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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 1 1231194.1 Case: 1:14-cv-04614 Document #: 28 Filed: 08/20/14 Page 2 of 17 PageID #:57 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 1231194.1 Case: 1:14-cv-04614 Document #: 28 Filed: 08/20/14 Page 3 of 17 PageID #:58 “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 1231194.1 Case: 1:14-cv-04614 Document #: 28 Filed: 08/20/14 Page 4 of 17 PageID #:59 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 4 1231194.1 Case: 1:14-cv-04614 Document #: 28 Filed: 08/20/14 Page 5 of 17 PageID #:60 (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.