Opinion
Case No. 97-C-7636
March 11, 1999
MEMORANDUM OPINION AND ORDER
Plaintiff Delore Adams ("Adams"), a black female and former student, has charged Defendant Lewis University, a Christian Brothers University, ("Lewis") with race, sex, and age discrimination, and retaliation under various civil rights statutes. Lewis moves to dismiss, with prejudice, plaintiff's Second Amended Complaint pursuant to Rule 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure. Defendant argues that Adams fails to meet federal pleading requirements because she provides no factual basis for any of her claims. For the reasons set forth below, the court grants in part and denies in part, defendant's motion to dismiss.
Background
In ruling on this motion to dismiss, the court "accept[s] as true the factual allegations of the complaint." Lashbrook v. Oerkfitz, 65 F.3d 1339, 1343 (7th Cir. 1995) (citations omitted). Adams has filed a number of complaints with both the U.S. Department of Education, Office for Civil Rights ("OCR") and this court. On May 13, 1997, Adams filed a complaint against Lewis with the OCR. (Second Am. Compl. ¶ 6.) In her OCR complaint, Adams alleged that Lewis discriminated against her when it: (1) forced her to meet additional requirements before recommending her for teacher certification to the Illinois State Board of Education; (2) had members of the education department grade her, contrary to Lewis's promise; (3) rigged the exam so that she could not pass; (4) ultimately refused to recommend her for teacher certification; (5) graded her differently in a course than white and younger students; (6) led her to believe that she was admitted to Lewis's masters program, and accepted her student loans as payment for tuition; (7) denied her access to former instructors who could serve as job references; (8) denied her permission to continue enrollment; and (9) proposed to pay her tuition to attend a different school and mentioned aid that it had provided to her husband. (Second Am. Compl. ¶ 6.)
In a separate complaint, filed with the OCR on August 22, 1997, Adams charged that Lewis discriminated against her on the basis of race, sex, disability, and age. She contends that Lewis discriminated against her by reneging on its promise to pay her spring 1997 semester tuition and falsely stating that she was in academic trouble. (Second Am. Compl. ¶ 6.) Further, in an additional OCR complaint, dated September 17, 1997, Adams alleged that after she filed her discrimination complaints with the OCR, Lewis retaliated by threatening her job security with a school district. She maintains that Lewis prompted the school district to place a negative memorandum in her personnel file and subjected her work to excessive review. (Second Am. Compl. ¶ 6.)
After the OCR issued Adams right to sue letters, she filed a pro se complaint with this court on October 30, 1997. In this first complaint, Adams claimed that Lewis and its Education Department violated the Civil Rights Act and her due process rights. (Second Am. Compl. ¶ 7.) This court granted Adams' application to proceed in pauperis and motion for appointment of counsel on November 18, 1997. The court also granted her leave to file an amended complaint on January 23, 1998. In her amended complaint, submitted on February 24, 1998, Adams alleged race, sex, age, and retaliatory discrimination under Title VI, Title IX, the Age Discrimination Act. (Am. Compl. ¶¶ 3, 10-13.) Adams attached her right to sue letters to her amended complaint as exhibits. On April 27, 1998, Lewis filed its motion to dismiss on grounds that Adams' amended complaint was insufficiently plead and warranted dismissal pursuant to Rules 8a(2) and 12(b)(6) of the Federal Rules of Civil Procedure.
While Lewis's motion was pending, Adams filed another pro se complaint on May 29, 1998. On October 22, 1998, this court dismissed Adams' May 1998 pro se complaint and ordered her to incorporate the dismissed claim into this action. On November 13, 1998, Adams filed her second amended complaint against Lewis. Again she alleged race, sex, and age discrimination, and retaliation. (Second Am. Compl. ¶¶ 3, 13-18.) In this complaint, Adams makes reference to her right to sue letters and attaches them to her first amended complaint. (Second Am. Compl. ¶ 6.)
In her second amended complaint, Adams charged that Lewis violated her rights under the Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681; the Age Discrimination Act of 1975, 42 U.S.C. § 6102; Family Education Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. § 1232g; and the Civil Rights Act of 1871, 42 U.S.C. § 1983. (Second Am. Compl. ¶ 3.) Specifically, Adams alleges that Lewis discriminated against her on the basis of age, race, and gender in that Lewis evaluated and otherwise treated her differently than similarly situated younger students, Caucasian students, and male students. Further, Adams contends that she suffered damages due to Lewis' improper discrimination, and that, after she filed charges against Lewis before the OCR, Lewis retaliated against her by evaluating and otherwise treating her in an unfair and improper manner. Adams adds that she has been subjected to threats and intimidation from representatives of Lewis. Finally, Adams asserts that, despite her requests on several occasions, Lewis and its representatives denied her the right to inspect school records Lewis kept regarding Adams. (Am. Compl., Exs. A, B, C.)
Adams asks the court to issue an order that reinstates her as a student in Lewis's program, reimburses her for all student loans and charges, requires Lewis to give her full access to her records, and awards her compensatory and punitive damages, costs and attorney's fees. (Second Am. Compl. ¶ 19.) On December 15, 1998, Lewis filed an amended motion to dismiss Adams' second amended complaint.
Analysis
Pursuant to Rules 8(a)(2) and 12(b)(6) of the Federal Rules of Civil Procedure, Lewis moves the court to dismiss Adams' second amended complaint with prejudice. A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit.Dimitropoulos v. Bank One Milwaukee, N.A., 915 F. Supp. 1399, 1406 (N.D. Ill 1996) (citing Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990)).
Defendant argues that plaintiff's complaint "consists of nothing more than self-serving legal conclusions and . . . provides Defendant no reasonable basis for determining how to respond." (Def. Mem. at 1.) and therefore, fails to meet the pleading requirements under Federal Rule of Civil Procedure 8(a)(2). The standard for pleading requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A plaintiff is not required "to specify particular legal theories in a complaint, so long as the facts alleged give adequate notice to the defendant of the basis of the suit." Wudtke v. Davel, 128 F.3d 1057, 1061 (7th Cir. 1997). After this initial notice pleading is satisfied, the plaintiff may later be required to provide facts that match the legal elements of her claim, such as when the court considers a motion for summary judgment. See Palmer v. Board of Education Community Sch. Dist., 46, F.3d 682, 688 (7th Cir. 1995).
The court finds defendant's argument unpersuasive. Plaintiff's complaint does satisfy the pleading requirements of Rule 8(a). InJackson v. Marion County, the Seventh Circuit expressly rejected the imposition of heightened pleading requirements in cases governed by the Federal Rules of Civil Procedure, unless required by the rules themselves. See Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir. 1995) (examining the impact of Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163 (1993) on pleading requirements.) Federal courts should not read a requirement of fact pleading into the federal rules.Jackson, 66 F.3d at 153. As such, courts must apply a liberal notice pleading standard. "A plaintiff in suit in federal court need not plead facts; he can plead conclusions," but "the conclusions must provide the defendant with at least minimal notice of the claim." Id.
Applying a liberal notice pleading standard, the court finds that Adams has satisfied the pleading rules set forth in Rule 8(a). Fed.R.Civ.P. 8(a). By incorporating her right to sue letters by reference, Adams has effectively plead facts sufficient to carry her minimal burden under the law. In addition, the history of this case suggests that Lewis has been provided ample notice of the claim.
The court therefore turns its attention to Lewis's motion to dismiss for failure to state a claim under 12(b)(6).
Lewis contends that Adams' complaint consists of "uninformative" and "vacuous allegations . . . that she was 'subjected to discrimination' in unstated ways, at unstated times and by unstated people." (Def. Mot. at 1-2.) However, this court will dismiss a claim only if "it appears beyond doubt that [the plaintiff] can prove no set of facts in support of his claim which would entitle him to relief." Colfax, 79 F.3d at 632 (quotingConley v. Gibson, 355 U.S. 41, 45-46 (1957)). The court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the plaintiff. Zinermon v. Burch, 494 U.S. 113 (1990); Colfax Corp. v. Illinois State Toll Highway Auth., 79 F.3d 631, 632 (7th Cir. 1996).
I. Title VI Race Discrimination
Title VI provides that "no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. To state a claim of race discrimination under Title VI, Adams must allege that the defendant is (1) engaging in racial discrimination; and (2) receiving federal financial assistance. See Torrespico v. Columbia College, No. 97 C 8881, 1998 U.S. Dist LEXIS 15714 at *48 (N.D. Ill. Sept. 29, 1998), citing Fobbs v. Holy Cross Health System Corp., 29 F.3d 1439, 1447 (9th Cir. 1994). Therefore, Adams must provide either facts or conclusory allegations sufficient to put Lewis on notice of her claim and to allow this court to infer that she has a cause of action. Torrespico, 1998 U.S. Dist. LEXIS 15714 at *52.
Adams has met this burden. In her amended complaint, she charged that Lewis discriminated against her on the basis of race and she also alleged that Lewis receives federal financial assistance. As such, this court finds that she has made allegations sufficient to state a claim under Title VI. Although Adams' complaint does not contain detailed descriptions of Lewis' alleged discriminatory actions, the court gleaned the requisite facts from the right to sue letters attached to her complaint and incorporated by reference therein.
Although courts reviewing a Rule 12(b)(6) motion to dismiss are limited to the allegations contained in the pleadings themselves, documents incorporated by reference into the pleadings and documents attached to the pleadings are considered part of the pleadings for all purposes. Fed.R.Civ.P. 10(c); Adams v. Adkins, No 97 C 5981, 1998 U.S. Dist LEXIS 2705, at *2 (N.D.Ill. Mar. 6, 1998).
In addition, Adams makes the explicit claim that Lewis graded and tested her differently from similarly situated Caucasian students, (Am. Compl., Ex. A at 1-3, 9), and that Lewis applied different academic requirements and restrictions to her than to similarly situated Caucasian students, (Am. Comp. at 1-2, 5). If true, these statements would provide direct evidence that Lewis intended to discriminate against Adams based on her race. Consequently, the court denies Lewis's motion to dismiss Adams' Title VI racial discrimination claim.
II. Title IX Sex Discrimination
Title IX states that "no 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. To state a claim under Title IX, Adams must allege: (1) that she was excluded from participation in, denied benefits of, or subjected to discrimination in an educational program; (2) that the exclusion was on the basis of sex; and (3) that defendant receives federal financial assistance. See Torrespico, 1998 U.S. Dist. LEXIS 15714, at *51-52, citing Seamons v. Snow, 84 F.3d 1226, 1232 (10th Cir. 1996). Adams' sets forth sufficient facts to support her Title IX claim. According to Adams, Lewis treated her differently from similarly situated males. Lewis refused to recommend her for teacher certification, denied her continued enrollment in its masters program and denied her access to former instructors. (Am. Compl. at 1-2, 5-6.) Consequently, the court denies Lewis's motion to dismiss Adams' Title IX sex discrimination claim.III. Age Discrimination
The Age Discrimination Act ("ADA") provides that "no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance." 42 U.S.C. § 6102. To state a claim under § 6102, again Adams must allege that defendant receives federal financial assistance and that she was discriminated against or denied the opportunity to participate or benefit from a school program or activity because of her age. Adams has once again satisfied her burden. She alleged that Lewis receives federal aid for its masters program and that it discriminated against her on the basis of age. More specifically, Adams contends that Lewis evaluated and otherwise treated her differently than similarly-situated younger students at Lewis. (Am. Compl., Ex. A at 2, 7; Ex. B at 1, 3-4.) She therefore states a claim under the ADA. The court denies Lewis's motion to dismiss Adam's § 6102 age discrimination claim.
IV. Retaliation
Adams alleges that because she levied charges of discrimination against it, Lewis retaliated by further discriminating against her. Few courts have resolved the question of whether students may bring claims of retaliatory discrimination under Title IX. However, some courts have addressed the issue of retaliatory discrimination under Title IX generally and suggest that it does afford a private right of action, to students, for retaliation.See Lowrey v. Texas AM University System, 117 F.3d 242, 249 (5th Cir. 1997); Murray v. New York University College of Dentistry, 57 F.3d 243, 248 (2nd Cir. 1995); Preston v. Commonwealth of Virginia, ex rel. New River Community College, 31 F.3d 203, 206 (4th Cir. 1994); Adusumilli v. Illinois Institute of Technology, No. 97 C 8507, 1998 U.S. Dist. LEXIS 14413, *13 (N.D. Ill. Sept. 8, 1998).
"The plain language of the statute [Title IX] creates no private right of action for retaliation." Lowrey, 117 F.3d at 249. However, under certain circumstances, the Supreme Court has found implied private rights of action under Title IX. Id. In addition, the administrative regulations promulgated to implement and enforce Title IX "prohibit retaliation against any individual who has made a complaint, testified, or participated in any manner in an investigation into alleged noncompliance with Title IX." Lowery, 117 F.3d at 249. See also 34 C.F.R. § 106.1, 100.7(e). In Lowery, the court, considering a female basketball coach's claim of retaliatory discrimination under Title IX, held that plaintiff "was fully entitled to raise complaints and to participate in the investigations concerning alleged violations of title IX [against her students] and likewise was entitled to the protection against retaliation afforded by § 100.7(e). Lowery, 117 F.3d at 251. Therefore, under Lowery and § 106.1 of the Title IX regulations, Adams may claim retaliation under Title IX.
Title IX incorporates by reference, 34 C.F.R. § 100.7(e), the anti-retaliation provisions set forth in Title VI, 42 U.S.C. § 2000d, which prohibits unlawful discrimination in programs receiving federal assistance. See 34 C.F.R. § 106.71.
Most courts agree that Title VII standards should be applied in determining whether a plaintiff has stated a claim of sexual discrimination under Title IX. Title VII of course contains an express provision prohibiting retaliatory discrimination. 42 U.S.C. § 2000e-3(a); See Dey v. Colt Constr. Dev. Co., 28 F.3d 1446, 1457 (7th Cir. 1994). According to one court, "in a Title IX suit for gender discrimination based on sexual harassment of a student, an educational institution may be held liable under standards similar to those applied in cases under Title VII."Murray, 57 F.3d at 249, citing both Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 73, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) and Meritor Savings Bank v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). As such, the Murray court applied the traditional retaliatory discrimination standards, as set forth under Title VII, for a dental school student's claim against her university. Murray, 57 F.3d at 251.
Under Title VII, to state a claim of retaliation, plaintiff must allege that: (1) she engaged in a statutorily protected activity; (2) she suffered an adverse action; and (3) there is a causal link between the protected activity and the adverse action. See Adusumilli, 1998 U.S. Dist. LEXIS 14413 at *13, citing Dey, 28 F.3d at 1457; 34 C.F.R. § 100.7(e). Adams' retaliation claim satisfies each of these elements. Adams complains that she engaged in statutorily protected activity by bringing discrimination charges against Lewis before the OCR. (Second Am. Compl. ¶¶ 16-17.) She allegedly suffered adverse action as a result, in that Lewis evaluated and treated her unfairly and improperly, and subjected her to threats and intimidation. (Second Am. Compl. ¶¶ 16-17.) Her right to sue letters indicate that Lewis denied her access to instructors who could serve as job references and the opportunity to pursue a graduate degree. She claims Lewis also caused her to incur student loan debt. (Am. Compl., Ex. A at 1, 5-6.) If true, Adams' allegations satisfy the prima facie case of retaliation. The court therefore denies Lewis's motion to dismiss Adams' retaliation claim.
IV. FERPA and § 1983
Adams contends that although she requested access to her school records on several occasions, Lewis denied her the right to inspect these records, in violation of the Family Education Rights and Privacy Act ("FERPA"). (Second Am. Compl. ¶ 18.) FERPA simply requires educational agencies that receive federal funds to allow students and their parents an opportunity to access their educational records and correct misleading or inaccurate information. 20 U.S.C. § 1232g. According to this provision, an institution will be stripped of federal funds if it prohibits students from inspecting files that contain information that directly concerns them.
FERPA does not expressly create a right to bring a private cause of action. See Rothman v. Emory University, 828 F. Supp. 537, *542 (N.D. Ill. 1993). However, ordinarily, plaintiffs can maintain an implied FERPA claim under 42 U.S.C. § 1983. Tarka v. Franklin, 891 F.2d 102, 104 (5th Cir. 1989), cert. den. 494 U.S. 1080, 110 S.Ct. 1809, 108 L.Ed.2d 940 (1990); Tarka v. Cunningham, 741 F. Supp. 1281 (W.D. Tex. 1990), aff'd 917 F.2d 890 (5th Cir. 1990). Here, since Adams cannot make a claim under § 1983, her FERPA claim must also fail.
Under § 1983, plaintiff must allege that, (1) she was deprived of her rights secured by the Constitution and laws and (2) that defendant was acting under color of law. NCAA v. Tarkanian, 488 U.S. 179, 193, 109 S.Ct. 454, 462 (1988). Although FERPA created an interest that could be vindicated in § 1983 action, Adam is barred from making a proper § 1983 claim. Since Lewis, a private institution, cannot be considered to have acted under color of state law, Adams cannot sufficiently make out the requisite § 1983 claim. See Odom v. Columbia University, 906 F. Supp. 188, 195 (S.D.N.Y. 1995). As such, the court must grant defendant's motion to dismiss her FERPA claim.
Section 1983 provides that "every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state . . . subjects, or causes to be subjected, any citizen of the United States or other person . . . to the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." The Civil Rights Act of 1871, 42 U.S.C. § 1983.
Conclusion
For the reasons set forth above, the court grants in part and denies in part, Lewis's motion to dismiss Adams' Second Amended Complaint. [22-1] The court grants Lewis's motion to dismiss plaintiff's FERPA claim and denies Lewis's motion to dismiss Adams' remaining claims. The court denies defendant's motion to dismiss [17-1] Adams' Amended Complaint as moot. The court instructs the parties to discuss settlement of this case before the next court date.