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Doe v. The Trustees of University of Pennsylvania

United States District Court, E.D. Pennsylvania

September 13, 2017



          John R. Padova, J.

         Plaintiff John Doe, a student at the University of Pennsylvania, commenced this action against Defendant The Trustees of the University of Pennsylvania to challenge disciplinary proceedings that resulted in a finding that Plaintiff had violated the University's Sexual Violence Policy in connection with a sexual encounter he had with another student, identified as Jane Roe.

         Defendant has filed a Motion to Dismiss Plaintiff's Verified Amended Complaint (the “Complaint”) pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. For the following reasons, we grant the Motion in part and deny it in part.

         I. BACKGROUND

         The Complaint alleges that, on the night of June 7, 2016, Plaintiff and Jane Roe, both rising seniors at Penn, were introduced to one another by a mutual friend at a local bar. (Compl. ¶¶ 1, 4, 56.) At 1:45 a.m. on June 8, the three went to a nearby members-only bar, where Jane, who did not appear drunk, flirted with John. (Id. ¶¶ 56-57.) When Jane was ready to leave, Plaintiff offered to walk her home and she agreed. (Id. ¶ 58.) Plaintiff and Jane held hands during the five or six block walk, and kissed along the way. (Id. ¶ 59.) When they arrived at an intersection near Plaintiff's house, Plaintiff invited Jane in for “some fun.” (Id. ¶ 61.) She said that she was tired, but Plaintiff suggested that she join him for just a few minutes and she agreed. (Id.) They both walked upstairs to Plaintiff's bedroom on the second floor and had a sexual encounter, which included intercourse. (Id. ¶¶ 1, 4, 62, 66.) Afterwards, Jane stayed and cuddled with Plaintiff, asked that he set an alarm so that she could get to work in the morning, and went to sleep in his bed. (Id. ¶ 69.)

         Plaintiff later learned that when Jane returned home during the morning of June 8, she found her roommate sitting on the front step, having returned from study abroad in the middle of the night. (Id. ¶ 73.) The roommate had not been able to get into the house because Jane was not home. (Id.) When the roommate asked where Jane had been, Jane responded that she had been at “some asshole's place.” (Id. ¶ 74.) Jane then went inside to charge her phone and saw that her roommate had sent her a text message in the middle of the night, saying “I'm going to kill you, ” because Jane had promised to be home when her roommate arrived. (Id. ¶¶ 73, 75.) The roommate reported that she later found Jane crying and asked if she'd been raped, and Jane said yes. (Id. ¶ 76.) That same day, Jane went to Penn Women's Center, then to the Special Services Department in the Division of Public Safety and, finally, to the Philadelphia Police Department's Special Victims Unit. (Id. ¶ 78.)

         Jane filed an official complaint with the University's Office of the Sexual Violence Investigative Officer on June 20, 2016, and an officer was assigned to review the matter. (Id. ¶¶ 79-80.) On June 24, the investigator sent Plaintiff an email, stating that he was investigating an allegation that Plaintiff had violated the University's Sexual Violence Policy, but did not provide any additional details. (Id. ¶ 128.) The investigator interviewed Plaintiff on July 6, 2016. (Id. ¶ 130.) Plaintiff admitted that he and Jane had a sexual encounter and answered all of the questions he was asked. (Id.) Two days later, on July 8, the investigator emailed Plaintiff a letter labeled “Statement of the Charge, ” which advised John that he was being charged with “sexual assault, ” but contained no details other than that Jane had accused him of sexually assaulting her on June 8. (Id. ¶ 131.) The University's Sexual Violence Policy defines “sexual assault” as follows:

Sexual assault (including but not limited to rape) is defined as having committed any of the following acts:
- Any physical sexual contact that involves the use or threat of force or violence or any other form of coercion or intimidation;
- Any physical sexual contact with a person who is unable to consent due to incapacity or impairment, mental or physical. “Incapacity” or “impairment” includes but is not limited to being under the influence of alcohol or drugs or being too young to consent.

(Compl. Ex. A at 1.)

         On August 22, 2016, after conducting an investigation, the “investigative team” issued a Draft Report, which reported the investigator's findings, by a preponderance of the evidence, that Plaintiff had violated the Sexual Violence Policy by engaging in intercourse and other sexual acts without Jane's consent. (Id. ¶ 133.) The University's policy defines consent as “‘an affirmative decision to engage in mutually agreed upon sexual activity and is given by clear words or actions.'” (Id. (quoting Compl. Ex. A. at 1).) The Draft Report includes the team's conclusion that Jane had not consented because she “never said ‘yes, '” was never asked for consent, and never initiated sexual conduct. (Id.) The Report did not address the elements of sexual assault that are set forth in the University's Sexual Violence Policy. (Id.; see also Compl. Ex. A at 1.) The Draft Report included the investigator's conclusion that Plaintiff should be expelled and that his violation of the University's Sexual Violence Policy should be permanently placed on Plaintiff's academic transcript. (Compl. ¶ 134.)

         Plaintiff learned of Jane's version of events through the Draft Report, and it shocked him. (Id. ¶ 135.) The Report focused on the absence of a specific conversation about intercourse and completely discounted, inter alia, Plaintiff's stated belief that Jane was “definitely into it” and Jane's own statement that she “cooperated.” (Id.) The parties were given seven days to review and comment on the Draft Report, which included the opportunity to review the underlying evidence and statements, but they were not given permission to make copies. (Id. ¶ 136.) In reviewing the report, Plaintiff learned for the first time that Jane had “given completely different stories to the police and to the investigator” concerning what happened when they stopped outside Plaintiff's house on June 8, telling the police that Plaintiff “grabbed [her] by [her] hair, arm and neck, . . . while pulling [her] into [his] house” and telling the investigator, as documented in the investigator's notes, that Plaintiff had “gently pulled her toward [his] front door” and “led her upstairs.” (Id. ¶ 140.) The Draft Report purported to reconcile these two accounts by concluding that Plaintiff “pulled” Jane toward the house (omitting the qualifier “gently”) and “pulled” her into the bedroom and onto the bed. (Id. ¶ 141.)

         In early September, Plaintiff submitted his response to the Draft Report, which pointed out “fundamental flaws” in the investigation and the report, including the investigative team's application of different credibility standards to Plaintiff and Jane. (Id. ¶ 142.) Among the other problems Plaintiff raised were: the investigative team's failure to acknowledge (1) inconsistencies between Jane's account to police and her account to the investigator, (2) Jane's motive for fabricating a story, and (3) text messages that Jane sent to her roommate later in the morning of June 8, which, according to the Complaint, undermined Jane's account; the investigator's reliance on two witnesses (the roommate and the student who introduced Jane and Plaintiff to one another), neither of whom had first-hand knowledge of the sexual encounter and both of whom were biased and unreliable; the investigator's determination that Plaintiff was incredible based in part on his mis-reporting of when Jane left Plaintiff's house;[1] and the investigator's drawing of unsupported and unwarranted conclusions from the fact that Plaintiff turned off Jane's cell phone and then told her that he had not. (Id. ¶¶ 142, 146, 159, 161, 164, 166, 168.) Plaintiff also submitted a supplemental statement of facts giving greater details, including details supporting his position that Jane affirmatively consented, all of which he would have provided earlier had he been given more specific detailed notice of the allegations against him during the initial interview. (Id. ¶ 143.)

         Two days after receiving Plaintiff's objections, the investigative team issued a Final Report, which included the same conclusions as the Draft Report and omitted any discussion of the majority of John's concerns and his supplemental factual statement. (Id. ¶ 145.) The investigator addressed the inconsistencies in Jane's statements in the Final Report by adding new information concerning his interview with Jane that he had not included in his initial report summary. (Id. ¶¶ 146-47.) Crucially, the investigator reported that, when he questioned Jane about her inconsistent statement to the police, she told him that Plaintiff had “pulled her into the house while holding her hand and using his other arm to hold her around her neck, head, and hair.” (Id. ¶ 146.)

         Following the issuance of the Final Report, the case proceeded to a hearing before a Hearing Panel. (Id. ¶¶ 21, 178.) The Panel was comprised of three University faculty members, all of whom were among the small subset of professors professionally affiliated with the University's Gender, Sexuality and Women's Studies Program and all of whom had a relationship with Jane's advisor. (Id. ¶¶ 21, 213-14.) Moreover, the Panel had been trained with materials that predispose panel members to believe the female accuser and had not been trained to decide each case on its own merits. (Id. ¶¶ 218-19.)

         Plaintiff submitted several pages of proposed cross-examination questions for the Panel to ask the Investigator at the hearing, but the Panel asked almost no questions at all and asked only one of Plaintiff's proposed questions. (Id. ¶¶ 180, 202 n.8.) At the conclusion of the hearing, the Hearing Panel agreed with the Investigator that Plaintiff had violated the University's Sexual Violence Policy and, by a 2-1 majority, it adopted the investigator's recommended sanction of expulsion and a permanent notation on Plaintiff's transcript. (Id. ¶¶ 25, 27.)

         The Panel's written decision stated that Jane alleged in her complaint that Plaintiff “raped her by penetrating her without her consent, ” even though Plaintiff had not previously been told that Jane had made this accusation. (Id. ¶ 184.) Moreover, while the investigator had concluded that Plaintiff had engaged in intercourse and other sexual acts without Jane's consent and Plaintiff had not been charged with rape, the Hearing Panel concluded that he had raped her. (Id. ¶¶ 133, 185.) Specifically, the Panel found that Jane had “felt intimidated” and, thus, concluded that that there had been the “use or threat of force or violence or any other form of coercion or intimidation” that is necessary to establish rape. (Id. ¶¶ 188-89.)

         Plaintiff appealed the Panel's decision to the University's Disciplinary Appellate Officer (“DAO”) on October 24, 2016, and asked the DAO to overturn both the Panel's judgment that he “had violated the University's Sexual Violence Policy and the sanction of expulsion and a permanent notation on his transcript.” (Id. ¶¶ 31, 224.) Plaintiff argued that the Panel had not followed its own procedures, failed to abide by its promise to provide Plaintiff with fair process, and reached an arbitrary and capricious result. (Id. ¶ 225.) On December 12, 2016, the DAO issued an opinion, again affirming Plaintiff's responsibility, but reducing the sanction to a two-year suspension with no guarantee of readmission. (Id. ¶¶ 32-33, 226.)

         In reaching the decision to affirm Plaintiff's responsibility, the DAO stated that Plaintiff had received sufficient notice that he had been accused of a “sexual assault” occurring on June 8, 2016, and that the University had no obligation to provide any further detail regarding the accusation or its factual support until issuance of the Draft Report. (Id. ¶ 228(a).) The DAO further excused any deficiencies in the investigation, explaining that the Hearing Panel had the opportunity to conduct further examinations, and that Plaintiff had the opportunity to request testimony from additional witnesses. (Id. ¶ 228(c); see also Decl. of James A. Keller (“Keller Decl.”) Ex. 4 ¶¶ 2(a), 3.) In addition, the DAO rejected Plaintiff's assertion that the investigative team distorted the facts and applied inconsistent credibility standards to Plaintiff and Jane, deferring to the credibility findings of the investigative team and the Hearing Panel and declining to specifically address Plaintiff's arguments that there were inconsistencies in Jane's accounts concerning what happened in Plaintiff's home. (Compl. ¶ 228(d)-(e); Keller Decl. Ex 4 ¶¶ 2(b)(ii)-(iv).) It also rejected Plaintiff's arguments that the panel members had undisclosed conflicts of interest because they have professional relationships with Jane's advisor, noting in part that it was Plaintiff's obligation to raise such objections prior to the hearing. (Compl. ¶ 228(f); Keller Decl. Ex. 4 ¶ 5.)

         With respect to the reduction of the sanction to a two-year suspension with the opportunity to re-apply, the DAO noted that the two-member majority of the Hearing Panel appeared to have deferred to the sanction recommendation of the investigating officer. (Compl. ¶ 237(b); Keller Decl. Ex. 4 at 9.) The DAO further noted that the Panel decision did not directly reference any University precedent in spite of the Sexual Violence Policy's directive that it consider such precedent. (Compl. ¶ 237(b)-(c); Keller Decl. Ex. 4 at 9.) The DAO therefore reviewed University precedent and imposed the revised sanction, which it stated was harsher than that imposed in two less egregious cases and less harsh than that imposed in a more egregious case. (Compl. ¶ 232; Keller Decl. Ex. 4 at 9-10.)

         The Complaint asserts seven claims for relief.[2] Count I asserts a claim for breach of contract. Count II asserts a claim for violation of Title IX of the Education Amendments of 1973 (“Title IX”), 20 U.S.C. § 1681 et seq. Counts IV and V allege claims for Intentional Infliction of Emotional Distress (“IIED”) and Negligent Infliction of Emotional Distress (“NIED”). Count VI asserts a claim for violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 Pa. Stat. § 201-2 et seq. Count VII and VIII assert claims for race discrimination, in violation of Title VI of the Civil Rights Act of 1964 (“Title VI”), 42 U.S.C. § 2000d et seq., and 42 U.S.C. § 1981. Defendants have moved to dismiss all seven counts.


         When considering a motion to dismiss pursuant to Rule 12(b)(6), we “consider only the complaint, exhibits attached to the complaint, [and] matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). We take the factual allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. DelRio-Mocci v. Connolly Props. Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011)). Legal conclusions, however, receive no deference, as the court is “‘not bound to accept as true a legal conclusion couched as a factual allegation.'” Wood v. Moss, 134 S.Ct. 2056, 2065 n.5 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         A plaintiff's pleading obligation is to set forth “a short and plain statement of the claim, ” Fed.R.Civ.P. 8(a)(2), which gives the defendant “‘fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The complaint must contain “‘sufficient factual matter to show that the claim is facially plausible, ' thus enabling ‘the court to draw the reasonable inference that the defendant is liable for [the] misconduct alleged.'” Warren Gen. Hosp., 643 F.3d at 84 (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). In the end, we will grant a motion to dismiss brought pursuant to Rule 12(b)(6) if the factual allegations in the complaint are not sufficient “‘to raise a right to relief above the speculative level.'” W. Run Student Hous. Assocs., LLC v. Huntington Nat'l Bank, 712 F.3d 165, 169 (3d Cir. 2013) (quoting Twombly, 550 U.S. at 555).


         A. Breach of Contract

         In Count I, Plaintiff asserts that Defendant breached its contract with him insofar as it failed to abide by its policies and procedures with respect to disciplinary proceedings and nondiscrimination. Defendant moves to dismiss this claim in its entirety, asserting that it fails to state a breach of contract claim upon which relief can be granted.

         To state a claim for breach of contract under Pennsylvania law, a complaint must specifically allege: “‘(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.'” Kaymark v. Bank of Am., N.A., 783 F.3d 168, 182 (3d Cir. 2015) (quoting Omicron Sys., Inc. v. Weiner, 860 A.2d 554, 564 (Pa. Super. Ct. 2004) (internal quotation marks omitted)). “[T]he relationship between a private educational institution and an enrolled student is contractual in nature; therefore, a student can bring a cause of action against [an] institution for breach of contract where the institution ignores or violates portions of the written contract.” Swartley v. Hoffner, 734 A.2d 915, 919 (Pa. Super. Ct. 1999) (citations omitted). The contract between an educational institution and a student includes any “agreement between the parties concerning disciplinary procedures, contained within a portion of the student handbook.” Reardon v. Allegheny College, 926 A.2d 477, 480 (Pa. Super. Ct. 2007) (citation omitted). We review such an agreement “as we would any other agreement between two private parties, ” id. (citing Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 428 (Pa. 2001)), and “students who are being disciplined are entitled only to those procedural safeguards which the school specifically provides.” Boehm v. Univ. of Pa. Sch. of Veterinary Med., 573 A.2d 575, 579 (Pa. Super. Ct. 1990) (citations omitted); see also id. (stating that a private university must substantially comply with established procedures before suspending or expelling a student (citations omitted)).

         In ascertaining the duties that a contract imposes and whether they have been breached, the court must first interpret the terms of the contract. “The paramount goal of contract interpretation is to determine the intent of the parties.” American Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 587 (3d Cir. 2009) (quotation omitted). “The strongest objective manifestation of intent is the language of the contract.” Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69, 76 (3d Cir. 2011) (citations omitted). “When the words of a contract are clear and unambiguous, the intent of the parties must be ascertained from the language employed in the contract, which shall be given its commonly accepted and plain meaning.” TruServ Corp. v. Morgan's Tool & Supply Co., 39 A.3d 253, 260 (Pa. 2012) (citing LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647 (Pa. 2009)). Moreover, “[t]he whole instrument must be taken together in arriving at contractual intent.” Murphy, 777 A.2d at 429 (citation omitted). “The meaning of an unambiguous written instrument presents a question of law for resolution by the court.”[3] Id. at 430 (citing Cmty. Coll. v. Cmty. Coll., Soc'y of the Faculty, 375 A.2d 1267, 1275 (Pa. 1977)).

         Here, the Complaint asserts that Defendant breached numerous provisions of the Student Disciplinary Procedures, as well as certain provisions of its Code of Student Conduct (“Code of Conduct”) and Policy on Equal Opportunity and Affirmative Action (“Nondiscrimination Statement”). While the breach of contract claim focuses primarily on allegations that Defendant breached provisions promising that the disciplinary process would be “fair, ” it also asserts that Defendant breached specific provisions concerning notice, required training for investigators and Hearing Panel Members, the scope of the investigation, the applicable standard of proof, the composition of the Hearing Panel, the fashioning of an appropriate sanction, the appeal process, and nondiscrimination.

         1. Fairness

         The Complaint alleges that Defendant breached provisions of the Student Disciplinary Procedures (the “Disciplinary Procedures”) that promise “fair” proceedings. Specifically, the Complaint alleges that Defendant breached provisions that pledge (1) to provide students “a process that is fundamentally fair, and free of bias or prejudice, ” (2) that the investigating officer will conduct a “thorough and fair investigation, ” and (3) that the hearing will be “fair[] and impartial.” (Compl. ¶¶ 253, 256-57; Compl. Ex. B. ¶¶ II.B.1, II.D, II.G.2.)

         According to the Complaint, the disciplinary proceedings were not “fair” for a variety of reasons, including that Plaintiff was not given sufficient notice of the charges against him; the investigator did not keep accurate notes, skewed the facts in his report, and applied inconsistent credibility standards; the Hearing Panel reached unwarranted conclusions, ignored inconsistencies in Jane's story, slanted the facts in Jane's favor, applied inconsistent credibility standards, and was biased. (Compl. ¶¶ 203, 207-08, 212, 214, 243.) It also asserts that Defendant breached its duty to provide fair proceedings insofar as it trained the investigator and hearing panel members with materials infused with gender bias. (Id. ¶¶ 218-19.)

         In making these claims, the Complaint employs a broad and unlimited interpretation of the word “fair.” Plaintiff appears to take the position that the Complaint can state a cognizable breach of contract claim by simply alleging that some action that Defendant took in connection with the disciplinary proceeding was unfair to him or put him at a procedural disadvantage.[4]However, in interpreting the parties' intent in promising “fundamental fairness, ” and a “fair” investigation and hearing, we cannot consider those terms in isolation. See Murphy, 777 A.2d at 432 (“Simply put, the parties' contractual intent cannot be gleaned by ignoring all but one [term] in the Contract, and then reading that [term] out of context.”) Rather, we must consider the terms in the context of the Disciplinary Procedures as a whole and with reference to the established understanding of “fundamental fairness” in this Commonwealth. When we do so, it becomes clear that the promises of “fairness” do not give rise to “fairness” obligations that are independent of, and separate from, the obligations imposed by the more specific provisions in the Disciplinary Procedures, which themselves describe proceedings designed to be “fair.”[5]

         a. Fundamental Fairness

         In Pennsylvania, a promise of “fundamental fairness” in connection with a university disciplinary proceeding ordinarily requires that a respondent be given “notice of the charges and some opportunity for a hearing.”[6] Ruane v. Shippensburg Univ., 871 A.2d 859, 862 (Pa. Commw. Ct. 2005) (citing Boehm, 573 A.2d at 578-79). More particularly, case law in the Commonwealth indicates that a student is entitled to a “‘statement of the specific charges and grounds which . . . would justify [discipline], '” and should be provided “‘the names of the witnesses against him, '” “‘an oral or written report on the facts to which each witness testifies, '” and an “‘opportunity to present . . . his own defense against the charges and to produce either oral testimony or written affidavits of witnesses on his behalf.'” Boehm, 573 A.2d at 578-79 (quoting Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 158-59 (5th Cir. 1961)) (additional citations omitted)). In addition, there should be a hearing at which the adjudicators are given “‘an opportunity to hear both sides in considerable detail.'” Id. at 579 (quoting Dixon, 294 F.2d at 159). A university is not, however, required to provide “‘a full-dress judicial hearing, with the right to cross-examine witnesses.'”[7] Id. (quoting Dixon, 294 F.2d at 159); see also Ruane, 871 A.2d at 862 (stating that a university is “not obligated to provide a ‘full-dress judicial hearing, ' subject to the rules of evidence or representation by counsel” (quoting Boehm, 573 A.2d at 579)).

         Upon consideration of this legal authority interpreting the requirements of “fundamental fairness” in the university disciplinary setting, we reject Plaintiff's suggestion that the contractual promise to provide “a process that is fundamentally fair” demonstrates the parties' intent to provide “fair” procedures beyond those encompassed within this established meaning of “fundamental fairness.” Moreover, we conclude that the detailed disciplinary procedures that Defendant sets forth in the Student Disciplinary Procedures satisfy the basic requirements of fundamental fairness as they plainly provide notice and an opportunity to be heard. Indeed, as set forth in greater detail below, the Disciplinary Procedures provide for, inter alia, a charge letter that notifies the respondent of the charges against him (Compl. Ex. B ¶ II.D), preparation of a draft factual investigative report, which is provided to respondent for both review and comment before the preparation of a final investigative report (id. ¶ II.E), a subsequent hearing during which both the complainant and the respondent are permitted to give their version of events, and other relevant and appropriate evidence is considered (id. ¶ II.G.2), and an opportunity for either party to appeal the Hearing Panel's decision (id. ¶ II.H.) Accordingly, given these procedures, which plainly satisfy the Commonwealth's basic requirements of “fundamental fairness, ” we conclude that the Complaint cannot, and does not, state a breach of contract claim upon which relief can be granted insofar as it alleges that Defendant breached its contractual duty to provide a process that was “fundamentally fair.”

         b. Fair ...

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