Doe v. University of Denver

          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 ...