Shank v. Carleton Coll.
| Decision Date | 22 August 2019 |
| Docket Number | File No. 16-cv-01154 (ECT/HB) |
| Parties | Elizabeth M. Shank, Plaintiff, v. Carleton College, Defendant. |
| Court | U.S. District Court — District of Minnesota |
Barbara P. Berens, Erin K. F. Lisle, and Carrie L. Zochert, Berens & Miller, P.A., Minneapolis, MN, for Plaintiff Elizabeth M. Shank.
Sean R. Somermeyer and Jacqueline A. Mrachek, Faegre Baker Daniels LLP, Minneapolis, MN, for Defendant Carleton College.
Elizabeth Shank is a graduate of Carleton College. Shank claims to have been raped twice by co-students while attending Carleton, once during her first year and again during her second year. This case is not about whether Carleton is liable for the rapes; it is about Carleton's response to the rapes. Shank alleges that Carleton's response was deliberately indifferent and deprived her of access to educational benefits or opportunities provided by the college. Shank asserts federal claims under Title IX and the Americans with Disabilities Act, and she asserts claims under Minnesota law for negligence, intentional infliction of emotional distress, and punitive damages. Carleton has filed a summary-judgment motion. Because Shank has not identified evidence that would permit a reasonable juror to find in her favor on essential elements with respect to each of her claims, Carleton's summary-judgment motion will be granted.
On the night of Saturday, September 10, 2011, during the first days of her first year as a student at Carleton College, Shank was raped in her dormitory by "Student One," another student who lived on her floor; Shank and Student One were intoxicated after attending an on-campus party.2 C. 31-33; S. 342-43.3 What began as consensual kissing became a sexual assault and rape. C. 33; S. 343. A day or two after, Student One sent Shank a private message on Facebook saying he "didn't seek consent from [Shank] and [he was] sorry about that, really sorry." C. 315, 621.
The following Monday, Shank sought assistance from Carleton's Student Health and Counseling Center ("SHAC"). C. 33-34, 581. Shank requested a "token" or "travelvoucher" for free transportation to Northfield Hospital so that she might get a "rape kit" and undergo a sexual assault forensic exam. C. 34. A receptionist told Shank that the SHAC does not "give out the tokens for services that Student Health and Counseling can provide." Id. However, Shank did not receive any forensic testing at the SHAC. C. 39-40. Shank did not go to Northfield Hospital to obtain forensic testing because she "was scared . . . didn't know where it was," and "thought if [she] went to the health center on campus they would help [her] get there." C. 35.
The next day (Tuesday), Shank went to see a counselor on campus. C. 35-36. Shank told the counselor, Drew Weis, that she "didn't want to file a complaint at that point." C. 36. Weis "explained that [she] didn't have to go to police" and could report the assault to Carleton. C. 36. Shank understood that Weis was "a confidential resource at Carleton," meaning he was obligated to maintain confidentiality regarding what Shank told him during their visit. C. 37. Shank also understood that Weis was required to report the assault for "statistical purposes," but that Shank's name would not be attached to it. Id.; C. 614.
Around early October 2011, a Carleton student submitted a Community Concern Form4 to the Dean of Students Office about an unnamed first-year student who "had cutsand marks on their wrist that looked like they may have been self-inflicted." S. 1; see C. 105. Joe Baggot, then Associate Dean of Students and First-Year Class Dean, C. 98, S. 236, followed up with the student who submitted the Community Concern Form and asked if the student might be available to discuss the information reported in the form. C. 105-06; S. 2. On October 14, that student emailed Baggot to "let [him] know that the name of the student . . . is Liz Shank." S. 2. In his deposition, Baggot testified that he did not follow up with Shank at that time because "the nature of the concern, a student who is cutting, did not rise to a level for [him] to call the student over to have a meeting about it." C. 106. Baggot explained that during the course of his career, "this type of activity has changed from definitely a concern about a suicide attempt to an understanding, from health care professionals, that cutting, in and of itself, is not a suicide attempt and may be a coping mechanism for stress, anxiety, depression - all kinds of things." C. 104-05.
Later in October 2011, Baggot learned that Shank was having difficulty in a math class. See S. 234. Responding to a request from the Dean of Students Office seeking "progress reports about students who are having significant difficulty in your classes," S. 235 (emphasis omitted), Shank's math professor reported on October 23 that she had received a "[b]ad F on [an] exam." S. 234-35. The professor wrote:
Class attendance fairly regular. Apparently she had a difficult time earlier in the term for reasons unrelated to the class, and fell behind. (She also stopped handing in homework at that point, for several weeks.) We had a conversation about what she would have to do to succeed and whether she had enough energy and motivation to catch up; she was going to consider it. The other day her adviser contacted me and asked whether from my perspective it was OK for her to drop the class, soapparently that's what she is now planning (even though I haven't yet "officially" heard it from Liz herself).
S. 235. The next day, an administrative assistant emailed Shank on Baggot's behalf, writing: S. 237. The record does not indicate that Shank followed up or met with Baggot in response to this message. See C. 107-108.
Shank was hospitalized from February 12 to 15, 2012, after making suicidal statements while under the influence of alcohol and marijuana. S. 4-8. The record contains no specific description of the circumstances in which Shank made these statements. However, a "discharge summary" medical record documents several statements Shank made to a treating physician while hospitalized regarding the incident and surrounding circumstances. S. 6-8. Though she initially denied "to EMS" providers that she had made suicidal statements, Shank eventually admitted making those statements. S. 6. Shank "denie[d] having anhedonia or crying spells and denie[d] having suicidal ideations, and she [said] that it only happened occasionally, like a couple of days ago." Id. Shank told her doctor that she had been experiencing panic attacks about once every two weeks "since November 2011." Id. Shank also reported to her doctor "that she was raped while intoxicated with alcohol in September 2011, by another student at the college and the student is living in the same dorm in the same floor and he is also on the track and field team, and he has posters of him all over the school." S. 8. Shank also admitted attemptingsuicide "while intoxicated with alcohol in September 2011, by cutting," though the treating doctor noted "apparently this was a very superficial cut." Id.
On the same day Shank was first hospitalized (February 12), a student submitted a Community Concern Form to the Dean of Students Office relaying an anonymous report that Shank "had a history of self harm and was involved in a sexual situation Fall term with another student where there was sexual intercourse and no consent was given." C. 615. During her hospitalization, Shank's parents traveled to Minnesota, see C. 111, 652, and Baggot met with them in person on February 14, see C. 110, 115, 616. During that meeting, Baggot learned from Shank's parents that she "had been sexually assaulted and/or raped during fall term 2011." C. 616. Baggot described what Shank's parents told him during their meeting in a Community Concern Form:
The parents said that they did not know the name of the young man that assaulted Liz. But, their daughter had told them that he lived on her floor and that he was on a team. The parents were very clear with me that their daughter understood how to file a complaint with the College if she wanted to do so and that their daughter certainly did NOT want to do so. A decision they respected. The parents stated that the reason they were telling me is that they wanted me to be prepared to support their daughter who would be returning to campus soon (from hospitalization).
Id. Baggot met with Shank the next day (on February 15), and documented in that same Community Concern Form that she had "confirmed all of the above." Id. He also documented that Shank was "pleased" to learn that Carleton was not investigating the rape. Id. Baggot's Community Concern Form was shared with Associate Dean of Students Julie Thornton and Carleton's Title IX Coordinator, Joanne Mullen. Id. After receiving theform, Mullen wrote to Thornton: Id.
Shank continued to meet regularly with Baggot after she returned to campus and during the 2012 winter term. C. 44, 48. As part of their "working relationship," Baggot "agreed not to discuss the traumatic event of last fall" with Shank. C. 659. If Shank wanted to discuss the incident with Baggot, she "would let him know." C. 59. Shank also attended group-therapy sessions at the SHAC and met weekly with a private therapist in Northfield. C. 51; Lisle Supp. Decl. Ex. 61 [ECF No. 308]; see also C. 111, 647 ().
In early April 2012, Shank asked about changing dorm rooms. See C. 50-51....
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