Morgan Pearson v. Logan University

Morgan Katelin Pearson and Kirsten Elizabeth Kirkpatrick each sued Logan

University under Title IX of the Education Amendments of 1972, 20

U.S.C. §§ 1681–1688, as well as various state laws, alleging that Logan failed to

protect them against stalking and sexual harassment by a fellow student (FS). The

district court granted summary judgment for Logan, which Pearson and Kirkpatrick

appeal. We affirm.

I

We draw the following background facts from the summary judgment record,

viewing the evidence in the light most favorable to Pearson and Kirkpatrick. See

Schilf v. Eli Lilly & Co., 687 F.3d 947, 948 (8th Cir. 2012).

In September 2015, Pearson and Kirkpatrick enrolled as undergraduate students

at Logan. Logan’s academic catalog contains its harassment policy. According to the

catalog, a student who wants to complain of stalking or sexual assault should contact

Logan’s Title IX Coordinator, who will commence an investigation within seven days

of notification.

On December 8, 2015, Pearson met with Sandra Periello, Logan’s Associate

Dean of Students. Pearson complained that FS would come into the library — where

she worked — to stare at her, that he would stare at her during chemistry lab, and that

he once pressed himself up against her in November in the cadaver lab. Periello told

Pearson to write down what happened to her and that Periello would give her

statement to Shelley Sawalich, Logan’s Dean of Students and Title IX Coordinator.

On December 9, Periello emailed Pearson, reminding her to provide a written

statement. Pearson responded by asking to meet with Sawalich, stating she believed

another dean had allowed FS to take Pearson’s same “complete schedule” in the next

trimester. Sawalich and Pearson then exchanged emails to set up a meeting that same

day.

At their December 9 meeting, Pearson repeated to Sawalich what she had told

Periello with respect to FS’s conduct and provided the names of four people who she

said had witnessed the harassment. Pearson said that she was “terrified of being

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raped.” She also agreed with Sawalich that the November incident in the cadaver lab

may have been an accident.

Sawalich labeled Pearson’s allegations as harassment and stalking and said that

she was required to investigate FS’s conduct. Sawalich told Pearson that she had the

option to remain anonymous as the complainant. Pearson asked how Sawalich would

interview her witnesses while maintaining her anonymity, and Sawalich gave Pearson

an example of the kind of question Sawalich would ask. Pearson elected to remain

anonymous. Sawalich explained that she was not going to move forward with the

investigation at the time because she had another case to “take care of” and Logan’s

finals and holidays were coming up, but told Pearson that before meeting with FS, she

would email Pearson. Sawalich asked Pearson for a written statement, which she

expected to receive from Pearson by Monday, December 14. She wanted the written

statement “to assist with understanding the situation, interactions, and timeline” of

relevant events.

On December 14, Pearson emailed Sawalich that she was “pinched for time”

and asked, “Is it okay if I send it to you via email by next Monday?” On December

15, Sawalich responded,“You are welcome to get me the information next week . . .

. What this means, though, is that I won’t really be able to move forward until next

trimester with the investigation. Is that okay with you?” Pearson did not respond to

that question.

On December 21, Pearson sent her written statement to Sawalich. In her

statement, Pearson claimed that at the beginning of the semester FS had made several

attempts to spend time with her outside of class, wanting to study with her and

waiting at the end of class to walk out with her. She stated that FS suggested they

could drink beer while studying together, which she found inappropriate because he

knew she was underage and did not drink. FS was in his early thirties. After she

began working at the library, FS would come to the library every day and watch her,

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trying to find opportunities to interact with her. She claimed that he would always

sit at a nearby table and often appear to not be doing homework or other libraryrelated

work. She alleged that in class, FS would “try to jump into conversations” she

was having with other people. Pearson also stated that she thought FS was trying to

take her very same schedule in the next trimester, which made her uncomfortable

because she believed he had no good reason to do so. Pearson made no mention in

her statement of the November incident in the cadaver lab. Sawalich replied that

same day, stating that she would review Pearson’s statement and “call [FS] in to talk”

after he returned to campus. Sawalich also stated, “I . . . want to reiterate that

Logan’s ability to meaningfully investigate the incident and pursue disciplinary action

may be limited because of the attempt to maintain confidentiality.”

Sawalich met with FS on January 8, 2016, and again on January 15, 2016, but

did not email Pearson in advance of either meeting. Among other things, she told him

there had been a complaint filed against him, and reminded him of Logan’s policy

against retaliation. On January 16, Pearson emailed Sawalich for an update, stating

that FS continued to make her feel unsafe on campus. Sawalich responded that same

day, telling Pearson she had met with FS twice and asking Pearson to meet on January

19, after the holiday weekend. At that meeting, Pearson told Sawalich that she

continued to feel uncomfortable. She believed FS had followed her inappropriately

at a school event and had stopped to watch as a female classmate measured her hip

bone at the library. Sawalich told Pearson that FS had been very angry at their first

meeting and that she had reiterated to FS at the second meeting that retaliation would

be “frowned upon.” Sawalich explained that she had not interviewed any of

Pearson’s witnesses because Sawalich did not believe that she could maintain

Pearson’s anonymity while doing so.

On February 1, Pearson met with Boyd Bradshaw, Vice President for

Enrollment Management, to complain about Sawalich’s handling of the investigation.

On February 3, Pearson met with both Bradshaw and Sawalich to address her

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concerns and to discuss reopening the case. They also agreed that FS would be asked

to stay out of the library and instructed to have no contact with Pearson. Pearson

decided to drop her request for anonymity.

Sawalich began reaching out to witnesses. Kirkpatrick was one of those

witnesses. Sawalich interviewed Kirkpatrick on February 4. Kirkpatrick told

Sawalich that on the first day of school, FS solicited her phone number by saying he

was getting everybody’s phone numbers, but after she gave him her number it seemed

that she was the only one he asked. He started texting that Friday, wanting her to go

to the library with him on Saturday. She eventually told him that she had a boyfriend,

but FS continued to text her. Kirkpatrick stopped answering. In total, they

exchanged approximately 15 texts that day. She told Sawalich that when she first met

FS she thought he was “creepy,” but she also said she “was fine now.” Later,

Kirkpatrick explained she said that because she did not want FS to be upset with her

when he read Sawalich’s findings. She also explained that before Sawalich emailed

her, she had no plans to call or go see Sawalich, and that she had never communicated

any complaints about FS’s conduct before her February 4 interview.

On February 6, a Saturday, Pearson emailed Sawalich that she feared FS was

retaliating against her because she heard that he was spreading rumors that Pearson

had falsely accused another student at her old school of harassing her and that she is

overly dramatic. On February 8, Sawalich responded that she was planning to meet

with FS that same day and would address the alleged retaliation. When she met with

FS, Sawalich told him that he was prohibited from going into the library during the

duration of the investigation and from having any contact with Pearson.

On February 22, Sawalich emailed Pearson, explaining that she had talked with

witnesses for both Pearson and FS, and that she was putting together information for

a written report to Logan’s Honor Council. She also asked Pearson for the text

messages that Pearson had mentioned in her written statement and for clarification

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as to whether Pearson ever told FS “in general terms that [Pearson] was not interested

in interacting with him at all and that he should . . . leave [her] alone.” On February

26, Sawalich and Pearson met once more. In response to Sawalich’s question,

Pearson explained that she had on “countless” occasions told FS not to talk to her and

that she would ignore FS and reject his attempts to interact with her. Pearson also

told Sawalich that she thought that FS was now blaming her for his poor academic

performance. On February 28, Pearson wrote Sawalich that she was unable to

retrieve any of the text messages and asked Sawalich to move forward without them.

In early March, Sawalich circulated a written report of her investigation to

Logan’s Honor Council, Pearson, and FS. Among other things, the written report

stated that Sawalich had spoken to both Pearson and FS, that both Pearson and FS

had identified potential witnesses, and that Sawalich had interviewed fourteen people

in addition to Pearson and FS. The report summarized that “12 of the people said that

they witness[ed] no interactions at all between [FS] and [Pearson] or very few

interactions; nothing out of the ordinary.” According to the report, one of the other

witnesses said that she had “witnessed interactions between [FS] and the other girls

in their classes that she found uncomfortable and she feels like he takes it further with

[Pearson] . . . [and] that he is always around and staring.” The other witness

purportedly said that Pearson seemed “uncomfortable” around FS, and that FS had

been asking questions about the work schedules of other students in the library. In

addition to the written report, Sawalich also circulated summaries of her witness

interviews, including her conversations with Pearson and FS. She did not circulate

her handwritten notes.

Pearson believed that Sawalich was trying to blame her for the investigation

and omitting information from her witnesses and otherwise twisting their words. She

circulated a written response on March 6, and met with Boyd on March 7 to express

her disappointment with the written report. Also on March 7, Sawalich interviewed

an additional witness. She sent Pearson’s and FS’s written responses to the report,

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as well as her notes from the additional witness interview, to the Honor Council.

Pearson met with the Honor Council on March 8, and FS met with the Honor Council

on March 10. On March 11, the Honor Council issued its decision, determining that

there was insufficient evidence to find FS responsible for stalking and harassment.

It also stated:

There is to be no personal contact between you two. Neither of you may

contact or attempt to contact the other. Due to the decision, there are no

limitations to utilization of common space or campus resources. In

clarity, you both may use Logan’s facilities without limitations (I.e.,

LRC/Library, hallways, cafeteria, classrooms, etc.) but are prohibited

from any personal social contact (i.e., calling, texting, etc.). In social

settings, such as Logan sponsored events you should ignore each other.

Sawalich informed Pearson and FS that either student could have the Honor Council’s

decision reviewed by Kimberly O’Reilly, Logan’s Vice President of Academic

Affairs.

On March 14, Pearson and her mother met with Bradshaw and O’Reilly to

discuss the review process, and on March 15, Pearson submitted a written request to

have O’Reilly review the decision. On March 20, Pearson emailed O’Reilly that she

did not feel safe on campus and was afraid to return to the library. On March 21,

O’Reilly replied, reminding Pearson of the security and safety measures that were

available to her on campus and to contact Sawalich immediately if FS violated the nocontact

order. O’Reilly also reminded Pearson that—even though she had previously

turned it down—she still had the option to switch to a work-study position outside

of the library. On March 31, O’Reilly emailed Pearson, explaining that she would

stay her decision on the appeal to give Pearson time to get phone records showing the

text messages FS sent her. On April 4, Pearson met with O’Reilly and told her that

she could not obtain the text messages. That same day, O’Reilly lifted her stay and

rendered her decision, finding that “the process outlined in [Logan’s harassment

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policy] was followed and all evidence provided was reviewed [by the Honor

Council].” By that fall, both Pearson and Kirkpatrick had transferred schools.

Pearson and Kirkpatrick sued Logan, claiming that Logan failed to adequately

respond to their complaints about FS’s conduct and that they left Logan in large part

due to this inadequate response. Logan moved for summary judgment on all of

Pearson’s and Kirkpatrick’s claims. The district court granted the motion, concluding

that Pearson’s Title IX claim failed because she could not show that Logan was

deliberately indifferent to her plight, Kirkpatrick’s Title IX claim failed because

Logan never had actual knowledge that she was subject to sex-based discrimination,

and their remaining negligence and premises liability claims failed because they did

not demonstrate that Logan owed them a duty of care to protect them against studenton-

student harassment. Pearson and Kirkpatrick appeal.

II

“We review a grant of summary judgment de novo, viewing the facts in the

light most favorable to the nonmoving party.” Walz v. Ameriprise Fin., Inc., 779

F.3d 842, 844 (8th Cir. 2015). “The non-moving party receives the benefit of all

reasonable inferences supported by the evidence, but has the obligation to come

forward with specific facts showing that there is a genuine issue for trial.” Id.

(quoting B.M. ex rel. Miller v. S. Callaway R-II Sch. Dist., 732 F.3d 882, 886 (8th

Cir. 2013)).

A

Title IX addresses discrimination on the basis of sex in any educational

program that receives federal funding. Roe v. St. Louis Univ., 746 F.3d 874, 881 (8th

Cir. 2014). Under its terms, “[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

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discrimination under any education program or activity receiving Federal financial

assistance.” 20 U.S.C. § 1681(a). Title IX provides a private right of action, see

Cannon v. Univ. of Chi., 441 U.S. 677, 717 (1979), which extends to suits for

compensatory damages against any public or private entity other than a state,

Fryberger v. Univ. of Ark., 889 F.3d 471, 475 (8th Cir. 2018). To succeed on a Title

IX claim based on harassment by another student, a plaintiff must show that the

educational institution was “(1) deliberately indifferent (2) to known acts of

discrimination (3) which occur[red] under its control.” K.T. v. Culver-Stockton Coll.,

865 F.3d 1054, 1057 (8th Cir. 2017) (quoting Ostrander v. Duggan, 341 F.3d 745,

750 (8th Cir. 2003)). “Additionally, the discrimination must be so severe, pervasive,

and objectively offensive that it can be said to deprive the victim of access to the

educational opportunities or benefits provided by the school.” Id. (cleaned up).

1

We begin with Kirkpatrick’s Title IX claim, which the district court dismissed

because it determined that Kirkpatrick could not show that Logan had actual

knowledge that Kirkpatrick was subject to harassment by FS. There is no evidence

that Logan knew of any complaints about FS’s behavior before September 2015,

when the only interactions that made Kirkpatrick uncomfortable occurred. And

Kirkpatrick spoke to a Logan administrator about FS’s behavior only once, in her

February 4 interview with Sawalich. At that meeting, she told Sawalich that,

although she used to think FS was creepy, she “was fine now.” Viewing the evidence

in the light most favorable to Kirkpatrick, she provided after-the-fact notice that she

found limited interactions with FS at the beginning of the school year distressing.

But such after-the-fact notice of limited interaction is insufficient to satisfy Title IX’s

actual knowledge requirement. See Culver-Stockton Coll., 865 F.3d at 1058.

Because Kirkpatrick cannot satisfy the actual knowledge element, her Title IX claim

fails as a matter of law and the district court properly granted summary judgment in

favor of Logan on that claim.

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2

We turn next to Pearson’s Title IX claim, which the district court dismissed

because it determined that Pearson could not show that Logan was deliberately

indifferent to her complaints. As we have explained, “[a] school is deliberately

indifferent when its ‘response to the harassment or lack thereof is clearly

unreasonable in light of the known circumstances.’” Maher v. Iowa State Univ., 915

F.3d 1210, 1213 (8th Cir. 2019) (quoting Davis ex rel. LaShonda D. v. Monroe Cty.

Bd. of Educ., 526 U.S. 629, 648 (1999)), cert denied, No. 18-1463, 2019 WL

2256264 (U.S. June 24, 2019). We have cautioned that the “clearly unreasonable”

standard is “intended to afford flexibility to school administrators.” Roe, 746 F.3d

at 882. “[D]issatisfaction with [a] school’s response does not mean the school’s

response can be characterized as deliberate indifference.” Maher, 915 F.3d at 1213.

It is undisputed that Logan did investigate Pearson’s allegations of stalking and

harassment and that, even though its Honor Council ultimately determined that there

was insufficient evidence to find FS responsible, it instructed Pearson and FS to have

no contact with each other. In Maher, the university’s investigative report revealed

that the Title IX plaintiff had been sexually assaulted, but the university declined to

move the alleged perpetrator before the investigation and hearing process had

concluded. Id. at 1212. Nevertheless, we determined that instituting a no-contact

order and giving the Title IX plaintiff housing alternatives so that she would not have

to live in proximity to her assailant—which she declined—did not constitute

deliberate indifference. See id. at 1212–13. Here, Logan’s investigation did not

conclude that FS engaged in stalking or harassment. But Logan still instituted a nocontact

order and gave Pearson the option of taking a work-study position at a

location other than the library. Pearson made no attempt to enforce that no-contact

order or accept an alternative work-study position before leaving Logan.

Nonetheless, Pearson contends that Logan was clearly unreasonable in its

investigation and adjudication of her complaint.

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The summary judgment record reveals no triable issue of fact as to whether

Logan’s response to and investigation of Pearson’s complaint were clearly

unreasonable. Any delays in investigating Pearson’s complaint do not show that

Logan ignored the harassment or stalking that Pearson described. Pearson

complained of FS’s behavior in December, shortly before the winter holidays. After

Pearson described a continuing pattern of conduct that made her feel uncomfortable,

Sawalich requested a written statement to better understand “the situation,

interactions, and timeline” of relevant events. When Pearson requested additional

time to prepare her statement, it was not clearly unreasonable for Sawalich to wait for

Pearson before continuing her investigation. Possible student witnesses may also

have had limited availability for interviews given that winter break started only five

days later, and Pearson’s request indicated that she was comfortable delaying the

investigation. Indeed, when Sawalich specifically asked if it would be “okay with

[Pearson]” if Sawalich began her investigation in earnest after the students had

returned to campus, Pearson did not object. And Sawalich asked to speak to FS as

soon as classes resumed and did speak to FS in early and mid-January, after which

she determined that she could investigate no further while respecting Pearson’s

request for anonymity.

Pearson contends that Sawalich unreasonably delayed the investigation by not

reaching out to other witnesses until Pearson dropped her anonymity in early

February, but limiting the scope of an investigation out of respect for a Title IX

complainant’s desire for confidentiality does not by itself constitute deliberate

indifference. See Roe, 746 F.3d at 883 (holding university was not deliberately

indifferent where, among other things, university did not inform student’s parents or

professors of sexual assault out of respect for student’s desire for confidentiality); see

also Kesterson v. Kent State Univ., 345 F. Supp. 3d 855, 876 (N.D. Ohio 2018)

(collecting cases), appeal docketed, No. 18-4200 (6th Cir. Dec. 5, 2018). After

Pearson dropped her request for anonymity, Sawalich promptly reached out to

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witnesses and instructed FS to stay out of the library during her investigation and to

have no contact with Pearson.

Similarly, the Honor Council proceedings do not show that Logan was clearly

unreasonable in its adjudication of Pearson’s allegations against FS. Although

Pearson contends that the Honor Council impermissibly relied on several statements

in Sawalich’s written report that misrepresented Sawalich’s investigative findings,

Sawalich also circulated summaries of her interviews to the Honor Council that

allowed its members to reach their own conclusions. Moreover, Pearson had the

opportunity to challenge Sawalich’s presentation of the facts—both in writing and in

person before the Honor Council—and did so. As for the Honor Council, its

members did receive Title IX trainings, and its failure to adopt the Office of Civil

Rights’s suggested preponderance-of-the-evidence standard alone is insufficient to

generate a dispute of material fact that may stave off summary judgment. See Butters

v. James Madison Univ., 208 F. Supp. 3d 745, 759 (W.D. Va. 2016) (collecting cases

for the proposition that a school’s compliance or non-compliance with OCR guidance

can be a factor to consider, but is not tantamount to deliberate indifference). Because

there is no genuine dispute of material fact as to whether Logan was deliberately

indifferent to any stalking or harassment that Pearson experienced, her Title IX claim

fails as a matter of law. The district court properly granted summary judgment in

Logan’s favor on this claim.

III

Finally, we turn to the Missouri premises liability and general negligence

claims. The district court dismissed these claims because it determined that Pearson

and Kirkpatrick could not establish that Logan owed them a duty of care. We agree.

Under Missouri law, Pearson and Kirkpatrick must show that Logan University

had a duty to protect them, breached that duty, and that breach proximately caused an

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injury. Lopez v. Three Rivers Elec. Coop., 26 S.W.3d 151, 155 (Mo. banc 2000). As

the district court correctly explained, whether a duty exists is a question of law. Id.

As a general rule, a college does not owe a duty to protect its students. Nickel v.

Stephens College, 480 S.W.3d 390, 401 n.8 (Mo. Ct. App. 2015) (acknowledging a

“very narrow exception” in cases where a “special relationship” exists between a

school and a student when “one party entrusts another for protection and relies upon

that party to provide a place of physical safety”).

There are two “special circumstances” under which Missouri recognizes an

exception to this general rule, but they do not apply here. First, Missouri law

recognizes that a “duty may arise when a person, known to be violent, is present on

the premises or an individual is present who has conducted himself so as to indicate

danger and sufficient time exists to prevent injury.” Faheen v. City Parking Corp.,

734 S.W.2d 270, 273 (Mo. Ct. App. 1987). Missouri courts have limited this

exception to cases presenting “extraordinary danger.” Id. at 274. Pearson and

Kirkpatrick have not shown any facts in this case that would have alerted Logan to

an extraordinary danger posed by FS. The only complaint involving any actual

touching by FS was acknowledged to be a possible accident by Pearson. The other

complaints involved potentially harassing conduct but nothing that would indicate

extraordinary danger.

Second, Missouri law recognizes a duty where “specific incidents of violent

crimes on the premises [] are sufficiently numerous and recent to put a defendant on

notice, either actual or constructive, that there is a likelihood third persons will

endanger the safety of defendant’s invitees.” Faheen, 734 S.W.2d at 273–74.

Pearson and Kirkpatrick have alleged a history of misconduct of varying kinds at

Logan. For example, they claim that in 2013 the school “discriminated against a

pregnant student by giving her failing grades rather than ‘incomplete’ grades.” But

nothing they have alleged approaches the sort of violent, numerous, and recent crimes

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that would be necessary to put Logan on notice that an unknown third party like FS

could pose a danger to Pearson and Kirkpatrick’s safety.

For these reasons, we affirm the judgment of the district court.

KELLY, Circuit Judge, concurring in part and dissenting in part.

I concur in Parts I and II of the court’s opinion, but respectfully disagree with

the court’s conclusion in Part III.

In December 2015, Pearson notified Logan University administrators Shelley

Sawalich and Sandra Periello that FS was stalking and harassing her, and that his

conduct made her feel unsafe on Logan’s campus. She also explained that FS had

pressed himself up against her in the cadaver lab, making her extremely

uncomfortable; and she told Sawalich that she was “terrified of being raped.” In light

of Pearson’s complaints, Logan was on notice by December 2015 that FS was

engaged in a continuing pattern of conduct that made at least one student feel that she

was going to be physically assaulted. And, in January and early February, Pearson

reported to Logan administrators that FS’s behavior continued to make her feel unsafe

on campus.

The fact that Pearson’s complaints included only one instance of “actual

touching” does not diminish the potential danger inherent in her allegations.

Missouri law recognizes that an individual may “conduct[ ] himself so as to indicate

danger” without having engaged in any physical contact. Cf. Faheen v. City Parking

Corp., 734 S.W.2d 270, 273 (Mo. Ct. App. 1987). For example, a person seeking a

protection order against stalking must demonstrate a “pattern of conduct” that causes

“a fear of danger of physical harm.” Binggeli v. Hammond, 300 S.W.3d 621, 623-24

(Mo. Ct. App. 2010) (quoting Mo. Ann. Stat. § 455.010). A pattern of conduct, in

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turn, “may include, but is not limited to, following the other person or unwanted

communication or unwanted contact.” Id. (quoting Mo. Ann. Stat. § 455.010).

Here, Pearson informed Logan personnel of FS’s alleged conduct that included

unwanted physical touching, stalking, and harassment. While the record on this issue

is admittedly thin, it is sufficient. Viewing the record in the light most favorable to

Pearson and Kirkpatrick and giving them the benefit of all reasonable inferences, as

we must on summary judgment, I believe they established, if just barely, the existence

of a duty of care to protect them against FS. See Walz v. Ameriprise Fin., Inc., 779

F.3d 842, 844 (8th Cir. 2015).

The district court declined to address whether Pearson or Kirkpatrick could

satisfy the other elements of their premises liability and negligence claims.

Therefore, I would remand for the district court to make those determinations in the

first instance. In the alternative, I would leave to the district court’s discretion

whether it wishes to continue exercising supplemental jurisdiction over the remaining

state law claims on remand, in light of the dismissal of all federal claims. See

Gregoire v. Class, 236 F.3d 413, 419 (8th Cir. 2000).

______________________________

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Affirmed