By Brian G. Nuedling, of Jackson Lewis P.C.
A female student who brought claims of gender-based sexual harassment and retaliation after her football prospects fell short had a similarly difficult path in meeting her burden of proof in federal court in Pennsylvania.
In Simonetta v. Allegheny College,[1]Plaintiff Samantha Simonetta (“Simonetta”) was a student at Allegheny College (“Allegheny”), a private, liberal arts college in Meadville, Pennsylvania. In October and November 2017, Simonetta contacted William Hammer (“Hammer”), Alleghany’s Head Football Coach, and expressed interest in joining the team. She also submitted paperwork confirming her intentions. By the end of January 2018, Simonetta had signed the required NCAA handbook and began participating in the football team’s winter workouts.
On February 5, 2018, one of Simonetta’s teammates began “openly making unwelcome sexual advances toward her during football practice” and directed “explicit and inappropriate sexual comments toward her.” The teammate’s conduct continued, and in mid-February 2018, Simonetta disclosed the conduct to Assistant Football Coach Curtis Bailey (“Bailey”), who assured her that he would address the matter with Hammer.
When spring football practices began in March 2018, Simonetta was given a practice jersey but did not receive access to a locker room. In addition, and contrary to her male teammates, she was not assigned a jersey number.
On or about April 11, 2018, Simonetta notified the coaching staff by email that she would be forced to miss practice because of a required academic project. She did not receive a response to her email. On April 13, 2018, Bailey notified Simonetta that she was being placed on academic probation and that she would not be allowed to participate in practice sessions. Simonetta later asserted that this occurred even though her grades were sufficient to remain eligible to participate.
On April 24, 2018, Simonetta was advised by Bailey that she was being suspended from the football team as a consequence of academic performance and missed practices. Bailey also advised Simonetta that the school had recruited three male players. When Simonetta attempted to speak with Bailey during a practice, he advised her to follow up with him after she had received her grades. On May 1, 2018, Simonetta sent an email to Bailey and informed him that her grades had improved. She did not receive a response. On May 22, 2018, Simonetta sent proof of her improved grades to Bailey. Again, she did not receive a response. On July 25, 2018, Simonetta again emailed Bailey, requested a response to her previous emails, and stated that she was ready to return to the team.
Bailey responded to Simonetta on July 30, 2018. In his response, Bailey insisted that Simonetta wait until the conclusion of the fall semester to return to the team. He suggested that she serve as a team manager in the meantime.
Simonetta later received correspondence that instructed her to report to campus on August 9, 2018. When she arrived, she received a dormitory key but did not receive any information regarding a football schedule. Later that day, Bailey sent a text message to Simonetta, asking where she was. This confused Simonetta, who was not aware of any team commitment that day. As a result of the ongoing miscommunication with the team, Simonetta’s parents requested a meeting with the athletic director and the coaching staff.
The meeting took place on August 10, 2018. During the meeting, Simonetta attempted to state her position that the coaching staff had deliberately withheld tram information. According to Simonetta’s lawsuit, she was promptly interrupted and accused of lying. Simonetta’s father then asked if it was an appropriate time to discuss Simonetta’s previous report of sexual harassment by her teammates. In response, Bailey admitted that he was aware of the harassment allegations but had failed to report them to anyone, including Hammer, despite his representation that he would do so. Bill Ross (“Ross”), Allegheny’s Director of Athletics and Recreation, then promptly ended the meeting, stating that appropriate authorities would need to be involved.
Following the meeting, Simonetta had no formal contact with the coaching staff and was no longer a member of the team. Thereafter, and according to Simonetta’s lawsuit, she was inappropriately touched in September 2018 by a former teammate, who tried to kiss her and attempted to pull her into his dorm room without her consent. Simonetta did not report this incident to the coaching staff, but instead filed a report with Allegheny’s Title IX coordinator. This resulted in a finding, issued on December 17, 2018, that Simonetta’s former teammates had violated Allegheny’s Policy Against Discriminatory Sexual Harassment, “including sexual assault and other forms of sexual violence, dating violence, domestic violence and stalking.”
Simonetta brought suit against Allegheny in the United States District Court for the Western District of Pennsylvania, alleging that she had been subjected to gender-based abuse, harassment and discrimination while she was a student at Allegheny and a member of the school’s football team in 2018. She further asserted a negligence claim against the school and several individual defendants, including the athletic director and the head football coach. Finally, Simonetta asserted state law claims of negligence, tortious interference with contractual relations, and negligent infliction of emotional distress against the individual defendants. Simonetta purportedly asserted a claim of retaliation under Title IX of the Education Amendments of 1972 (“Title IX”), but this claim against Allegheny was not plead as a separate count in Simonetta’s complaint.
Allegheny brought a motion to dismiss the complaint for failure to state a claim upon which relief may be granted.[2] As to the first count of gender-based discrimination under Title IX, the court observed that a public school student may bring a suit under Title IX for student-on-student sexual harassment, but only where the school “acts with deliberate indifference to known acts of harassment in its programs or activities” and “only for harassment that is so severe, pervasive, and objectively offensively that it effectively bars the victim’s access to an educational opportunity or benefit.”[3] The court found that the prosecution and prompt determination of Simonetta’s complaint of sexual assault by a former teammate in 2018 belied any claim of deliberate indifference by Allegheny. However, the court also considered this claim in the context of alleged harassment by one of Simonetta’s teammates in February 2018. While very troubled by the alleged conduct and the lack of a response by Allegheny, the court found that the actions, committed over the course of two days, fell short of the type of severe and pervasive harassment that is contemplated by Title IX. Accordingly, the court stated that it would “reluctantly” dismiss Simonetta’s deliberate indifference claim.
As to the apparent claim of retaliation under Title IX, which was not specifically set froth in the complaint, the court noted that to assert a viable cause of action, Simonetta would have to plead facts sufficient to plausibly show that Allegheny had retaliation against her because she complained of sex discrimination. The court noted that Simonetta had reported the alleged sexual assault to Bailey in mid-February 2018. The court then observed that Simonetta had listed a number of adverse incidents that had occurred after the report to Bailey. Concluding that Simonetta had shown a series of events within close proximity to her complaint to Bailey, the court denied the defendants’ motion to dismiss.
Finally, the court considered Simonetta’s state law tort claims of negligence and negligent infliction of emotional distress. These claims were based on Simonetta’s allegation that Allegheny had breached its duty of care to protect her from gender-based abuse, harassment, and discrimination. In analyzing these claims, the court cited the action doctrine, which provides that a tort claim “based on a party’s actions undertaken in the course of carrying out a contractual agreement is barred when the gist or gravamen of the cause of action … although sounding tort, is, in actuality, a claim against the party for breach of its contractual duties.”[4] The court noted that Simonetta alleged that Bailey had “deliberately withheld her report of sexual harassment and further alleged that none of the defendants “took the appropriate steps to investigate [Simonetta’s] allegations of sexual harassment raised at the meeting in August 2018.” The court found that the duties to report and investigate sexual harassment allegations in accordance with Title IX arise solely from Allegheny’s contractual obligations under the college’s “Discrimination and Sexual Harassment Policy.” Consequently, the court found that Simonetta’s negligence-based claims were barred by gist of the action doctrine. Accordingly, those claims were similarly dismissed (with leave to amend), leaving only the retaliation claim to be decided.
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[1] No. 20-32 ERIE, 2021 U.S. Dist. LEXIS 45639 (W.D. Pa. Mar. 11, 2021).
[2] In her opposition brief, Simonetta withdrew her claim of tortious interference with contractual relations. This claim was dismissed and not addressed in the court’s opinion.
[3] Quoting David Next Friend Lashonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999).
[4] Quoting Downs v. Andrews, 639 F. App’x 816, 819 (3d Cir. 2019).
