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Sheppard v. The Visitors of Virginia State University

United States District Court, E.D. Virginia, Richmond Division

April 25, 2019

THE VISITORS OF VIRGINIA STATE UNIVERSITY, LETIZIA GAMBRELL-BOONE, individually and in her official capacity, HENRY DEBOSE, individually and in his official capacity, and JULIA A. WALKER, individually and in her official capacity, Defendants.


          Henry E. Hudson, Senior United States District Judge.

         Plaintiff Malcolm X. Sheppard ("Plaintiff), a former Virginia State University student, is suing The Visitors of Virginia State University and three Virginia State University administrators, Letizia Gambrell-Boone, Henry DeBose, and Julia A. Walker, for alleged gender discrimination and due process violations.[1] According to Plaintiff, VSU violated Title IX (Count I) and the Family Educational Rights Privacy Act of 1974 ("FERPA") (Count II). Further, the Administrators allegedly violated Title IX, FERPA, and Plaintiffs due process rights guaranteed by the Fourteenth Amendment of the United States Constitution, actionable pursuant to 42 U.S.C. § 1983 (Count III).

         This matter is before the Court on Defendants' Motion to Dismiss (ECF No. 5), pursuant to Fed.R.Civ.P. 12(b)(6) and 12(b)(1). The parties have filed memoranda supporting their respective positions and the Court heard argument on March 5, 2019. Plaintiff has conceded that FERPA provides no private right of action and agrees that both claims must be dismissed. (PL's Mem. in Opp'n 12-13, ECF No. 11.) Further, he has agreed that the Eleventh Amendment precludes recovery of monetary damages from the Administrators in their official capacities. (Id. at 13.) Consequently, the remaining claims are the alleged Title IX violation against VSU under Count I and the Title IX and due process claims against the Administrators under Count III. Upon due consideration of the parties' arguments, and for the reasons that follow, the Court will dismiss Count I and the remainder of Count III as well.

         I. BACKGROUND

         This action arises out of an altercation between students that occurred on the VSU campus on October 25, 2016, and the university's response thereafter. Plaintiff, a male student at VSU at the time, discovered that certain personal items were missing from his dormitory room. (Compl. ¶ 10, ECF No. 1.) He learned from his roommate that a female student and former girlfriend, Student A, along with her female friend, Student B, had been in his room. (Id.) Unable to secure assistance from resident assistants within his dormitory, Plaintiff went to Student A's room to retrieve his belongings. (Id.) The Complaint alleges that when Student A refused to return his belongings, Plaintiff attempted to grab the room keys from Student A outside her room and inadvertently pushed her in the process. (Id. ¶ 11.) Thereafter, Student A filed an Incident Report with the university's Department of Police and Public Safety ("DPPS"). (Id.) Student B also gave a written statement that corroborated Student A's report. (Id. ¶ 12.)

         DPPS referred all three students to VSU's Office of Judicial Affairs ("OJA"). (Id. ¶ 13.) DPPS referred Plaintiff for assault and Students A and B for larceny. (Id.) On October 26, OJA issued to Plaintiff a "Pre-Hearing Notice," which informed Plaintiff that charges were pending against him and that he was prohibited from remaining on campus pending resolution of the charges. (Id. ¶¶ 14-15.)

         On October 31, OJA held a hearing, which Plaintiff attended, in which it found that he had violated certain sections of the Student Code of Conduct. (Id. ¶¶ 15-16.) OJA imposed several sanctions, but it did not suspend him or preclude him from completing his coursework. (Id. ¶ 17.) Plaintiff sought an appeal of OJA's decision by sending a letter to Defendant Henry DeBose, who was the Director of OJA at the time. However, Plaintiff claims he did not receive an answer and that OJA never considered his appeal. (Id. ¶ 19.)

         Separately, on October 25, prior to Plaintiffs OJA hearing, Student A obtained a protective order in the Chesterfield County General District Court. (Id. ¶ 18.) The protective order prohibited Plaintiff from entering VSU's campus and being within 100 feet of Student A. (Id.) Plaintiff was allegedly unaware of the hearing and subsequent order. (Id.) Further, on November 9, the Chesterfield County General District Court extended the protective order through January 2017. (Id. ¶ 19.)

         As a result of the protective order, the Office of Student Conduct permitted Plaintiff to complete his coursework online with the permission of his professors. (Compl. ¶ 21.) On November 11, the Office of Student Conduct requested on Plaintiffs behalf that his professors make provisions to allow him to complete his classes remotely. (Id.) Only one professor denied this request. (Id.)

         On November 29, Defendant DeBose sent Plaintiff a letter notifying him that his suspension from VSU would remain in effect and that he was deemed to be withdrawn from his courses. (Id. ¶¶ 22-23.) While Plaintiff was excluded from campus pending his OJA hearings, he alleges that no suspension was in place following the OJA's imposition of sanctions. (Id. ¶¶ 15, 22.) DeBose copied Defendants Letizia Gambrell-Boone, the Vice President for Student Success and Engagement, and Julia A. Walker, the EEOC and Title IX Coordinator, on Plaintiffs letter. (Id. ¶ 24.) Plaintiff alleges that he assumes that both were involved in the action taken against him. (Id.)

         In December 2016, Plaintiff attempted to enroll at Old Dominion University, but was unable to do so due to a hold on his VSU transcript. (Id. ¶ 25.) Plaintiff allegedly had no outstanding financial obligation to VSU that would justify a hold. (Id.) Later that month, Plaintiffs mother contacted Defendant DeBose about releasing Plaintiffs transcript and DeBose allegedly told her that he would speak with the university registrar. (Id.) The transcript was ultimately released in March 2017, after an attorney acting on Plaintiffs behalf made such a demand. (Id. ¶ 26.) By that time, Plaintiff had missed the deadline for enrollment at Old Dominion University for the Spring 2017 semester. (Id.)

         Although OJA completed the disciplinary proceedings against Plaintiff in October 2016, disciplinary action was not taken against Student A or Student B until March of 2017. (Id. ¶¶ 30-33.) The OJA found that Student A was responsible for theft and issued sanctions, and further found that Student B was not responsible for any misconduct. (Id. ¶¶ 32-33.)

         Plaintiff alleges that VSU took disciplinary action against Students A and B only after it received notice of Plaintiff s complaint filed in January 2017 with the United States Department of Education, Office of Civil Rights ("OCR") (Id. ¶¶ 28, 31-33.) According to Plaintiff, OCR concluded that Plaintiff had established a prima facie case of discrimination. (Id. ¶ 34.) OCR found that the discrepancy in the time between the initiation and adjudication of the charges against Plaintiff and the initiation and adjudication of the charges against Student A and Student B was demonstrative of VSU's less favorable treatment of Plaintiff on account of his sex. (Id. ¶¶ 34-36.)

         On October 24, 2018, Plaintiff filed this action against VSU alleging discrimination on the basis of sex in violation of Title IX (Count I), codified at 20 U.S.C. § 1681(a), and violations of FERPA (Count II), codified at 29 U.S.C. § 1232g. (Id. ¶¶ 38-43.) Plaintiff also included claims against the Administrators in their individual and official capacities for violations of Title IX, FERPA, and Plaintiffs due process rights under the Fourteenth Amendment, actionable pursuant to 42 U.S.C. § 1983 (Count III). (Id. ¶¶ 44-59.) Plaintiff seeks $500, 000.00, plus costs and attorney's fees, and an order enjoining Defendants to remedy the adverse notations on Plaintiffs transcript and to cease all future discrimination against him. (Id. at 13.)

         II. ...

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