL BACKGROUND⁴

This case involves allegations by ten former students of Louisiana State University and Agricultural and Mechanical College ("LSU") that LSU and its Athletic Department funded and implemented a purposefully deficient sexual misconduct and Title IX reporting scheme separate from LSU's official Title IX office to keep sexual assault claims within the Athletic Department.⁵ In their Second Amended Complaint and Jury Demand ("Second Amended Complaint"), Abby Owens, Samantha Brennan, Calise Richardson, Jade Lewis, Kennan Johnson, Elisabeth Andries, Jane Doe, Ashlyn Robertson, Corinn Hovis, and Sarah Beth Kitch (collectively, "Plaintiffs"), allege that while attending school at LSU's Baton Rouge campus between 2009 and 2021, the defendants, LSU's Board of Supervisors, Jennie Stewart, Verge Ausberry, Miriam Segar, and Johnathan Sanders (collectively, "Defendants") repeatedly engaged in discriminatory, retaliatory, and other unlawful actions in their interactions with Plaintiffs and in response to Plaintiffs' reports of Title IX violations.⁶ Plaintiffs allege that LSU handled Title IX complaints made against student-athletes differently than complaints made against non-athletes.⁷ Plaintiffs further allege that, "Title IX complaints against student-athletes are purposefully buried or diverted so as to ensure that those complaints were never properly investigated or addressed and the student-athletes are not negatively impacted or prevented from concentrating on their athletics, all of which benefits LSU financially and causes further harm to Plaintiffs."⁸ Plaintiffs assert that Defendants' actions and inactions in response to their reports of Title IX violations subjected them to additional harassment and created a sexually hostile environment on campus.⁹

Plaintiffs allege that they were victims of sex-based discrimination, including rape, sexual assault, sexual harassment, and/or stalking, that was perpetrated by male LSU students and a male professor between 2009 and 2020, and that one plaintiff was the victim of verbal and emotional abuse by an LSU tennis coach.¹⁰ Plaintiffs allege that they were unaware of LSU's inadequate Title IX reporting policies until the March 2021 publication of the Husch Blackwell report. According to Plaintiffs, LSU retained the Husch Blackwell law firm in November 2020 to investigate the school's handling of several Title IX-related incidents, as well as LSU's Title IX policies and procedures.¹¹ Plaintiffs allege that Husch Blackwell publicly released its investigative report and findings on March 5, 2021, concluding that various incidents of athletics-related misconduct had not been appropriately reported to LSU's Title IX Coordinator and voicing concern about a lack of reporting prior to November 2016.¹² Husch Blackwell also found that LSU's Title IX Office had never been appropriately staffed or provided with the independence and resources to carry out Title IX's mandates, noting that the Title IX Office "has at times not handled those matters reported to it appropriately."¹³ Husch Blackwell noted that its concerns about reporting were not limited to athletics, and that it found deficiencies in a variety of different matters.¹⁴

In the Second Amended Complaint, Plaintiffs allege that they could not have known that LSU and its employees, including the individual defendants, had concealed disclosures of sexual misconduct that should have been reported to LSU's Title IX Office, that LSU purposely handled complaints of sexual misconduct perpetrated by student athletes or others affiliated with the LSU Athletics Department in a different manner than complaints of sexual misconduct perpetrated by other individuals, and that Defendants intentionally instituted a process of responding to disclosures of Title IX violations in a manner designed to deter any future disclosures.¹⁵ Pertinent to the instant Motion, Plaintiffs assert the following four claims against the Board of Supervisors of LSU (the "Board"): (1) deliberate indifference to sex discrimination in violation of Title IX of the Educational Amendments of 1972, 20 U.S.C. §§ 1681, et seq. (hereafter, "Title IX"); (2) hostile environment in violation of Title IX; (3) heightened risk in violation of Title IX; and (4) retaliation by withholding protection otherwise conferred by Title IX in violation of Title IX.¹⁶

In its Motion to Dismiss, the Board asserts that Plaintiffs' Title IX claims are all time-barred because they are based on events that allegedly occurred more than one year before Plaintiffs filed this suit on April 26, 2021, and that equitable tolling does not apply.¹⁷ While recognizing that one incident alleged by Hovis may have occurred within the applicable time period, the Board contends that Hovis' deliberate indifference and hostile environment claims should be dismissed because her allegations fail to show that the Board acted with deliberate indifference or that she was deprived of educational opportunities.¹⁸ The Board also asserts that Hovis' heightened risk claim should be dismissed because it "is unavailable" in this Circuit, and further asserts that Plaintiffs cannot recover punitive damages from the Board under Title IX.¹⁹ Plaintiffs oppose the Motion, asserting that their claims were timely-filed based on the publication of the Husch Blackwell report, and further assert that they have alleged plausible claims under Title IX.²⁰ Plaintiffs acknowledge that punitive damages are not available under Title IX, but assert that they can seek punitive damages based upon other claims asserted in their Second Amended Complaint.²¹ In response, the Board re-asserts the same arguments made in its Motion, maintaining that Plaintiffs' Title IX claims are time-barred, that Hovis' Title IX claims for deliberate indifference, hostile environment, and heightened risk fail as a matter of law, and that Plaintiffs are not entitled to punitive damages.²²

II. LEGAL STANDARD

A. Fed. R. Civ. P. 12(b) Motion to Dismiss.

Under Federal Rule of Civil Procedure 12(b)(6), a defendant can seek dismissal of a complaint, or any part of it, for failure to state a claim upon which relief may be granted.²³ To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' "²⁴ "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."²⁵ "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully."²⁶

A court must accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.²⁷ The Court, however, is not bound to accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.²⁸ "Dismissal is appropriate when the complaint on its face shows a bar to relief."²⁹ In deciding a Rule 12(b)(6) motion to dismiss, a court is generally prohibited from considering information outside the pleadings, but may consider documents outside of the complaint when they are: (1) attached to the motion; (2) referenced in the complaint; and (3) central to the plaintiff's claims.³⁰ The Court can also take judicial notice of matters that are of public record, including pleadings that have been filed in a federal or state court.³¹

B. Title IX.

"Congress enacted Title IX in 1972 with two principal objectives in mind: '[T]o avoid the use of federal resources to support discriminatory practices' and 'to provide individual citizens effective protection against those practices.' "³² In line with those objectives, Title IX provides that, "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."³³ Title IX is enforceable by private right of action for damages.³⁴ Through this private right of action, school districts may be liable for, among other things, student-on-student sexual harassment if: (1) the district had actual knowledge of the harassment; (2) the harasser was under the district's control; (3) the harassment was based on the victim's sex; (4) the harassment was "so severe, pervasive, and objectively offensive that it effectively bar[red] the victim's access to an educational opportunity or benefit;" and (5) the district was deliberately indifferent to the harassment.³⁵

III. ANALYSIS

A. Prescription/Tolling of Plaintiffs' Title IX Claims.

In its Motion to Dismiss, the Board asserts that all of Plaintiffs' Title IX claims, except for Hovis' Title IX claims based upon one allegation, must be dismissed...