Orr v. S.D. Bd. of Regents, No. 1:19-CV-01023, 2020 U.S. Dist. LEXIS 184210 (D.S.D. Oct. 5, 2020)
10/19/20Orr v. S.D. Bd. of Regents, No. 1:19-CV-01023, 2020 U.S. Dist. LEXIS 184210 (D.S.D. Oct. 5, 2020)
The South Dakota Board of Regents’ (the “Regents”) motion to dismiss Count III of Dr. Orr’s complaint was denied by the United States District Court for the District of South Dakota. Count III of Dr. Orr’s complaint alleged Northern State University (the “University”) violated Title IX in denying him tenure and terminating his employment due to his decision to take paternity leave under the FMLA as a male employee. The court denied the Regents’ motion to dismiss because it found Title IX does provide a private right of action to employees of covered institutions who allege they were discriminated against on the basis of sex.
To survive a motion to dismiss a plaintiff’s complaint “must contain enough facts to state a claim to relief that is plausible on its face." A plausible claim to relief may not be established in the absence of a right to legal action. Dr. Orr was employed as a tenure track assistant professor in the School of Education at Northern State University from 2011 until his dismissal in 2019. During his employment, he took paternity leave under the FMLA and alleges that his decision, as a male, to take paternity leave was the basis for the denial of tenure and the termination of his employment.
In denying the motion to dismiss, the court held that Title IX does contain a private right of action for employees of covered institutions who allege intentional sex-based discrimination. In coming to this conclusion, the court cited several Supreme Court cases that separately established (1) a private right of action under Title IX and (2) that employees of covered institutions are protected by Title IX’s proscription of intentional sex discrimination. Reading these cases together and citing the lack of statutory distinction between students and employees under Title IX, the court held that employees of covered institutions who claim they are the victims of intentional sex-based discrimination possess a private right of action under Title IX.
The court rejected persuasive authority from the Fifth Circuit where a court held that Title VII was the exclusive remedy for employees claiming sex-based discrimination in covered institutions. The court rejected the Fifth Circuit holding, as the case was decided prior to relevant Supreme Court precedent and is contrary to relevant First, Third, and Fourth Circuit holdings.
Because a private right of action for employees alleging intentional sex-based discrimination by covered employers does exist under Title IX, the Regents’ motion to dismiss was denied.