Virginia Lawyers Weekly VA Lawyers Weekly
Where a former Washington and Lee student claimed he was the victim of sexual orientation and gender stereotyping discrimination, but his suit was filed more than two years after the alleged conduct, it was time barred.
Background
Jared Hester alleges three instances of discrimination based on sexual orientation and gender stereotyping while a student at Washington & Lee University between 2009 and 2013, as well as general discrimination based on race, religion and sexual orientation. The university has filed a motion to dismiss.
Racial or religious discrimination
Plaintiff’s complaint arises solely under Title IX. Title IX provides that “[n]o person 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 seeking Federal financial assistance.” No similar provision in Title IX encompasses race or religion. Thus, Title IX’s plain text only provides a cause of action for sex-based claims. Accordingly, to the extent plaintiff’s complaint argues racial or religious discrimination, plaintiff fails to state a plausible Title IX claim.
Because plaintiff is proceeding pro se, and he has alleged facts related to racial and religious discrimination claims, the court considers whether a Title VI claim for racial discrimination could survive a motion to dismiss. However, such a claim is time-barred. A Title VI claim has a two-year statute of limitations in Virginia.
Here, all racial discrimination alleged by plaintiff occurred between 2009 and 2013. Thus, any potential accrual occurred in this timespan. Plaintiff filed this action in January 2022, more than two years after the cause of action accrued. It follows that the statute of limitations bars a Title VI claim.
Sexual orientation discrimination
Plaintiff also brings sexual orientation-related discrimination claims under Title IX. A Title IX claim accrues at the time of the alleged wrongdoing, whether that is a discrete act (or acts) or a pattern of conduct. It follows that plaintiff, to avoid his claims being time-barred, had to bring the Title IX claims either within two years of each incident of harassment alleged or, if alleging a practice of harassment, within two years of the final instance of wrongdoing that can be attributed to the university.
Plaintiff, in response to this argument, states that “[t]his suit is about the Title IX complaint process and not the original events which it is based on.” On this basis, plaintiff requests relief because the conduct Plaintiff allegedly experienced as a student resulted in him having to spend $16,000 to earn a bachelor’s degree via another institution, as the sexual harassment plaintiff experienced at Washington & Lee caused him a three-year delay in finishing the degree. He finished the degree in 2016.
These allegations do not change that Title IX claims accrue at the time of the discrete acts of alleged harassment — as opposed to upon a subsequent experience or experiences of damages. Even if plaintiff could rely on his 2021 communications with the Title IX coordinator, as plaintiff argues in opposition to the motion to dismiss, the 2021 communications are based in damages that plaintiff allegedly suffered in or around 2016. Thus, even if the 2016 expenses sufficed for statute of limitations purposes, plaintiff still needed to bring the claim within two years—thus no later than some time in 2018.
Defendant’s motion to dismiss granted.
Hester v. Washington and Lee Univ., Case No. 6:22-cv-00002, Sept. 16, 2022. WDVA at Lynchburg (Moon). VLW 022-3-409. 8 pp.
