Litman v. George Mason University, Civ.A. 97-1755-A.

• Decision Date: 07 May 1998
• Docket Number: No. Civ.A. 97-1755-A.,Civ.A. 97-1755-A.
• Parties: Annette Greco LITMAN, Plaintiff, v. GEORGE MASON UNIVERSITY et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

5 F.Supp.2d 366

Annette Greco LITMAN, Plaintiff, v. GEORGE MASON UNIVERSITY et al., Defendants.

No. Civ.A. 97-1755-A.

United States District Court, E.D. Virginia, Alexandria Division.

May 7, 1998.

COPYRIGHT MATERIAL OMITTED

Annette Kay Rubin, Leesburg, VA, for Annette Greco Litman.

Ronald C. Forehand, Asst. Atty. Gen., Richmond, VA, for George Mason University, Geoffrey Orsak, Girard Mulherin.

James V. Ingold, Fairfax, VA, for Eugene M. Norris.

MEMORANDUM OPINION

CACHERIS, District Judge.

This matter comes before the Court on Defendant George Mason University's ("GMU") Motion to Dismiss Counts I and II; Defendant Dean Girard Mulherin's ("Mulherin") Motion for Summary Judgment; Plaintiff's Motion to Exclude Treating Healthcare Providers from the Requirement of Preparing a Written Report Pursuant to Fed.R.Civ. Pro. 26(a)(2)(B); and Plaintiff's Motion to Reconsider the Court's ruling dismissing her Equal Protection claim as to Defendants Orsak and Mulherin.

I.

Plaintiff Annette Greco Litman ("Litman") began attending GMU in the Summer of 1995 as a student in the extended studies program. In the Fall of 1995, she signed up for a computer science class, taught by Professor Norris. Litman also accepted a position as Norris' research assistant. Litman alleges that Norris misrepresented the course requirements to her and that it therefore became necessary for her to seek extra help from Norris. During the period while she was Norris' student and research assistant, Litman alleges that Norris engaged in a course of behavior towards her that began with his paying extra attention to her and sitting close to her, and escalated to the point that, when they would have lunch together, Norris initiated conversations about Litman's marriage, and, specifically, about her sex life with her husband. Litman alleges that Norris was particularly interested in talking about, for example, the fact that Litman and her husband slept in separate beds. Litman claims that this culminated, in November of 1995, in Norris' telling her that he was falling in love with her.

At this point, Litman alleges that she sought the advice of Professor Orsak, an Associate Professor of Electrical and Computer Engineering at GMU. Litman claims that his only response was to suggest that she report any possible sexual assault to the campus police. In January, 1996, Litman states that she terminated her research position with Professor Norris. After this, Norris allegedly sent Litman an e-mail which read: "Don't marry someone you can live with/ Marry someone you can't live without." At this point, Litman began to suffer mentally and physically from the stress of this situation. Again, she sought counsel from Orsak, who, this time, referred her to the Student Development Office.

Norris apparently continued to bother Litman, even looking up her schedule using faculty codes and showing up outside classrooms where he knew that she would be present. As this continued, Litman filed a complaint with the Equity Office.

Litman had trouble finding a Professor to advise her work on her Senior Project after she stopped working for Norris. She claims that she was too emotionally distressed to be in personal contact with any professors. At one point, she was contacted by one of her professors, Dr. Paris, for permission to use her homework as an example for the rest of the class. Litman responded by giving her permission but also sending him an e-mail which she states was "suggestive, sarcastic and angry." She later apologized.

For reasons not fully explained in Plaintiff's Complaint, Professors Paris and Orsak filed a complaint against Litman in the Equity Office that spring, reporting that Litman had been sexually harassing them. Litman was upset, and she proceeded to e-mail faculty members about her concerns regarding her treatment by Paris, Orsak, and Norris. Litman also contacted the Equity Office again, and she also circulated a petition regarding her complaints against Norris.

Litman's hearing was scheduled for May 30. She sought to postpone the disciplinary proceedings, claiming that she needed more time due to her emotional distress and the sedatives she was taking for stress. Her request was denied, and the disciplinary proceedings took place as scheduled on May 30. Dean Mulherin, GMU's Judicial Administrator, was in charge of the proceedings. Litman claims that there were several procedural irregularities, for example, she was not allowed to question Orsak about specific pieces of correspondence which he claimed were harassing. Litman was found guilty. She was permanently expelled from GMU, academic sanctions were imposed regarding her incomplete grades, and she was forbidden to enter any GMU campus or to speak with any of the faculty involved, with the exception of Dean Mulherin.

Litman's sexual harassment claims against Norris were tried on October 17, 1996. The disciplinary panel found that Norris had not violated GMU sexual harassment policy but had failed to live up to GMU "standards" related to that policy. No sanctions were imposed against Norris.

On October 31, 1997, Litman filed her Complaint against GMU, Norris, Orsak, and Mulherin, under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.; 42 U.S.C. § 1983; and state law. She claimed Gender Discrimination in Violation of Title IX (Against GMU) (Count I); Retaliation in Violation of Title IX (Against GMU) (Count II); Deprivation of Free Speech Rights Under Color of Law (Against Orsak, Mulherin and GMU) (Count III); Deprivation of Due Process Under Color of Law (Against GMU, Orsak and Mulherin) (Count IV); Deprivation of Equal Protection Rights Under Color of Law (Against Norris, Orsak, Mulherin, and GMU) (Count V); and Intentional Infliction of Emotional Distress (Against Norris) (Count VI).

By Order dated January 22, 1998, this Court granted Defendant's Motion to Dismiss Count III; granted Defendants' Motion to Dismiss Count IV in part ("Count IV is Dismissed as against Defendants George Mason University and Orsak, but Count IV remains as against Defendant Mulherin"); granted Defendants' GMU, Orsak, and Mulherin's Motion to Dismiss Count V; and denied Defendant Norris' Motion to Dismiss Counts V and VI. The Court deferred ruling on Defendant GMU's Motion to Dismiss Counts I and II, in order to permit the United States an opportunity to intervene in accordance with 28 U.S.C. § 2403(a). On February 18, the Court granted the United States' motion for intervention of right in order to give the United States the opportunity to be heard on the issue of the constitutionality of the abrogation of states' Eleventh Amendment immunity under Title IX. The Court accepted additional briefs from all parties and heard argument from all parties on the abrogation issue on March 12, 1998.

II.

In support of its motion to dismiss Counts I and II, GMU argues that the Eleventh Amendment deprives this Court of jurisdiction over these claims. Specifically, GMU argues that 42 U.S.C. § 2000d-7 is unconstitutional to the extent that it purports to abrogate the States' Eleventh Amendment immunity for Title IX questions.

A.

"The burden of proving subject matter jurisdiction on a Rule 12(b)(1) motion to dismiss is on the plaintiff, the party asserting jurisdiction." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). "[T]he complaint will be construed broadly and liberally, in conformity with the principle set forth in Rule 8(f), but argumentative inferences favorable to the pleader will not be drawn." 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (1990).

[S]ubject matter jurisdiction deals with the power of the court to hear the plaintiff's claims in the first place, and therefore imposes upon courts an affirmative obligation to ensure that they are acting within the scope of their jurisdictional power. Accordingly, upon a challenge to the court's jurisdiction by a party, the court should conduct a careful inquiry and make a conclusive determination whether it has subject matter jurisdiction or not, or at least defer the inquiry if it is intertwined with the merits of the case.

Id. (1997 Pocket Part).

B.

In Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court held that, notwithstanding Congress' clear intent to abrogate the States' sovereign immunity, the Indian Commerce Clause does not grant Congress that power, and therefore the Indian Gaming Regulatory Act cannot grant jurisdiction over a state that does not consent to be sued. More broadly, in overruling its plurality decision in Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989) the Supreme Court limited Congress' authority to abrogate States' Eleventh Amendment immunity to those provisions enacted pursuant to its power under 5 of the Fourteenth Amendment. Id. at 1127.

In overruling Union Gas, the Supreme Court held that, if Congress attempts to abrogate the States' sovereign immunity pursuant to some other source of Congressional power, such as Congress' Article I powers, then the abrogation is invalid:

It was well established in 1989 when Union Gas was decided that the Eleventh Amendment stood for the constitutional principle that state sovereign immunity limited the federal courts, jurisdiction under Article III.... As the dissent in Union Gas recognized, the plurality's conclusion — that Congress could under Article I expand the scope of the federal courts' jurisdiction under Article III — `contradict[ed] our unvarying approach to Article III as setting forth the exclusive catalog of permissible federal court jurisdiction.' Never before the decision in Union Gas had we suggested that the bounds of Article III could be expanded by Congress operating pursuant to any constitutional provision other than the Fourteenth Amendment. Indeed, it had seemed fundamental that Congress could not expand the federal courts beyond the...