USCA4 Appeal: 23-2073 Doc: 38 Filed: 01/07/2025 Pg: 1 of 16

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-2073

JOHN DOE 2,

Plaintiff − Appellant,

v.

NORTH CAROLINA STATE UNIVERSITY,

Defendant – Appellee.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:23−cv−00216−FL)

Argued: September 10, 2024 Decided: January 7, 2025

Before DIAZ, Chief Judge, and WYNN and THACKER, Circuit Judges.

Vacated and remanded by published opinion. Chief Judge Diaz wrote the opinion, in which Judge Wynn and Judge Thacker joined.

ARGUED: James Patrick Davy, ALL RISE TRIAL & APPELLATE, Philadelphia, Pennsylvania, for Appellant. Dixie Thomas Wells, ELLIS & WINTERS, LLP, Greensboro, North Carolina, for Appellee. ON BRIEF: Kerstin W. Sutton, KERSTIN WALKER SUTTON PLLC, Durham, North Carolina; Alexandra Z. Brodsky, Adele P. Kimmel, PUBLIC JUSTICE, Washington, D.C., for Appellant. USCA4 Appeal: 23-2073 Doc: 38 Filed: 01/07/2025 Pg: 2 of 16

DIAZ, Chief Judge:

John Doe 1 was a student athlete at North Carolina State University. He alleges that,

while attending the university, he was sexually abused by then–Director of Sports Medicine

Robert Murphy under the guise of medical treatment. Doe filed a Title IX suit, further

alleging that the university was deliberately indifferent to prior complaints of Murphy’s

sexual misconduct. The district court dismissed Doe’s complaint because it found that he

failed to plead facts that would support an inference that the university had actual notice of

Murphy’s sexual harassment.

On appeal, Doe argues that the district court erred in deciding that a report of “sexual

grooming” could not provide actual notice to the university. We agree and thus vacate the

judgment. But because the district court assumed without deciding that Doe adequately

pleaded that the report was made to an official with the requisite authority for Title IX

purposes, we remand for the district court to consider the issue in the first instance.

I.

A.

As we’re reviewing the district court’s dismissal of Doe’s complaint, we “accept[]

all well-pleaded facts as true and draw[] all reasonable inferences in favor of [Doe].”

1 The complaint refers to Plaintiff as John Doe 2 because another student athlete filed an earlier lawsuit against the university using the fictitious name John Doe to protect his identity. As John Doe 2 is the only John Doe before us, we refer to him as Doe.

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Turner v. Thomas,

(4th Cir. 2019). Accordingly, we describe the facts

as alleged in Doe’s complaint.

Doe was a student athlete at North Carolina State University from 2020 to 2021.

Robert Murphy then served as the university’s Director of Sports Medicine and was a

licensed athletic trainer. Murphy oversaw “day-to-day athletic training, medical services

operations, and sports medicine facility management” for the university’s twenty-three

sports teams. J.A. 11. He could also dictate “when or whether [Doe] was allowed to

compete based on his assessment of [Doe]’s health, injuries, and need for treatment.”

J.A. 11.

After experiencing hip and groin pain, Doe consulted with Murphy, who suggested

treatment with a “targeted sports massage on his left hip flexor groin area.” J.A. 12.

Murphy met with Doe alone and directed him to remove all his undergarments except for

his “loose practice shorts,” so he could “reach the groin area better.” J.A. 12.

Doe complied, and Murphy used his bare hands to massage Doe’s groin area. While

doing so, he “touched and/or moved [Doe]’s penis” and made “continuous skin-to-skin

contact” with Doe’s genitals. J.A. 12–13. Murphy did so without asking for Doe’s consent,

without asking Doe to “move or hold his genitals out of the way,” without offering Doe a

towel to cover or move his genitals out of the way, and, most appallingly, without medical

necessity. J.A. 13. Murphy’s unexpected behavior during what was purportedly medical

treatment made Doe uncomfortable.

When Doe’s pain didn’t subside, he again reported it to Murphy, who again

suggested a “targeted sports massage.” J.A. 13. Doe visited Murphy a second time and

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had a similar experience. After these incidents, Doe no longer allowed Murphy to treat

him and avoided interacting with him.

Though Doe remained uncomfortable with Murphy’s conduct, he convinced himself

that he was overreacting because Murphy was a licensed athletic trainer and because, as a

student athlete, Doe had to follow Murphy’s instructions. These incidents hurt Doe’s

performance in his courses and diminished his opportunities to participate in his athletic

program.

In 2022 and 2023, Doe learned of two Title IX lawsuits filed against the university

by student athletes that Murphy had allegedly sexually harassed. Among other things, the

complaints stated:

(1) In early 2016, Head Soccer Coach Kelly Findley told Senior Associate Athletic Director Sherard Clinkscales “that Murphy was engaging in what he suspected was sexual grooming of male student-athletes.” J.A 16.

(2) In August 2017, “Murphy’s duties . . . were changed to be more ‘administrative,’” and he was “removed as the designated athletic trainer for certain men’s teams.” J.A. 16.

(3) In 2018, the university promoted Murphy from the rank of Assistant Athletic Director to Associate Athletic Director and gave him a raise.

(4) In 2022, the university conducted a Title IX investigation into Murphy’s conduct after a student athlete reported that Murphy touched his genitals under the guise of medical treatment. Based on its investigation, the university concluded that Murphy engaged in misconduct.

B.

Doe sued the university under Title IX of the Education Amendments of 1972, 20

U.S.C. §§ 1681–1688. He alleges that the university failed to respond to Findley’s earlier

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complaint to Clinkscales “that Murphy was engaging in what [Findley] suspected was

sexual grooming of male student-athletes.” J.A. 16.

The university moved to dismiss Doe’s complaint under Federal Rule of Civil

Procedure 12(b)(6). It argued that Doe failed to allege that the university received actual

notice of Murphy’s sexual harassment—as required for the university to be liable under

Title IX for the sexual harassment of a student by an employee. Doe 2 v. N.C. State Univ.,

No. 23-CV-216,

, at *2 (E.D.N.C. Sept. 11, 2023). The district court

granted the motion.

The court explained that a university has actual notice when “a school official with

authority to address complaints of sexual harassment and to institute corrective measures

receives a report that can objectively be construed as alleging sexual harassment.”

(quoting Doe v. Fairfax Cnty. Sch. Bd.,

(4th Cir. 2021)). In other words,

the institution must be “aware of an allegation that an employee is currently [sexually

harassing] a student.”

(cleaned up).

The district court “assume[d] without deciding” that Clinkscales had the requisite

authority to address complaints.

at *3 n.4. So it focused on whether Findley’s report

to Clinkscales could objectively be construed as sexual harassment. The court concluded

that Findley’s report that “Murphy was engaging in what [Findley] suspected was sexual

grooming of male student athletes” wasn’t enough. 2

at *3 (quoting J.A. 16).

The district court also found that “the requisite notice [could not] be inferred” from 2

the complaint’s allegations that Findley and two assistant coaches knew of Murphy’s

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The district court found Findley’s statement lacking because it reported “allegedly

suspected conduct,” and it didn’t describe an incident of sexual harassment.

Because

a university must receive a report of “an incident” of sexual harassment, “allegedly

suspected conduct” or conduct that suggests a “substantial risk of ongoing or future

misconduct” isn’t enough.

(cleaned up). Thus, the district court concluded that

“Findley’s communication of ‘what he suspected was sexual grooming’ does not support

a plausible inference of actual notice to [the university].”

Next, the district court rejected Doe’s argument that “Murphy’s 2017 reassignment

to an administrative role” gave rise to an inference of actual notice.

It noted that the

reassignment occurred more than a year after Findley reported his suspicions to

Clinkscales, and was “merely consistent with,” but did not “plausibly suggest,” a Title IX

violation.

(cleaned up).

The district court dismissed Doe’s complaint without prejudice. 3 Id. at *4. This

appeal followed.

misconduct and failed to report it. Doe 2,

, at *3. Doe doesn’t challenge that conclusion on appeal. 3 Because the district court’s order didn’t grant Doe leave to amend his complaint, the order dismissing the complaint without prejudice is a final order over which we have jurisdiction. Britt v. DeJoy,

(4th Cir. 2022) (en banc).

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II.

We review a dismissal under Rule 12(b)(6) de novo. Turner,

. Doe’s

complaint must provide “sufficient factual matter, accepted as true,” to state a claim to

relief under Title IX that’s plausible on its face. Ashcroft v. Iqbal,

(2009).

Title IX provides that “[n]o person . . . shall, on the basis of sex, . . . be subjected to

discrimination under any educational program or activity receiving Federal financial

assistance.”

(a). To prove a Title IX violation based on sexual

harassment, a plaintiff must show that

(1) [he] was a student at an educational institution receiving federal funds, (2) [he] was subjected to harassment based on [his] sex, (3) the harassment was sufficiently severe or pervasive to create a hostile (or abusive) environment in an educational program or activity, and (4) there is a basis for imputing liability to the institution.

Jennings v. Univ. of N.C.,

(4th Cir. 2007) (en banc). Only the final

element is at issue.

A university is liable for the sexual harassment of its students by an employee if an

appropriate person at the university “has actual notice of, and is deliberately indifferent to,

the [employee]’s misconduct.” 4 Gebser v. Lago Vista Indep. Sch. Dist.,

(1998). An appropriate person is “an official [of the university] who at a minimum has

authority to address the alleged discrimination and to institute corrective measures on the

In the Title IX context, “actual knowledge” is sometimes used interchangeably to 4

mean “actual notice.” Fairfax Cnty., 1 F.4th at 265–66.

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[university]’s behalf.”

. Such an official has actual notice where he “receives a

report that can objectively be construed as alleging sexual harassment.” Fairfax Cnty.,

.

The parties dispute whether Findley’s allegation of Murphy’s “sexual grooming of

male student-athletes” was objectively an allegation of sexual harassment. We conclude

that it was.

A.

Doe argues that a report of “sexual grooming” can provide actual notice of sexual

harassment because a “reasonable official would construe it as alleging misconduct

prohibited by Title IX.”

; accord Appellant’s Opening Br. at 18. “Grooming,”

according to Doe, is “conduct defined by its role in sexual abuse.” Appellant’s Opening

Br. at 21. And—when modified by “sexual” and taken in the light most favorable to Doe—

it refers to “predatory sexual conduct” that is sexual harassment.

at 21–22.

The university counters that the district court properly dismissed Doe’s complaint

because Doe failed to allege that Findley reported “facts that objectively amount[] to sexual

harassment.” Appellee’s Resp. Br. at 14 (quoting Fairfax Cnty.,

). The

university advances three arguments.

First, the university argues that because Doe’s complaint doesn’t provide “context

or factual descriptions of what the ‘grooming’ entailed,”

its allegations of grooming

are “devoid of further factual enhancement” and are therefore insufficient,

at 15 n.4

(quoting Iqbal,

).

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Second, according to the university, a report of “sexual grooming” is insufficient to

provide actual notice because grooming can include conduct that isn’t sexual harassment.

The university notes that two district courts have found that “conduct described as

‘grooming’ does not necessarily correspond to conduct amounting to harassment.”

at

15 (citing Doe v. Madison Metro. Sch. Dist., No. 15-CV-570,

, at *5

(W.D. Wis. Feb. 9, 2017); S.P. v. Ne. Indep. Sch. Dist., No. SA-21-CV-0388,

, at *6 (W.D. Tex. July 30, 2021)). And in Gebser v. Lago Vista Independent

School District,

(1998), the Supreme Court found that “complaints that a

teacher made inappropriate comments,”

, which the university argues could be

considered grooming, were insufficient to provide actual notice of sexual harassment. 5

Appellee’s Resp. Br. at 17. Because grooming encompasses conduct that isn’t sexual

harassment, the university concludes that a report of “grooming” can’t objectively allege

sexual harassment.

Finally, the university says that Findley’s report couldn’t provide actual notice of

sexual harassment “currently” occurring.

at 17–18 (quoting Fairfax Cnty.,

). As the university puts it, “knowledge in 2016 of suspicions of ‘grooming’ does not

establish that [the university] had actual notice that Murphy was harassing students in

2021.” Id. at 18.

5 The plaintiffs in Gebser “d[id] not contend [that] they [could] prevail under an actual notice standard,”

, as they asked the Court to adopt a constructive notice standard for Title IX claims based on sexual harassment of a student by an institution’s employee. The Court determined such claims require that the institution have actual notice.

.

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As explained below, we agree with Doe.

B.

For a university to be liable under Title IX for sexual harassment, it must have had

“actual [notice] of discrimination in [its] programs.” Jennings,

(quoting

Gebser,

). In Jennings v. University of North Carolina,

(4th

Cir. 2007) (en banc), we found that the university had actual notice because an appropriate

official received a report of sexual harassment.

at 700–01.

For a report to provide actual notice, it must be one “that can objectively be

understood as alleging sexual harassment,” “regardless of whether the school in fact

construed” it as such. Fairfax Cnty.,

. The report need not identify “that a

particular student was being [sexually harassed],” but it must allege that a student “was

currently” being sexually harassed. Baynard v. Malone,

, 238 n.9 (4th Cir.

2001); accord Fairfax Cnty.,

.

Reports that support only “a general, substantial risk of—or the potential for—

ongoing or future misconduct” cannot provide actual notice of “current [sexual

harassment].” Fairfax Cnty.,

(cleaned up). The ultimate inquiry is “whether

a reasonable official would construe [the report] as alleging misconduct prohibited by

Title IX.”

.

C.

Doe alleges that Findley reported to Clinkscales “that Murphy was engaging in what

he suspected was sexual grooming of male student-athletes.” J.A. 16. We conclude that

such a report “can objectively be construed as alleging sexual harassment” and that, at the

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pleading stage, an allegation that such a report was made to an appropriate official is

sufficient to plausibly plead that an institution had actual notice of sexual harassment.

Fairfax Cnty.,

.

“Grooming” is susceptible to many definitions, each capturing a slightly different

range of conduct. See, e.g., United States v. Engle,

(4th Cir. 2012)

(“deliberate actions taken by a defendant to expose a child to sexual material[,] the ultimate

goal of [which] is the formation of an emotional connection with the child and a reduction

of the child’s inhibitions in order to prepare the child for sexual activity” (quoting United

States v. Chambers,

(7th Cir. 2011))); United States v. Park,

(D.C. Cir. 2019) (the process in which “the abuser uses inducements such as

money, treats, gifts, and fun trips to establish trust, which then allows the offender to

control and manipulate the child into participating in sexual abuse” (cleaned up)); United

States v. Batton,

, 1198 n.3 (10th Cir. 2010) (“the process whereby a sex

offender earns the trust and confidence of a victim before engaging in a sexual act”); United

States v. Johnson,

, 1283 n.2 (9th Cir. 1997) (“the process of cultivating trust

with a victim and gradually introducing sexual behaviors until reaching the point of

intercourse”); Grooming: Know the Warning Signs, RAINN (July 10, 2020),

https://rainn.org/news/grooming-know-warning-signs [https://perma.cc/3ZYJ-T5SQ]

(“manipulative behaviors that the abuser uses to gain access to a potential victim, coerce

them to agree to the abuse, and reduce the risk of being caught”); Groom, Merriam-

Webster, https://www.merriam-webster.com/dictionary/groom [https://perma.cc/R3PV-

HEQ7] (“to make (someone) ready for a specific objective” or “to build a trusting

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relationship with (a minor) in order to exploit them especially for nonconsensual sexual

activity”).

These definitions of “grooming” may well capture conduct that—standing alone—

wouldn’t constitute sexual harassment. But the term, particularly when modified by

“sexual,” 6 connotes a distinct and wrongful purpose. However outwardly benign the

actions, the goal of grooming is to exploit a position of power or trust to coerce a victim to

engage in sexual activities.

Grooming describes a pattern of behavior, not an isolated act. And while a report

that an employee is committing seemingly innocent acts (that are, in fact, sexual grooming)

may not objectively allege sexual harassment, 7 the same can’t be said of a report of “sexual

grooming.” Under any definition, the term “sexual grooming” connotes a pattern of

wrongful and sexually motivated conduct.

6 In this context, “sexual” means “implying or symbolizing erotic desires or activity,” Sexual, American Heritage Dictionary of the English Language (1976), or “of or relating to the sphere of behavior associated with libidinal gratification,” Sexual, Webster’s Third New International Dictionary (1971); accord Sexual, Webster’s Third New International Dictionary (2002). 7 As the university points out, courts have found that reports or observations of conduct that may be considered grooming were not sufficient to provide actual notice. See, e.g., Madison Metro.,

, at *5; S.P.,

, at *6; Gebser,

. But in none of these instances did the institution receive a report that characterized the conduct as “grooming.” Rather, the plaintiffs either characterized the alleged conduct as grooming in their filings, Madison Metro.,

, at *6; S.P.,

, at *4–5, or didn’t mention grooming at all, Gebser,

.

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Drawing all reasonable inferences in Doe’s favor, “a reasonable official would

construe” Findley’s report of “sexual grooming” as alleging sexual harassment. Fairfax

Cnty.,

. That’s because Findley’s report specified wrongful conduct that was

sex-based, current, and committed by an employee with authority over student athletes.

First, Findley reported to Clinkscales that Murphy’s misconduct was directed at

“male student-athletes,” J.A. 16, meaning that Murphy was “targeting the [student athletes]

because of their sex,” Jennings,

. Second, he described Murphy’s current

conduct—conduct that Murphy “was [then] engaging in.” J.A. 16. Third, he identified

Murphy as the transgressor.

As the Supreme Court has recognized, “[t]he relationship between the harasser and

the victim necessarily affects the extent to which the misconduct can be said to [violate]

Title IX.” Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ.,

(1999). Misconduct committed by an employee, particularly one who exercises authority

over a student, is more likely to violate Title IX than misconduct committed by a peer.

We thus conclude that Doe has sufficiently pleaded that Findley’s report is one that

“a reasonable official would construe . . . as alleging misconduct prohibited by Title IX.” 8

Fairfax Cnty.,

.

8 To the extent that the district court suggested Findley’s report couldn’t allege sexual harassment because it contained merely “suspected conduct,” Doe 2,

, at *3, we would disagree. An institution can have actual notice of sexual harassment based on an unsubstantiated report. Fairfax Cnty.,

. Because actual notice triggers the institution’s obligation to investigate, “[i]t would be illogical to require a school to investigate a complaint alleging sexual harassment only if it has already determined that such harassment did in fact occur” and equally illogical “to require [an

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The university’s remaining arguments don’t convince us otherwise.

The university argues that Findley’s report couldn’t provide the requisite notice

because he reported Murphy’s sexual grooming years before Murphy sexually abused Doe.

That’s wrong.

When an institution receives actual notice, its duty to investigate or to otherwise act

is triggered. Fairfax Cnty.,

(citing Davis, 526 U.S. at 649–50). Actual notice

requires “that the school [be] aware of an allegation that [an employee] [is] currently

[sexually harassing] a student.”

. “[C]urrently” means when an allegation of

sexual harassment is made—not necessarily, as the university suggests, at the time of the

plaintiff’s harassment.

To hold otherwise would be inconsistent with the deliberate indifference theory of

liability under Title IX: Under the university’s interpretation, it would not be enough for

a plaintiff to show that his university was deliberately indifferent to a prior report of then-

occurring sexual harassment by his harasser. Instead, he would have to show that his

university also had actual notice of sexual harassment by his harasser at the time of the

plaintiff’s harassment, even though the university’s deliberate indifference to the prior

report led to his harassment. Davis,

. That is not the law.

Nor, as the university argues, are Doe’s allegations of sexual grooming “devoid of

[the requisite] factual enhancement.” Appellee’s Resp. Br. at 15 n.4 (quoting Iqbal, 556

individual] alleging sexual harassment to bear the burden of substantiating their claim with adequate evidence at the time of their initial report, before the school undertakes an investigation.”

So too here.

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U.S. at 678). When a plaintiff alleges that an institution knew of certain conduct that the

plaintiff later characterizes as grooming, “context or factual descriptions of what the

‘grooming’ entailed” may be needed. Id. at 14. Doe, however, alleges that a university

employee received a report that his harasser was “engaging in . . . sexual grooming.” J.A.

16. Additional “factual enhancement”—and, indeed, evidence—on the substance of

Findley’s report to Clinkscales will be required past the pleading stage. But at least for

now, Doe has sufficiently alleged that the university received a report that objectively

alleged sexual harassment.

The district court erred in holding otherwise.

III.

Of course, for the university to have actual notice, the report of Murphy’s sexual

grooming must have reached an appropriate official. The district court assumed without

deciding that Clinkscales was an appropriate official with “authority to address complaints

of sexual harassment and to institute corrective measures” on behalf of the university.

Fairfax Cnty.,

. The parties now ask us to decide whether Doe’s complaint

supports such an inference.

The university argues that the complaint’s allegations on this point are insufficient

because they consist of little more than Clinkscales’s title. Appellee’s Resp. Br. at 7–8.

But the district court didn’t address this question, and we decline to decide it in the first

instance. We are, after all, “a court of review, not of first view.” Grimmett v. Freeman,

(4th Cir. 2023) (cleaned up).

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Accordingly, we remand the case to the district court to decide this issue. The

district court should consider whether to grant Doe leave to amend his complaint, should

he so move.

VACATED AND REMANDED

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