By Brian Nuedling, of Jackson Lewis
A Title IX lawsuit alleging a pattern and practice of sexual harassment on a university campus resulted in a split decision when the defendant school sought to narrow the litigation through a motion to dismiss.
In Posso v. Niagara University,Plaintiffs Nastassja Posso, Jamie Rolf, Jane Doe-1, and Jane Doe-2 brought an action against Niagara, alleging common-law claims and violations of Title IX of the Education Amendments of 1972. The lawsuit alleged (1) unequal treatment under Title IX by all Plaintiffs; (2) gender-based harassment under Title IX by Posso, Rolf, and Doe-1; (3) negligent administration of a Title IX program by all plaintiffs; (4) negligence by all plaintiffs; and (5) breach of contract by Posso and Rolf.
Plaintiffs are females who were students of Niagara. With the exception of Doe-2, all were members of the school’s swimming and diving teams. Doe-2 was a student at Niagara but not a member of the swimming or diving team.
Plaintiffs alleged that in 2017, prior to this case, Niagara had entered into a Voluntary Resolution Agreement with the United States Department of Education to resolve a sexual harassment complaint and address certain aspects of the school’s Title IX compliance. Plaintiffs alleged that despite this agreement, Niagara had failed to have policies and procedures to properly administer Title IX requirements. The lawsuit alleged that the school had been deliberately indifferent to a pattern of sexual harassment and sexual violence toward Plaintiffs and other female students since at least 2016.
Causes Of Action
As to the first cause of action, Posso, Rolf, and Doe-1 alleged that Niagara had subjected them to unequal treatment because the school had failed to provide separate women’s teams and instead utilized a co-ed structure that fostered a male-dominated, discriminatory environment.
As to the second cause of action, Posso, Rolf, and Doe-1 alleged that they were subjected to gender-based harassment that the swim team coach had actual knowledge of but either failed to correct or responded to with only deliberate indifference. Plaintiffs’ allegations included verbal harassment, including offensive and degrading comments about women by the coach and male swimmers, and instances of physically violent behavior toward female swimmers. Doe-2 alleged that she was sexually assaulted by a male swimmer in the fall of 2018. Doe-2 alleged that after reporting the assault and being convinced by Niagara that a “mutual no-contact order” was the appropriate response, she was further traumatized by threatening and intimidating phone calls by the swimmer and other male students.
In the fifth cause of action, Rolf alleged that Niagara had breached an express or implied agreement to provide her with a scholarship to attend the school. Rolf alleged that during her first two years at Niagara (2016-’17 and 2017-’18), she was sexually harassed by male swim team members and subjected to retaliation when she complained about the abuse. Rolf alleged that in February 2018, she forfeited her swimming scholarship to escape the harassment.
Posso, Rolf, and Doe-1 commenced their action against Niagara on September 20, 2019. On October 17, 2019, they filed an amended complaint that added Doe-2 as an additional plaintiff. On December 6, 2019, Niagara brought a motion to dismiss Doe-2’s Title IX claim (second cause of action), Plaintiffs’ claim of negligent administration of a Title IX program (third cause of action), Plaintiffs’ common-law negligence claim (fourth cause of action), and the breach of contract claim by Posso and Rolf. On July 29, 2020, in a memorandum in opposition to Niagara’s motion, Plaintiffs consented to dismissal of the third and fourth causes of action as to all Plaintiffs and the fifth cause of action, but only as to Plaintiff Posso. As a result, the issues before the court were Doe-2’s Title IX claim (second cause of action) and Plaintiff Rolf’s breach of contact claim (fifth cause of action).
Niagara’s motion sought dismissal of both causes of action for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Doe-2’s claim of gender-based harassment (second cause of action) alleged that Niagara was liable under Title IX because it had actual notice of discrimination both before and after she was sexually assaulted by a male swimmer. Doe-2 further alleged that Niagara was deliberately indifferent to harassment that occurred during both time frames. Niagara moved to dismiss the pre-assault claim on the grounds that Doe-2 had failed to allege that the school had acted with deliberate difference in responding to the prior harassment because (1) Niagara did not have notice of risk to students outside of the swim program, and (2) Niagara did not have notice of any prior sexual assaults. In seeking dismissal of the post-assault claim, Niagara asserted that Doe-2 had failed to plead facts adequate to support deliberate indifference by the school.
The court concluded that Doe-2 had plead a “plausible” pre-assault claim. In reaching this conclusion, the court’s detailed analysis noted that Plaintiffs had alleged a lengthy history of male swimmers bullying, intimidating, and humiliating female swimmers through sexual innuendos, degrading comments, and acts of physical violence. The court further noted that Plaintiffs had alleged that the swim coach had made sexually inappropriate remarks and that members of the athletic department and university administration had been made aware of the misconduct at various times. Thus, the court concluded, Plaintiffs had adequately pleaded that Niagara had “actual knowledge of a heightened risk” and that a reasonable jury could conclude that Niagara’s response to these incidents was unreasonable. As to Niagara’s second argument about notice of prior sexual assaults, the court concluded that given the type of conduct of which Niagara had notice, the school could reasonably foresee that the misconduct might escalate to sexual violence.
The court, however, reached the opposite conclusion as to post-assault claim of deliberate indifference, accepting Niagara’s argument that it should be dismissed because Doe-2 had failed to allege post-reporting conduct that was “severe, pervasive, and objectively offensive.” While noting that Doe-2 had made reports to Niagara that she had been sexually assaulted and had further reported a harassing telephone call from a man whom she believed to be individual who had assaulted her, the court observed that Doe-2 had not alleged that she had reported any ongoing offensive conduct after Niagara had issued the no-contact order. The court further concluded that even if the post-notice interactions amounted to actionable harassment, Doe-2 had failed to show that Niagara’s initial response was clearly unreasonable and had caused further harassment.
Finally, the court analyzed Rolf’s breach of contract claim, which Niagara challenged on the basis that it failed to state a plausible claim for relief under New York law. Rolf alleged that Niagara had breached express or implied agreements to provide her with an athletic scholarship and further alleged that Niagara’s deliberate indifference to sexual harassment by male swimmers created a hostile environment that made her performance of the contract impossible. In concluding that Rolf had failed to bring a cognizable claim for relief, the court noted caselaw holding that a university’s rules, guidelines, and general policy statements about fair and equal treatment cannot support a breach of contract claim. The court also observed that Rolf had failed to cite any New York caselaw holding that a student has a right to a harassment-free environment, including in the context of a scholarship decision. In sum, the court concluded that Rolf had failed to sufficiently allege when and how Niagara had breached a specific contractual promise. Thus, the court recommended that the fifth course of action be dismissed in its entirety.
The Posso court was clearly troubled by detailed allegations of ongoing sexual harassment and intimidation that suggested a potentially toxic school environment. Nonetheless, the court did not sway from an analysis based not on the allegations themselves but rather on what the plaintiffs might plausibly be able to prove. In that respect, the court gave the plaintiffs every consideration but not every benefit of the doubt.
 No. 19-CV-1293-LJV-MJR, 2020 U.S. Dist. LEXIS 205260 (W.D.N.Y. Nov. 2, 2020).
 Citing Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999), the court noted that sexual harassment is a form of discrimination for Title IX purposes and that student-on-student sexual harassment can be actionable under the statute if sufficiently severe. The court further noted that to survive dismissal of a student-on-student sexual harassment claim under Title IX, a plaintiff must allege that (1) a federally-funded educational institution (2) was deliberately indifferent to and (3) had actual knowledge of (4) sexual harassment that was “so severe, pervasive, and objectively offensive that it could be said to have deprived the plaintiff of access to educational opportunities or benefits. Roskin-Frezee v. Columbia Univ., No. 17-CIV-2032, 2018 U.S. Dist. LEXIS 28937 (S.D.N.Y. Feb. 21, 2018) (citing Davis, supra).
 This opinion was issued by United States Magistrate Judge Michael Roemer, whose findings constituted a Report and Recommendation that would be subject to objections to be considered by the District Court judge.