Haley Videckis et al v. Ryan Weisenberg et al, No. 2:2015cv00298 - Document 41 (C.D. Cal. 2015)
Court Description: AMENDED ORDER DENYING DEFENDANT PEPPERDINE UNIVERSITYS MOTION TO DISMISS THIRD, FOURTH, AND FIFTH CAUSES OF ACTION OF THE THIRD AMENDED COMPLAINT [AMENDED AS TO TYPOGRAPHICAL ERROR IN ORIGINAL CAPTION ONLY] 33 by Judge Dean D. Pregerson. (lc). Modified on 12/15/2015 (lc).
Haley Videckis et al v. Ryan Weisenberg et al Doc. 41 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 HALEY VIDECKIS AND LAYANA WHITE, 12 Plaintiffs, 13 v. 14 15 PEPPERDINE UNIVERSITY, a corporation doing business in California, 16 Defendant. 17 ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 15-00298 DDP (JCx) AMENDED ORDER DENYING DEFENDANT PEPPERDINE UNIVERSITY’S MOTION TO DISMISS THIRD, FOURTH, AND FIFTH CAUSES OF ACTION OF THE THIRD AMENDED COMPLAINT [AMENDED AS TO TYPOGRAPHICAL ERROR IN ORIGINAL CAPTION ONLY] [Dkt. No. 33] 18 19 Presently before the Court is Defendant Pepperdine University 20 (“Pepperdine”)’s Motion to Dismiss the Third, Fourth and Fifth 21 Causes of Action of the Third Amended Complaint and Prayer for 22 Prejudgment Interest Pursuant to Fed. R. Civ. P. 12(b)(6) (“MTD”). 23 (Dkt. No. 33.) 24 heard oral argument, the Court DENIES the motion and adopts the 25 following order. 26 /// 27 /// 28 /// Having considered the parties’ submissions and Dockets.Justia.com 1 I. BACKGROUND 2 Plaintiffs in this case are Haley Videckis (“Videckis”) and 3 Layana White (“White”). Videckis is a former member of 4 Pepperdine’s women’s basketball team who transferred to Pepperdine 5 from Arizona State University in July 2013. 6 Complaint (“TAC”), Dkt. No. 31, ¶¶ 1, 47.) 7 member of Pepperdine’s women’s basketball team who transferred to 8 Pepperdine from Arizona State University in January 2014. 9 2, 47.) (Third Amended White is also a former (TAC ¶¶ Defendant Pepperdine is a university located in 10 California. 11 government and from the state of California. 12 Weisenberg (“Coach Ryan”) is the head coach of the Pepperdine 13 women’s basketball team. 14 an athletic academic coordinator of the Pepperdine women’s 15 basketball team. 16 (Id. ¶ 3.) Pepperdine receives funds from the federal (Id. ¶ 7.) (Id.) Ryan Adi Conlogue (“Conlogue”) is (Id. ¶ 13.) Plaintiffs’ suit arises out of allegedly intrusive and 17 discriminatory actions that Pepperdine and its employees committed 18 against Plaintiffs on account of Plaintiffs’ dating relationship. 19 Plaintiffs allege that, in the spring of 2014, Coach Ryan and 20 others on the staff of the women’s basketball team came to the 21 conclusion that Plaintiffs were lesbians and were in a lesbian 22 relationship. 23 Ryan and the coaching staff were concerned about the possibility of 24 the relationship causing turmoil within the team. 25 Plaintiffs allege that, due to their concerns, Coach Ryan and 26 members of the coaching staff harassed and discriminated against 27 Plaintiffs in an effort to force Plaintiffs to quit the team. 28 (Id.) (Id. ¶ 17.) Plaintiffs further allege that Coach 2 (Id.) 1 Plaintiffs allege that, beginning in February 2014, Conlogue 2 would hold individual meetings with each of the Plaintiffs in order 3 to determine Plaintiffs’ sexual orientation and their relationship 4 status. 5 specifically asked Plaintiffs whether there were any gay or 6 bisexual players on the women’s basketball team. 7 Conlogue would ask follow-up questions consisting of, among other 8 things, how close Plaintiffs were, whether they took vacations 9 together, where they slept, whether they pushed their beds (Id. ¶¶ 19-22.) During these meetings Conlogue (Id. ¶ 21.) 10 together, whether they went on dates, and whether they would live 11 together. 12 2014. 13 (Id. ¶ 22) The questioning lasted at least through June (Id. ¶ 25.) At the end of April, White reported to Coach Ryan that 14 Conlogue was constantly trying to obtain information about White’s 15 personal life instead of focusing on White’s academics. 16 28.) 17 monitor the players’ meetings with Conlogue, as other teammates had 18 also complained about Conlogue not focusing on academics. 19 Plaintiffs allege that Coach Ryan did not take any action to stop 20 Conlogue’s inquiries into their personal lives. 21 further allege that Conlogue’s persistent questioning during study 22 hall deprived them of educational opportunities that other 23 students, similarly situated at Pepperdine, received. 24 (Id. ¶ Coach Ryan assured White that he would soon have a coach (Id.) (Id.) Plaintiffs (Id.) On April 16, 2014, Coach Ryan held a team leadership meeting 25 where he spoke on the topic of lesbianism. 26 meeting, Coach Ryan stated that lesbianism was a big concern for 27 him and for women’s basketball, that it was a reason why teams 28 lose, and that it would not be tolerated on the team. 3 (Id. ¶ 27.) In the (Id.) 1 In May 2014, White met with Coach Ryan to discuss filing an 2 appeal to the NCAA that would allow her to play basketball in her 3 first year as a transfer student. 4 White that he would be starting the process right away. 5 Afterwards, however, White received no updates on the progress of 6 the appeal. 7 athletic director, Dr. Steve Potts (“Dr. Potts”), at Pepperdine, 8 and learned that Dr. Potts had not been informed of any appeal on 9 her behalf. 10 (Id.) (Id. ¶ 33.) Coach Ryan assured (Id.) On June 12, 2014 White met with the Pepperdine (Id. ¶ 36.) White alleges that Dr. Potts offered to process the appeal for 11 her, but that she still has not received a follow up on the status 12 of her appeal. 13 basketball player who transferred to Pepperdine was approved to 14 play in 2015 immediately after transferring despite the fact that 15 White was admitted to Pepperdine before the male player. (Id.) White further alleges that another male (Id.) 16 On June 4, 2014, Videckis complained to the coaching staff 17 that Karissa Scherer (“Scherer”), an athletic trainer, had been 18 asking Videckis inappropriate questions about dating women. 19 Additionally, Plaintiffs claim that Scherer falsely accused them of 20 breaking the training room rules. 21 that Coach Ryan accused her of lying when she complained about the 22 inappropriate questions. 23 admitted to Coach Ryan that she did ask Videckis inappropriate 24 questions about her sexual orientation, and Coach Ryan required the 25 athletic trainer to apologize to Videckis. 26 ignored Scherer’s accusations against Videckis for breaking the 27 training room rules. (Id.) (Id.) (Id. ¶ 34.) (Id.) Videckis alleges However, the next day Scherer (Id. ¶ 35.) Coach Ryan A Title IX investigation confirmed 28 4 1 that Scherer improperly changed the time records so that Videckis 2 and White appeared to arrive late to their training. 3 (Id.) Plaintiffs further allege that, in early July, Conlogue 4 falsely accused Plaintiffs of academic cheating. 5 Plaintiffs allege that there was no evidence to substantiate 6 Conlogue’s claim, and the charges were later dropped. 7 in July, Coach Ryan reached out to two of Plaintiffs’ teammates, 8 recommended that the teammates not live with Plaintiffs, and stated 9 that Plaintiffs were bad influences. (Id.) (Id. ¶ 41.) (Id.) Later One of those teammates 10 subsequently came forward to Plaintiffs, informing them that Coach 11 Ryan was trying to turn the other players on the team against them. 12 (Id.) 13 On August 26, 2014, Coach Ryan and another member of the 14 coaching staff asked two of Plaintiffs’ teammates whether 15 Plaintiffs were dating. 16 that the coaches had been asking their teammates about Plaintiffs’ 17 relationship status, White confronted Coach Ryan about the 18 questioning. 19 that the coaching staff had been asking teammates whether 20 Plaintiffs were dating. (Id.) (Id. ¶ 42.) When Plaintiffs found out During this meeting, White was able to confirm (Id.) 21 At some time during the semester, White raised her GPA to a 22 3.0, which under the team rules allowed her to attend study hall 23 for fewer hours. 24 immediately changed the team rule to require a minimum GPA of 3.2 25 instead of 3.0, in an effort to force White to interact with 26 Conlogue in study hall. 27 28 (Id. ¶ 39.) White alleges that Coach Ryan (Id.) In early September 2014, Conlogue and the coaching staff accused White of being absent from a required study hall and 5 1 punished White. 2 and Conlogue issued White’s punishment, Conlogue walked up to White 3 with a book White needed and slammed the book on the desk in front 4 of White. 5 (Id.) 6 (Id. ¶ 44.) (Id.) After the meeting where Coach Ryan That night, White attempted to commit suicide. In June 2014, Videckis reported to Scherer that she was 7 experiencing pain in her tailbone that she believed stemmed from 8 basketball training, but that the injury would not affect her 9 ability to play basketball. (Id. ¶ 48.) Videckis saw two separate 10 doctors, neither of whom restricted her ability to play basketball. 11 (Id.) 12 On September 9, 2014, Videckis informed Coach Ryan that she 13 would miss practice on September 12 because she was getting tested 14 for cervical cancer. 15 requested her gynecological records, but that she refused to give 16 Pepperdine access because those records were unrelated to her 17 ability to play basketball. 18 other women or men on the basketball teams were asked to provide 19 similar medical records. (Id. ¶ 53.) Videckis alleges that Scherer (Id. ¶ 54.) Plaintiffs allege that no (Id.) 20 On September 16, 2014, Videckis met with Dr. Green at the 21 Pepperdine Health Center, who told her that she was cleared for her 22 condition. 23 Videckis received an email from Scherer that stated Videckis would 24 not be cleared for participation unless she provided the athletic 25 medicine center with documentation from a spine specialist relating 26 to her tailbone injury. 27 28 (Id. ¶ 56.) After leaving her appointment that day, (Id. ¶ 57.) On September 17, Videckis called the health center to request documentation. (Id.) That same day, Videckis brought her “MRI, 6 1 diagnosis, and treatment of prescription” to the athletic training 2 room. 3 athletic trainers informing her that the documentation she provided 4 was insufficient, and that she needed to provide them with a 5 diagnosis and treatment plan. 6 Coach Ryan, telling him that she had given the trainers all of the 7 documentation the doctor’s office had on file for her. 8 Videckis requested Coach Ryan’s assistance in speaking with the 9 trainers to clear her for her tailbone injury, but Coach Ryan (Id. ¶ 58.) Afterwards, Videckis received emails from the (Id. ¶ 59.) Videckis spoke with (Id. ¶ 61.) 10 informed Videckis that he would not help her. 11 replied to the emails, informing the trainers that her diagnosis 12 was in the documentation she had provided, but received no 13 response. 14 Videckis (Id.) (Id.) On September 19, 2014, Videckis met with Dr. Potts, the 15 Pepperdine athletic director, and told him of her concerns 16 regarding unfair treatment by the women’s basketball staff. 17 Videckis told Dr. Potts that she felt that the coaching staff was 18 trying to keep her and White from playing, and furthermore that 19 they were trying to get Plaintiffs kicked out of the school. 20 ¶ 64.) 21 meeting and also that he yelled at her for bringing the issue to 22 his attention. 23 (Id.) (Id. Videckis alleges that Dr. Potts was very rude during the (Id.) That same day, Videckis called Coach Ryan and told him that 24 she was very unhappy with the way she had been treated. 25 Coach Ryan then told her that she would need to make a decision as 26 to whether she wanted to remain on the team by Sunday. 27 Videckis told him that she would need until Monday. 28 Monday, Videckis called Coach Ryan and told him that she needed 7 (Id.) (Id.) (Id.) On 1 more time. 2 her decision by 5pm that day; otherwise, he would tell Dr. Potts 3 that Videckis had quit voluntarily. 4 (Id.) In response, Coach Ryan told her that he needed (Id. ¶ 65.) Videckis sent Dr. Potts an email on September 24, stating that 5 she had not made a decision to quit, and that she would like to 6 speak with Dr. Potts later that week when she was back in town. 7 (Id. ¶ 66.) 8 concerns, the school had begun an investigation, and that until 9 then, as requested, Videckis would be relieved from activities 10 Dr. Potts replied, saying that due to Videckis’ having to do with the basketball team. 11 (Id. ¶ 67.) On November 7, 2014, Videckis received a letter from the Title 12 IX coordinator. 13 insufficient evidence to conclude that harassment or sexual 14 orientation discrimination had occurred, and further that according 15 to the team doctor, Dr. Green had not received the documentation 16 necessary to assess Videckis’s fitness to play basketball. 17 On December 1, 2014, Videckis sent the university a doctor’s note 18 stating that “[i]t is acceptable for [Videckis] to return to 19 basketball without restriction.” 20 White were ever cleared to play basketball. 21 (Id. ¶ 68.) The letter stated that there was (Id. ¶ 69.) (Id.) Neither Videckis nor (Id.) Plaintiffs previously filed a First Amended Complaint (“FAC”) 22 that included a discrimination claim under Title IX. 23 11.) 24 did not cover claims based on sexual orientation discrimination. 25 (Dkt. No. 13.) 26 asked for leave to amend their Title IX cause of action. 27 20.) 28 it was inclined to find that Title IX did cover the types of (Dkt. No. Pepperdine moved to dismiss the FAC and argued that Title IX Plaintiffs, in their opposition to the motion, (Dkt. No. The Court granted Pepperdine’s motion, although it noted that 8 1 actions alleged in the FAC. 2 filed a TAC. 3 (Dkt. No. 25.) Plaintiffs have now Plaintiffs’ TAC alleges seven causes of action: (1) violation 4 of the right of privacy under the California Constitution; (2) 5 violation of California Educational Code §§ 220, 66251, and 66270; 6 (3) violation of Title IX - deliberate indifference; (4) violation 7 of Title IX - intentional discrimination; (5) violation of Title IX 8 - retaliation for complaints against discrimination; (6) violation 9 of the Unruh Act, California Civil Code §§ 51 et seq.; and (7) 10 intentional infliction of emotional distress. 11 Pepperdine now moves to dismiss Plaintiffs’ third, fourth, and 12 fifth causes of action for failure to state a claim and moves to 13 dismiss the claim for prejudgment interest. 14 II. 15 (See generally TAC.) (See generally MTD.) LEGAL STANDARD A 12(b)(6) motion to dismiss requires the court to determine 16 the sufficiency of the plaintiff's complaint and whether or not it 17 contains a “short and plain statement of the claim showing that the 18 pleader is entitled to relief.” 19 Rule 12(b)(6), a court must (1) construe the complaint in the light 20 most favorable to the plaintiff, and (2) accept all well-pleaded 21 factual allegations as true, as well as all reasonable inferences 22 to be drawn from them. 23 F.3d 979, 988 (9th Cir. 2001), amended on denial of reh’g, 275 F.3d 24 1187 (9th Cir. 2001); Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th 25 Cir. 1998). 26 Fed. R. Civ. P. 8(a)(2). Under See Sprewell v. Golden State Warriors, 266 In order to survive a 12(b)(6) motion to dismiss, the 27 complaint must “contain sufficient factual matter, accepted as 28 true, to ‘state a claim to relief that is plausible on its face.’” 9 1 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 2 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 3 “[t]hreadbare recitals of the elements of a cause of action, 4 supported by mere conclusory statements, do not suffice.” 5 556 U.S. at 678. 6 cognizable legal theory or sufficient facts to support a cognizable 7 legal theory.” 8 1097, 1104 (9th Cir. 2008); see also Twombly, 550 U.S. at 561-63 9 (dismissal for failure to state a claim does not require the However, Iqbal, Dismissal is proper if the complaint “lacks a Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 10 appearance, beyond a doubt, that the plaintiff can prove “no set of 11 facts” in support of its claim that would entitle it to relief). 12 complaint does not “suffice if it tenders ‘naked assertion[s]’ 13 devoid of ‘further factual enhancement.’” 14 (quoting Twombly, 550 U.S. at 557). 15 plausibility when the plaintiff pleads factual content that allows 16 the court to draw the reasonable inference that the defendant is 17 liable for the misconduct alleged.” 18 as true “legal conclusions merely because they are cast in the form 19 of factual allegations.” 20 F.3d 1136, 1139 (9th Cir. 2003). 21 III. 22 A Iqbal, 556 U.S. at 678 “A claim has facial Id. The Court need not accept Warren v. Fox Family Worldwide, Inc., 328 DISCUSSION Pepperdine advances three main arguments in support of its 23 motion to dismiss Plaintiffs’ three Title IX causes of action: 24 first, that Title IX does not apply to claims based on sexual 25 orientation discrimination; second, that Plaintiffs’ allegations do 26 not support a Title IX claim based on gender stereotype 27 discrimination; and third, that the Title IX claims should be 28 dismissed because they are uncertain and not legally cognizable. 10 1 (MTD at 5-22, 24-25.) Pepperdine also contends that the fifth 2 cause of action, for retaliation under Title IX, fails because 3 Plaintiffs have not alleged any actionable retaliation. 4 22-24.) 5 prejudgment interest.” (Id. at Finally, Pepperdine moves to dismiss the “claim for (Id. at 25.) 6 A. 7 Title IX provides, in relevant part, that “[n]o person in the Plaintiffs’ Third, Fourth, and Fifth Claims Under Title IX 8 United States shall, on the basis of sex . . . be subjected to 9 discrimination under any education program or activity receiving 10 Federal financial assistance.” 11 enacted Title IX with the twin objectives of avoiding the use of 12 federal resources to support discriminatory practices and providing 13 individual citizens effective protection against those practices. 14 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998). 15 20 U.S.C. § 1681(a). Congress In interpreting Title IX, courts often look to interpretations 16 of Title VII for reference. 17 Pub. Sch., 503 U.S. 60, 75 (1992). 18 the legislative history of Title IX “strongly suggests that 19 Congress meant for similar substantive standards to apply under 20 Title IX as had been developed under Title VII.” 21 of Oregon, 698 F.3d 715, 724 (9th Cir. 2012). See, e.g., Franklin v. Gwinnett Cnty. The Ninth Circuit has held that Emeldi v. Univ. 22 Title IX’s prohibition of discrimination “on the basis of sex” 23 encompasses both sex - in the biological sense - as well as gender. 24 Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000). 25 Furthermore, discrimination based on gender stereotypes constitutes 26 discrimination on the basis of sex under Title VII. 27 Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989); Nichols v. 28 Azteca Rest. Enters., Inc., 256 F.3d 864, 874-75 (9th Cir. 11 Price 1 2001)(holding that discrimination against either a man or a woman 2 on the basis of gender stereotypes is prohibited). 3 Ninth Circuit held that a male restaurant employee who was 4 discriminated against at work for, among other things, walking 5 “like a woman” and not having sexual intercourse with a female 6 waitress friend had established an actionable claim for sexual 7 harassment under Title VII. 8 9 In Nichols, the Nichols, 256 F.3d at 874-75. Plaintiffs in this case argue that they have stated an actionable Title IX claim because Title IX covers sexual 10 orientation discrimination, and even if Title IX does not 11 explicitly cover sexual orientation discrimination, the actions 12 alleged in the TAC constitute gender stereotype discrimination. 13 (Opp’n to MTD, Dkt. No. 34, at 6-13.) 14 TAC alleges a straightforward claim of discrimination on the basis 15 of sex. 16 17 Further, they argue that the (Id.) 1. Sexual Orientation Discrimination This Court, in its prior order dismissing in part Plaintiffs’ 18 FAC, stated that “the line between discrimination based on gender 19 stereotyping and discrimination based on sexual orientation is 20 blurry, at best.” (Dkt. No. 25.) 21 argument, the Court concludes that the distinction is illusory and 22 artificial, and that 23 category distinct from sex or gender discrimination. 24 of discrimination based on sexual orientation are covered by Title 25 VII and IX, but not as a category of independent claims separate 26 from sex and gender stereotype. 27 orientation discrimination are gender stereotype or sex 28 discrimination claims. After further briefing and sexual orientation discrimination is not a Thus, claims Rather, claims of sexual 12 1 Other courts have acknowledged the difficulty of 2 distinguishing sexual orientation discrimination from 3 discrimination based on sex or gender stereotypes. 4 Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 291 (3d Cir. 2009) 5 (stating that “the line between sexual orientation discrimination 6 and discrimination ‘because of sex’ can be difficult to draw”); 7 Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005) 8 (acknowledging that it would be difficult to determine if an 9 actionable Title VII claim was stated when a plaintiff stated she See, e.g., 10 was discriminated against based on her sex, her failure to conform 11 to gender norms, and her sexual orientation, because “the borders 12 [between these classes] are so imprecise” (alteration in 13 original)); Centola v. Potter, 183 F. Supp. 2d 403, 408 (D. Mass. 14 2002)(acknowledging that “the line between discrimination because 15 of sexual orientation and discrimination because of sex is hardly 16 clear”). 17 sexual orientation discrimination is “difficult to draw” because 18 that line does not exist, save as a lingering and faulty judicial 19 construct. 20 Simply put, the line between sex discrimination and Pepperdine cites to opinions from various federal courts that 21 state categorically that sexual orientation discrimination is not 22 covered under Title IX. 23 Circuit has held only that “an employee’s sexual orientation is 24 irrelevant for purposes of Title VII,” and that “[i]t neither 25 provides nor precludes a cause of action for sexual harassment.” 26 Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1063 (9th Cir. 2002) (See MTD at 6-14.) 27 28 13 However, the Ninth 1 (en banc) (plurality opinion).1 2 Pepperdine relies, for the most part, dismiss analogous sexual 3 orientation-based claims in a cursory and conclusory fashion. 4 e.g., Johnson v. Eckstrom, No. C-11-2052 EMC, 2011 WL 5975039, at 5 *5 (N.D. Cal. Nov. 29, 2011) (stating, simply, that “neither Title 6 VII nor any other federal law protects against discrimination on 7 the basis of sexual orientation”). 8 of these cases, which do not fully evaluate the nature of claims 9 based on sexual orientation discrimination. 10 Furthermore, the cases upon which See, The Court rejects the reasoning In sexual orientation discrimination cases, focusing on the 11 actions or appearance of the alleged victim of discrimination 12 rather than the bias of the alleged perpetrator asks the wrong 13 question and compounds the harm. 14 orientation is irrelevant to a Title IX or Title VII claim because 15 it is the biased mind of the alleged discriminator that is the 16 focus of the analysis. 17 sexuality cannot be defined on a homosexual or heterosexual basis; 18 it exists on a continuum. 19 Contract of Bisexual Erasure, 52 Stan. L. Rev. 353, 380-81 (2000) 20 (discussing the “Kinsey scale,” which conceived of sexual 21 orientation as a continuum with six ratings). 22 of discrimination who should be forced to put his or her sexual 23 orientation on trial. A plaintiff’s “actual” sexual This is especially true given that See Kenji Yoshino, The Epistemic It is not the victim We do not demand of a victim of alleged 24 1 25 26 27 28 The concurring judges only joined in the result of the plurality opinion, as the concurrences would have found “actionable gender stereotyping harassment.” See Rene, 305 F.3d at 1068 (Pregerson, Trott, and Berzon, JJ., concurring); id. at 1069-70 (Graber, J., concurring) (finding facts indistinguishable from Oncale v. Sundowner Offshore Servs., Inc., 532 U.S. 75 (1998), where the Court held same sex harassment was covered by Title VII); id. at 1070 (Fisher, J., concurring). 14 1 religious discrimination, “Prove that you are a real Catholic, 2 Mormon, or Jew.” 3 victim of alleged racial discrimination prove he is black, it is 4 absurd to demand a victim of alleged sex discrimination based on 5 sexual orientation prove she is a lesbian. 6 turn a Title IX trial into a broad inquisition into the personal 7 sexual history of the victim. 8 as not only highly inflammatory and offensive, but also irrelevant 9 for the purposes of the Title IX discrimination analysis. 10 Just as it would be absurd to demand that a The contrary view would Such an approach should be precluded Therefore, the Court finds that sexual orientation 11 discrimination is a form of sex or gender discrimination, and that 12 the “actual” orientation of the victim is irrelevant. 13 impossible to categorically separate “sexual orientation 14 discrimination” from discrimination on the basis of sex or from 15 gender stereotypes; to do so would result in a false choice. 16 Simply put, to allege discrimination on the basis of sexuality is 17 to state a Title IX claim on the basis of sex or gender. 18 19 2. It is Gender Stereotype Discrimination It is undisputed that Title IX forbids discrimination on the 20 basis of gender stereotypes. 21 sweeps broadly. 22 beyond the day when an employer could evaluate employees by 23 assuming or insisting that they matched the stereotype associated 24 with their group, for ‘[i]n forbidding employers to discriminate 25 against individuals because of their sex, Congress intended to 26 strike at the entire spectrum of disparate treatment of men and 27 women resulting from sex stereotypes.’”) (quoting Los Angeles Dep’t 28 of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)). Gender stereotyping is a concept that See Price Waterhouse, 490 U.S. at 251 (“[W]e are 15 As 1 discussed above, discrimination based on gender stereotyping 2 encompasses sexual orientation discrimination. 3 Plaintiffs allege here that they were discriminated against 4 because of the Pepperdine women’s basketball staff’s belief that 5 Plaintiffs were lesbian. 6 stereotypes about lesbians and lesbianism formed the basis of the 7 staff’s harassment. 8 9 Plaintiffs also allege that the staff’s (TAC ¶ 19.) The type of sexual orientation discrimination Plaintiffs allege falls under the broader umbrella of gender stereotype 10 discrimination. 11 general, stem from a person’s views about the proper roles of men 12 and women – and the relationships between them. 13 based on a perceived failure to conform to a stereotype constitutes 14 actionable discrimination under Title IX. 15 Supp. 2d at 410 (“Conceivably, a plaintiff who is perceived by his 16 harassers as stereotypically masculine in every way except for his 17 actual or perceived sexual orientation could maintain a Title VII 18 cause of action alleging sexual harassment because of his sex due 19 to his failure to conform with sexual stereotypes about what ‘real’ 20 men do or don’t do.”). 21 Stereotypes about lesbianism, and sexuality in Discrimination See Centola, 183 F. Here, Plaintiffs allege that they were repeatedly harassed and 22 treated differently from other similarly situated individuals 23 because of their perceived sexual orientation. 24 and support staff repeatedly queried Plaintiffs about their sexual 25 orientation, their private sexual behavior, and their dating lives. 26 Plaintiffs allege that they were told lesbianism would not be 27 tolerated on the women’s basketball team. 28 allege that they were not cleared to play basketball because of 16 Coaches, trainers, Plaintiffs further 1 Pepperdine’s discriminatory views against lesbianism. 2 women’s basketball staff in this case had a negative view of 3 lesbians based on lesbians’ perceived failure to conform to the 4 staff’s views of acceptable female behavior, actions taken on the 5 basis of these negative biases would constitute gender stereotype 6 discrimination. 7 discrimination because they allege that Pepperdine treated them 8 differently due to their perceived lack of conformity with gender 9 stereotypes, and further that Pepperdine discriminated against them 10 11 12 If the Consequently, Plaintiffs have stated a claim for based on stereotypes about lesbianism. 3. Sex Discrimination In addition to stating a claim based on gender stereotyping 13 discrimination, Plaintiffs have stated a claim that they were 14 discriminated against because of their sex. 15 basis of sex can be defined as treating someone differently simply 16 because that person’s sex is different from a similarly situated 17 person of the opposite sex. 18 the “simple test of whether the evidence shows treatment of a 19 person in a manner which but for that person’s sex would be 20 different” (internal quotation marks omitted)); Oncale, 523 U.S. at 21 80 (describing the “critical issue” under Title VII as whether the 22 discrimination would have occurred if the sex of the victim had 23 been different). 24 Discrimination on the See Manhart, 435 U.S. at 711 (applying Here, Plaintiffs allege that they were told that “lesbianism” 25 would not be tolerated on the team. 26 dating females, instead of females dating females, they would not 27 have been subjected to the alleged different treatment. 28 have stated a straightforward claim of sex discrimination under 17 If Plaintiffs had been males Plaintiffs 1 Title IX. Cf. Latta v. Otter, 771 F.3d 456, 480 (9th Cir. 2 2014)(Berzon, J., concurring)(finding same-sex marriage bans were 3 facially discriminatory on the basis of sex because the bans 4 dictated who could marry who based on the sex of the marriage 5 participants). 6 This Court’s conclusion is in line with a recent Equal 7 Employment Opportunity Commission (“EEOC”) decision holding that 8 sexual orientation discrimination is covered under Title VII, and 9 therefore that the EEOC will treat sexual orientation 10 discrimination claims the same as other sex discrimination claims 11 under Title VII. 12 EEOC Appeal No. 0120133080, 2015 WL 4397641, at *10, (EEOC July 16, 13 2015) (holding that “allegations of discrimination on the basis of 14 sexual orientation necessarily state a claim of discrimination on 15 the basis of sex”). 16 show that the sexual orientation discrimination he or she 17 experienced was sex discrimination because it involved treatment 18 that would not have occurred but for the individual’s sex; because 19 it was based on the sex of the person(s) the individual associates 20 with; and/or because it was premised on the fundamental sex 21 stereotype, norm, or expectation that individuals should be 22 attracted only to those of the opposite sex.” 23 reasons, as well as for the reasons stated in this Order, this 24 Court agrees. 25 B. 26 Pepperdine further argues that Plaintiffs’ fifth cause of 27 Baldwin v. Anthony Foxx, Sec’y, Dep’t of Transp., The EEOC concluded that “[a]n employee could Id. For these Plaintiffs’ Title IX Retaliation Claim action, for retaliation under Title IX, must be dismissed because 28 18 1 Plaintiffs have not alleged facts establishing a prima facie case 2 of retaliation. 3 Under Title IX, “a plaintiff who lacks direct evidence of 4 retaliation must first make out a prima facie case of retaliation 5 by showing (a) that he or she was engaged in protected activity, 6 (b) that he or she suffered an adverse action, and (c) that there 7 was a causal link between the two.” 8 order to make out a prima facie case, a plaintiff “need only make a 9 minimal threshold showing of retaliation.” 10 Emeldi, 698 F.3d at 724. In Id. Here, Plaintiffs have clearly pled a plausible claim for 11 retaliation. 12 complained to the coaching staff and Pepperdine’s Title IX 13 coordinator about the harassment they suffered. 14 Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005) (“Retaliation 15 against a person because that person has complained of sex 16 discrimination is another form of intentional sex discrimination 17 encompassed by Title IX's private cause of action.”). 18 Plaintiffs allege various retaliatory actions they experienced as a 19 result of their complaints. 20 They allege that, ultimately, they were forced off the basketball 21 team and lost their scholarships. 22 Plaintiffs were engaged in protected activity. They See Jackson v. Furthermore, (See, e.g., TAC ¶¶ 34-36, 63-69.) Pepperdine argues that because Plaintiffs tried to hide their 23 relationship status, they therefore never could have made a 24 complaint about discrimination. 25 Plaintiffs clearly allege that they complained to the coaching 26 staff and school officials about the intrusive questioning and 27 harassment to which they were subjected. 28 may never have explicitly told school officials that they were This argument is without merit. 19 The fact that Plaintiffs 1 dating is irrelevant to whether they complained that they were 2 being harassed. 3 sexual orientation or relationship status improperly focuses the 4 inquiry on the status of the victim rather than the bias of the 5 alleged harasser, and imposes a burden that Title IX does not 6 contemplate. 7 Again, requiring that Plaintiffs disclose their C. Uncertainty of Plaintiffs’ Third, Fourth, and Fifth Causes of Action 8 9 Pepperdine asserts that because Plaintiffs have chosen to 10 plead their Title IX theories under three separate causes of 11 action, this format renders Plaintiffs’ Title IX claims “uncertain 12 and not legally cognizable.” 13 argument is unavailing in light of the liberal pleading standards 14 of Federal Rule of Civil Procedure 8. 15 have pled their Title IX claims as a single cause of action, the 16 fact that they included them as three separate causes of action 17 does not require dismissal. 18 that the complaint must contain “a short and plain statement of the 19 claim showing that the pleader is entitled to relief.” 20 Civ. P. 8(a)(2). 21 technical form is required” for pleadings, and further that “[a] 22 party may set out 2 or more statements of a claim or defense 23 alternatively or hypothetically, either in a single count or 24 defense or in separate ones.” 25 Plaintiffs’ third, fourth, and fifth claims are not “legally 26 uncognizable” or “uncertain,” and cannot be dismissed for such a 27 reason. 28 /// (See MTD at 24-25.) Pepperdine’s Although Plaintiffs could Under Rule 8, all that is required is Fed. R. In fact, Rule 8 expressly states that “[n]o Fed. R. Civ. P. 8(d). 20 Accordingly, 1 D. Prayer for Prejudgment Interest 2 Pepperdine also moves to dismiss Plaintiffs’ prayer for 3 prejudgment interest. Strictly speaking, Plaintiffs’ request for 4 prejudgment interest is contained in their “Relief Requested” 5 rather than pled as a separate claim, and thus a motion to dismiss 6 under Rule 12(b)(6) is the improper vehicle to use in arguing 7 against prejudgment interest. 8 moved to strike the prayer for prejudgment interest. 9 Civ. P. 12(f). Instead, Pepperdine should have See Fed. R. The Court will treat Pepperdine’s motion as a 10 motion to strike with respect to the prayer for prejudgment 11 interest. 12 Plaintiffs argue that, at this stage of the proceedings, 13 because the nature of their claims remain “in flux,” the Court 14 should defer ruling on the issue of prejudgment interest until a 15 later point in the case. 16 Pepperdine’s substantive arguments. 17 Plaintiffs have not responded to California Civil Code Sections 3287 and 3288 govern awards of 18 prejudgment interest. 19 entitled to prejudgment interest on their state law claims because 20 the damages involved are for “the intangible, noneconomic aspects 21 of mental and emotional injury.” 22 Assn. v. City of Los Angeles, 26 Cal. 3d 86, 103 (1979). 23 the damages involved in the present case may go beyond mental and 24 emotional injury. 25 actions, Plaintiffs were forced off the women’s basketball team, 26 had their scholarships revoked, and withdrew from the school. 27 ¶¶ 76-79, 136.) 28 tangible and economic, and thus eligible for prejudgment interest Pepperdine contends that Plaintiffs are not Greater Westchester Homeowners However, Plaintiffs allege that, due to Pepperdine’s (TAC Damages from these types of injuries may be 21 1 under Section 3288. 2 interest will not be stricken. 3 IV. 4 Accordingly, the request for prejudgment CONCLUSION For the foregoing reasons, the Court DENIES Pepperdine’s 5 motion to dismiss Plaintiffs’ third, fourth, and fifth causes of 6 action and prayer for prejudgment interest. 7 8 9 IT IS SO ORDERED. 10 11 12 Dated: December 15, 2015 DEAN D. PREGERSON United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22