Posso v. Niagara Univ.

518 F.Supp.3d 688

Nastassja POSSO, et al., Plaintiffs,

v.NIAGARA UNIVERSITY, Defendant.

19-CV-1293-LJV-MJR

United States District Court, W.D. New York.

Signed February 10, 2021

Brian Melber, Personius Melber LLP, Buffalo, NY, for Plaintiff Nastassja Posso.

Cheryl Meyers Buth, Laurie A. Baker, Meyers Buth Law Group PLLC, Orchard Park, NY, for Plaintiff Jaime Rolf.

Brian Melber, Personius Melber LLP, Buffalo, NY, Cheryl Meyers Buth, Meyers Buth Law Group PLLC, Orchard Park, NY, for Plaintiff Jane Doe-1.

Cheryl Meyers Buth, Meyers Buth Law Group PLLC, Orchard Park, NY, for Plaintiff Jane Doe-2.

Jeremy A. Colby, Niagara University, NY, Meghan M. DiPasquale, Thomas S. D'Antonio, Ward Greenberg Heller & Reidy LLP, Julia Green Sewruk, Harter Secrest & Emery LLP, Rochester, NY, Amy L. Hemenway, Daniel James Altieri, Harter, Secrest and Emery LLP, Buffalo, NY, for Defendant.

DECISION & ORDER

LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE

INTRODUCTION

On September 20, 2019, plaintiffs Nastassja Posso, Jamie Rolf, and Jane Doe-1 filed this action against the defendant, Niagara University ("Niagara"). Docket Item 1. On October 17, 2019, an amended complaint was filed, adding Jane Doe-2 as a plaintiff.¹ Docket Item 13. The amended complaint asserts claims under 20 U.S.C. § 1681(a) et seq. ("Title IX") for unequal treatment, gender-based harassment, and negligent administration of a Title IX program, as well as for common-law negligence and breach of contract. See id.

On December 6, 2019, Niagara moved to dismiss the amended complaint, in part, under Federal Rule of Civil Procedure 12(b)(6). Docket Item 14. Relevant to this decision, Niagara moved to dismiss Doe-2's Title IX claim for gender-based harassment and Rolf's claim for breach of contract.²

On December 9, 2019, the case was referred to United States Magistrate Judge Michael J. Roemer for all proceedings under 28 U.S.C. §§ 636(b)(1)(A) and (B). Docket Item 15. On July 29, 2020, the plaintiffs responded to the motion to dismiss, Docket Item 19, and on August 12, 2020, Niagara replied, Docket Item 20. On August 19, 2020, Judge Roemer heard oral argument and requested supplemental briefing. See Docket Item 21. On August 26, 2020, the plaintiffs filed a supplemental brief, Docket Item 22; and on September 4, 2020, Niagara responded, Docket Item 23.

On November 2, 2020, Judge Roemer issued a Report and Recommendation ("R&R") finding that Niagara's motion to dismiss should be granted in part and denied in part. Docket Item 24. Judge Roemer specifically found that the motion to dismiss should be (1) denied with respect to Doe-2's pre-assault claim, id. at 12; (2) granted with respect to Doe-2's post-assault claim, id. at 20; and (3) granted with respect to Rolf's breach of contract claim, id. at 27. Judge Roemer also recommended that the plaintiffs "be given an opportunity to amend their complaint in regard to the post-assault allegations." Id. at 28.

On November 16, 2020, Niagara objected to the R&R. Docket Item 28. On December 9, 2020, Doe-2 responded to the objection. Docket Item 31. And on December 22, 2020, Niagara replied. Docket Item 32.

A district court may accept, reject, or modify the findings or recommendations of a magistrate judge. 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b)(3). The court must review de novo those portions of a magistrate judge's recommendation to which a party objects. 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b)(3).

This Court has carefully and thoroughly reviewed the R&R the record in this case; the objection, response, and reply; and the materials submitted to Judge Roemer. Based on that de novo review, the Court accepts and adopts Judge Roemer's recommendation to deny the motion to dismiss in part.³

FACTUAL ALLEGATIONS

On a motion to dismiss, the Court "accept[s] all factual allegations as true and draw[s] all reasonable inferences in favor of the plaintiff." Trustees of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016) (citing City of Pontiac Policemen's & Firemen's Ret. Sys. v. UBS AG , 752 F.3d 173, 179 (2d Cir. 2014) ). Given that standard, the following are the operative facts.

The plaintiffs are current or former female students at Niagara. Docket Item 13 at ¶¶ 1, 20-23. Posso, Rolf, and Doe-1 were members of Niagara's swimming and diving teams,⁴ where they experienced sexual and gender-based harassment by male swimmers. Id. at ¶¶ 7, 20-23. In 2018, "to escape the constant harassment," Rolf left the swim team and, in doing so, forfeited her swimming scholarship. Id. at ¶¶ 21, 63. The harassment also "caused [Posso] to go on inactive status" on the team. Id. at ¶ 63.

Doe-2 was not a member of the swim team, but she too experienced sexual harassment by a male swimmer. Id. at ¶¶ 14, 23. In 2018, a male swimmer raped her and then attempted into intimidate her by leaving a threatening voice message and being near her on campus. Id. at ¶¶ 14, 23, 82.

"The manner in which [Niagara] operated its ... swimming and diving program[ ] marginalized women and resulted in a hostile environment." Id. at ¶ 2. A "lack of adult control left the students on the teams to impose their own discipline and rules," which ultimately put the male swimmers "in a position to exert power and control over the women." Id. at ¶ 7. The result was an environment in which male swimmers regularly sexually harassed female swimmers without consequence. See id. at ¶¶ 78-81.

Male swimmers "repeatedly" called female swimmers derogatory names like "cunt," "pussy," and "slut."⁵ Id. at ¶ 78. Male swimmers would remark about female swimmers’ bodies and "targeted female swimmers for body-shaming" by "making whale noises" and calling female swimmers names such as "water buffalo," "fat," and "[p]rincess thigh gap." Id. at ¶¶ 78, 81. Male swimmers "[r]ank[ed] female swimmers by physical appearance." Id. at ¶ 78. They also would make "[s]exual innuendos," such as "finish harder," "get it up, get it in," and "let's get wet," and they would "moan[ ] to emulate sexual gratification." Id. at ¶¶ 78, 80. This behavior was not sporadic; indeed, it was "engrained in the overall environment of the swimming team." Id. at ¶ 80.

Although the abuse primarily was verbal, there were instances of physical violence as well. See id. at ¶¶ 81-82. For example, a male swimmer "intentionally pushed" Doe-1 "into a bush[,] cutting her leg." Id. at ¶ 81. "[One] male swimmer h[eld] a female swimmer's head under water until she struggled to breathe." Id. at ¶ 82. Another "bit[ ] a female swimmer" on the arm, bruising her. Id.

As early as 2016, the sexual harassment was reported to coaches, administrators, and the Title IX office, but no remedial action was taken to address it. See, e.g. , id. at ¶¶ 10-11, 17, 56, 83.

The head swimming coach, Ben Nigro ("Ben"⁶ ), observed much of the harassing behavior, but he did not discipline the male swimmers involved, nor did he otherwise take appropriate remedial measures. Id. at ¶ 83. In fact, Ben himself made inappropriate sexual remarks to swimmers. Id. at ¶¶ 76-78. For example, he "brought up topics of ‘mothers, sexuality[,] and sexual intercourse,’ and made [ ] comments ‘about having sex with mothers, [and] sexual preferences.’ " Id. at ¶ 77. "[O]n one occasion[,] after hearing that a male swimmer had sex with a female recruit[, Ben] said, ‘[h]e must not have been very good since she [the recruit] is not coming to [Niagara].’ " Id. at ¶ 76.

Female swimmers, including Rosso, Rolf, and Doe-1, also reported the harassment that they were experiencing to Ben, id. at ¶¶ 8, 84, but Ben either "ignored [ ] or ridiculed them" for reporting the harassment, id. at ¶ 8. He excused the male swimmers’ behavior as "boys will be boys," and he suggested that the "victims [should] adjust their own behavior" instead. Id. at ¶¶ 84-85. Because he was an athletic coach, Ben was a "mandatory reporter[ ] under Title IX"—that is, he was obligated to report sexual harassment once he became aware of it. Id. at ¶ 56. But Ben did not report the harassment. See id. at ¶¶ 78, 83.

Doe-1 also reported the harassment to the former diving coach and Ben's wife, Brooke Nigro ("Brooke"). Id. at ¶ 9. "By at least 2016," Doe-1 told Brooke "about offensive conduct by members of the men's swim team." Id. Brooke also witnessed some of the harassment herself. Id. Like Ben, Brooke was a mandatory reporter; and like Ben, she did not report the harassment or take other remedial action in response to Doe-1's complaints or the harassment that she witnessed. Id. at ¶¶ 9, 56.

After Brooke left her position in the middle of the 2016 season, the diving team did not have a coach until 2018. Id. at ¶ 9. In the interim, "the students on the dive team were not accompanied or supervised by a coach when they traveled to out of town meets with the swim teams." Id.

In spring 2016, Doe-1 reported the harassment to Susan Roarke, the former associate athletic director. Id. at ¶ 10. Doe-1 told Roarke about "the mistreatment of women swimmers by male swimmers, specifically that the coaches operated the swim and dive teams in a way that permitted sexual harassment and bullying to continue unabated ... [and] that Coach Ben Nigro made inappropriate sexual comments." Id. Doe-1 also told Roarke the comment Ben made about the male swimmer having sex with a recruit. Id. at ¶ 76. But "Roarke did not offer any assistance and failed to take remedial action." Id. at ¶ 10.

Doe-1 also reported the harassment to Simon Gray, the athletic director. Id. at ¶ 11. "Gray likewise failed to address her complaints or take remedial action." Id. Doe-1's report was not the first of its kind that Gray had heard: he had met with another female swimmer who "told him that she had been the target of a male swimmer's offensive verbal slurs about her gender and perceived sexual orientation" as well as about the biting incident. Id. These male swimmers "were considered high-value recruits," however, and therefore were allowed to continue...