United States District Court, S.D. New York
OPINION AND ORDER
Edgardo Ramols, U.S.D.J.
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.
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. ¶
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. Id., Ex.
E at 3.
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.
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.
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.
October 26, 2014, Plaintiff emailed Defendants Crowell and
Archer about the incident. 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.
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.
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.
other incident detailed in the report occurred a little over
one month earlier. 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.
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.
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.
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.
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.
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.
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.
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 ...