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Doe v. University of Colorado

United States District Court, D. Colorado

May 26, 2017

JOHN DOE, Plaintiff,
UNIVERSITY OF COLORADO, BOULDER, through its Board, the Board of Regents of the University of Colorado; CHRISTINA GONZALES, individually and as agent for the University of Colorado, Boulder; ALEXANDRA TRACY-RAMIREZ, individually and as agent for the University Colorado, Boulder; and JESSICA DOTY, individually and as agent for the University of Colorado, Boulder, Defendants.


          William J. Martínez United States District Judge

         Title IX of the Civil Rights Act of 1964, 20 U.S.C. §§ 1681 et seq. (“Title IX”), declares that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Federal agencies “empowered to extend Federal financial assistance to any education program or activity” may promulgate regulations to enforce this prohibition, and may terminate an educational institution's federal funding if the institution does not comply with these regulations. Id. § 1682.

         Congress added Title IX to the Civil Rights Act in 1972, when “the concept of sexual harassment as [a form of] gender discrimination had not been recognized or considered by the courts.” Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 664 (1999) (Kennedy, J., dissenting) (internal quotation marks omitted). Fourteen years later, however, the Supreme Court recognized in a Title VII (employment discrimination) context that sexual harassment which creates a hostile working environment is a form of sex discrimination for which employers may be held liable. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). Since at least the mid-1990s, the Department of Education's Office of Civil Rights (“OCR”) has applied this principle to Title IX, advising that sexually harassing conduct, including “unwelcome sexual advances” by one student to another, can create a hostile, sexually discriminatory educational environment; and that schools may lose their federal funding “if (i) a hostile environment exists in the school's programs or activities, (ii) the school knows or should have known of the harassment, and (iii) the school fails to take immediate and appropriate corrective action.” 62 Fed. Reg. 12034, 12038, 12039 (Mar. 13, 1997).[1]

         “Unwelcome sexual advances” obviously includes sexual assault, thus raising the question of what Title IX requires of schools-particularly colleges and universities -when they learn of alleged student-on-student sexual assault. Department of Education regulations generically require “grievance procedures providing for prompt and equitable resolution of . . . complaints alleging any action that would be prohibited [under Title IX], ” 34 C.F.R. § 106.8(b), and “Title IX . . . permits the use of a student disciplinary procedure not designed specifically for Title IX grievances to resolve sex discrimination complaints, as long as the procedure meets the requirement of affording a complainant a ‘prompt and equitable' resolution of the complaint, ” 62 Fed. Reg. at 12045. But what sort of procedure provides a “prompt and equitable resolution” for a claim of rape?

         Noting that “[t]he statistics on sexual violence [on college campuses] are both deeply troubling and a call to action for the nation, ” OCR ventured an answer to this question in a 2011 “Dear Colleague Letter.” See Russlynn Ali, Assistant Sec'y for Civil Rights, Dear Colleague Letter at 2 (Apr. 4, 2011), available at about/offices/list/ocr/letters/colleague-201104.pdf (last accessed May 12, 2017). This letter appears to have had two major effects. First, it generally signaled that OCR had adopted a “get tough” approach, thus prompting colleges and universities to devote more attention to sexual assault accusations. Second, the letter announced OCR's view that school investigators should apply a preponderance-of-the-evidence standard when determining whether a sexual assault accusation is founded, in contrast to higher standards “currently used by some schools.” (Id. at 10-11.) Thus, it became easier for schools to take action against alleged perpetrators.

         As another district court has aptly noted, the Dear Colleague Letter has led to a “wave of litigation” brought by male university students who have been suspended or expelled after they had been found, after allegedly faulty investigations, to have violated school policies regarding sexual assault. Doe v. Brown Univ., 166 F.Supp.3d 177, 181 (D.R.I. 2016) (“Brown”). That wave has washed over this Court at least once before, see Johnson v. W. State Colo. Univ., 71 F.Supp.3d 1217 (D. Colo. 2014), and now returns.

         Plaintiff was expelled from Defendant University of Colorado at Boulder (“the University”) in August 2014 after the University's Title IX office concluded by a preponderance of the evidence that he had raped two female students in separate incidents. Plaintiff now claims that the University's Title IX process was biased toward him because he is male, and therefore the University discriminated against him on the basis of sex in violation of Title IX. Plaintiff also brings a Fourteenth Amendment procedural due process claim and various state-law claims. (See generally ECF No. 26.) Apart from the University, Plaintiff has sued three University officials who had some role in the investigation of the accusations against him, or in the decision to expel him: Christina Gonzalez (“Gonzalez”), the University's Title IX co-coordinator; Alexandra Tracy-Ramirez (“Tracy-Ramirez”), the Title IX investigator assigned to his case; and Jessica Doty (“Doty”), head of the University's Office of Student Conduct. The Court will refer to these three individuals collectively as the “Individual Defendants.” Currently before the Court is the Individual Defendants' Motion to Dismiss (ECF No. 28) and the University's Motion to Dismiss (ECF No. 52).[2] For the reasons explained below the Court grants the Individual Defendants' motion in full, and grants the University's motion as to all claims except prospective injunctive relief under Plaintiff's procedural due process claim. However, the Court must still dismiss that claim-although without prejudice-because it is unclear whether Plaintiff has sued the right state official. Plaintiff will therefore be granted leave to amend as to his procedural due process claim.

         I. RULE 12(b)(6) STANDARD

         A. General Standard

         Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a claim in a complaint for “failure to state a claim upon which relief can be granted.” The 12(b)(6) standard requires the Court to “assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'” Id. (quoting Twombly, 550 U.S. at 556).

         B. Documents Outside the Pleadings

         The University and the Individual Defendants ask this Court to consider additional documents they have placed in the record, namely, Defendant Tracy- Ramirez's final report of her investigation into the alleged assaults at issue in this lawsuit (ECF Nos. 28-1, 52-1), and the University's Student Conduct Code Policies & Procedures for the 2013-14 academic year (ECF Nos. 28-2, 52-2). The Court may consider these documents if they are (1) “mentioned in the complaint, ” (2) “central to [the] claims [at issue], ” and (3) not challenged as inauthentic. Toone v. Wells Fargo Bank, N.A., 716 F.3d 516, 521 (10th Cir. 2013).[3]

         Here, all three elements are satisfied. Both documents are frequently mentioned, sometimes quoted, and generally relied upon in the currently operative complaint as evidence of Defendants' liability. (See ECF No. 26 ¶¶ 80-95 (Tracy-Ramirez's report); id. ¶¶ 27-38, 137-50 (Student Conduct Code).) Thus, these documents are both “mentioned” and “central” to Plaintiff's claims. Moreover, Plaintiff does not argue that these documents are inauthentic, nor has he stated any other objection to the Court considering them as if part of his complaint. The Court will therefore consider them for purposes of the Rule 12(b)(6) analysis below. However, there are instances, noted below, when Plaintiff's complaint alleges the contents of certain documents and those allegations appear to contradict Tracy-Ramirez's report of what the same documents contain. In those instances, the Court has adopted Plaintiff's allegation as true for present purposes.

         II. FACTS

         The Court accepts the following facts as true for purposes of the University's and the Individual Defendants' respective Motions to Dismiss.[4]

         A. The Initial Accusation and Suspension

         Plaintiff enrolled at the University in Fall Semester 2012. (ECF No. 26 ¶ 25.) Up until the accusations that ultimately prompted his expulsion, he was the member of a fraternity (the “Fraternity”) and he lived in off-campus Fraternity housing. (Id. ¶ 26; ECF No. 28-1 at 4.)

         On April 15, 2014, Title IX co-coordinator Gonzalez received an anonymous phone call during which the caller accused Plaintiff of raping two female University students-“Jane Doe 1” and “Jane Doe 2”-in separate incidents. (ECF No. 26 ¶¶ 20, 39; ECF No. 28-1 at 1.) Someone in the University's Office of Student Conduct then attempted to contact Jane Does 1 and 2. (Id. at 42.)

         Two days later, Gonzalez summarily suspended Plaintiff, excluded him from campus, and prohibited him from contacting Jane Doe 1 (but said nothing about Jane Doe 2). (ECF No. 26 ¶ 49.) Gonzales did not speak with Plaintiff, Jane Doe 1, or Jane Doe 2 before issuing the suspension. (Id.)

         B. Jane Doe 1's Interview

         Tracy-Ramirez, a Title IX investigator for the University, was assigned to investigate the allegations against Plaintiff. (Id. ¶ 21.) Her first interview was with Jane Doe 1, on April 21, 2014. (Id. ¶ 40.) At that interview, Jane Doe 1 agreed to provide her recollection of Plaintiff's alleged rape. (ECF No. 28-1 at 22.)

         Jane Doe 1 remembered the date of the incident under investigation because it was the day before the University's season-opening football game the previous September. (Id.) She did not have any memory of sexual contact with Plaintiff, however. She instead remembered drinking alcohol at a Fraternity-hosted party, then waking up naked in an unfamiliar bed, and finally waking up clothed in her own bed. (Id.) She learned from a friend that Plaintiff had walked her home, although she had no memory of that, or of seeing Plaintiff at any time the previous night. (Id.) Nonetheless, that next morning, “she could ‘tell' from physical sensations” that vaginal intercourse has recently occurred. (Id.)

         Jane Doe 1 further recalled that, soon after the night in question, she heard from others that Plaintiff had been bragging about having had sex with her. (Id.) Then, over the University's recent Spring Break (in March 2014), she had been speaking with a friend, Jane Doe 2, who apparently volunteered that Plaintiff had raped her (i.e., Jane Doe 2). (Id.) Jane Doe 1 “shared with Jane Doe 2 her own concerns about [Plaintiff].” (Id. at 23.) And, shortly after Spring Break, Jane Doe 1 “started hearing rumors from friends in common that [Plaintiff] talked about having had sex with Jane Doe 1 and told people that ‘she said no, no, but I kept going.'” (Id.)

         C. Jane Doe 2's Interviews

         Jane Doe 2 did not respond to any of Tracy-Ramirez's phone calls until May 2, 2014. (ECF No. 26 ¶ 46; ECF No. 28-1 at 29.) On that date, Jane Doe 2 spoke with Tracy-Ramirez by phone and asked her what she knew about the alleged encounter between Plaintiff and Jane Doe 2. (Id.) Tracy-Ramirez explained that she had learned from witnesses (discussed below) that Jane Doe 2 had accompanied John Doe to his room after a relatively recent fraternity party, that Jane Doe 2 had been sober at this time, and that John Doe forced himself on her despite her protests. (Id.) Jane Doe 2 confirmed that Tracy-Ramirez's account was accurate, but apparently chose not to provide any more details at that time and said that she would be in touch. (Id.)

         Jane Doe 2 did not re-initiate contact until June 6, 2014, when she called to express unspecified “concerns related to the situation.” (Id.) She did not offer any more information to Tracy-Ramirez except that the alleged rape took place in the early morning hours of March 9, 2014. (Id.)

         Tracy-Ramirez and Jane Doe 2 spoke for a third and apparently last time on June 23, 2014. (Id.) Without providing details, Jane Doe 2 told Tracy-Ramirez that “she's not the only person [Plaintiff has] hurt. She said ‘he did it to other people' too.” (Id.)

         D. Interviews with Witnesses

         Throughout this time, Tracy-Ramirez was also interviewing ten potential witnesses (seven male and three female). (Id. at 3.) Most of these witnesses had knowledge about the incident with Jane Doe 1, but not with Jane Doe 2. Concerning Jane Doe 1, six witnesses generally confirmed one or more of the following: that Jane Doe 1 had been intoxicated on the night in question; that she had left the Fraternity party with Plaintiff; that she believed she and Plaintiff had engaged in sexual intercourse that night, but she could not remember; that Plaintiff walked her home that night; that, soon after, Plaintiff had boasted about having sex with Jane Doe 1; and that Plaintiff, many months later, recounted to others that Jane Doe 1 had been telling Plaintiff on the night in question that she did not want to have sex, but he persisted. (See id. at 14-21, 24-26.)

         As for Jane Doe 2, Tracy-Ramirez interviewed the president of Jane Doe 2's sorority (the “Sorority”). (Id. at 27.) The Sorority president reported that Jane Doe 2 approached her not long after Spring Break and announced that she (Jane Doe 2) wanted to resign her position as social chair of the Sorority. (Id.) When the Sorority president asked why, Jane Doe 2 explained that an upcoming “Greek Week” would require her, as social chair, to be in the presence of Plaintiff, and she did not want that.[5](Id.) Jane Doe 2 then revealed that, shortly before Spring Break, she and Plaintiff had been together after a Fraternity party, and that Plaintiff had forced himself on her despite her unequivocal protests. (Id.) Jane Doe 2 said that she did not want Plaintiff to get in trouble, but only wanted to avoid being in his presence. (Id.)

         Shortly after this exchange with Jane Doe 2, the Sorority president reported to the Fraternity's president that one of his Fraternity brothers had raped one of her Sorority sisters. (Id. at 7.) But-perhaps respecting Jane Doe 2's wish not to get Plaintiff in trouble-the Sorority president did not reveal any names. (Id. at 28.)

         Tracy-Ramirez interviewed the Fraternity president, who confirmed that the Sorority president had made such a report to him. (Id. at 7.) Soon after receiving that report, Jane Doe 1's boyfriend (also a Fraternity brother) approached the Fraternity president and told him that he had heard from Jane Doe 1 that she and Jane Doe 2 had been talking over Spring Break and had concluded that Plaintiff had raped them both. (Id.) Given this information, the Fraternity president surmised that the alleged rape reported by the Sorority president had been committed by Plaintiff against Jane Doe 2, and so Plaintiff was now being accused of two rapes-one against Jane Doe 1 and another against Jane Doe 2. (Id.) The Fraternity president then “decided to notify the Dean of Students.” (Id.) Tracy-Ramirez confirmed that the Fraternity president was the anonymous caller who spoke with Gonzalez on April 15, 2014, thus prompting the very investigation in which Tracy-Ramirez was then engaged. (Id. at 41.)

         E. Plaintiff's Involvement in the Investigation

         As Tracy-Ramirez pursued interviews with Jane Does 1 and 2, and with witnesses, she also was communicating with Plaintiff. On April 21, 2014 (the same day as her interview with Jane Doe 1), Tracy-Ramirez e-mailed a “Notice of Investigation” to Plaintiff. (ECF No. 26 ¶ 51.) This Notice contains no details regarding the accusations against Plaintiff, but instructed him to contact Tracy-Ramirez and schedule a meeting by April 24. (Id.)[6] That meeting ended up taking place on April 26. (Id. ¶ 52.)[7] Tracy Ramirez gave an oral account of Jane Doe 1's accusations and told Plaintiff that “he had one opportunity to respond, at that one-hour meeting. Defendant Tracy-Ramirez further told Plaintiff that any information he provided after the meeting would not be considered as part of his defense.” (Id.)

         Plaintiff himself does not describe his response either to this ultimatum or to the accusations Tracy-Ramirez was relaying from Jane Doe 1. Tracy-Ramirez's report recounts Plaintiff's reaction as follows: “[Plaintiff] and his advisor [an attorney] stated that because they had just learned about the ‘who, what, and when' they would not be able to respond but would like to at some other point in time.” (ECF No. 28-1 at 4.)

         On May 1, 2014, Plaintiff's attorney sent a letter to the University “requesting an opportunity to review the contents of the ongoing investigation file, and protesting the manner in which Defendant Tracy-Ramirez was conducting the investigation.” (ECF No. 26 ¶ 14.) Plaintiff does not say whether this letter elicited any response.

         On May 7, 2014, Tracy-Ramirez transmitted to Plaintiff a “Revised Notice of Investigation.” (ECF No. 26 ¶ 54.) Plaintiff provides no details of this Revised Notice. Tracy-Ramirez's report states that it provided all the relevant details she had learned about the alleged rape of Jane Doe 1, including the intoxication, Plaintiff's boasting about the sexual encounter, and his statements to others that Jane Doe 1 “repeatedly told [him] ‘no' and that [he] continued the activity anyway.” (ECF No. 28-1 at 2.)

         On May 9, 2014, Plaintiff or his attorney communicated with the University's counsel, again requesting an opportunity to review the investigative file. (ECF No. 26 ¶ 55.) The University's counsel eventually “cut off contact, but first advised Plaintiff that he was required to respond to the Revised Investigation Notice on or before May 27, 2014.” (Id.)

         On the specified date, Plaintiff e-mailed a written response complaining about his continuing inability to obtain “specific information about the accusations against me.” (ECF No. 28-1 at 4.) Plaintiff nonetheless declared,

[I]t is not true that on or about August 31, 2013 I attended a party that began on [Fraternity] property where alcohol was served. More importantly, I did not have nonconsensual sexual contact and intercourse with [Jane Doe 1] in my room on or about August 31, 2013, or at any other time for that matter. I did not have sexual contact and intercourse with her on or about August 31, 2013 or at any other time, knowing that she lacked the capacity to consent due to her level of intoxication; and I did not have sexual contact and intercourse with her after she repeatedly told me no. All of those accusations are false, as is any report that I have made statements admitting to doing any of those things.

(Id. at 5.)

         On June 10, 2014, Tracy-Ramirez issued a new Notice of Investigation, this one related specifically to Jane Doe 2. (ECF No. 26 ¶ 57.) “The notice provided only vague allegations and did not identify Jane Doe 2 by her full name.” (Id.)[8] Plaintiff submitted a written response to this Notice on June 16, 2014, denying the accusations. (Id. ¶ 58.)

         On July 2, 2014, Plaintiff and his attorney were permitted to view the investigation file but not to make copies of anything contained in it. (Id. ¶ 59.) Tracy Ramirez expected Plaintiff to meet with her to present his defense on that same day, but Plaintiff objected and received a one-week extension. (Id.)

         On July 9, 2014, Plaintiff's attorney submitted a written statement (id. ¶ 60), apparently in lieu of meeting with Tracy-Ramirez in person. This statement accused Tracy-Ramirez of presuming Plaintiff guilty until proven innocent, and of denying him due process, such as by denying him the right to confront his accusers and cross-examine witnesses. (Id.) Given this lack of trial-like procedure, Plaintiff's attorney announced that “there is nothing more that [Plaintiff] can do than repeat that he is innocent of the accusations against him.” (ECF No. 28-1 at 6.)

         At two unspecified times-presumably before Plaintiff's July 9 statement-Tracy-Ramirez contacted Plaintiff “to remind him of his opportunity to provide names of anyone he believed might have relevant or helpful witness information but he did not provide any such information.” (Id. at 6.)

         F. Tracy-Ramirez's Report and Plaintiff's Expulsion

         On July 24, 2014, Tracy-Ramirez issued her report. She found Jane Doe 1, Jane Doe 2, and all of the witnesses credible. (Id. at 30-37.) She found Plaintiff not credible, largely based on contradictions between his claims and those made by multiple other witnesses. (Id. at 37-38.) Also, while claiming that Plaintiff's choice to interact largely through written statements “d[id] not detract from his credibility, the absence of a substantive interview did deprive this investigator of the opportunity to ask detailed questions about [Plaintiff's] perspective and assess his level of forthrightness.” (Id. at 37.) Plaintiff characterizes this as “an adverse inference against [him] for failing to meet in person or provide more details about the accusations.” (ECF No. 26 ¶ 61.) In any event, Tracy-Ramirez found “that it is more likely than not” that Plaintiff engaged in sexual intercourse with Jane Doe 1 under circumstances where Plaintiff could not have reasonably concluded that Jane Doe 1 consented to the intercourse. (ECF No. 28-1 at 49-50.) Tracy-Ramirez concluded similarly with respect to Jane Doe 2. (Id. at 51-52.)

         On July 25, 2014, a “review panel” (otherwise unexplained) allegedly “rubber stamped” Tracy-Ramirez's report. (ECF No. 26 ¶ 62.) On August 26, 2014, Doty (head of the University's Office of Student Conduct) permanently expelled Plaintiff from the University. (Id. ΒΆΒΆ 22, 63.) Plaintiff had no right to appeal ...

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