A woman got the go-ahead to pursue a claim that her college subjected her to a hostile environment after she reported a classmate had sexually assaulted her.
In a written opinion this week, U.S. District Judge Marvin E. Aspen did not rule on the merits of Erika Pogorzelska’s contention that VanderCook College of Music in Chicago responded with deliberate indifference to her report.
But Aspen held Pogorzelska’s allegations were enough to state a claim that VanderCook violated Title IX of the Education Amendments Act of 1972.
Title IX prohibits sex discrimination against students, teachers, administrators and other staff members at educational institutions that receive federal funds.
Pogorzelska’s allegations describe actions — or inactions — on the part of VanderCook that could be considered so unreasonable that they qualify as “severe, pervasive and objectively offensive conduct” aimed at her, Aspen wrote.
Aspen, however, dismissed Pogorzelska’s claim that VanderCook retaliated against her in violation of Title IX because she spoke out against sexual harassment.
Pogorzelska does not state any basis for her assertion that the college’s purported conduct was prompted by a retaliatory motive, Aspen wrote.
He dismissed the retaliation count without prejudice, leaving the way open for Porgorzelska to replead it.
VanderCook is based in Chicago on the campus of the Illinois Institute of Technology and currently enrolls about 120 students.
The college bills itself as the only educational institution in the nation focusing exclusively on training music teachers.
Pogorzelska and classmate Eric Ballenger met during freshmen orientation at VanderCook.
Pogorzelska says she attended a party in August 2017 held by VanderCook students at Ballenger’s apartment.
During the party, Ballenger sexually assaulted her while she was unconscious and intoxicated, Pogorzelska alleges.
She reported the assault to the Chicago Police Department four days later, she maintains, and to VanderCook the day after that.
Stacey Larson Dolan, the dean of undergraduate students, imposed a no-contact order on Ballenger, Pogorzelska says. She says Dolan also discussed the possibility of changing her class schedule while her allegations were being investigated.
But the school did not enforce the no-contact order and did not take other steps to shield her from a hostile environment on campus, Pogorzelska alleges.
She alleges she was forced to attend classes and college-sponsored activities with Ballenger and denied the opportunity to complete her music history course through independent study.
Ballenger’s friends at the college continually harassed her, Pogorzelska contends, and her professors reprimanded her for her absences even though they had been told to provide her with certain accommodations.
The college officials who investigated her report that she had been sexually assaulted — Dolan and professor David Eccles — did not allow her to see or rebut evidence presented by Ballenger and other students, Pogorzelska contends.
In September 2017, Dolan and Eccles concluded there was not a preponderance of evidence against Ballenger. But the two found Ballenger “guilty but not guilty” and imposed sanctions on him.
Ballenger was ordered to attend sexual-misconduct training and to relinquish leadership positions during the fall semester. A report of the findings was put in Ballenger’s official file until he graduated and he was instructed to take part in a mediated meeting with Pogorzelska to — as Aspen put it — “begin the healing process.”
Pogorzelska withdrew from VanderCook in December 2017 and enrolled in another school. She maintains VanderCook’s deliberate indifference to her assault and Ballenger’s presence on campus made it impossible for her to take advantage of the educational opportunities at the college.
In his opinion Monday, Aspen also declined to dismiss counts of sexual assault and battery that Pogorzelska brought against Ballenger under Illinois law.
“Federal courts may exercise supplemental jurisdiction over a state claim (like assault and battery tort claims) if the state and federal claims ‘derive from a common nucleus of operative fact,’ ” Aspen wrote, quoting Hansen v. Board of Trustees of Hamilton Southeastern School Corp., 551 F.3d 599 (7th Cir. 2008).
The case is Erika Pogorzelska v. VanderCook College of Music, et al., No. 19 C 5683.
Pogorzelska is represented by Jeffrey R. Kulwin and Rachel A. Katz, both of Kulwin, Masciopinto & Kulwin LLP.
“We are pleased with the judge’s ruling,” Kulwin said. “We think that it’s consistent with the law.”
He said he is especially pleased with Aspen’s holding that Pogorzelska has stated a claim against VanderCook for deliberate indifference.
“That’s a significant finding and one that will control the outcome of the case as it moves forward,” Kulwin said.
He said Pogorzelska — like many survivors of sexual assault — finds it troubling to have limited say in the investigation into her allegations and little information about the results.
“Erika is relieved that through the litigation process, we’ll be able to shed light on what really happened after she reported a sexual assault,” Kulwin said.
VanderCook is represented by Ian M. Sherman and Molly E. Thompson, both of Dykema Gossett PLLC.
“VanderCook College of Music is a small school that cares deeply for the welfare of all of its students,” Sherman said in a statement. “In this complicated situation, it was extremely responsive and considerate toward the plaintiff’s educational and emotional needs, including numerous meetings and scheduling accommodations.
“The college looks forward to offering documentary and testimonial evidence of this to the court at the proper time.”
Ballenger’s attorney, Mark J. Galler of Mark Galler Law LLC in Oak Park, could not be reached for comment.