Former NCSU athlete’s sexual abuse case hits federal Appeals Court

A federal Appeals Court panel will decide in the months ahead whether to revive a former North Carolina State University male athlete’s sexual discrimination lawsuit against the university. The student-athlete claims the university failed to respond appropriately to sexual abuse allegations against a university employee who later assaulted the athlete during medical treatment.

It’s one of three federal lawsuits filed against NCSU in 2022 and 2023 involving allegations against Robert Murphy Jr., the school’s former sports medicine director.

A three-judge panel of the 4th US Circuit Court of Appeals heard 40 minutes of arguments in the case Tuesday. Oral arguments took place during a special session at the North Carolina Central University law school.

The lawsuit filed in April 2023 involved a male student-athlete identified as John Doe 2, who sought treatment from Murphy for hip and groin pain in 2021. Doe alleges that Murphy assaulted him. The alleged assault took place five years after soccer head coach Kelly Findley warned a “senior” athletics department official about suspicion that Murphy was sexually grooming athletes.

US District Judge Louise Flanagan dismissed Doe’s case in September 2023. Flanagan ruled that Doe had failed to show that NCSU had “actual notice” of abusive behavior that would have led to legal liability.

“No one wants to … live in a world where a school gets a report like this and has no responsibility to do anything and lets a trainer like that have ongoing access to athletes,” argued Jim Davy, Doe’s lawyer, during Tuesday’s hearing.

“Neither NC State nor its leadership condones sexual misconduct of any type,” responded Dixie Wells, the university’s lawyer. Flanagan “correctly concluded” that the soccer coach’s comments did not qualify for the actual notice that would have allowed for a lawsuit under Title IX.

Chief 4th Circuit Judge Albert Diaz and Judges James Wynn and Stephanie Thacker fired multiple questions at both attorneys.

Thacker aimed a series of questions at Wells.

“What if what Coach Findley had said was, ‘I suspect that Murphy is sexually assaulting student-athletes?’” Thacker asked. “That’s still a suspicion. Would North Carolina State have done nothing?”

“You look at the facts,” Wells responded. “So it’s who, the what, the when, the where. The university needs enough of those facts.”

“How do you define sexual grooming?” Thacker asked later. “There’s something about the phrase ‘sexual grooming’ that is innocuous? That doesn’t give some indication that it’s predatory? What is the goal of sexual grooming?”

“What would Coach Findley have needed to say in this circumstance to provide actual notice to the university?” Thacker added.

“Well, we don’t know, your honor, because we don’t know any facts beyond it,” Wells answered. “But there would have needed to be notice of sexual harassment, of sexual misconduct.”

“And sexual grooming is not sexual misconduct in the view of North Carolina State University?” Thacker replied.

Flanagan dismissed the John Doe 2 case along with two other similar sexual assault lawsuits against NC State in September 2023. Each involved allegations of sexual abuse against Murphy. In each case, Flanagan determined that the plaintiff failed to show that NC State had actual notice of the alleged abuse.

Flanagan determined that the first suit, brought by former Wolfpack soccer player Benjamin Locke in August 2022, could proceed against Murphy. Flanagan ruled that none of the three suits could move forward against the university.

The John Doe 2 case was the second of two suits filed by anonymous plaintiffs. In those two cases, NCSU was listed as the only defendant.

Locke alleged in the original lawsuit that Murphy had touched his genitals improperly during 75 to 100 massages between August 2015 and May 2017. Locke said he later believed those massages lacked “legitimate” medical necessity. Locke’s suit also alleged that Findley told a senior athletics official in February 2016 that Murphy was engaging in contact “consistent with ‘grooming behavior.’” The suit alleged that the school took no follow-up action.

“Defendant NCSU argues, and plaintiff concedes, that sovereign immunity bars intentional tort claims against the state. … The court agrees that it lacks subject matter jurisdiction to decide these claims,” Flanagan wrote in dismissing Locke’s claims against the university.

Flanagan also ruled that she lacked jurisdiction to hear Locke’s complaint that NC State provided “negligent training and supervision.” The judge also rejected a Title IX claim against the school. “Defendant NCSU argues that plaintiff’s Title IX claim fails for failure to allege facts that, if true, would support an inference that it received actual notice of the abuse. The court agrees.”

Findley’s statements about possible “grooming” did not amount to a report of a specific instance of sexual harassment that would have given NC State “actual notice” under legal standards, Flanagan ruled. The judge also rejected Locke’s argument that Murphy’s reassignment to an administrative role in 2017 led to an “inference of actual notice.”

In the second case, filed in February 2023, a male student-athlete identified as John Doe said he was assaulted when sought treatment from Murphy for hip pain in 2015. Flanagan ruled again that the plaintiff had failed to show that NC State had received “actual notice” of the alleged abuse. In that case, the university was the only defendant.

“Plaintiff asserts that ‘it is overwhelmingly likely that the coaches’ used the euphemistic language of ‘grooming behavior’ ‘out of embarrassment and reticence in formal settings.’ According to plaintiff, the coaches ‘surely must have known, and communicated, more particulars, if they were impelled to report the problem.’ … These statements are speculations, not ‘factual matter,’ and the court is not bound to accept plaintiff’s hypotheses about what the coaches ‘must have’ known or communicated,” Flanagan wrote.

Because the two suits from anonymous plaintiffs named only the university as a defendant, Flanagan ordered both cases closed.