Parts of Title IX lawsuit against Baylor dismissed by judge

Will Barksdale | Multimedia Journalist

By Phoebe Suy | Staff Writer

A U.S. District Court dismissed parts of former Baylor student Dolores Lozano’s lawsuit against the university Thursday evening, denying her Title IX, negligence and gross negligence claims but allowing her to amend the claims for negligent hiring, retention and supervision.

Lozano filed a Title IX lawsuit against Baylor in October 2016, in which she accused the university of failing to identify and eliminate a hostile environment after she was allegedly physically assaulted by former football player Devin Chafin. The original lawsuit claimed Title IX violations and gross negligence.

“Baylor is pleased that the Court has granted the University’s motion to dismiss relating to the plaintiff’s initial allegations under Title IX and of negligence and gross negligence,” the university said in a statement. “We look forward to aggressively responding to the remaining allegation of negligent hiring and training once formally filed by the plaintiff.”

Florida attorney Ricky Patel, who represents Lozano, was not available for comment Friday.

The court agreed with Baylor that Lozano’s Title IX and negligence claims were subject to Texas’ two-year statute of limitations. Lozano’s claims occurred no later than the spring of 2014 and she reported the alleged assault to school officials more than two years before she sued, the university argued.

According to Judge Pitman, federal law states that the limitation period begins “the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured.”

Lozano’s complaint alleged she was assaulted multiple times by Chafin, whom she was romantically involved with at the time. The first instance of alleged assault took place in March 2014 following a verbal argument after which Lozano said Chafin began to raise his voice and threaten her. He then slapped, kicked and slammed Lozano against the wall, the lawsuit alleges, and proceeded to strangle her until she began to lose consciousness.

Lozano said she suffered physical injuries from the assault, including severe bruising and abrasions.

Lozano reported the assault to Baylor assistant football coach Jeff Lebby shortly afterward. Lebby said he would speak to Chafin, but the suit alleges “no known further reasonable action was taken by Lebby and no report was filed regarding the incident.”

According to Lozano, the assault was then reported to then acrobat and tumbling head coach LaPrise Harris-Williams. At the time, Lozano was the manager of the team and Harris-Williams was her supervisor. Harris-Williams reported the incident to her superior, associate athletics director Nancy Post.

The complaint states Post told Harris-Williams that “being involved with incidents like Lozano’s were not [Harris-Williams’] responsibility.”

Post was not willing to help Lozano, the suit alleges, so Harris-Williams turned to Baylor sports chaplain Wes Yeary. Lozano said Yeary gave her literature “to assist her in her spiritual self-worth and preservation.”

Lozano stated she was assaulted a second time by Chafin in April 2014 outside of Scruffy Murphy’s, where Chafin slammed Lozano’s arm against a vehicle. Lozano said she reported the assault to Baylor’s on-campus health clinic to address her physical injury and was referred to the counseling center.

“After being physically assaulted on two separate occasions and receiving no support or guidance from [Baylor], [Lozano] fell into a state of hopelessness and despair which began to affect her studies,” the lawsuit stated.

She alleges Chafin assaulted her a third time in the same month in which she reached out again to Williams and Yeary.

According to Baylor, Lozano’s claims were time-barred and did not invoke Title IX because they were non-sexual assaults. They further stated the new claims alleging negligent hiring, retention and supervision did not constitute a viable claim under Texas law.

In Thursday’s ruling, the court stated each of Baylor’s arguments regarding the university’s motion to dismiss were appropriate.

“Because her arguments rely exclusively on when she learned of Baylor’s obligations under Title IX, the court cannot find that Plaintiff’s heightened-risk claims accrued late enough to bring her action within the applicable statute of limitations,” the order stated.

The court further ruled Lozano’s heightened-risk claims did not apply under the doctrine of fraudulent concealment. This doctrine requires plaintiffs to prove that defendants “actually knew a wrong occurred, had a fixed purpose to conceal the wrong and did conceal the wrong.”

The court order noted that the Plaintiff never alleged any facts or attempted to suggest Baylor “deceitfully concealed its wrongdoing.”

“The doctrine of fraudulent concealment, however, requires [Lozano] to show that [Baylor] did in fact conceal the wrong in question — that is, that she was in fact deceived into thinking that she was not injured by Baylor’s response to her reports of sexual assault,” the court said in the order. “As Plaintiff has not made any allegations or argument on that point, the Court must conclude that she is not entitled to the protection of the fraudulent concealment doctrine.”

While the court concluded Lozano’s Title IX claims exceeded the statute of limitations, it also said Lozano’s negligence and gross negligence claims were not necessarily time-barred.

The court concluded Baylor “could not be held responsible for the first or second assaults.” However, the court said it was conceivable that given the proximity, recency, frequency, similarity and publicity, the third assault was “foreseeable by Baylor.”

“The Court, though troubled by Plaintiff’s allegations and injuries, cannot conclude that Baylor owed Plaintiff a general duty under Texas negligence law,” the ruling stated.

The ruling discusses the rule regarding special relationships such as those between employer and employee or parent and child, in which there exists a duty on actors to control third person conduct. Lozano’s lawsuit argued such a special relationship exists between Baylor and its students, but the court disagreed.

According to Judge Pitman, intermediate Texas courts have declined to define a special relationship between private university and adult students. Citing a 2003 ruling in Freeman v. Busch, the court said “no special relationship exists between a college and its own students because a college is not an insurer of the safety of its students.”

“Because the Court is bound to follow state negligence law, it concludes that Baylor had no duty to Plaintiff and therefore cannot be held liable for either negligence or gross negligence,” the court ruled.

Lozano’s lawsuit alleges Baylor breached its duty as an employer to “adequately hire, train, and supervise employees,” specifically Post, Yeary and Lebby, concerning Title IX policies and procedures.

Lozano alleges Baylor failed to “properly hire, train and retain officers, staff and faculty as to proper methods to deal with reports of assaults, investigate same and accommodate victims accordingly.”

In doing so, Lozano said Baylor failed to comply with federal and state law and in turn caused her to suffer damages as a direct result.

The court granted Lozano’s motion to amend her claim for negligent hiring, retention and supervision. The amended complaint must be filed by Oct. 13, 2017.

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