Rossley v. Drake Univ.

• Decision Date: 04 May 2020
• Docket Number: No. 19-1392,19-1392
• Citation: 958 F.3d 679
• Parties: Tom ROSSLEY, Plaintiff Appellant v. DRAKE UNIVERSITY; Drake University Board of Trustees, Defendants Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

958 F.3d 679

Tom ROSSLEY, Plaintiff Appellant

v.DRAKE UNIVERSITY; Drake University Board of Trustees, Defendants Appellees

No. 19-1392

United States Court of Appeals, Eighth Circuit.

Submitted: March 12, 2020

Filed: May 4, 2020

Amy Kathryn Davis, David Harris Goldman, BABICH & GOLDMAN, Des Moines, IA, Andrew Miltenberg, Gabrielle M. Vinci, Diana Warshow, NESENOFF & MILTENBERG, New York, NY, for Plaintiff - Appellant.

Mary Elizabeth Funk, Frank Boyd Harty, NYEMASTER & GOODE, Des Moines, IA, Frances M. Haas, Attorney, NYEMASTER & GOODE, Cedar Rapids, IA, for Defendants - Appellees.

Before ERICKSON, GRASZ, and KOBES, Circuit Judges.

GRASZ, Circuit Judge.

Tom Rossley served on the Drake University (the "University") Board of Trustees ("Board") for many years before the Board voted to remove him because of a purported conflict of interest. He sued the University and the Board, alleging Title IX retaliation, disability retaliation, and breach of contract. The district court¹ dismissed his Title IX retaliation claim on the pleadings, and granted summary judgment to the University and the Board on the contract and disability retaliation claims. Rossley now appeals, and we affirm.

I. Background

Tom Rossley is an alumnus and former Trustee of Drake University, a non-profit, private university in Des Moines, Iowa. In the fall of 2015, the University investigated an allegation of sexual misconduct against Rossley’s son, Thomas Rossley, Jr. In the course of the Title IX investigation, Rossley Jr. was found responsible for the alleged sexual misconduct, and after an appeal process, was expelled from the University.

During this process, Rossley was critical of how the University handled his son’s case. Rossley made phone calls, sent emails, and participated in conversations with other Board members, University alumni, University administrators, and donors about the situation. Specifically, Rossley complained that the University did not accommodate his son’s disabilities during its investigation. Since childhood, Rossley Jr. suffered from ADHD, anxiety, and language-based disabilities, which "inhibit his ability to communicate effectively." Because Rossley’s communications about his son’s case form the basis of the Board’s actions, we will provide an overview of the exchanges between Rossley, the University, and the Board.

In March of 2016, Rossley sent an email to the University’s Vice President of Finance, as well as Rossley’s wife, and the University’s bond attorney, stating "please let this email serve as my disclosure that my son may be initiating litigation against Drake University in the event that his hearing verdict is not overturned on appeal." When this email was sent, Rossley Jr.’s expulsion appeal was still pending.

Then, in April, Rossley emailed the Dean of Students and the Chairman of the Board with a list of nine specific criticisms of the Dean and the University’s investigation of his son. Rossley also addressed an earlier request made by the University that he avoid a popular off-campus establishment when he was in town due to an alleged "staring" incident between Rossley and a student who worked there. This student was a witness in his son’s investigation. The tone of Rossley’s email was dismissive and mocking. A few weeks later, Rossley sent another email to the Board as well as members of the University’s faculty and administration, in which he criticized the University for failing to accommodate his son and selectively enforcing the University’s sexual assault policy and Title IX.

A few days after this second email, and during an annual alumni event, Rossley spoke with the Board Chairman and another Board member. They asked Rossley to stop speaking to alumni and donors about his son’s disciplinary process and the University’s compliance with the law. Rossley admitted to having spoken to at least three alumni or donors in attendance at the event. Later, during his deposition, Rossley expanded the list of persons with whom he discussed his son’s case to include "literally hundreds of people that [he] had conversations with, either directly or indirectly." The Chairman and Board member told Rossley that if he wanted to remain a Trustee he would need to "disassociate ... from [his] son’s issues" and stop talking about the matter. At the time, Rossley agreed to disassociate himself and later sent an "assurance" email recognizing the conflict of interest.

In the same assurance email, Rossley informed the Board his son had engaged the services of an attorney who would help his son "take[ ] his case to the next stage," and "to address this in the courts and, if necessary, the public arena." The Board of Trustee’s Board Affairs Committee ("BAC") advised Rossley that his actions created a conflict of interest under the University Bylaws. The BAC was concerned that Rossley could not discharge his fiduciary duty to the Board while also advocating for his son as a parent. To resolve this conflict, the BAC asked Rossley to take a leave of absence from the Board. Rossley responded with a lengthy letter denying a conflict of interest and refusing to take a leave. He also included proposed resolutions, including expunging his son’s expulsion, granting his son a diploma immediately, compensating his son for lost income, and offering his son direct admission to the University’s MBA program.

The University president sent an email to the Board advising it to hold a special meeting to vote on how to address Rossley’s conflict of interest related to his son’s Title IX case. The Board met, determined Rossley had a conflict of interest, and referred the matter back to the BAC to recommend a course of action. The BAC determined Rossley’s conflict of interest was sufficient to amount to a "for cause" removal from the Board, and recommended removal upon a vote of the Board. The Board voted to remove Rossley due to his "pervasive conflict of interest," and "his insistence on using his position as trustee to advocate" on his son’s behalf, who had "certainly threatened litigation" against the University.

In response, Rossley sued the University and the Board asserting five causes of action. After the district court granted various motions to dismiss, motions for judgment on the pleadings, and summary judgment motions, Rossley now appeals the dismissal of his Title IX retaliation, disability retaliation, and breach of contract claims.

II. Analysis

A. Title IX Retaliation

We first consider the district court’s dismissal on the pleadings of Rossley’s Title IX retaliation claim against the University. "We review a district court’s grant of judgment on the pleadings de novo ." Levitt v. Merck & Co., Inc. , 914 F.3d 1169, 1171 (8th Cir. 2019). "The movant has the burden of ‘clearly establish[ing] that there are no material issues of fact and that [he] is entitled to judgment as a matter of law." Id. (first alteration in original) (quoting Porous Media Corp. v. Pall Corp. , 186 F.3d 1077, 1079 (8th Cir. 1999) ). We must view all facts pled as true and grant all reasonable inferences in Rossley’s favor. Id.

The district court dismissed Rossley’s Title IX retaliation claim against the University for lack of standing. Under Title IX "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). The Supreme Court has interpreted Title IX to provide a private right of action for students complaining about teachers or peer-to-peer sexual harassment; it also allows individuals employed by federally-funded institutions to sue their employers. See Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ. , 526 U.S. 629, 643, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (finding a plaintiff could sue under Title IX for student-on-student sexual harassment); Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 290–91, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) (finding a student could sue for sexual harassment by a teacher); N. Haven Bd. of Educ. v. Bell , 456 U.S. 512, 520–21, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982) (finding employees are covered by Title IX regulations when the employer directly participates in federal programs or benefits from federal grants, loans, or contracts). Additionally, some federal courts have entertained causes of action for parents on behalf of their minor children or deceased adult children under Title IX. See, e.g. , Lopez v. Regents of Univ. of Cal. , 5 F. Supp. 3d 1106, 1114 (N.D. Cal. 2013) (noting "parents do have standing to assert Title IX claims on behalf of a student," but "in general, non-students such as parents do not have a personal claim under Title IX.").

Title IX also protects individuals who suffer retaliation after reporting instances of sex discrimination. Jackson v. Birmingham Bd. of Educ. , 544 U.S. 167, 173–74, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). The Supreme Court explained in Jackson that "[w]here the retaliation occurs because the complainant speaks out about sex discrimination, the ‘on the basis of sex’ requirement is satisfied." Id. at 179, 125 S.Ct. 1497. According to Rossley, this language from Jackson indicates that any Title IX advocate has a cause of action when retaliated against, regardless of whether the advocate is an employee, student, or individual subjected to discrimination under an education program or activity. We disagree. Retaliation "on the basis of sex" is not a sufficient condition for Title IX standing. The plain text of 20 U.S.C. § 1681(a) provides protection for persons from actions taken "on the basis of sex" only if it causes the prospective plaintiff to be "excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). Therefore, if the action taken "on the basis of...