Legal Intelligencer article by: Aleeza Furman, Litigation Reporter, Legal Intelligencer

U.S. District Judge Gene Pratter of the Eastern District of Pennsylvania agreed with the plaintiff. A Montgomery County private college has successfully fought off allegations that it failed to properly respond to a student’s alleged sexual assault and that it sought to retaliate against her for her report.

On Feb. 11 a jury in the U.S. District Court for the Eastern District of Pennsylvania found in favor of Manor College on claims of both deliberate indifference and retaliation. The jury reached that conclusion despite its use of a plaintiff-favoring standard for establishing whether or not retaliation occurred.

Attorneys for Manor College and the Jane Doe plaintiff disputed how causation should be determined in a Title IX case, with the defendant advocating for a “but for” standard and the plaintiff arguing for a “motivating factor” standard.

“The court pointed out that there has been no real direction in the Third Circuit as to that question,” said Lamb McErlane’s Rocco Imperatrice III,  who represented Manor College, with co-counsel Kathleen Bell.

In its trial memo, Manor College argued that the standard established in cases of employment retaliation should apply.

“It has long held that plaintiffs bringing retaliation claims under Title VII must prove that ‘prohibited activity had a determinative effect on the decision to’ commit adverse action against a plaintiff, or ‘that retaliation was the real reason for the adverse employment action,’” the memo said.

But the plaintiff said the Supreme Court found that Title IX retaliation splits from Title VII when it comes to determining causation, writing in its trial brief that “A plaintiff may demonstrate causation in a retaliation case through a variety of circumstantial evidence, including temporal proximity between the adverse action and the protected activity, a pattern of animus that follows after protected activity, or by other circumstantial evidence that reflects on the defendant’s motivation or intent.”

U.S. District Judge Gene Pratter of the Eastern District of Pennsylvania agreed with the plaintiff on the standard.

With Pratter’s decision, Doe only had to demonstrate that her report of the alleged sexual assault was a factor in later disciplinary action the school took against her—in this case Doe’s removal from the school’s dormitory.

Even with that standard, however, the five-day trial ended with the jury finding no evidence that Manor College disciplined Doe because of her report.

Imperatrice said that the defense presented the jury with a list of the infractions Doe had committed that resulted in the disciplinary action against her, demonstrating that her dismissal from the dorm was not related to her assault report.

As for the count that the school was deliberately indifferent to Doe’s sexual assault allegations, Imperatrice said Manor College demonstrated that it went beyond what was required of it to respond to Doe’s claims after the incident, including contacting the police, providing transportation for her to make her statement, conducting hearings and providing counseling.

Doe had alleged in her complaint that Manor College responded to her claims with by conducting a “sham hearing” and did not take action to address her alleged assailant’s continued proximity to her on campus.

Doe was represented by Linda M. Correia and Lauren A. Khouri of Correia & Puth, and Scott M. Pollins at Pollins Law Firm. Plaintiffs counsel did not respond to requests for comment.

The case is captioned Doe v. Manor College.

Read the article here on Law.com /Legal Intelligencer.

Lamb McErlane attorney Jake Becker also assisted with this case.