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Bailey v. New York Law School

United States District Court, S.D. New York

December 27, 2017



          Edgardo Ramos, U.S.D.J.

         Pro se plaintiff Theresa Bailey (“Plaintiff”) brings this action against New York Law School (“NYLS”), Anthony Crowell, Deborah Archer, Howard Meyers, Jeffery Becherer, Erika Wood, Oral Hope, Victoria Eastus, David Schoenbrod, Ella Mae Estrada, and Barbara Graves-Poller (collectively, “Defendants”). Before this Court are (1) Plaintiff's motion to amend the Second Amended Complaint (“SAC”) pursuant to Federal Rule of Civil Procedure 15; and (2) Defendants' partial motion to dismiss the SAC pursuant to Rule 12(b)(6).

         For the following reasons, Plaintiff's motion to amend is GRANTED in part and DENIED in part, and Defendants' motion to dismiss is GRANTED in part and DENIED in part.

         I. BACKGROUND

         The Court presumes familiarity with the facts and procedural history of this case, which are detailed in the March 1, 2017 order (“March Order”), Doc. 24, granting in part and denying in part Defendants' motion to dismiss the First Amended Complaint (“FAC”). It discusses here only those facts necessary for the disposition of the instant motions.

         A. Defendants' Motion to Dismiss the First Amended Complaint

         On July 5, 2016, Plaintiff filed the FAC against the defendants named in the original complaint: NYLS, Anthony Crowell, Deborah Archer, Howard Meyers, Jeffery Becherer, and Erika Wood. Doc. 17. As construed by this Court in the March Order, she asserted the following causes of action: (1) violation of Section 1983, (2) discrimination and retaliation under Title IX of the Education Amendments of 1972, (3) violation of New York General Business Law (“GBL”) Section 349, (4) breach of contract, (5) fraud, and (6) intentional infliction of emotional distress. See March Order at 9-22.

         On August 8, 2016, Defendants filed a motion to dismiss the FAC in its entirety. Doc. 19. Plaintiff filed her opposition brief on September 1, 2016 in which she asserted for the first time new claims under the First Amendment, 42 U.S.C. § 1985(3), and Title VI of the Civil Rights Act of 1964. Doc. 21.

         In the March Order, the Court permitted Plaintiff to proceed on her Title IX retaliation and GBL Section 349 claims against NYLS, granted leave to re-plead her breach of contract and Title VI claims against NYLS, and granted leave to re-plead her fraud, intentional infliction of emotional distress, and Section 1985(3) claims against all Defendants. Id. at 22. The Court denied all remaining claims with prejudice, including her Title IX claims against individual Defendants, Title IX discrimination claim against NYLS, Section 1983 claims, and First Amendment claim. Id.

         B. Second Amended Complaint[1]

         On March 21, 2017, Plaintiff requested leave to add Oral Hope and Victoria Eastus as defendants in her proposed SAC, which the Court granted on March 22, 2017. Docs. 29-31. On March 29, 2017, Plaintiff filed the SAC. Doc. 32. Without receiving prior consent from Defendants or approval from this Court, however, she also (1) named three additional individual defendants (Ella Mae Estrada, David Schoenbrod, and Barbara Graves-Poller); (2) asserted for the first time New York State Human Rights Law (“NYHRL”) claims; and (3) re-alleged the Title IX claims against individual Defendants and the Title IX discrimination claim against NYLS, which were previously dismissed with prejudice in the March Order. Id. Specifically, the SAC asserts the following causes of actions: (1) violation of Title IX against all Defendants, (2) violation of NYHRL against all Defendants, (3) violation of GBL Section 349 against NYLS, (4) breach of contract against NYLS, (5) fraud against all Defendants, (6) intentional infliction of emotional distress against all Defendants, (7) violation of Section 1985(3) against all Defendants, and (8) violation of Title VI against all Defendants. Id.

         The core of Plaintiff's allegations in the SAC are the same as in her FAC: that on October 6, 2014, a male student at NYLS named Stephen Nesbit (“Nesbit”) sexually assaulted her on campus; that Defendants purportedly failed to adequately investigate the incident or discipline Nesbit; and that Defendants retaliated against Plaintiff for reporting the attack. Id. ¶¶ 7-12. The SAC alleges the following facts.

         1. Marketing by NYLS

         Plaintiff alleges that NYLS marketed itself to prospective students as “an oasis for women and minorities.” Id. ¶ 51. NYLS publicized that it admitted more women than men between 2011 and 2014; filed five amicus briefs concerning discrimination against minority groups between 2012 and 2016; published a “Campus Safety Report” showing a lack of any serious misconduct on campus during the 2012 reporting period; lauded minority female students on its website; promoted social justice events that highlighted staff participation; partnered with the Courtroom Advocates Project, which assists victims of domestic violence through courtroom advocacy; and noted in its Code of Conduct and Student Handbook that it was committed to complying with Title IX. Id. ¶¶ 42-46. NYLS also purportedly gave assurances that gender-based harassment and discrimination would not be tolerated and would be adequately adjudicated by NYLS. Id. ¶¶ 46, 52-53.

         Contrary to the information contained in those marketing materials, however, Plaintiff learned of four specific instances of discrimination when she became a student: a black female student reported a classmate for racist remarks; a black female complained about a professor's behavior towards her;[2] a Hispanic female student's books were stolen; and other female students previously reported Nesbit and he was kicked out of class by a female professor. Id. ¶ 48. In addition, the SAC notes that NYLS did not disclose statistics concerning the number and nature of the complaints by students who suffered discrimination, and Plaintiff claims that such information would have been relevant to deciding if she wanted to attend a law school and “if [NYLS is] worth more than $200, 000.” Id. ¶ 49.

         2. Alleged Contractual Provisions

         Plaintiff further alleges that NYLS made the following representations in either the Code of Conduct, the 2012-2013 Student Handbook or in its admissions letter to her:

• NYLS “does not discriminate on the basis of . . . any other classification protected by federal, state, and local law, in the administration of any of its educational programs and activities.” Id. ¶ 71 (NYLS's non-discrimination policy).
• “Conduct for which disciplinary action may be taken shall include . . . intentionally [or] . . . recklessly . . . attempting . . . or threatening . . . [to] injur[e] members of the Law School . . . [or to] [w]rongfully depriv[e] members . . . of services or opportunities.” Id. ¶ 62 (2012-2013 Student Handbook Section 1(B)).
• “All New York Law School personnel and students are expected and encouraged to report, and to cooperate in the investigation and [h]earing of, possible violations.” Id. ¶ 65 (2012-2013 Student Handbook Section 3(A)).
• “Refusal by any student to participate as a witness may be considered a violation of section 3F of this Code.” Id. ¶ 67 (2012-2013 Student Handbook Section 4(C)).
• “The Fact Finder is responsible for gathering and presenting information in an impartial and thorough manner, ” and the investigation and the Investigation Panel “should be impartial and thorough.” Id. ¶¶ 63, 66 (2012-2013 Student Handbook Section 2(3)).
• “The Investigation Panel shall review the report of the Fact Finder and any relevant written materials.” Id. ¶ 66 (2012-2013 Student Handbook Section 3(D)).
• Dean Anthony Crowell “may take action to deal with situations of an emergency nature posing a threat to the safety or health of the Law School.” Id. ¶ 59 (2012-2013 Student Handbook Section 1(C)(3)).
• Dean Anthony Crowell “may meet with the Student [at his or her request] to consider reasons why the report of the Panel should or should not be adopted before the Dean makes a determination.” Id. ¶ 68 (2012-2013 Student Handbook Section 5(C)).
• “No seriously impaired individual should be allowed to leave the Law School premises by him/herself.” Id. ¶ 69 (2012-2013 Student Handbook at 32).[3]
• “New York Law School is committed to providing you with the best tools available . . . [T]he benefits of your education will be substantial . . . [W]e look forward to making your education as rewarding as possible . . . [C]all, or write to [Crowell] via e-mail.” Id. ¶ 56 (Admissions Letter from Crowell).

         3. Alleged Improper Handling of Plaintiff's Report

         Plaintiff alleges that she reported the October 6, 2014 incident to Oral Hope, the Assistant Dean and Registrar, and Victoria Eastus, Assistant Dean of Academic Affairs and the Title IX Coordinator, on October 7, 2014. Id. ¶¶ 3, 20-21, 65. However, they allegedly failed to adequately assist Plaintiff. Id. ¶¶ 17, 19-22, 28, 76-78, 81, 92. Specifically, in various conversations between October 7 and October 22, 2014, Hope declined to answer whether the surveillance cameras in the hall where the incident took place were working, what the campus security protocol was for such incidents, and why security did not come for her after she was escorted to her classroom by another male student. Id. ¶¶ 19, 77. Instead, he simply responded that Nesbit was no longer on campus. Id. During conversations she had with Eastus in that same time period, Eastus answered that Nesbit was “good” and “well-liked” in response to Plaintiff's questions concerning whether she was targeted by Nesbit because she was a woman. Id. ¶¶ 20, 76.

         Plaintiff alleges that notwithstanding their responses to her inquiries, Hope and Eastus had access to information that they did not share with her showing that Nesbit had previously targeted women on campus, and that these women reported the incidents. Id. ¶¶ 21-22, 78. Instead, Eastus allegedly stated that NYLS had not received other complaints about Nesbit. Id. ¶ 76. Plaintiff states that had she known about the other complaints, she would have concluded that NYLS was not competent to handle her complaint, and reported Nesbit to the police. Id. ¶ 78.

         Four days after the incident, on October 10, 2014, Meyers, the Chair of the Harassment and Discrimination Review Board at NYLS, convened an Investigation Panel consisting of Becherer, Assistant Dean for Career Planning, and Wood, Associate Professor of Law, to investigate the incident. SAC Ex. B (“Investigation Report”) at 1. The Investigation Panel interviewed Plaintiff on October 20, 2014[4] and November 5, 2014. Id. at 3.

         On October 26, 2014, prior to the issuance of the Investigation Report, Plaintiff sent Crowell, the Dean, and Archer, the Dean of Diversity & Inclusion and Director of the Racial Justice Project, an email concerning the incident and NYLS's alleged mishandling of her complaint. SAC ¶¶ 3, 24; SAC Ex. A (“May 3, 2016 Email”) at 5. This email was considered her “formal written complaint.” Investigation Report at 1; SAC Ex. C at 2. In her email to Crowell and Archer, Plaintiff stated, inter alia, that NYLS personnel had acted improperly after she reported Nesbit's harassment. See SAC Ex. F. She alleges that Crowell never responded to the email, and that when she met with Archer to discuss it, she was “oppositional, abrasive, hostile, and defensive.” SAC ¶¶ 25-26, 57. Plaintiff then contrasts how she was treated by Crowell with the way he treated two male NYLS students. Id. ¶ 26. She notes that after a white male student was “found sleeping in the school after hours, ” Crowell personally hired him for an NYLS work-study position in which he reported directly to Crowell. Id. ¶¶ 26, 58. Crowell also recommended another male student, with a grade point average below 2.5, for a legal job upon request. Id. ¶¶ 26, 60. Moreover, Crowell did not meet with Plaintiff about her concerns, but he did meet with Nesbit. Id. ¶ 82.

         As part of the investigation, the Investigation Panel reviewed Plaintiff's written complaint; a report from a security officer; security camera footage; interviews with Plaintiff, Nesbit and a witness to the incident; and conversations with certain school administrators. Investigation Report at 2. On November 25, 2014, NYLS adopted the Investigation Panel's findings and recommendations. See id.; May 3, 2016 Email at 5. As adopted by NYLS, the Investigation Report concluded that Nesbit violated Section I.B.2 of the Non-Discrimination and Harassment Policy, which prohibits “subjecting an individual to humiliating, offensive, abusive or threatening conduct that creates 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.” Investigation Report at 1 (emphasis added). It also 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 Non-Discrimination and 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., presumably because Plaintiff was a night student, thereby minimizing the likelihood that the two would come into contact; (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. 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. at 5.

         Despite the findings in her favor, Plaintiff disagreed with the Investigation Panel's recommendation, and moved for a rehearing. SAC Ex. C at 2. The rehearing was initially scheduled for March 19, 2015, but was rescheduled because Nesbit failed to appear. Id. On March 26, 2015, the rehearing was held. Id. Although Plaintiff does not describe the results in detail, it appears that NYLS did not change its decision and allowed Nesbit to graduate from NYLS. May 3, 2016 Email at 3, 5; SAC ¶ 25.

         Plaintiff claims that the investigation and the hearing were inadequate. Specifically, Plaintiff objects that NYLS wrongfully allowed the male student who had witnessed the incident to refuse to testify at the hearing, and failed to resolve whether there was staff misconduct during the investigation. SAC ¶¶ 18, 67. Moreover, Nesbit claimed to NYLS that he did not abuse alcohol and did not commit any misconduct on campus against other females. Id. ¶¶ 18, 63, 64, 67. Although NYLS had written complaints that showed Nesbit's statements to be false, NYLS allegedly accepted his testimony.[5] Id.

         4. ...

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