United States District Court, S.D. New York
OPINION AND ORDER
Edgardo Ramos, U.S.D.J.
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).
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.
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
Defendants' Motion to Dismiss the First Amended
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
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.
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.
Second Amended Complaint
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
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.
Marketing by NYLS
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.
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
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.
Alleged Contractual Provisions
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
• “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
• “The Investigation Panel shall review the report
of the Fact Finder and any relevant written materials.”
Id. ¶ 66 (2012-2013 Student Handbook Section
• 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).
• “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).
Alleged Improper Handling of Plaintiff's Report
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.
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.
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 and November 5,
2014. Id. at 3.
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.
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.
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.
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. Id.