DocketNumber： 1:15-cv-3216-GHW
Citation Numbers： 169 F. Supp. 3d 353
Judges： Woods
Filed Date： 3/11/2016
Status： Precedential
Modified Date： 7/25/2022
MEMORANDUM OPINION AND ORDER
In 2013, Paul Nungesser was accused of rape by fellow Columbia University (“Columbia”) student Emma Sulkowicz. Sul-kowicz filed a complaint with Columbia’s Office of Gender-Based Misconduct, and, after an investigation and hearing, Nun-gesser was found “not responsible” for “non-consensual sexual intercourse.” Notwithstanding the outcome of Columbia’s
Nungesser alleges that Columbia, by permitting Sulkowiez’s activism and awarding her academic credit for the Mattress Project, violated his rights under Title IX of the Education Amendments of 1972 (“Title IX”); he also brings various related state-law claims against Columbia, Columbia President Lee Bollinger, and Professor Jon Kessler. As it considers these claims, the Court is mindful that its role is limited: it does not “advocate for best practices or policies,” or even “decide whether Columbia treated Plaintiff fairly or unfairly.” Doe v. Columbia Univ., 101 F.Supp.3d 356, 376 (S.D.N.Y.2015). The Court’s task is to determine whether Nun-gesser plausibly alleges a claim for gender-based discrimination under Title IX, or otherwise states a claim under New York state law. For the reasons that follow, the Court finds that Nungesser fails to state a claim, and thus Defendants’ motion to dismiss is GRANTED.
I. Background
Nungesser, a German national, is a 2015 graduate of Columbia. Amended and Supplemented Complaint (“Amended Complaint” or “AC”), ECF No. 26, ¶ 3. In April 2013, Sulkowicz, who, like Nungesser, was a sophomore at Columbia at that time, filed a complaint with Columbia’s Office of Gender-Based Misconduct alleging that Nungesser raped her in August 2012. AC ¶¶ 32, 37. Nungesser maintains that he and Sulkowicz engaged in consensual intercourse. AC ¶ 26. After Columbia conducted an investigation and held a hearing on October 29, 2013, Nungesser was found “not responsible” for “non-consensual sexual intercourse.” AC ¶ 34.
The core of the allegations in the Amended Complaint concern what Nun-gesser describes as Sulkowicz’s efforts to brand him as a “serial rapist” during and after the investigation into the August 2012 incident. AC ¶ 46.
A. Incidents Before Nungesser’s Name Was Made Public
Nungesser alleges that in addition to filing her complaint, Sulkowicz sought to label him a rapist within the Columbia community. Shortly after Sulkowicz filed the incident report, she encouraged the president of Alpha Delta Pi — the coed fraternity of which she and Nungesser were both members — to notify its alumni board and several other ADP members that an alleged rapist was living at ADP. AC ¶ 47. This notification occurred. Id.
Nungesser asserts that Sulkowicz also encouraged other Columbia students to file complaints of gender-based misconduct against him, and that two female students and one male student eventually did so. AC ¶¶ 38,100. In April or May 2013, shortly after Sulkowicz filed her complaint, a woman referred to as Jane Doe 1 filed a complaint alleging that Nungesser grabbed her at a party and tried to kiss her. AC ¶ 39. Columbia ultimately found Nungesser “not responsible” for “non-con
After Nungesser was found “not responsible” for the alleged rape, Sulkowicz began speaking with reporters. On December 3, 2013, Nungesser was approached by New York Post reporters in front of his dorm and was followed by one on his way to class. AC ¶ 48. Shortly thereafter, an article appeared in which it was apparent that all three of the women who had filed complaints against Nungesser had spoken to the Post, although his name did not appear in the article. Id. Nungesser alleges that his parents notified Bollinger of the incident prior to the publication of the article, but that no action was taken in response. Id. Sulkowicz also provided information and identified Nungesser to a student reporter, who subsequently published an article on Columbia’s student news blog, BWOG, on January 23, 2014. AC ¶ 49. Like the Post story, the BWOG post did not identify Nungesser by name, but allegedly made him “easily identifiable to most of his peers on campus.” Id. Nun-gesser was advised by Columbia to remain silent when the BWOG reporter requested a comment from him, and was not notified by Columbia when the blog post was published. AC ¶¶ 50-51.
Approximately two weeks after the BWOG story, Bollinger announced a change in Columbia’s policies with respect to sexual assault, and also announced that Columbia would release data on sexual assault complaints. AC ¶-53. Nungesser alleges that these changes were prompted by the BWOG article. Id.
In April 2014, Sulkowicz made her first public press statement, in which she said that her rapist remained on campus. AC ¶ 56. She did not identify Nungesser by name. Id. On April 7, 2014, Bollinger announced further measures to address the issue of sexual assault at Columbia. AC ¶ 57. In May 2014, Sulkowicz published an op-ed in Time Magazine entitled “My Rapist is Still on Campus.” AC ¶ 59. Nunges-ser was not identified by name in the oped. See id. n. 20.
B. Nungesser’s Name Is Made Public
In May 2014, at the end of his junior year, Nungesser’s name was made public in connection with Sulkowicz’s allegations for the first time. Columbia’s student newspaper, the Columbia Spectator, published a story regarding Sulkowicz’s allegations that named Nungesser as her alleged rapist. AC ¶ 63. Also in May 2014, a “rapist list” that included Nungesser’s name appeared in multiple Columbia bathrooms, and fliers with the list were distributed at several Columbia events. AC ¶ 58. He was not notified by Columbia about the distribution of the lists. Id.
C. The Mattress Project
Sulkowicz undertook the Mattress Project, a performance art piece that involved carrying her mattress around Columbia’s campus with her, throughout her senior year. AC ¶¶ 68-73. She publicly stated that the goal of her project was to “[g]et my rapist off campus.” AC ¶ 70. Professor Jon Kessler approved the Mattress Project as Sulkowicz’s senior thesis project, for which she received class credit. AC ¶¶ 68, 72, 73. The Mattress Project received widespread media attention both nationally and internationally, and many of the news articles linked to the Columbia Spectator article
Both Bollinger and Kessler made public statements regarding the Mattress Project. Specifically, Kessler said that he discussed endurance art with Sulkowicz and was struck by the fact that she was “making an enormous statement for change.” AC ¶ 72. Bollinger said that he cared “about all of [his] students” and “when one of them feels that she has been a victim of mistreatment” it affected him. AC. ¶ 76. Columbia also partially paid for the cleanup costs associated with an October 2014 campus rally organized by Sulkowicz and other student activists entitled “Carry That Weight National Day of Action.” AC ¶ 92. The rally focused on a list of demands signed by the activists, including a demand that Columbia re-open its investigation into Sulkowiez’s complaint against Nunges-ser, who the activists described as an “ongoing threat to the community.” AC ¶ 94. In response, Columbia published a statement that said “our hearts go out to any students who feel they have been mistreated,” and promised to strengthen its policies related to preventing and responding to gender-based misconduct. AC ¶ 95. Columbia did not, however, reopen its investigation into Sulkowicz’s complaint.
In addition to the Mattress Project, prints created by Sulkowicz — depicting images of her alleged assault superimposed over two New York Times articles describing her claims against Nungesser — were displayed the week before graduation as part of the Columbia University Visual Arts Program/Undergraduate Thesis Show Reception. AC ¶¶ 115-117. Columbia faculty approved the display of the prints, facilitated their installation, and supervised the exhibition. AC ¶ 119. Nungesser was not notified by Columbia that the prints would be displayed. AC ¶ 120.
D. Nungesser’s Experience at Columbia
As a result of the events described above, Nungesser’s social and academic experience at Columbia suffered. He states that he was precluded from attending on-campus career recruiting events, and, consequently, was unable to obtain employment in the United States, forcing him to return to Germany after his graduation. AC ¶ 109, 154-55. Nungesser also feared for his safety as a result of several comments posted on Sulkowicz’s Facebook page in late 2014, and requested and was denied a security escort on two occasions — once for a mandatory sexual respect workshop, and a second time for the
E. Nungesser’s Complaint Against Sulkowicz and John Doe
In late 2014, a third student filed a gender-based misconduct complaint against Nungesser. This time a male student, John Doe, alleged that Nungesser had touched him inappropriately during a conversation in 2011. Id. After a hearing, Nungesser was found not responsible for the alleged misconduct described'in John Doe’s complaint. AC ¶ 102.
Nungesser and his parents have complained to the university multiple times regarding Sulkowicz’s actions and Columbia’s treatment of Nungesser. AC ¶ 165. In the spring of 2015, Nungesser filed a formal complaint with Columbia regarding Sulkowicz’s and John Doe’s conduct. AC ¶ 166. Columbia declined to open an investigation, and stated that the conduct Nun-gesser alleged did not constitute actionable retaliation under Columbia policy. Id.
F. Procedural History
Nungesser’s July 30, 2015 Amended Complaint, the operative pleading here, alleges ten causes of action: (1) gender discrimination in violation of Title IX; (2-4) gender discrimination in violation of New York’s Human Rights Law against Columbia, Bollinger, and Kessler; (5) breach of contract; (6) breach of the covenant of good faith and fair dealing; (7) unfair or deceptive trade practices; (8) promissory estoppel; (9) intentional infliction of emotional distress; and (10) negligence. Defendants moved to dismiss on August 28, 2015, Nungesser filed his brief in opposition on September 21, 2015, and Defendants replied on September 28, 2015.
II. Legal Standard
“To survive a motion to dismiss, 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). It is not enough for a plaintiff to allege facts that are consistent with liability; the complaint must “nudge” claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
In evaluating a 12(b)(6) motion, a court must accept all facts alleged in the complaint as true and draw all reasonable inferences in the plaintiffs favor. Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir.2008) (per curiam). Legal conclusions, unlike facts, are not entitled to an assumption of truth. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. A complaint that offers “labels and conclusions” or “naked assertion[s]” without “farther factual enhancement” will not survive a motion to dismiss. Id. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
III. Discussion
Á. Title IX
Title IX provides that “[n]o person in the United States shall, on the basis of
Federal courts have long recognized an implied private right of action under Title IX. See Hayut v. State Univ. of New York, 352 F.3d 733, 749 (2d Cir.2003) (citing Cannon, 441 U.S. at 691, 99 S.Ct. 1946). It is also well established that courts interpret “Title IX by looking to the body of law developed under Title VI, as well as the caselaw interpreting Title VII.” Yusuf v. Vassar Coll., 35 F.3d 709, 714 (2d Cir.1994) (citations omitted); see also Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 89 (2d Cir.2011). As two other courts in this district have recently noted, however, there is at least one significant difference between Title VII and Title IX: although a private plaintiff may bring a claim under Title IX for instances of intentional discrimination, courts have held that a private right of action based on the alleged disparate impact of a policy on a protected group is not cognizable under Title IX. See Doe v. Columbia Univ., 101 F.Supp.3d 356, 367 (S.D.N.Y.2015) (citing Ricci v. DeStefano, 557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) and Alexander v. Sandoval, 532 U.S. 275, 280, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001)); Yu v. Vassar Coll., 97 F.Supp.3d 448, 461 (S.D.N.Y.2015) (same). “Thus, in order to establish a claim of discrimination under Title IX, a plaintiff must ultimately show that the defendant discriminated against him or her because of sex; that the discrimination was intentional; and that the discrimination was a ‘substantial’ or ‘motivating factor’ for the defendant’s actions.” Doe v. Columbia Univ., 101 F.Supp.3d at 367 (citing Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir.2001)).
Under Title IX, educational institutions may be held liable for “deliberate indifference to known acts of harassment,” of one student by another, Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999), or of a student by a teacher. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290-91, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). For a school to be held liable for such harassment, it must be “deliberately indifferent to sexual harassment, of which [it] had actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Davis, 526 U.S. at 650, 119 S.Ct. 1661. The peer harassment forming the basis for a Title IX claim must also, of course, be “gender-oriented.” Id. at 651, 119 S.Ct. 1661.
Here, Nungesser claims that Columbia was deliberately indifferent to what he asserts was gender-based harassment by Sulkowicz, a fellow student, that was condoned by Bollinger and Kessler.
Nungesser’s argument rests on a logical fallacy.
Title IX prohibits discrimination “on the basis of sex.” The word sex has two distinct meanings: “(1) The sum of the peculiarities of structure and function that distinguish a male from a female organism; gender. (2) Sexual intercourse.” Black’s Law DictionaRY 1583 (Bryan Garner, et al., eds., 10th ed. 2014).
“On the basis of sex,” as used in Title IX, refers to one’s status, not to whether the underlying conduct was sexual in nature. “[T]he natural meaning of the phrase ‘on the basis of sex’ is on the basis of the plaintiffs sex .... Even within Title VII of the Civil Rights of 1964 itself, Congress used the phrase ‘on the basis of sex’ as shorthand for discrimination ‘on the basis of such individual’s sex.’ ” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 185, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005) (Thomas, J., dissenting). Thus, “[t]he mere fact that sexual harassment proceedings have as their subject sexual behavior and speech does not itself implicate sex discrimination .... ” Haley v. Virginia Commonwealth Univ., 948 F.Supp. 573, 579 (E.D.Va.1996).
Harassment, “even harassment between men and women” is not automatically considered to be gender-based discrimination “merely because the words used have sexual content or connotations.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). In order to be considered gender-based harassment, the harassing conduct must “support an inference of discrimination on the basis of sex.” Id.; see also Bowman v. Shawnee State Univ., 220 F.3d 456, 464 (6th Cir.2000) (holding plaintiff was not subjected to a hostile environment for purposes of Title VII because “[w]hile he may have been subject to intimidation, ridicule, and mistreatment, he
That the accusations against Nun-gesser involved an act of sex does not mean they were motivated by his gender. Nungesser distills his argument to a sentence in his opposition brief: “falsely accusing a male of being a ’rapist’ ... is inherently gender based and was directed to Nungesser as a male.” Opp. Br. 11. As an initial matter, the Court rejects the assumption that calling someone a rapist, falsely or not, is inherently gendered.
Moreover, Nungesser’s conclu-sory statement that he was publicly branded a serial rapist “because he is a male,” AC ¶ 77, is belied by the facts he pleads.
Nungesser not only fails to plead facts giving rise to a plausible inference that Sulkowiez’s actions were motivated by his gender, he fails to allege harassing conduct that is sexual in nature such that it states a Title IX claim. Cases in which a plaintiff has stated a claim based on peer harassment under Title IX typically include allegations of unwelcome sexual touching or the use of gendered slurs. See Davis, 526 U.S. at 633-34, 119 S.Ct. 1661 (harassing student made vulgar statements about wanting to touch female student, attempted to touch female student’s breasts and genital area, and rubbed his body against hers in a sexually suggestive manner); Doe v. East Haven Bd. of Educ., 200 Fed.Appx. 46, 48 (2d Cir.2006) (female student who reported being raped was verbally abused by other students who called her “a slut” and “a whore,” names that “reflect[ed] sex-based stereotypes”); T.Z. v. City of New York, 634 F. Supp.2d 263, 266 (E.D.N.Y.2009) (harassing students touched female special needs student’s breasts, touched her genital area outside of her clothing, pulled down her pants, and touched her buttocks as other students watched); Riccio v. New Haven Bd. of Educ., 467 F.Supp.2d 219, 222-23 (D.Conn.2006) (harassing students called female student names including “bitch” and “dyke,” and threw objects at her).
The Mattress Project, the National Day of Action, and Sulkowicz’s public statements that she wanted her rapist off campus are not the type of conduct that creates an actionable Title IX claim. Nun-gesser does not allege that Sulkowicz ever attempted to touch him, spoke to him, followed him, or otherwise interacted with him after the October 2013 hearing. Nor does he allege that she ever used his name in any of her public statements.
Even if Sulkowicz had publicly called Nungesser a rapist (by name), when considered with the other facts as alleged, the complaint would not state a Title IX claim. As previously stated, the Court rejects the
Nungesser alleges that he was called a name that has “sexual content or connotation! ].” Oncale, 523 U.S. at 80, 118 S.Ct. 998. But he alleges neither that he was harassed because of his male gender, nor that he was subjected to sexually harassing conduct that gives rise to a claim for peer harassment under Title IX, so he does not allege discrimination “on the basis of sex” as required by Title IX. Because Nungesser does not plausibly plead actionable sexual harassment, he does not state a claim under Title IX.
To hold otherwise would, in essence, create a new right of action under which all students accused of sexual assault could bring a Title IX claim against their educational institutions — so long as they could plausibly plead that the accusations were known to the institution and that the institution failed to silence their accusers — simply because the misconduct they were accused of has a sexual element.
2. Nungesser Was Not Deprived of Access to Educational Opportunities
Even if Nungesser had pleaded facts sufficient to support a plausible inference of gender-based harassment, his Title IX claim would still fail because he has not alleged harassment “that is so severe, pervasive, and objectively offensive that it can be said to deprive [him] of access to the educational opportunities or benefits provided by the school.” Davis v. Monroe
“The most obvious example” of actionable peer harassment would “involve the overt, physical deprivation of access to school resources.” Id. “It is not necessary, however, to show physical exclusion to demonstrate that students have been deprived by the actions of another student or students on the basis of sex.” Id. In situations in which there is no physical exclusion, courts consider whether the harassment “had a concrete, negative effect” on the plaintiffs “ability to receive an education.” Id. at 654, 119 S.Ct. 1661; see also Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 410 (5th Cir.2015) (applying Davis in the context of a Title VI claim); Jennings v. Univ. of North Carolina, 482 F.3d 686, 699 (4th Cir.2007); Hawkins v. Sarasota Cnty. Sch. Bd., 322 F.3d 1279, 1289 (11th Cir.2003); Gabrielle M. v. Park Forest-Chicago-Heights, Ill. Sch. Dist. 163, 315 F.3d 817, 821 (7th Cir.2003). Examples of such negative effects include a drop in grades, missing school, being forced to transfer schools, or mental health issues requiring therapy or medication. Davis, 526 U.S. at 652, 119 S.Ct. 1661 (numerous acts of offensive touching resulted in drop in grades and petitioner writing a suicide note); Hill v. Cundiff, 797 F.3d 948, 976 (11th Cir.2015) (student who was raped when school officials decided to use her as “bait” in a sting operation to catch another student in the act of sexual harassment missed school, withdrew from extracurricular activities, transferred schools, her grades suffered, and she became depressed).
The Court does not suggest that Nun-gesser’s senior year at Columbia was pleasant or easy. Title IX, however, sets a high bar before a private plaintiff may recover and Nungesser has not alleged facts showing that he was effectively deprived of Columbia’s educational opportunities. Nungesser claims that his ability to perform academically suffered as a result of Sulkowicz’s actions, that he was prevented from attending on campus career-recruiting events, and that Columbia facilities were not “reasonably available” to him due to threats to his physical safety. AC ¶¶ 106, 108-09. These claims consist primarily of conclusory statements, and the few facts alleged are not sufficient to state a plausible claim.
Nungesser’s conclusory assertions that his academic performance suffered and that he was prevented from attending recruiting events, without more, do not suffice. There is no suggestion that his grades dropped, that he was delayed or prevented from graduating (to the contrary, he graduated on time in May 2015), or that he missed a single class as a result of these events. Compare Davis, 526 U.S. at 653-54, 119 S.Ct. 1661 (petitioner stated a claim where “repeated acts” of verbal harassment and touching resulted in “a concrete negative effect on her daughter’s ability to receive an education”) with Manfredi v. Mount Vernon Bd. of Educ., 94 F.Supp.2d 447, 455 (S.D.N.Y.2000) (student who missed a single day of school and advanced with her class to the next grade at the end of the year was not denied access to educational opportunities). Nun-gesser’s allegation that the Mattress Project and related events precluded him from attending on-campus career events is equally perfunctory. AC ¶ 109. Aside from the fact that it is debatable whether such events are an educational opportunity or benefit for the purposes of Title IX, there are no facts supporting this bare assertion — did he even attempt to attend these events? how many events were there? was he turned away at the door? — and so the Court must disregard it.
Thus, taken together, the few factual allegations in the complaint do not plausibly plead deprivation of access to educational opportunities and Defendants’ motion to dismiss Nungesser’s Title IX claim is granted. The Court will, however, permit Nungesser to replead his Title IX claim. See Cruz v. TD Bank, N.A., 742 F.3d 520, 523 (2d Cir.2013) (“[I]t is the usual practice upon granting a motion to dismiss to allow leave to replead.”).
B. New York Human Rights Law
The parties agree that Nungesser’s claims under the New York Human Rights Law should be evaluated under the same standard as his analogous claims under Title IX. See Defs.’ Br. 22 (citing T.P. ex rel. Patterson v. Elmsford Union Free Sch. Dist., No. 11-cv-5133, 2012 WL 860367, at *9 (S.D.N.Y. Feb. 27, 2012)) and Opp. Br. 24. Because Nungesser fails to state a claim under Title IX, he likewise fails to state a claim under the New York Human Rights Law. As with his Title IX claim, Nungesser may replead his claim under the New York Human Rights Law if he so chooses.
C. Breach of Contract
“In New York, the relationship between a university and its students is contractual in nature.” Yu v. Vassar Coll., 97 F.Supp.3d 448, 481 (S.D.N.Y.2015) (quoting Papaspiridakos v. Educ. Affiliates, Inc., No. 10-cv-5628-RJD, 2013 WL 4899136, at *3 (E.D.N.Y. Sept. 11, 2013) aff'd, 580 Fed.Appx. 17 (2d Cir.2014)). But “[n]ot every dispute between a student and a university is amenable to a breach of contract claim.” Gally v. Columbia Univ., 22 F.Supp.2d 199, 206 (S.D.N.Y.1998). “[T]he mere allegation of mistreatment without the identification of a specific breached promise or obligation does not state a claim on which relief can be granted.” Id. at 207; see also Baldridge v. State, 293 A.D.2d 941, 740 N.Y.S.2d 723, 725 (3d Dep’t 2002) (“[WJhile a school may be subject to a cause of action for breach of contract, this requires a contract which provides for ‘certain specified services’ as ‘courts have quite properly exercised the utmost restraint applying traditional legal rules to disputes within the academic community.’ ”) (internal citations omitted).
“When a student is admitted to a university, an implied contract arises between the parties which states that if the student complies with the terms prescribed by the university, he will obtain the degree he seeks.” Vought v. Teachers Coll., Columbia Univ., 127 A.D.2d 654, 511
In order to state a claim for breach of such a contract, a student must identify “specifically designated and discrete promises.” Ward v. New York Univ., 2000 WL 1448641, at *4 (S.D.N.Y. Sept. 28, 2000). “General policy statements” and “broad and unspecified procedures and guidelines” will not suffice. Id.; see also Gally, 22 F.Supp.2d at 208 (“[G]eneral promises about ethical standards” that are “subject to neither quantification nor objective evaluation” “are far different from the types of specific promises which have led to valid breach of contract claims against universities.”). For example, a student who alleged that she did not receive the field work supervision she was promised in her student handbook — including a one-and-a-half to two-hour weekly supervision conference — stated a claim. Clarke v. Columbia Univ. et al., No. 95-cv-10627-PKL, 1996 WL 609271, at *5-6 (S.D.N.Y. Oct. 23, 1996). In contrast, “a general statement” of a university’s adherence “to existing anti-discrimination laws” “does not create a separate and independent contractual obligation.” Gally, 22 F.Supp.2d at 208 (citing Blaise-Williams v. Sumitomo Bank, Ltd., 189 A.D.2d 584, 592 N.Y.S.2d 41, 42 (1993)); see also Cheves v. Columbia Univ., 89 A.D.3d 463, 931 N.Y.S.2d 877 (2011) (holding that alumni relations brochure listing certain benefits and services generally available to alumni did not guarantee alumni access to campus).
Nungesser argues that Columbia breached three policies in its treatment of him: (1) its policy concerning gender-based harassment; (2) its policy concerning confidentiality; and (3) its policy concerning retaliation. None of these claims withstand scrutiny, however, because Nungesser has not identified the specific promises that Columbia has breached.
1. Gender-Based Harassment Policy
Nungesser claims that Columbia violated its Student Policies and Procedures on Discrimination and Harassment by failing to take disciplinary action against Sulkow-icz for the Mattress Project and her other activism, allowing her to earn academic credit for the Mattress Project, failing to notify him of various events, including when his name appeared on the “rapist-list” on campus in May 2014, and for partially paying for the clean-up costs associated with the National Day of Action. This claim fails.
Columbia’s 2013 and 2014 Gender-Based Misconduct policies state that it is “committed to providing an environment free from gender-based discrimination and harassment.” AC ¶¶ 157, 162. This is exactly the type of general policy statement that cannot form the basis for a breach of contract action. In contrast, there are some specific provisions contained within the policies that may well be actionable: accused students “shall be given at least five (5) calendar days’ notice prior to the hearing” to prepare, and have a right to appeal “either the hearing panel’s decision or the sanctions determined by the Dean of Students.” AC ¶ 157. Nungesser is unable to point to any such concrete, specific promises that were breached in this case.
Additionally, Columbia’s policies define discriminatory harassment as harassment “on the basis of [the victim’s] membership in a Protected Class” and
To the extent Nungesser’s breach of contract claim may rely on Columbia’s response to his complaint of gender-based misconduct against Sulkowiez, it is foreclosed by the fact that Columbia’s policy does not promise students who believe they have been the victim of gender-based misconduct any specific outcome. Instead, “[t]he University provides students who believe that they have been the subject of discrimination or harassment with mechanisms for seeking redress.” AC ¶ 164. It encourages “[s]tudents who believe they have been subjected to gender-based discrimination or harassment” to report the incidents, and Columbia will “respond promptly, equitably, and thoroughly.” AC ¶ 157.
Nungesser filed a harassment complaint with Columbia in 2015, and Columbia declined to open an investigation stating that “the acts alleged do not constitute actionable retaliation in violation of the Policy.” AC ¶ 166. But Nungesser was able to file a complaint and Columbia did respond to it, as the policy requires. The fact that the response was not the one Nungesser hoped for does not mean Columbia violated its policy.
2. Confidentiality Policy
Nungesser also asserts that Columbia breached its confidentiality policies, which provide, in relevant part, that “[t]he University will make all reasonable efforts to ensure preservation of privacy” of students accused of gender-based misconduct and will restrict “information to those with a legitimate need to know.” AC ¶ 158.
The policies state that Columbia will restrict information to those with a need to know — and there is no suggestion that Columbia disclosed any information regarding Nungesser. Nungesser also argues that Columbia violated its confidentiality policies when it failed to take action against Sulkowiez for disclosing his name. But the policies state only that a student who breaches the confidentiality policy may face disciplinary action. They do not promise, or require, that disciplinary action be taken each time the confidentiality polices are breached, they merely say that disciplinary action is a possible consequence.
Moreover, the Amended Complaint does not suggest that, pursuant to Columbia’s policy, a student who has brought a gender-based misconduct complaint is 'prohibited from discussing the complaint or the underlying allegations, either while the proceedings are ongoing or after they had concluded. Indeed, as Columbia points out, universities “may not require a complain
Nungesser asserts that the 2014 Gender-Based Misconduct Policy was revised to eliminate protections for the privacy of respondents, after Sulkowicz began speaking out in public. AC ¶ 161. The 2014 Gender-Based Misconduct Policy, however, provides that “both the complainant and respondent” have a right “[t]o privacy to the extent possible consistent with applicable law and University policy.” AC ¶ 162. The privacy provision of the policy then further explains that neither complainants nor respondents are prohibited from “obtaining the assistance of family members, counselors, therapists, clergy, doctors, attorneys, or similar resources.” AC ¶ 163. This change in Columbia’s policies, even if it is a change that Nungesser disagrees with, does not form the basis for a breach of contract claim.
Finally, although he repeatedly alleges that Columbia “failed to notify him” of certain events — the graffiti, the publication of the BWOG post, the display of Sulkow-icz’s prints — Nungesser pleads no basis for his proposition that such failures violated a binding agreement with the university.
3. Policy against Retaliation
Finally, Nungesser alleges breaches of Columbia’s policy against retaliation. Columbia “strictly prohibits retaliation against and intimidation of any person because of his or her reporting of an incident of gender-based misconduct or involvement in the University’s response.” AC 1Í162. Under Columbia’s policy, “[r]e-taliation occurs when an alleged perpetrator or respondent, her or his friends or associates, or other member of the University community intimidates, threatens, coerces, harasses, or discriminates against an individual who has made a complaint, or participated in any manner in an investigation, proceeding, or hearing under these policies and procedures.” AC ¶ 164.
Sulkowicz’s Mattress Project, the National Day of Action, and her other public statements, were aimed at her dissatisfaction with Columbia’s response to her gender-based misconduct complaint. In her view, the only appropriate outcome would have been Nungesser’s expulsion. AC ¶ 70. To the extent that Sulkowicz’s actions were aimed at Nungesser, the Court does not take issue with Nungesser’s characterization of Sulkowicz’s actions as retaliation — but he alleges that it was retaliation for Nungesser’s rejection of her, not for his involvement in the gender-based misconduct investigation. The complaint does not plausibly allege that Sulkowicz’s actions were motivated by Nungesser’s participation in the investigation, and so Columbia cannot be said to have violated its policy by choosing not to discipline her.
Defendants’ motion to dismiss Nunges-ser’s breach of contract claims is granted without prejudice, and the Court gives Nungesser leave to replead this claim. See Cruz, 742 F.3d at 523.
D. Covenant of Good Faith and Fair Dealing
“[A] breach of the implied covenant of good faith and fair dealing claim
Where a plaintiff has alleged such redundant claims and is granted leave to replead his breach of contract claim, courts have recognized that leave to amend the claim for breach of the covenant of fair dealing would be futile. See Jordan, 2008 WL 5209989, at *7 (denying leave to re-plead such a claim). Therefore, Nunges-ser’s claim for a breach of the implied covenant of good faith and fair dealing is dismissed with prejudice.
E. General Business Law Section 349
New York General Business Law Section 349(a) “declares unlawful ‘[deceptive acts or practices in the conduct of any business.’ ” City of New York v. Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 621, 883 N.Y.S.2d 772, 911 N.E.2d 834 (2009) (quoting N.Y. Gen. Bus. Law § 349(a)). The statute also provides a private right of action to persons harmed by such conduct. Id. (citing N.Y. Gen. Bus. Law § 349(h)). “To successfully assert a section 349(h) claim, a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Id. (citing Stutman v. Chemical Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 731 N.E.2d 608 (2000)). Practices courts have found to be deceptive include “false advertising, pyramid schemes, deceptive preticketing, misrepresentation of the origin, nature or quality of the product, false testimonial, deceptive collection efforts against debtors, deceptive practices of insurance companies, and ‘Bait and Switch’ operations.” Teller v. Bill Hayes, Ltd. 213 A.D.2d 141, 630 N.Y.S.2d 769, 773 (1995) (citing Goldberg v. Manhattan Ford Lincoln-Mercury, 129 Misc.2d 123, 492 N.Y.S.2d 318, 321 (N.Y.Sup.Ct.1985) (collecting cases)).
Nungesser’s claim fails at the first element. New York courts consider consumer-oriented conduct to be “acts or practices that have a [broad] impact on consumers at large.” Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25, 623 N.Y.S.2d. 529, 647 N.E.2d 741 (1995). “In other words, the deceptive act or practice may not be limited to just the parties.” Teller v. Bill Hayes, Ltd., 213 A.D.2d 141, 630 N.Y.S.2d 769, 772 (1995). Nungesser does not claim that Columbia’s conduct affected anyone except him. His sole argument on this point is that Columbia’s student population is “not a small population of people,”
F.Promissory Estoppel
“In New York, promissory es-toppel has three elements: ‘a clear and unambiguous promise; a reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained by the party asserting the estoppel by reason of the reliance.’ ” Cyberchron Corp. v. Calldata Sys. Dev., Inc., 47 F.3d 39, 44 (2d Cir.1995) (quoting Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 73 (2d Cir.1989)). Nungesser alleges that Columbia’s “various policies constitute representations and promises” that he relied upon. AC ¶¶ 269-71. These various policies, however, are the exact same policies at issue in Nungesser’s breach of contract claim. Nungesser’s “claim for promissory estoppel is precluded because a breach of contract claim may not give rise to tort liability unless a legal duty independent of the contract ... has been violated.” O’Grady v. BlueCrest Capital Mgmt. LLP, 111 F.Supp.3d 494, 504 (S.D.N.Y. June 15, 2015) (citing MatlinPatterson ATA Holdings LLC v. Fed. Express Corp., 87 A.D.3d 836, 929 N.Y.S.2d 571, 577-78 (2011); see also Yu, 97 F.Supp.3d at 483 (holding that a claim for equitable estoppel fails where the university complied with its procedures and there was insufficient evidence of gender discrimination); Ward v. New York Univ., 2000 WL 1448641, at *6 (S.D.N.Y. Sept. 28, 2000) (dismissing claim for promissory estoppel where claim was based on university policies and no specific promise or representation was identified).
Because Nungesser’s claim for promissory estoppel is redundant, amendment would be futile and this claim is dismissed with prejudice. See Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Secs., LLC, 797 F.3d 160, 191 (2d Cir.2015).
G. Negligence
Nungesser claims that Columbia owed him, as a student, a duty of care to protect him from tortious acts of third parties. Columbia correctly points out, however, that New York courts have rejected the doctrine of in loco parentis at the university level. See Eiseman v. State, 70 N.Y.2d 175, 190, 518 N.Y.S.2d 608, 511 N.E.2d 1128 (1987). Nungesser cites Doe v. University of the South, a case from the Eastern District of Tennessee, for the proposition that in the context of sexual misconduct cases universities owe their students a duty of care. Opp. Br. 25 (citing 4:09-cv-62, 2011 WL 1258104 at *21 (E.D.Tenn. Mar. 31, 2011)). But Nunges-ser’s negligence claim is governed by New York law. The Court declines to extend established New York law by finding that a duty of care exists on the facts as alleged. See Trans World Metals, Inc. v. Southwire Co., 769 F.2d 902, 908 (2d Cir.1985) (“As a federal court sitting in diversity, we will not extend the application of this state law”). This claim is dismissed with prejudice, as repleading would be futile under New York law. See Loreley Fin., 797 F.3d at 191.
H. Intentional Infliction of Emotional Distress
Nungesser’s final claim is for intentional infliction of emotional distress. In New York, in order to state a claim for intentional infliction of emotional distress, a plaintiff must allege (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of
Nungesser has not alleged conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. at 122, 596 N.Y.S.2d 350, 612 N.E.2d 699 (quoting Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 (N.Y.1983)). He clearly disagrees with how Columbia and its agents, including Bollinger and Kessler, chose to handle Sulkowicz’s — and other students’— activism. But the Court cannot conclude that the complaint plausibly pleads that Columbia’s response was anything approaching “extreme and outrageous conduct.” Indeed, “even a false charge of sexual harassment does not rise to the level of outrage required” under New York law, James v. DeGrandis, 138 F.Supp.2d 402, 421 (W.D.N.Y.2001). Additionally, Nunges-ser failed to plead any facts supporting an inference that Defendants intended to cause him distress. Accordingly, Nunges-ser’s claim for intentional infliction of emotional distress is dismissed. The Court grants Nungesser leave to replead this claim.
IV. Conclusion
For the foregoing reasons, the motion to dismiss is GRANTED in its entirety. Nun-gesser may file a second amended complaint with respect to the claims that were dismissed without prejudice within 30 days from the date of this order. If no amended complaint is filed within 30 days, the Court will enter a final judgment of dismissal and direct the Clerk of Court to close this case.
SO ORDERED.
. Unless otherwise noted, the facts are taken from the Amended Complaint, and are accepted as true for the purposes of this Rule 12(b)(6) motion. See, e.g., Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). However, "[t]he tenet that a court must ac-cépt as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
. The Court does not credit Nungesser’s allegation that Sulkowicz threatened him in a December 2014 New York Times article. AC ¶ 85 n.35. The quote in the Amended Complaint was taken out of context and when read within Sulkowicz’s complete statement in the article it is obvious that she meant that Columbia students were not safe while Nungesser remained on campus, not that Nungesser himself was vulnerable to harm. Nunges-ser’s interpretation is at best a misreading of the article and at worst an attempt to mislead the Court. Regardless, the Court will disregard this allegation in the complaint. See TufAmerica, Inc. v. Diamond, 968 F.Supp.2d 588, 592 (S.D.N.Y.2013) ("If a document relied on in the complaint contradicts allegations in the complaint, the document, not the allegations, control, and the court need not accept the allegations in the complaint as true.”) (citation omitted).
. Title IX also “bars the imposition of university discipline where gender is a motivating factor in the decision to discipline.” Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir.1994). Nungesser does not argue that the disciplinary proceedings against him resulted in an erroneous outcome or that Columbia selectively enforced its policies regarding gender-based misconduct. See Yusuf, 35 F.3d at 715; AC 50-56; Opp. Br. 8-20.
. The fallacy even has a name — equivocation.
. Forcible rape is obviously an act of violence, but for purposes of analyzing Nunges-ser's argument it is the sexual dimension of the act which is relevant.
. Black's also presents a third definition "sexual relations,” which, in turn, is further defined as "physical sexual activity that does not necessarily culminate in intercourse.” Black’s Law Dictionary 1584. For the purposes of the analysis in this decision, this third definition is subsumed within the second.
.The Court is mindful that sex and gender are not synonymous terms. In this opinion, the Court will use the terms gender-based harassment and gender discrimination to refer to the discrimination prohibited by Title IX. This is intended to provide clarity as to the way the word "sex” is being discussed in this decision, not to conflate gender — which is now used frequently to refer to psychological and societal aspects of sexual identity — with the use of the word sex, as used to refer to the physical aspects of being male or female. See Sex discrimination, Black’s Law Dictionary 567.
. Persons of any gender may be perpetrators, or victims, of sexual assault. See Haley, 948 F.Supp. at 579 (“allegations [that] at best reflect a bias against people accused of sexual harassment and in favor of victims [ ] indicate nothing about gender discrimination."); see also Lara Stemple and lian H. Meyer, The Sexual Victimization of Men in America: New Data Challenge Old Assumptions, 104 Am. J. Of Public Health, el9 (June 2014) (noting that although the idea of female perpetrators sexually assaulting male victims is "politically unpalatable,” studies have found that up to 46% of male victims report a female perpetrator). The Second Circuit has long recognized that the gender of the parties involved in gender-based harassment cases can vary. See Torres v. Pisano, 116 F.3d 625, 634 n. 8 (2d Cir.1997) (“We use the male pronounce since the context of this case, and most harassment cases, is that of a male supervisor and female victim. We do not doubt that in other contexts, the genders can be different.”); see also Doe v. Columbia Univ., 101 F.Supp.3d at 375 n. 9 ("Of course, there is nothing inherently gendered about sexual misconduct or sexual misconduct complaints.”).
. This conclusory statement is one of only two instances in his factual allegations where Nungesser links the complained-of conduct to his gender. See AC ¶¶ 1-166. The other is found in Nungesser's allegations regarding the exhibition of Sulkowicz’s prints prior to graduation, where he asserts that "[a] male student would not have been able to publicly display graphic nude prints of a female classmates showing female genitalia and female perpetrated sexual abuse without Defendant Columbia intervening to stop it.” AC ¶ 122. This is mere speculation. Nothing in the complaint suggests that Columbia treats artwork, including work that has sexual connotations or deals with sexual violence, differently based on the gender of the artist or the subject. The complaint is devoid of any facts suggesting how Columbia might handle Nun-gesser’s hypothetical display, much less facts suggesting that it would be treated differently than Sulkowicz’s work.
. It is worth noting that in the context of Title VII, "courts often find that harassment by a co-worker is not considered to be 'based on sex’ when it arises from a failed relationship.” Conklin v. Cnty. of Suffolk, 859 F.Supp.2d 415, 428-29 (E.D.N.Y.2012) (collecting cases). The Court is not holding that harassment based on romantic rejection can never lead liability under Title IX — one can easily imagine a situation where the scorned student sexually harasses the peer by whom he or she was rejected, giving rise to a Title IX claim. See Novak v. Waterfront Comm'n of N.Y. Harbor, 928 F.Supp.2d 723, 730 (S.D.N.Y.2013) ("There are clearly circumstances in which an employee’s failed romantic relationship with a supervisor can lead to an actionable Title VII claim, such as when the employee’s subsequent mistreatment can be tied to the rejected supervisor’s unwanted sexual advances or other inappropriate efforts to resume the relationship.”) (citing Babcock v. Frank, 729 F.Supp. 279, 287-88 (S.D.N.Y.1990)). But here, where the alleged motivation for the harassment is romantic rejection (not gender) and the harassing conduct is not sexual in nature, there is no basis for such a claim.
. In this case, Nungesser pleads that Sul-kowicz's allegations were false, and that Columbia found her claims to be not substantiated. But Nungesser's claim does not turn on the fact that the accusations were false. Under Nungesser’s theory of Title IX, a predicate act of sexual harassment occurs whenever one student accuses another of rape or sexual assault, irrespective of the veracity of the accusation. Unlike a common law slander or defamation claim under state law, the expansive Title IX claim that Nungesser seeks to develop in this case does not provide the defendant educational institution with a defense that the underlying accusation of sexual assault was truthful.
. In New York, for example "[m]aking a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation," and "[a] verbal utterance that inaccurately accuses a person of a serious crime can be slander per se." Thomas H. v. Paul B., 18 N.Y.3d 580, 584, 942 N.Y.S.2d 437, 965 N.E.2d 939 (N.Y.2012) (citations omitted). "Because the falsity of the statement is an element of the defamation claim, the statement's truth or substantial truth is an absolute defense.” Moorhouse v. Standard, New York, 124 A.D.3d 1, 997 N.Y.S.2d 127, 135 (2014) (citation omitted).
. The Court notes that Columbia disputes the language of the 2013 policy. Defs.' Br. at 17 n.9. As neither Nungesser nor Defendants sought to incorporate the complete 2012, 2013, or 2014 policies into the pleadings, the Court is in no position to evaluate this argument and accepts the facts pleaded in the complaint as true, as it must.