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Shank v. Carleton College

United States District Court, D. Minnesota

August 22, 2019

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.

          Sean R. Somermeyer and Jacqueline A. Mrachek, Faegre Baker Daniels LLP, Minneapolis, MN, for Defendant Carleton College.



         Elizabeth 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.


         On the 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.[2] C. 31-33; S. 342-43.[3] 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.

         The 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. 35.

         The 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.

         Around early October 2011, a Carleton student submitted a Community Concern Form[4] 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.

         C. 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.

         Later 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.

         Shank 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.

         On the 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.

         Shank 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").

         In 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.

C. 597.

         On 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.[5] 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.

         One 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.

         As of 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").

         Mullen 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.

         Before 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.

         The 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.

         Shank 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.

         On 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.

         Shank 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 stuff.

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. ...

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