Katharine Rouse v. Duke University; Larry Moneta

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1059
KATHARINE ROUSE,
Plaintiff - Appellant,
v.
DUKE UNIVERSITY; LARRY MONETA,
Defendants - Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cv-00549-CCE-JEP)
Submitted: June 4, 2013 Decided: July 25, 2013
Before NIEMEYER, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert C. Ekstrand, Stefanie A. Smith, EKSTRAND & EKSTRAND, LLP,
Durham, North Carolina, for Appellant. Paul K. Sun, Jr., Dixie
T. Wells, James M. Weiss, ELLIS & WINTERS LLP, Raleigh, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In February 2007, Katharine Rouse was raped at an off-
campus party that she was attending as an undergraduate student
at Duke University. After Rouse reported the incident, Duke
transported her to the hospital and contacted the Durham Police
Department, who arrested Michael Burch and charged him with the
rape. Burch eventually pleaded guilty to the charge.
Conducting a brief investigation, Duke concluded that
although a Facebook invitation for the party had listed a campus
fraternity as a host, the fraternity had no involvement. It did
learn that the party had taken place in a house owned by a
significant financial benefactor and leased to Duke students.
Thereafter, it ended the investigation and did not sanction any
fraternity or student.
Although Duke allowed Rouse to take a temporary leave-of-
absence, Rouse was not able to complete her courses from home
and, instead, took a personal leave-of-absence for the remainder
of the semester. She returned, however, to the campus the next
fall. Later that fall, she informed Duke that she was
transferring to another school, and Rouse’s academic dean sent
her a form letter confirming the transfer request and noting
that the request forfeited her eligibility to seek readmission
to Duke.

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Rouse commenced this action alleging that Duke was liable
for “fail[ing] to investigate or initiate disciplinary
proceedings against either the Duke fraternity, its members, or
the other Duke students who attended the party” and for “barring
her from ever applying to re-enroll at Duke,” in violation of
Title IX. She also alleged state law claims for breach of
contract, intentional infliction of emotional distress, and
negligence. The district court granted Duke’s motion for
summary judgment, and we affirm.
I
Katharine Rouse enrolled at Duke University in the fall of
2006. Several months later, however, in January 2007, Rouse
emailed her academic dean, Dean Diane McKay, to discuss her
transfer to a school closer to her home in New York. On Dean
McKay’s suggestion, Rouse and the Dean met the following week to
discuss whether a transfer was in Rouse’s best interest. Rouse
expressed an interest in transferring because her mother was
sick. Dean McKay’s contemporaneous notes reflect that she
cautioned Rouse, explaining Duke’s rule that “if students enroll
as full-time students elsewhere, they are ineligible to re-
enroll at Duke.” Rouse testified later that she could not
remember whether Dean McKay told her about the transfer policy.
The policy was published in its Bulletin as follows:

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If a student enrolled at Duke subsequently transfers
to another institution as a degree-seeking student,
the student will be ineligible to re-enroll as an
undergraduate at Duke.
Dean McKay recommended that Rouse should explore all of her
options to make sure that a transfer would be the right one.
She also noted that there was a possibility of appealing the re-
entrance bar, but there could be no guarantees.
Several weeks after Rouse’s meeting with Dean McKay, on the
evening of February 10, 2007, Rouse attended an off-campus party
at a private house rented by six Duke students. One of the
residents at the house was a member of the Phi Beta Sigma
fraternity, a fraternity formally recognized by Duke. At the
party, Michael Burch followed Rouse into a bathroom and raped
her. Rouse thereafter returned to her dormitory, and residents
of the dormitory reported the rape to the Duke University
Police. The Duke Police persuaded Rouse to go to the emergency
room. After learning that the attack occurred off campus, the
Duke Police immediately notified the Durham Police Department.
With the assistance of the Duke Police, the Durham Police
investigated, leading to the arrest of Burch. He eventually
pleaded guilty to the rape. Burch was not formally affiliated
with Duke, although he played basketball at a campus gymnasium.
After the rape, Rouse went home to New York, and Dean McKay
sent notes to each of Rouse’s professors to allow her to make up

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any missed work. Dean McKay also spoke with Rouse’s mother and
later with Rouse to discuss academic options for the remainder
of the semester. Rouse had hoped to complete at least some of
her courses remotely, in part because she had been considering
transferring to Columbia University, which required that
transfer students complete a full academic year at their
original institution. Duke, however, did not allow Rouse to
complete her courses remotely because of the nature of the
courses, but Dean McKay was able to secure a waiver from
Columbia with respect to its requirement. Rouse thereupon
decided to take a personal leave-of-absence for the spring,
intending to return to Duke in the fall. Duke credited her with
all of her tuition and pro-rated a portion of her room and
board.
Rouse returned to Duke in the fall of 2007, and Dean McKay
and the Registrar’s office arranged for her to retain the same
priority in class registration as if she had not taken a leave
of absence. Rouse, therefore, was able to register for all of
the classes that she wanted.
Within a few weeks of returning, however, Rouse again
considered transferring because being on campus brought back bad
memories, and she was uncomfortable with her interaction with
other students. Accordingly, in late October, she sent Dean
McKay an email stating, “I am planning on transferring, this

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time for real, next semester.” She asked to meet with Dean
McKay soon because some schools had November application
deadlines.
Rouse and Dean McKay met on November 8, and Rouse told Dean
McKay that she was going to transfer. Dean McKay’s notes of the
meeting indicate that Rouse told the Dean that she “intends/is
fully determined to transfer to Hofstra or Fordham (or possible
FIT) at semester’s end.” Rouse testified that, at that time,
she had no intention of returning to Duke, and she did not
engage Dean McKay on that subject. Dean McKay’s contemporaneous
notes also state that Rouse “knows that she cannot apply to
return to Duke,” but Rouse testified that Dean McKay did not
tell her about the policy at that meeting.
The following day, November 9, Rouse emailed Dean McKay a
formal statement, drafted for Rouse by Dean McKay, of her
intention to be “voluntarily transferred out of Duke University
and into Fordham University as of the Spring 2008 semester.”
Thereafter, she sent Dean McKay another email about her transfer
applications to the other schools, asking Dean McKay to send
forms to Hofstra, Stony Brook, and Fordham. Dean McKay acted in
response to Rouse’s request by sending letters of recommendation
to each of these schools, describing Rouse as “bright,
assertive, and creative.” Duke also sent the schools copies of
Rouse’s transcripts. Duke processed Rouse’s withdrawal as

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“voluntary” and noted that anticipated return was “not
applicable.”
On December 18, 2007, Dean McKay sent Rouse a form letter
used by all academic deans reiterating Duke’s policy about
transfers:
I am writing to confirm that I have received your
written request to be voluntarily withdrawn from Duke
University so that you may complete your undergraduate
degree elsewhere. Accordingly, we have processed this
request and informed the relevant offices on campus
that you will not be returning to Duke.
Please know that effective August 28, 2006, Trinity
College policy is that students who withdraw from Duke
in order to attend another institution as a degree-
seeking student may not re-enroll here for
undergraduate study. Therefore, you have forfeited
your eligibility to seek readmission to Duke. If you
have any further questions about this policy, please
contact us at the Academic Advising Center . . . .
Dean McKay had used the same form letter to advise numerous
other students of the policy, both male and female, when told
that they were transferring from Duke. As Dean McKay said, “It
was my practice, and to my knowledge that of the other deans, to
send the letter when the student confirmed his or her intent to
withdraw from Duke and transfer.”
Rouse said that when she received the letter, she was
surprised and angry, but she acknowledged that she did not
contact anyone at Duke to ask questions about the policy because
she “did not have a desire to go back.” Instead, Rouse

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transferred to Hofstra in the spring of 2008 and graduated from
that institution in May 2011.
According to Rouse, in early 2009, she considered coming
back to Duke and discussed the possibility with her parents.
Rouse’s father then called Duke and asked to talk to its
President, Richard Brodhead. Vice President Larry Moneta,
however, met with Rouse’s father in March 2009, and Rouse’s
father used the meeting only to ask Vice President Moneta for
help in securing a meeting with President Brodhead. Moneta
agreed to talk to President Brodhead, but he never met with
Rouse’s father.
Rouse commenced this action in state court on December 17,
2010, naming Duke University and Vice President Moneta as
defendants. She alleged that the defendants conducted an
inadequate investigation of the rape incident, created or
allowed a hostile environment, and discriminated against her in
denying her return to Duke. She claimed that these facts
amounted to a violation of Title IX and supported state law
claims for breach of contract; negligent infliction of emotional
distress; intentional infliction of emotional distress; and
negligence.
The defendants removed the case to federal court and then
filed a motion for judgment on the pleadings. The district
court granted the motion as to all claims against Vice President

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Moneta because the were barred by the applicable statute of
limitations. As to Duke, the court denied the motion to dismiss
the claim for “hostile educational environment,” in violation of
Title IX, and denied the motion to dismiss the common law claims
“to the extent those claims arise from the sending of the
December 18, 2007 letter.” It granted the motion to the extent
that the common law claims arose from other facts because they
were time barred. Finally, the court granted the motion on all
other claims.
At the close of discovery, the district court granted
Duke’s motion for summary judgment on the remaining claims.
This appeal followed. Neither party has requested oral
argument.
II
Rouse contends first that she is entitled to a jury trial
on her Title IX claim, including an argument that Duke failed to
investigate her rape and “excluded her from its educational
program and denied her of its benefits by refusing to make
reasonable modifications to its policies that were necessary to
accommodate her inability to remain on campus as a result of the
rape and Duke’s indifference to it.”* Duke responds that the
* To establish a Title IX sexual harassment claim, Rouse
would have to show that:

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district court correctly granted it summary judgment “because
[the Title IX] claim is time barred, because Duke cannot be held
liable under Title IX for the off-campus rape of a student by an
unaffiliated third party, because Duke did not sexually harass
Ms. Rouse, cause any sexual harassment, or make her more
vulnerable to it, and because Duke’s response to the rape was
not clearly unreasonable.”
The statute of limitations for Rouse’s Title IX claim is
three years, as borrowed from state law. See Wilmink v. Kanawha
Cnty. Bd. of Educ., 214 F. App’x 294, 296 n.3 (4th Cir. 2007)
(per curiam); N.C. Gen. Stat. Ann. § 1-52(16). Because Rouse
commenced this action on December 17, 2010, the only alleged
events falling within the applicable three-year period of
limitations are (1) Dean McKay’s December 18, 2007 form letter
informing Rouse that she could not seek re-enrollment at Duke
(1) she was a student at an educational institution
receiving federal funds, (2) she was subjected to
harassment based on her sex, (3) the harassment was
sufficiently severe or pervasive to create a hostile
(or abusive) environment in an educational program or
activity, and (4) there is a basis for imputing
liability to the institution.
Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (en
banc). An institution can be liable for deliberate indifference
where “at a minimum, [it] cause[s] students to undergo
harassment or make them liable or vulnerable to it.” Davis v.
Monroe Cnty. Bd. of Educ., 526 U.S. 629, 645 (1999) (internal
quotation marks and alterations omitted).

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and (2) Rouse’s father’s inability to secure a meeting with
President Brodhead. But neither of those acts contributed to
the hostile educational environment based on sex on which Rouse
bases her Title IX claim. See Nat’l R.R. Passenger Co. v.
Morgan, 536 U.S. 101, 114-17 (2002); Gilliam v. S.C. Dep't of
Juvenile Justice, 474 F.3d 134, 140 (4th Cir. 2007); see also
Jennings, 482 F.3d at 695.
Dean McKay’s form letter, confirming Rouse’s request to
transfer, was routinely used by Duke’s academic deans and was
based on a generally applicable transfer policy, that was
publicly available on the internet. Moreover, Dean McKay’s form
letter was substantially similar to letters that she sent to
other students who had stated they were transferring from Duke.
In sum, the undisputed facts establish that Duke followed its
ordinary policy in sending the letter in response to a transfer
request.
Moreover, the letter directed Rouse to contact the Academic
Advising Center by phone or email if she had questions about
Duke’s transfer policy. Rouse did neither. And although Rouse
alleges that Duke misapplied the transfer policy to her because
she was not enrolled at another school at the time she received
the letter, Rouse did not request to re-enroll at Duke before
she transferred. Indeed, Rouse testified that at the time she
received the letter she “did not have a desire to go back” and

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did not even think about returning to Duke until more than a
year later. At that point, she had already been enrolled at
Hofstra. Thus, the letter did not contribute to the hostile
environment claim.
That leaves Rouse’s father’s inability to secure a meeting
with Duke’s President Brodhead. Rouse asserts that although
Vice President Moneta promised to confer with President
Brodhead, President Brodhead never agreed to meet with her
father, and she was therefore unable to seek re-enrollment. But
Rouse does not assert that she was unable otherwise to
communicate with Duke or to request an exception to Duke’s
generally applicable transfer policy. Indeed, she identifies no
evidence suggesting that she ever expressed her desire to re-
enroll to Duke. A university president sending a high-level
designee to a meeting and himself not meeting does not
constitute a contributing act to a hostile environment claim.
Because the acts not barred by the statute of limitations
do not rise to the level of acts contributing to a Title IX
claim, the district court properly dismissed Rouse’s Title IX
claim.
III
As to the state law claims for breach of contract,
intentional infliction of emotional distress, and negligence,

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the district court dismissed them as being barred by the
applicable statute of limitations except for the claims that
might arise out of Dean McKay’s December 18, 2007 letter. Rouse
did not appeal this application of the statute of limitations.
She also did not appeal the dismissal of her claim for negligent
infliction of emotional distress.
As to the letter’s support of a breach-of-contract claim,
Rouse contends that “[a] reasonable jury could conclude that
Duke breached its educational contract . . . by applying its
provisions governing students who enroll as degree-seeking
students in another institution” to her when she was not
enrolled or admitted at another institution. Rouse also argues
that “in misapplying the transfer policy to her . . . Duke
breached an implied covenant of good faith and fair dealing.”
We disagree. Duke merely followed its standard procedure of
sending a confirming letter after it received a formal
expression of an intent to transfer, which Rouse pursued by
attending Hofstra. Indeed, she did not even think of re-
enrolling at Duke until the spring of 2009, after she had
already been enrolled at Hofstra for a year. Accordingly, we
affirm the district court’s dismissal of the breach-of-contract
claim.
As to Rouse’s claim for intentional infliction of emotional
distress, the district court concluded:

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[T]he record does not establish any basis for finding
that Ms. Rouse suffered severe emotional distress as a
result of Dean McKay’s letter. . . . [T]here is no
evidence that Dean McKay coerced, duped, or tricked
Ms. Rouse into transferring from Duke and forfeiting
her ability to reenroll. . . . Dean McKay’s actions do
not amount to extreme and outrageous conduct.
The record supports these conclusions, and we therefore affirm
the dismissal of that claim.
Finally, as to Rouse’s negligence claim, the district court
concluded:
Since Ms. Rouse told Dean McKay that she wanted to
transfer, Dean McKay had no reason to believe Ms.
Rouse would want to re-enroll at Duke, and Ms. Rouse
did not at the time have any intention to return to
Duke, Ms. Rouse cannot show that Duke violated any
duty of care in sending the letter or that the letter
caused her any reasonably foreseeable injury.
These conclusions are fully supported by the record and again,
we affirm the district court’s dismissal of that claim.
Rouse’s claim for punitive damages obviously cannot stand
with the dismissal of her other claims for compensatory damages.
See N.C. Gen. Stat. § 1D-15(a).
* * *
For the foregoing reasons, we affirm the judgment of the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED

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