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Hernandez v. Baylor University

United States District Court, W.D. Texas, Waco Division

April 7, 2017

JASMIN HERNANDEZ, Plaintiff,
v.
BAYLOR UNIVERSITY, et al., Defendants.

          ORDER

          ROBERT PITMAN UNITED STATES DISTRICT JUDGE.

         Plaintiff Jasmin Hernandez (“Plaintiff”), a former student at Baylor University who was sexually assaulted by a fellow student during her freshman year, brings this suit against Defendants Baylor University (“Baylor”), (Second Am. Compl., Dkt. 53, ¶ 1); former Baylor Head Football Coach Art Briles (“Defendant Briles”), (id. ¶ 2); and former Baylor Athletic Director Ian McCaw (“Defendant McCaw”), (id. ¶ 3). Plaintiff seeks to hold Baylor liable under Title IX of the Education Amendments Act of 1972 (“Title IX”), which provides that “[n]o 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); (Second Am. Compl., Dkt. 53, at 15). She also seeks to hold Baylor, Defendant Briles, and Defendant McCaw liable under the common law doctrines of negligence and intentional infliction of emotional distress. (Id. at 18, 22, 24).

         At this stage of litigation, the Court considers only whether Plaintiff's Complaint contains plausible factual allegations that, assumed to be true, support a claim for which relief could be granted.

         I. STANDARD OF REVIEW

         Pursuant to Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations, ' but must provide the [plaintiff's] grounds for entitlement to relief-including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.'” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, “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 Twombly, 550 U.S. at 570). “[A] motion to dismiss under 12(b)(6) ‘is viewed with disfavor and is rarely granted.'” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quoting Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)).

         II. FACTUAL BACKGROUND

         Before proceeding further, the Court considers Plaintiff's Request for Judicial Notice. (Dkt. 81). Plaintiff requests that the Court, pursuant to Federal Rule of Evidence 201, take judicial notice of the allegations contained in (1) the Complaint and Jury Demand in Elizabeth Doe v. Baylor University, No. 6:17-CV-27 (W.D. Tex.); and (2) the Original Answer filed by Defendants Cary Gray, Ron Murff, and David Harper in Colin Shillinglaw v. Baylor University et al., No. DC-17-01225 (116th Dist. Ct., Dallas County).

         Federal Rule of Evidence 201 allows a court to take judicial notice of an “adjudicative fact” if the fact is not subject to reasonable dispute in that it is (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resort to resources whose accuracy cannot be questioned. Taylor v. Charter Med. Corp., 162 F.3d 827, 829-30 (5th Cir. 1998) (indicating that, for a fact to be eligible for judicial notice under Rule 201, it should be a “self-evident truth that no reasonable person could question, a truism that approaches platitude or banality”). “A court may take judicial notice of ‘a document filed in another court . . . to establish the fact of such litigation and related filings, ' but generally cannot take notice of the findings of fact from other proceedings.” Ferguson v. Extraco Mortg. Co., No. 06-51453, 2007 WL 2493537, at *1 (quoting Taylor, 162 F.3d at 829-830); see also Anderson v. Dallas Cty., Tex., No. 3:05-CV-1248, 2007 WL 1148994, at *3-4 (N.D. Tex. April 18, 2007), aff'd, 286 F. App'x 850 (5th Cir. 2008).

         Here, Plaintiff asks the Court to take judicial notice of more than 100 pages of documents, consisting primarily of allegations made by other parties in other lawsuits. Those allegations are not “adjudicative facts” within the meaning of Federal Rule of Evidence 201, nor are they generally known or beyond reasonable dispute. Accordingly, these facts are not appropriate for proof by judicial notice. This position is consistent with the law governing courts' consideration of motions to dismiss. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (“Because the court reviews only the well-pleaded facts in the complaint, it may not consider new factual allegations made outside the complaint.” (emphasis added)).

         Having denied Plaintiff's request to take judicial notice of the material described above, the Court proceeds to a summary of the factual allegations made in the instant case.

         A. Allegations Regarding Plaintiff's Assault and Reporting Experience

         Plaintiff enrolled at Baylor in the fall of 2011. (Second Am. Compl., Dkt. 53, ¶ 53). On April 15, 2012, she was sexually assaulted by Tevin Elliott (“Elliott”) while attending an off-campus party. (Id. ¶ 55). At the time, Elliott was a player on the Baylor football team. (Id. ¶ 27). Plaintiff immediately reported the assault to the Waco Police Department. (Id. ¶ 57).

         Two days after the assault, Plaintiff's mother reported the incident to the Baylor Counseling Center and Baylor Student Health Center. (Id. ¶¶ 59, 60). Staff at both service providers allegedly responded that Plaintiff could not receive treatment because the Centers were “too busy” or “full.” (Id.). A few days later, Baylor's Academic Services Department also allegedly “refused to provide any accommodations.” (Id. ¶ 61). During the relevant time period, Baylor did not have a dedicated Title IX coordinator. (Id. ¶ 68).[1]

         Plaintiff's mother subsequently called Defendant Briles to inform him of the assault; she allegedly received a return phone call from a member of Defendant Briles's staff informing her that the office had “heard of the allegations” and was “looking into it.” (Id. ¶ 62). Plaintiff's father also allegedly called Defendant Briles's office “several times, ” but never heard back. (Id. ¶ 63).

         Despite these reports, Plaintiff alleges, Baylor “did not take any action whatsoever to investigate [her] claim.” (Id. ¶ 64). Elliott was “allowed to remain on campus” until transferring to another school during the summer of 2012, thereby subjecting Plaintiff to additional harassment by “making her vulnerable to an encounter with Elliott . . . at any time at any place on campus.” (Id. ¶ 65). As a result, she alleges, she was “deprived of a multitude of educational opportunities and/or benefits, including but not limited to [a] significant drop in her grades, [b]eing placed on academic probation as a result of her drop in grades; [a]voidance of social activities on campus; [a]voidance of certain areas of campus; [a] loss of her academic scholarship[]; and [w]ithdrawal from Baylor altogether.” (Id. ¶ 75).

         B. Allegations Regarding Baylor's General Handling of Reports of Sexual Assault

         Plaintiff's Complaint relies, in substantial part, on findings made by the law firm Pepper Hamilton LLP as part of an investigation the firm conducted into Baylor's handling of sexual assault allegations between 2012 and 2016. (Id. ¶¶ 44-46). The “findings of fact” released by the firm in May 2016 concluded that “the University's student conduct processes were wholly inadequate to consistently provide a prompt and equitable response under Title IX.” (Id. ¶ 47-48). “Baylor did not pursue [administrative] hearings in the majority of reports [of sexual assault], ” the report found, leading the university to “fail[] to take action to identify and, as needed, eliminate a potential hostile environment, prevent its recurrence, or address any effects on the individual complainant or broader campus community.” (Id. ¶ 51). The investigations the university did conduct were “wholly inadequate to fairly and reliably evaluate whether sexual violence had occurred, ” and “[a]dministrators engaged in conduct that could be perceived as victim-blaming.” (Id.).

         C. Allegations Regarding the Baylor Football Program and Athletics Department

         According to Plaintiff, Baylor has failed to address and actively concealed sexual violence committed by its football players for several years. (Id. ¶ 33).

         Pepper Hamilton documented “specific failings within both the football program and Athletics Department leadership, including a failure to identify and respond to a pattern of sexual violence by a football player, to take action in response to reports of a sexual assault by multiple football players, and to take action in response to a report of dating violence.” (Id. ¶ 49). Specifically, football coaches or staff allegedly were repeatedly and directly informed of sexual assaults committed by football players and did not report the misconduct. (Id. ¶ 52). Athletic staff instead “conducted their own untrained internal inquiries, outside of policy, which improperly discredited complainants and denied them the right to a fair, impartial, and informed investigation.” (Id. ¶ 52). Those reports “were not shared outside of [the athletics department], ” and “[f]ootball coaches and staff took affirmative steps to maintain internal control over discipline of players and to actively divert cases from the student conduct or criminal processes.” (Id.). The university therefore “missed critical opportunities to impose appropriate disciplinary action that would have removed offenders from campus and possibly precluded future acts of sexual violence against Baylor students.” (Id.). Moreover, the situation gave rise to an “overall perception that football was above the rules and that there was no culture of accountability for misconduct.” (Id.).

         A former member of Baylor's advisory board allegedly stated that “Baylor officials have known about the larger problem of sexual assaults committed by student-athletes for several years.” (Id. ¶ 31). According to that individual, male student-athletes at Baylor are responsible for between 25 percent and 50 percent of all reported assaults that occur at the university. (Id. ¶ 32).

         D. Allegations Regarding Defendants' Knowledge of Prior Reports Involving Tevin Elliott

         At some point prior to Plaintiff's sexual assault, an unidentified female student allegedly informed Baylor Chief Judicial Officer Bethany McCraw (“McCraw”) that she had been sexually assaulted by Tevin Elliott (“Elliott”). (Id. ¶ 27). McCraw allegedly told the unidentified student that she was the sixth student to report a sexual assault by Elliott, that Defendant Briles was aware of the reports, and that “there was nothing the school could do” for the student absent a “court determination” that Elliott had indeed assaulted her. (Id. ¶ 28). Separately, McCraw, Baylor, and Defendant Briles were also allegedly aware that Elliott was cited for misdemeanor sexual assault in November 2011. (Id. ¶ 30).

         III. TITLE IX

         Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in all federally-funded educational programs. 20 U.S.C. § 1681(a). Specifically, it provides:

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.

Id. When Congress first passed Title IX more than forty years ago, it had two related objectives: first, Congress wanted to prevent federal funds from being used to support discriminatory practices; second, it wanted to provide individuals “effective protection against those practices.” Cannon v. Univ. Chic., 441 U.S. 677, 704 (1979); see also 118 Cong. Rec. 5730 (1972) (statement of Senator Birch Bayh) (“The amendment we are debating is a strong and comprehensive measure which I believe is needed if we are to provide women with solid legal protection as they seek education and training for later careers. . . . As a matter of principle, our national policy should prohibit sex discrimination at all levels of education.”). When private universities like Baylor accept funding through various federal programs, including by enrolling students who receive federal funds to pay for their education, they become subject to the requirements of Title IX. See Nat'l Collegiate Athletic Ass'n v. Smith, 525 U.S. 459, 466 (1999).

         Title IX is enforceable through an individual's private right of action and allows for the recovery of damages. Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 639 (1999) (citing Cannon, 441 U.S. 607 and Franklin v. Gwinnett Cty. Public Schs., 503 U.S. 60 (1992)).

         Title IX claims are commonly asserted in response to a student's sexual harassment or assault. The Supreme Court has held that sexual harassment within a school or school program is a form of sex discrimination when the harassment is so severe, pervasive, and objectively offensive that it deprives the victim of educational opportunities or benefits provided by the school. Davis, 526 U.S. at 650. A school can be held liable for such harassment when it is deliberately indifferent to harassment of which it has actual knowledge. Id. This is true regardless of whether the harasser is an employee of the school or another student, but liability under this avenue is limited to circumstances in which the school “exercises substantial control over both the harasser and the context” in which the harassment occurs. Id. at 645. This framework for liability in sexual harassment cases ultimately serves as a proxy for the showing of intentional discrimination that is otherwise required for Title IX claims. Thus, while the school is not itself committing the sexual harassment, it can be said to be intentionally discriminating if it knows of severe and pervasive sexual harassment occurring within its control and, for example, does nothing. Gebser, 524 U.S. at 290.

         In the instant case, Plaintiff alleges two types of Title IX claims. First, Plaintiff alleges what might be considered a “traditional” claim for sexual assault under Title IX. She argues that she was sexually assaulted by a peer at Baylor, that she reported her assault to the university, and that Baylor's deliberately indifferent response to that report deprived her of educational opportunities and benefits provided by the school. The Court will refer to this as Plaintiff's “post-reporting claim.”

         Second, Plaintiff alleges that even prior to her report of sexual assault, Baylor's actual notice of the threat posed by Elliott and other student-athletes and deliberate indifference to that threat- manifested by the university's alleged discouragement of reporting, failure to investigate claims or punish assailants, and perpetuation of a culture in which football players were protected from allegations of misconduct-constituted actionable intentional discrimination that substantially increased ...


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