United States District Court, D. Colorado
A. BRIMMER United States District Judge.
matter is before the Court on Defendants' Motion for
Summary Judgment [Docket No. 68], Plaintiff's Motion for
Leave to Submit Supplemental Authority [Docket No. 108],
Plaintiff's Second Motion for Leave to Submit
Supplemental Authority [Docket No. 110], and Defendants'
Motion to Exclude Expert Testimony [Docket No. 117]. The
Court has jurisdiction pursuant to 28 U.S.C. §§
1331 and 1367.
John Doe enrolled at the University of Denver
(“DU”), a private university, in the fall of 2014
as an undergraduate student. Docket No. 68 at 2, ¶¶
1-2. On April 15, 2015, DU Graduate Resident Director Jeffrey
Mariano received a complaint that plaintiff had sexually
assaulted a female student, Jane Doe. Id., ¶ 4.
Mr. Mariano notified Kathryne Grove, then-Director of the
Office of Equal Opportunity (“OEO”) and Title IX
coordinator, regarding the complaint. Id. On May 1,
2015, Ms. Grove and Eric Butler, an OEO investigator, met
with Ms. Doe for an informational meeting regarding the OEO
process. Id. at 3, ¶ 6.
began its investigation into Ms. Doe's complaint on May
5, 2015. Id., ¶ 7. On that day, Ms. Grove and
Mr. Butler interviewed Ms. Doe regarding the incident.
Id. On May 11, 2015, Ms. Grove and Mr. Butler
interviewed plaintiff's roommate, M.F. Id.,
12, 2015, Mr. Butler sent plaintiff a letter notifying him
that “an expression of concern ha[d] been filed that
[he had] allegedly committed the following prohibited
conduct: Non-Consensual Sexual Contact.” Id.
at 3-4, ¶ 10; see also Docket No. 68-30. The
letter further informed plaintiff of his rights and
responsibilities and provided him with a list of resources.
Docket No. 68 at 3-4, ¶ 10; Docket No. 68-30 at
On May 13, 2015, Ms. Grove and Mr. Butler interviewed J.M., a
mutual acquaintance of plaintiff and Ms. Doe who was in
plaintiff's dorm room on the night of the incident.
Docket No. 68 at 4, ¶ 11.
Grove and Mr. Butler conducted an informational interview
with plaintiff on May 20, 2015, which was attended by
plaintiff's attorney. Docket No. 85 at 2, ¶ 12. On
May 27, 2015, Ms. Grove and Mr. Butler again interviewed
plaintiff. Id., ¶ 13. At that time, plaintiff
provided the investigators with a list of witnesses.
Id. On May 28 and 29, 2015, the investigators
interviewed (1) Jeffrey Mariano, the Graduate Resident
Director to whom the sexual assault complaint was initially
reported, and (2) R.H., the student who had accompanied Ms.
Doe when she first reported the sexual assault. Id.
at 4-5, ¶ 15. Supplemental interviews of Ms. Doe, Mr.
Mariano, plaintiff, and M.F. were conducted between May 29,
2015 and June 16, 2015. Id. at 5, ¶ 16. After
each interview, Ms. Grove and Mr. Butler would provide the
interviewee with a Summary Statement and give him or her an
opportunity to review the statement and make changes to
ensure its accuracy. Id. at 3, ¶ 8.
26, 2015, Ms. Grove and Mr. Butler issued their preliminary
report to plaintiff and Ms. Doe. Id. at 5, ¶
18. The preliminary report did not contain the
investigators' findings. Id. Mr. Butler informed
plaintiff and Ms. Doe that they could submit additional
information or corrections to him via e-mail. Id.,
¶ 19. Plaintiff requested a “slight edit” to
the report on July 3, 2015. Id.
investigators issued their final report to Kristin Olson,
DU's Director of Student Conduct, on July 14, 2015.
Id., ¶ 20; Docket No. 67-1 at 1. The report
states that “[t]he investigators find it more likely
than not that [John's] actions on the night of October 9,
2014 resulted in non-consensual sexual contact with [Jane] by
means of coercion in violation of the University's Equal
Opportunity Policies.” Id. at 6, ¶ 21.
The parties dispute whether Jean McAllister, who began her
employment as DU's Director of Title IX on June 1, 2015,
reviewed or provided any input on the report prior to its
issuance. See id., ¶ 24 (stating that Ms.
McAllister only read the report as a “training
exercise”); Docket No. 86 at 3, ¶ 24 (stating that
“McAllister reviewed the final report prior to its
issuance and could not recall whether she provided thoughts
on the report to Grove or Butler”). The parties also
dispute whether defendant Rebecca Chopp, a chancellor of the
university, had any role in plaintiff's case.
See Docket No. 68 at 9, ¶ 35 (stating that
“Chancellor Chopp had no involvement in any aspect of
John's investigation, outcome determination, or
appeal”); Docket No. 86 at 5, ¶ 35 (stating that
“Chopp had significant influence on DU's policies
17, 2015, Ms. Olson sent a letter to plaintiff and Ms. Doe
informing them that an Outcome Council would be convened as a
result of the investigators' finding of responsibility.
Docket No. 68 at 7, ¶ 28. The letter listed the names of
the council members and informed plaintiff and Ms. Doe that
they had the “right to object to the participation of a
member of the Outcome Council based on a demonstrable
significant bias” by sending Ms. Olson
“supporting information” within twenty-four
hours. Id., ¶¶ 28-29. At that time,
plaintiff did not have a reason to believe that any of the
members of the Outcome Council - Molly Hooker, Matthew
Rutherford, and Ms. Olson - were biased against him based on
his gender. Id. at 8, ¶ 30; Docket No. 86 at 5,
Outcome Council convened on July 20, 2015. Docket No. 68 at
8, ¶ 32. On July 22, 2015, the Council notified
plaintiff by phone and written letter of its determination
that it was “in the University's best
interest” to dismiss plaintiff from DU. Id.
Plaintiff appealed the Council's determination on July
27, 2015, arguing that “[t]here were substantial
procedural errors in [the] investigation that would have
likely altered the course of the investigative findings and
ultimate outcomes.” Docket No. 68-6 at 1; Docket No. 68
at 8-9, ¶ 33. Among these errors were “(1) [the]
failure to include information provided by [plaintiff] in the
investigative report; (2) [the] failure to properly
investigate and collect all available information; and (3)
[the] failure to ensure proper investigatory techniques were
followed and/or give weight or consideration to [the] fact
that they were not followed.” Docket No. 68-6 at 1;
Docket No. 68 at 8-9, ¶ 33.
30, 2015, Barbara Wilcots, Associate Provost of Graduate
Studies, sent plaintiff a letter informing him that his
appeal was denied and providing an explanation for the
denial. Docket No. 68 at 9, ¶ 34; Docket No. 68-7
(denial letter). The letter stated that this was a
“final decision, with no further route of
appeal.” Docket No. 68 at 9, ¶ 34; Docket No. 68-7
filed his complaint in this case on January 21, 2016. Docket
No. 5. He asserts claims for: (1) violation of his rights
under Title IX of the Education Amendments of 1972, 20 U.S.C.
§ 1681 et seq.; (2) violation of his procedural
due process rights under the Fourteenth Amendment of the U.S.
Constitution; (3) breach of contract; (4) breach of the
covenant of good faith and fair dealing; (5) promissory
estoppel; (6) negligence; and (7) a declaratory judgment
directing, among other things, that “the outcome and
findings made by University of Denver be reversed, ”
that plaintiff's “disciplinary record be expunged,
” and that plaintiff be “readmitted to [the]
University of Denver for the Spring 2016 semester.”
Docket No. 5 at 39-57.
not addressed in depth in the parties' statement of
undisputed facts, plaintiff's claims hinge, in part, on
DU's response to an April 4, 2011 “Dear
Colleague” letter (“DCL”) issued by the
Department of Education's Office for Civil Rights
(“OCR”). Noting the “deeply
troubling” statistics regarding sexual violence on
college campuses, the DCL purported to provide
“additional guidance and practical examples regarding
the Title IX requirements as they relate to sexual
violence.” Russlynn Ali, Assistant Sec'y for Civil
Rights, Dear Colleague Letter, at 2 (Apr. 4, 2011),
(last visited Mar. 13, 2018). It also identified
“remedies that schools and OCR [could] use to end such
conduct, prevent its recurrence, and address its
effects.” Id. Another court in this district
has noted that the DCL “had two major effects”:
(1) “it generally signaled that OCR had adopted a
‘get tough' approach, thus prompting colleges and
universities to devote more attention to sexual assault
accusations”; and (2) it “announced OCR's
view that school investigators should apply a
preponderance-of-the-evidence standard when determining
whether a sexual assault accusation is founded.”
Doe v. Univ. of Colo., Boulder, 255 F.Supp.3d 1064,
1067 (D. Colo. 2017). Plaintiff's claims are predicated
in part on the fact that DU revised certain of its procedures
for addressing sexual misconduct in response to the DCL.
Docket No. 85 at 8-11; Docket No. 95 at 4, ¶ 10.
5, 2017, defendants moved for summary judgment on all claims.
Docket No. 68. After briefing on the motion was complete,
plaintiff filed two motions to supplement his response to
defendants' motion for summary judgment. Docket Nos. 108,
110. On January 29, 2018, defendants moved to exclude the
expert testimony of Aya Gruber and Hanna Stotland under
Fed.R.Civ.P. 702. Docket No. 117.
judgment is warranted under Federal Rule of Civil Procedure
56 when the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-50 (1986). A disputed fact is “material” if
under the relevant substantive law it is essential to proper
disposition of the claim. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only
disputes over material facts can create a genuine issue for
trial and preclude summary judgment. Faustin v. City
& Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir.
2005). An issue is “genuine” if the evidence is
such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997).
“the moving party does not bear the ultimate burden of
persuasion at trial, it may satisfy its burden at the summary
judgment stage by identifying a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim.” Bausman v. Interstate Brands Corp.,
252 F.3d 1111, 1115 (10th Cir. 2001) (internal quotation
marks omitted) (quoting Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 671 (10th Cir. 1998)). “Once
the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v.
City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994). The nonmoving party may not rest solely on the
allegations in the pleadings, but instead must designate
“specific facts showing that there is a genuine issue
for trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986) (internal quotation marks omitted). “To
avoid summary judgment, the nonmovant must establish, at a
minimum, an inference of the presence of each element
essential to the case.” Bausman, 252 F.3d at
1115. When considering a motion for summary judgment, a court
must view the evidence in the light most favorable to the
non-moving party. Id.
Due Process Claim
argue that they are entitled to summary judgment on
plaintiff's Fourteenth Amendment Due Process claim
because defendants are not state actors. Docket No. 68 at
Process Clause of the Fourteenth Amendment prohibits states
from depriving “any person of life, liberty, or
property, without due process of law.” U.S. Const.
amend. XIV, § 1. It is well established that the Due
Process Clause applies only to state actors. See Browns
v. Mitchell, 409 F.2d 593, 594 (10th Cir. 1969) (stating
that “[i]t is axiomatic that the due process provisions
of the Fourteenth Amendment proscribe state action
only”); see also Brentwood Academy v. Tenn.
Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295
(2001) (noting “line between state action subject to
Fourteenth Amendment scrutiny and private conduct (however
exceptionable) that is not”). However, courts have
recognized an exception to this rule when “there is
such a close nexus between the State and the challenged
action that seemingly private behavior may be fairly treated
as that of the State itself.” Brentwood
Academy, 531 U.S. at 295 (internal quotation marks
omitted). Such a nexus may be found where (1) the
“challenged activity . . . results from the State's
exercise of coercive power”; (2) “the State
provides significant encouragement, either overt or
covert” for the challenged activity; (3) the
“private actor operates as a willful participant in
joint activity with the State”; (4) a “nominally
private entity . . . is controlled by an agency of the
State”; (5) the private entity “has been
delegated a public function by the State”; and (6) the
private entity is “entwined with governmental
policies.” Id. at 296; see also Wittner v.
Banner Health, 720 F.3d 770, 775-78 (10th Cir. 2013)
(identifying four “tests” for determining whether
private conduct constitutes state action for purposes of
argues that there are factual disputes precluding summary
judgment on the issue of whether “DU was transformed
into a state actor when it became entwined with the federal
government, which coerced it into adopting punitive Title IX
policies and procedures under threat of legal action and the
loss of federal funding.” Docket No. 86 at 8. Plaintiff
suggests that the state action requirement is met by a
combination of (1) DU's receipt of federal funding, and
(2) the coercive impact of the Department of Education's
Dear Colleague Letter (“DCL”) on DU's
policies and procedures surrounding campus sexual assault.
See Id. at 9-11.
initial matter, DU's receipt of federal funding is
insufficient, standing alone, to transform it into a state
actor for purposes of plaintiff's due process claim.
See Rendell-Baker, 457 U.S. at 840 (holding that a
school's receipt of government funds did not convert its
discharge decisions into actions of the state, even though
the school derived almost all of its income from public
funding); Wittner v. Banner Health, 720 F.3d 770,
776 (10th Cir. 2013) (“Without a showing of coercion,
even substantial state funding of the activities of a private
entity is no more persuasive than the fact of regulation of
such an entity in demonstrating that the State is responsible
for decisions made by the entity in the course of its
business.” (internal quotation marks and brackets
omitted)); Tsuruta v. Augustana Univ., 2015 WL
5838602, at *2 (D.S.D. Oct. 7, 2015) (finding that private
university's receipt of Title IX funding, standing alone,
was insufficient to satisfy state action requirement).
next issue is whether the DCL - and the requirement that DU
comply with Title IX standards as a condition of receiving
federal funds - is sufficiently coercive to establish a
“nexus between the State and the challenged
action.” Brentwood Academy, 531 U.S. at 295. A
private entity may be considered a state actor for purposes
of the Fourteenth Amendment if the “State has exercised
coercive power or has provided such significant
encouragement, either overt or covert, that the choice [to
take the challenged action] must in law be deemed to be that
of the State.” Am. Mfrs. Mutual Ins. Co., 526
U.S. at 52. On the other hand, the mere fact that a business
is subject to state regulation does not by itself convert its