1:14-Cv-04614 Document #: 28 Filed: 08/20/14 Page 1 of 17 Pageid #:56

Case: 1:14-cv-04614 Document #: 28 Filed: 08/20/14 Page 1 of 17 PageID #:56

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

PETER LUDLOW, ) ) Plaintiff, ) Case No. : 14-cv-04614 ) v. ) Honorable Sara L. Ellis ) NORTHWESTERN UNIVERSITY, ) Magistrate Judge Susan F. Cox MORTON SCHAPIRO, individually, ) ALAN CUBBAGE, individually, LAUREN ) LEYDON-HARDY, individually, ) JENNIFER LACKEY, individually and ) JOAN SLAVIN, individually. ) ) Defendants )

DEFENDANTS NORTHWESTERN UNIVERSITY, MORTON SCHAPIRO, ALAN CUBBAGE, JOAN SLAVIN, AND JENNIFER LACKEY’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PURSUANT TO RULE 12(b)(6)

Plaintiff Peter Ludlow is a professor at Defendant Northwestern University

(“Northwestern” or the “University”) who claims that Northwestern violated Title IX by doing what it was legally obligated to do under Title IX : investigate and resolve allegations that he sexually harassed two female Northwestern students. Plaintiff’s Title IX claim is not only preempted by Title VII, but it also violates law, logic, and public policy. In addition to urging that this Court order Northwestern to abandon its Title IX obligations to students, Plaintiff seeks to punish in court one of those same students who accused him of sexual harassment, as well as

Northwestern colleagues who simply fulfilled their Title IX obligations to assist complainants and investigate complaints. Plaintiff even seeks to punish the President of the University and the

Vice President for University Relations for reporting Plaintiff’s current employment status.

As explained below, the defamation and other state-law tort claims directed at the individual defendants are frivolous, offensive, and subject to dismissal. The claims against

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Northwestern also fail on multiple grounds. This Court should see this case for what it is: a blatant attempt by Plaintiff to abdicate responsibility, shift blame, and intimidate. Every claim against Northwestern, Schapiro, Cubbage, Slavin, and Lackey should be dismissed with prejudice.

I. FACTS ALLEGED 1

A. Northwestern’s 2012 Investigation Into an Undergraduate Student’s Sexual Harassment Complaint Against Plaintiff

Plaintiff is a professor in Northwestern’s Philosophy Department. Cmplt. ¶ 1. In February of 2012, a female undergraduate student (“Student A”) 2 made a sexual harassment complaint against Plaintiff. Id. ¶ 9. Defendant Joan Slavin, Northwestern’s Director of Sexual Harassment

Prevention, conducted an investigation into Student A’s allegations (“2012 Investigation”). Id. ¶¶

7, 10. During the 2012 Investigation, Slavin interviewed Defendants Lackey and Leydon-Hardy.

Id. ¶¶ 11, 13. Lackey is a female professor in Northwestern’s Philosophy Department. Id. ¶ 6.

Leydon-Hardy is a female graduate student in the Philosophy Department. Id. ¶ 5. As a result of the 2012 Investigation, Northwestern determined that Plaintiff had violated Northwestern’s policy against sexual harassment, and took certain disciplinary actions against Plaintiff. Id. ¶¶

14-15. Plaintiff asserts the conclusion that the 2012 Investigation was “flawed and one-sided.”

Id. ¶ 10.

B. Student A’s Lawsuits and Resulting Controversy

In February of 2014, Student A filed a lawsuit under Title IX against the University, which was based on the events giving rise to (and following) the 2012 Investigation. Id. ¶ 16.

Student A filed a separate lawsuit against Plaintiff for violating the Illinois Gender Violence Act.

Id. ¶ 17. Plaintiff alleges that Student A’s lawsuits generated “ample media coverage,” that

1 Solely for the purposes of this Motion to Dismiss, Northwestern assumes the following facts to be true. 2 Because Student A is not a party to this litigation, Northwestern has refrained from using her name. 2

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“more than 100 individuals” planned to disrupt Plaintiff’s classes on March 4, 2014, and that

“further protests and disruptions” of Plaintiff’s classes were also planned. Id. ¶ 18. Plaintiff further alleges that, because of these protests, Northwestern asked Plaintiff if he would agree not to teach any classes during the upcoming Spring Quarter and that Plaintiff agreed. Id. ¶ 19.

On March 12, 2014, Northwestern held a meeting with students “regarding concerns raised regarding Ludlow and the University’s handling of Title IX issues,” at which it distributed the handout attached as Exhibit A 3; see Cmplt. ¶ 22. The handout, which is not attributed to any of the individual defendants, explained a number of steps that Northwestern had taken, including the cancellation of Ludlow’s Spring Quarter class. Ex. A, Cmplt. ¶ 22. The Daily Northwestern published an article quoting the handout. Cmplt. ¶ 23; see Daily Northwestern article, attached as

Exhibit B.

Plaintiff also claims that Cubbage told NBC Chicago that Plaintiff was on a “leave of

absence.” Cmplt. ¶ 24. Cubbage then clarified that Ludlow was not on a “leave of absence,” but

was not going to be teaching. Id. ; see NBC Chicago article, attached as Exhibit C. On or about

March 12, 2014, Defendant Morton Schapiro told the Chicago Tribune that, “with all the controversy and allegations out there, to have [Ludlow] teach in the spring wouldn’t be the right thing to do.” Cmplt. ¶¶ 25, 49, 54; see Chicago Tribune article, attached as Exhibit D.

C. Northwestern’s 2014 Investigation Into Another Student Sexual Harassment Complaint Against Plaintiff

In or around March of 2014, Defendant Leydon-Hardy, a graduate student in Plaintiff’s

department, made a sexual harassment complaint in which she alleged, among other things, that

Ludlow had non-consensual sex with her. Id. ¶ 32. Plaintiff claims that Lackey encouraged

3 As discussed in Section II.A, below, the allegedly defamatory handout and articles cited in the Complaint are a part of the pleadings for the purposes of this motion to dismiss because they are referenced in the Complaint and are central to Plaintiff’s defamation, false light, and conspiracy claims. See Brownmark Films, LLC v. Comedy Partners , 682 F.3d 687, 690 (7th Cir. 2012). 3

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Leydon-Hardy to come forward and “made a complaint” on Leydon-Hardy’s behalf to

Northwestern’s Office of General Counsel. Id. ¶¶ 30-31. Again, Northwestern conducted an investigation into the allegations against Ludlow (the “2014 Investigation”). This time,

Northwestern retained an outside investigator, Patricia Bobb, to conduct the 2014 Investigation.

Id. ¶ 33. Plaintiff claims that Slavin told Bobb that, during the 2012 Investigation, Leydon-Hardy had told her (Slavin) (a) that “something” had happened between Leydon-Hardy and Ludlow and

(b) that Leydon-Hardy and Ludlow had had a “deeply inappropriate” relationship. Id. ¶ 35.

Plaintiff admits that he and Leydon-Hardy had a sexual relationship. Id. ¶¶ 12, 32.

As a result of the 2014 Investigation, Bobb issued a report finding that Plaintiff had again violated Northwestern’s policy against sexual harassment. Id. ¶ 38. As with the 2012

Investigation, Plaintiff asserts the conclusion that the 2014 Investigation was “flawed.” Id. ¶ 42.

Plaintiff claims that Defendants’ alleged actions caused him to suffer emotional distress,

humiliation, embarrassment, damage to his reputation, and lost income. Cmplt. ¶¶ 47, 52, 57, 61,

66, 69. He seeks to allege claims against Northwestern under Title IX (Count I), and against all

of the defendants for defamation (Counts II and IV), false light (Counts III and V), and civil

conspiracy (Count VI).

II. ARGUMENT

A. Standard of Review

In order to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a

complaint must be supported by allegations that, if taken as true, plausibly suggest that the

plaintiff is entitled to relief. See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555-56 (2007). The court must accept the well-pleaded allegations in the complaint as true; however, legal conclusions and conclusory statements are not taken as true. Ashcroft v. Iqbal , 556 U.S. 662, 678

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(2009). Where the well-pleaded facts do not permit the court to infer more than the possibility of misconduct, the complaint has not shown that the pleader is entitled to relief as is required by

Rule 8. Id.

Although a court evaluating a motion to dismiss for failure to state a claim must generally limit its review to the facts alleged in the pleadings, a court may consider documents attached to a motion to dismiss if they are referred to in the complaint and are central to the plaintiff’s claim.

Brownmark Films, LLC v. Comedy Partners , 682 F.3d 687, 690 (7th Cir. 2012); see Lott v.

Levitt , 469 F. Supp. 2d 575, 577 n. 1 (N.D. Ill. 2007) (allegedly defamatory book is considered a part of the pleadings and properly considered on a motion to dismiss defamation claim). Further, to the extent that such a document conflicts with the allegations of the complaint, the document controls. See, e.g. , Massey v. Merrill Lynch & Co., Inc. , 464 F.3d 642, 645 (7th Cir. 2006).

B. Plaintiff Has Not Alleged, and Cannot Allege, a Viable Title IX Claim.

1. Plaintiff’s Title IX Claim is Preempted by Title VII.

As a preliminary matter, Count I should be dismissed with prejudice because Plaintiff cannot bring a Title IX claim based on alleged sex discrimination in his employment. “Congress intended Title VII to exclude a damage remedy under Title IX for individuals alleging employment discrimination.” Lakoski v. James , 66 F.3d 751, 755 (5th Cir. 1995). The Seventh

Circuit and this Court have consistently held that Title VII preempts employment discrimination claims brought under Title IX. See Waid v. Merrill Area Public Schs. , 91 F.3d 857, 861-62 (7th

Cir. 1996), abrogated on other grounds , Fitzgerald v. Barnstable Sch. Committee, 555 U.S. 246

(2009); Howard v. Bd. of Educ. of Sycamore Cmmty. Unit Sch. Dist. No. 427 , 893 F. Supp. 808,

815 (N.D. Ill. 1995); Kowal-Vern v. Loyola Univ. of Chicago , No. 97C6409, 2002 WL 1880131, at *5 (N.D. Ill. Aug. 14, 2002); Blazquez v. Bd. of Educ. of City of Chicago , No. 05-CV-4389,

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2006 WL 3320538, at *11 (N.D. Ill. Nov. 14, 2006); Jones v. Sabis Educ. Sys., Inc. , No. 98 C

4252, 1999 WL 1206955, at *10 n. 7 (N.D. Ill. Dec. 13, 1999). Because Plaintiff’s purported

Title IX claim arises out of his employment with Northwestern, Count I is preempted and should therefore be dismissed with prejudice for this reason alone.

2. Plaintiff Fails to State a Title IX Sex Discrimination Claim.

Count I also fails to state a claim because there are no allegations that would permit an inference of sex discrimination. Plaintiff’s Title IX claim is based on his disagreement with the outcome of the University’s 2014 Investigation into Leydon-Hardy’s sexual harassment complaint against him. Cmplt. ¶ 45; see ¶¶ 39, 41-42. In order to state a so-called “erroneous outcome” claim under Title IX, an alleged perpetrator must allege “particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding.” Yusuf v.

Vassar College , 35 F.3d 709, 715 (2d Cir. 1994); see Torrespico v. Columbia College , No. 97 C

8881, 1998 WL 703450, at *18 n. 11 (N.D. Ill. Sept. 30, 1998) (dismissing male student’s Title

IX claim). The Complaint is entirely devoid of any allegations tying the purportedly “flawed”

investigation to his gender. Rather, Plaintiff simply asserts that Northwestern “intentionally

discriminated against Plaintiff on the basis of his gender.” Cmplt. ¶ 45. Plaintiff’s bare legal

conclusion is insufficient to allege a causal connection to gender bias. See Torrespico , 1998 WL

703450, at *18 n. 11; see also Iqbal , 556 U.S. at 678-79 (Rule 8 “demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation”). As a result, Count I must be

dismissed for this additional reason as well.

C. The Complaint Fails to State any Claims for Defamation or False Light.

Counts II-V all seek to hold Defendants liable for alleged statements that are not

actionable under any legal theory. To state a claim for defamation under Illinois law, a plaintiff

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must allege specific facts demonstrating that: (1) the defendant made a false statement about the plaintiff; (2) the defendant made an unprivileged publication of the subject matter to a third party; and (3) that the publication caused damages to the plaintiff. Green v. Rogers , 917 N.E.2d

450, 459 (Ill. 2009). A statement is defamatory per se if its harm is obvious and apparent on its

face such that damages are presumed, and the statement falls within one of five enumerated

categories. Id.

Similarly, in order to state a claim for false light, the plaintiff must allege facts

demonstrating that: (1) the plaintiff was placed in a false light before the public as a result of the

defendant’s actions; (2) the false light in which the plaintiff was placed would be highly

offensive to a reasonable person; and (3) the defendant acted with actual malice, i.e. , with

knowledge that the statements were false or with reckless disregard for whether the statements

were true or false. Kirchner v. Greene , 691 N.E.2d 107, 115-16 (Ill. App. Ct. 1998).

1. Plaintiff Has Not Alleged Any False Statement of Fact.

Plaintiff’s defamation and false light claims both fail because the Complaint does not

identify any false statement of fact. A claim for defamation must be pled with precision and

particularity so that the defendant may properly formulate an answer and identify any potential

affirmative defenses. Rogers , 917 N.E.2d at 460; see Keen v. Bluestar Energy Svcs., Inc. , No. 11

C 7754, 2012 WL 1118215, at *5 (N.D. Ill. March 30, 2012) (Illinois’ heightened pleading

standard for defamation applies in federal court). As with a claim for defamation, a claim for

false light must allege a “specific statement” that is false. Kirchner , 691 N.E.2d at 116,. In

addition, neither a defamation nor a false light claim can be based on statements that are

substantially true. Coghlan v. Beck , 984 N.E.2d 132, 146 (Ill. App. Ct. 2013); Wynne v. Loyola

Univ. of Chicago , 741 N.E.2d 669, 675-76 (Ill. App. Ct. 2000). Moreover, “only statements

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capable of being proven true or false are actionable; opinions are not.” Moriarty v. Greene , 732

N.E.2d 730, 739 (Ill. App. Ct. 2000) (holding that expressions of opinion are not actionable

under either a defamation or a false light theory).

Joan Slavin: Plaintiff’s defamation and false light claims against investigator Joan

Slavin are not actionable and should be dismissed with prejudice. First, the Complaint fails to identify any false statement by Slavin. Plaintiff’s claims against Slavin are based on the following alleged summary of a 2012 conversation: “Defendant Slavin told Ms. Bobb that back in 2012, while she [Slavin] was investigating [Student A’s] complaint, Defendant Leydon-Hardy told her [Slavin] that ‘something’ had happened between [Leydon-Hardy] and Plaintiff and that they had had a ‘deeply inappropriate’ relationship.” Cmplt. ¶ 35. This vague and ambiguous description is insufficient to identify an actionable false statement of fact. See Rogers , 917

N.E.2d at 460 (alleged statements that “Plaintiff exhibited a long pattern of misconduct with

children” and “abused players, coaches, and umpires” simply constituted “a generic charge of

‘abuse’” that was not specific enough to allege defamatory statement); Kirchner , 691 N.E.2d at

115-16 (allegations that defendants “intimated that [plaintiff] had pursued and obtained custody

of [child] in order to make money” and “asserted that [child] was a victim of parental abuse”

were not specific enough to allege false light claim). This allegation also fails to establish the

required publicity element of a false light claim because Slavin is only alleged to have made the

statement to one person, Patricia Bobb, the investigator retained by the University. See Matrix

Essentials, Inc. v. Karol , No. 89 C 9611, 1992 WL 166926, at *2 (N.D. Ill. July 8, 1992)

(comments by investigator failed to satisfy publicity element of false light claim). Slavin’s

alleged statement was also protected by a qualified privilege because it was made to an

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investigator during the University’s investigation of alleged employee misconduct. See Izadifar

v. Loyola Univ. , No. 03 C 2550, 2005 WL 1563170, at *6 (N.D. Ill. June 7, 2005).

Even if the allegations against Slavin were sufficiently specific, Slavin’s alleged

statement is an expression of opinion, not fact. Plaintiff admits he had a “romantic and sexual

relationship” with Leydon-Hardy, a student. Cmplt. ¶¶ 12, 32. Slavin’s alleged repetition of

Leydon-Hardy’s assessment of that relationship as “deeply inappropriate” is nothing more than

nonactionable opinion. See Wynne , 741 N.E.2d at 676 (statement that professor’s actions

“seemed inappropriate” constituted nonactionable opinion); Green v. Trinity Int’l Univ. , 801

N.E.2d 1208, 1219-20 (Ill. App. Ct. 2003) (statement that professor was “unprofessionally

candid” constituted nonactionable opinion). Plaintiff’s claims against Slavin should be

dismissed.

Morton Schapiro: Plaintiff’s claims against President Morton Schapiro are fatally defective. They are based solely on the following allegation: “on or around March 12, 2014,

Defendant Schapiro falsely informed reporters for the Chicago Tribune that he had ‘decided that

Professor Ludlow should not teach his scheduled 200-level philosophy course in the Spring

Quarter’ and that ‘with all the controversy and allegations out there, to have [Ludlow] teach in

the spring wouldn’t be the right thing to do.’” Cmplt. ¶¶ 25, 49, 54; s ee Ex. D.

As an initial matter, the article upon which Plaintiff bases his claim clarifies that Schapiro

never said he “decided that Professor Ludlow should not teach.” See Ex. D. Rather, that article

states that “Northwestern President Morton Schapiro decided that the professor, Peter Ludlow,

should not teach his scheduled 200-level philosophy course when spring quarter begins on

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March 31” without attributing that statement to Schapiro. Id. This alleged statement cannot form

the basis of any claim against Schapiro because the statement was not made by Schapiro .4

Even if Plaintiff had not misquoted the Chicago Tribune article, Plaintiff’s claims

against Schapiro still would not be actionable because the allegations in the Complaint establish

that Schapiro’s alleged statement was true. Plaintiff admits that Student A’s lawsuits “received

ample media coverage” and that, “as a result, more than 100 individuals planned to disrupt

Plaintiff’s classes.” Id. ¶ 18. Further, Plaintiff admits that in response to these protests,

Northwestern asked him not to teach during the Spring Quarter and that he agreed. Id. ¶ 19.

Plaintiff’s own allegations demonstrate that his claims against Schapiro are based on true statements and should be dismissed. See Trinity Int’l Univ. , 801 N.E.2d at 1218; Coghlan , 984

N.E.2d at 147-48; Wynne , 741 N.E.2d at 669, 675-76.

Alan Cubbage: Plaintiff’s purported defamation and false light claims against Vice

President for University Relations Cubbage also fail because the alleged statement upon which they are based was substantially true. Plaintiff’s claims against Cubbage are based solely on his alleged statement to NBC Chicago that Ludlow was on a “leave of absence.” Cmplt. ¶¶ 24, 49,

54. According to Plaintiff, Cubbage “later corrected his statement” to clarify that, though

Plaintiff would not be teaching, he was not on a leave of absence. Id. ¶ 24, see Ex. C.

The law is clear, however, that “allegedly defamatory material is not actionable even where it is not technically accurate in every detail.” Coghlan , 984 N.E.2d at 146. Rather, the question is whether there was “substantial truth,” which means that the “gist” or the “sting” of the allegedly defamatory material is true. Id. Here, Plaintiff admits that he and Northwestern agreed that he would remain employed but would not teach classes during the Spring Quarter,

4 As noted above, where an exhibit contradicts the Complaint, the exhibit controls. See Massey , 464 F. 3d at 645 (7th Cir. 2006); see also Coghlan , 984 N.E.2d at 147-48, 368 Ill. Dec. at 422-23 (examining allegedly defamatory exhibit). 10

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i.e. , that he would be absent from his teaching duties. See Cmplt. ¶ 24. That Plaintiff’s absence

from teaching was not technically a “leave of absence” does not convert Cubbage’s statement

into a defamatory falsehood. See Lerman v. Turner , No. 10-CV-2169, 2013 WL 4495245, at

*18-19 (N.D. Ill. Aug. 21, 2013) (dismissing defamation and false light claims because statement

that plaintiff “had been terminated for misusing grant funds for a non-permitted purpose” was

substantially true even though at the time the statements were made, the plaintiff had only been

suspended without pay). Nor does Cubbage’s supposed “fail[ure] to explain that the decision had

been reached mutually” or “was not punitive in nature” convert the true statement into one

placing Plaintiff in a false light. Trinity Int’l Univ. , 801 N.E.2d at 1218 (communications that

professor was “relieved of his duties” did not place plaintiff in a false light by implying he had

been fired for an act of moral turpitude); see Cmplt. ¶ 19. In short, Plaintiff’s claims against

Cubbage should be dismissed with prejudice because Plaintiff’s own allegations demonstrate that

Cubbage’s alleged statement was substantially true.

Northwestern University: Plaintiff’s defamation and false light claims against

Northwestern also fail because they are based on true information set forth in a handout that

Northwestern provided to students. Cmplt. ¶¶ 21-23, 49, 54; see Ex. A. Plaintiff claims that the

handout was defamatory because it “identified the cancellation of Plaintiff’s Spring Quarter class

as part of Defendant Northwestern’s ‘response’ to concerns raised over its handling of Title IX

issues. Id. ¶ 22; see Ex. A. But Plaintiff himself alleges that the decision to remove Plaintiff from teaching was made in response to concerns raised by students – some of whom staged protests and disruption – about Plaintiff and the University’s handling of Title IX issues. See

Coghlan , 984 N.E.2d at 147-48; Wynne , 741 N.E.2d at 675-76. The information in the handout was substantially true.

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Jennifer Lackey: Plaintiff’s defamation and false light claims against Lackey are utterly frivolous because Plaintiff fails to allege that Lackey made any statement at all about Plaintiff, let alone a false statement of fact. Instead, Plaintiff’s claims against Lackey rest upon the following allegation: “in March of 2014, Defendant Lackey made a complaint, on behalf of

Defendant Leydon-Hardy, with Defendant Northwestern’s General Counsel.” Cmplt. ¶¶ 31, 58,

62-63. This conclusory assertion is wholly insufficient to state a claim for either defamation or false light. See Rogers , 917 N.E.2d at 460 (dismissing defamation where allegations did not “set forth a precise and particular account of the statements that defendant allegedly made”);

Kirchner , 294 Ill. App.3d at 683, 691 N.E.2d at 116 (dismissing false light claim because,

“[a]bsent some allegation as to what specific statement was false, a claim based on false light simply fails to satisfy the most basic element of the cause of action”). Even if Plaintiff had identified a specific statement that Lackey made to the University’s in-house counsel, any such statement could not support a defamation claim as a matter of law because it is absolutely privileged. See, e.g. , Popp v. O’Neil , 313 Ill. App. 3d 638, 642-43 (Ill. App. Ct. 2000).

Plaintiff also claims that, during the 2012 Investigation, Lackey told Slavin “that she

‘believed’ that Plaintiff had had a relationship with” Leydon-Hardy, and that Plaintiff “had behaved inappropriately toward female students on a trip to South America.” Cmplt. ¶ 11.

However, any claims arising out of Lackey’s alleged 2012 statements would be barred by the statute of limitations, which is one year. 735 ILCS 5/13-201; see Porter v. Pipefitters Ass’n

Local Union 597, U.A. , No. 12-CV-9844, 2013 WL 5162206, at *3 (N.D. Ill. Sept. 12, 2013) (a

civil conspiracy claim is time-barred if the underlying tort is time-barred). Moreover, Lackey’s

alleged statements during the 2012 Investigation cannot establish publicity and are protected by a

qualified privilege. See Matrix Essentials , 1992 WL 166926, at *2; Izadifar , 2005 WL 1563170,

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at *6. In addition, a description of a plaintiff’s conduct as “inappropriate” is nonactionable opinion. See Wynne , 741 N.E.2d at 667. The alleged statement that Plaintiff and Leydon-Hardy

“had had a relationship” also cannot form the basis of any claim because it is admittedly true.

Cmplt. ¶¶ 12, 32 ; see Wynne , 741 N.E.2d at 669, 675-76.

2. Even if Plaintiff Had Alleged a False Statement of Fact, the Alleged Statements Can Be Innocently Construed and Are Not “Highly Offensive.”

Statements may not form the basis of a defamation per se claim if they are reasonably capable of an innocent construction. Rogers , 917 N.E. 2d at 463. “Under the ‘innocent- construction rule,’ a court must consider the statement in context and give the words of the statement, and any implications arising from them, their natural and obvious meaning.” Id.

(emphasis in original). Similarly, a cause of action for false light cannot survive dismissal where the alleged statement would not be highly offensive to a reasonable person. See Raveling v.

HarperCollins Pub. Inc. , No. 04-2963, 2005 WL 900232, at *4 (7th Cir. March 4, 2005).

Statements far more disparaging than those alleged in the Complaint are consistently found to be capable of an innocent construction (or not highly offensive) by courts applying

Illinois law. As but one example, the Illinois Supreme Court has even held that statements that a coach “exhibited a long pattern of misconduct with children” and “abused players, coaches, and umpires” were not defamatory as a matter of law because they could “clearly” be interpreted innocently. Rogers , 917 N.E.2d at 463-65; see also Trinity Int’l Univ. , 801 N.E.2d at 1218, 1220

(statements that students had made complaints over the years about professor and that professor had been relieved of his duties not defamatory); Moore v. People for the Ethical Treatment of

Animals , 932 N.E.2d 448, 456-57 (Ill. App. Ct. 2010) (statement that plaintiff’s dog training methods were “extremely disturbing” could be innocently construed); Raveling , 2005 WL

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900232, at *4 (innuendo that plaintiff was associated with organized crime not “highly offensive”). When viewed in light of this Illinois authority, none of the statements alleged in the

Complaint comes close to being defamatory per se or “highly offensive.” For example,

describing the cancellation of Plaintiff’s Spring Quarter class as part of Northwestern’s response

to concerns raised over its handling of Title IX issues is not defamatory. See Cmplt. ¶¶ 22, 25,

49; Ex. A. Nor is a statement that Plaintiff was on a “leave of absence,” that Plaintiff’s sexual

relationship with a student was “inappropriate,” or that Lackey “made a complaint.” See Cmplt.

¶¶ 24, 31, 35, 49. Plaintiff’s defamation and false light claims should be dismissed because none

of the statements alleged, when construed reasonably and in context, are defamatory.

D. Plaintiff’s Civil Conspiracy Claim Also Fails as a Matter of Law.

Count VI is also fatally defective. “Conspiracy” is not an independent tort: a conspiracy

claim fails if the independent cause of action underlying the conspiracy allegation fails. Coghlan ,

984 N.E.2d at 151. Count VI therefore fails as a matter of law because the Complaint fails to

state any other claim. Count VI also fails to the extent it seeks to allege a conspiracy between

Northwestern and its employees or between various employees of Northwestern. Under the

intracorporate conspiracy doctrine, (1) there can be no conspiracy between a principal and an

agent; and (2) agents of a corporation are generally incapable of forming a conspiracy among

themselves. Lerman v. Turner , No. 10-CV-1169, 2010 WL 4627656, at *3 (N.D. Ill. Nov. 5,

2010); see Buckner v. Atlantic Plant Maintenance, Inc. , 694 N.E. 2d 565, 571 (Ill. 1998).

Plaintiff therefore cannot state a claim based on an alleged conspiracy between and among the

Defendants Northwestern, Schapiro, Cubbage, Slavin, or Lackey.

But even if any of Plaintiff’s other claims were to survive dismissal, the Complaint still fails

to state a claim for civil conspiracy. In order to state a conspiracy claim under Illinois law, a plaintiff

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must plead the following: (1) an agreement between two or more persons; (2) to participate in an unlawful act, or a lawful act in an unlawful manner; (3) an injury caused by an unlawful overt act caused by one of the parties; and (4) the overt act was done pursuant to and in furtherance of a common scheme. Harman v. Gist , No. 02 C 6112, 2003 WL 22053591, at *6 (N.D. Ill. Sept. 2,

2003). However, “[t]he mere characterization of a combination of acts as a conspiracy is

insufficient to withstand a motion to dismiss.” Lerman , 2010 WL 4627656, at *3, quoting Buckner,

694 N.E.2d at 571.

In Harman , a college professor who was fired for violating his university’s sexual

harassment policy brought a conspiracy claim premised on allegations that other university

employees conspired to invade his privacy during the university’s investigation of the complaint

against him. 2003 WL 22053591, at *1-2, 6, 7. The Court held that simply characterizing their

alleged actions during the university’s investigation as a “conspiracy” was insufficient to state a

claim. Id. at *7; see also Coghlan , 984 N.E.2d at 151 (allegations that defendants conspired to

defame him by “sharing information” and “working together” on an allegedly defamatory written

statement insufficient to state claim). As in these cases, Plaintiff’s conclusory allegation that

Defendants conspired “for the purpose of concocting false evidence to support terminating Plaintiff”

is not remotely sufficient to state a claim. See Cmplt. ¶ 68. Count VI should therefore be dismissed for this additional reason.

III. CONCLUSION

For the reasons set forth above and in the accompanying Motion to Dismiss, Defendants

Northwestern University, Alan Cubbage, Morton Schapiro, Joan Slavin, and Jennifer Lackey respectfully request that the Court dismiss Plaintiff’s claims against them with prejudice pursuant to Fed. R. Civ. P. 12(b)(6) and grant such other relief as the Court deems appropriate.

1231194.1 Case: 1:14-cv-04614 Document #: 28 Filed: 08/20/14 Page 16 of 17 PageID #:71

Respectfully submitted,

NORTHWESTERN UNIVERSITY, MORTON SCHAPIRO, ALAN CUBBAGE, JOAN SLAVIN, AND JENNIFER LACKEY

By: ____s/Scott L. Warner - [email protected] An Attorney for Defendant NORTHWESTERN UNIVERSITY

Ellen M. Babbitt - 06180030 [email protected] Scott L. Warner Ellen F. Wetmore - 06304273 [email protected] Franczek Radelet P.C. 300 South Wacker Drive Suite 3400 Chicago, Illinois 60606 (312) 986-0300

Dated: August 20, 2014

1231194.1 Case: 1:14-cv-04614 Document #: 28 Filed: 08/20/14 Page 17 of 17 PageID #:72

CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that she caused a true and correct copy of the foregoing DEFENDANTS NORTHWESTERN UNIVERSITY, MORTON SCHAPIRO,

ALAN CUBBAGE, JOAN SLAVIN, AND JENNIFER LACKEY’S MEMORANDUM IN

SUPPORT OF MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) to be filed with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following on the 20th day of August, 2014.

Alisa B. Arnoff Gregg J. Simon Scalambrino & Arnoff, LLP One North LaSalle Street Suite 1600 Chicago, IL 60602

Kristin Case Kate Sedey Kendra Kutko The Case Law Firm, LLC 250 South Wacker Drive Suite 230 Chicago, Illinois 60606

By: /s/ Ellen F. Wetmore – 06304273 [email protected]

Ellen M. Babbitt - 06180030 [email protected] Scott L. Warner - 06231380 [email protected] Ellen F. Wetmore - 06304273 [email protected] Franczek Radelet P.C. 300 South Wacker Drive Suite 3400 Chicago, Illinois 60606 (312) 986-0300

1231194.1 Case: 1:14-cv-04614 Document #: 28-1 Filed: 08/20/14 Page 1 of 18 PageID #:73

I'mmoul I II Case: 1:14-cv-04614 Document #: 28-1 Filed: 08/20/14 Page 2 of 18 PageID #:74

Key points on Title IX Lawsuit and Related Matters

Following is some key information regarding Northwestern's response to concerns raised recently regarding Prof. Peter Ludlow and the University's handling of Title IX issues.

• Professor Ludlow will not teach spring quarter. The course that Prof. Ludlow was scheduled to teach spring quarter will be canceled and students enrolled in that class will be allowed to enroll in other classes, although the registration period is officially closed.

• Northwestern is strongly committed to ensuring the safety of all students, faculty and staff and to further Title IX's objectives of promoting a campus environment free from sexual violence and discrimination on the basis of sex. The University has always prohibited sexual misconduct and has dedicated numerous resources to preventing this, responding to such complaints, and supporting those who make them.

• Even before this lawsuit, Northwestern had taken a number of steps to strengthen its policies and practices regarding the handling of Title IX and sexual misconduct cases. These include: 1) established the Center for Advocacy, Response, and Education (CARE), which provides confidential counseling and advocacy for students who have experienced sexual . threats or sexual violence; 2) designated a Title IX coordinator and several deputy coordinators to oversee the handling of Title IX compliance; 3) launched a new Title IX website providing detailed information on university policies, processes, and resources to handle sexual misconduct; 4) formed a Title IX Coordinating Committee consisting of several university administrators who meet monthly to discuss and implement best practices in Title IX compliance; 5) formed the Campus Coalition on Sexual Violence, which includes many student representatives, to address sexual misconduct issues and prevention; 6) published a new, comprehensive university policy entitled Sexual Misconduct, Stalking, and Dating and Domestic Violence that is applicable to all university faculty, staff, and students. The policy explains in detail things such as the definition of consent, as well as explanations of prohibited conduct for sexual conduct, sexual exploitation, stalking, dating and domestic violence, and sexual harassment (http://policies.northwestern.edu/docs/sexuairnisconduct policy.pdf); and 7) published a policy on Consensual Romantic or Sexual Relationships Between Faculty, Staff and Students (http://policies.northwestern.edu/does/Consensual Relations 011314.pdf). Among other things, the policy includes an absolute prohibition on relationships between faculty and undergraduate students (previously, such relations were prohibited where the faculty was in a supervisory or evaluative role over the student) and an absolute prohibition on relationships between coaches and students. This policy is more restrictive than what is in place at many other universities.

All of these actions pre-date the current lawsuit. In addition to what has already been done, the University intends to engage a qualified third party reviewer to audit our existing practices and procedures with a special focus on the University's "climate" on sexual misconduct to see what more can be done. Case: 1:14-cv-04614 Document #: 28-1 Filed: 08/20/14 Page 3 of 18 PageID #:75

0 0 1 *461 a I I IA I Null Case: 1:14-cv-04614 Document #: 28-1 Filed: 08/20/14 Page 4 of 18 PageID #:76 6/23/2014 The Daily Northwestern: Updated: LudloWs Spring Quarter class canceled

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Joseph Diebold and Ciara McCarthy March 12, 2014

Philosophy Prof Peter Ludlow will not teach during Spring Quarter, University spokesman Al Cubbage said Wednesday.

Ludlow was scheduled to teach a 200-level philosophy class called "Minds and Machines," according to CAESAR, but Cubbage said the course has been cancelled, As of Wednesday afternoon, 12 students were registered to take the 48- person class. The students registered for the course will be allowed to enroll in another class, Cubbage said.

Students who have been protesting Ludlow's continued employment by the University were informed of the decision in a meeting Wednesday with Dean of Students Todd Adams and Patricia Telles-Irvin, vice president for student affairs.

In a handout given to students at the meeting, officials highlighted the cancellation of Ludlow's spring class as part of NU's response to concerns raised over its handling of Title IX issues.

"In addition to what has already been done, the University intends to engage a qualified third party reviewer to audit our existing practices and procedures with a special focus on the University's `climate' on sexual misconduct to see what

http://dai lynorthwestern,corrV2014/03/12Jcampus/I udlows-spring-q carter-class-canceled/ 1/5 Case: 1:14-cv-04614 Document #: 28-1 Filed: 08/20/14 Page 5 of 18 PageID #:77 6/23/2014 The Daily Northwestern : Updated: LudlovVs Spring Quarter class canceled more can be done," officials wrote in the handout.

A Medill junior filed a Title IX lawsuit against Northwestern on Feb. 10 alleging the University failed to provide adequate protections under Title IX of the Education Amendments of 1972 after she reported Ludlow sexually assaulted her in February 2012.

(Student sties Northwestern, claiming University ignored sexual assault findings )

The student has also sued Ludlow under Illinois' Gender Violence Act. Ludlow responded Friday to the lawsuit against him, denying he had sexually assaulted the student and calling NU's subsequent investigation of the incident "flawed and one-sided."

(Ludlow responds to Me dill junior's lawsuit, denies allegations )

Ludlow canceled his March 4 class after students planned a sit-in of the lecture. Cubbage confirmed the next day Ludlow would not be teaching for the rest of the quarter but said at the tirrie his status for Spring Quarter was then unknown.

(Planned sit-in turns into protest of Northwestern's sexual assault policies )

Correction: A previous version of this story misstated the status of Spring Quarter registration. Registration remains open. The Daily regrets the error.

Email: josee phdiebold20l5(cfu.northwestem.edu Twitter: @losephDiebold

Email: mecarthy'ccu. northwestern. edu Twitter: @mccarth, ciara

Comments

3 comments

http://dailynorthwestern.com/20 1 4/0 311 21campus/ludlows-spring-q uarter-class-canceled/ 2J5 Case: 1:14-cv-04614 Document #: 28-1 Filed: 08/20/14 Page 6 of 18 PageID #:78 6/23/2014 The Daily Northwestern: Updated: Ludlow's Spring Quarter class canceled

Jeff Heikkinen • Winnipeg, Manitoba Not surprising, regardless of the merits of the lawsuit. The k+a , university is just making the safe play. Reply' Like - March 12 at 7;41 pm

Russell Timmerman • Edmonton, Alberta Guilty until innocent, Just mention in SEX in any accusation and world goes crazy. If the professor has been accused of beating another man or stealing he would be assumed innocent till proven guilty. Reply • Like • March 13 at 9:00am

Jeff Heikkinen • Winnipeg, Manitoba Actually, suspension with pay until the merits of the case were clearer, which is effectively what this is, is exactly what I'd expect to see in those situations too. There are problems specific to (alleged) sexual misconduct and Ludlow has experienced some of them, but I don't think this article exemplifies any. Reply • like - March 13 at 1:16pm

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Tags: Al Cubbage , Gender Violence Act , Minds and Machines , Peter Ludlow, Title IX

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