The opinion of the court was delivered by: Peter G. Sheridan, U.S.D.J.
This matter is before the Court on a motion to dismiss the second amended complaint (SAC) pursuant to Federal Rule of Civil Procedure 12(b)(6) by Defendants, New Jersey Institute of Technology, Jack Gentul, Holly Stern and Brian Tierny ("Defendants"). Plaintiff, Louis Tafuto, III ("Plaintiff" or "Tafuto") alleges that the Defendants engaged in sexual harassment in violation of Title IX. For the reasons set forth below, the Defendants' motion to dismiss [docket entry No. 33] is granted in part and denied in part.
According to the Plaintiff's second amended complaint, the allegations are as follows.
During the fall semester of 2009, Plaintiff, Louis Tafuto, III enrolled in three courses at the New Jersey Institute of Technology ("NJIT or Institute"). One of three courses, the Architectural Design class, was problematic for Plaintiff. According to Plaintiff, from September through November, 2009 during the Architectural Design class, other students ridiculed and bullied him. According to paragraph 17 of the Complaint, Plaintiff was sexually harassed by students. He avers:
a. NJIT students repeatedly stole Plaintiff's sketch book from his NJIT Work Station and wrote numerous notes in it calling him a "faggot."
b. Students also glued a cardboard penis to Plaintiff's NJIT Work Station with a cut out picture of his face glued to the top of it as if he had his mouth on the tip of the cardboard penis.
c. Students took a picture of the cardboard penis and Plaintiff's face and posted the photo on their NJIT Projects page on Facebook.
d. Students also placed an 18" x 24" sign in the window of the Architectural Design and Drawing studio which read "Louis Loves to give Head" on four separate occasions.
e. Stephanie Pawlick, a student of the Architectural Design Class also posted other pictures of Louis Tufuto on her facebook page labeled "NJIT Architectural Design Projects" with access to NJIT students and the NJIT Community. These pictures called Louis Tufuto "faggot"; "tits magee"; and "butt pirate." The NJIT Architectural and Design Students commented on Stephanie Pawlick's photos on Facebook.
f. NJIT students on a number of occasions left 12" x 18" papers on Plaintiff's desk with words like 'faggot" and "gay" on them.
During the course of the above conduct, Professor Megumi Tamanaha became aware of the conduct, and although she was empathetic to Plaintiff, she never undertook any action to report it to the administration of the Institute or to discipline any of the students.
In early November, 2009, during a private conversation, Shannon McMahon, a student, overheard Tufuto saying to another student that due to the harassment, he wanted to "kill" some of his classmates. (Complaint, para. 22). McMahon reported the statement to Professor Tamanaha who in turn alerted Jack Gentul, the Dean of Students for the Institute. Gentul removed Tafuto from class on November 11, 2009. Dean Gentul and the NJIT psychologist, Dr. McCoul, then questioned Tafuto for forty minutes at NJIT police headquarters. Tafuto was not charged with violations of school policy, nor was he charged with any crimes, but was immediately suspended by Dean Gentul. After meeting with Tafuto, Dean Gentul required Tafuto to undergo a psychiatric evaluation or "risk assessment" to evaluate Tafuto's propensity to "kill" other students prior to allowing Tafuto to return to the Institute's campus. Tafuto refused to submit to the psychiatric evaluation, and as a result, he was prohibited from returning to the campus, but was permitted to finish the semester from his home.
Tafuto filed suit to compel the Institute to allow him to resume his classwork on campus without undergoing psychiatric evaluation. [docket entry no. 2]. This Court denied Tafuto's application because Dean Gentul's action was reasonable in light of ...