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Title IX Deliberate Indifference Claims Based on Post-Notice Retaliation Allegations Survive Dismissal

Doe v. Ohio University

Case No. 2:21-cv-858 (S.D. Ohio Mar. 28, 2022)

By Dan Fotoples, J.D., M.A., Senior Content Developer, TNG Consulting

A student at Ohio University, Plaintiff (Doe) reported that another student (Smith) sexually assaulted her while she was intoxicated and unable to consent. Throughout the investigation process, Plaintiff alleged significant and continuing retaliation from peers, which caused emotional distress, physical health, and mental health issues when the University failed to address the ongoing harassment. After graduating, Plaintiff sued the University, asserting violations of Title IX.


Plaintiff filed this lawsuit in February 2021, asserting violations of Title IX. Plaintiff based her Title IX claim on deliberate indifference and hostile environment grounds. Defendant filed a motion to dismiss in June 2021.


According to the Complaint, Plaintiff attended a house party in February 2019 and became so intoxicated that she vomited multiple times, was unable to talk or walk without assistance, and lost consciousness. When Plaintiff regained consciousness, she awoke in Smith’s bed while he was having sexual intercourse with her.

Plaintiff went to the hospital for a rape examination the next day and reported the incident to Defendant’s Title IX Office a few days later. Plaintiff also lodged a criminal complaint.

Defendant began investigating Plaintiff’s Title IX complaint in April 2019. While the investigation was ongoing, Plaintiff attended several classes with Smith’s friends. They called Plaintiff a liar and a racist, spread rumors about her, and physically poked and prodded her. A few of her classmates witnessed the harassment and asked the professor to step in and stop it.

Plaintiff reported suffering extreme stress and anxiety due to the harassment and missing classes out of fear of experiencing further harassment. She also had trouble sleeping and lost weight, eventually suffering a hernia and undergoing emergency surgery.

Plaintiff reported the harassment to Defendant, and Defendant allegedly refused to investigate her complaint or talk to any students in Plaintiff’s classes unless and until Plaintiff specifically identified each person and each instance of harassment. The professor also did not intervene. Eventually, Defendant removed Plaintiff from the class.

Additionally, Smith’s friends created a social media group dedicated to posting photos of Plaintiff whenever she was on campus, contributing to Plaintiff suffering rapid weight loss and depression. Smith’s friends then spread rumors that Plaintiff had cancer.

In Fall 2019, the harassment continued following the conclusion of the investigation. Students approached Plaintiff on campus and said, “Aren’t you that girl who was raped and is a total mess now?” Her grades and mental health continued to suffer. Plaintiff and her father complained to Defendant, but allegedly Defendant failed to act in response.

Although the decision-makers originally found Smith responsible for violating University policy, an appeal overturned that decision in September 2019. At that time, Defendant rescinded its No Contact Directive. Smith was nonetheless criminally charged with rape and was subject to a protective order requiring him to stay away from Plaintiff. Plaintiff alleged that Smith routinely violated the protective order. As a result, the prosecutor secured a warrant for Smith’s arrest. In July 2020, Smith pled guilty to a charge of sexual battery against Plaintiff.

Plaintiff alleged that Defendant’s actions and inaction led to further bullying and harassment from other students, continuing to call her names, spread rumors, and openly tell her, “Even the school knows you’re full of shit.” Plaintiff still suffers from depression due to the harassment. The impact of the harassment delayed her graduation and the start of her career.


The Court outlined the Kollaritsch[1]test, requiring Plaintiff to plead (1) an incident of actionable sexual harassment; (2) the school’s actual knowledge of it; (3) a further incident of actionable sexual harassment, such that the additional harassment would not have happened but for the deliberate indifference of the school’s response; and (4) that the Title IX injury is attributable to the post-notice harassment.

The Court held that Plaintiff satisfied the Kollaritsch test. After reporting a sexual assault, Plaintiff alleged specific details of ongoing harassment, lasting for months during and after Defendant’s investigation. The Court pointed to Plaintiff’s repeated efforts to report the ongoing harassment. Although Defendant argued that Plaintiff failed to give notice because she did not provide the names of her harassers, the Court held that the notice standard does not require a university to know every detail of the harassment, simply that Plaintiff is the subject of harassment. The Court also found there were sufficient allegations of deliberate indifference, citing Defendant’s alleged repeated refusal to step in and address peer harassment as well as violations of the protective order. Defendant’s action to remove Plaintiff from the classroom was not enough to override its other alleged inactions at this stage of the case.

The Court denied Defendant’s motion to dismiss.


  • An institution’s obligations to respond to harassment do not end with its response to the initial harassment. Failing to address and remedy additional harassment, including retaliation or violations of no contact directives, may result in liability.
  • Institutions must raise awareness of their retaliation prohibition by including it in the Notice of Investigation and Allegations (NOIA) and should review the definition of retaliation when meeting with parties and witnesses. Parties and witnesses should also know how to report retaliation and how the institution may respond to retaliation.
  • Faculty and staff must receive training to recognize and report retaliation. Folding retaliation into your existing faculty and staff training is a simple solution because reporting expectations for retaliation should mirror reporting expectations for incidents of sexual harassment.
  • Institutions do not need to use their formal Title IX grievance processes for retaliation allegations. Instead, institutions may use an alternate process such as a student conduct process or employee conduct process. Early reporting may also enable an institution to use informal measures to stop the retaliatory behavior before it escalates and requires a formal resolution. As the court here emphasized, institutions do not need to know every detail of the retaliatory harassment to take appropriate action.
  • The Kollaritsch requirement for additional exposure to a hostile environment in the Sixth Circuit may be headed to the Supreme Court in the guise of Doe v. Fairfax, a similar case which is up for certiorari at present.

Read more Campuses and the Courts blogs here.

[1] 944 F.3d 613.