Pogorzelska v. Vandercook Coll. of Music, No. 1:19 CV 05683

• Citation: 442 F.Supp.3d 1054
• Decision Date: 02 March 2020
• Docket Number: No. 1:19 CV 05683
• Parties: Erika POGORZELSKA, Plaintiff, v. VANDERCOOK COLLEGE OF MUSIC and Eric Ballenger, Defendant.
• Court: U.S. District Court — Northern District of Illinois

442 F.Supp.3d 1054

Erika POGORZELSKA, Plaintiff,

v.VANDERCOOK COLLEGE OF MUSIC and Eric Ballenger, Defendant.

No. 1:19 CV 05683

United States District Court, N.D. Illinois, Eastern Division.

Signed March 2, 2020

Jeffrey R. Kulwin, Rachel Anne Katz, Kulwin, Masciopinto & Kulwin, LLP, Chicago, IL, for Plaintiff.

Mark J. Galler, Mark Galler Law, LLC, Oak Park, IL, Ian Matthew Sherman, Molly E. Thompson, Dykema Gossett PLLC, Chicago, IL, for Defendants.

MEMORANDUM OPINION & ORDER

MARVIN E. ASPEN, District Judge:

Plaintiff Erika Pogorzelska ("Plaintiff") alleges that she was sexually assaulted and battered by her classmate, Defendant Eric Ballenger ("Ballenger"). She relatedly alleges that her school, Defendant VanderCook College of Music ("VanderCook"), failed to conduct a reasonable investigation into her allegations and then retaliated against her in violation of Title IX of the Education Amendments Act of 1972 ("Title IX"), 20 U.S.C. § 1681, et seq. (Complaint (Compl.) (Dkt. No. 1) ¶ 1.) Plaintiff alleges four counts: (I) deliberate indifference in violation of Title IX against VanderCook; (II) retaliation in violation of Title IX against VanderCook; (III) assault against Ballenger; and (IV) battery against Ballenger. Presently before us are two motions to dismiss filed individually by the defendants. (VanderCook's Mot. to Dismiss ("VanderCook MTD") (Dkt. No. 10); Ballenger's Mot. to Dismiss ("Ballenger MTD") (Dkt. No. 15).) For the reasons set forth below, we grant VanderCook's motion in part and deny it in part, and we deny Ballenger's motion.

BACKGROUND

The following facts are taken from Plaintiff's Complaint and are deemed true for the purposes of this motion. See Bell v. City of Chi. , 835 F.3d 736, 738 (7th Cir. 2016) ; see also Tamayo v. Blagojevich , 526 F.3d 1074, 1081 (7th Cir. 2008). Plaintiff is a former VanderCook student who alleges that she was sexually assaulted and battered by her classmate, Ballenger, during their sophomore years at VanderCook. (Compl. ¶¶ 8–10.) VanderCook is a higher education institution that receives federal funds within the meaning of 20 U.S.C. § 1681(a). (Id. ) We review the facts chronologically.

Both Plaintiff and Ballenger majored in music education and first met one another during freshman orientation. (Id. ¶ 11.) Due to VanderCook's small size (about 100 students) and the fact that they shared majors, they were often in the same classes and college-sponsored activities. (Id. ¶¶ 11–12.)

On August 25, 2017, Plaintiff attended a party thrown by VanderCook students at Ballenger's apartment. (Id. ¶ 15.) During the party, Ballenger allegedly sexually assaulted Plaintiff while she was unconscious, at times asleep, and intoxicated. (Id. ¶ 16.) Four days later, on August 29, 2017, Plaintiff reported the sexual assault to the Chicago Police Department after treatment by a doctor at Rush Hospital. (Id. ¶ 17.) She was also referred to Rape Victim Advocates ("RVA"), a non–profit organization that provides resources and support for survivors of sexual violence. (Id. )

On August 30, 2017, Plaintiff reported the sexual assault to VanderCook through its Title IX representative, Dr. Tsai. On the same day, Dr. Tsai notified VanderCook's Dean of Undergraduate Studies, Dean Dolan, to notify of Plaintiff's report. (Id. ¶ 19.) Dr. Tsai and Dean Dolan then met, and Dr. Tsai told Dean Dolan that Plaintiff had reported that Ballenger sexually assaulted her at an off-campus party. (Id. ) Dean Dolan then emailed and met with Plaintiff. (Id. ¶ 20.) At the meeting, Plaintiff told Dean Dolan the details of the assault and named individuals who might have witnessed the events relating to the sexual assault. (Id. ) Dean Dolan discussed immediate accommodations with Plaintiff, including imposing a No Contact Order and possibly changing Plaintiff's class schedule to prevent Plaintiff from interacting with Ballenger. (Id. ¶ 21.) Additionally, Dean Dolan explained that an investigation with VanderCook's Standards Committee would take place. (Id. ¶ 22.) On the same day, Dean Dolan and Professor Eccles met with Ballenger. (Id. ¶ 24.) Ballenger also provided a list of witnesses. (Id. ) During the meeting, they instructed Ballenger to have no contact with Plaintiff going forward. (Id. )

VanderCook investigated Plaintiff's sexual assault report between August 30, 2017 and September 5, 2017. (Id. ¶ 25.) As part of that investigation, Dean Dolan and Professor Eccles met with seven students. (Id. ¶ 26.) They asked those students to explain their perspectives of any events that occurred at the party. (Id. ) During this time period, Plaintiff saw and interacted with Ballenger in classes and required college-sponsored activities. (Id. ¶ 25.)

On September 5, 2017, Dean Dolan¹ and Professor Eccles met to review the evidence and discuss any new evidence that may have been presented. (Id. ¶ 27.)

Before the results of the investigation were released, Plaintiff went to Dean Dolan's office after meeting with a school counselor on September 6, 2017. (Id. ¶¶ 28–29.) She reported to Dean Dolan that she was harmed by the fact that the No Contact Order was not enforced as Ballenger was in both her classes and required college-sponsored activities. (Id. ) Specifically, she told Dean Dolan that she "just couldn't do this" anymore and that she has "tried, but everything on this campus reminds [her] of [Ballenger]" and that she "can't make music with that monster." (Id. ¶ 28.) Dean Dolan responded by stating that it was difficult to do anything to protect Plaintiff from having to interact or be in the same classes as Ballenger because it was a small school. (Id. ¶ 29.) Dean Dolan gave Plaintiff three options: (1) continue at VanderCook with some accommodations to Ballenger's schedule; (2) withdraw from all but her theory and sightseeing courses; or (3) withdraw completely. (Id. )

Five days later, on September 11, 2017, Plaintiff returned to Dean Dolan's office to ask follow-up questions. (Id. ¶ 30.) These follow-up questions pertained to her financial aid and grants, as well as request an independent study for her music history class so that she would not have to attend class with Ballenger. (Id. ) Dean Dolan rejected Plaintiff's request. (Id. ¶ 31.) Dean Dolan further explained that if Plaintiff were to drop out of school, she would not receive any credit for the semester and would still be responsible for the semester's tuition. (Id. )

On September 12, 2017, Dean Dolan and Professor Eccles met to finalize their investigation. (Id. ¶ 32.) By that time, they had not given Plaintiff the chance to learn of what evidence Ballenger had presented or to rebut any such evidence or information. (Id. ¶ 34.) Nor did they do so with the information that they learned from their interviews of student witnesses. (Id. ¶ 35.) Nor was there a hearing regarding Plaintiff's allegations against Ballenger. (Id. ¶¶ 27, 36.) At this meeting, both Dean Dolan and Professor Eccles determined for reasons unknown² to Plaintiff that "there was not a preponderance of the evidence against [Ballenger]" yet they sanctioned Ballenger anyways. (Id. ¶ 37.) Ballenger's sanctions included: (a) sexual misconduct training; (b) stepping back from leadership positions for the fall semester; (c) participation in a mediated meeting between Plaintiff and Ballenger to begin the healing process; and (d) a report of the incident would remain in Ballenger's official file until graduation. (Id. 37.)

Following this outcome, Plaintiff contacted Life Span to assist her. (Id. ¶ 39.) Life Span is an advocacy organization for survivors of sexual assault and domestic violence. (Id. ) Life Span contacted VanderCook on Plaintiff's behalf. (Id. ¶ 39.) Two days later, on September 14, 2017, Life Span met with Dean Dolan and Plaintiff to go over the investigation and look into Plaintiff's options. (Id. ¶ 40.) VanderCook's procedure did not provide for any appeal process. (Id. ) Dean Dolan provided Life Span with VanderCook's findings. (Id. ) Those findings included the list of sanctions highlighted above and a finding that he was "guilty but not guilty." (Id. )

The next day, Plaintiff emailed Dean Dolan that she intended to remain enrolled in school. (Id. ¶ 41.)

Plaintiff alleges that she reported Ballenger's numerous violations of the No Contact Order to VanderCook. (Id. ¶ 44.) Yet VanderCook did not enforce the No Contact Order. (Id. ) Examples of Ballenger's alleged violations of the No Contact Order include: signing up for a pep band extracurricular activity after Plaintiff had already signed up, having his friends video-conference him to watch a friend's live recital performance despite being instructed not to attend the recital because Plaintiff would be present, and sitting directly in front of Plaintiff in class on multiple occasions. (Id. ¶ 43.)

On or about October 2, 2017, Plaintiff met with Dean Dolan about a report that Ballenger was not adhering to the No Contact Order. (Id. ¶ 45.) During that meeting, Dean Dolan allegedly became hostile towards Plaintiff and said something like "Why are you blaming and attacking the school, it is not the school's fault that there were drugs and alcohol at the party" and that "there is nothing else the school can do for you." (Id. ) Dean Dolan also asked Plaintiff why she was so angry and recommended that "instead of being angry you should use that energy to focus and better yourself." (Id. )

Plaintiff alleges that she was continually harassed and retaliated against by fellow students who were the perpetrator's friends. (Id. ¶ 46.) She reported several of these incidents to Dean Dolan in writing. (Id. ) Plaintiff alleges that VanderCook did not adequately investigate those reports and failed to protect Plaintiff from further ongoing harassment and retaliation. (Id. ) For example, on October 12, 2017, it was brought to Dean Dolan's attention via email that friends of Ballenger were harassing Plaintiff through inappropriate and aggressive comments. (Id. at ¶...