You are on page 1of 10

Case 4:16-cv-00623-RGE-SBJ Document 48 Filed 08/11/17 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT


FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

THOMAS ROSSLEY, JR.,


Plaintiff,
v.
No. 4:16-cv-00623-RGE-SBJ
DRAKE UNIVERSITY, DRAKE
UNIVERSITY BOARD OF TRUSTEES, ORDER RE: DEFENDANTS PARTIAL
EARL MARTIN, KATHRYN OVERBERG, MOTION TO DISMISS
JERRY PARKER, SENTWALI BAKARI,
MARY HOWELL SIRNA, TRICIA
MCKINNEY, and JERRY FOXHOVEN,
Defendants.

I. INTRODUCTION

Plaintiff Thomas Rossley, Jr. brings this suit against a private university and university

employees challenging the Title IX investigation concluding Plaintiff sexually assaulted a female

student. The investigation resulted in his expulsion. The university defendants move for partial

dismissal of his suit. ECF No. 20. Plaintiff resists. ECF No. 28.

On May 17, 2017, the matter came before the Court for hearing. Hrg Pl.s Mot. Proceed

Under Pseudonym & Defs. Mot. Dismiss Mins., ECF No. 36. Attorneys Frances Haas and Mary

Funk appeared on behalf of Defendants Drake University, Drake University Board of Trustees,

Earl Martin, Kathryn Overberg, Jerry Parker, Sentwali Bakari, Mary Howell Sirna, Tricia

McKinney, and Jerry Foxhoven (collectively, Defendants) 1 and argued in support of their

1
Defendants Drake University and Drake University Board of Trustees are referred to collectively
as the Drake Defendants. Defendants Earl Martin, Kathryn Overberg, Jerry Parker, Sentwali
Bakari, Mary Howell Sirna, Tricia McKinney, and Jerry Foxhoven are referred to collectively as
Individual Defendants.
Case 4:16-cv-00623-RGE-SBJ Document 48 Filed 08/11/17 Page 2 of 10

motion. Id. Attorneys Philip Byler and David Goldman appeared on behalf of Plaintiff. Id. Plaintiff

argued in resistance to Defendants Partial Motion to Dismiss. Id.

For the reasons set forth below, the Court grants in part and denies in part Defendants

Partial Motion to Dismiss.

II. STATEMENT OF RELEVANT FACTS

Plaintiff alleges Defendants: 1) violated Title IX of the Education Amendments Act

of 1972; 2) violated the due process clause of the Fourteenth Amendment; 3) breached a contract

between Defendants and Plaintiff in their investigation of the incident; 4) breached the covenant

of good faith and fair dealing; 5) are liable for damages under a theory of negligent infliction of

emotional distress; 6) discriminated against Plaintiff based on his disability in violation of Title II

of the Americans with Disabilities Act; and 7) are liable for damages under theories of estoppel

and reliance. Am. Compl. 169249, ECF No. 46. 2 Defendants request partial dismissal of

Plaintiffs suit. ECF No. 20. Defendants contend, and Plaintiff concedes, 3 the complaint does not

support liability for the Individual Defendants as to Counts I, III, IV, VI, and VII. Id.; Def.s Br.

Supp. Partial Mot. Dismiss, ECF No. 20-1; ECF No. 28 at 1 n.1. The Court therefore dismisses

these counts as to the Individual Defendants.

The Court considers the contested counts raised in Defendants Partial Motion to Dismiss:

Count I, alleging the Drake Defendants violated Title IX under a disparate impact theory; Count

2
As directed in the Courts order denying his motion to proceed under a pseudonym, Plaintiff filed
an amended complaint. ECF No. 46. This amended complaint is substantively identical to the
original complaint except for its identification of Plaintiff as Thomas Rossley, Jr. rather than John
Doe. Compare ECF No. 1 with ECF No. 46. Because the claims Plaintiff is pursuing remain the
same, the amended complaint does not moot the parties arguments regarding Defendants Motion
to Dismiss.
3
Plaintiffs resistance to Defendants motion to dismiss expressly concedes Counts I, III, VI, and
VII as to the Individual Defendants. ECF No. 28 at 1 n.1. At the hearing on the motion, Plaintiff
additionally conceded Count IV as to the Individual Defendants.
2
Case 4:16-cv-00623-RGE-SBJ Document 48 Filed 08/11/17 Page 3 of 10

II, alleging Defendants violated Plaintiffs Fourteenth Amendment rights; and Count V, alleging

the Individual Defendants 4 are liable for negligent infliction of emotional distress.

III. LEGAL STANDARD

Defendants assert several of Plaintiffs claims against them should be dismissed under

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. To survive a 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. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord Braden v. Wal-Mart Stores, Inc., 588 F.3d

585, 594 (8th Cir. 2009). The essential function of a complaint under the Federal Rules of Civil

Procedure is to give the opposing party fair notice of the nature and basis or grounds for a claim,

and a general indication of the type of litigation involved. Topchian v. JPMorgan Chase Bank,

N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir.

1999)). The Court must accept as true all factual allegations in the complaint, but not its legal

conclusions. Iqbal, 556 U.S. at 67879 (citing Twombly, 550 U.S. at 55556).

A plausible claim for relief allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. Id. at 678. A plaintiff must nudge[ ]their claims

across the line from conceivable to plausible, [else] their complaint must be dismissed. Twombly,

550 U.S. at 570. Where a complaint pleads facts that are merely consistent with a defendants

liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice. Id.

4
Count V alleges all Defendants are liable for negligent infliction of emotional distress. See ECF
No. 46 22534. Defendants presently request the Court to dismiss Count V only against the
Individual Defendants. ECF No. 20 5.
3
Case 4:16-cv-00623-RGE-SBJ Document 48 Filed 08/11/17 Page 4 of 10

IV. DISCUSSION

A. Count I: Title IX (against the Drake Defendants)

Defendants do not request dismissal of Count I in its entirety as to the Drake Defendants.

Instead, Defendants seek to dismiss any disparate impact theory of Plaintiffs Title IX claim.

Defendants assert Plaintiff has not pled facts sufficient to support the intentional discrimination

element necessary for a disparate impact claim. ECF No. 20-1 at 4. Plaintiff asserts he does not

rely upon a disparate impact theory but instead maintains intentional discrimination is the basis

for his Title IX claim. ECF No. 28 at 5, 9. In addition to Plaintiffs acknowledgement Title IX

liability cannot lie against the Individual Defendants, Defendants acknowledged at the hearing that

proof of intentional discrimination is required for a Title IX claim. Defendants also conceded

Plaintiff could pursue and has alleged other theories to support his Title IX claim against the Drake

Defendants. See Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994) (setting forth a framework

for Title IX discrimination claims challenging the outcome of a school disciplinary proceeding);

see also Wolfe v. Fayetteville, Ark. Sch. Dist., 648 F.3d 860, 865 n.4 (8th Cir. 2011) (agreeing with

other circuits that Title VII cases provide guidance in evaluating Title IX claims). Plaintiff did not

specifically plead a disparate impact claim and Defendants did not request the Court strike any

portion of the complaint. In light of these acknowledgments, the Court denies Defendants motion

to dismiss Count I as to the Drake Defendants.

B. Count II: Due Process (Fourteenth Amendment) (against all Defendants)

Defendants contend they cannot be liable to Plaintiff for a due process violation because

they are private actors immune from suit under the Fourteenth Amendment. ECF No. 20-1 at 67.

The Court must determine whether the alleged infringement of federal rights [is] fairly

attributable to the State. RendellBaker v. Kohn, 457 U.S. 830, 838 (1982) (quoting Lugar v.

4
Case 4:16-cv-00623-RGE-SBJ Document 48 Filed 08/11/17 Page 5 of 10

Edmondson Oil Co., 457 U.S. 922, 937 (1982)). A private actor may be characterized as a state

actor where the state delegates to a private party a power traditionally exclusively reserved to

the State, see Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974), where a private actor is a

willful participant in joint activity with the [government] or its agents, see Adickes v. S.H. Kress

& Co., 398 U.S. 144, 151 (1970), and where there is pervasive entwinement between the private

entity and the [government], see Brentwood Acad. v. Tenn. Secondary Sch. Athletic Assn, 531

U.S. 288, 291 (2001). Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir. 2007). The

private actor is treated as a state actor because there is such a close nexus between the

[government] and the challenged action that seemingly private behavior may be fairly treated as

that of the [government] itself. Brentwood, 531 U.S. at 295 (quoting Jackson, 419 U.S. at 351).

Defendants contend they should not be considered state actors because at most Defendants

received guidance from the federal government through the Office of Civil Rights (OCR), but the

government did not exercise[] coercion or significantly encourage[] the[ir] conduct. ECF No.

20-1 at 7 (quoting Moore v. Carpenter, 404 F.3d 1043, 1046 (8th Cir. 2005)). Defendants cite Doe

v. Washington and Lee University in support of their position. No. 6:14CV00052, 2015 WL

4647996 (W.D. Va. Aug. 5, 2015). In Washington and Lee, the court rejected a plaintiffs Fifth

Amendment due process challenge of a private universitys sexual assault investigation. Id. at *9.

The plaintiff argued the universitys actions during the Title IX investigation should be considered

governmental action because the decision to discipline him was motivated by guidance received

from the United States Department of Educations [OCR]. Id. The court found the plaintiffs

theory of entwinement failed because he did not demonstrate the government deprived [the

private university] of its autonomy to investigate and adjudicate charges, . . . [and failed to

demonstrate] the government participated in the decision-making process at any stage of the

5
Case 4:16-cv-00623-RGE-SBJ Document 48 Filed 08/11/17 Page 6 of 10

proceedings, factors crucial to the determination of whether a schools actions are attributable to

the government. Id.

Plaintiff responds Defendants should be deemed a governmental actor. ECF No. 28 at 13

16. Plaintiff states the Defendants acceptance of federal education funding pursuant to Title IX

here amounts to more than just guidance. ECF No. 28 at 1415. Plaintiff cites the 2011 Dear

Colleague letter, OCRs 2013 investigation of Drake, and the resulting pressure to keep needed

federal funds as ways the government was entwined [with] Defendant Drakes policies and

procedures and their application with the coercive power of threatening to cut off federal funds.

Id. at 1516 (citing Compl. 1945, ECF No. 1); accord ECF No. 46 1945.

Plaintiff has not pled sufficient facts to assert a Fourteenth Amendment due process claim

against the private university Defendants. Like the Washington and Lee court noted, [w]hile it is

plausible that [the private university] was under pressure to convict students accused of sexual

assault in order to demonstrate that the school was in compliance with the OCRs guidance, for

[due process] protections to apply, [t]he government must have compelled the act of which

[Plaintiff] complains. 2015 WL 4647996, at *9 (fourth and fifth alteration in original) (quoting

Andrews v. Fed. Home Loan Bank of Atlanta, 998 F.2d 214, 218 (4th Cir. 1993)). The result is no

different when considering the governments involvement with these private university

Defendants. There is simply no conduct alleged which demonstrates the government compelled

the act of which [Plaintiff] complains. Id. Defendants actions are not fairly attributable to the

government.

Plaintiff cites no cases dictating a different conclusion. Plaintiffs reliance on Brentwood v

Tennessee Secondary School Athletic Association is misplaced. In Brentwood, the Supreme Court

found pervasive entwinement between the state and an interscholastic athletic association. 531

6
Case 4:16-cv-00623-RGE-SBJ Document 48 Filed 08/11/17 Page 7 of 10

U.S. at 298. The alleged governmental actorthe athletic associationwas made up of public and

private schools represented by public officials who acted in their official capacity to provide an

integral element of secondary public schooling. Id. at 300. The Court concluded the state, through

the public officials, did not merely control but overwhelmingly perform[ed] all but the purely

ministerial acts by which the Association exists and functions in practical terms. Id. Therefore,

the Court held the association should be treated as a public entity. Id. at 302. There is no similar

relationship between these Defendants and the government. Thus, Defendants, as private entities

and individuals, cannot be liable for violating Plaintiffs Fourteenth Amendment due process

rights. The Court grants Defendants motion to dismiss Count II against all Defendants.

C. Count V: Negligent Infliction of Emotional Distress (against Individual


Defendants)

Defendants request partial dismissal of Count V against the Individual Defendants. As

recognized by both parties, under Iowa law, emotional distress damages are not recoverable in

torts absent intentional conduct by a defendant or some physical injury to the plaintiff. Miranda

v. Said, 836 N.W.2d 8, 14 (Iowa 2013) (quoting Clark v. Estate of Rice ex rel. Rice, 653 N.W.2d

166, 169 (Iowa 2002)). Where a plaintiff suffers no physical injuries, he may recover emotional

damages where the nature of the parties relationship supports imposing a duty to exercise

ordinary care to avoid causing emotional harm. Id. (quoting Oswald v. LeGrand, 453 N.W.2d

634, 639 (Iowa 1990)).

The parties dispute whether Plaintiff has pled sufficient facts to demonstrate such a duty

exists based upon the nature of the relationship between the parties and the nature of the acts

engaged in by the defendant within the context of the relationship. Id. Defendants challenge that

even under this exception, Plaintiff has failed to demonstrate any contractual relationship between

himself and any of the Individual Defendants. ECF No. 20-1 at 13. Plaintiff responds a

7
Case 4:16-cv-00623-RGE-SBJ Document 48 Filed 08/11/17 Page 8 of 10

relationship giving rise to this duty exists between him and the Individual Defendants based on the

Individual Defendants status as college officials specifically tasked with handling Plaintiffs

claim of sexual assault. ECF No. 28 at 19.

Iowa courts have found a special relationship between parties sufficient to sustain

emotional distress damages in several defined relationships. See Lawrence v. Grinde, 534 N.W.2d

414, 421 (Iowa 1995) (summarizing four relationships where emotional damages are recoverable).

The Iowa Supreme Court imposed a duty to avoid causing emotional harm to a bystander

witnessing serious injury or death of a close relative. Barnhill v. Davis, 300 N.W.2d 104, 10708

(Iowa 1981). Emotional damages have also been allowed in the context of a physicianpatient

relationship where the conduct is likely to cause severe emotional distress . . . [and is] specifically

directed at the [patient]. Miranda, 836 N.W.2d at 30. For example, in Oswald v. LeGrand, the

Iowa Supreme Court allowed a claim for emotional injury for medical services upon delivery of a

child, finding the relationship evoked mental concern and solicitude that inevitably result[s] in

mental anguish, pain[,] and suffering. 453 N.W.2d at 639 (quoting Meyer v. Nottger, 241 N.W.2d

911, 91819 (Iowa 1976)). The Iowa Supreme Court permitted the award of emotional damages

for negligently performed funeral services. Meyer, 241 N.W.2d at 91819. In Overturff v. Raddatz

Funeral Services, however, the court found a funeral home did not owe the wife of a deceased man

a duty to avoid causing emotional harm because the parties did not have a contract and a statutory

duty did not exist. 757 N.W.2d 241, 24546 (Iowa 2008) (quoting Millington v. Kuba, 532 N.W.2d

787, 793 (Iowa 1995)). Whether a duty is imposed depends in part on the relationship between the

parties, but Iowa courts hold other factors must be present for a duty to avoid causing emotional

harm to arise, such as nexus to the conduct or a contract with the defendant. Millington, 532

N.W.2d at 793.

8
Case 4:16-cv-00623-RGE-SBJ Document 48 Filed 08/11/17 Page 9 of 10

Iowa courts have also awarded emotional damages based on factors other than the parties

relationship. In Niblo v. Parr Manufacturing, for example, the court allowed recovery of emotional

damages between an employee and an employer. 445 N.W.2d 351, 35556 (Iowa 1989). The court

based the availability of emotional damages on public policy grounds rather than the parties

relationship. Id. The court emphasized wrongful or retaliatory discharge in violation of public

policy is an intentional wrong committed by the employer against an employee who chooses to

exercise some substantial right. Id. at 355.

The type of relationship between the Individual Defendants and Plaintiff does not meet the

high standard set forth by Iowa law for recovery of emotional distress damages absent physical

injury. The relationship between the Individual Defendants and Plaintiff is not so coupled with

matters of mental concern or solicitude, or with the sensibilities of the party to whom the duty is

owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering,

and it should be known to the parties from the nature of the [obligation] that such suffering will

result from its breach. Miranda, 836 N.W.2d at 15 (quoting Lawrence, 534 N.W.2d at 42021).

Thus, emotional damages are not warranted based on the relationship between the parties. Nor is

the context of Plaintiffs injuries similar to cases where the court imposed a duty, such as Oswald,

or cases based on public policy grounds, such as the tort of wrongful discharge in Niblo. Like in

Overturff, the lack of a contract between Plaintiff and the Individual Defendants 5 supports the

conclusion that there is no special duty to avoid causing emotional harm. 757 N.W.2d at 245.

Plaintiff has failed to state a plausible claim for damages under a theory of negligent infliction of

5
Whether a contract existed between the Individual Defendants and Plaintiff was at contention in
Count III, alleging breach of contract. See ECF No. 20-1 at 11. Plaintiff concedes their breach of
contract claim against the Individual Defendants should be dismissed. ECF No. 28 at 1, n.1.
9
Case 4:16-cv-00623-RGE-SBJ Document 48 Filed 08/11/17 Page 10 of 10

emotional distress. The Court grants Defendants motion to dismiss Count V against the Individual

Defendants.

V. CONCLUSION

The Court grants Defendants Partial Motion to Dismiss as to the claims against the

Individual Defendants in Counts I, III, IV, VI, and VII upon agreement of the parties. The Court

denies Defendants motion to dismiss Count I as to the Drake Defendants, as Plaintiff pled theories

sufficient to state a claim for a Title IX violation. In addition, because all Defendants are private

actors, Count II alleging a due process violation of the Fourteenth Amendment is dismissed. The

Court also grants Defendants motion to dismiss Count V as to the Individual Defendants as there

is not a relationship between Plaintiff and the Individual Defendants sufficient to warrant

emotional damages under Iowa law.

IT IS ORDERED that Defendants Partial Motion to Dismiss, ECF No. 20, is GRANTED

IN PART and DENIED IN PART. Count II is dismissed in entirety. Counts I, III, IV, V, VI, and

VII are dismissed as to the Individual Defendants. The Court denies Defendants Motion to

Dismiss Count I as to the Drake Defendants.

Based on Plaintiffs concessions as to the claims against the Individual Defendants and the

Courts rulings, the Clerk is directed to terminate the following parties as defendants: Earl Martin,

Kathryn Overberg, Jerry Parker, Sentwali Bakari, Mary Howell Sirna, Tricia McKinney, and Jerry

Foxhoven.

Dated this 11th day of August, 2017.

10

You might also like