United States District Court, D. Delaware
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
D. Taylor, Jr., Saul Ewing Arnstein & Lehr LLP,
Wilmington, DE - Attorneys for Defendants February 8, 2019
NOREIKA, U.S. DISTRICT JUDGE
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.
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. ¶
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
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.
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.).
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).
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).
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.).
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
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). 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).
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.
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. ¶
Motion to Dismiss for Failure to State a Claim
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 ...