Morgan Pearson v. Logan University

United States Court of Appeals
For the Eighth Circuit
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No. 18-2764
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Morgan Katelin Pearson; Kirsten Elizabeth Kirkpatrick
lllllllllllllllllllllPlaintiffs - Appellants
v.
Logan University, doing business as Logan College of Chiropractic
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: April 17, 2019
Filed: September 4, 2019
[Published]
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Before SMITH, Chief Judge, KELLY and KOBES, Circuit Judges.
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PER CURIAM.
Morgan Katelin Pearson and Kirsten Elizabeth Kirkpatrick each sued Logan
University under Title IX of the Education Amendments of 1972, 20
U.S.C. §§ 1681–1688, as well as various state laws, alleging that Logan failed to
protect them against stalking and sexual harassment by a fellow student (FS). The
district court granted summary judgment for Logan, which Pearson and Kirkpatrick
appeal. We affirm.
I
We draw the following background facts from the summary judgment record,
viewing the evidence in the light most favorable to Pearson and Kirkpatrick. See
Schilf v. Eli Lilly & Co., 687 F.3d 947, 948 (8th Cir. 2012).
In September 2015, Pearson and Kirkpatrick enrolled as undergraduate students
at Logan. Logan’s academic catalog contains its harassment policy. According to the
catalog, a student who wants to complain of stalking or sexual assault should contact
Logan’s Title IX Coordinator, who will commence an investigation within seven days
of notification.
On December 8, 2015, Pearson met with Sandra Periello, Logan’s Associate
Dean of Students. Pearson complained that FS would come into the library — where
she worked — to stare at her, that he would stare at her during chemistry lab, and that
he once pressed himself up against her in November in the cadaver lab. Periello told
Pearson to write down what happened to her and that Periello would give her
statement to Shelley Sawalich, Logan’s Dean of Students and Title IX Coordinator.
On December 9, Periello emailed Pearson, reminding her to provide a written
statement. Pearson responded by asking to meet with Sawalich, stating she believed
another dean had allowed FS to take Pearson’s same “complete schedule” in the next
trimester. Sawalich and Pearson then exchanged emails to set up a meeting that same
day.
At their December 9 meeting, Pearson repeated to Sawalich what she had told
Periello with respect to FS’s conduct and provided the names of four people who she
said had witnessed the harassment. Pearson said that she was “terrified of being
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raped.” She also agreed with Sawalich that the November incident in the cadaver lab
may have been an accident.
Sawalich labeled Pearson’s allegations as harassment and stalking and said that
she was required to investigate FS’s conduct. Sawalich told Pearson that she had the
option to remain anonymous as the complainant. Pearson asked how Sawalich would
interview her witnesses while maintaining her anonymity, and Sawalich gave Pearson
an example of the kind of question Sawalich would ask. Pearson elected to remain
anonymous. Sawalich explained that she was not going to move forward with the
investigation at the time because she had another case to “take care of” and Logan’s
finals and holidays were coming up, but told Pearson that before meeting with FS, she
would email Pearson. Sawalich asked Pearson for a written statement, which she
expected to receive from Pearson by Monday, December 14. She wanted the written
statement “to assist with understanding the situation, interactions, and timeline” of
relevant events.
On December 14, Pearson emailed Sawalich that she was “pinched for time”
and asked, “Is it okay if I send it to you via email by next Monday?” On December
15, Sawalich responded,“You are welcome to get me the information next week . . .
. What this means, though, is that I won’t really be able to move forward until next
trimester with the investigation. Is that okay with you?” Pearson did not respond to
that question.
On December 21, Pearson sent her written statement to Sawalich. In her
statement, Pearson claimed that at the beginning of the semester FS had made several
attempts to spend time with her outside of class, wanting to study with her and
waiting at the end of class to walk out with her. She stated that FS suggested they
could drink beer while studying together, which she found inappropriate because he
knew she was underage and did not drink. FS was in his early thirties. After she
began working at the library, FS would come to the library every day and watch her,
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trying to find opportunities to interact with her. She claimed that he would always
sit at a nearby table and often appear to not be doing homework or other library-
related work. She alleged that in class, FS would “try to jump into conversations” she
was having with other people. Pearson also stated that she thought FS was trying to
take her very same schedule in the next trimester, which made her uncomfortable
because she believed he had no good reason to do so. Pearson made no mention in
her statement of the November incident in the cadaver lab. Sawalich replied that
same day, stating that she would review Pearson’s statement and “call [FS] in to talk”
after he returned to campus. Sawalich also stated, “I . . . want to reiterate that
Logan’s ability to meaningfully investigate the incident and pursue disciplinary action
may be limited because of the attempt to maintain confidentiality.”
Sawalich met with FS on January 8, 2016, and again on January 15, 2016, but
did not email Pearson in advance of either meeting. Among other things, she told him
there had been a complaint filed against him, and reminded him of Logan’s policy
against retaliation. On January 16, Pearson emailed Sawalich for an update, stating
that FS continued to make her feel unsafe on campus. Sawalich responded that same
day, telling Pearson she had met with FS twice and asking Pearson to meet on January
19, after the holiday weekend. At that meeting, Pearson told Sawalich that she
continued to feel uncomfortable. She believed FS had followed her inappropriately
at a school event and had stopped to watch as a female classmate measured her hip
bone at the library. Sawalich told Pearson that FS had been very angry at their first
meeting and that she had reiterated to FS at the second meeting that retaliation would
be “frowned upon.” Sawalich explained that she had not interviewed any of
Pearson’s witnesses because Sawalich did not believe that she could maintain
Pearson’s anonymity while doing so.
On February 1, Pearson met with Boyd Bradshaw, Vice President for
Enrollment Management, to complain about Sawalich’s handling of the investigation.
On February 3, Pearson met with both Bradshaw and Sawalich to address her
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concerns and to discuss reopening the case. They also agreed that FS would be asked
to stay out of the library and instructed to have no contact with Pearson. Pearson
decided to drop her request for anonymity.
Sawalich began reaching out to witnesses. Kirkpatrick was one of those
witnesses. Sawalich interviewed Kirkpatrick on February 4. Kirkpatrick told
Sawalich that on the first day of school, FS solicited her phone number by saying he
was getting everybody’s phone numbers, but after she gave him her number it seemed
that she was the only one he asked. He started texting that Friday, wanting her to go
to the library with him on Saturday. She eventually told him that she had a boyfriend,
but FS continued to text her. Kirkpatrick stopped answering. In total, they
exchanged approximately 15 texts that day. She told Sawalich that when she first met
FS she thought he was “creepy,” but she also said she “was fine now.” Later,
Kirkpatrick explained she said that because she did not want FS to be upset with her
when he read Sawalich’s findings. She also explained that before Sawalich emailed
her, she had no plans to call or go see Sawalich, and that she had never communicated
any complaints about FS’s conduct before her February 4 interview.
On February 6, a Saturday, Pearson emailed Sawalich that she feared FS was
retaliating against her because she heard that he was spreading rumors that Pearson
had falsely accused another student at her old school of harassing her and that she is
overly dramatic. On February 8, Sawalich responded that she was planning to meet
with FS that same day and would address the alleged retaliation. When she met with
FS, Sawalich told him that he was prohibited from going into the library during the
duration of the investigation and from having any contact with Pearson.
On February 22, Sawalich emailed Pearson, explaining that she had talked with
witnesses for both Pearson and FS, and that she was putting together information for
a written report to Logan’s Honor Council. She also asked Pearson for the text
messages that Pearson had mentioned in her written statement and for clarification
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as to whether Pearson ever told FS “in general terms that [Pearson] was not interested
in interacting with him at all and that he should . . . leave [her] alone.” On February
26, Sawalich and Pearson met once more. In response to Sawalich’s question,
Pearson explained that she had on “countless” occasions told FS not to talk to her and
that she would ignore FS and reject his attempts to interact with her. Pearson also
told Sawalich that she thought that FS was now blaming her for his poor academic
performance. On February 28, Pearson wrote Sawalich that she was unable to
retrieve any of the text messages and asked Sawalich to move forward without them.
In early March, Sawalich circulated a written report of her investigation to
Logan’s Honor Council, Pearson, and FS. Among other things, the written report
stated that Sawalich had spoken to both Pearson and FS, that both Pearson and FS
had identified potential witnesses, and that Sawalich had interviewed fourteen people
in addition to Pearson and FS. The report summarized that “12 of the people said that
they witness[ed] no interactions at all between [FS] and [Pearson] or very few
interactions; nothing out of the ordinary.” According to the report, one of the other
witnesses said that she had “witnessed interactions between [FS] and the other girls
in their classes that she found uncomfortable and she feels like he takes it further with
[Pearson] . . . [and] that he is always around and staring.” The other witness
purportedly said that Pearson seemed “uncomfortable” around FS, and that FS had
been asking questions about the work schedules of other students in the library. In
addition to the written report, Sawalich also circulated summaries of her witness
interviews, including her conversations with Pearson and FS. She did not circulate
her handwritten notes.
Pearson believed that Sawalich was trying to blame her for the investigation
and omitting information from her witnesses and otherwise twisting their words. She
circulated a written response on March 6, and met with Boyd on March 7 to express
her disappointment with the written report. Also on March 7, Sawalich interviewed
an additional witness. She sent Pearson’s and FS’s written responses to the report,
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as well as her notes from the additional witness interview, to the Honor Council.
Pearson met with the Honor Council on March 8, and FS met with the Honor Council
on March 10. On March 11, the Honor Council issued its decision, determining that
there was insufficient evidence to find FS responsible for stalking and harassment.
It also stated:
There is to be no personal contact between you two. Neither of you may
contact or attempt to contact the other. Due to the decision, there are no
limitations to utilization of common space or campus resources. In
clarity, you both may use Logan’s facilities without limitations (I.e.,
LRC/Library, hallways, cafeteria, classrooms, etc.) but are prohibited
from any personal social contact (i.e., calling, texting, etc.). In social
settings, such as Logan sponsored events you should ignore each other.
Sawalich informed Pearson and FS that either student could have the Honor Council’s
decision reviewed by Kimberly O’Reilly, Logan’s Vice President of Academic
Affairs.
On March 14, Pearson and her mother met with Bradshaw and O’Reilly to
discuss the review process, and on March 15, Pearson submitted a written request to
have O’Reilly review the decision. On March 20, Pearson emailed O’Reilly that she
did not feel safe on campus and was afraid to return to the library. On March 21,
O’Reilly replied, reminding Pearson of the security and safety measures that were
available to her on campus and to contact Sawalich immediately if FS violated the no-
contact order. O’Reilly also reminded Pearson that—even though she had previously
turned it down—she still had the option to switch to a work-study position outside
of the library. On March 31, O’Reilly emailed Pearson, explaining that she would
stay her decision on the appeal to give Pearson time to get phone records showing the
text messages FS sent her. On April 4, Pearson met with O’Reilly and told her that
she could not obtain the text messages. That same day, O’Reilly lifted her stay and
rendered her decision, finding that “the process outlined in [Logan’s harassment
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policy] was followed and all evidence provided was reviewed [by the Honor
Council].” By that fall, both Pearson and Kirkpatrick had transferred schools.
Pearson and Kirkpatrick sued Logan, claiming that Logan failed to adequately
respond to their complaints about FS’s conduct and that they left Logan in large part
due to this inadequate response. Logan moved for summary judgment on all of
Pearson’s and Kirkpatrick’s claims. The district court granted the motion, concluding
that Pearson’s Title IX claim failed because she could not show that Logan was
deliberately indifferent to her plight, Kirkpatrick’s Title IX claim failed because
Logan never had actual knowledge that she was subject to sex-based discrimination,
and their remaining negligence and premises liability claims failed because they did
not demonstrate that Logan owed them a duty of care to protect them against student-
on-student harassment. Pearson and Kirkpatrick appeal.
II
“We review a grant of summary judgment de novo, viewing the facts in the
light most favorable to the nonmoving party.” Walz v. Ameriprise Fin., Inc., 779
F.3d 842, 844 (8th Cir. 2015). “The non-moving party receives the benefit of all
reasonable inferences supported by the evidence, but has the obligation to come
forward with specific facts showing that there is a genuine issue for trial.” Id.
(quoting B.M. ex rel. Miller v. S. Callaway R-II Sch. Dist., 732 F.3d 882, 886 (8th
Cir. 2013)).
A
Title IX addresses discrimination on the basis of sex in any educational
program that receives federal funding. Roe v. St. Louis Univ., 746 F.3d 874, 881 (8th
Cir. 2014). Under its terms, “[n]o 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
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discrimination under any education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). Title IX provides a private right of action, see
Cannon v. Univ. of Chi., 441 U.S. 677, 717 (1979), which extends to suits for
compensatory damages against any public or private entity other than a state,
Fryberger v. Univ. of Ark., 889 F.3d 471, 475 (8th Cir. 2018). To succeed on a Title
IX claim based on harassment by another student, a plaintiff must show that the
educational institution was “(1) deliberately indifferent (2) to known acts of
discrimination (3) which occur[red] under its control.” K.T. v. Culver-Stockton Coll.,
865 F.3d 1054, 1057 (8th Cir. 2017) (quoting Ostrander v. Duggan, 341 F.3d 745,
750 (8th Cir. 2003)). “Additionally, the discrimination must be so severe, pervasive,
and objectively offensive that it can be said to deprive the victim of access to the
educational opportunities or benefits provided by the school.” Id. (cleaned up).
1
We begin with Kirkpatrick’s Title IX claim, which the district court dismissed
because it determined that Kirkpatrick could not show that Logan had actual
knowledge that Kirkpatrick was subject to harassment by FS. There is no evidence
that Logan knew of any complaints about FS’s behavior before September 2015,
when the only interactions that made Kirkpatrick uncomfortable occurred. And
Kirkpatrick spoke to a Logan administrator about FS’s behavior only once, in her
February 4 interview with Sawalich. At that meeting, she told Sawalich that,
although she used to think FS was creepy, she “was fine now.” Viewing the evidence
in the light most favorable to Kirkpatrick, she provided after-the-fact notice that she
found limited interactions with FS at the beginning of the school year distressing.
But such after-the-fact notice of limited interaction is insufficient to satisfy Title IX’s
actual knowledge requirement. See Culver-Stockton Coll., 865 F.3d at 1058.
Because Kirkpatrick cannot satisfy the actual knowledge element, her Title IX claim
fails as a matter of law and the district court properly granted summary judgment in
favor of Logan on that claim.
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2
We turn next to Pearson’s Title IX claim, which the district court dismissed
because it determined that Pearson could not show that Logan was deliberately
indifferent to her complaints. As we have explained, “[a] school is deliberately
indifferent when its ‘response to the harassment or lack thereof is clearly
unreasonable in light of the known circumstances.’” Maher v. Iowa State Univ., 915
F.3d 1210, 1213 (8th Cir. 2019) (quoting Davis ex rel. LaShonda D. v. Monroe Cty.
Bd. of Educ., 526 U.S. 629, 648 (1999)), cert denied, No. 18-1463, 2019 WL
2256264 (U.S. June 24, 2019). We have cautioned that the “clearly unreasonable”
standard is “intended to afford flexibility to school administrators.” Roe, 746 F.3d
at 882. “[D]issatisfaction with [a] school’s response does not mean the school’s
response can be characterized as deliberate indifference.” Maher, 915 F.3d at 1213.
It is undisputed that Logan did investigate Pearson’s allegations of stalking and
harassment and that, even though its Honor Council ultimately determined that there
was insufficient evidence to find FS responsible, it instructed Pearson and FS to have
no contact with each other. In Maher, the university’s investigative report revealed
that the Title IX plaintiff had been sexually assaulted, but the university declined to
move the alleged perpetrator before the investigation and hearing process had
concluded. Id. at 1212. Nevertheless, we determined that instituting a no-contact
order and giving the Title IX plaintiff housing alternatives so that she would not have
to live in proximity to her assailant—which she declined—did not constitute
deliberate indifference. See id. at 1212–13. Here, Logan’s investigation did not
conclude that FS engaged in stalking or harassment. But Logan still instituted a no-
contact order and gave Pearson the option of taking a work-study position at a
location other than the library. Pearson made no attempt to enforce that no-contact
order or accept an alternative work-study position before leaving Logan.
Nonetheless, Pearson contends that Logan was clearly unreasonable in its
investigation and adjudication of her complaint.
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The summary judgment record reveals no triable issue of fact as to whether
Logan’s response to and investigation of Pearson’s complaint were clearly
unreasonable. Any delays in investigating Pearson’s complaint do not show that
Logan ignored the harassment or stalking that Pearson described. Pearson
complained of FS’s behavior in December, shortly before the winter holidays. After
Pearson described a continuing pattern of conduct that made her feel uncomfortable,
Sawalich requested a written statement to better understand “the situation,
interactions, and timeline” of relevant events. When Pearson requested additional
time to prepare her statement, it was not clearly unreasonable for Sawalich to wait for
Pearson before continuing her investigation. Possible student witnesses may also
have had limited availability for interviews given that winter break started only five
days later, and Pearson’s request indicated that she was comfortable delaying the
investigation. Indeed, when Sawalich specifically asked if it would be “okay with
[Pearson]” if Sawalich began her investigation in earnest after the students had
returned to campus, Pearson did not object. And Sawalich asked to speak to FS as
soon as classes resumed and did speak to FS in early and mid-January, after which
she determined that she could investigate no further while respecting Pearson’s
request for anonymity.
Pearson contends that Sawalich unreasonably delayed the investigation by not
reaching out to other witnesses until Pearson dropped her anonymity in early
February, but limiting the scope of an investigation out of respect for a Title IX
complainant’s desire for confidentiality does not by itself constitute deliberate
indifference. See Roe, 746 F.3d at 883 (holding university was not deliberately
indifferent where, among other things, university did not inform student’s parents or
professors of sexual assault out of respect for student’s desire for confidentiality); see
also Kesterson v. Kent State Univ., 345 F. Supp. 3d 855, 876 (N.D. Ohio 2018)
(collecting cases), appeal docketed, No. 18-4200 (6th Cir. Dec. 5, 2018). After
Pearson dropped her request for anonymity, Sawalich promptly reached out to
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witnesses and instructed FS to stay out of the library during her investigation and to
have no contact with Pearson.
Similarly, the Honor Council proceedings do not show that Logan was clearly
unreasonable in its adjudication of Pearson’s allegations against FS. Although
Pearson contends that the Honor Council impermissibly relied on several statements
in Sawalich’s written report that misrepresented Sawalich’s investigative findings,
Sawalich also circulated summaries of her interviews to the Honor Council that
allowed its members to reach their own conclusions. Moreover, Pearson had the
opportunity to challenge Sawalich’s presentation of the facts—both in writing and in
person before the Honor Council—and did so. As for the Honor Council, its
members did receive Title IX trainings, and its failure to adopt the Office of Civil
Rights’s suggested preponderance-of-the-evidence standard alone is insufficient to
generate a dispute of material fact that may stave off summary judgment. See Butters
v. James Madison Univ., 208 F. Supp. 3d 745, 759 (W.D. Va. 2016) (collecting cases
for the proposition that a school’s compliance or non-compliance with OCR guidance
can be a factor to consider, but is not tantamount to deliberate indifference). Because
there is no genuine dispute of material fact as to whether Logan was deliberately
indifferent to any stalking or harassment that Pearson experienced, her Title IX claim
fails as a matter of law. The district court properly granted summary judgment in
Logan’s favor on this claim.
III
Finally, we turn to the Missouri premises liability and general negligence
claims. The district court dismissed these claims because it determined that Pearson
and Kirkpatrick could not establish that Logan owed them a duty of care. We agree.
Under Missouri law, Pearson and Kirkpatrick must show that Logan University
had a duty to protect them, breached that duty, and that breach proximately caused an
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injury. Lopez v. Three Rivers Elec. Coop., 26 S.W.3d 151, 155 (Mo. banc 2000). As
the district court correctly explained, whether a duty exists is a question of law. Id.
As a general rule, a college does not owe a duty to protect its students. Nickel v.
Stephens College, 480 S.W.3d 390, 401 n.8 (Mo. Ct. App. 2015) (acknowledging a
“very narrow exception” in cases where a “special relationship” exists between a
school and a student when “one party entrusts another for protection and relies upon
that party to provide a place of physical safety”).
There are two “special circumstances” under which Missouri recognizes an
exception to this general rule, but they do not apply here. First, Missouri law
recognizes that a “duty may arise when a person, known to be violent, is present on
the premises or an individual is present who has conducted himself so as to indicate
danger and sufficient time exists to prevent injury.” Faheen v. City Parking Corp.,
734 S.W.2d 270, 273 (Mo. Ct. App. 1987). Missouri courts have limited this
exception to cases presenting “extraordinary danger.” Id. at 274. Pearson and
Kirkpatrick have not shown any facts in this case that would have alerted Logan to
an extraordinary danger posed by FS. The only complaint involving any actual
touching by FS was acknowledged to be a possible accident by Pearson. The other
complaints involved potentially harassing conduct but nothing that would indicate
extraordinary danger.
Second, Missouri law recognizes a duty where “specific incidents of violent
crimes on the premises [] are sufficiently numerous and recent to put a defendant on
notice, either actual or constructive, that there is a likelihood third persons will
endanger the safety of defendant’s invitees.” Faheen, 734 S.W.2d at 273–74.
Pearson and Kirkpatrick have alleged a history of misconduct of varying kinds at
Logan. For example, they claim that in 2013 the school “discriminated against a
pregnant student by giving her failing grades rather than ‘incomplete’ grades.” But
nothing they have alleged approaches the sort of violent, numerous, and recent crimes
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that would be necessary to put Logan on notice that an unknown third party like FS
could pose a danger to Pearson and Kirkpatrick’s safety.
For these reasons, we affirm the judgment of the district court.
KELLY, Circuit Judge, concurring in part and dissenting in part.
I concur in Parts I and II of the court’s opinion, but respectfully disagree with
the court’s conclusion in Part III.
In December 2015, Pearson notified Logan University administrators Shelley
Sawalich and Sandra Periello that FS was stalking and harassing her, and that his
conduct made her feel unsafe on Logan’s campus. She also explained that FS had
pressed himself up against her in the cadaver lab, making her extremely
uncomfortable; and she told Sawalich that she was “terrified of being raped.” In light
of Pearson’s complaints, Logan was on notice by December 2015 that FS was
engaged in a continuing pattern of conduct that made at least one student feel that she
was going to be physically assaulted. And, in January and early February, Pearson
reported to Logan administrators that FS’s behavior continued to make her feel unsafe
on campus.
The fact that Pearson’s complaints included only one instance of “actual
touching” does not diminish the potential danger inherent in her allegations.
Missouri law recognizes that an individual may “conduct[ ] himself so as to indicate
danger” without having engaged in any physical contact. Cf. Faheen v. City Parking
Corp., 734 S.W.2d 270, 273 (Mo. Ct. App. 1987). For example, a person seeking a
protection order against stalking must demonstrate a “pattern of conduct” that causes
“a fear of danger of physical harm.” Binggeli v. Hammond, 300 S.W.3d 621, 623-24
(Mo. Ct. App. 2010) (quoting Mo. Ann. Stat. § 455.010). A pattern of conduct, in
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turn, “may include, but is not limited to, following the other person or unwanted
communication or unwanted contact.” Id. (quoting Mo. Ann. Stat. § 455.010).
Here, Pearson informed Logan personnel of FS’s alleged conduct that included
unwanted physical touching, stalking, and harassment. While the record on this issue
is admittedly thin, it is sufficient. Viewing the record in the light most favorable to
Pearson and Kirkpatrick and giving them the benefit of all reasonable inferences, as
we must on summary judgment, I believe they established, if just barely, the existence
of a duty of care to protect them against FS. See Walz v. Ameriprise Fin., Inc., 779
F.3d 842, 844 (8th Cir. 2015).
The district court declined to address whether Pearson or Kirkpatrick could
satisfy the other elements of their premises liability and negligence claims.
Therefore, I would remand for the district court to make those determinations in the
first instance. In the alternative, I would leave to the district court’s discretion
whether it wishes to continue exercising supplemental jurisdiction over the remaining
state law claims on remand, in light of the dismissal of all federal claims. See
Gregoire v. Class, 236 F.3d 413, 419 (8th Cir. 2000).
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