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Doe v. University of Sciences

United States District Court, E.D. Pennsylvania

July 29, 2019



          Juan R. Sánchez, C.J.

         Plaintiff John Doe was accused by two women of sexual assault just before the beginning of his senior year at Defendant University of the Sciences (the University).[1] After an outside investigator concluded it was more likely than not Doe was responsible for having sex with his accusers without their affirmative consent, the University expelled him. Doe appealed his expulsion through the University's internal processes. His appeal was denied, and, in mid-January, 2019, Doe's expulsion became effective. After an unsuccessful attempt to obtain injunctive relief which would have allowed him to complete his senior year and graduate, Doe filed the Amended Complaint. The University then moved to dismiss pursuant to Rule 12(b)(6). The Court will grant the University's motion and dismiss the Amended Complaint in its entirety because Doe has failed to plead (1) facts suggesting gender-motivated bias in his disciplinary proceedings; (2) the existence of specific contract provisions the University may have violated during his disciplinary proceedings; (3) conduct sufficiently outrageous to support a claim for the intentional infliction of emotional distress; and (4) facts distinguishing his contract claim from his claim for negligent infliction of emotional distress. Because Doe has already had at least one chance to adequately plead his case and has again failed to do so, dismissal will be with prejudice.

         FACTS [2]

         Plaintiff John Doe is a resident of North Carolina who, until January, 2019, was a student at Defendant University of the Sciences, a private university located in Philadelphia, Pennsylvania which receives federal funding. The relationship between Doe and the University was governed by the Sexual Misconduct Policy, see Am. Compl. Ex. A, and the Student Handbook (Handbook), see Am. Compl. Exs. B & C.

         The events giving rise to this litigation stem from separate sexual encounters between Doe and two female students, identified as Jane Roe 1 (Roe 1) and Jane Roe 2 (Roe 2), in November, 2017, and January, 2018.[3] Both women claimed their respective sexual encounters with Doe were not consensual. Roe 1 reported her alleged assault to the University on August 24, 2018. She then prompted her sorority sister, Roe 2, to report her alleged assault, which Roe 2 did on August 30, 2018.

         Having received the reports from Roes 1 & 2, the University then proceeded to investigate both claims simultaneously. On August 30, 2018, the University's Title IX Coordinator notified Doe that a formal investigation was being initiated to determine whether he had violated the University's Sexual Misconduct Policy. On that date, the University provided Doe a “Notice of Sexual Misconduct Investigation, ” which identified Roes 1 & 2, provided the dates and locations of the alleged assaults, described the sexual nature of the allegations, and listed the specific provisions of the University's Sexual Misconduct Policy Doe allegedly violated. See Mot. to Dismiss Ex. 1 at 1. On September 5, 2018, the University hired outside counsel to investigate Roes' allegations.

         On November 13, 2018, the investigator tendered her Report of Investigation (Report), [4]concluding a preponderance of the evidence established Doe violated Section 1.6 of the Sexual Misconduct Policy by engaging in sexual intercourse with Roe 1 and Roe 2 without securing their affirmative consent. The Report also reflects that, in the course of the investigation, the investigator met with Roe 1 on September 11, 2018, and October 23, 2018; Roe 2 on September 13, 2018, and October 23, 2018; and Doe on October 2, 2018, and October 25, 2018. See Mot. to Dismiss Ex. 2 at 3-4. The Report also indicates the investigator interviewed ten separate witnesses-three female students identified by Roes 1 & 2, one male student identified by both Roe 2 and Doe as having relevant information, and three male and three female students suggested exclusively by Doe. Id. She also appears to have reviewed text messages provided to her, and the University's internal investigation file (which consisted of notes of interviews of Roe 1, a witness, and Roe 2, which were conducted by the University's Title IX investigator on August 24, 28, and 30, 2018). Id. at 2.

         On November 14, 2018, one day after the investigator completed the Report, the University's Title IX Coordinator informed Doe of the result. On December 7, 2018, the Coordinator informed Doe that, two days earlier, on December 5, 2018, an administrative panel had convened to determine the sanctions. This panel determined the appropriate sanction was expulsion, with a notation on his academic transcript, a campus restriction, and no contact order with respect to Roes 1 & 2. Doe then submitted a written appeal, which was subsequently denied after review by a separate administrative panel.

         On January 24, 2019, Doe commenced the instant action by filing a Complaint and Motion for a Temporary Restraining Order and Preliminary Injunction. After holding a two-day hearing and receiving proposed findings of fact and conclusions of law, the Court denied the Motion and issued a Memorandum discussing its reasons for doing so. See Order, Feb. 14, 2019, ECF No. 14. The University then moved to dismiss the action. Doe filed the Amended Complaint on April 15, 2019, and the University moved to dismiss again. The Court held oral argument on July 10, 2019. The Motion to Dismiss is now ripe for decision.


         The Amended Complaint contains claims for gender-discrimination in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., for which the Court exercises jurisdiction pursuant to 28 U.S.C. § 1331, and state law claims for breach of contract and intentional and negligent infliction of emotional distress, for which the Court possesses jurisdiction pursuant to 28 U.S.C. § 1367(a).[5] The University moves to dismiss each of these claims for failure to state a claim upon which relief could be granted. See Fed. R. Civ. 12(b)(6). The Court will first address the University's motion as it applies to the Title IX claim (Count I), and then the claims for breach of contract (Count II), intentional infliction of emotional distress (Count III), and negligent infliction of emotional distress (Count IV).[6]

         To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the facts pleaded “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. When evaluating a pleading under Rule 12(b)(6), the Court “must accept all of the complaint's well-pleaded facts as true, ” and then “determine whether the facts alleged in the complaint are sufficient to show that plaintiff has a ‘plausible claim for relief.'” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).

         The Court begins with Doe's claim for relief under Title IX, which prohibits discrimination on the basis of sex by educational institutions receiving federal funding. See 20 U.S.C. § 1681(a) (“No 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.”).[7] “Because Title IX prohibits (under covered circumstances) subjecting a person to discrimination on account of sex, it is understood to bar the imposition of university discipline where gender is a motivating factor in the decision to discipline.” Doe, 831 F.3d at 53 (internal quotation marks omitted). Plaintiffs alleging discrimination in violation of Title IX generally invoke one or more of three possible theories, known commonly as erroneous outcome, selective enforcement, and deliberate indifference. Doe v. Trs. Of Univ. of Pa., 270 F.Supp.3d 799, 822 (E.D.Pa. 2017) (citation omitted). Doe's Amended Complaint invokes all three, and so the Court addresses each in turn.

         The Court described erroneous outcome claims in its Memorandum concerning Doe's request for injunctive relief. As noted therein, in an erroneous outcome claim, the plaintiff alleges he or she is actually innocent of the charged conduct and was wrongly found responsible for the violation for which he or she is punished. See Memo. 8, Feb. 14, 2019, ECF No. 13. To be successful, a plaintiff must “allege particular facts sufficient to cast some articulable doubt on the accuracy of the discipline” and “allege particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding.” Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994); see also Doe v. Baum, 903 F.3d 575, 585 (6th Cir. 2018); Trs. of the Univ. of Pa., 270 F.Supp.3d at 822-23. The Amended Complaint fails to adequately allege either aspect of the claim.

         First, the Amended Complaint does not allege facts sufficient to cast any articulable doubt on the accuracy of Doe's discipline. As the Report reflects, the investigator interviewed Doe, Roe 1, and Roe 2, on two separate occasions each (for a total of six separate interviews) and considered statements provided by ten separate witnesses, both male and female, and identified by Roes 1 & 2 and Doe. Despite the expansive process which resulted in his expulsion, Doe claims that it was tainted by five procedural flaws. He describes these as the use of (1) a single investigator to investigate multiple claims of misconduct; (2) special rules for claims involving sexual misconduct; (3) procedures denying the accused the ability to confront and cross-examine his accuser; (4) an inadequate appeals process; and, (5) policies that have been rescinded or questioned by the United States Department of Education.

         None of Doe's five conclusory allegations suffices to cast doubt upon the outcome of the disciplinary process. It is not obvious-and Doe has not adequately explained-why either the University's use of a single investigator or the Department of Education's decision to rescind non-binding guidance (after a change in administrations) could create an articulable doubt as to the outcome of the University's investigation. Doe similarly fails to explain why the University's appeals process, the special procedures applicable to sexual assault allegations, and his inability to cross-examine Roes 1 & 2-despite his having been interviewed twice by the investigator and suggesting seven separate witnesses in his defense-possibly tainted the outcome of the process here.[8] At most, Doe has compiled a list of generalized complaints about the University's disciplinary process unmoored from any actual impact on the accuracy of his specific process. The Court thus finds that he has failed to adequately allege particular facts casting some articulable doubt on the University's finding of his responsibility.

         Second, even if the Court were satisfied that one or more of the five alleged flaws in the discipline process created some doubt about its accuracy, the Court would nevertheless grant the motion to dismiss because Doe has failed to adequately allege facts suggesting that gender bias motivated the allegedly erroneous outcome. The types of allegations that would raise the requisite inference include: statements from administrators or patterns of decision-making suggesting bias, Yusuf, 35 F.3d at 715, a combination of external pressure and a disciplinary board's decision to credit all female testimony and reject all male testimony, Baum, 903 F.3d at 586, and the combination of external pressure, a process allegedly designed to favor female complainants, public statements from university officials, and training materials used by the university which encouraged its employees to believe the accuser and presume the guilt of the accused, Trustees, 270 F.Supp.3d at 823-24. Here, Doe has alleged no facts similar to those considered sufficient in Yusuf, Baum, or Trustees, and thus the Court finds that he has failed to bridge the gap between the allegedly flawed outcome and gender bias. See Yusuf, 35 F.3d at 315. Instead, Doe relies on generalities, see, e.g., Am. Compl. ¶ 94, [9] which fail to raise his right to relief from speculative to plausible. See Iqbal, 556 U.S. at 678.

         In his Opposition, Doe cites the Second Circuit's decision in Doe v. Columbia, 831 F.3d 46 (2d Cir. 2016). The comparison is not helpful. In that matter, the plaintiff supported his allegation that the university had been motivated to discipline him by public pressure by referencing several, specific examples. See Columbia, 831 F.3d at 50-51. These included complaints by various student organizations that were publicized by the New York Post, efforts by the Columbia University Democrats to ensure the university was not giving “light punishments” to male students, a January 23, 2014, article in the student-run newspaper criticizing the university's handling of sexual assault cases, and twenty-three student complaints filed with the Department of Education alleging the university mishandled incidents of sexual assault. Id. Here, Doe vaguely avers that “there has been substantial criticism of universities” and that “on information and belief, the University's administration was cognizant of, and sensitive to, these criticisms.” Am. Compl. ¶ 93 (emphasis added). This averment is deficient because, unlike the public pressure discussed in Columbia, it identifies no specific criticisms of the University, or actions the University may have taken in response to those criticisms at all, let alone those that would suggest that his discipline was motivated by gender bias.

         At oral argument, the parties discussed the Seventh Circuit's June 28, 2019, decision in Doe v. Purdue University, --- F.3d ---, 2019 WL 2707502 (7th Cir. 2019), which reversed and remanded a district court's decision dismissing due process and Title IX claims stemming from university disciplinary processes. The comparison to that decision is as unhelpful to Doe as the comparisons to Columbia, Yusuf, Baum, and Trustees. As an initial matter, the Seventh Circuit stated that the “Dear Colleague Letter”-which forms a key component of Doe's claim-is “standing alone . . . obviously not enough to get [plaintiff] over the plausibility line.” 2019 WL 2707502, at *12 (citing Baum, 903 F.3d 586). Moreover, the allegations upon which the Purdue plaintiff relied in that matter were far more specific than those presented by Doe. For example, the Purdue plaintiff alleged that the Title IX coordinator credited the testimony of the complainant over his testimony without having met with the complainant and without providing more than a “cursory statement” as to why she did so. Id. Doe makes no such allegation here, nor could he because the Report makes clear he met with the University's investigator multiple times prior to the issuance of her report.

         The plaintiff in Purdue also alleged the board responsible for recommending a punishment to the Title IX coordinator was biased against him because its members made up their minds before speaking to plaintiff and refused to hear from his witnesses. 2019 WL 2707502, at *12. Again, there is no such allegation here. Doe alleges that he timely appealed to the analogous board at the University by submitting a written statement to it, Am. Compl. ¶ 76, and the Report also makes clear that the investigator heard from him and the seven witnesses he identified. As further evidence of gender-motivated bias, the Purdue plaintiff also cited a Facebook post by the university's “Center for Advocacy, Response, and Education, ” entitled “Alcohol isn't the cause of campus sexual assault. Men are.” 2019 WL 2707502, at *12. As described above, Doe offers no similar statements by University administrators or personnel.[10] For these reasons, Purdue is unavailing.

         As the foregoing comparisons to Purdue, Columbia, Yusuf, Baum, and Trustees, make clear, Doe's Amended Complaint fails to allege facts that raise the inference of gender bias, and, his Title IX claim will be dismissed to the extent it relies on the erroneous outcome theory.

         Doe next relies on the “selective enforcement” theory of Title IX liability, which requires a showing 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.” Yusuf, 35 F.3d at 715. Success on such a claim requires that a male plaintiff “allege a female was in circumstances sufficiently similar to his own and was treated more favorably by the university.” Saravanan v. Drexel Univ., No. 17-3409, 2017 WL 5659821, at *6 (E.D. Pa. Nov. 24, 2017) (citation and internal quotation marks omitted). In order to make an appropriate comparison, the two students “must have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the [school's] treatment of them for it.” Id. (quoting Ke v. Drexel Univ., No. 11-6708, 2015 WL 5316492, at *19 (E.D. Pa. Sept. 4, 2015)). The plaintiff must establish the selective enforcement was motivated by gender. Doe v. Rider Univ., No. 16-4882, 2018 WL 466225, at *9 (D.N.J. Jan. 17, 2018).

         Here, Doe alleges that the University engaged in gender-motivated selective enforcement by punishing him, but not Roe 2, despite the fact that both he and Roe 2 had consumed alcohol prior to their sexual encounter. In other words, Doe now claims that, at the same time he allegedly violated the Sexual Misconduct Policy by having sex with Roe 2 without her affirmative consent, Roe 2 was allegedly violating the Sexual Misconduct Policy during the same encounter by having sex with him without his affirmative ...

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