Rex v. W. Va. Sch. of Osteopathic Med.

• Decision Date: 11 August 2015
• Docket Number: Civil Action No. 5:15–cv–01017.
• Citation: 119 F.Supp.3d 542
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Nicole REX, Plaintiff, v. WEST VIRGINIA SCHOOL OF OSTEOPATHIC MEDICINE, et al., Defendants.

119 F.Supp.3d 542

Nicole REX, Plaintiff,

v.WEST VIRGINIA SCHOOL OF OSTEOPATHIC MEDICINE, et al., Defendants.

Civil Action No. 5:15–cv–01017.

United States District Court, S.D. West Virginia.

Signed Aug. 11, 2015.

James R. Marsh, Marsh Law Firm, White Plains, NY, Jennifer Freeman, Marsh Law Firm, New York, NY, Rachel Hanna, Law Office of Rachel Hanna. Lewisburg, WV, for Plaintiff.

David E. Schumacher, Michael W. Taylor, Bailey & Wyant, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

IRENE C. BERGER, District Judge.

The Court has reviewed the Plaintiff's First Amended Complaint (Document 7), Defendant West Virginia School of Osteopathic Medicine's Motion to Dismiss (Document 12), the Memorandum of Law in Support of Defendant West Virginia School of Osteopathic Medicine's Motion to Dismiss (Document 13), Defendants Michael Adelman, Leslie Bicksler and Elaine Soper's Motion to Dismiss (Document 16), the Memorandum of Law in Support of Defendants Michael Adelman, Leslie Bicksler and Elaine Soper's Motion to Dismiss (Document 17), the Plaintiff's Memorandum in Opposition to Motions to Dismiss by Defendants West Virginia School of Osteopathic Medicine, Michael Adelman, Leslie Bicksler, Elaine Soper (Document 22),¹ and Defendants West Virginia School of Osteopathic Medicine, Michael Adelman, Leslie Bicksler and Elaine Soper's Reply to Plaintiff's Memorandum in Opposition to Motions to Dismiss by Defendants West Virginia School of Osteopathic Medicine, Michael Adelman, Leslie Bicksler, and Elaine Soper (Document 24).

For the reasons stated herein, the Court finds that the Defendants' motions should be granted in part and denied in part.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY²

Plaintiff Nicole Rex initiated this action with a Complaint (Document 1) filed on January 23, 2015. Her first amended complaint was filed on February 23, 2015. In the amended complaint, she named the following defendants: West Virginia School of Osteopathic Medicine (WVSOM), Michael Adelman, in his official and individual capacity, Leslie Bicksler, in her official and individual capacity, Elaine Soper, in her official and individual capacity, Jeffrey Shawver, in his official and individual capacity, and Tiffany Wright. On June 8, 2015, she filed a Stipulation of Voluntary Dismissal of Defendants Jeffrey Shawver and Tiffany Wright (Document 27).

The Plaintiff was a student at WVSOM in 2012. She alleges that a fellow student, D.M., drugged and raped her after she had been drinking at an off-campus party they both attended on August 31, 2012.³ The Plaintiff and her friends had difficulty ascertaining how to report her alleged assault to WVSOM. "While WVSOM policy designated that the Associate Dean of Student Affairs or the Director of Human Resources handle sexual harassment complaints, WVSOM had no Associate Dean of Student Affairs at the time, and the Director of Human Resources was responsible for school personnel, not students." (Compl. at ¶ 40.) On or about September 5, 2012, one of the Plaintiff's friends emailed John A. Shriefer, the Associate Dean for Pre–Clinical Education, responsible for first and second year students, to request a meeting. The Plaintiff met with Dean Shriefer on September 6, 2012, and reported the assault, as well as the symptoms that made her believe she had been drugged. (Id. at ¶ 42.) Dean Shriefer told her that he did not know how to proceed or who at WVSOM was responsible for handling complaints of sexual assault or harassment, but assured the Plaintiff that her complaint would be confidential and that she would be protected from retaliation. (Id. at ¶¶ 45, 46, 50.) Dean Shriefer drafted a formal complaint of sexual assault, and the Plaintiff signed it on September 12, 2012. (Id. at ¶ 68.)

The Plaintiff reported the assault to the police and went to the hospital on September 6, 2012, the same day she met with Dean Shriefer. The doctor found vaginal inflammation and tenderness, as well as vaginal bleeding. The Plaintiff sought a Personal Safety Order against D.M. from the Greenbrier County Court. The Court issued a Temporary Personal Safety Order banning D.M. from communicating with the Plaintiff and scheduled a personal safety hearing for September 19, 2012. (Id. at ¶¶ 65–67.)

The Plaintiff asserts that a fellow student told her that D.M. had asked the student to testify that he had not put anything in her drink. (Id. at ¶ 69.) She spoke with Dean Schriefer and WVSOM President Michael Adelman about that report. They told her that Dean Schriefer would support her during the investigation, including at the court hearing, and President Adelman told her that she did not need her own attorney. (Id. at ¶¶ 70–72.) However, prior to the hearing, WVSOM allegedly "directed Dean Shriefer to stop helping" the Plaintiff. (Id. at ¶ 98.)

Dean Schriefer attended the hearing, but refused to speak with her. (Id. at ¶ 99.) Dean Schriefer did speak with D.M. and his counsel, and left with him at the end of the hearing. (Id. at ¶ 100.) The Plaintiff requested that the hearing be continued so that she could retain counsel, which was granted. (Id. at ¶ 102.)

The court hearing was held on September 25, 2012. D.M. testified under oath that "he knew that [the Plaintiff] was drinking ‘way too fast,’ " but claimed that he was unable to engage in sexual intercourse due to his own intoxication. (Id. at ¶ 104.) The magistrate found that D.M. had sexually assaulted the Plaintiff and issued the maximum two-year order of protection, banning D.M. from having any contact with the Plaintiff. (Id. at ¶¶ 105–06.) He also issued an order barring D.M. from speaking to anyone at WVSOM about the Plaintiff. (Id. at ¶ 107.)

Meanwhile, on September 18, 2012, WVSOM issued a no-contact order against the Plaintiff, banning her from having any contact with D.M. and warning her of consequences if she did not comply. (Id. at ¶¶ 77–84.) It was signed by Defendant Elaine Soper as the Title IX Coordinator, which was the first time the Plaintiff was informed that WVSOM had a Title IX Coordinator. (Id. at ¶¶ 77–86.) Defendants Bicksler and Soper further warned the Plaintiff that she was prohibited "from communicating with any student, faculty member, or administrator about her case" and would face serious consequences if she did so. (Id. at ¶¶ 88, 95.) Jeffrey Shawver, an attorney for WVSOM, later told the Plaintiff that speaking about the assault to her therapist would constitute a criminal offense. (Id. at ¶ 113.) The Plaintiff alleges that these restrictions made it impossible for her to attend classes, seek accommodations from her professors, receive support from friends, or even explain her absences and behavioral changes to her professors. (Id. at 98–97.) The Plaintiff asserts that WVSOM did not require D.M. to abide by the same restrictions, although both received a no-contact order. (Id. at ¶¶ 69–70, 123.)

The Plaintiff also alleges that WVSO failed to protect her privacy. A staff member "disclosed to second year students and perhaps others that [the Plaintiff] had filed a complaint accusing [D.M.] of raping her." (Id. at ¶ 109.) Title IX Coordinators Leslie Bicksler and Ms. Soper, as well as WVSOM attorney Mr. Shawver, took no action when the Plaintiff reported the breach of her confidentiality. Students, staff members, and faculty asked the Plaintiff about her alleged rape, commented about it on social media, and made the Plaintiff, as well as issues of sexual assault and Title IX, subjects of campus mockery and ridicule. (Id. at ¶¶ 128–135.)

Shortly after the Plaintiff filed her formal complaint, WVSOM opened an investigation against her aunt, a WVSOM employee with whom the Plaintiff resided. (Id. at ¶¶ 116–17.) Mr. Shawver conducted the investigation. The investigation receded after WVSOM "concluded its review of [the Plaintiff's] claims." (Id. at ¶ 121.)

The Plaintiff alleges that WVSOM's investigation into the sexual assault was insufficient and biased. She asserts that WVSOM lacked any policy or procedures when she initially reported her rape. As a result, she believes WVSOM's response was flawed from the beginning. Although she reported that she suspected she had been drugged, the school did not suggest she be tested, and later ignored her request for a recommended testing facility. (Id. at ¶ 124.) WVSOM did not give the Plaintiff a timeline for the investigation, did not keep her informed as to its progress, and missed its own stated deadlines without issuing a report or status update.

Ms. Bicksler and Ms. Soper "required [the Plaintiff] to file her official statement over a month earlier than [D.M.], allowing him substantial time in which to fine tune his story, dissect her witness statement, better prepare his case, and delay his statement until after the Court case [seeking a protective order before the magistrate] was complete." (Id. at ¶ 123.)

WVSOM issued a Confidential Report of Investigation (the Report) on December 10, 2012, finding that D.M. had engaged in "unprofessional" behavior on the night in question.⁴ (Id. at ¶¶ 139–40.) "However, the Report determined that [D.M.] did not know that [the Plaintiff] was incapacitated so sexual harassment had not been proved." (Id. at ¶ 142.) The Report did not reference the Plaintiff's belief that she had been drugged, and WVSOM declined to consider potentially incriminating statements made by D.M., under oath, during the court proceeding. (Id. at ¶¶ 145–149.) As a result of the "unprofessional conduct" finding, D.M. was ultimately required to "write a 5 page paper about why drugs are harmful and do 10 hours of community service," and was assured that his Dean's Letter of recommendation would not mention the incident as long as he "was not caught engaging in similar behavior in the future." (Id. at ¶ 173.)

The Plaintiff appealed the findings of the Report. WVSOM again failed to keep the Plaintiff informed as to the appeal's process, progress, or outcome. (Id. at ¶ 164.) The appeal was ultimately denied....