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Bailey v. New York Law School

United States District Court, S.D. New York

March 1, 2017



          Edgardo Ramols, U.S.D.J.

         Pro se plaintiff Theresa Bailey (“Plaintiff”) brings this action against New York Law School (“NYLS” or the “School”), Anthony Crowell, Deborah Archer, Howard Meyers, Jeffery Becherer, and Erika Wood (collectively, “Defendants”), alleging, among other things, that Defendants failed to adequately discipline a classmate who assaulted her and then retaliated against her for reporting the attack in violation of Title IX and Section 1983. Before the Court is Defendants' motion to dismiss the Amended Complaint. For the reasons discussed below, Defendants' motion is GRANTED in part and DENIED in part. Plaintiff will be given an opportunity to replead.

         I. BACKGROUND [1]

         A. Factual Background

         Plaintiff is a 32-year-old woman of color and a United States Marine who attended NYLS as an evening student from August 2012 until her graduation in May 2016. Am. Compl. (Doc. 17) ¶ 1. The individual Defendants are all affiliated with the School: Anthony Crowell is the School's Dean; Deborah Archer is the Dean of Diversity and Inclusion and Director of the Racial Justice Project; Howard Meyers is a professor and Associate Director for the Center for Business and Financial Law; Jeffery Becherer is an Associate Dean for Career Planning; and Erika Wood is a professor. Id. ¶ 3.

         Plaintiff's suit centers on an incident that occurred on the campus of NYLS on October 6, 2014. That evening, Plaintiff left a class to use the restroom. Id., Ex. C at 1. In the hallway, she encountered Stephen Nesbit, a 6-foot, 200-pound white student she had theretofore avoided based on observations of him with other women on campus. Id. ¶ 4, Ex. C at 1 (“always too close, making physical contact without permission, interrupting their lives to make space for his agenda, staring for long periods, and ogling our bodies”), Ex. E at 2. Nesbit allegedly trapped Plaintiff so that she could not pass, pushing her into a wall and sliding his body across hers. Id., Ex. E at 2-3. Plaintiff was able to free herself, and when she turned to confront her attacker, she realized his pants were down and his butt and thighs were exposed. Id. ¶ 4, Ex. E at 3. According to Plaintiff, Nesbit was “clearly on drugs.” Id. ¶ 4. “His eyes were red and glazed over, he was drooling, his chest was rising and falling, he was clenching and unclenching his fists, and his shoulders were rounded in an aggressive posture.” Id., Ex. E at 3. Nesbit began walking towards Plaintiff, and Plaintiff headed towards a stairwell. Id., Ex. E at 3. There she encountered Paul Metcalf, another student. Id., Ex. A at 2, Ex. E at 3. Plaintiff told Metcalf what had just occurred, and Metcalf walked her back to her class and then reported the incident to a School security officer.[2] Id., Ex. E at 3.

         The following day, Plaintiff reported the incident to Oral Hope, the School's Registrar Dean; Victoria Eastus, the School's Title IX coordinator; and Sally Harding, the School's Director of Student Life. Id. ¶ 4. Hope allegedly told Plaintiff that Nesbit was “no longer at NYLS.” Id. ¶ 5. Days later, Eastus allegedly characterized Nesbit as “well-liked” and “good” and told Plaintiff that NYLS had no other complaints about him. Id. Plaintiff did not initially report the incident to the police, because of the fact that Nesbit had been removed from campus. Id., Ex. C at 3.

         On October 10, 2014, Defendant Meyers, serving as Chair of the School's Harassment and Discrimination Review Board (“Board”), convened an Investigation Panel (“Panel”) to investigate the October 6, 2014 incident and record its findings and recommendations, pursuant to the School's Non-Discrimination and Harassment Policy (“Harassment Policy”). Id., Ex. A at 1. The Panel consisted of Defendants Becherer and Wood. Id. Plaintiff was interviewed by the Panel on October 20, 2014, and she described feeling scared, unsafe, and vulnerable on campus as a result of the incident. Id., Ex. A at 3. Plaintiff also alleges that as a result of the incident, she suffered panic attacks in the hallways of the School and had to leave class numerous times because of her emotional distress. Id., Ex. C at 2, Ex. E at 3. Plaintiff talked to School Deans regarding her safety concerns, but she was dissatisfied with the way her concerns were addressed. Id., Ex. E at 3.

         On October 23, 2014, after being assessed by a mental health professional, Nesbit was permitted to return to NYLS. Id. ¶¶ 5, 8, Ex. C at 3. According to Plaintiff, Nesbit told the mental health professional that he had not engaged in any other incidents at NYLS and that he had no history of alcohol abuse. Id., Ex. C at 3. Based on the information Nesbit provided, the mental health professional determined that Nesbit was not a threat to himself or others. Id. Upon learning that Nesbit was returning to campus, Plaintiff attempted to report the attack to the police. Id. ¶ 5, Ex. C at 3. The police allegedly told her that too much time had passed to arrest Nesbit or to obtain a temporary restraining order against him. Id. ¶ 5, Ex. E at 3.

         On October 26, 2014, Plaintiff emailed Defendants Crowell and Archer about the incident.[3] Id. ¶ 6. Crowell never responded, but the next day, Plaintiff met with Archer. Id. ¶ 6, Ex. B at 2. According to Plaintiff, Archer was “hostile” and suggested that Plaintiff had failed to report the incident to the appropriate employee. Id. ¶ 6. Plaintiff met with the Panel again on November 5, 2014 and again described feeling scared, unsafe, and vulnerable on campus. Id., Ex. A at 3.

         Sometime thereafter, the Panel issued its findings and recommendations, which the Board adopted on November 25, 2014. Id. ¶ 7, Ex. A. The Panel's findings-which were based on a report from a security officer, security camera footage, interviews with Plaintiff, Nesbit, and Metcalf, and conversations with certain School administrators-largely tracked Plaintiff's allegations regarding what took place on October 6, 2014. Id., Ex. A at 2. According to the report, Nesbit did not deny any of Plaintiff's allegations regarding the attack. Id., Ex. A at 3. Instead, he stated that he was under the influence of prescription medication that day and claimed to have no memory of being on campus that night. Id., Ex. A at 3.

         The report also detailed the Panel's findings regarding two other incidents involving Nesbit. One of the incidents occurred shortly after Plaintiff's encounter on the same evening. A female student was walking down a stairwell when she observed Nesbit sitting on the bottom stair, talking to himself. Id. As the student walked past him, he looked up and made eye contact with her, appearing upset and angry. Id. The student continued walking, and Nesbit began to follow her. Id. When she sat down on a couch outside a classroom, Nesbit sat down on a couch opposite hers. Id. He stared at her with bloodshot eyes for approximately one minute and appeared to be trying to get her attention. Id. He attempted to put his hands in his jacket pockets, but fumbled and was unable to do so. Id. The student was made uncomfortable by Nesbit's stares, and she got up, walked to the security desk, and reported the incident. Id., Ex. A at 3-4. As with the incident involving Plaintiff, Nesbit did not deny any of these allegations, but instead claimed to have no memory of being at the School that evening. Id., Ex. A at 4.

         The other incident detailed in the report occurred a little over one month earlier.[4] On August 28, 2014, two female students separately reported to security that Nesbit approached them in an unwelcomed manner at the School while he was inebriated. Id., Ex. A at 1. Nesbit approached the first student between 3:00 and 3:30 p.m., and he flirted with her and spoke about being her friend. Id. Once he left, the student called security and reported the incident. Id. Shortly thereafter, Nesbit sat down near the second student and began speaking with her, telling her that he was her friend and could help her. Id. The student told him to leave her alone. Id. Security officers observed Nesbit speaking to the second student, observed that he appeared drunk and smelled like alcohol, and escorted him off campus. Id. Nesbit admitted to the Panel that he was intoxicated on campus that day. Id.

         Based on the foregoing findings of fact, the Board concluded that Nesbit had violated Section I.B.2 of the Harassment Policy, which prohibited “subjecting an individual to humiliating, offensive, abusive or threatening conduct that creates an intimidating, hostile or abusive work, residential or academic environment, . . . or unreasonably interferes with an individual's academic . . . performance on the basis of the individual's Protected Classification.” Id., Ex. A at 1, 4. The Board issued a number of sanctions against Nesbit, including: (1) prohibiting him from appearing on campus until January 11, 2015 and restricting his presence on campus thereafter to only his classes and co-curricular activities; (2) placing him on probation through his graduation at NYLS, meaning that any further Harassment Policy violation would result in his immediate expulsion; (3) permitting him to enroll only in classes that met between 9:00 a.m. and 5:40 p.m.; (4) preventing him from enrolling in any classes in which Plaintiff was enrolled; (5) requiring him to obtain approval of his schedule from the Assistant Dean for Academic Affairs; and (6) requiring him to attend a harassment training program. Id., Ex. A at 4-5. Furthermore, following his graduation from NYLS, Nesbit would be permitted to appear on campus only to attend a bar review course, and upon completing the bar examination in July 2015, Nesbit would be prohibited from appearing on campus until Plaintiff graduated and completed her bar examination. Id., Ex. A at 5.

         Dissatisfied with what she considered to be inadequate sanctions, Plaintiff appealed the Board's decision and requested a hearing, which was held in March or April 2015. Id. ¶¶ 7, 8, Ex. B at 2, Ex. E at 4. Plaintiff noted in her appeal that Nesbit lied on his safety risk evaluation and that the hearing took place after an unreasonable delay. Id. ¶ 8. On April 9, 2015, Plaintiff received NYLS's final decision on the matter. Id., Ex. D. Nesbit was not expelled, and he was able to graduate in 2015. Id. ¶ 8, Ex. E at 1, 4.

         In light of the way the School handled the matter, Plaintiff made the decision to transfer to another law school. Id. ¶ 9, Ex. D. In April 2015, she wrote to Defendant Crowell, as well as several professors at the School, seeking assistance. Id., Ex. C at 3-4, Ex. D. Plaintiff also met with Crowell in June 2015, along with an individual from the Admissions Office who was supposed to aid her transfer. Id. ¶ 6. According to Plaintiff, her transfer application was returned unread because she was unable to obtain a letter of recommendation from a NYLS professor. Id. ¶ 9, Ex. E at 1, 4.

         Unable to transfer to another school, Plaintiff returned to NYLS for the fall 2015 semester. Id., Ex. E at 1. That semester, Plaintiff received the worst grades of her law school career, including a D and an F. Id. ¶ 10, Ex. E at 1, Ex. F at 2. Plaintiff requested that the School investigate whether she received poor grades in retaliation for her complaints about Nesbit, specifically naming two NYLS professors, Barbara Graves-Pollar and David Schoenbrod. Id. ¶ 11, Ex. E at 1. Plaintiff is not aware of any investigation by the School into her claims. Id. ¶ 11.

         B. Procedural Background

         On April 29, 2016, Plaintiff filed suit against Defendants in the Supreme Court of the State of New York, New York County, alleging a host of federal and state law claims. Doc. 1, Ex. A. On June 8, 2016, Defendants removed the case to this Court. Doc. 1. Defendants thereafter filed a letter, in accordance with this Court's Individual Practices, requesting a pre- motion conference and leave to file a motion to dismiss the Complaint. Doc. 14. Plaintiff responded to Defendants' letter, Doc. 16, and on June 30, 2016, a pre-motion conference was held. At the conference, the Court heard arguments regarding Defendants' proposed motion to dismiss. The Court granted Plaintiff leave to amend her Complaint, and Defendants were granted leave to file a motion to dismiss the amended version of the pleading.

         On July 5, 2016, Plaintiff filed her Amended Complaint. Doc. 17. Plaintiff alleges federal claims under Title IX and Section 1983, as well as a number of claims under state law. Id. at 4. Plaintiff seeks $5 million in damages to cover, among other things, her paid tuition to the School, lost wages, pain and suffering, and punitive damages. Id. On August 8, 2016, Defendants filed their motion to dismiss the Amended Complaint. Docs. 19-20. Plaintiff filed her opposition brief on September 1, 2016, Doc. 21, and on September 21, 2016, Defendants filed their reply, Doc. 22.


         When ruling on a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). The Court is not required to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Id. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). More specifically, the plaintiff must allege sufficient facts to show ...

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