United States District Court, D. Nebraska
LISSETTE LARIOS ROOHBAKHSH, as personal representative of the Estate of Fatima Lissette Larios and on behalf of next of kin; and NELSON LARIOS, as next of kin; Plaintiffs,
BOARD OF TRUSTEES OF THE NEBRASKA STATE COLLEGES, and CHADRON STATE COLLEGE, Defendants.
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
matter is before the Court on a motion for summary judgment
filed by defendants Board of Trustees of the Nebraska State
Colleges and Chadron State College (collectively,
“Chadron State” or “the College”),
Filing No. 100.
an action under Title IX of the Education Amendments of 1972,
20 U.S.C. § 1681(a) et seq. ("Title
IX"). Title IX is a federal statute banning
discrimination on the basis of sex in federally funded
educational programs. Id. The plaintiffs are the
parents of Fatima Larios, who had been a student and athlete
at Chadron State College from August 2014 until her suicide
on January 31, 2015. Plaintiff Lissette Larios Roohbakhsh is
also the personal representative of decedent Fatima
their complaint, the plaintiffs allege that Chadron State was
deliberately indifferent to reports of dating violence
against Fatima by one of its students. They allege that if
Chadron State had complied with its own policies and Title IX
by properly responding to third-party reports of the abuse
and took appropriate steps to protect Fatima's safety,
Fatima's death could have been prevented.
State asserts it is entitled to a summary judgment of
dismissal. It contends that undisputed evidence shows that
the plaintiffs cannot prove the elements of a Title IX claim.
First, it argues that Chadron State did not have actual
notice that Fatima Larios experienced discrimination while a
student at Chadron State, contending that the College's
level of actual knowledge must amount to reliable reports of
specific behavior so severe as to deprive the victim of
access to educational opportunities. Next, it argues that
even if the plaintiffs could meet the actual notice
requirement, Title IX is inapplicable because the plaintiffs
cannot show that the alleged dating violence was based on sex
rather than interpersonal conflict. Chadron State disputes
that Fatima Larios was the victim of dating violence, arguing
that Fatima Larios was the physical aggressor. Further, it
argues the plaintiffs' claims fail as a matter of law
because the College was not deliberately indifferent in its
response to the rumors relayed to it regarding Larios.
Chadron State also argues that the plaintiffs cannot show
that the college's deliberate indifference caused the
student to undergo harassment, physical assaults, or
deprivation of educational opportunities. Last, it argues
that the College cannot be held responsible under Title IX
for Larios's suicide because the decision to inflict
self-harm is an efficient intervening cause under Nebraska
response, the plaintiffs argue that there are genuine issues
of material fact on all these issues.
facts are gleaned from the parties' respective statements
of undisputed facts in their briefs and from the court's
review of the evidence. SeeFiling No. 102,
Defendants' Brief at 2-31; Filing No. 113,
Plaintiffs' Brief at 3-100; Filing Nos. 103 & 104,
Indices of Evid.; Filing Nos. 113 & 114, Indices of Evid.
Larios (“Larios”) and Brandon Finona-Gardner
(“Gardner”) first met in their hometown of
Monterey, California. Filing No. 104-1, Ex. 5, Deposition of
Brandon Finona-Gardner (“Gardner Dep.”) at 12-13.
Gardner was a junior at a public high school at the time, and
Larios was a senior at a nearby private, all-girls high
school. Id. They dated from August 2012 to the date
of Larios's death on January 31, 2015.
first attended college in Clarksville, Tennessee, on an
athletic scholarship. She played softball on an NCAA Division
I team. Larios and Gardner continued to date in a
long-distance relationship. In August 2014, Gardner began
college at Chadron State on a football athletic Scholarship.
Larios then transferred to Chadron State and began playing
softball for Chadron State, an NCAA Division II school.
moved into the College's Andrews Hall and Gardner moved
into the College's High Rise resident hall in August
2014. Tayler Saunders was a Residence Hall Advisor
(“RA”) at Gardner's dormitory. During
Gardner's move into the dormitory, his mother told RA
Saunders that "it was common for Brandon and his
girlfriend Fatima to argue frequently and rather
loudly." Filing No. 104-30, Incident Report/Memo of
conversation at 1. Saunders stated that she believed
"Brandon's mother had informed her" of Gardner
and Larios's arguments as if to issue "a warning so
that [the College's] staff wouldn't be surprised by
the consistency of the arguments that would likely
ensue." Id. In late September 2014, Fatima
Larios moved from her dormitory to Gardner's dormitory.
Filing No. 103-3, Ex. 3, Deposition of Lissette Roohbakhsh
(“Roohbakhsh Dep.”) at 48; Filing No. 103-18, Ex.
46, Residence Hall Contract. Larios's mother was not
aware of the change. Filing No. 103-3, Roohbakhsh Dep. at 50.
State hosted an on-campus Halloween dance for students on
October 31, 2014. There were reports of an altercation
between Fatima Larios and another student at the dance. There
is evidence in the record that RA Saunders would occasionally
consume alcohol in the dorms with students she oversaw on the
third floor, which was contrary to Chadron State's code
of conduct. It is undisputed that Fatima Larios began
consuming increasingly more alcohol while at Chadron State.
the relevant time period, Robert Stack was the College's
Head Softball Coach and Aryn Grywusiewicz was Assistant
Softball Coach. Sometime in late October 2014, Coach
Grywusiewicz noticed fingerprint bruises on Larios's
upper arm and a huge bruise on Fatima's inner leg from
groin to mid-thigh that she believed to be unrelated to
softball. Filing No. 104-5, Ex. 9, Deposition of Aryn
Grywusiewicz (“Grywusiewicz Dep.) at 34-39. Several
players later told Coach Grywusiewicz that Larios had told
them Brandon was hitting her. Id. at 39-40.
Larios's teammates, Brooke Wakefield and Rebeka Prokaski,
also noticed bruises on Larios's upper arms. Filing No.
104-15, Ex. 24, Deposition of Brooke Wakefield
(“Wakefield Dep.”) at 12-14, 18. They questioned
Larios about the bruises, and Larios initially claimed they
were softball-related. Filing No. 104-16, Ex. 25, Deposition
of Rebeka Prokaski (“Prokaski Dep.”) at 25.
Larios later stated that the bruises "came from"
Gardner, but warned Wakefield to "back off." Filing
No. 104-15, Ex. 24, Wakefield Dep. at 15, 33.
about November 2, 2014, Wakefield and Prokaski told Coach
Grywusiewicz that Larios had told them that Gardner was
hitting her. Filing No. 104-5, Ex. 9, Grywusiewicz Dep. at
39, 44; Filing No. 104-15, Ex. 24, Wakefield Dep. at 15:2-13.
The following day, a third player, Jessica Eatmon-Hoopes,
reported to Coach Grywusiewicz that she had "heard"
Gardner was hitting Larios. Filing No. 104-5, Ex. 9,
Grywusiewicz Dep. at 40, 45. Coach Grywusiewicz then informed
the head coach of the softball players' concerns and her
own concerns about Larios's bruises. Filing No. 104-4,
Ex. 8, Stack Dep. at 32-35; Filing No. 104-5, Ex. 9,
Grywusiewicz Dep. at 56.
Coach Stack then met with the Athletic Director, Joel Smith,
and informed Smith of the concerns. Filing No. 103-5, Ex. 10,
Smith Dep. at 26-28, 56. Smith testified he recalled
"there was something about her boyfriend and the kids
were concerned about her" and “there were concerns
about her behavior and-and what she was covering herself
with.” Id.at 55-56. Athletic Director Smith
passed the information on to the College's Director of
Human Resources and Title IX Compliance Coordinator, Shelley
Dunbar. Id. at 29. Smith testified he felt that the
best course was to get the information to Title IX
Coordinator Dunbar so she could follow up as appropriate,
since the concerns were based on second-hand information.
Id. at 40, 57.
November 3, 2014, Dunbar met with Coach Grywusiewicz to
discuss Fatima Larios. Filing No. 104-5, Ex. 9, Grywusiewicz
Dep. at 66-67. Coach Grywusiewicz testified that she told
Dunbar that Larios had transferred to Chadron State because
Gardner was there to play football, that Grywusiewicz had
noticed bruising that was not softball-related, and that two
players had reported that that Larios told them that the
bruises "came from" Gardner. Id. at 66-67.
Dunbar recounted the conversation in an email to various
Chadron State administrators as follows:
Fatima had told three girls on the team that Brandon is
aggressive and he had hurt her. When the girls saw the recent
bruises, they were very concerned but Fatima said they were
No. 103-16, Ex. 35, Email. Dunbar also reported:
At parties they are seen fighting but it is both of them.
Fatima was in a fight herself with another girl at a party
because Brandon brought this girl to the party. Incidents
seem to happen when alcohol is involved. Fatima was hanging
out with the team at first but lately has not doing that so
again met with Coach Grywusiewicz the following day. Filing
No. 104-19, Ex. 30, Dunbar Notes at 1. Coach Grywusiewicz
stated that she had noticed that Larios had seemed more
withdrawn and emotional and had socialized less with the
team. Id. Coach Grywusiewicz also stated she had
heard that both Larios and Gardner had displayed aggressive
behavior at parties. Id. Dunbar then advised
Grywusiewicz to meet with Larios, explain her concerns and
express the desire to know if everything was alright.
recapped the meetings with Coach Grywusiewicz in an email to
Head Coach Stack and Athletic Director Smith and informed
them she believed "the right approach" to move
forward was to let Larios know there was a process if Larios
felt she needed help. Filing No. 103-12, Ex. 31, Email.
Dunbar wrote that "[t]his will be touchy because we do
not know how [Larios] will react and I don't want to be
over baring [sic] on her.” Id. She stated that
Grywusiewicz's contact with Larios would “cover the
obligation of the college to reach out if we have information
there may be a possible violation of our 3020 policy, ”
adding that Dunbar would then follow up with Grywusiewicz and
would send the policy and a letter to Larios, noting
“[t]he letter will state she is not under any
obligation to go further with the matter-but it will also
state that we do not tolerate acts of violence against our
November 5, 2014, Dunbar sent a letter to Larios explaining
that the College would not tolerate dating violence, it
I have enclosed a copy of Board Policy 3020 which explains
what Chadron State College must do when sexual violence,
assault or harassment occurs. The policy provides a great
deal of information including reporting issues, the
investigatory process, confidentiality and possible
consequences. I am the College's Title IX Coordinator and
I am responsible for coordinating the College's response
to reports of that nature.
understand that the College will not tolerate sexual violence
or sexual harassment in any form, including, but not limited
to, dating violence, domestic violence, stalking, sexual
assault; acquaintance date or stranger rape; non-consensual
sexual intercourse: sexual cyber harassment or sexual
bullying. The College will take appropriate action to
prevent, correct, and discipline harassing or violent
behavior that is found to violate Board policies and
principles of equal opportunity and access.
No. 103-13, Ex. 32, Correspondence dated Nov. 5, 2014 at 1.
The letter also stated “[i]f you would . . . like to
discuss anything in violation of this policy that may have
occurred with you . . . please contact me . . . [, ]”
but noted that Larios was not required to contact her.
Id.Dunbar also stated she had “some contact
and referral information for counseling/mental health
services, medical services, law enforcement, and educational
resources that I can provide to should you feel you maybe in
need of.” Id.
enclosed Board Policy 3020 defines and outlines sexual
violence or sex harassment reporting, policies ...