United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Marshall University Board of
Governors' Motion for Summary Judgment. ECF No. 82.
Plaintiff Alicia Gonzales alleges, in her complaint, a single
claim against Defendant for discriminating against her based
upon her sex, in violation of 20 U.S.C. § 1681, et.
seq., also known as Title IX. Compl., ECF No.
1, at 9. Defendant now moves for summary judgment on this
single claim, arguing that Plaintiff cannot show that she was
subjected to an ongoing hostile environment or that Defendant
was deliberately indifferent to her harassment. Def's
Mot. for Summ. J., ECF No. 82, at 1. Plaintiff, on the
other hand, asserts that Defendant's motion must be
denied because material questions of fact still exist.
See Resp. in Opp. to Def.'s Mot. for Summ. J.,
ECF No. 85, at 10.
parties have fully briefed and argued the issues and the
motion is now ripe for adjudication. As explained below, the
Court GRANTS Defendant's Motion for
case originates from the alleged sexual assault of Plaintiff
that occurred while she was enrolled at Defendant's
university. See Compl., at ¶ 17. On February 1,
2016, Plaintiff and a fellow student at Defendant's
university, Joseph Hardin, entered Plaintiff's dormitory
after she signed him into the building. See Dep. of
Gonzales, ECF No. 82-1, at 7 According to Plaintiff,
when she and Mr. Hardin were in her bedroom, he raped her.
See Id. at 8.
following day, Plaintiff met with Officer McCallister of the
Marshall University Police Department (“MUPD”) to
discuss the incident, and on February 3, 2016, the MUPD took
Plaintiff to the Cabell County Courthouse to obtain a
temporary restraining order against Mr. Hardin. See
Id. at 9, 11-12, 28-29. Seven days after the alleged
rape, on February 8, 2016, Plaintiff told Lisa
Martin-Defendant's Director of Student Conduct-that
Plaintiff had been assaulted by Mr. Hardin and wanted to file
charges against him. See Dep. of Martin, ECF No.
86-1, at 4-5. The next day, Ms. Martin sent Mr. Hardin a
letter charging him with sexual assault, a violation of the
Marshall University Student Code of Rights and
Responsibilities, and initiated the Title IX investigation.
See Dep. of Gonzales, ECF No. 86-2, at 29; Dep.
of Martin, ECF No. 82-3, at 2-5; Dep. of
Bullard, ECF No. 82-4, at 3-4. The letter directed that
Mr. Hardin not contact Plaintiff or her acquaintances, and
banned him from the residence halls. See Dep. of
Bullard, at 3-4. Additionally, Ms. Martin testified that
she reviewed both Mr. Hardin's and Plaintiff's class
schedules to ensure that they would not cross paths. See
Dep. of Martin, ECF No. 82-3, at 5.
investigating the incident, on March 10, 2016, Ms. Martin
found Mr. Hardin responsible for violating the Marshall
University Student Code of Rights and Responsibilities, sent
him a sanction letter, and expelled him from Marshall
University. See Dep. of Martin, ECF No. 82-3, at 4.
Mr. Hardin appealed this decision on March 11, 2016, and an
appeal hearing was conducted less than two months later on
May 4, 2016. See Dep. of Bullard, at 8; Dep. of
Barbour, ECF No. 82-5, at 2.
appeal hearing Ms. Martin represented Marshall University and
presented the case against Mr. Hardin, while Mr. Hardin was
represented by counsel, Anthony Spenia and Elizabeth Estep.
See Dep. of Barbour, 82-5, at 3-4. At the conclusion
of the hearing, the Student Conduct Panel found that Mr.
Hardin was not responsible for violating the Marshall
University Student Code of Rights and Responsibilities, and
issued no sanction against him. See Dep. of Bullard,
the panel issued their finding, Ms. Martin spoke with
Plaintiff about an appeal, and subsequently emailed Title IX
Coordinator Debra Hart to inform her that Plaintiff intended
to appeal. See Dep. of Gonzales, ECF No. 82-1, at
19; Dep. of Martin, ECF No. 86-1, at 61. However,
Plaintiff never formally appealed the decision of the hearing
panel. See Dep. of Gonzales, ECF No. 82-1, at 20-22;
Dep. of Bullard, at 12. Plaintiff then left campus
after her freshman year concluded on May 6, 2016, and started
the admission process to Slippery Rock University. See
Dep. of Gonzales, ECF No. 82-1, at 23-24.
11, 2016, one week after the appeal hearing, Carla
Lapelle-Defendant's Interim Dean of Student
Affairs-sua sponte issued a recommendation to
Marshall University President Jerome Gilbert that Mr. Hardin
be completely banned from campus until the conclusion of his
criminal case, but be permitted to take online courses.
See Dep. of Gonzales, ECF No. 82-1, at 30; Dep.
of Bullard, at 13-14. President Gilbert then adopted Ms.
Lapelle's recommendations. See Dep. of Bullard,
at 16. However, on May 12, 2016, Mr. Hardin appealed
President Gilbert's decision to ban him from campus, and
President Gilbert lifted the ban on Mr. Hardin pending his
appeal. See Review Letter, ECF No. 82-7, at 2. The
record indicates, however, that the no-contact order was
never lifted. See Id. Mr. Hardin's appeal was
then directed to Ms. Hart, and on August 18, 2016, Ms. Hart
affirmed the decision to ban Mr. Hardin from campus until the
resolution of his criminal case. See Id. Thus,
Defendant investigated the alleged rape, expelled Mr. Hardin
from school, conducted an appeal hearing on the expulsion,
banned Mr. Hardin from campus despite the fact that his
expulsion was overturned, and affirmed Mr. Hardin's ban
from campus after he appealed, all within seven months of
being informed of the alleged rape.
five months after Mr. Hardin's ban was affirmed, on
January 11, 2017, Mr. Hardin entered a Kennedy Plea to the
charge of battery and was sentenced to three years of
probation. See Review Letter, at 2. On January 20,
2017, Mr. Hardin then requested a reconsideration of his ban
from Marshall University due to the conclusion of his
criminal case, and Ms. Gonzales objected to his request on
February 1, 2017. See Id. Mr. Hardin's ban was
then lifted to allow him to return to campus to attend
classes, but he was not permitted to enter the residence
halls, to participate in extracurricular activities, or to
attend the Rec Center. See Id. at 3. These
restrictions were subsequently lifted in the Fall of 2018.
See Dep. of Hart, ECF No. 86-3, at 14.
then filed a complaint against Defendant on January 1, 2018,
for violating Title IX, arguing that, as a result of
Defendant's actions and deliberate indifference toward
the sexual assault, she suffered various damages. See
Compl. Defendant now moves for summary judgment on
Plaintiff's claim. Def's Mot. for Summ. J.,
Standard of Review
obtain summary judgment, the moving party must show that no
genuine issue as to any material fact remains and that the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In considering a motion for summary
judgment, a court will not “weigh the evidence and
determine the truth of the matter[.]” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead,
a court will draw any permissible inference from the
underlying facts in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986). Any inference,
however, “must fall within the range of reasonable
probability and not be so tenuous as to amount to speculation
or conjecture.” JKC Holding Co. v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001)
(citation omitted). Therefore, summary judgment will not be
granted if a reasonable jury could return a verdict for the
non-moving party on the evidence presented. See
Anderson, 477 U.S. at 247-48.
IX of the Education Amendments of 1972 states that
“[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 discrimination under any
education program or activity receiving Federal financial
assistance ….” 20 U.S.C. § 1681(a). Thus,
to establish a Title IX claim on the basis of sexual
harassment, “a plaintiff must show that (1) she was a
student at an educational institution receiving federal
funds, (2) she was subjected to harassment based on her sex,
(3) the harassment was sufficiently severe or pervasive to
create a hostile (or abusive) ...