United States District Court, D. Colorado
ORDER
PHILIP
A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE
This
matter is before the Court on Plaintiff John Doe's Motion
for Partial Summary Judgment [Docket No. 70], Defendants'
Motion for Summary Judgment [Docket No. 71], Defendants'
Unopposed Motion for Leave to Submit Supplemental Authority
[Docket No. 93], and Plaintiff's Motion for Leave to
Submit Supplemental Authority [Docket No. 94]. The Court has
jurisdiction under 28 U.S.C. §§ 1331 and 1367.
I.
BACKGROUND[1]
Plaintiff
John Doe enrolled as an undergraduate student at the
University of Denver (“DU”), a private,
not-for-profit university, in the fall of 2015. Docket No. 71
at 2, ¶¶ 1-2. On March 24, 2016, a DU resident
assistant gave notice to DU's Office of Title IX that, on
March 5, 2016, plaintiff subjected Jane Roe to non-consensual
sexual contact. Id. at 3, ¶ 4. Ms. Roe had
visited a hospital on or around March 8, 2016 to obtain a
forensic examination from a sexual assault nurse examiner
(“SANE”). Id. at 3, ¶ 5. DU's
then-Title IX coordinator, Jean McAllister, sent Ms. Roe an
email on March 24, 2016 stating, “I understand that you
have experienced a sexual assault by another DU student. I am
very sorry that you had to deal with that experience.”
Docket No. 70 at 5, ¶ 30. Ms. McAllister met with Ms.
Roe on April 4, 2016 to discuss the resources available to
her and her options for reporting. Docket No. 71 at 3, ¶
6; Docket No. 71-4 at 2. Ms. Roe requested a formal
investigation on or around April 11, 2016. Docket No. 71 at
3, ¶ 7.
An
investigation commenced on April 22, 2016, led by Office of
Equal Opportunity (“OEO”) investigators Eric
Butler and Siri Slater. Id., ¶ 8. On April 29,
2016, Ms. McAllister sent plaintiff a letter stating that
“a DU student has reported concerns that you may have
engaged in violations of University Policies related to
non-consensual sexual contact.” Docket No. 70 at 5,
¶ 33; Docket No. 71 at 4, ¶ 11. T he letter
informed plaintiff of his rights and attached a list of
resources available to him. Docket No. 71 at 4, ¶ 11.
The list of resources included counseling services and the
University chaplain.[2] Id. The next week Ms. McAllister
met with plaintiff for an informational meeting.
Id., ¶ 12. Ms. McAllister again informed
plaintiff of resources available to him as the
respondent.[3] Id.
Between
May 2 and June 1, 2016, Mr. Butler and Ms. Slater interviewed
eleven witnesses identified by Ms. Roe. Docket No. 70 at 6,
¶ 39. None of these witnesses were present immediately
before or immediately after the incident. Id.,
¶ 40. Plaintiff and Ms. Roe were also interviewed.
Id., ¶ 39.
On May
23, 2016, Mr. Butler emailed plaintiff to inform him that the
investigators anticipated finishing interviews that week and
asked plaintiff if he had any other information he would like
considered. Docket No. 71 at 6, ¶ 26. The investigators
issued a preliminary report to plaintiff on June 7, 2016.
Id. at 7, ¶ 29. Plaintiff and Ms. Roe were
given until June 22, 2016 to review the preliminary report
and to submit additional information. Id., ¶
31. Plaintiff responded that he had no additional
information, but was disappointed that the investigators did
not interview any of the five people he had listed in his
interview statement [Docket No. 71-24]. Id., ¶
33; Docket No. 71-10 at 2. Ms. Slater responded that two of
the individuals he sought to have interviewed - his mother
and his lawyer - were not appropriate to be interviewed
because they were “identified as [plaintiff's]
support people and ha[d] been privy to all the communications
that ha[d] taken place during this case.” Docket No. 71
at 8, ¶ 36; Docket No. 71-11 at 4. Ms. Slater stated
that the other two individuals were not interviewed because
the investigators “did not find that they could give us
any more relevant information than [the investigators]
already had and chose not to bring them into this.”
Docket No. 71-10 at 2. The investigators agreed to interview
plaintiff's psychologist, Dr. Mary Bricker. Docket No. 71
at 8, ¶ 37. On July 18, 2016, the investigators made the
amended preliminary report available for plaintiff to review.
Id. at 9, ¶ 39. Plaintiff requested no
changes.[4] Id., ¶ 40.
On
August 16, 2016, Mr. Butler informed plaintiff that the
investigators found it “more likely than not that
[plaintiff] engaged in non-consensual sexual contact with
[Ms. Roe] in her residence hall bedroom on the morning of
March 5, 2016.” Id., ¶ 41. Kristin Olson,
DU's Director of Student Conduct, sent a letter to
plaintiff on August 18, 2016 stating that, because the OEO
found him responsible for violating DU's non-consensual
sexual contact policy, an Outcome Council would be convened.
Id. at 10, ¶ 43. The letter identified the
members of the Outcome Council - Ms. Olson, Molly Hooker, and
either Ryan Buller or Matthew Rutherford - and informed
plaintiff that he “could object to the participation of
a member of the Outcome Council based on a demonstrable
significant bias.” Id. There is no allegation
that plaintiff objected. The Outcome Council convened on
August 22, 2016, id. at ¶ 45, and determined
that, due to the nature and severity of plaintiff's
actions, dismissal from DU was the “only reasonable
outcome.” Id. Plaintiff was informed of this
decision by telephone and by letter on August 23, 2016.
Id. at 11, ¶ 46.
Plaintiff
appealed this decision on August 30, 2016. Id. at
11, ¶ 47. He argued that the investigation contained
“procedural errors so substantial that it greatly
impacted the findings, responsibility determination, and/or
the ultimate outcomes” and that “[t]he outcomes
imposed [were] substantially disproportionate to the severity
of the violation.” Docket No. 71-15 at 2. On September
1, 2016, DU's Associate Provost of Graduate Studies,
Barbara Wilcots, sent plaintiff a letter informing him that
his appeal was denied and providing the reasons for the
denial. Docket No. 71 at 11, ¶ 48; Docket No. 71-16 at
4. The letter stated that this was “a final decision,
with no further route of appeal.”
Id.[5]
Plaintiff
filed this lawsuit on August 15, 2017. Docket No. 3. 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 pursuant to 42 U.S.C. § 1983; (3) breach of
contract; (4) breach of the covenant of good faith and fair
dealing; (5) promissory estoppel; and (6) negligence. Docket
No. 3 at 46-59.
On
November 16, 2018, plaintiff filed a motion for partial
summary judgment on his Title IX claim. Docket No. 70. The
same day defendants filed a motion for summary judgment on
all claims. Docket No. 71. On March 5, 2019, defendants filed
a motion for leave to submit supplemental authority. Docket
No. 93. Plaintiff filed a motion for leave to submit
supplemental authority on June 22, 2019. Docket No. 94.
II.
LEGAL STANDARD
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. However, where, as here, there
are cross motions for summary judgment, the reasonable
inferences drawn from affidavits, attached exhibits, and
depositions are rendered in the light most favorable to the
non-prevailing party. Jacklovich v. Simmons, 392
F.3d 420, 425 (10th Cir. 2004). Furthermore, “[w]hen
the parties file cross motions for summary judgment, we are
entitled to assume that no evidence needs to be considered
other than that filed by the parties, but summary judgment is
nevertheless inappropriate if disputes remain as to material
facts.” Atlantic Richfield Co. v. Farm Credit Bank
of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000)
(internal quotation marks omitted).
III.
ANALYSIS
Each
party argues that it is entitled to summary judgment on
plaintiff's Title IX claim. See Docket No. 70 at
11; Docket No. 71 at 12. Defendants also argue that they are
entitled to summary judgment on plaintiff's Fourteenth
Amendment claim and his state law claims. Docket No. 71 at
17-18.
A.
Title IX Claim
Plaintiff
argues that he is entitled to summary judgment on his Title
IX claim because the decision finding him responsible for
non-consensual sexual contact was an “erroneous
outcome” that was motivated by defendants' gender
bias against him. Docket No. 70 at 14. Defendants argue that
summary judgment is warranted in their favor because
“the undisputed facts show[] there is no evidence that
sexual bias was a motivating factor behind DU's
investigation of [plaintiff] and its determination that he
violated campus policy.” Docket No. 71 at 13. Because
each party raises substantially the same arguments in its
motion for summary judgment and its response to the opposing
party's motion for summary judgment, the Court will
address the cross-motions together.[6]
Title
IX of the Civil Rights Act states 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). In Yusuf v. Vassar College,
35 F.3d 709 (2d Cir. 1994), the seminal case addressing Title
IX claims based on the imposition of university discipline,
the Second Circuit identified two categories of claims
brought by “[p]laintiffs attacking a university
disciplinary proceeding on grounds of gender bias”: (1)
claims of “erroneous outcome, ” where the
plaintiff alleges that he or she “was innocent and
wrongfully found to have committed an offense”; and (2)
claims of “selective enforcement, ” where the
plaintiff “asserts that, regardless of the
student's guilt or innocence, the severity of the penalty
and/or the decision to initiate the proceeding was affected
by the student's gender.” Id. at 715;
see also Doe v. Univ. of Colo., 255 F.Supp.3d 1064,
1073-74 (D. Colo. 2017) (recognizing “erroneous
outcome” and “selective enforcement”
theories set forth in Yusuf).[7] Under either
theory, the plaintiff must show that “gender [was] a
motivating factor in the decision to discipline.”
Yusuf, 35 F.3d at 715; see also Doe v. Univ. of
Colo., Boulder, 255 F.Supp.3d at 1074 (“While some
of the elements of the claims are different under these
theories, both require that a Plaintiff show that gender bias
was a source of the deprivation.” (internal quotation
marks omitted)).
Plaintiff
asserts a Title IX claim under the “erroneous
outcome” theory. See Docket No. 70 at 11. A
plaintiff may demonstrate that sexual bias was a motivating
factor behind an erroneous outcome through evidence such as
“statements by members of the disciplinary tribunal,
statements by pertinent university officials, or patterns of
decision-making that also tend to show the influence of
gender.” Yusuf, 35 F.3d at 715; see also
Ruff v. Bd. of Regents of Univ. of N.M., 272 F.Supp.3d
1289, 1299 (D.N.M. 2017); Doe v. Trustees of Boston
College, 2016 WL 5799297, at *24 (D. Mass. Oct. 4,
2016), aff'd in part, vacated in part on other
grounds, and remanded in 892 F.3d 67 (1st Cir. 2018)
(discussing types of evidence demonstrating gender bias at
the summary judgment stage). Plaintiff argues that he is
entitled to summary judgment on his Title IX claim because
“the totality of the circumstances leads to the
conclusion that DU's erroneous decision finding
[plaintiff] responsible for non-consensual sexual contact was
motivated by a gender bias against male students.”
Docket No. 70 at 24-25. Defendants argue that plaintiff has
failed to present any evidence showing that sexual bias was a
motivating factor behind DU's investigation and expulsion
of plaintiff. Docket No. 71 at 13.
Plaintiff
argues that five categories of evidence support the entry of
summary judgment in his favor on his Title IX claim.
See Docket No. 70 at 15-24. Considering
plaintiff's evidence as a whole, the Court finds that it
does not demonstrate a genuine issue of fact as to whether
sexual bias was a motivating factor behind DU's decision
to discipline plaintiff. To prevail on his Title IX claims,
“it would not be enough for [plaintiff] to convince a
jury that [Roe] received more favorable treatment from [DU]
than he did; he would have to prove that the disparity in
treatment was due to his gender, rather than his status as a
student accused of sexual misconduct.” King v.
DePauw Univ., 2014 WL 4197507, at *10 (S.D. Ind. Aug.
22, 2014). Simply put, plaintiff has failed to present any
evidence that defendants' actions were motivated by
sex-based discrimination or a bias against male students. The
Court addresses each of plaintiff's arguments in turn.
1.
The hiring of Chancellor Chopp and Ms.
McAllister
Plaintiff
first argues that DU's hiring of Chancellor Chopp in 2014
and Ms. McAllister in 2015 “led to a more aggressive
handling of sexual misconduct complaints against male
students at DU.” Docket No. 70 at 15. He cites Ms.
McAllister's and Chancellor Chopp's work histories,
highlighting Ms. McAllister's experience working with
victims of sexual assault, sexual abuse, and domestic
violence and Chancellor Chopp's tenure as president of a
different university, during which time the university
received criticism for its handling of sexual misconduct
allegations. Id. at 16. Beyond noting this
experience, however, plaintiff makes no argument that either
defendant's prior work history demonstrates an anti-male
bias. See Id. at 15-16.
The
hiring of Chancellor Chopp and Ms. McAllister does not
demonstrate a bias against male students.[8] Although
plaintiff argues that these hirings “led to a more
aggressive handling of sexual misconduct complaints against
male students at DU, ” plaintiff fails to provide any
evidence that male students were targeted by defendants in
the adjudication of sexual misconduct allegations. Plaintiff
does not show that any purported increase in time, resources,
or money spent addressing sexual misconduct was directed only
at allegations against male students or allege that any
policy change at DU applied to investigations in which male
students only were accused of sexual misconduct. His argument
suggests only a more serious handling of sexual misconduct
allegations in general. The purported “more aggressive
handling of sexual misconduct complaints” does not
support a finding of gender bias, and plaintiff has not
demonstrated that the more aggressive policy disparately
affects complaints filed against men. See Doe v. Univ. of
Colo., 255 F.Supp.3d at 1078 (quoting King,
2014 WL 4197507, at *10) (stating that universities are
“not responsible for the gender makeup of those who are
accused by other students of sexual
misconduct.”).
Further,
plaintiff has failed to demonstrate why Chancellor
Chopp's experience as president of a university that was
criticized for its handling of sexual misconduct allegations
or why Ms. McAllister's experience working with victims
of sexual assault and domestic violence evidences an
anti-male bias. “[T]he fact that [an individual] has
experience working with survivors of domestic violence does
not establish that she harbors pro-female biases.”
Doe v. Univ. of Denver, 2018 WL 1304530, at *11.
Neither ...