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Aubert v. Central New Mexico Community College

United States District Court, D. New Mexico

March 18, 2019

LAURA AUBERT, Plaintiff,
CENTRAL NEW MEXICO COMMUNITY COLLEGE, KRISTEN COULTAS-KAY, Individually and officially, RANDOLPH CRANDALL, individually and officially, KAREN MONTOYA, individually and officially, RUDY GARCIA, individually and officially, KATHARINE WINOGRAD, officially, and CRAIG VANDERPLOEG, individually, Defendants.


         THIS MATTER comes before the Court upon Defendants Central New Mexico Community College (“CNM”), Randolph Crandall (“Crandall”), Karen Montoya (“Montoya”), Rudy Garcia (“Garcia”), and Katharine Winograd (“Winograd”), collectively the “CNM Defendants, ”[1] Amended Motion to Dismiss Counts 1 and 2 of Plaintiff's First Amended Complaint and for Qualified Immunity (Doc. 44, filed 7/26/18). Having reviewed the parties' briefs (Docs. 44, 49, 53) and the applicable law, the Court DENIES CNM's Motion to Dismiss Count 1 for Failure to State a Claim, DENIES CNM's Motion to Dismiss Count 2 for Failure to State a Claim, and GRANTS the individual CNM Defendants' Motions to Dismiss Count 2 for Qualified Immunity.


         Plaintiff Laura Aubert (“Plaintiff”) has brought suit based on alleged sexual harassment and assault by Defendant Craig Vanderploeg, who was employed as a tutor by CNM at one of its educational learning centers. The Court previously granted Plaintiff's Motion to File First Amended Complaint (Doc. 39), and Plaintiff filed her First Amended Complaint on July 19, 2018. Doc. 42. Plaintiff asserts two counts against the collective CNM Defendants, and several counts against Defendant Vanderploeg (who is not included in the collective group known as “CNM Defendants”). After Plaintiff filed her First Amended Complaint (“FAC”), the Court permitted Defendants to refile an Amended Motion to Dismiss Counts 1 and 2 of Plaintiff's First Amended Complaint and for Qualified Immunity, which is presently in front of the Court. Doc. 44.

         In Count 1, Plaintiff alleges violation by CNM of Title IX of the Education Amendments of 1972 (“Title IX”). Doc. 42 at 11. In Count 2, Plaintiff alleges violation by all CNM Defendants of her civil rights pursuant to Title IX and Equal Protection under the Fourteenth Amendment. Doc. 42 at 17. She names Kristen Coultas-Kay, Randolph Crandall, Karen Montoya, and Rudy Garcia in their individual and official capacities. Plaintiff names Katharine Winograd in her official capacity only. Defendants contend that Plaintiff has failed to state a claim against any of the CNM Defendants, that the individual CNM Defendants are entitled to qualified immunity, and that the official capacity claims should be dismissed. For the following reasons, the Court finds that Plaintiff has stated a claim pursuant to Title IX and § 1983 against Defendant Central New Mexico Community College in Counts 1 and 2, and that the claims against individual CNM Defendants in Count 2 should be dismissed for qualified immunity.


         In reviewing a Motion to Dismiss, the Court construes as true the facts, but not the legal conclusions, presented in the plaintiff's complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (discussed infra). Thus construed, the First Amended Complaint presents the following events.

         Plaintiff was a student at Central New Mexico Community College when she began to work with a tutor (Defendant Craig Vanderploeg, hereinafter “Tutor”) at the CNM Student Resource Center (hereinafter the “Learning Center”) in February 2015. Plaintiff sensed that Tutor “wanted to be more than friends” (Doc. 42, ¶ 16), and she advised him that she was not interested. Tutor continued to pursue Plaintiff, which made Plaintiff uncomfortable. Tutor informed Plaintiff that he would not help her anymore if she refused his advances. Plaintiff felt she was under Tutor's increasing control. On two occasions, Plaintiff had sexual intercourse with Tutor at his home.

         At some point, Tutor told Plaintiff that he had been approached by one of the Learning Center supervisors, Defendant Randolph Crandall (“Crandall”), about his relationship with Plaintiff. Tutor told Plaintiff that he lied and said they were friends. Crandall told Tutor to circulate and not spend all his time with Plaintiff. Tutor told Plaintiff their relationship was not against the rules. Plaintiff realized she could not trust Tutor after he told her about the lie to Crandall.

         Approximately a week later, likely in early April, Plaintiff went to the Learning Center, which was crowded and noisy. She met with Tutor, and Tutor led her to a cubicle so they would have “more room and time to focus on tutoring.” Doc. 42, ¶ 27. While Plaintiff was doing her work, Tutor grabbed her breasts, forced her hand over his crotch, and whispered that she was “making him hard.” Doc. 42, ¶ 27. Plaintiff pushed Tutor away, as she was shocked and frightened. She told him that his conduct was not acceptable and that she wanted him to stop making sexual advances toward her. She gathered her belongings and Tutor became angry. Plaintiff began to cry. Tutor told Plaintiff that if she did not have sexual intercourse with him, he would make sure she failed her math course.

         As Plaintiff left the Learning Center in tears, Crandall called out to her to sign out, but she was too upset to do so. She saw Crandall call Tutor over, but Plaintiff does not know what was said. Over the following several days, Plaintiff received more than one hundred phone calls from Tutor, who even left a message saying that he had her address and he would go to her home if she continued to ignore him.

         Around April 6, 2015, four days after the cubicle incident, Plaintiff went to the Learning Center. Plaintiff searched for Crandall, but she could not find him. Plaintiff found Defendant Kristen Coultas-Kay (“Coultas-Kay'), another Learning Center supervisor. Plaintiff told Coultas-Kay of being violated by Tutor the previous week at the Learning Center, and of his ongoing harassment. Specifically, Plaintiff told Coultas-Kay that Tutor had grabbed her breasts, forced her hand over his crotch, and whispered that she was making him hard in the cubicle. Plaintiff also stated that she had engaged in sexual intercourse with Tutor, and that Tutor had told Plaintiff he could make sure she failed math if she did not continue to have sex with him. Plaintiff told Coultas-Kay that Tutor called her over one hundred times in the few days since the cubicle incident.

         Plaintiff told Coultas-Kay she wanted to talk to Crandall after he returned to the office. Coultas-Kay left a telephone message for Crandall while Plaintiff waited. Coultas-Kay assured Plaintiff that Crandall would call her later that day. Two days later, Plaintiff had not heard from Crandall or anyone about her report of Tutor's misconduct. Plaintiff returned to the Learning Center again, where Coultas-Kay told Plaintiff that Crandall was aware of the situation, as she had spoken with him after the meeting with Plaintiff.

         For approximately a month and a half, Plaintiff did not hear anything about her complaint. Tutor continued to work in the Learning Center and Plaintiff purposefully avoided him so she could continue to obtain tutoring. Plaintiff had high stress and anxiety levels during this time. Tutor continued to text Plaintiff about wanting to see her and have sex with her. In May 2015, Plaintiff learned from her house-sitter that Tutor had come to her apartment looking for her when she was not there.

         On May 20, 2015, Plaintiff called CNM Human Resources to “report the Tutor's conduct and her concerns.” Doc. 42, ¶ 41. Plaintiff left a voicemail and did not receive a call back. On the same day, Plaintiff emailed the Dean of Students, Defendant Dean Rudy Garcia (“Dean Garcia”), via on her phone, “stating that she had been subjected to sexual misconduct by a tutor.” Doc. 42, ¶ 42. Plaintiff requested to be contacted, but she was not.

         On May 26, 2015, Plaintiff went to see Dean Garcia. He advised that he had not received her email. Dean Garcia told Plaintiff that she would have to file a report with campus security before any action could be taken. Campus security was dispatched to take an incident report.

         On June 9, 2015, CNM HR consultant Defendant Karen Montoya (“Montoya”) met with Plaintiff and Plaintiff's friend. Plaintiff informed Montoya about “the whole story, including her report to Ms. Coultas-Kay.” Doc. 42, ¶ 44. Plaintiff gave Montoya copies of the handwritten notes from Tutor, copies of her own journal entries, and copies of the emails to HR and the Dean of Students. Plaintiff asked Montoya if she would provide Plaintiff with a copy of her notes for Plaintiff's review after the meeting, but Montoya never gave Plaintiff the notes.

         Tutor resigned on June 11, 2015, soon after receiving a Pre-Termination Notice that referenced an “ongoing pattern of questionable conduct and extremely poor judgment.” Doc. 42, ¶¶ 47-49. In late June, Plaintiff found out about Tutor's resignation. After he resigned, CNM treated Plaintiff's complaint as moot and failed to make findings and conclusions. Plaintiff sent Dean Garcia a letter of complaint on July 11, 2015. Plaintiff emailed President Katharine Winograd on August 8, 2015, addressing her ongoing concerns about Tutor's conduct, his future employment in education, her safety and that of other students, her need for additional tutoring to pass math and graduate, and her emotional distress. On July 20, 2015, the director of CNM Disability Resource Center, Mark Cornett, wrote to Plaintiff that he would work with Human Resources to make sure that Tutor did not receive a positive employment reference.

         Someone advised Plaintiff to obtain tutoring in another location than the tutoring center. CNM did not provide Plaintiff with adequate counseling resources or tutoring resources. Plaintiff received an incomplete in her math course, but she completed the class the next semester without help or assistance from CNM. Plaintiff graduated from CNM in December 2015 and attends UNM full time. She sees Tutor in campus at UNM, where he is employed. At the time relevant to Plaintiff's allegations, CNM did not have Title IX policies or grievance procedures, or a Title IX coordinator.


         I. Legal Standard: Motion to Dismiss for Failure to State a Claim

         Pursuant to Federal Rule of Civil Procedure 12(b)(6), the district court may dismiss a claim upon a defendant's challenge that the plaintiff either has failed to assert a cognizable legal theory as a matter of law or has failed to sufficiently allege plausible facts in support of the complaint. Fed.R.Civ.P. 12(b)(6). The Supreme Court of the United States has established a two-part examination of the factual sufficiency of a complaint to survive a motion to dismiss for failure to state a claim. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 551 (2007). First, the court must accept well-pleaded factual allegations as true, but the court is not bound to accept as true a legal conclusion that is “couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) After distinguishing between factual assertions and legal conclusions, the court then determines whether the factual allegations, when taken as true, “plausibly give rise to an entitlement to relief.” Id. at 679.

         Thus, to survive a motion to dismiss for failure to state a claim, “a complaint must plead facts sufficient to state a ‘claim to relief that is plausible on its face.'” Sylvia v. Wisler, 875 F.3d 1307, 1313 (10th Cir. 2017) (quoting Iqbal, 556 U.S. at 678) (citation and quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The court must construe reasonable inferences in the light most favorable to the plaintiff. Id. (citation and quotation marks omitted). As the Tenth Circuit has explained, “we look to the elements of the particular cause of action, keeping in mind that the Rule 12(b)(6) standard doesn't require a plaintiff to set forth a prima facie case for each element.” George v. Urban Settlement Servs., 833 F.3d 1242, 1247 (10th Cir. 2016) (citation and quotation marks omitted). Still, the plaintiff must allege sufficient facts that rise above speculation or mere conclusions, as “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The Supreme Court has noted that this examination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

         II. Analysis: Plaintiff's claim against CNM for violation of Title IX of the Education Amendments of 1972 (Count 1)

         A. Law on Title IX

         Title IX of the Education Amendments of 1972 prohibits universities that receive federal financial assistance from discriminating on the basis of gender. See 20 U.S.C. § 1681(a). The Tenth Circuit has explained that “[s]exual harassment is a form of discrimination on the basis of sex and is actionable under Title IX.” Escue v. Northern Okla. College, 450 F.3d 1146, 1152 (10th Cir. 2006). Title IX “is enforceable through an implied private right of action for which money damages are available.” Murrell v. School Dist. No. 1, 186 F.3d 1238, 1245-46 (10th Cir. 1999). A school is not vicariously liable to its students for all sexual harassment, as under Title IX, “a student may hold a school liable ‘only for its own misconduct.'” Davis ex rel. LaShonda D. v. Monroe County Bd. of Educ., 526 U.S. 629, 640 (1999). To impose liability upon a school pursuant to Title IX, the plaintiff must demonstrate that the school “(1) has actual knowledge of, and (2) is deliberately indifferent to, (3) harassment that is so severe, pervasive and objectively offensive as to (4) deprive access to the educational benefits or opportunities provided by the school.” Rost v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1119 (10th Cir. 2008) (citing Murrell, 186 F.3d at 1246).

         Regarding the first element, the school can obtain actual knowledge only through an “appropriate person.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). An appropriate person “is, at a minimum, an official of the [university] with authority to take corrective action [on behalf of the university] to end the discrimination.” Ross v. Univ. of Tulsa, 859 F.3d 1280, 1283 (10th Cir. 2017) (quoting Gebser, 524 U.S. at 290).

         Regarding the second element, a university is considered “deliberately indifferent” after receiving actual notice “only where the [university's] response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.” Id. at 1287 (quoting Davis, 526 U.S. at 648). The Circuit has explained that “[t]he Supreme Court has noted that administrators need not ‘engage in particular disciplinary action' under Title IX, ...

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