Ithaca College and Bryan Roberts, former associate dean of the Roy H. Park School of Communications, filed replies Feb. 19 and 20 to support their original motions to dismiss claims made against them by an anonymous student at the college in a Title IX and sexual harassment lawsuit. 

The student, known as John Doe in the case, filed his replies against the motions to dismiss Feb. 12. Erin Peake, Doe’s lawyer, declined to comment. 

Emily Rockett, vice president, general counsel and secretary to the board of trustees at the college, said via email that developments in the case from here on depend on the judge’s ruling.

“All parties are awaiting the judge’s ruling on the motions to dismiss,” Rockett said. “The judge’s ruling on the motions will determine the next steps.” 

Peter Glennon, Roberts’ lawyer, did not reply to a request for comment. 

No party requested oral argument. Now that the parties have filed their final written arguments, U.S. Judge Glenn T. Suddaby of the Northern District of New York will rule on the dispositive motions. Applicable court rules do not mandate that the court decide the motions within a required time period. 

Ithaca College’s replies, filed Feb. 20:

Doe confuses the standard to be met

In a reply to motions to dismiss claims originally filed by Doe, he had argued that the case was not yet in discovery, which is the stage of trial where both the Plaintiff and the Defendant formally commence exchanging information about evidence and witnesses they plan to present during the actual trial. 

Ithaca College argues in the memorandum of law in further support of the dismissal of Doe’s claims that Doe cannot avoid dismissing his claims by proposing that materials revealed in discovery will expose foundations for claims he has yet made. 

The college cites Ashcroft v. Iqbal as the plausibility standard, which states that “a plausibility claim must come before discovery, not the other way around.”

Title IX framework 

The college again argues that Doe has not demonstrated that his negligence claims are separate from his Title IX claim. 

The college says that Doe is “claiming in most conclusory terms that Title IX should not subsume his Title IX claims,” and fails to present a strong argument regarding why his negligence and Title IX claim should be subsumed.

Failure of negligence-based claims

The college argues that Roberts’ alleged involvement in sexual assault and Doe’s report to Bryant is not considered notice to the college. To establish notice, the college argues Doe must demonstrate that “the College knew of specific similar prior acts of sexual misconduct by Roberts.”

It also argues that Doe does not identify anyone who was aware that Ithaca College employees were using Grindr.

In the argument, the college states that its policies outline workplace conduct for employees but “plaintiff makes no claim that any College policy prohibits the use of Grindr or other social media platforms.”

Negligent hiring and supervision claim

The college claims that Doe’s negligent hiring, retention, training, direction and supervision claim is based on the argument that the college “failed to prevent its faculty and staff from sexually harassing its student.”

However, the college argues that the basis of this argument falls under Title IX procedures and “because plaintiff has not alleged Ithaca had prior notice of any employee’s propensity to commit specific acts of sexual harassment.”

The college argues that even if its employees were responsible for filing a report, it could arise only under Title IX or Article 129-B of the New York Education Law.

Corporate Complicity Doctrine

Corporate complicity is an area of law that assesses to what degree companies have been accomplices in abuse committed. The college argues that “Corporate complicity exists only where: (1) a superior officer in the course of employment ordered, authorized, participated in, consented to or ratified the actionable conduct; (2) the employer ‘deliberately retained the unfit servant;’ or (3) ‘the wrong was in pursuance of a recognized system of the entity.’” 

The college says that it considers officers when they are in the position of a president, provost, chief financial officer and similar roles. It argues that corporate complicity can exist only when the officer is superior, but Roberts is not. The college also says that even if Roberts was considered a superior officer, “Ithaca’s complicity cannot be established because the alleged harassment was outside the scope of Roberts’ employment.”

NIED Claim

The college argues that “the conduct relied upon to support the plaintiff’s NIED claim is identical to the conduct underlying his other negligence-based claims,” which is why it should be dismissed.

The college further states that the college would have to investigate claims of sexual assault only under Title IX and has no “common law duty to investigate and adjudicate claims of sexual misconduct.”

IIED Claim

The college cites that an Intentional Infliction of Emotional Damage is a claim that is not highly favored in New York and often tends to fail. 

The college argues that Doe’s IIED claim fails because he presents no facts to support the claim, does not prove the existence of extreme or outrageous conduct, does not allege that the college intentionally meant to harm him and the claim is duplicative. 

Bryan Roberts’ replies, filed Feb. 19:

In his response to Doe’s replies, Roberts argues that Doe has not included any “cognizable legal basis to support the continued viability of his claims against Defendant Roberts.” Roberts states that he continues to request that all of Doe’s claims against him be dismissed. 

Duty to Plaintiff 

Roberts again argues that he had no duty to Doe, so his negligence claim should be dismissed. 

“To the extent Plaintiff is implying there is a cognizable duty of care that flows from a college professor to a college student, again and again in cases that have addressed this issue, courts have found that ‘New York State courts have affirmatively rejected the doctrine of in loco parentis at the college level,’” the response states.

Superior Officer Rule

The response also argues that Doe failed to “plead facts that plausibly establish Mr. Roberts as a Superior Officer at Ithaca College,” so Doe’s negligence claims are insufficiently pleaded.

“Plaintiff is aware, having attended the Park School for years, that there is in fact a Dean of the Park School, in addition to several Associate Deans. Armed with this knowledge, Plaintiff’s decision to characterize Mr. Roberts as ‘the highest-ranking individual at the Park School’ (Plaintiff’s Memorandum of Law at p. 9) and ‘the head of the entire Park School’ (Plaintiff’s Memorandum of Law at p. 8) is disingenuous at best,” the response states.

Negligent Hiring, Supervision, Retention and Training 

Roberts also states that because he was an employee of the college, not an employer, Doe’s claims of Negligent Hiring, Supervision, Retention and Training should be dismissed against him. 

Intentional Infliction of Emotional Distress Claim

Roberts argues that Doe did not plead extreme or outrageous conduct, so his claims for Intentional Infliction of Emotional Distress (IIED) Claim against Roberts should be dismissed. 

“Plaintiff alleges that rubbing one’s nipples in public is extreme and outrageous. Plaintiff also alleges that pressuring another person into sex is also extreme and outrageous, and that verbal threats that were never acted on are likewise extreme and outrageous. Plaintiff does not, and indeed cannot, cite any legal authority for any of these premises. Courts have previously found these specific actions to not be extreme or outrageous and have dismissed claims for Intentional Infliction of Emotional Distress where similar allegations were made,” the response states.

Negligent Infliction of Emotional Distress Claim & Duplicative Negligence Claims

Roberts also states that Doe’s claims for Negligent Infliction of Emotional Distress (NIED) should be dismissed because “Mr. Roberts does not owe a duty to Plaintiff” and “Plaintiff has not pleaded unreasonable endangerment of his physical safety, or fear for his own safety.” The response also states that Doe’s NIED claim is “duplicitous of the negligence claims” and should be dismissed.