Professional Documents
Culture Documents
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.
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motion. Id. Attorneys Philip Byler and David Goldman appeared on behalf of Plaintiff. Id. Plaintiff
For the reasons set forth below, the Court grants in part and denies in part Defendants
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
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.
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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
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II, alleging Defendants violated Plaintiffs Fourteenth Amendment rights; and Count V, alleging
the Individual Defendants 4 are liable for negligent infliction of emotional distress.
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
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
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IV. DISCUSSION
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
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
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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
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proceedings, factors crucial to the determination of whether a schools actions are attributable to
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.
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
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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.
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
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
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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
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.
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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
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.
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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
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
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.
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