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Johnston v. University of Pittsburgh of the Commonwealth System of Higher Education

United States District Court, W.D. Pennsylvania

March 31, 2015

SEAMUS JOHNSTON, Plaintiff,
v.
UNIVERSITY OF PITTSBURGH OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION d/b/a UNIVERSITY OF PITTSBURGH, ERIC KINSEY, MARK A. NORDENBERG, JEM SPECTAR, MATTHEW UPDYKE, NANCY TURNER, DANIEL W. DUNN, PAUL J. EASH, DOES 1 THROUGH 10, Defendants

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For SEAMUS JOHNSTON, Plaintiff: Howard H. Stahln, LEAD ATTORNEY, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, DC; Ilona M. Turner, LEAD ATTORNEY, Sasha Jean Buchert, Transgender Law Center, Oakland, CA; Jesse R. Loffler, Mark Siegmund, PRO HAC VICE, Fried, Frank, Harris, Shriver & Jacobson LLP, New York, NY.

For UNIVERSITY OF PITTSBURGH OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, doing business as UNIVERSITY OF PITTSBURGH, doing business as UNIVERSITY OF PITTSBURGH, Defendant: Martha Hartle Munsch, LEAD ATTORNEY, Reed Smith, Pittsburgh, PA; Patrick T. Noonan, LEAD ATTORNEY, Pittsburgh, PA; Kim M. Watterson, Reed Smith LLP, Pittsburgh, PA.

For ERIC KINSEY, MARK A. NORDENBERG, MATTHEW UPDYKE, NANCY TURNER, DANIEL W. DUNN, PAUL J. EASH, JEM SPECTAR, Defendants: Martha Hartle Munsch, LEAD ATTORNEY, Reed Smith, Pittsburgh, PA; Kim M. Watterson, Reed Smith LLP, Pittsburgh, PA.

For DOES 1 THROUGH 10, INCLUSIVE, Defendant: Martha Hartle Munsch, LEAD ATTORNEY, Reed Smith, Pittsburgh, PA.

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MEMORANDUM OPINION

KIM R. GIBSON, UNITED STATES DISTRICT JUDGE.

I. Introduction

This case arises from Plaintiff Seamus Johnston's allegations that Defendants discriminated against him based on his sex and his transgender status[1] by prohibiting him from using sex-segregated locker rooms and restrooms that were designated for men. Although the parties have submitted lengthy briefs and have advanced numerous arguments, this case presents one central question: whether a university, receiving federal funds, engages in unlawful discrimination, in violation of the United States Constitution and federal and state statutes, when it prohibits a transgender male student from using sex-segregated restrooms and locker rooms designated for men on a university campus. The simple answer is no.

Pending before the Court in this matter is Defendants' motion to dismiss (ECF No. 9) the second amended complaint (ECF No. 7) pursuant to Federal Rule of Civil Procedure 12(b)(6). Thus, the issue this Court must decide is whether Plaintiff has stated a cognizable claim of discrimination on the basis of sex under the Fourteenth Amendment to the United States Constitution and Title IX of the Education Amendments.[2] The Court finds that Plaintiff has failed to allege a plausible claim for relief as a matter of law. Accordingly, and for the reasons explained below, the Court will GRANT Defendants' motion to dismiss.

II. Jurisdiction

The Court has jurisdiction over the federal constitutional and statutory claims pursuant to 28 U.S.C. § § 1331, 1343 and 42 U.S.C. § 1983. The Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. Venue is proper under 28 U.S.C. § 1391(b) because a substantial portion of the events giving rise to the claims occurred in the Western District of Pennsylvania.

III. Background

Plaintiff alleges the following facts in his second amended complaint, which the

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Court will accept as true for the purpose of deciding the pending motion to dismiss. Plaintiff identifies as a transgender male. (ECF No. 7 ¶ ¶ 1, 18). According to Plaintiff, " although he was assigned the sex of female at birth, he is legally, socially, and medically recognized as a man." ( Id. ¶ ¶ 1, 18). Plaintiff understood his male gender identity[3] at a very early age, informing his parents that he was a boy at age 9. ( Id. ¶ 20). In May 2009, Plaintiff transitioned to living in accordance with his male gender identity and began holding himself out as a male in all aspects of life. ( Id. ¶ 21).

Beginning in August 2010, Plaintiff underwent counseling related to his gender identity and was diagnosed by his psychotherapist with Gender Identity Disorder (" GID" ).[4] ( Id. ¶ 22). In August 2011, Plaintiff began hormone treatment for his GID in the form of testosterone injections.[5] ( Id. ¶ 26).

Beginning in 2009, as part of Plaintiff's transition to living as a male, he " amended his identity documents and records to reflect his male gender identity." ( Id. ¶ 27). In 2010, Plaintiff obtained a common law name change to " Seamus Samuel Padraig Johnston." ( Id. ¶ 28). In October 2011, Plaintiff amended the gender marker to male on his Pennsylvania driver's license. ( Id. ¶ 29). In July 2011, Plaintiff registered with the Selective Service. ( Id. ¶ 30). In February 2012, Plaintiff amended the gender marker to male on his United States passport. ( Id. ¶ 31). In November 2013, Plaintiff amended the gender marker to male in his Social Security record. ( Id. ¶ 32).

Plaintiff attended the University of Pittsburgh at Johnstown (" UPJ" or " University" ) as an undergraduate Computer Science major for five semesters from 2009 to 2011. ( Id. ¶ 7). Plaintiff received an REB Commuter Scholarship, a four-year scholarship covering full tuition, fees, and books, which he maintained for the entire time he was enrolled at UPJ. ( Id. ¶ ¶ 35-36).

When Plaintiff applied for admission to UPJ in March 2009, he listed his sex as " female" on his application form. ( Id. ¶ ¶ 33-34). However, when Plaintiff began attending classes at UPJ in August 2009, and at all times thereafter, Plaintiff " consistently lived as male." ( Id. ¶ ¶ 37-38). In August 2011, Plaintiff requested that UPJ change the gender marker to male in his school records.[6] ( Id. ¶ 39). In the fall of 2011, Plaintiff presented UPJ with a

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notarized affidavit regarding his name change, and UPJ changed the name on his student records to " Seamus Samuel Padraig Johnston." ( Id. ¶ ¶ 40-41).

While enrolled as a student at UPJ, Plaintiff consistently used the men's restrooms on campus. ( Id. ¶ 42). During the spring 2011 semester, Plaintiff enrolled in a men's weight training class, which was attended only by men. ( Id. ¶ 43). Plaintiff used the men's locker room for the men's weight training class throughout the spring 2011 semester. ( Id. ¶ 44). Plaintiff again enrolled in a men's weight training class for the fall 2011 semester, and again began using the men's locker room. ( Id. ¶ 45). Plaintiff used the locker room approximately five times between the end of August and mid-September without incident. ( Id. ).

However, on September 19, 2011, Plaintiff met with Teresa Horner, Executive Director of Health and Wellness Services at UPJ, who informed Plaintiff that he could no longer use the men's locker room. ( Id. ¶ ¶ 46-47). Instead, Plaintiff agreed to use a unisex locker room at the Sports Center normally reserved for referees. ( Id. ¶ 47). On September 26, 2011, Jonathan Wescott, UPJ Vice President of Student Affairs, informed Plaintiff that " he would be allowed to use the men's locker room if his student records were updated from female to male." ( Id. ¶ 50). On September 29, 2011, Marylin Alberter, UPJ Registrar, informed Plaintiff that, in order to change the sex designation on his student records, Plaintiff must provide either a court order or a new birth certificate reflecting Plaintiff's current gender. ( Id. ¶ ¶ 51-52). On October 19, 2011, Plaintiff registered a complaint with Jem Spectar, UPJ President, to protest his exclusion from the men's locker room. ( Id. ¶ 57). Spectar responded by a letter dated October 21, 2011, confirming that, in order for Plaintiff to have access to the men's locker room, he must officially change his gender in UPJ's records by presenting a court order or birth certificate. ( Id. ¶ 58).

In October 2011, Plaintiff began reusing the men's locker room, using the locker room six times between October 24, 2011, and November 14, 2011, without incident. ( Id. ¶ 59). On November 16, 2011, the campus police issued a citation to Plaintiff for disorderly conduct because he used the men's locker room. ( Id. ¶ 60). Despite receiving this citation, Plaintiff continued to use the men's locker room. ( Id. ¶ 61). On November 21, 2011, Plaintiff received a second citation for disorderly conduct for using the men's locker room. ( Id. ¶ 62). During this confrontation, Campus Police Chief Kevin Grady informed Plaintiff that, if he continued to use the men's locker room, he would be arrested and taken into custody. ( Id. ¶ 62). On November 28, 2011, Jacob W. Harper, Coordinator for the UPJ Office of Student Conduct and Conflict Resolution, issued an interim persona non grata against Plaintiff, barring him from the Sports Center due to his continued use of the men's locker room. ( Id. ¶ ¶ 63, 65). Additionally, on November 21, 2011, Harper notified Plaintiff that disciplinary charges had been filed against him and that he was required to attend a disciplinary hearing on November 23, 2011, which was subsequently rescheduled for December 2, 2011. ( Id. ¶ 64).

On November 28, 2011, Plaintiff again used the men's locker room, and Campus Police took Plaintiff into custody and issued another disorderly conduct citation. ( Id. ¶ 66). On December 2, 2011, at a disciplinary hearing, Plaintiff was found guilty of three charges resulting from alleged violations of the Student Code of Conduct, and was instructed that he was

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not to use any male locker rooms or restroom facilities on campus. ( Id. ¶ 68). As a result of the findings at the disciplinary hearing, several sanctions were imposed against Plaintiff, including a required counseling assessment, disciplinary probation for approximately one year, and exclusion from all male-designated campus facilities until Plaintiff graduated from UPJ. ( Id. ¶ 69).

Nevertheless, on December 7, 2011, Plaintiff used a men's restroom in the Wellness Center to change his clothes, and Campus Police confronted Plaintiff, informing him that he was not to use any men's restrooms on campus. ( Id. ¶ 67). Then, on December 15, 2011, Plaintiff used a men's restroom in Biddle Hall, an academic building on the UPJ campus. ( Id. ¶ 70). Officer Matthew Updyke confronted Plaintiff, reminded Plaintiff that he was not permitted to enter any men's restrooms on campus, and informed Plaintiff that he intended to file a complaint with the University Hearing Board. ( Id. ¶ 70). On December 20, 2011, Harper informed Plaintiff that, due to his use of the men's restrooms on December 7 and December 15, Plaintiff would be placed on interim disciplinary suspension and barred under an interim persona non grata from all UPJ property pending an adjudicatory hearing. ( Id. ¶ 71). A disciplinary hearing was held on January 24, 2012, before a panel of students, who found Plaintiff guilty of exhibiting disorderly, lewd, or indecent behavior; failing to comply with lawful directions of a University official; and entering University facilities without authorization. ( Id. ¶ 72). As a result, Plaintiff was expelled from UPJ and prohibited from accessing all UPJ property. ( Id. ¶ 72). Following a " sanction justification review," Dr. Gyure upheld Plaintiff's expulsion. ( Id. ¶ 73). Similarly, the University Appeals Board reviewed the case and upheld the disciplinary sanctions against Plaintiff. ( Id. ¶ ¶ 74-75).

Due to his expulsion from UPJ, Plaintiff lost his scholarship. ( Id. ¶ 76). Additionally, on December 2, 2011, the UPJ Campus Police filed a criminal complaint with the District Attorney's office, which charged Plaintiff with indecent exposure, criminal trespass, and disorderly conduct. ( Id. ¶ 77). On May 30, 2013, Plaintiff pled guilty to the reduced charges of trespass and disorderly conduct and was sentenced to six months' probation and a fine of approximately $600. ( Id. ¶ 78).

Following Plaintiff's expulsion, the FBI investigated Plaintiff related to a series of bomb threats made against the University of Pittsburgh. ( Id. ¶ 83). Plaintiff alleges that " the University gave [Plaintiff]'s name to the FBI in retaliation for exercising his right to complain about the University's discriminatory conduct." ( Id. ¶ 84). Plaintiff also alleges that he suffers significant emotional distress as a result of Defendants' discriminatory conduct, including humiliation, stress, depression, and anxiety. ( Id. ¶ 85). Further, and among other things, Plaintiff alleges that he suffers from Post-Traumatic Stress Disorder, requiring counseling treatment, as a result of Defendants' conduct. ( Id. ¶ 86).

Plaintiff filed a four-count pro se complaint in this Court on October 29, 2013. (ECF No. 2). The matter was referred to United States Magistrate Judge Pesto, who screened the complaint pursuant to 28 U.S.C. § 1915A. Magistrate Judge Pesto filed a report and recommendation (ECF No. 3), recommending that the federal count of Plaintiff's complaint[7] be dismissed

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for failure to state a claim upon which relief can be granted and that the Court should decline to exercise jurisdiction over the remaining state law claims. On November 26, 2013, this Court entered an order adopting the report and recommendation and dismissing the case without prejudice to Plaintiff filing an amended complaint. (ECF No. 5).

Plaintiff then filed an amended complaint (ECF No. 6) on January 8, 2014, and a second amended complaint (ECF No. 7) on January 14, 2014.[8] Thereafter, Defendants filed the instant motion to dismiss (ECF No. 9) along with a brief in support. Plaintiff filed a brief in opposition (ECF No. 19), and the parties filed responsive briefs (ECF Nos. 20, 23) and supplemental authority (ECF Nos. 35, 40, 41, 42). On August 18, 2014, Magistrate Judge Pesto recused himself from the case (ECF No. 24), after which this Court held a status conference ( see ECF Nos. 30, 34). On October 28, 2014, the Court held oral argument on the motion to dismiss. (ECF Nos. 33, 38). The parties having completed extensive briefing and argument, this matter is now ripe for disposition by this Court.

IV. Standard of Review

Defendants have moved to dismiss Plaintiff's second amended complaint pursuant to Rule 12(b)(6). The Federal Rules of Civil Procedure require that a complaint contain " a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) allows a party to seek dismissal of a complaint or any portion of a complaint for failure to state a claim upon which relief can be granted. Although the federal pleading standard has been " in the forefront of jurisprudence in recent years," the standard of review for a Rule 12(b)(6) challenge is now well established. Fowler v. UPMC Shadyside, 578 F.3d 203, 209 (3d Cir. 2009).

In determining the sufficiency of a complaint, a district court must conduct a two-part analysis. First, the court must separate the factual matters averred from the legal conclusions asserted. See Fowler, 578 F.3d at 210. Second, the court must determine whether the factual matters averred are sufficient to show that plaintiff has a " plausible claim for relief." Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). The complaint need not include " detailed factual allegations." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Moreover, the court must construe the alleged facts, and draw all inferences gleaned therefrom, in the light most favorable to the non-moving party. See id. at 228 (citing Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003)). However, " legal conclusions" and " [t]hreadbare recitals of the elements of a cause of action . . . do not suffice." Iqbal, 556 U.S. at 678. Rather, the complaint must present sufficient " factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Sheridan v. NGK Metals Corp., 609 F.3d 239, 263 n.27 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 678).

Ultimately, whether a plaintiff has shown a " plausible claim for relief" is a " context specific" inquiry that requires the

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district court to " draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. The relevant record under consideration includes the complaint and any " document integral or explicitly relied on in the complaint." U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)). If a complaint is vulnerable to dismissal pursuant to Rule 12(b)(6), the district court must permit a curative amendment, irrespective of whether a plaintiff seeks leave to amend, unless such ...


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