Opinion
No. 20-CV-1049-LRR
2022-01-07
Sanghamitra KUNCHE, Plaintiff, v. UNIVERSITY OF DUBUQUE, Defendant.
Jason J. Bach, Pro Hac Vice, The Bach Law Firm LLC, Las Vegas, NV, Brian J. Fagan, Robert S. Hatala, Simmons Perrine Moyer Bergman PLC, Cedar Rapids, IA, for Plaintiff. Brian J. Kane, Todd L. Stevenson, Kane Norby & Reddick PC, Dubuque, IA, for Defendant.
Jason J. Bach, Pro Hac Vice, The Bach Law Firm LLC, Las Vegas, NV, Brian J. Fagan, Robert S. Hatala, Simmons Perrine Moyer Bergman PLC, Cedar Rapids, IA, for Plaintiff.
Brian J. Kane, Todd L. Stevenson, Kane Norby & Reddick PC, Dubuque, IA, for Defendant.
ORDER
LINDA R. READE, JUDGE
TABLE OF CONTENTS
I. INTRODUCTION...1072
II. RELEVANT PROCEDURAL HISTORY...1072
III. SUBJECT MATTER JURISDICTION...1073
IV. SUMMARY JUDGMENT STANDARD...1073
V. RELEVANT FACTUAL BACKGROUND...1074
VI. ANALYSIS...1075
A. Breach of Contract—Claim 1...1075
1. Parties’ arguments...1075
2. Applicable law...1076
3. Application...1077
B. Title IX Violation—Claim 2...1077
1. Parties’ arguments...1077
2. Applicable law...1078
3. Application...1080
VII. CONCLUSION...1082
I. INTRODUCTION
The matter before the court is Defendant University of Dubuque's ("UD") Motion for Summary Judgment ("Motion") (docket no. 31).
II. RELEVANT PROCEDURAL HISTORY
On November 23, 2020, Plaintiff Sanghamitra Kunche filed the Amended Complaint (docket no. 5). In the Amended Complaint, Kunche alleges breach of contract (Count 1) and violation of Title IX of the Education Amendments of 1972 (Count 2). See generally Amended Complaint ¶¶ 72-110. On August 25, 2021, after receiving leave from the court, UD filed the Amended Answer to the Amended Complaint ("Amended Answer") (docket no. 26), with affirmative defenses. On October 22, 2021, UD filed the Motion. On November 12, 2021, Kunche filed the Resistance (docket no. 32). The matter is fully submitted and ready for decision.
III. SUBJECT MATTER JURISDICTION
UD is a private university located in Dubuque, Iowa. Amended Complaint ¶ 10; UD's Statement of Material Facts Not in Dispute ("SMF") (docket no. 31-1) ¶ 1. Kunche is a resident of the State of California. Amended Complaint ¶ 9; Kunche's Statement of Additional Material Facts ("SAMF") (docket no. 32-3) ¶ 1. In the Amended Complaint, Kunche alleges that the amount in controversy exceeds $75,000. Amended Complaint ¶¶ 13, 89 & 108.
The court has original jurisdiction over Kunche's claim arising under Title IX, 20 U.S.C. § 1681(a). See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). The court has supplemental jurisdiction over Kunche's breach of contract claim because it is so related to the claim within the court's original jurisdiction that they form part of the same case or controversy. See 28 U.S.C. § 1367(a) ("[T]he district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy...."). Additionally, the court finds that it has diversity jurisdiction over the claims because complete diversity exists between the parties and the amount in controversy exceeds $75,000. See U.S.C. § 1332(a)(1) ("The district courts have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 ... and is between ... citizens of different States.").
IV. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). "Summary judgment is proper ‘if the pleadings, the discovery and disclosure materials on file, and any affidavits show’ " an absence of a genuine dispute as to a material fact. Hilde v. City of Eveleth , 777 F.3d 998, 1003 (8th Cir. 2015) (quoting Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)). "A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case." Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc. , 826 F.3d 1149, 1157 (8th Cir. 2016) (quoting Gazal v. Boehringer Ingelheim Pharm., Inc. , 647 F.3d 833, 837-38 (8th Cir. 2011) ). "The movant ‘bears the initial responsibility of informing the district court of the basis for its motion,’ and must identify ‘those portions of [the record] ... which it believes demonstrate the absence of a genuine issue of material fact.’ " Torgerson , 643 F.3d at 1042 (alterations in original) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Once the movant has done so, "the nonmovant must respond by submitting evidentiary materials that set out ‘specific facts showing that there is a genuine issue for trial.’ " Id. (quoting Celotex Corp. , 477 U.S. at 324, 106 S.Ct. 2548 ).
On a motion for summary judgment, the court must view the facts "in the light most favorable to the nonmoving party." Id. (quoting Ricci v. DeStefano , 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) ). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial," and summary judgment is appropriate. Ricci , 557 U.S. at 586, 129 S.Ct. 2658 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). "The nonmovant ‘must do more than simply show that there is some metaphysical doubt as to the material facts....’ " Torgerson , 643 F.3d at 1042 (quoting Matsushita , 475 U.S. at 586, 106 S.Ct. 1348 ). Instead, "[t]o survive a motion for summary judgment, the nonmoving party must substantiate [its] allegations with sufficient probative evidence [that] would permit a finding in [its] favor based on more than mere speculation, conjecture, or fantasy." Williams v. Mannis , 889 F.3d 926, 931 (8th Cir. 2018) (third alteration in original) (quoting Barber v. C1 Truck Driver Training, LLC , 656 F.3d 782, 801 (8th Cir. 2011) ). Mere "self-serving allegations and denials are insufficient to create a genuine issue of material fact." Anuforo v. Comm'r of Internal Revenue , 614 F.3d 799, 807 (8th Cir. 2010). "Evidence, not contentions, avoids summary judgment." Reasonover v. St. Louis Cty. , 447 F.3d 569, 578 (8th Cir. 2006) (quoting Mayer v. Nextel W. Corp. , 318 F.3d 803, 809 (8th Cir. 2003) ).
V. RELEVANT FACTUAL BACKGROUND
The following facts are either uncontested or, if contested, viewed in the light most favorable to Kunche. See Munz v. Michael , 28 F.3d 795, 796 (8th Cir. 1994).
UD, a private university, offers among other degrees and programs, a master of science degree in physician assistant studies ("MSPAS"). SMF ¶ 1. The curriculum for the MSPAS involves both, classroom learning on UD's campus and clinical experience through various rotations at health care facilities. Id. In the fall of 2017, Kunche started the MSPAS program at UD. Id. ¶ 6.
In her first semester at UD, Kunche failed four examinations. Id. ¶ 13. Kunche failed two examinations at the beginning of her second semester at UD. Id. ¶ 14. After completing her on-campus course work, Kunche began her clinical rotations. Id. ¶ 16. Kunche's first rotation was in emergency medicine. Id. ¶ 22. She completed the rotation but failed the written examination, given at the end of the rotation. Id. ¶¶ 20 & 22. Kunche was permitted to take a remediation examination, which she also failed. Id. ¶ 23. As a result of failing both examinations, Kunche received a failing grade for the emergency medicine rotation. Id. ¶ 24.
Because Kunche failed the emergency medicine rotation, a Student Evaluation Committee ("SEC") meeting was held. Id. ¶ 26. The purpose of the SEC is: (1) to ensure that each student who graduates from UD's MSPAS program "possesses the skills and knowledge necessary to assume the responsibilities of a physician assistant"; (2) to evaluate academic performance in the program, assess advancement and recommend appropriate intervention for unacceptable academic performance; and (3) to evaluate a student's qualities, professionalism and fitness to become a physician assistant. See UD's Appendix to Motion for Summary Judgment ("UD's Appendix") (docket no. 31-3) at 81 (UD's SEC Rules and Regulations); see also SAMF ¶ 39 ("The SEC is tasked with evaluating the performance of students who are referred to the committee, determining student status and making recommendations about student progression, including remediation or dismissal, to the MSPAS program director."). Prior to the SEC meeting, Kunche began her family medicine rotation. SMF ¶ 27. She failed her end-of-rotation examination for family medicine. Id. The SEC meeting was held on March 6, 2019. Id. ¶ 28. Kunche was placed on academic probation and the SEC determined that Kunche must "complete another emergency medicine rotation" and must "take a remediation exam for family medicine." Id. ¶¶ 28-29.
In April 2019, Kunche repeated the emergency medicine rotation at Grant Regional in Lancaster, Wisconsin. Id. ¶ 30. She completed the rotation and passed the end of rotation examination. Id. ¶ 31. She also completed an evaluation of the rotation in which she noted that "[t]wo comments were allegedly made by a member of the staff at the rotation site. One about Californians and one was about nonwhite students." Id. ¶ 32. "Kunche later went back to Grant Regional for a general surgery rotation and was able to pass it without any difficulty." Id. ¶ 37.
On July 22, 2019, Kunche began a general surgery rotation at NorthShore University Health System ("NorthShore") in Chicago, Illinois. Id. ¶ 38. Approximately two weeks before the end of her rotation at NorthShore, Kunche alleges that a resident, James Oyeniyi, "made a statement which caused her concern." Id. ¶ 40. Oyeniyi was teaching Kunche how to insert a Foley catheter and told her to "hold the penis like you mean it. You are married; right? You should know how to hold a penis." Id. ; see also UD's Appendix at 26 (Kunche's Deposition). Kunche completed the insertion of the Foley catheter, but "waited until the last day of her rotation to report the incident to her preceptor, Megan Butzke." SMF ¶¶ 41 & 43. Kunche was able to complete the rotation and "is aware that the incident was reported to personnel at NorthShore after she discussed it with staff at [UD] when she returned to campus." Id. ¶ 46. Based on evaluation of all components, including the preceptor evaluation, the end-of-rotation examination and assignments, Kunche did not pass the general surgery rotation. Id. ¶ 47; see also Kunche's Response to UD's SMF ¶ 47; SAMF ¶ 19; UD's Reply to Kunche's SAMF ¶ 19.
Due to her failure of the general surgery rotation, Kunche was referred to the SEC. SAMF ¶ 23. Following the SEC meetings, Kunche was not dismissed from the program, but rather, placed on probation and required to repeat the general surgery rotation. Id. ¶ 29; see also SMF ¶ 52; Kunche's Response to UD's SMF ¶ 52.
Kunche also failed her third attempt at the Objective Structured Clinical Exam ("OSCE"), which she had failed twice previously. SMF ¶ 54. Because of her third failure of the OSCE, Kunche was referred to the SEC. Id. ¶ 55. On February 11, 2020, following the SEC meeting, the SEC recommended that Kunche be dismissed from the MSPAS program due to her clinical course failures and failing the OSCE. Id. ¶ 59. Kunche appealed the SEC recommendation, and, on March 6, 2020, the program Dean denied Kunche's appeal and upheld Kunche's dismissal from the program. Id.
The OSCE is a mock patient examination where a student is required to order labs, provide a diagnosis and develop a treatment plan. SMF ¶ 55.
VI. ANALYSIS
A. Breach of Contract—Claim 1
1. Parties’ arguments
UD argues that it "did not breach any contract with [Kunche]." UD's Brief in Support of Motion for Summary Judgment ("UD's Brief") (docket no. 31-2) at 12. UD maintains that "no contractual relationship existed between [Kunche] and UD which guaranteed [Kunche] a right to enroll in, nor remain part of, UD's MSPAS program." Id. at 12-13. UD asserts that it "followed its own policies with respect to the termination of [Kunche's] participation in the MSPAS program, and did not violate Iowa law in this regard." Id. at 14. UD also asserts that it "afforded [Kunche] due process and followed its policy pursuant to the MSPAS 2019-2020 Student Handbook." Id.
In resistance to the motion for summary judgment, Kunche argues that "Iowa law recognizes a contractual relationship between students and universities." Kunche's Brief in Support of Opposition to UD's Motion for Summary Judgment ("Kunche's Brief") (docket no. 32-1) at 7. Kunche asserts that "[t]here is nothing in Iowa law that restricts the nature and content between students and universities, elevates such a relationship above contract law or otherwise holds that the normal tenets of contract law somehow do not apply." Id. Kunche maintains that "courts in Iowa and the Eighth Circuit have explicitly recognized that the procedures set forth in handbooks, rules and regulations provide the terms of the contract between a student and university, and that a university must follow such procedures." Id. at 8. Kunche argues that she and UD "entered into an agreement in which both exchanged certain promises about the rules and terms governing and related to her enrollment—in other words, the SEC rules and regulations" and "under Iowa law, disputes about whether handbooks or other documents are part of a contract is a question to be submitted to the jury, and thus precludes summary judgment." Id. at 9.
Kunche argues that UD breached the procedures in the SEC process contained in the student handbook, particularly UD's denial of an opportunity for her to review the OSCE video prior to the SEC meeting and on appeal of the SEC's determination. See generally id. at 10-11. Kunche also argues that, contrary to UD policies, UD's failed to investigate and address her discrimination and harassment complaints, which constitutes a breach of contract. See generally id. at 12-14.
2. Applicable law
Under Iowa law, in order to establish a claim for breach of contract, a plaintiff must show: "(1) the existence of a contract; (2) the terms and conditions of the contract; (3) that it has performed all the terms and conditions required under the contract; (4) the defendant's breach of the contract in some particular way; and (5) that plaintiff has suffered damages as a result of the breach." Iowa Arboretum, Inc. v. Iowa 4-H Foundation , 886 N.W.2d 695, 706 (Iowa 2016) (quoting Iowa Mortgage Ctr., L.L.C. v. Baccam , 841 N.W.2d 107, 110-11 (Iowa 2013), in turn quoting, Molo Oil Co. v. River City Ford Truck Sales, Inc. , 578 N.W.2d 222, 224 (Iowa 1998) ).
In Warren v. Drake University , 886 F.2d 200 (8th Cir. 1989), the Eighth Circuit Court of Appeals, relying on Cannon v. National By-Products, Inc. , 422 N.W.2d 638 (Iowa 1988), held that whether documents such as the university's honor code and student handbook are "part of a contract between [a student] and [university]," is a jury question. Warren , 886 F.2d at 202. More recently, in Rossley v. Drake University , 342 F.Supp.3d 904 (S.D. Iowa 2018), the district court addressed a breach of contract claim between a student and a university related to the university's alleged failure to comply with disciplinary policies found in the university's Code of Student Conduct and Sexual Misconduct Policy, noting that the parties stipulated the Code and Policy established a contractual relationship between the student and the University. See generally id. at 944-46. 3. Application
Citing only Jackson v. Drake University , 778 F.Supp. 1490 (S.D. Iowa 1992), UD's claim that "Iowa case law provides that student handbooks are not ‘contracts’; rather, the case law merely provides that students have a right to rely on the school to follow disciplinary procedures in the handbook," see UD's Brief at 13, is flat out incorrect. Jackson does not even address the issue of whether a student handbook constitutes a contract. See id. at 1493. Moreover, Warren and Rossley both hold that the determination of whether the policies in student handbooks, student codes of conduct or other such documents constitute a contract between the student and university is a jury question. See Warren , 886 F.2d at 202 ; Rossley , 342 F.Supp.3d at 945.
Here, Kunche alleges that a contract existed between herself and UD based on the MSPAS program policies found in the MSPAS Student Catalog and Handbook ("Student Handbook"), which includes the SEC Rules and Regulations. Amended Complaint ¶ 75. The Student Handbook itself provides that:
This Master of Science in Physician Assistant Studies Student Handbook is maintained by the University of Dubuque Master of Science in Physician Assistant Studies (MSPAS) program. The policies and procedures herein apply to all MSPAS students and should serve as a guide throughout student academic, clinical, and extracurricular life. Whenever participating in University of Dubuque (UD) and/or MSPAS-sponsored program events on and off campus, MSPAS students must abide by the policies and guidelines in this UD Master of Science in Physician Assistant Studies Student Catalog and Handbook.
The basic premise for these student guidelines is the understanding that individual rights are accompanied by responsibilities. By enrolling in the MSPAS program, students become members of the larger UD community and, thus, acquire rights in and responsibilities to the entire University community.
"Appendix to Plaintiff's Opposition in Response to Defendant's Motion for Summary Judgment" ("Kunche's Appendix") (docket no. 32-4) at 16. UD denies that the Student Handbook constitutes a contract between Kunche and UD. The court finds that there is a genuine dispute of material fact precluding summary judgment on the issue of whether a contract based on the Student Handbook exists between Kunche and UD. It follows that a genuine issue of material fact exists on the other elements of the contract claim. Therefore, the court finds that UD's motion for summary judgment on the breach of contract issue must be denied.
B. Title IX Violation—Claim 2
1. Parties’ arguments
UD argues that it "did not violate Title IX of the Education Amendments of 1972 and [Kunche] is unable to satisfy the prima facie elements of her Title IX sexual harassment claim against UD." UD's Brief at 14. Specifically, UD argues that, "[i]n this case, [Kunche] is unable to demonstrate that UD was deliberately indifferent to known acts of discrimination which occurred under UD's control, and so her claim against UD must fail." Id. at 15. UD maintains that it "does not exercise any control whatsoever over the physicians, residents or staff at NorthShore, nor does it have jurisdiction to investigate any allegations of sexual harassment there." Id. at 16. According to UD, "any claim [Kunche may have] must be pursued independently against NorthShore or the resident alleged to have committed the harassment in question." Id. UD asserts that "[t]he alleged conduct by the resident at NorthShore did not occur under UD's control, and does not rise to the level of discrimination or is so objectively offensive that it can be said to deprive [Kunche] of access to educational opportunities at UD." Id. UD concludes that summary judgment is proper because "[t]he undisputed facts demonstrate that UD acted reasonably in confirming with NorthShore that the incident in question was promptly reported and investigated there" and Kunche was "dismissed in accordance with the MSPAS program guidelines after she accumulated two course failures." Id. at 17.
In resistance to the motion for summary judgment, Kunche argues that "UD is liable for the harassment and retaliation occurring during a clinical rotation and the resulting effects." Kunche's Brief at 15. Kunche asserts that "UD had control over the clinical rotation, notwithstanding it did not directly employ those who harassed and retaliated against Ms. Kunche and it not only had ‘jurisdiction’ to investigate instances of discrimination, it was required to do so." Id. at 17. Kunche also argues that "UD bears responsibility for its discriminatory and retaliatory actions." Id. Specifically, Kunche asserts that her "claim is not premised on continuing harassment or retaliation from NorthShore after she alerted UD, but upon UD's failure to investigate and respond, leading to its own adoption of the retaliatory evaluations, as well as UD's own actions afterward—actions for which deliberate indifference is not the relevant standard." Id. Kunche maintains that her allegations of retaliation in violation of Title IX against UD meet the requirements of a prima facie case for retaliation under Title IX. See id. at 17-18.
2. Applicable law
20 U.S.C. § 1681(a) provides 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." Id. 45 C.F.R. § 86.31(d)(1) provides that Title IX is applicable to any institutional recipient of Federal financial assistance "which requires participation by any ... student ... in any education program or activity not operated wholly by such recipient, or which facilitates, permits, or considers such participation as part of or equivalent to an education program or activity operated by such recipient, including participation in educational consortia ... and student-teaching assignments." Id. The district court in Crandell v. New York College of Osteopathic Medicine , 87 F.Supp.2d 304 (S.D.N.Y. 2000), relying on 45 C.F.R. § 86.31(d)(1), explains that "education program or activity" includes "not only programs operated by the recipient of federal funds, but also programs not wholly operated by the recipient if the recipient ‘requires participation’ by any student therein or if the recipient ‘facilitates, permits, or considers such participation as part of or equivalent to an education program or activity operated by such recipient....’ " Id. at 317 (quoting 45 C.F.R. § 86.31(d)(1) ).
In Crandell , a student sued the college she attended for, among other things, sexual harassment during her clinical clerkship rotation at a partnering hospital. 87 F.Supp.2d at 316. In finding that the harassment during the clinical clerkship rotation fell within the protections of Title IX, the district court held that, because the college was a federally funded institution and the clinical rotations were a mandatory part of the college's curriculum, the clinical clerkship rotations "clearly" fell within Title IX. Id. at 317. The district court explained that the college assigned students to the rotations at particular hospitals and was responsible for the design and management of the program and selection of supervisors at the hospitals. Id. The district court found that such evidence "strongly supports a finding that the alleged harassment in clinical clerkship rotations occurred under [an] education program or activity receiving Federal financial assistance as required by Title IX." Id. (quotation omitted).
The district court noted the college's argument that it did not control the resident alleged to have harassed the student and consequently could not be held responsible for the resident's actions but found the college's argument to be "something of a non sequitur. " Id. The district court explained that, while the college did not control the resident to the extent that it could fire him, the college "exerted significant control" over the affiliation between the hospital and the college, the placement of students at the hospital in the clinical rotation and the selection of adjunct clinical personnel at the hospital who directly or indirectly supervised the participating students. See id. The district court concluded that the fact that the college "did not directly control the [hospital] [r]esident is beside the point, as Title IX applies not only to harassment by individuals in the employ of the federally funded institution, but also to harassment occurring in programs not operated by the recipient if student participation in such programs is required by the recipient, which is exactly the case here." Id.
"Unlike other anti-discrimination statutes, Title IX does not expressly provide a right of action for retaliation. But in Jackson v. Birmingham Board of Education , the Supreme Court found that Title IX implied a right of action for retaliation to enforce its prohibition on intentional discrimination, allowing litigants to seek monetary damages for individual violations of Title IX. 544 U.S. 167, 173, 125 S. Ct. 1497, 161 L.Ed.2d 361 (2005)." Du Bois v. Bd. of Regents of Univ. of Minnesota , 987 F.3d 1199, 1203 (8th Cir. 2021). In Du Bois , the Eighth Circuit Court of Appeals noted that, while Jackson held that a right of action for retaliation was implied in Title IX, "it did not establish the elements of that claim" and the Eighth Circuit has "never specifically articulated what a plaintiff must plead to establish a cause of action for retaliation under Title IX." Id.
The Eighth Circuit noted, however, that it has held that "the Supreme Court's interpretation of Title VII properly informs our examination of Title IX." Id. (quoting Wolfe v. Fayetteville, Ark. Sch. Dist. , 648 F.3d 860, 866 (8th Cir. 2011) ). In order to establish a prima facie case of retaliation under Title VII, "a plaintiff must demonstrate that (1) she engaged in protected conduct; (2) she suffered a materially adverse employment act; and (3) the adverse act was casually linked to the conduct." Du Bois , 987 F.3d at 1203 (citing Bunch v. Univ. of Ark. Bd. of Tr. , 863 F.3d 1062, 1069 (8th Cir. 2017) ). Other circuit courts of appeal take this approach as well. See Du Bois , 987 F.3d at 1203. "The Ninth, Third, Seventh, and Fifth Circuits require that (1) the plaintiff partook in protected activity; (2) the plaintiff suffered an adverse action; and (3) a causal connection exists between the two." Id. at 1203-04 (citations omitted). However, "other circuits also require the plaintiff to demonstrate that the defendant knew of the protected activity." Id. at 1204 (citing Bose v. Bea , 947 F.3d 983, 988-89 (6th Cir. 2020) ; Frazier v. Fairhaven Sch. Comm. , 276 F.3d 52, 67 (1st Cir. 2002) ; Papelino v. Albany Coll. of Pharm. of Union Univ. , 633 F.3d 81, 91 (2d Cir. 2011) ). In Du Bois , the Eighth Circuit did not reach a decision on which circuits’ approach is best because the plaintiff in the case could not meet the first element of the Title IX retaliation prima facie case under either standard. 987 F.3d at 1204.
More recently, in an opinion filed after Du Bois , and, without discussing the difference between the circuits, the Eighth Circuit held that, "[t]o plead [a] prima facie retaliation claim, the [plaintiff] must allege [he or she] participated in activity protected by Title IX, and the University took adverse action against [him or her] because of their participation in that activity." Does 1-2 v. Regents of the Univ. of Minnesota , 999 F.3d 571, 579 (8th Cir. 2021).
3. Application
Here, Kunche alleges that she was the subject of sexual harassment while in a UD/MSPAS-required clinical rotation at NorthShore in violation of Title IX. Amended Complaint ¶ 95. The parties do not dispute that UD is subject to Title IX because UD receives federal funding through its participation in the federal financial aid program and its receipt of federal financial aid funds. Amended Complaint ¶ 94; Amended Answer ¶ 94. The parties also do not dispute that "UD's Title IX policy, as provided by UD, indicates that the policy applies to sexual harassment by not only students and employees, but also third parties and further that the Title IX coordinator will provide an impartial investigation of all allegations of harassment and retaliation." SAMF ¶ 44; UD's Reply to Kunche's SAMF ¶ 44.
To the extent that UD argues that it "does not exercise control whatsoever over the physicians, residents or staff at NorthShore" and lacks "jurisdiction to investigate any allegations of sexual harassment" at NorthShore, the court finds UD's argument unpersuasive. On the record before the court, there is evidence that UD exerted control similar to the level of control discussed in Crandell. Like in Crandell , the clinical rotation at issue here was a mandatory part of UD's MSPAS curriculum, UD assigned Kunche to the clinical rotation at NorthShore and UD bears responsibility for the design and management of the MSPAS program. 87 F.Supp.2d at 317. UD also exerted control over its affiliation with NorthShore, the placement of students in clinical rotations at NorthShore. See id. ; see also Kunche's Appendix at 19 (Student Handbook providing that "[t]he Clinical Placement Director and Clinical Education Director control student placement of clinical rotations including the locations and order of rotations, preceptor assignments, and the elective settings"). Moreover, the Student Handbook provides that "[t]he MSPAS program and ARC-PA regulations require formal affiliation agreements between the MSPAS program and all clinical sites. Clinical site selection and approval rests with the MSPAS." Kunche's Appendix at 18. Additionally, the relationship between preceptors, the individuals at a clinical site who supervise and evaluate students, see SMF ¶ 19, and UD is outlined in the Preceptor Handbook: "The success of clinical training of PA students depends on maintaining good communication among the student, the PA program, preceptors, and the clinical coordinator." Kunche's Appendix at 30. "The program strives to maintain open faculty-colleague relationships with its preceptors[.]" Id. Finally, the fact that UD did not directly control the NorthShore resident is irrelevant because Title IX applies not only to harassment by individuals that are employed by federally funded institutions, but also to harassment occurring in programs such as this that are not operated by UD because student participation in such programs is required by UD. In her Amended Complaint, Kunche also alleges that the preceptors at NorthShore were required to abide by UD's and the MSPAS program's Title IX policy. Amended Complaint ¶ 97. Further, Kunche alleges that, after complaining of sexual harassment, the NorthShore preceptors retaliated against her by giving her lower evaluation scores than the scores in her mid-term evaluation. Id. ¶ 100. Kunche alleges that, "[r]ather than address the sexual harassment, the MSPAS program threatened dismissal, accusing [Kunche] of delaying a report of harassment or making it up, placed her on probation as a result of the negative academic impacts of the harassment and required her to repeat her general surgery rotation." Id. ¶ 103. Kunche also alleges that the "MSPAS program further engaged in retaliation in violation of Title IX when it accused her of unprofessionalism because she informed her peers that she had been subject to sexual harassment and then continued to accuse her of unprofessionalism in other actions[.]" Id. ¶ 104. Consistent with the Amended Complaint, in her resistance to the motion for summary judgment, Kunche frames the alleged Title IX violation as retaliation. Specifically, Kunche states that her "claim against UD is not premised only on the actions of the resident and preceptors at NorthShore while she was participating in MSPAS’ clinical rotation there, but rather upon UD's adoption, and thus its own perpetration, of harassment and retaliation when it relied on the retaliatory evaluation and then itself retaliated against her and perpetuated the discrimination and its impact." Kunche's Brief at 15. Even though UD did not address retaliation under Title IX in its brief, based on the foregoing, it is clear that the thrust of Kunche's Title IX claim is based on retaliation. Indeed, Kunche asserts that "[r]etaliation under Title IX is a form of intentional violation and thus is not subject to the deliberate indifference standard." Id. at 17.
Under Does 1-2 , the Eighth Circuit's most recent discussion of the prima facie case for retaliation under Title IX, Kunche must show that she "participated in [an] activity protected by Title IX, and [UD] took adverse action against [her] because of [her] participation in that activity." 999 F.3d at 579. It is undisputed that Kunche participated in an activity protected by Title IX, as she complained of sexual harassment. See Jackson , 544 U.S. at 174, 125 S.Ct. 1497 ("[R]etaliation is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the complaint: an allegation of sex discrimination. We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional ‘discrimination’ ‘on the basis of sex,’ in violation of Title IX."). Kunche also alleges that, as a result of making the sexual harassment complaint, she received a negative evaluation from the NorthShore preceptors and UD adopted the NorthShore preceptors’ negative evaluation, relying on it to make MSPAS program decisions and to impose negative academic consequences on her. See generally Amended Complaint ¶¶ 95-106; Kunche's Brief at 17-18. Thus, there is evidence which supports Kunche's allegation that UD took adverse action against her for complaining about sexual harassment. Additionally, the court notes that this same analysis applies under either of the standards for Title IX retaliation discussed in Du Bois , as it is clear that UD "knew of the protected activity." 987 F.3d at 1204. It is undisputed that Kunche complained to UD about the sexual harassment at NorthShore. SMF ¶ 46. Accordingly, based on the foregoing, the court finds that genuine issues of dispute exist precluding summary judgment with regard to Kunche's Title IX retaliation claim. Therefore, the court finds that UD's motion for summary judgment on the Title IX issue must be denied.
VII. CONCLUSION
In light of the foregoing, it is hereby ORDERED :
Defendant University of Dubuque's Motion for Summary Judgment (docket no. 31) is DENIED .