O'Shea v. Augustana Coll.

• Decision Date: 24 March 2022
• Docket Number: Case No. 4:20-cv-04243-SLD-JEH
• Parties: Grace O'SHEA, Plaintiff, v. AUGUSTANA COLLEGE, Tom Phillis, Kylee Ross, Laura Schnack, Conor Larkin, and Erin Larkin, Defendants.
• Court: U.S. District Court — Central District of Illinois

593 F.Supp.3d 838

Grace O'SHEA, Plaintiff,

v.AUGUSTANA COLLEGE, Tom Phillis, Kylee Ross, Laura Schnack, Conor Larkin, and Erin Larkin, Defendants.

Case No. 4:20-cv-04243-SLD-JEH

United States District Court, C.D. Illinois, Rock Island Division.

Signed March 24, 2022

Nicole Elizabeth Gorovsky Burgess, Gorovsky Law LLC, St. Louis, MO, for Plaintiff.

Michael T. Raupp, Husch Blackwell LLP, Kansas City, MO, Scott L. Warner, Mary Elizabeth DeWeese, Husch Blackwell LLP, Chicago, IL, for Defendants Augustana College.

ORDER

SARA DARROW, CHIEF UNITED STATES DISTRICT JUDGE

Before the Court are Defendants Conor Larkin and Erin Larkin's (collectively, the "Larkin Defendants") motion to dismiss, ECF No. 26; Defendants Augustana College, Tom Phillis, Kylee Ross, and Laura Schnack's (collectively, the "College Defendants") motion to dismiss, ECF No. 28; the College Defendants’ motion for leave to file a reply, ECF No. 33; and the Larkin Defendants’ motion for leave to file a reply, ECF No. 34. For the following reasons, the Larkin Defendants’ motion to dismiss is GRANTED, the College Defendants’ motion to dismiss is GRANTED IN PART AND DENIED IN PART, the Larkin Defendants’ motion for leave to file a reply is GRANTED, and the College Defendants’ motion for leave to file a reply is GRANTED.

BACKGROUND¹

Augustana College ("Augustana") is a private liberal arts college in Rock Island, Illinois that receives federal financial assistance via students’ financial aid and federal grants. Plaintiff Grace O'Shea was a student at Augustana residing on the college's campus between 2016 and May 2020. Conor Larkin was a guest of or a student at Augustana during all times relevant to Plaintiff's complaint. Erin Larkin was a student at Augustana during all times relevant to Plaintiff's complaint. Conor and Erin are siblings. Phillis, Ross, and Schnack were, at all times relevant to Plaintiff's complaint, employees of Augustana: Phillis was the Chief of Campus Police, Ross was a campus police officer, and Schnack was the Title IX Coordinator.

On or about April 15, 2018, Conor sexually assaulted Plaintiff at the 2nd Avenue Bar in Rock Island, Illinois. That weekend, Conor was in Rock Island to visit Augustana as a prospective student and to visit his sister. Before arriving at the bar, Plaintiff had been drinking heavily and was impaired to the point of losing consciousness. She was under the age of 21 and was initially denied entry to the bar, but after a bouncer recognized a friend who was with Plaintiff, they were granted entry. Plaintiff consumed more alcohol while at the bar, and she was visibly intoxicated according to several witnesses.

Conor approached Plaintiff several times in the bar, grabbing her and acting "aggressively intimate" with her. First Am. Compl. 4, ECF No. 23. Plaintiff did not recognize him and was confused that he was acting so intimately with her. She separated herself from Conor and tried to find her friends, but he persisted in his advances. Witnesses saw Conor touching and kissing Plaintiff as if he were her intimate partner. One witness was disturbed by his behavior and asked Plaintiff if she was okay, but Conor did not let her answer—he "snapped back that Plaintiff was fine." Id. at 5. Erin approached Conor and told him that he was being "creepy" and to stay away from Plaintiff, but he did not move away from Plaintiff. Id.

Eventually, Conor led Plaintiff away from the dance floor; she thought that they were going to the bar for another drink. He led her into a stall in the men's restroom. Conor then sexually assaulted Plaintiff. Plaintiff was confused and horrified and tried to pull him off of her, but Conor refused to stop. Plaintiff never gave consent for any sexual activity.

Erin entered the men's restroom to look for her brother, and she yelled for him through the stall door. Conor told his sister to go away; Plaintiff used the distraction to get dressed. Conor and Erin had a "yelling match," and he finally opened the stall door. Id. at 6. Erin confronted Plaintiff and called her a "ho"; she then slapped Plaintiff across the face. Plaintiff eventually escaped the bathroom.

One of Plaintiff's friends reported the assault to Augustana the morning of April 15, 2018. Plaintiff reported the assault to the police on April 16, 2018. That same day, she disclosed the assault to a professor, who reported it to Schnack, the Title IX Coordinator for Augustana. Plaintiff made an official report with Schnack and the Rock Island police.

At the time of the assault, and for more than a year afterward, Plaintiff did not know the identity of the man who had sexually assaulted her. A friend who had been with her that night told her that her description of the woman who had slapped her sounded like Erin. Plaintiff later learned that Erin's brothers had been visiting her that weekend and that one of the brothers was a prospective Augustana student. Plaintiff asked one of Augustana's deans if the administration could prevent him from being accepted to the college because he had sexually assaulted her, but the dean said that "there was not a mechanism to have a formal investigation of a prospective student." Id. at 9. Conor was later recruited by Augustana to play lacrosse.

On May 3, 2019—after the assault but before Conor began attending Augustana—Plaintiff and other female students were in the women's bathroom in her dormitory on campus, "in various stages of undress," when a nineteen-year-old male Resident Advisor ("RA") entered the restroom and grabbed Plaintiff's arm. Id. Plaintiff was "triggered" by this due to her previous sexual assault and "cussed at the RA and told him to get out of the women's bathroom." Id. The RA refused to leave, and the police were called; Officer Ross showed up. Plaintiff was disciplined for her reaction to the RA entering the bathroom and was forced to apologize to the RA.

In September 2019, Plaintiff saw Conor walking on the Augustana campus and recognized him. She contacted the Title IX office, who told her that she could file a complaint. But one of Augustana's Deputy Title IX Coordinators asked her to instead work it out with Conor through a process of reconciliation, with the goal of Plaintiff forgiving Conor for the assault. Plaintiff sought but was denied interim safety measures from Augustana, apart from the offer of a mutual no contact order, which would also punish Plaintiff if she accidentally came into contact with Conor. She ultimately filed a formal Title IX complaint against Conor on January 23, 2020. At that time, Plaintiff asked the Title IX office if it would be an issue that Conor was not enrolled at Augustana at the time of the assault and was assured that it did not matter. She was also assured that it did not matter that the assault took place off campus.

Throughout the spring of 2020, Plaintiff went through the Title IX process. As part of that process, Augustana required Plaintiff to sign a contract where she agreed to full confidentiality, effectively waiving her right to litigate under Title IX before a court of law. Phillis and Ross were selected as the investigators. During the investigation, Phillis questioned Plaintiff about the night of the incident and her sexual history. He asked her "whether on the night of the assault she was ‘looking for a "good time," ’ if she was wearing undergarments, how tight her jeans were, and how low-cut her shirt was." Id. at 16. And although there was a policy for amnesty in discussing any student conduct violations, such as underage drinking, that may have occurred prior to an assault, Phillis failed to advise Plaintiff and witnesses of this policy and instead "repeatedly asked [Plaintiff] and witnesses how they were able to enter a bar and get alcohol while underaged and expressed disappointment with her and these witnesses for doing so." Id. at 17. He also "s[ought] humiliating information about her past from Plaintiff and witnesses, intimidate[ed] her disclosed witnesses, and ask[ed] her friends to discredit her ‘character’ " and, further, "revealed confidential information about Plaintiff's assault to others." Id. Ross maintained a publicly viewable calendar listing the names of parties navigating the Title IX process, including Plaintiff. Plaintiff had to conduct parts of the investigation herself—she had to decide who they should interview and what evidence they should collect. Augustana also allowed Conor to delay the investigation process by skipping multiple interviews without consequence.

After 140 days, Augustana "issued an investigation report with no findings, credibility determinations, or conclusions." Id. at 21. The parties were then given the chance to submit written responses. Plaintiff turned down Conor's request for an informal negotiation process; a formal hearing was set for July 14, 2020.

On July 10, 2020, Augustana sent Plaintiff a letter cancelling the hearing. The letter claimed that Conor had raised the argument that Augustana did not have jurisdiction over Conor because he was not a student at the time of the alleged assault. Plaintiff was further informed that Conor had filed a formal complaint against her, which Augustana had accepted. Schnack was assisting Conor "to help him ‘flesh out’ the details of his complaint against Plaintiff." Id. at 22. The hearing was never rescheduled, and on July 18, 2020, Augustana sent Plaintiff another letter affirming that it did not have jurisdiction over the entire case. Plaintiff appealed this decision on July 27, 2020; her appeal was denied on August 14, 2020.

Plaintiff initiated this suit on November 24, 2020, Compl., ECF No. 1, and filed an amended complaint on March 5, 2021, First Am. Compl. Plaintiff brings three claims under Title IX of the Educational Amendments Act of 1972, 20 U.S.C. §§ 1681 – 88, against Augustana (Counts I, II, and III), First Am. Compl. 24–28; a claim under the Illinois Gender Violence Act ("IGVA"), 740 ILCS 82/1–98, against Conor (Count IV), First Am....