Goldblum v. Univ. of Cincinnati

• Decision Date: 25 November 2019
• Docket Number: Case No. 1:19-cv-398
• Citation: 415 F.Supp.3d 799
• Parties: Andrea GOLDBLUM, Plaintiff, v. The UNIVERSITY OF CINCINNATI, Defendant.
• Court: U.S. District Court — Southern District of Ohio

415 F.Supp.3d 799

Andrea GOLDBLUM, Plaintiff,

v.The UNIVERSITY OF CINCINNATI, Defendant.

Case No. 1:19-cv-398

United States District Court, S.D. Ohio, Western Division.

Signed November 25, 2019

Jim L. Hardin, Joshua A. Engel, Engel & Martin, LLC, Mason, OH, for Plaintiff.

Reid T. Caryer, Ohio Attorney General's Office, Education Section, Erin Elizabeth Butcher, Marissa J. Palumbo, Ohio Attorney General's Office Employment Law Section, Columbus, OH, for Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

Judge Susan J. Dlott, United States District Court

This matter is before the Court on the Magistrate Judge's Report and Recommendation (Doc. 17) that Defendant's Motion to Dismiss(Doc. 7) be denied as to Count 1 (Plaintiff's Title IX retaliation claim) but granted as to Count 2 (Plaintiff's Title VII retaliation claim).Both parties filed objections (Docs. 18 and 21) and responded to the other party's objections (Docs. 22 and 23).For the reasons set forth below, the Court will adopt the Report and Recommendation (Doc. 17) and grant in part and deny in part Defendant's Motion to Dismiss(Doc. 7).

I.BACKGROUND

A.Facts Alleged

From June 2018 until March 15, 2019, PlaintiffAndrea Goldblum served as the Title IX Coordinator for Defendant University of Cincinnati ("UC").According to her Complaint, the events ultimately leading to her discharge began at another university years before she arrived at UC.¹

In 2014, a Bowling Green State University("BGSU") sophomore was determined to have engaged in "sexual contact without permission," and BGSU officials suspended him.(Complaint, Doc. 1 at PageID 7.)The student pled no contest to one count of gross sexual imposition in an Ohio state court related to that incident.(Id. at PageID 6.)

Ultimately, the former BGSU student enrolled at UC.In January 2019, the UC College of Arts and Sciences published an article highlighting "students who show the passion and drive to complete their degree despite facing ... roller-coaster challenges."(Id. at PageID 7.)The former BGSU student was selected for the honor of wearing a "triumph cord" at his UC graduation to "showcase the level of adversity the students have gone through and signal that they have overcome it ... [as UC] reserves this distinction for students whose stories show how overcoming major challenges can lead to triumph."(Id. )

Although the article did not detail the student's "challenges," other UC students soon discovered that the student was a convicted sex offender who had been suspended from BGSU for sexual misconduct.(Id. at PageID 7.)Plaintiff alleges that "[m]any students at UC, including survivors of sexual assault, responded negatively to the article ... [and] indicated they did not feel safe on campus and were traumatized to learn that a sex offender had been living and studying amongst them without their knowledge."(Id. )When the UC College of Arts and Sciences tweeted about the student overcoming his "immaturity" and added "#TriumphCord," replies included comments critical of UC, such as "#RapeCultureLivesHere,""#RapistsAreSafeHere," and "Good to know our local college is out here supporting rapists. #boycottUC."(Doc. 1 at PageID 8–9.)Similar comments were made to the UC College of Arts and Sciences Facebook post celebrating the student, including "Applauding sexual predators is a slap in the face to student survivors [so][t]his post should be removed" and "how many people would I have to rape, theoretically, to get an award from you University of Cincinnati? ?"(Id. at PageID 9–10.)

In February 2019, Plaintiff Goldblum became aware of the social media attention surrounding this student and the award UC had given to him.(Doc. 1 at PageID 10–11.)Students complained to Goldblum that giving this student an award contributed to a hostile learning environment for others at UC.(Id. at PageID 11.)Goldblum, in her role as Title IX Coordinator, informed UC administrators that UC "was required to provide adequate resources to these students and was failing to do so."(Id. at PageID 12.)

Goldblum drafted a letter "addressing the students who had complained and listing possible resources."(Id. )UC administrators deemed the letter unsatisfactory and advised Goldblum not to publish the letter.(Id. )Goldblum revised the letter and informed UC administrators that she planned to send the letter to the UC student newspaper for publication.(Id. at PageID 12–13.)When Goldblum received no prompt response from UC administrators, she sent the revised letter to the student newspaper.(Id. at PageID 13.)

Administrators later expressed anger at Goldblum for sending the letter and advised her not to "ever do anything like that again."(Id. at PageID 13.)The UC student newspaper never published the letter, and Goldblum believed the matter had been resolved.(Id. )

On February 15, 2019, the student newspaper published an article noting the "backlash" on social media and stating that "faculty nominators [and others] were all unaware of [the student's] criminal history."(Id. )Goldblum then initiated an informal investigation to determine "whether any UC personnel had knowledge that [the student] was a convicted sex offender either prior to his admission or prior to his receipt of an award."(Doc. 1 at PageID 14.)Goldblum also inquired "into whether his admission or presence on campus with minimal restrictions and without informing the student body violated any of the UC Title IX policies."(Id. )

On March 15, 2019, UC administrators informed Goldblum that sending the letter to the student newspaper constituted insubordination for which she would be terminated effective immediately.(Id. )In lieu of termination, Goldblum was permitted to resign.(Id. at PageID 15.)Goldblum alleges UC constructively discharged her for investigating, complaining about, and reporting potential Title IX violations related to the admission of and the award given to the student at issue.

B.Procedural Posture

Plaintiff Goldblum filed this action alleging that her constructive discharge constituted unlawful retaliation in violation of Title IX,20 U.S.C. § 1681, andTitle VII,42 U.S.C. §§ 2000e, et seq.Defendant UC filed a Motion to Dismiss the Complaint for Failure to State a Claim pursuant to Federal Rule of Civil Procedure 12(b)(6).(Doc. 7.)This Court referred the case to a magistrate judge pursuant to 28 U.S.C. § 636(b).

On October 21, 2019, Magistrate Judge Stephanie K. Bowman issued a Report and Recommendation on UC's Motion to Dismiss.(Doc. 17.)Magistrate Judge Bowman recommended that UC's Motion to Dismiss be denied on Count I (Goldblum's Title IX retaliation claim).However, because Goldblum does not allege that she opposed a discriminatory employment practice as protected by Title VII, Magistrate Judge Bowman recommended that UC's Motion to Dismiss be granted on Count II (Goldblum's Title VII retaliation claim).²

Goldblum objected to the recommended dismissal of her Title VII claim"solely for the purposes of retaining any applicable appellate rights."(Doc. 18 at PageID 126.)UC objected to the recommended denial of its Motion to Dismiss as to Goldblum's Title IX claim, contending that the Magistrate Judge erred in failing to apply the manager rule to a Title IX retaliation claim brought by a Title IX coordinator.(Doc. 21.)

II.MOTION TO DISMISS

Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint for "failure to state a claim upon which relief can be granted."Fed. R. Civ. P. 12(b)(6).To withstand a motion to dismiss, a complaint must comply with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief."Ashcroft v. Iqbal , 556 U.S. 662, 677–78, 129 S.Ct. 1937, 173 L.Ed.2d 868(2009)(quotingRule 8(a)).

A complaint must include sufficient facts to state a claim that is plausible on its face and not speculative.Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007)."A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.Mere "labels and conclusions [or] a formulaic recitation of the elements of a cause of action" will not suffice.Twombly , 550 U.S. at 555, 127 S.Ct. 1955.A district court examining the sufficiency of a complaint must accept well-pleaded facts as true, but not legal conclusions or legal conclusions couched as factual allegations.Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937.

Where a motion to dismiss is referred to a magistrate judge for Report and Recommendation, the District Court conducts a de novo review of any properly filed objections to the recommendation.Fed. R. Civ. P. 72(b)(3).The Court may "accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions."Id.

III.ANALYSIS

UC contends that the manager rule should apply to Title IX retaliation claims raised by Title IX coordinators.The Court disagrees.

Courts analyze Title IX retaliation claims using the same standards applied to Title VII retaliation claims.

Doe v. Belmont Univ. , 367 F. Supp. 3d 732, 755(M.D. Tenn.2019);see alsoNelson v. Christian Bros. Univ. , 226 F. App'x 448, 454(6th Cir.2007)("Generally, courts have looked to Title VII,42 U.S.C. §§ 2000e, as an analog for the legal standards in both Title IX discrimination and retaliation claims.").A plaintiff may establish retaliation either through direct or circumstantial evidence.Doe , 367 F. Supp. 3d at 756.If relying on circumstantial evidence of retaliation, the McDonnell Douglas³ burden-shifting framework applies.Id.;Fuller v. Michigan Dept. of Transp. , 580 F. App'x 416, 421(6th Cir.2014).

To establish a prima facie...