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Keel v. Delaware State University Board of Trustees

United States District Court, D. Delaware

February 8, 2019

MAI-AJAH KEEL, Plaintiff,
DELAWARE STATE UNIVERSITY BOARD OF TRUSTEES; CANDY YOUNG, in her individual capacity; PAULA DUFFY, in her individual capacity; and RANDOLPH JOHNSON, in his individual capacity, Defendants.

          Laura Davis Jones, James I. Stang, James E. O'Neill - Pachulski Stang Ziehl & Jones LLP, Wilmington, DE; Alexander S. Zalkin, Ryan M. Cohen - The Zalkin Law Firm, P.C., San Diego CA - Attorneys for Plaintiff

          James D. Taylor, Jr., Saul Ewing Arnstein & Lehr LLP, Wilmington, DE - Attorneys for Defendants February 8, 2019 Wilmington, Delaware



         Presently before the Court are the objections of Plaintiff Mai-Ajah Keel (“Plaintiff or “Keel”) (D.I. 20) to Magistrate Judge Fallon's Report and Recommendation (D.I. 19, “the Report”). The Report recommended granting the motion of Defendants Delaware State University Board of Trustees, Candy Young, Pamela Duffy, and Randolph Johnson (collectively “Defendants”) to dismiss this case. (D.I. 10). The Court has reviewed the Report (D.I. 19), Plaintiffs objections and Defendants' responses thereto (D.I. 20, 22), and the Court has considered de novo the objected-to portions of the Report and the relevant portions of Defendants' motion to dismiss and Plaintiffs response to the motion (see D.I. 10, 11, 14, 15, 17). For the reasons set forth below, Plaintiffs objections are OVERRULED, the Report is ADOPTED and Defendant's motion to dismiss is GRANTED.[1]

         I. BACKGROUND

         Plaintiff was a student at Delaware State University (“DSU”) prior to her graduation on December 21, 2015. (D.I. 1 ¶¶ 9, 44). Defendant DSU University Board of Trustees is “the official governing body of [DSU] and is charged with operating and governing [DSU] . . . .” (D.I. 1 ¶ 1). Defendant Candy Young (“Young”) was “the Director of the Title IX Office” at DSU. (D.I. 1 ¶ 2). Plaintiff alleges that Young “was responsible for participating in making, communicating, enforcing, and implementing all policies and practices at [DSU] with respect to Title IX, including insuring [DSU's] policies and procedures concerning Title IX comply with federal law.” (Id.) Defendant Paula Duffy (“Duffy”) is “the Director of the Office of Judicial Affairs at [DSU].” (Id. ¶ 3). Plaintiff alleges that Duffy is “responsible for overseeing the enforcement of [DSU] policies, regulations, and rules, including but not limited to compliance with the Student Code of Conduct, as well as implementing and overseeing any judicial proceedings relative to alleged violations of [DSU] policies, regulations, and rules and sanctions issued by the judicial body.” (Id.). Defendant Randolph Johnson “is the Director of Bands” at DSU and “is responsible for overseeing all band activities at [DSU] including providing supervision, direction, and insuring the safety of all band participants.” (Id. ¶ 4).

         Plaintiff filed her Complaint on December 19, 2017, alleging gender discrimination in violation of Title IX (Count 1) and violation of the Equal Protection Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 (Count 2). (D.I. 1 ¶¶ 53-66). The allegations arise from an alleged sexual assault of Plaintiff by another DSU student on November 22, 2013 and the subsequent actions (or inactions) of the Defendants with respect to Plaintiff following that assault. The timeline of Plaintiff's allegations is as follows:

         On November 22, 2013, Jason Faustin (“Faustin”), a fellow DSU male student, sexually assaulted Keel. (Id. ¶¶ 13-16). On or about November 25, 2013, Keel reported the assault to Dr. Brian Stark, a professor of criminology at DSU. (Id. ¶ 18). Thereafter, Keel was referred to Dr. Pauline Meek in DSU's counseling services department. (Id. ¶¶ 18-19). Despite Plaintiff “expressing her fear of encountering Faustin on campus, ” Dr. Meek arranged a meeting with Keel and Faustin “a couple of weeks” after the assault. (Id. ¶¶ 19-20). At the meeting, “Faustin apologized to Keel and agreed that he would no longer contact [her], including no longer touching or talking to her.” (Id. ¶ 20).

         Plaintiff continued to attend counseling sessions with Dr. Meek until February of 2015. (Id. ¶ 22). Plaintiff alleges that “during this time” Faustin continued “to repeatedly hug, touch, and attempt to speak with, and otherwise contact [her] . . . .” (Id.). Faustin reportedly “hugged Keel at band practice on an almost daily basis, making Keel angry and uncomfortable.” (Id.). Plaintiff reported this conduct to Dr. Meek. (Id.).

         “On or about August 22, 2014, and again on or about February 4, 2015, Keel reported” the assault anonymously through “silent witness forms on the [DSU Police Department (“DSUPD”)] website.” (Id. ¶¶ 23-24). On or about February 5, 2015, Plaintiff “detailed the rape to DSUPD Sergeant Joi Simmons, including that she told Faustin ‘no' and asked him to stop, but he continued to assault her.” (Id. ¶ 24). Plaintiff provided additional information to Sergeant Simmons, including Faustin's “history of this behavior, ” the identity of “five additional women” who purportedly had similar experiences with Faustin and Plaintiff's “mental and emotional anguish.” (Id.). “Later that day, Sergeant Simmons spoke with Faustin” who admitted that “Keel said stop several times and he did not stop.” (Id.). DSUPD continued its investigation later in February of 2015 - including talking to “several female students” who reported similar experiences to Plaintiff's. (Id. ¶ 30). Ultimately, Faustin was arrested. (Id. ¶ 27).

         After talking to Sergeant Simmons, Plaintiff “also spoke with Delaware State Title IX coordinator Candy Young.” (Id. ¶ 26). Plaintiff alleges that she “detailed the rape and subsequent harassment she suffered to Ms. Young” and informed her of Plaintiff's “academic struggles and that she shared class with Faustin. Despite this, Ms. Young failed to offer accommodations to Keel. Further, despite agreeing to provide Keel with a no contact order, Ms. Young never followed through with enacting a no contact order.” (Id. ¶ 26).

         Eventually Faustin was arrested. After Faustin's arrest, Keel alleges that she suffered harassment from DSU students and employees. (Id. ¶¶ 27-28). This included students “making aggressive gestures and calling her derogatory names” and on one occasion threatening to push her as she walked past. (Id.). With respect to DSU employees, Plaintiff alleges that as she “struggled with the ramifications of the sexual assault and the ongoing retaliatory behavior from other students, her attendance at band functions decreased. In response, Assistant Band Director Lenny Knight made harassing comments to Keel such as that he was tired of people who did not show up for band or who did not care because of ‘bullshit' and ‘drama.'” (Id. ¶ 28). Plaintiff alleges that Mr. Knight “berated” her for “making big things out of little things” and that he “ignored her concerns and made no attempt to stop the behavior.” (Id.).

         In March 2015, DSU “began a series of hearings to adjudicate whether Faustin was responsible for the sexual assault and rape of Keel.” (Id. ¶ 33). “On or about March 31, 2015, the panel hearing the complaint found Faustin ‘not responsible' for the sexual assault, rape, and harassment of Keel.” (Id. ¶ 36). Thereafter, on April 2, 2015, Keel appealed this decision, and a new hearing was granted on April 14, 2015 based on a “lack of due process, i.e. when a student can show an error in the hearing or arbitrariness in the finding against the weight of the evidence.” (Id.). On May 11, 2015, “a second panel found Faustin ‘responsible' for the sexual assault and rape of Keel” and suspended him for “a minimum of one (1) academic year - specifically 2015-2016.” (Id. ¶ 37). In doing so, the panel stated:

Having been found responsible for the sexual assault and rape of the complainant, the respondent is in violation of the General Standards of Conduct and Decorum and has exhibited violent behavior by sexually assaulting and raping the complainant. (Delaware State University, Division of Student Affairs Student Judicial Handbook, p. 5) Furthermore, the complainant has a right to continue her education and feel as though she is matriculating in a safe and secure academic environment. The complainant is now a senior. Removing the respondent for at least the 2015-2016 academic year will provide the complainant with the opportunity to do so.

(Id. ¶ 38).[2] Plaintiff alleges that she was also informed that “Faustin would not be allowed on campus, but assured . . . that if he were to come on campus, she would be informed and provided a police escort.” (D.I. 1 ¶ 39).

         Plaintiff alleges that “[i]n or about September of 2015, [DSU] allowed Faustin back on campus.” (Id. ¶ 40). Specifically, she alleges that she entered her advisor's office and she came into “direct contact” with Faustin who was seated in the faculty member's office. (Id.) There is no allegation that the two were ever alone or unsupervised. Nor is there any allegation that DSU or any of the named Defendants had expected Keel would visit the office that day or that other security measures were not in place. Keel alleges, on information and belief, that Faustin “was allowed on the [DSU] campus” on “multiple occasions, ” though there are no allegations that she ever saw him again, nor are there allegations regarding the time frame during which he was purportedly on campus. (Id. 41).

         Keel graduated from DSU on December 21, 2015. (Id. ¶ 44). The following semester, DSU readmitted Faustin earlier than the time originally set based on the condition that he “abide by the Student Code of Conduct, ” and noting his prior unacceptable behavior. (Id. ¶ 46).


         A. Motion to Dismiss for Failure to State a Claim

         In ruling on a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must accept all well-pleaded factual allegations as true and view them in the light most favorable to the plaintiff. See Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010); see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232-33 (3d Cir. 2008). “To survive a motion to dismiss, [however, ] a civil plaintiff must allege facts that ‘raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact).'” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Dismissal under Rule 12(b)(6) is appropriate if a complaint does not contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570)); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The Court is not obligated to accept as true “bald assertions” or “unsupported conclusions and unwarranted inferences.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) Schuylkill ...

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