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Fry v. Doane University

United States District Court, D. Nebraska

December 11, 2019

JENNIFER FRY, Plaintiff,
v.
DOANE UNIVERSITY, a non-profit corporation, INTERCHURCH MINISTRIES OF NEBRASKA, a non-profit corporation, NEBRASKA STATE SUICIDE PREVENTION COALITION, a non-profit corporation, DONALD BELAU, and NEBRASKA STATE SUICIDE PREVENTION, AN UNINCORPORATED ASSOCIATION, Defendants.

          MEMORANDUM AND ORDER

         This lawsuit stems from a Doane University student's interactions with her supervisor and academic advisor, Defendant Donald Belau. Plaintiff Jennifer Fry alleges that while she was a student at Doane working on her Masters of Arts in Counseling and also working at two non-profit corporations (Defendants Interchurch Ministries of Nebraska (“IMN”) and Nebraska State Suicide Prevention Coalition, Inc. (“NSSCP”)), Defendant Belau was the dean and director of Doane's Masters of Arts in Counseling program and served as Fry's academic advisor and also as Fry's supervisor at IMN and NSSCP. Fry alleges that Belau subjected her to sexual harassment.

         Fry brings four state-law claims against Defendant Belau: intentional and/or negligent infliction of emotional distress (COA 4[1]); assault (COA 6); defamation (COA 7); and tortious interference with employment relationship (COA 8).[2] (Filing 52 (Second Amended Complaint).) Defendant Belau moves for judgment on the pleadings (Filing 62) pursuant to Fed.R.Civ.P. 12(c).

         I. STANDARD OF REVIEW

         The Federal Rules of Civil Procedure provide that “[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “Judgment on the pleadings is appropriate when there is no material issue of fact and the moving party is entitled to judgment as a matter of law.” Country Preferred Ins. Co. v. Lee, 918 F.3d 587, 588 (8th Cir. 2019).

         “As a general rule, a Rule 12(c) motion for judgment on the pleadings is reviewed under the same standard as a 12(b)(6) motion to dismiss, ” In re Pre-Filled Propane Tank Antitrust Litig., 893 F.3d 1047, 1056 (8th Cir. 2018) (internal quotation marks and citation omitted)-that is, “to accept as true all factual allegations set out in the complaint and to construe the complaint in the light most favorable to the plaintiff[s], drawing all inferences in [their] favor.” Ashley Cty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009) (internal quotation marks and citation omitted). Under the 12(b)(6) standard, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. However, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotation and citation omitted).

         II. FACTUAL ALLEGATIONS

         The relevant factual allegations-which the court must accept as true-are set forth in the Second Amended Complaint (Filing 52):

11. For all times pertinent to this action, Fry was an employee of IMN and NSSPC.
12. For all times pertinent to this action, Fry was also a student at Doane University working on her Masters of Arts in Counseling.
13. For all times pertinent to this action, Dr. Belau was the Dean and Director of the Doane University Masters of Arts in Counseling and Fry's superior, supervisor, and advisor. Dr. Belau was employed by Doane University during the events of this lawsuit.
14. For all times pertinent to this action, Dr. Belau was Chair of the Board and Director of NSSCP and Fry's superior and supervisor for her work at NSSCP.
15. For all times pertinent to this action, Dr. Belau was an employee or under a contractual relationship with IMN and was Fry's superior and supervisor for her work at IMN.
. . . .
18. On or around March 2014, Fry started work as a part-time outreach coordinator with Defendants NSSCP and IMN because she was told she could earn internship credit for her work.
19. [In] March 2014, Dr. Belau called Fry into his office to discuss the job at NSSCP and IMN and made the comment “sometimes we may need to put in some long hours and often be out late at night; our spouses are going to think we are having an affair.” 20. In March 2014, Dr. Belau came to Fry's office, sat down, rolled his chair to Fry until their knees touched, put his hand on her knee, and said “you and I are going to become very close.” 21. In August 2014, Dr. Belau told Fry she needed to “pull [her] big girl panties up” in response to Fry telling him that he was making her uncomfortable.
22. Between August and December 2014, Dr. Belau frequently remarked to Fry, when preparing for speaking engagements, that it would “not matter what any of the presenters said because all eyes will be on you.” 23. In January 2015, Dr. Belau said that Fry was “eye candy.” After the “eye candy” comment Dr. Belau joked that he should be careful or he'd get accused of sexual harassment.
24. On one occasion Fry bent over and Dr. Belau made a comment about her buttocks.
25. Dr. Belau told Fry that he was going to get his prostate examined when explaining why Dr. Belau could not be somewhere in March 2015.
26. On various occasions, Dr. Belau sent Fry texts on Saturday mornings which were not work or academic related and included comments that made her uncomfortable.
27. On various occasions, Dr. Belau made derogatory comments to Fry and when Fry became upset he told her not to act like a baby.
28. On various occasions, Dr. Belau would stand or sit very close to Fry. He would come into Fry's office frequently and linger around her.
29. These actions and comments made Fry uncomfortable and she reported the situation to other Doane University faculty members and employees. No. action was taken after Fry reported the situation to other Doane University faculty members and employees.
30. Fry was delayed in obtaining her degree as a result of Dr. Belau's acts and Doane University's inaction.
31. On March 24, 2015, a complaint was filed on Fry's behalf with Doane University's Human Resources Department.
32. During the investigation, Fry was required to move her office and limit her interactions with Dr. Belau which required her to stop participating in several organizations relevant to her field of study.
33. During the investigation, Dr. Belau was not placed on administrative leave or required to stop participating in organizations that Fry was a member of.
34. In June 2015, Doane University finally determined that Dr. Belau's actions violated Doane University policy and ...

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