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Doe v. University of Denver

United States District Court, D. Colorado

March 13, 2018

JOHN DOE, Plaintiff,
UNIVERSITY OF DENVER; UNIVERSITY OF DENVER BOARD OF TRUSTEES; REBECCA CHOPP, individually and as agent for University of Denver; KRISTIN OLSON, individually and as agent for University of Denver; JEAN MCALLISTER, individually and as agent for University of Denver; KATHRYNE GROVE, individually and as agent for University of Denver; and ERIC BUTLER, individually and as agent for University of Denver, Defendants.


          PHILIP A. BRIMMER United States District Judge.

         This 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.

         I. BACKGROUND[1]

         Plaintiff 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.[2]

         DU 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., ¶ 9.

         On May 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 5-8.[3] 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.

         Ms. 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.

         On June 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.

         The 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 and procedures”).

         On July 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, ¶ 30.

         The 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.[4]

         On July 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 at 2.

         Plaintiff 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.

         Though 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), available at (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.

         On May 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.


         Summary 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).

         Where “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.

         III. ANALYSIS

         A. Due Process Claim

         Defendants 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 10-11.

         The Due 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 § 1983).[5]

         Plaintiff 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.[6]

         As an 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).

         The 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 ...

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