Virginia Lawyers Weekly VA Lawyers Weekly
Where a former athlete at the College of William and Mary, or W&M, alleged that a W&M administrator surveilled her at the request of the women’s basketball coach, and that the coach then threatened to remove her from the team or revoke her scholarship, she plausibly alleged claims for retaliation and intentional infliction of emotional distress.
Background
Caroline Stover, a former athlete at W&M, sues W&M; W&M president Katherine R. Rowe; former W&M athletic director Samantha K. Huge; former W&M head women’s basketball coach Edward Swanson; assistant women’s basketball coach Michelle Kurowski and W&M assistant athletic director for business affairs Nate Engelhardt.
Plaintiff sues W&M for deliberate indifference to plaintiff’s sexbased harassment in violation of Title IX and retaliation by withholding protections otherwise conferred by statute. She asserts one claim against Rowe, Huge, Swanson, Kurowski and Engelhardt, for defendants’ denial of Equal Protection and Due Process in violation of 42 U.S.C. § 1983. And she sues Swanson and Engelhardt for intentional infliction of emotional distress, or IIED, and assault. Defendants have filed motions to dismiss.
Standing
Defendants argue that plaintiff lacks standing to seek prospective injunctive relief. The court agrees. Plaintiff alleges that W&M’s athletic staff engaged in and was deliberately indifferent to a pattern of sex-based allegations are primarily based on Swanson and Engelhardt’s alleged surveillance and subsequent retaliatory conduct following the W&M investigation into the events that occurred on Oct. 27, 2019.
Plaintiff alleges that she remains at risk of future harm because she is eligible to play another season of basketball as a graduate student. But this allegation is speculative at best without evidence that plaintiff has applied to any W&M graduate schools. Even accepting the possibility of plaintiff’s graduate school enrollment as true, Plaintiff still cannot overcome the imminent harm hurdle required under Article III, particularly given Swanson’s dismissal.
Next, sovereign immunity prevents plaintiff from suing W&M for monetary relief. Similarly, because defendants are employed by W&M, they are also entitled to Eleventh Amendment protection as state officials. As such, the Eleventh Amendment plainly bars plaintiff from seeking damages against the individual defendants in their official capacities.
Deliberate indifference
To establish a Title IX claim under a deliberate indifference theory, a plaintiff must show (1) that the educational institution receives federal funds, (2) the plaintiff was subjected to harassment based on her sex, (3) the harassment was sufficiently severe and pervasive to create a hostile environment in an educational program or activity and (4) there is a basis to impute liability to the institution.
Plaintiff’s deliberate indifference claim fails as a matter of law on the fourth element. Although plaintiff contests the outcome of W&M’s investigation and the response of certain administrators to plaintiff’s report of harassment, there is no basis for the court to find that W&M acted with deliberate indifference. Instead the court finds that plaintiff’s complaint establishes that W&M’s response was “reasonably calculated to end the harassment.”
Retaliation
A plaintiff stating a Title IX retaliation claim must sufficiently allege that: (1) she engaged in protected activity under Title IX and (2) as a result of their protected activity, she suffered an adverse action that is attributable to the defendant educational institution. Plaintiff’s complaint is clearly protected activity. Swanson’s alleged response, which allegedly included threats to remove plaintiff from the basketball team and revoke her scholarship, are enough to sufficiently allege a plausible retaliation claim.
IIED
The complaint alleges that Swanson and Engelhardt intentionally arranged to surveil and intimidate plaintiff and engaged in retaliatory and threatening conduct that was designed to cause plaintiff to feel extreme emotional distress. Plaintiff cites to her interactions with Swanson where he pressured her to quit the basketball team or revoke her scholarship, as well as Engelhardt’s general conduct “at the behest of Swanson and Kurowski.” Viewing these allegations in the light most favorable to plaintiff, the court finds that reasonable men may differ as to whether Swanson and Engelhardt’s conduct was sufficiently extreme and outrageous to result in liability.
Assault
Plaintiff alleges that Engelhardt was directed by Swanson to threaten plaintiff by surveilling, following and taking pictures and videos of plaintiff off-campus and in her vehicle. Because the complaint does not adequately allege that either Swanson or Engelhardt intended to cause harmful or offensive contact with plaintiff, or apprehension of such contact, plaintiff fails to state an assault claim.
Defendants’ motion to dismiss granted in part, denied in part.
Stover v. The College of William and Mary, Case No. 4:21-cv-150, Oct. 18, 2022. EDVA at Newport News (Jackson). VLW 022-3-472. 23 pp.
