United States District Court, D. Minnesota
Elizabeth M. Shank, Plaintiff,
Carleton College, Defendant.
Barbara P. Berens, Erin K. F. Lisle, and Carrie L. Zochert,
Berens & Miller, P.A., Minneapolis, MN, for Plaintiff
Elizabeth M. Shank.
R. Somermeyer and Jacqueline A. Mrachek, Faegre Baker Daniels
LLP, Minneapolis, MN, for Defendant Carleton College.
OPINION AND ORDER
C. TOSTRUD UNITED STATES DISTRICT JUDGE
Shank is a graduate of Carleton College. Shank claims to have
been raped twice by co-students while attending Carleton,
once during her first year and again during her second year.
This case is not about whether Carleton is liable for the
rapes; it is about Carleton's response to the rapes.
Shank alleges that Carleton's response was deliberately
indifferent and deprived her of access to educational
benefits or opportunities provided by the college. Shank
asserts federal claims under Title IX and the Americans with
Disabilities Act, and she asserts claims under Minnesota law
for negligence, intentional infliction of emotional distress,
and punitive damages. Carleton has filed a summary-judgment
motion. Because Shank has not identified evidence that would
permit a reasonable juror to find in her favor on essential
elements with respect to each of her claims, Carleton's
summary-judgment motion will be granted.
night of Saturday, September 10, 2011, during the first days
of her first year as a student at Carleton College, Shank was
raped in her dormitory by "Student One," another
student who lived on her floor; Shank and Student One were
intoxicated after attending an on-campus party. C. 31-33; S.
342-43. What began as consensual kissing became a
sexual assault and rape. C. 33; S. 343. A day or two after,
Student One sent Shank a private message on Facebook saying
he "didn't seek consent from [Shank] and [he was]
sorry about that, really sorry." C. 315, 621.
following Monday, Shank sought assistance from Carleton's
Student Health and Counseling Center ("SHAC"). C.
33-34, 581. Shank requested a "token" or
"travel voucher" for free transportation to
Northfield Hospital so that she might get a "rape
kit" and undergo a sexual assault forensic exam. C. 34.
A receptionist told Shank that the SHAC does not "give
out the tokens for services that Student Health and
Counseling can provide." Id. However, Shank did
not receive any forensic testing at the SHAC. C. 39-40. Shank
did not go to Northfield Hospital to obtain forensic testing
because she "was scared . . . didn't know where it
was," and "thought if [she] went to the health
center on campus they would help [her] get there." C.
next day (Tuesday), Shank went to see a counselor on campus.
C. 35-36. Shank told the counselor, Drew Weis, that she
"didn't want to file a complaint at that
point." C. 36. Weis "explained that [she]
didn't have to go to police" and could report the
assault to Carleton. C. 36. Shank understood that Weis was
"a confidential resource at Carleton," meaning he
was obligated to maintain confidentiality regarding what
Shank told him during their visit. C. 37. Shank also
understood that Weis was required to report the assault for
"statistical purposes," but that Shank's name
would not be attached to it. Id.; C. 614.
early October 2011, a Carleton student submitted a Community
Concern Form to the Dean of Students Office about an
unnamed first-year student who "had cuts and marks on
their wrist that looked like they may have been
self-inflicted." S. 1; see C. 105. Joe Baggot,
then Associate Dean of Students and First-Year Class Dean, C.
98, S. 236, followed up with the student who submitted the
Community Concern Form and asked if the student might be
available to discuss the information reported in the form.
105-06; S. 2. On October 14, that student emailed Baggot to
"let [him] know that the name of the student... is Liz
Shank." S. 2. In his deposition, Baggot testified that
he did not follow up with Shank at that time because
"the nature of the concern, a student who is cutting,
did not rise to a level for [him] to call the student over to
have a meeting about it." C. 106. Baggot explained that
during the course of his career, "this type of activity
has changed from definitely a concern about a suicide attempt
to an understanding, from health care professionals, that
cutting, in and of itself, is not a suicide attempt and may
be a coping mechanism for stress, anxiety, depression - all
kinds of things." C. 104-05.
in October 2011, Baggot learned that Shank was having
difficulty in a math class. See S. 234. Responding
to a request from the Dean of Students Office seeking
"progress reports about students who are having
significant difficulty in your classes," S. 235
(emphasis omitted), Shank's math professor reported on
October 23 that she had received a "[b]ad F on [an]
exam." S. 234-35. The professor wrote:
Class attendance fairly regular. Apparently she had a
difficult time earlier in the term for reasons unrelated to
the class, and fell behind. (She also stopped handing in
homework at that point, for several weeks.) We had a
conversation about what she would have to do to succeed and
whether she had enough energy and motivation to catch up; she
was going to consider it. The other day her adviser contacted
me and asked whether from my perspective it was OK for her to
drop the class, so apparently that's what she is now
planning (even though I haven't yet
"officially" heard it from Liz herself).
S. 235. The next day, an administrative assistant emailed
Shank on Baggot's behalf, writing: "Joe Baggot, your
class dean, would like to meet with you to discuss your
progress and identify resources which may help you
successfully pass the class. Please call me . . .so we can
find a time soon." S. 237. The record does not indicate
that Shank followed up or met with Baggot in response to this
message. See C. 107-108.
was hospitalized from February 12 to 15, 2012, after making
suicidal statements while under the influence of alcohol and
marijuana. S. 4-8. The record contains no specific
description of the circumstances in which Shank made these
statements. However, a "discharge summary" medical
record documents several statements Shank made to a treating
physician while hospitalized regarding the incident and
surrounding circumstances. S. 6-8. Though she initially
denied "to EMS" providers that she had made
suicidal statements, Shank eventually admitted making those
statements. S. 6. Shank "denie[d] having anhedonia or
crying spells and denie[d] having suicidal ideations, and she
[said] that it only happened occasionally, like a couple of
days ago." Id. Shank told her doctor that she
had been experiencing panic attacks about once every two
weeks "since November 2011." Id. Shank
also reported to her doctor "that she was raped while
intoxicated with alcohol in September 2011, by another
student at the college and the student is living in the same
dorm in the same floor and he is also on the track and field
team, and he has posters of him all over the school." S.
8. Shank also admitted attempting suicide "while
intoxicated with alcohol in September 2011, by cutting,"
though the treating doctor noted "apparently this was a
very superficial cut." Id.
same day Shank was first hospitalized (February 12), a
student submitted a Community Concern Form to the Dean of
Students Office relaying an anonymous report that Shank
"had a history of self harm and was involved in a sexual
situation Fall term with another student where there was
sexual intercourse and no consent was given." C. 615.
During her hospitalization, Shank's parents traveled to
Minnesota, see C. Ill. 652, and Baggot met with them
in person on February 14, see C. 110, 115, 616.
During that meeting, Baggot learned from Shank's parents
that she "had been sexually assaulted and/or raped
during fall term 2011." C. 616. Baggot described what
Shank's parents told him during their meeting in a
Community Concern Form:
The parents said that they did not know the name of the young
man that assaulted Liz. But, their daughter had told them
that he lived on her floor and that he was on a team. The
parents were very clear with me that their daughter
understood how to file a complaint with the College if she
wanted to do so and that their daughter certainly did NOT
want to do so. A decision they respected. The parents stated
that the reason they were telling me is that they wanted me
to be prepared to support their daughter who would be
returning to campus soon (from hospitalization).
Id. Baggot met with Shank the next day (on February
15), and documented in that same Community Concern Form that
she had "confirmed all of the above." Id.
He also documented that Shank was "pleased" to
learn that Carleton was not investigating the rape.
Id. Baggot's Community Concern Form was shared
with Associate Dean of Students Julie Thornton and
Carleton's Title IX Coordinator, Joanne Mullen.
Id. After receiving the form, Mullen wrote to
Thornton: "Hi Julie, I understand Liz's reluctance
to NOT take action, but we also have an obligation to make
sure that our other students are safe. Let's talk about
[how] we wish to proceed on this one." Id.
continued to meet regularly with Baggot after she returned to
campus and during the 2012 winter term. C. 44, 48. As part of
their "working relationship," Baggot "agreed
not to discuss the traumatic event of last fall" with
Shank. C. 659. If Shank wanted to discuss the incident with
Baggot, she "would let him know." C. 59. Shank also
attended group-therapy sessions at the SHAC and met weekly
with a private therapist in Northfield. C. 51; Lisle Supp.
Decl. Ex. 61 [ECF No. 308]; see also C. Ill. 647
(email from Baggot documenting his "expectation that
[Shank] engage [in] appropriate health care for at least the
remainder of the academic year").
early April 2012, Shank asked about changing dorm rooms.
See C. 50-51. Baggot facilitated Shank's
request, instructing her how to request and obtain a room
change and briefing the responsible Carleton staff so that
Shank "[would] not be asked questions about why [she]
want[ed] to move." C. 50, 595. Shank then moved from her
room in Goodhue Hall to a single room in Myers Hall. C. 28,
50; S. 243-44. After the move, Shank emailed Baggot thanking
him for his help and explaining:
This move has literally been amazing for me. It's like
I'm in an entirely different point in my life already and
it feels incredible. I'm using the time I've gained
from taking two classes [as part of a reduced schedule] to
focus on truly getting better for the long term ... I
don't think I would have been able to do so well if I
were still in my old dorm, so this was crucial. Thanks again.
April 19, 2012, a Community Concern Form was filed with the
Dean of Students Office identifying Student One by name as
the perpetrator of a sexual assault, and Carleton was able to
connect this report to Shank's September 8, 2011 rape. C.
617. The form was filed by a member of a student group called
Campus Advocates Against Sexual Harassment, of
"CAASHA," but Shank participated in the drafting
and submission of the form. Id.; C. 58. The form
described that "[a]n incident of sexual assault occurred
between [Student One] and a female member of the same grade
level. There was alcohol involved with both parties." C.
617. Though the form did not mention Shank, the date of the
assault, or where the assault occurred, Associate Dean
Thornton nonetheless was able to deduce that Shank was the
victim of the assault described in the form. Id. In
an email forwarding the Community Concern Form, Thornton
added that Student One "is a first-year student, living
in Goodhue, and a member of the track team," facts she
knew already about Shank's rapist. Id. Mullen
replied to Thornton's message, writing "Ok . .
.it's making sense," suggesting that she also
identified Shank as the victim of the sexual assault
described in the form. Id. Cathy Carlson, the Dean
of Students for juniors and seniors, C. 135, followed up with
the student (CAASHA member) who submitted the form, S. 254.
Carlson then emailed Thornton, Baggot, and Weis to summarize
what she had learned from that student and to "delegate
the next steps based on the knowledge I have gleaned from
this case." S. 254. Carlson wrote that the "reason
this is coming forward ... is because Liz is concerned that
[Student One] may be an RA [or resident assistant] next
year." Id.; see C. 58, 661. Carlson explained
her understanding that "[a]t this point in time Liz does
not want to go through the formal process, but she does want
someone [sic] she is uncomfortable with the potential of him
being in a leadership position." S. 254. Carlson also
recounted explaining to the reporting student "that the
college must respond when we have this much information
regarding an alleged sexual misconduct case."
Id. Carlson then asked Thornton to contact Student
One and Baggott to contact Shank. Id. Shank was not
told at that time of the possibility that Carleton might
proceed with a complaint against Student One even if she
decided not to. S. 255-56.
week later, on May 1, 2012, Amy Sillanpa, Carleton's
Associate Director of Residential Life and Title IX Deputy,
met with Shank to discuss whether she wanted to "go
forward with a complaint." S. 256, 330. After the
meeting, Sillanpa described being distressed (Sillanpa wrote
that she was "freakin' out") because Student
One had been hired to work as an RA during the next academic
year. S. 255. Sillanpa reported that Shank was "still
thinking about what she wants to do for sure," but that
she wanted a Sexual Misconduct Support Advisor assigned to
assist her with writing a statement. Id. That same
day, Carlson agreed to serve as Shank's Sexual Misconduct
Support Advisor. S. 255; C. 59, 137. Shank and Carlson met in
person "from time to time" during May 2012 and
exchanged numerous emails. C. 143; see C. 62. In a
May 11 email to Sillanpa, Carlson reported that she and
Mullen had met together with Shank. S. 325. Carlson wrote
that Shank was "still in limbo about what she is
planning to do," but that "she definitely needs
some space to make her decision." Id. Shank
testified that she felt "the pressure [was] on for [her]
to file a complaint after [the meeting with Carlson and
Mullen]." C. 62 ("Q: Did [Mullen] say that [you
really need to file a complaint] or is that how you felt? A:
Felt. That's how I understood it."). Shank also
testified that she recalled Mullen "saying we need to
protect other women." C. 63.
May 16, Shank remained uncertain about whether she would file
a complaint or a statement. Id. That day, Shank
emailed Carlson explaining that the statement was proving
difficult to write and asking: "Do I definitely need to
do this? I mean, do I still have any choice to back out, or
is it too late for that since the college is involved?"
C. 677. Carlson responded: "If you cannot write a
statement, do not write a statement. Whatever you indicate
you would like to do is absolutely fine." C. 676.
Carlson also explained to Shank that, regardless of whether
she submitted a statement, Carleton was likely to move
forward based on the Community Concern Forms and other
information that had been submitted regarding the incident.
Id. On May 18, Shank submitted a two-page statement
describing her recollection of the rape. C. 618-20. At the
time, Shank described how "writing this all out has
definitely been beneficial for my healing process, though, so
I am grateful for that." C. 679. Though Carlson told
Shank that if she "wish[ed] to articulate in writing
what [she] believe[d would] be an appropriate sanction, [she]
should do so," C. 66, and though Shank understood that
she had that opportunity, she did not provide a recommended
sanction. C. 66-67 ("[W]hat I wanted was for him to get
expelled, but I didn't want him to think that I was the
reason he got expelled. ... I didn't want to have a
target on my back."); see also C. 143
(testimony from Carlson that Shank "never expressed to
me that she wanted to have him suspended or expelled during
this [May 2012] timeframe").
and Thornton determined that a complaint would "go
forward" with Carleton as the complaining party, a
procedure not contemplated explicitly by its
sexual-misconduct policy at that time. C. 307-08;
see C. 557-70 (contemplating that the victim is the
complainant). In reaching the decision to proceed in this
way, Mullen consulted with counsel. C. 307-08. Mullen was to
"put together an investigative report, and present that
report" at a hearing before the Community Board of
Sexual Misconduct ("the Board"). C. 295-96;
see C. 299 (describing the investigation process of
gathering documentation, interviewing witnesses, and
preparing a memo), C. 610-22 (Mullen's report of the
sexual-misconduct investigation). The report Mullen prepared
concluded that "since [Student One] remembered so little
of the evening . . . Shank's retelling" of the
events in question was "generally accepted" and
that "there appears to be no dispute that at some point
Shank did not give consent." C. 612.
the hearing, Carlson submitted additional information on
Shank's behalf to the Board. C. 689. That information
included a statement entitled "Sexual Misconduct
Finding/Sanctions" that read:
Liz trusts that the SMRB will consider all aspects of the
case and make a determination about the finding and sanction
which are consistent with other Sexual Misconduct cases. Liz
encourages the SMRB to consider whether or not [Student One]
is an appropriate choice as an RA position. Regardless of the
finding Liz Shank would like to have closure regarding this
incident. This could be in the form of a mediated
conversation between Student One and Liz concerning the
nature of future interactions at Carleton.
Id. The idea of a "mediated conversation"
originated with Carlson. C. 153-55 ("Q: And was this,
the idea of the mediated conversation, something Liz told you
or that you just said, 'Here's an option if she's
going to have closure'? A: Here's an option for
closure."). Carlson forwarded a copy of what she
submitted to the Board to Shank on May 29. C. 688.
hearing on Carleton's complaint against Student One
occurred on May 30, 2012. C. 575; see C. 624-27. The
Board found, by a preponderance of the evidence, that Student
One violated Carleton's sexual-misconduct policy and
sanctioned him. C. 575-76. Student One's sanctions
included requirements that he: (1) remain on disciplinary
probation until June 15, 2013, meaning he "must remain
in good standing with the College academically and
socially" or he would risk "severe and immediate
consequences, which the [B]oard recommend[ed] to be
suspension"; (2) abide by a no-contact order and
agreement; (3) "[i]f Shank is still interested in a
mediated conversation," then the Board "support[ed]
this conversation" taking place; (4) resign his RA
position, "[a]ttend regular and ongoing
counseling," including at least two sessions during the
summer months, to address "the variables surrounding
this case; sex and healthy relationships, consent, alcohol
use and abuse, and personal responsibility," submit a
"thoughtful" letter "requesting to return to
Carleton that demonstrates an understanding of [his] past
actions and their affects"; and (5) continue with
counseling through the SHAC or a local provider upon his
return to campus in fall of 2012. Id. Student One
also was required to sign a release of information
authorizing counselors to share records with the Dean of
Students "during the summer and fall term." C. 576.
That Student One's sanctions did not include either
expulsion or suspension was unusual. S. 350-52 (discussing
Carleton report on sexual-misconduct incidents and that
Student One's sanctions arguably were inconsistent with
two other cases where students violated the sexual-assault
policy and were suspended for one year); C. 152 (Carlson
testifying that "[b]ased on what [she] had learned,
[she] thought he should have been suspended"); C. 288
(Carleton official testifying that she was not aware of other
cases where a student was found in violation of the
sexual-misconduct policy but was not suspended or expelled).
Shank was permitted to know the details of Student One's
no-contact order, and she was informed of the possibility of
a mediated conversation, because these aspects of Student
One's sanctions pertained to her. See C. 704
("[T]here were eight individual sanctions/requirements
listed in [Student One's] determination letter. The two
that are related to you are listed below, others are private
and need to remain that way to protect his private student
record."); S. 441. Neither Student One nor Carleton
appealed the sanctions. See S. 350. After learning
that Student One had not been expelled or suspended, Shank
asked if she could appeal the Board's decision. C. 69.
Carlson told Shank that she could not appeal because she was
not the complainant. Id.
and Student One returned to Carleton in the late summer of
2012 to begin their second years, and on October 15, 2012,
Shank and Student One met in person. C. 76. Shank received
conflicting advice about whether this meeting was wise.
Shank's therapist "wasn't thrilled with the
idea," and her mother "also didn't think it was
a good idea" and tried to talk her out of it. C. 75;
see C. 383-84 (Shank's mother's testimony
that she thought the meeting "was a bad idea"). In
preparation for the meeting, Shank prepared
"guidelines" for the conversation. See S.
444-45; C. 710-11. Carlson reviewed and commented on the
guidelines Shank prepared. S. 444. "There were
plans" for Carleton officials to meet before with
Student One, but "he could not meet," and no
meeting between Carleton officials and Student One occurred
before his in-person meeting with Shank. C. 163. Shank and
Student One met in Thornton's office, which was adjacent
to Carlson's office. C. 76. Shank told Carlson that she
refused to meet with Student One if anybody else was present,
and no Carleton official attended the meeting. Id.
Shank was told she could "knock on the wall or bump the
wall" to Carlson's office if she felt a need for
assistance, and Carlson would "come right over." C.
164. Immediately after the meeting, Shank and Student One
jointly requested that the no-contact order imposed as a
sanction on Student One be lifted, and Carleton complied the
next day. C. 716; S. 449. In her deposition, Carlson
testified that, with hindsight, she found it strange that a
person who had been raped would want to meet with her rapist,
but that "[a]t the time," she did not have a
feeling that this was a bad idea because Shank "was very
confused as to what exactly happened" and she didn't
know if Shank "would have called it a rape at that
time." C. 154. Carlson testified that she "felt
like [Shank] seemed like she was in a good place to be able
to . . . make that determination to have that
conversation." C. 162. Shank testified that she
"trusted the wrong people, like Cathy [Carlson] and
Julie [Thornton]" in deciding to go forward with the
meeting. C. 75-76.
Saturday, April 6, 2013, Shank was raped by "Student
Two," a senior who lived in the same dormitory as Shank.
C. 77. Shank went to Student Two's dormitory room to
admonish him for his predatory behavior toward other women.
C. 79, 745-47. Shank was intoxicated. C. 746. Student Two
also had been drinking but was "[n]ot too drunk."
Id. The two talked for a time, and as Shank
described it: "The entire night I was trying to make it
clear to him that this wasn't okay. And now, after I
thought I got through to him so he wouldn't mess with
other girls' bodies and minds, he was doing the same
exact thing to me." Id. Shank suspected that
Student Two had drugged her because, as she explained it in
her deposition, things were spinning and she "went from
being furious to, like, euphoric." C. 79.
met with Carlson the following Monday. Id. She
testified that she went into this meeting "want[ing] to
file a formal complaint" but that Carlson "talked
[her] out of it" and convinced her to file a Community
Concern Form instead. C. 77. In her deposition, Shank
recounted what she recalled Carlson saying:
And, so, it was-this was a really rough time. I don't-I
just remember her saying, like, you have to focus on school.
Like, you're going to be suspended. Like, you can't
file a complaint right now. And, like, you know, he's
going to be, like, off campus in two months anyway. Like,
maybe you should consider, like, taking a medical leave since
you're, like, behind in your classes and, like, all this
C. 79. (Carlson says she told Shank that "if she
doesn't want to go forward, if she doesn't want to do
anything with this, she does not have to; that she should
continue to focus on her overall health and well-being so she
can graduate. . . . But I was not telling her she should not
go through the complaint process. I want that clear." C.
168.) Shank emailed Carlson on April 11, writing: "I
don't think I can handle having my name attached to
anything involving [Student Two] right now," and
"[t]his seems like a really complex situation, and I
think the best thing right now might be to distance ourselves
from him . . .I'm just really worried about school right
now and I don't think letting this distract me any more
than it already has would be good for anyone." C. 720.
In reply to Shank's April 11 email, Carlson wrote:
"No need to apologize. You are right, you need to focus
on your homework and your personal health!" Id.