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Saud v. Depaul University

United States District Court, N.D. Illinois, Eastern Division

October 29, 2019

LAITH SAUD Plaintiff,
v.
DEPAUL UNIVERSITY, KAREN TAMBURRO, and MARLA MORGEN Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge.

         Plaintiff Laith Saud filed a complaint [1] and later an amended complaint [17] against his former employer, DePaul University, and two of its staff members, Karen Tamburro and Marla Morgen, alleging violations of 42 U.S.C. § 1983 (“§ 1983”), 20 U.S.C. § 1681 (“Title IX”), 42 U.S.C. § 1981 (“§1981”), breach of an indemnification contract, breach of oral employment contract, promissory estoppel, and false light. Plaintiff also filed a motion [25] for a preliminary injunction. Defendants moved to dismiss the amended complaint [17] and opposed the preliminary injunction [29].

         For the reasons explained below, Defendants' motion to dismiss [19] is granted in part and denied in part. Specifically, Count I is dismissed with prejudice. Count II is dismissed with leave to amend by November 19, 2019. Counts IV through IX are dismissed without prejudice. The motion to dismiss is denied with respect to Count III. Plaintiff's motion [25] for a preliminary injunction is also denied. This case is set for further status hearing on November 26, 2019 at 9:30 a.m.

         I. Background

         Plaintiff Laith Saud, an Arab American male and former professor at Defendant DePaul University, brought this action against his former employer for an allegedly botched investigation into allegations of sexual misconduct involving a student, failing to defend him in the student's civil suit, and not rehiring him. For the purposes of deciding the motion to dismiss, the Court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 2009); Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007).

         In 2005, Defendant DePaul University hired Plaintiff as an adjunct professor in its Religious Studies Department. Plaintiff's courses were popular, and in 2010 he was promoted to Visiting Assistant Professor, a position with a contract subject to review and renewal at the end of each academic term. In 2016, Plaintiff began a romantic relationship with a student in one of his classes. At that time, DePaul had no policy prohibiting such relationships between students and faculty. The amended complaint does not go into detail, but at some point the relationship apparently soured. In spring 2017, Plaintiff received an attorney's lien letter from an attorney representing the student. The letter accused Plaintiff of sexual misconduct but did not provide details of the allegedly wrongful acts.

         Around the same time, DePaul told the two Visiting Assistant Professors in the Religious Studies department-Plaintiff and a white male-that their positions were being “shifted” due to “budgetary reasons.” [17] at 5. The chair of the Religious Studies department, Khaled Keshk, proposed that Plaintiff and the other Visiting Assistant Professor teach as adjunct professors in the department.[1] Keshk also emailed Plaintiff and the other Visiting Assistant Professor and invited them to propose “Enhanced Pay, ” a bonus on top of the regular adjunct salary. Plaintiff did so. The other Visiting Assistant Professor returned to work as an adjunct the following academic year. Plaintiff did not.

         In May 2017, Defendant Karen Tamburro, DePaul's Title IX Coordinator, began investigating alleged sexual misconduct by Plaintiff. Keshk told Plaintiff that he was being investigated and said he did not think Plaintiff would be treated fairly, because he is a male of Arab heritage. [17] at 6. Tamburro met with Plaintiff but did not convey to Plaintiff any specific allegations against him. Plaintiff said that he had been in a consensual relationship with the student and that she had become upset with him in February 2017 when he didn't respond to her text messages within a day. Plaintiff denied using his position as a professor for sexual favors and said that he gave A grades to all students who attended and participated in his course.

         Tamburro attempted to contact the student, both directly and through her attorneys. Neither the student nor her attorneys cooperated with the investigation or provided further detail regarding the alleged sexual misconduct. Sometime in May 2017, Tamburro completed her investigation and issued a report finding that Plaintiff did not violate any of DePaul's policies.

         On June 28, 2017, Plaintiff emailed Tamburro and wrote that he believed he was the victim of sexual misconduct by the student because he was being used as a conduit for her to sue DePaul. [17] at ¶ 27; see also [26-2]. Tamburro did not reply to Plaintiff's email, nor did she open a Title IX investigation in response.

         On June 29, 2017, the student filed a lawsuit alleging common law battery and violation of the Illinois Gender Violence Act (“GVA”) against Plaintiff and negligent hiring and supervision against DePaul. Among other things, the lawsuit alleged that Plaintiff had been the subject of “many complaints of harassment” at DePaul, had taken the student to dinner and had “plied her with alcohol, ” and “forcibly” pursued sex with her twice. See [17] at 8. Plaintiff denies these allegations.[2] Defendant Marla Morgen, Senior Associate General Counsel at DePaul, told Plaintiff that pursuant to the terms of DePaul's Bylaws, DePaul would indemnify and defend him. DePaul selected and began paying for Plaintiff's attorneys, who entered into a Joint Defense Agreement (“JDA”) with DePaul.

         Shortly after the student filed her lawsuit, DePaul withdrew its offer to have Plaintiff teach as an adjunct in the upcoming academic year. Tamburro also reopened her investigation into Plaintiff's alleged misconduct. Neither the student nor her attorneys cooperated with the second investigation either, but the school's findings changed. According to Tamburro's second report, a preponderance of the evidence did not support a finding that Plaintiff committed battery or abused his position, but it did support a finding that he had sexually harassed the student. Plaintiff alleges that Tamburro's methods and findings failed to adhere to federal guidelines, or DePaul's procedures, on conducting Title IX investigations. [17] at ¶ 42. DePaul then sent Plaintiff a letter stating that he was not eligible for future employment at DePaul and was barred from DePaul-sponsored or co-sponsored events. Furthermore, DePaul told Plaintiff that the investigation was closed and would not be reopened, even if new evidence was obtained, and that he could not appeal the decision.

         The student's lawsuit continued. Plaintiff filed a verified answer denying that he ever used his position or grades for sexual favors and that the encounters alleged by the student ever took place. He also countersued for defamation. DePaul was dismissed from the case in February 2018, and the student filed a notice of appeal.

         On April 2, 2018, the DePaulia published an article about the lawsuit. The DePaulia is DePaul's school newspaper, which publishes articles written by student journalists who are advised by faculty at DePaul's College of Communication. The article, entitled “Power Player: Former DePaul student sues ex-professor for sexual coercion, ” described the litigation and repeated allegations from the state court complaint that Plaintiff denies, including that Plaintiff had been the subject of “many complaints of harassment” at DePaul, “plied” the student with alcohol, and used his position to coerce the student into having sex with him. The article was posted on the DePaulia website and was “pinned” on the DePaulia's Twitter account for several months, meaning that it appeared at the top of the Twitter page, above articles more recently published and tweeted by the paper. Plaintiff, on the advice of his attorneys, provided no statement to the DePaulia, and his attorneys did not comment either.

         Later in April 2018, DePaul and the student settled. DePaul pressured Plaintiff to settle, but he refused. DePaul, via Morgen, informed Plaintiff that it would no longer defend or indemnify him (but did not notify Plaintiff that it was terminating the Joint Defense Agreement). A year later, on April 15 and 16, 2019, a bench trial was held in the case. The trial judge denied the student's claims and granted Plaintiff's defamation claim. The trial court found that, on the night the student claimed the assault had occurred, she and Plaintiff had dinner together but did not have sexual intercourse at all; Plaintiff did not force her to drink alcohol; and Plaintiff never offered her anything, threatened her, or had any quid pro quo arrangement with her.

         Since being barred from teaching at DePaul, Plaintiff has been unable to find work. The DePaulia article remains on the first page of search results when conducting a Google search of Plaintiff's name, and at least one prospective employer told Plaintiff that news of the student's lawsuit is the reason that he was not considered for employment.

         On June 12, 2019, Plaintiff filed the complaint [1] in the instant case. On July 19, 2019, he filed an amended complaint [17]. Defendants filed a motion to dismiss [19] on August 8, 2019. Plaintiff also filed a motion for a preliminary injunction [25] on August 29, 2019, which Defendants oppose [29].

         II. Legal Standard

         When ruling on a motion to dismiss, a district court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999); Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007). The Court need not “accept as true any legal assertions or recital of the elements of a cause of action supported by mere conclusory statements.” Zahn v. N. Am. Power & Gas, LLC, 815 F.3d 1082, 1087 (7th Cir.) (citation omitted). A motion to dismiss for failure to state a claim tests the sufficiency of the complaint, not its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990). To survive such a motion, the complaint must allege sufficient facts that, if true, would raise a right to relief above the speculative level, showing that the claim is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544 at 555 (2007). To be plausible on its face, the complaint must plead facts sufficient for “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, a plaintiff can “plead himself out of court by pleading facts that show that he has no legal claim.” Epstein v. Epstein, 843 F.3d 1147, 1150 (7th Cir. 2016) (quoting Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011)). This can occur when the complaint includes “facts that establish an impenetrable defense to its claims.” Hecker v. Deere & Co., 556 F.3d 575, 588 (7th Cir. 2009) (quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008)).

         III. ...


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