United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
J. MCCONNELL, JR., UNITED STATES DISTRICT JUDGE.
("John") was a student at Brown University who was
accused of sexual assault by a female classmate. He alleges
in his twelve-count Second Amended Complaint (ECF No. 21)
that Brown's student conduct hearing and events in its
aftermath were motivated by discriminatory animus, and that
Brown violated certain contractual obligations. The immediate
issue here is Brown's Motion to Dismiss based on pleading
issues and statutes of limitations. ECF No. 22. The Court
begins with a recitation of the necessary plausible facts as
pleaded by John in the light most favorable to him, the
nonmovant plaintiff, followed by an analysis of the legal
issues raised in the motion.
was a freshman at Brown in the fall of 2013. He is an
African-American male and was a member of a Brown varsity
sports team. In September 2013, he went to a local bar and
met a fellow Brunonian, sophomore Jane Doe
("Jane"). Jane is white and a member of a sorority
at Brown. At the bar, both John and Jane consumed alcohol,
although they were both under the legal drinking age. They
went outside, sat at a picnic table where they
"flirted" with each other, and then headed into an
alley and began kissing. In the back alley, they engaged in
some "kinky" behavior. Jane bit John's lip and
choked him. She pushed him against the wall and held him
there. John had to defend himself against Jane's
advances. Jane restrained John and tried to keep him from
leaving. She was the more aggressive one and at one point
told John, "I make the rules." Two and a half
months later, in December 2013, Jane filed a written
complaint with Brown against John. Brown charged John with a
Level 1 offense, sexual misconduct (a nonconsensual contact
involving violence or intimidation); a Level 3 offense,
sexual misconduct (a nonconsensual contact); and underage
drinking. John subsequently complained to Brown about his
encounter with Jane, but Brown brought no charges against
Student Conduct Board hearing took place in February 2014.
Brown treated John and Jane differently at the hearing. Brown
allowed Jane to amend her initial statement without having
first submitted it to the Student Conduct Board at least
twenty-four hours in advance. John had no opportunity to
prepare a defense to this "new" statement of
allegations, nor did Brown allow John to question Jane about
changes in her statement. Brown allowed Jane to allege and
argue conclusory statements based on "racist and/or
misandristic" stereotypes, but prohibited John from
making conclusory statements. Brown prohibited John from
asking Jane about her intentions when she bit John's lip,
choked him, and pinned him against the wall. Brown allowed
Jane to accuse John's coach of "creating a
misogynistic and hyper masculine environment."
Jane's story was inconsistent from her original statement
and from statements she made to friends after the incident.
Brown prohibited John from asserting his claims that Jane had
assaulted him and engaged in coercive, nonconsensual sexual
touching and underage drinking.
Student Conduct Board found John "not responsible"
for offenses involving "violent physical force,
penetration, or injury" but "responsible" for
"nonconsensual contact and underage drinking." The
Board issued a protective order so that John and Jane were
not to have contact. The Board also imposed a sanction of a
one-year deferred suspension against John. Jane appealed the
sanction arguing that Brown should have expelled John. Brown
denied her appeal.
the investigation and afterwards, Jane breached
confidentiality restrictions by discussing the proceedings
with others. She told others that John was a sexual predator
and a danger to the Brown community. John complained of this
breach of confidentiality to Dean Maria Suarez, but Brown
took no action against Jane.
end of the semester, just before exams in May 2014, John
received two letters from Brown administrators: one alleging
that he may have committed sexual misconduct involving
another Brown student, Sally Roe,  and the other informing him
that "effective immediately [he] was separated and
barred from the Brown University campus on an interim
basis." Brown conducted no pre-charge investigation. The
day before Brown sent the letters to John, Dean Suarez called
John's coach and said, "We got your boy now. He is
out of here."
sought counsel from Deans Yolanda Castillo-Appollonio and
Suarez.Dean Suarez informed him that, unless he
could prove he was not present, he would "pretty
much" be found guilty and expelled since he already was
serving a deferred suspension.
allowed John to remain on campus only until 5 p.m. following
his last exam. Because of the stress of the accusations, John
failed two exams resulting in Brown placing him on academic
warning. He returned home for the summer.
the summer of 2014, John and his parents asked Brown several
times to clarify the new charges. John's only memory of
Sally is that he met her at a party in October 2013, and that
they "made out" in a dorm bathroom. John and his
parents wanted to know why Brown would have immediately
removed him from campus for an incident that allegedly
occurred six months beforehand. In August 2014, Brown
informed John that the investigation had concluded and he was
free to return to campus and continue his studies. Brown
offered no further explanation.
returned to Brown in September 2014 for his sophomore year.
The incidents the previous school year had caused him to
become depressed. After a non-sexual encounter one evening in
October with a female classmate, self-doubt overcame John. He
started to scream and "threw himself into an oncoming,
moving vehicle. He landed on the windshield, cracking it, and
started thrashing and screaming, beating his arms and
crying." John suffered bruises and lacerations and was
was discharged four days later! that day, Dean Suarez
"summoned John and his mother to an 'urgent'
meeting" and informed John that if he did not leave the
University, he could expect to face hearings on "several
matters," including for damage to the vehicle sustained
by his attempt at self-harm, which would be brought up as a
vandalism charge. She also told him that there was an
allegation that he had violated his no-contact order with
Jane, and that the University could revive the allegations
involving Sally. Within the week, John left campus.
John first applied to return to Brown for the fall 2015
semester, Brown denied his application claiming John's
severe emotion distress required a lengthier period of
"sustained stability." When John appealed, Brown
granted the appeal and allowed him to return.
2015-16 academic year was rather uneventful as far as our
story goes, Jane was on leave from Brown for the academic
year. Yet John did find out more about Sally and the
allegations she had made against him. Sally informed John
that Jane had a "major role" in her complaint
against him. She said that Dean Suarez and Vice President
Margaret Klawunn had summoned her to their office and
interviewed her about whether she had ever interacted with
John. They asked her a series of leading questions about her
encounter with John. Sally also told John that after she
joined Jane's sorority, they shared stories about men, at
which time they learned they both knew John. Jane told Brown
officials she could produce another "victim" of
John's. According to Sally, Brown officials generated the
claim against John, as Sally herself never felt anything
"bad" had happened between them him and never filed
a complaint against him. Sally apologized to John for the
grief she had caused him.
Jane came back to campus for the 2016-17 academic year, Brown
again imposed a no-contact order between John and Jane.
and his family assert that John was targeted because of his
gender, race, and racial stereotypes about black athletes.
filed his complaint on May 4, 2017, against Brown
University. ECF No. 1-1, He filed an amended complaint
on September 29, 2017 (ECF No. 11) which Brown moved to
dismiss (ECF No. 12). The Court denied the motion to dismiss
without prejudice and granted John leave to file a Second
Amended Complaint, which he did on December 11, 2017. ECF No.
21; Text Order, Dec. 11, 2017.
Second Amended Complaint asserts twelve Counts:
I through IV: Title IX of the Education Amendments of
1972, 20 U.S.C. § 1681 et seq, (hostile
education environment/sexual harassment, erroneous outcome,
and selective enforcement). ECF No. 21 at 31-42. Title IX
No person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any education program or
activity receiving Federal financial assistance ....
V: Title VI of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000d et seq. (racial discrimination). ECF
No. 21 at 42-45. Title VI reads:
No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination
under any program or activity receiving federal financial
VI through VIII: Rhode Island Civil Rights Act
C'RICRA"), R.I. Gen. Laws § 42-112-1 (gender
discrimination, racial discrimination, and disability
discrimination). ECF No. 21 at 45-54, Counts IX-XI:
Rhode Island state common law (intentional infliction of
emotional distress, breach of contract, breach of the
covenant of good faith and fair dealing). Id. at
XIL42 U.S.C. § 1981 (unequal rights under the law
by racial discrimination). ECF No. 21 at 63-65. Section
All persons within the jurisdiction of the United States
shall have the same right in every State and Territory to
make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is
enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exactions
of every kind, and to no other.
has again moved to dismiss the complaint (ECF No. 22), to
which John objects (ECF No. 24), and Brown replies (ECF No.
26). The Court held a hearing on the motion.
STANDARD OF REVIEW
survive a motion to dismiss for failure to state a claim, a
complaint must 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 Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The Court must
accept a plaintiffs allegations as true and construe them in
the light most favorable to him. Gargano v. Liberty
Int'l Underwriters, Inc., 572 F.3d 45, 48 (1st Cir.
2009). "A Rule 12(b)(6) motion will be granted only if,
when viewed in this manner, the pleading shows no set of
facts which could entitle plaintiff to relief."
Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st
Cir. 1988) (citing Conley v. Gibson, 355 U.S. 41,
defendant raises a statute of limitations defense in its
motion to dismiss, dismissal "is entirely appropriate
when the pleader's allegations leave no doubt that an
asserted claim is time-barred." LaChapelle v.
Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir.
moving to dismiss, Brown raises two main arguments
'• that the statute of limitations bars
some claims and that many claims are implausible and thus
warrant dismissal. The Court addresses each, and the related
issues they present, in turn.
Statute of Limitations
asserts that five of the six federal claims-the Title IX and
Title VI claims in Counts I through V-are barred by a
three-year statute of limitations.Therefore, Brown argues, the
Court must exclude John's allegations that predate May 4,
2014, from those Counts. This would exclude all the
allegations involving Jane that took place during the 2013-14
on the other hand, asserts that the continuing violation
doctrine as enunciated by the Supreme Court in National
Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002),
applies and that none of his allegations against Brown are
time-barred. The First Circuit has defined this doctrine as
"an equitable exception that allows . . . damages for
otherwise time-barred allegations if they are deemed part of
an ongoing series of discriminatory acts and. there is some
violation within the statute of limitations period that
anchors the earlier claims." Loubriel v. Fondo del
Seguro del Estado, 694 F.3d 139, 144 (1st Cir. 2012)
(quoting O'Rourke v. City of Providence, 235
F.3d 713, 730 (1st Cir. 2001)).
Continuing Violation Doctrine - Applicability
first question is whether the continuing violation doctrine
applies to Title IX and Title VI. This appears to be an open
question in our circuit, but two other circuits suggest that
it does apply. Papelino v. Albany Coll. of Pharmacy of
Union Univ., 633 F.3d 81, 91 (2d Cir. 2011) (applying
doctrine to Title IX); Stanley v. Trs. of Cal State
Univ., 433 F.3d 1129, 1136-37 (9th Cir. 2006) (same).
Supreme Court's decision in Morgan involved
discrete claims of retaliation and discrimination, as well as
hostile environment claims, all under Title VII. 536 U.S. at
105. The Court held that "discrete discriminatory acts
are not actionable if time barred, even when they are related
to acts alleged in timely filed charges." Id.
at 113. That said, the Court distinguished between discrete
acts and claims based on a hostile environment. Id.
at 115. When there is a hostile environment, an unlawful
practice "cannot be said to occur on any particular day.
It occurs over a series of days or perhaps years and, in
direct contrast to discrete acts, a single act, . . may not
be actionable on its own." Id. Hostile
environment claims are "based on the cumulative effect
of individual acts." Id. The Court therefore
explained, "[i]t does not matter, for purposes of the
statute [of limitations], that some of the component acts . .
. fall outside the statutory time period. Provided that an
act contributing to the claim occurs within the filing
period, the entire time period of the hostile environment may
be considered . . . ." Id. at 117.
Brown argues that this logic does not apply here, the First
Circuit looks to Title VII for guidance in interpreting Title
IX. See Frazier v. Fairhaven Sch. Comm., 276 F.3d
52, 65 (1st Cir. 2002) ("We have not previously
considered a Title IX claim of sexual harassment involving a
plaintiff and defendant of the same gender. For guidance, we
turn to Title VII of the Civil Rights Act of 1964.");
see also Wills v. Brown Univ., 184 F.3d 20, 25 n.3
(1st Cir. 1999) (recognizing that some aspects of Titles VII
and IX are to be construed in pari material) Lipsett v.
Univ. of P.R, 864 F.2d 881, 896-98 (1st Cir. 1988)
(applying Title VII sexual harassment legal framework to
similar Title IX allegations). Furthermore, the differences
between Title IX and Title VI vis-vis Title VII, highlighted
by Brown (ECF No. 26 at 4), do not suffice to cause the Court
to change course.
Court therefore concludes that the doctrine announced in
Morgan can apply to Title IX claims where there is a
continuing violation. By extension, this applies to Title VI
as well. See Gebser v. Lago Vista Indep. Sch. Dist,
524 U.S. 274, 286 (1998) (noting that Title IX < 'was
modeled after Title VI . . . which is parallel to Title IX
except that it prohibits race discrimination, not sex
discrimination, and applies in all programs receiving federal
funds, not only in education programs"). 2. Continuing
Violation Doctrine - Application The next question is whether
the continuing violation doctrine applies to John's Title
IX and Title VI claims. At first blush, Brown's two
investigations into John appear to be discrete, separable
events with independent beginnings and ends. That said, the
Court believes that the facts, as pleaded, tell the tale of a
singular ongoing and evolving interaction between John and
Brown, motivated by discriminatory animus, which gives rise
to certain of his claims, John first learned of Brown's
investigation of the Sally incident on May 7, 2014, a date
within the three-year "anchor" period. See
Loubriel, 694 F.3d at 144. This second
investigation-from its inception to its consequences for John
to its ultimate conclusion-is linked to the first
investigation involving John and Jane. As pleaded, the
initial investigation, though seemingly outside the statute
of limitations, is the source of the discrimination faced by
John during the second investigation.
alleges that, after the first investigation, Brown
administrators had "a clear agenda in going after
John" and "wanted John removed from Brown
permanently." This is borne out by what Sally later told
John: that she never complained to Brown about their
encounter! that the complaint had originated with Jane, who
told Brown she could produce another "victim" of
John's; and that Brown asked Sally leading questions in
interviewing her to generate a claim against John. The
administrators also made comment such ...