Thomas v. Bd. of Regents of the Univ. of Neb.
| Decision Date | 11 May 2022 |
| Docket Number | 4:20CV3081 |
| Parties | SHERIDAN THOMAS, MIRANDA MELSON, JANE DOE 1, JANE DOE 2, SYDNEY BRUN-OZUNA, JANE DOE 3, JANE DOE 4, JANE DOE 5, OTHER UNIDENTIFIED FEMALE DOES, and CAPRI DAVIS, Plaintiffs, v. BOARD OF REGENTS OF THE UNIVERSITY OF NEBRASKA; PETE JEYARAM; LAURIE BELLOWS; JAKE JOHNSON; MATTHEW HECKER; TAMIKO STRICKMAN; JEFF LAMOUREAUX; MEAGAN COUNLEY; RYAN FETTE; BRIANA PALLASSEARS; SUE KELLY MOORE; SANDRA CHAVEZ; and JAMIE PEER, Defendants. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the Court on defendants' Board of Regents of the University of Nebraska (“BRUN”) Pete Jeyaram (“Jeyaram”), Laurie Bellows (“Bellows”), Jake Johnson (“Johnson”), Matthew Hecker (“Hecker”), Tamiko Strickman (“Strickman”), Jeff Lamoureaux (“Lamoureaux”), Meagan Counley (“Counley”), Ryan Fette (“Fette”) Briana Pallas-Sears (“Pallas-Sears”), Sue Kelly Moore (“Moore”), Sandra Chavez (“Chavez”), and Jamie Peer (“Peer”) (collectively, the “individual defendants, ” and with BRUN “defendants”) Motion to Dismiss For Failure to State a Claim and to Sever (Filing No. 40) plaintiffs'[1] remaining claims.[2]
The plaintiffs in this case are nine female students or former students that attended the University of Nebraska at Lincoln (“UNL”). All assert they were either sexually assaulted or sexually harassed by male students at UNL[3] and brought, or attempted to bring, complaints to BRUN and its Title IX officers within the Office of Institutional Equity and Compliance (“IEC”). The plaintiffs assert numerous failures of BRUN and IEC regarding the handling of their complaints and the Title IX reporting process at UNL. The plaintiffs oppose dismissal (Filing Nos 44 and 54) of Counts I, II, and V. The United States also submitted a statement of interest (Filing No. 47) pursuant to 28 U.S.C. § 517, asserting its “significant interest in the proper interpretation of Title IX in ensuring that federally funded schools meet their Title IX obligations.” For the reasons stated below, the defendants' motion is granted in part and denied in part.
The following facts are taken from the relevant portions of the second amended complaint and are accepted as true for the purpose of this motion to dismiss. See Joyce v. Armstrong Teasdale, LLP, 635 F.3d 364, 365 (8th Cir. 2011).
Sheridan Thomas (“Thomas”) enrolled as an undergraduate student at UNL in August 2015. On August 12, 2015, Thomas and her friend “Sally”[4] went to meet some UNL student-athletes, “John Roe 1” (“JR-1”) and “John Roe 2” (“JR-2”) in a dorm room. JR-1 and JR-2 offered alcohol, and Thomas consumed some. Thomas told Sally she wanted to leave, but Sally told her to lie down because neither could drive home. Thomas laid down on JR-1's bed, then JR-1 began touching Thomas's genitals and breasts and raped her. Thomas and Sally escaped, but Thomas did not report the sexual assault because Sally was afraid they would get in trouble for drinking alcohol underage. Later that evening, JR-1 and JR-2 sent Thomas harassing text messages, jeering that JR-1's penis was “too big to fit into” Thomas. Thomas did not go to the hospital.
Thomas began suffering immense trauma and stress as a result of the rape, so she sought sexual-assault counseling on campus. On November 6, 2015, Thomas met with Strickman, a Title IX coordinator and director of IEC, to seek an academic accommodation because she was struggling with the aftermath of the rape. Strickman told Thomas that if she wanted an academic accommodation, she needed to file a formal complaint against JR-1. Terrified of initiating a Title IX investigation, Thomas withdrew her accommodation request. On December 16, 2015, Thomas was permitted to withdraw from a class but was not advised that other services were available to her or that JR-1 could potentially face discipline for the rape.
On January 22, 2016, Thomas filed an anonymous report of the rape to the UNL Police Department (“UNLPD”). Thomas filed the report anonymously because she did not want JR-1 to know she reported him or for her parents to find out what happened to her. After talking with a sexual-assault advocate, Thomas decided she was willing to identify herself and wanted to move forward with a Title IX investigation. On February 12, 2016, Thomas told UNLPD and IEC that JR-1 raped her. She explained that JR-1 “had groped her, kissed her, and raped her, all without her consent and while she repeatedly told him, ‘No.'” She also informed them of the harassing text messages and phone calls after the rape. Although Thomas told IEC there were witnesses, IEC never interviewed them. IEC also told Thomas the investigation would take longer than the stated policy timeline of sixty days.
While the investigation was ongoing, Thomas learned JR-1 had been interviewed by UNLPD, and he stated their sexual encounter was consensual. UNLPD concluded its investigation on March 11, 2016, and it did not file charges against JR-1. On April 22, 2016, Thomas received IEC's decision letter, finding JR-1's “version of events surrounding the parties' interaction on the bed aligns more closely with the evidence provided by the parties.” Thomas thought the letter contained factual misrepresentations and failed to address the post-assault text messages and phone calls from JR-1. The decision letter advised her to “continue to refrain from contact with” JR-1. Thomas sought an appeal.
On May 2, 2016, Thomas again sought leave to withdraw from a class due to stress and anxiety caused by the rape and investigation. Her request was granted. She was told she would not be dismissed from UNL. In May, Thomas met with Moore-the IEC appeal officer-twice to discuss the appeal process and to request a hearing. Moore denied her an opportunity for a hearing, stating On June 7, 2016, Moore provided Thomas with a decision letter, again finding JR-1 did not violate UNL policy. Moore's letter stated, “In reviewing information, I understood you to say that [JR-1] did not vaginally penetrate you.” This was contrary to Thomas's testimony.
On May 14, 2016, Thomas received an email from the UNL Registrar, informing her she had been “academically dismissed” from UNL and could not reapply again for two semesters.
Miranda Melson (“Melson”) began school at UNL in August 2015. On July 23, 2016, she went on a first date with a fellow UNL student, “John Roe 3” (“JR-3”). Melson explicitly told JR-3 she wanted to get to know him before engaging in sexual activity. At the end of the date, Melson and JR-3 went back to his home. To her surprise, JR-3 undressed himself. When Melson refused to take off her own clothes, JR-3 undressed her, kissed her, touched her, and raped her. While the assault was occurring, Melson froze and was unable to verbalize her objection to JR-3's unwanted sexual advancements. Melson eventually escaped. JR-3 repeatedly contacted Melson after the rape, even after she told him multiple times to stop contacting her.
Melson reported the rape and subsequent unwelcome communication to IEC and discussed the details with Strickman. Melson asked that her conversations with Strickman be recorded. Throughout the investigation, IEC interviewed the witnesses JR-3 provided but did not interview Melson's witnesses. Strickman sent Melson her decision letter on November 30, 2016, stating, “no sanction is deemed to be appropriate or necessary” because “you did not inform [JR-3] that you did not consent to the sexual activity.” At that time, consent was defined by IEC as “an agreement, approval, or permission as to some act . . . consent is an affirmative decision to engage in mutually acceptable sexual activity by clear actions or words.” (Emphasis added).
Melson discussed her concerns about the IEC investigation and process with the then-Vice Chancellor for Student Affairs, Juan Franco (“Franco”). Following that conversation, Franco agreed to “meet with [JR-3] to help him better understand ‘consent.'” Melson was traumatized by the Title IX investigation process due to the “lack of transparency, victim blaming, and lack of consideration for the trauma she had experienced.” As a result, she struggled with her schoolwork and her grades suffered.
Sydney Brun-Ozuna (“Brun-Ozuna”) began her academic journey at UNL in August 2017. On September 9, 2017, Brun-Ozuna went to “John Roe 6's” (“JR-6”) off-campus apartment to watch a movie. During the movie, JR-6 began kissing, groping, molesting, and pushing Brun-Ozuna without her consent. She states that at one point, JR-6 loosened his grip and she escaped back to her dorm. JR-6 attempted to contact her in the days after the assault, but she ignored his messages. On September 14, 2017, Brun-Ozuna reported the sexual assault to her resident assistant, who reported it to IEC. Brun-Ozuna also made an anonymous report to the Lincoln, Nebraska, Police Department (“LPD”).
Brun-Ozuna requested a formal Title IX investigation. She met with Counley multiple times, gave Counley a copy of the police report, and provided Counley with witnesses. During an interview with Counley, Counley asked Brun-Ozuna questions that she felt were extremely offensive, inappropriate, and “victim-blaming.” For example, Counley asked Brun-Ozuna “What were you wearing?”; “What underwear were you wearing?”; “Were you showing any cleavage?”; and “How short was your skirt?” Counley even had Brun-Ozuna “stand up and show Counley on her body how short her skirt had been on the night in question.”
Counley told Brun-Ozuna she had met with JR-6, who initially said “nothing happened, ” recanted, and...
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