Roohbakhsh v. Bd. of Trs. of the Neb. State Colls.

• Decision Date: 22 August 2019
• Docket Number: 8:17CV31
• Citation: 409 F.Supp.3d 719
• Parties: Lissette Larios ROOHBAKHSH, as personal representative of the Estate of Fatima Lissette Larios and on behalf of next of kin; and Nelson Larios, as next of kin, Plaintiffs, v. BOARD OF TRUSTEES OF the NEBRASKA STATE COLLEGES, and Chadron State College, Defendants.
• Court: U.S. District Court — District of Nebraska

409 F.Supp.3d 719

Lissette Larios ROOHBAKHSH, as personal representative of the Estate of Fatima Lissette Larios and on behalf of next of kin; and Nelson Larios, as next of kin, Plaintiffs,

v.BOARD OF TRUSTEES OF the NEBRASKA STATE COLLEGES, and Chadron State College, Defendants.

8:17CV31

United States District Court, D. Nebraska.

Signed August 22, 2019

Adele P. Kimmel, Pro Hac Vice, Public Justice, Washington, DC, Antonio M. Romanucci, Pro Hac Vice, Joe Kolar, Martin D. Gould, Pro Hac Vice, Romanucci, Blandin Law Firm, Chicago, IL, Christopher P. Welsh, Welsh, Welsh Law Firm, Omaha, NE, for Plaintiffs.

George E. Martin, III, Leigh C. Joyce, Baird, Holm Law Firm, Thomas E. Johnson, Johnson, Tabor Law Firm, Omaha, NE, for Defendants.

MEMORANDUM AND ORDER

Joseph F. Bataillon, Senior United States District Judge

This matter is before the Court on a motion for summary judgment filed by defendants Board of Trustees of the Nebraska State Colleges and Chadron State College (collectively, "Chadron State" or "the College"), Filing No. 100.¹

This is an action under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) et seq. ("Title IX"). Title IX is a federal statute banning discrimination on the basis of sex in federally funded educational programs. Id. The plaintiffs are the parents of Fatima Larios, who had been a student and athlete at Chadron State College from August 2014 until her suicide on January 31, 2015. Plaintiff Lissette Larios Roohbakhsh is also the personal representative of decedent Fatima Larios's estate.

In their complaint, the plaintiffs allege that Chadron State was deliberately indifferent to reports of dating violence against Fatima by one of its students. They allege that if Chadron State had complied with its own policies and Title IX by properly responding to third-party reports of the abuse and took appropriate steps to protect Fatima's safety, Fatima's death could have been prevented.

Chadron State asserts it is entitled to a summary judgment of dismissal. It contends that undisputed evidence shows that the plaintiffs cannot prove the elements of a Title IX claim. First, it argues that Chadron State did not have actual notice that Fatima Larios experienced discrimination while a student at Chadron State, contending that the College's level of actual knowledge must amount to reliable reports of specific behavior so severe as to deprive the victim of access to educational opportunities. Next, it argues that even if the plaintiffs could meet the actual notice requirement, Title IX is inapplicable because the plaintiffs cannot show that the alleged dating violence was based on sex rather than interpersonal conflict. Chadron State disputes that Fatima Larios was the victim of dating violence, arguing that Fatima Larios was the physical aggressor. Further, it argues the plaintiffs' claims fail as a matter of law because the College was not deliberately indifferent in its response to the rumors relayed to it regarding Larios. Chadron State also argues that the plaintiffs cannot show that the college's deliberate indifference caused the student to undergo harassment, physical assaults, or deprivation of educational opportunities. Last, it argues that the College cannot be held responsible under Title IX for Larios's suicide because the decision to inflict self-harm is an efficient intervening cause under Nebraska state law.

In response, the plaintiffs argue that there are genuine issues of material fact on all these issues.

I. FACTS

The facts are gleaned from the parties' respective statements of undisputed facts in their briefs and from the court's review of the evidence. See Filing No. 102, Defendants' Brief at 2-31; Filing No. 113, Plaintiffs' Brief at 3-100; Filing Nos. 103 & 104, Indices of Evid.; Filing Nos. 113 & 114, Indices of Evid.

Fatima Larios ("Larios") and Brandon Finona-Gardner ("Gardner") first met in their hometown of Monterey, California. Filing No. 104-1, Ex. 5, Deposition of Brandon Finona-Gardner ("Gardner Dep.") at 12-13. Gardner was a junior at a public high school at the time, and Larios was a senior at a nearby private, all-girls high school. Id. They dated from August 2012 to the date of Larios's death on January 31, 2015.

Larios first attended college in Clarksville, Tennessee, on an athletic scholarship. She played softball on an NCAA Division I team. Larios and Gardner continued to date in a long-distance relationship. In August 2014, Gardner began college at Chadron State on a football athletic Scholarship. Larios then transferred to Chadron State and began playing softball for Chadron State, an NCAA Division II school.

Larios moved into the College's Andrews Hall and Gardner moved into the College's High Rise resident hall in August 2014. Tayler Saunders was a Residence Hall Advisor ("RA") at Gardner's dormitory. During Gardner's move into the dormitory, his mother told RA Saunders that "it was common for Brandon and his girlfriend Fatima to argue frequently and rather loudly." Filing No. 104-30, Incident Report/Memo of conversation at 1. Saunders stated that she believed "Brandon's mother had informed her" of Gardner and Larios's arguments as if to issue "a warning so that [the College's] staff wouldn't be surprised by the consistency of the arguments that would likely ensue." Id. In late September 2014, Fatima Larios moved from her dormitory to Gardner's dormitory. Filing No. 103-3, Ex. 3, Deposition of Lissette Roohbakhsh ("Roohbakhsh Dep.") at 48; Filing No. 103-18, Ex. 46, Residence Hall Contract. Larios's mother was not aware of the change. Filing No. 103-3, Roohbakhsh Dep. at 50.

Chadron State hosted an on-campus Halloween dance for students on October 31, 2014. There were reports of an altercation between Fatima Larios and another student at the dance. There is evidence in the record that RA Saunders would occasionally consume alcohol in the dorms with students she oversaw on the third floor, which was contrary to Chadron State's code of conduct. It is undisputed that Fatima Larios began consuming increasingly more alcohol while at Chadron State.

During the relevant time period, Robert Stack was the College's Head Softball Coach and Aryn Grywusiewicz was Assistant Softball Coach. Sometime in late October 2014, Coach Grywusiewicz noticed fingerprint bruises on Larios's upper arm and a huge bruise on Fatima's inner leg from groin to mid-thigh that she believed to be unrelated to softball. Filing No. 104-5, Ex. 9, Deposition of Aryn Grywusiewicz ("Grywusiewicz Dep.") at 34-39. Several players later told Coach Grywusiewicz that Larios had told them Brandon was hitting her. Id. at 39-40. Larios's teammates, Brooke Wakefield and Rebeka Prokaski, also noticed bruises on Larios's upper arms. Filing No. 104-15, Ex. 24, Deposition of Brooke Wakefield ("Wakefield Dep.") at 12-14, 18. They questioned Larios about the bruises, and Larios initially claimed they were softball-related. Filing No. 104-16, Ex. 25, Deposition of Rebeka Prokaski ("Prokaski Dep.") at 25. Larios later stated that the bruises "came from" Gardner, but warned Wakefield to "back off." Filing No. 104-15, Ex. 24, Wakefield Dep. at 15, 33.

On or about November 2, 2014, Wakefield and Prokaski told Coach Grywusiewicz that Larios had told them that Gardner was hitting her. Filing No. 104-5, Ex. 9, Grywusiewicz Dep. 39, 44; Filing No. 104-15, Ex. 24, Wakefield Dep. at 15:2-13. The following day, a third player, Jessica Eatmon-Hoopes, reported to Coach Grywusiewicz that she had "heard" Gardner was hitting Larios. Filing No. 104-5, Ex9, Grywusiewicz Dep. at 40, 45. Coach Grywusiewicz then informed the head coach of the softball players' concerns and her own concerns about Larios's bruises. Filing No. 104-4, Ex8, Stack Dep. at 32-35; Filing No. 104-5, Ex. 9, Grywusiewicz Dep. at 56.

Head Coach Stack then met with the Athletic Director, Joel Smith, and informed Smith of the concerns. Filing No. 103-5, Ex. 10, Smith Dep. at 26-28, 56. Smith testified he recalled "there was something about her boyfriend and the kids were concerned about her" and "there were concerns about her behavior and—and what she was covering herself with." Id. at 55-56. Athletic Director Smith passed the information on to the College's Director of Human Resources and Title IX Compliance Coordinator, Shelley Dunbar. Id. at 29. Smith testified he felt that the best course was to get the information to Title IX Coordinator Dunbar so she could follow up as appropriate, since the concerns were based on second-hand information. Id. at 40, 57.

On November 3, 2014, Dunbar met with Coach Grywusiewicz to discuss Fatima Larios. Filing No. 104-5, Ex9, Grywusiewicz Dep. at 66-67. Coach Grywusiewicz testified that she told Dunbar that Larios had transferred to Chadron State because Gardner was there to play football, that Grywusiewicz had noticed bruising that was not softball-related, and that two players had reported that that Larios told them that the bruises "came from" Gardner. Id. at 66-67. Dunbar recounted the conversation in an email to various Chadron State administrators as follows:

Previously Fatima had told three girls on the team that Brandon is aggressive and he had hurt her. When the girls saw the recent bruises, they were very concerned but Fatima said they were from softballs.

Filing No. 103-16, Ex. 35, Email. Dunbar also reported:

At parties they are seen fighting but it is both of them. Fatima was in a fight herself with another girl at a party because Brandon brought this girl to the party. Incidents seem to happen when alcohol is involved. Fatima was hanging out with the team at first but lately has not doing that so much.

Id.

Dunbar again met with Coach Grywusiewicz the following day. Filing No. 104-19, Ex. 30, Dunbar Notes at 1. Coach Grywusiewicz stated that she had noticed that Larios had seemed more withdrawn and emotional and had socialized less with the team. Id. Coach Grywusiewicz also stated she had heard that both Larios and...