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Doe v. Case Western Reserve University

United States District Court, N.D. Ohio, Eastern Division

September 1, 2017

JOHN DOE, Plaintiff,



         This matter is before the Court on the Motion of Defendants Case Western Reserve University (“CWRU”), Barbara R. Snyder, Lou Stark, G. Dean Patterson, Jr., George O'Connell, and Shannon J. Greybar Milliken to Dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6)[1]. (ECF #11) Defendant Lauren Tompkins filed a separate Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and to join in the Motion to Dismiss of the other Defendants, asserting that the arguments contained in that Motion apply equally to Ms. Tompkins. (ECF #17) The motions are now fully briefed and ready for decision.


         Plaintiff John Doe is a citizen of Texas, but was a student at CWRU and residing in university housing in Cleveland, Ohio during the events at issue in the Complaint. (Compl. ¶ 17) Plaintiff brings this action against Defendants CWRU, Barbara J. Snyder, president of CWRU, Lou Stark, Vice President for Student Affairs of CWRU, G. Dean Patterson, Jr., Associate Vice President for Student Affairs of CWRU, George O'Connell, Director of Student Conduct and Community Standards of CWRU, Shannon J. Greybar Milliken, Associate Dean of Students and Deputy Title IX Coordinator at CWRU, and Lauren Tompkins, an Investigator at CWRU. (Compl. ¶¶ 18-25) Plaintiff asserts the following causes of action against one or more of the Defendants: Count 1: Violation of Title IX of the Education Amendments of 1972-Erroneous Outcome (against CWRU); Count 2: Violation of the Fourteenth Amendment of the United States Constitution Procedural Due Process (against CWRU); Count 3: Breach of Contract (against the CWRU Defendants)[3]; Count 4: Breach of the Covenant of Good Faith and Fair Dealing (against the CWRU Defendants); Count 5: Negligence (against the CWRU Defendants); Count 6: Promissory Estoppel (against CWRU); and a request for a declaratory judgment pursuant to 28 U.S.C. § 2201 (against unspecified defendants). These claims arise out of the actions taken and procedures employed by the Defendants concerning the investigation of allegedly false allegations of sexual assault made by a student, Jane Doe, against Plaintiff resulting in serious sanctions being imposed on Plaintiff, including a multi-year suspension from CWRU.

         The alleged sexual misconduct at issue occurred on the night of September 13-14, 2014. Plaintiff alleges that he met Jane Doe during freshman orientation activities held in August 2014 at CWRU. At that time John Doe was a sophomore orientation team member and Jane Doe was an incoming freshman. Plaintiff and Jane Doe became close friends which developed into an intimate, mutually consensual sexual relationship consisting of frequent sexual encounters. (Compl. ¶¶ 67-69) On the afternoon of September 13, 2014, Jane Doe told Plaintiff she was unsure of her feelings for him and suggested they needed time apart, perhaps the forthcoming weekend. At 9:00 that evening, Jane Doe was at a dorm party where she consumed beer and shots. Plaintiff met his friends at the same dorm party before attending the new pledge initiation party for his fraternity. At about 1:00 a.m., while at an off-campus fraternity party, Plaintiff received a text from a friend stating that Jane Doe has asked him to send Plaintiff a text telling him to come out with them. Jane Doe then sent a text to Plaintiff telling him to come find her. Plaintiff went to the location specified by Jane Doe and found Jane Doe with her arms around another guy. Plaintiff turned around and walked away. At that point Jane Doe spotted Plaintiff and ran after him. She asked him if she could spend the night at his fraternity house. Plaintiff walked with Jane Doe back to her dorm so she could change into sweat pants before going to the fraternity house for the night. (Compl. ¶¶ 70-73).

         Once at the fraternity house, Plaintiff made something for Jane Doe to eat and they talked and played billiards for some time. Jane Doe told Plaintiff that she wanted to sleep with him so they went to the basement of the fraternity house where they knew that they could be alone. They laid on the couch together in the dark room, where they engaged in kissing and mutual touching. Plaintiff helped Jane Doe remove her pants and digitally penetrated her and performed oral sex on her. This was the usual pattern of their sexual relationship that they had done many times before when engaging in consensual sexual relations. Jane Doe did not provide oral sex to Plaintiff nor did Plaintiff ever attempt to have vaginal intercourse with Jane Doe. As Plaintiff and Jane Doe lay facing each other on the sofa, Jane Doe suddenly pushed Plaintiff away, got up from the couch and began to cry. Plaintiff did not know why she was crying but tried to comfort her. Jane Doe told him she wanted to go back to her dorm so Plaintiff drove her back to her building. While in the car Plaintiff apologized to Jane Doe if he had done anything to upset her. Jane Doe told him that she needed time apart to think about their relationship. (Compl. ¶¶ 74-80).

         The next day Plaintiff states that he and Jane Doe went for a drive and talked about their relationship. Jane Doe told him that she wanted to take a break. Thereafter, Plaintiff texted Jane Doe, sent her gifts and tried to talk to her whenever he saw her. He states that after trying for weeks to make amends, by the end of October, Plaintiff stopped all efforts to communicate with Jane Doe. (Compl. ¶¶ 81-83).

         On November 25, 2014, at the insistence of a friend, Jane Doe agreed to speak to Defendant Milliken, the Title IX director for CWRU, to try to “sort out her feelings” for Plaintiff about what happened between them. Prior to initiating an investigation, Ms. Milliken asked Jane Doe if she wanted to request academic accommodations. Plaintiff believes that Jane Doe was failing one of her courses (Anatomy) one week prior to the final exam and that she was permitted to withdraw from that class as an academic accommodation provided by the Title IX Office. The Anatomy course was allegedly required for Jane Doe to continue in the nursing program and by allowing her to withdraw, she would be eligible to repeat the course without having had a failing grade from the first attempt and the failed class would not affect her grade point average. (Id. ¶¶ 84-87) In contrast, Plaintiff states that he informed Ms. Milliken (at their first meeting on December 11, 2014) that due to his recent severe depression he had stopped going to classes for two weeks, had dropped one course and was having difficulty in Spanish. Although CWRU policy stated that a student accused of sexual misconduct must also be provided with support resources, Plaintiff was not informed of or offered any academic accommodations. (Id. ¶¶ 88, 89)

         Ms. Milliken allegedly asked Jane Doe what she would like to see happen with the sexual misconduct investigation and described the next steps, including support resources, no contact directive, police notification, and written statement. (Id. ¶¶ 91-92). On December 10, 2014, Plaintiff received a No Contact Directive with respect to Jane Doe. On December 11, 2014, he received an email directing him to make an appointment with Trina Jones. The email did not state the purpose of the meeting or advise him that he could bring an advisor with him. Plaintiff asserts that he was blind sided when the meeting turned out to be with Ms. Milliken, the Title IX investigator. Plaintiff contends that he had not received a notice of investigation or a discussion of his rights and responsibilities. (Id. ¶¶ 93-94) Further, he informed Ms. Milliken at the start of their meeting that he was having trouble verbalizing things lately because of a depression based aphasia and that he had an impairment in the speaking portion of the brain, so he had been taking pills. (Id. ¶ 95) Ms. Milliken offered no resources or accommodation to Plaintiff upon receiving the information regarding Plaintiff's mental health and disabilities. (Id. ¶ 96)

         In response to Ms. Milliken's request that Plaintiff tell her what happened on the night of the incident with Jane Doe, Plaintiff, who is devoutly religious, began to confess that he “became tempted to do things that were not moral.” Plaintiff alleges that Ms. Milliken did not ask him what he meant by “not moral” and asserts that she presumed that his statement was an admission of responsibility for sexual assault. (Id. ¶ 97)

         Plaintiff met with Ms. Milliken a second time on January 21, 2015, where she told Plaintiff that the purpose of the meeting was to confirm his statements made in his December interview and proceed to hearing. Plaintiff alleges that he denied the allegations and requested a formal hearing. (Id. ¶ 100)

         Jane Doe was contacted by the CWRU Police on two occasions regarding a report made by the Student Conduct Office that she had been involved in an incident of forcible sexual assault. After meeting with the officers, Jane Doe declined to pursue charges against Plaintiff and informed them that she had no interest in assisting with a criminal prosecution against Plaintiff. (Id. ¶101)

         Plaintiff asserts that he did not learn of the allegations against him until February 6, 2015. (Id. ¶ 102) Defendants Milliken and Tompkins interviewed 14 witnesses between February 9 and February 24, 2015. Plaintiff was not permitted to review the witness statements or to provide responses to the statements. Defendant interviewed Jane Doe again and again discussed academic accommodations for Jane Doe. (Id. ¶¶ 104-05)

         On February 25. 2017, an Administrative Hearing was held before Defendant O'Connell, CWRU's Director of Student Conduct and Community Standards. The only participants were Ms. Milliken and Plaintiff. Mr. O'Connell notified Plaintiff of his decision letter on February 27, 2015, which sanctioned Plaintiff to two years of suspension, status of persona non grata, no contact order with Jane Doe, and permanent ban from residing in University housing. Plaintiff was given three days to appeal the decision. The Appellate Board affirmed the sanctions in all respects except it increased the suspension from two years to three years, through May 2018. (Id. ¶¶ 106-09)

         Plaintiff alleges that the Department of Education's April 2011 “Dear Colleague Letter” put increased pressure on colleges to have prompt procedures to investigate and resolve complaints of sexual misconduct. The Dear Colleague Letter (“DCL”) required schools to adopt a preponderance of the evidence standard in cases involving sexual misconduct, and urged schools to minimize the burden on the complainant. (Id. ¶¶ 37-38). The Complaint details the Obama Administration's efforts to make the DCL binding on schools, including the hiring of hundreds more investigators by the Department of Education Office of Civil Rights to ensure Title IX enforcement and notes that the Federal Government is investigating approximately 307 schools for possible Title IX violations. In July 2016, Vice President Biden warned that schools that do not comply with administration guidelines could be stripped of federal funding. (Id. at ¶¶ 39-43) Plaintiff cites numerous 2014 media reports that “schools are running so scared of violating the civil rights of alleged victims that the end up violating the due process rights of defendants instead.” (Id. at ¶¶ 43-44) Plaintiff alleges that in response to all of the pressure from the Office of Civil Rights, the Department of Justice and the White House, educational institutions like CWRU, have limited the procedural protections afforded to male students like Plaintiff in sexual misconduct cases. (Id. ¶ 45)


         In evaluating a motion to dismiss, the court must construe the complaint in the light most favorable to the plaintiff, accept its factual allegations as true, and draw reasonable inferences in favor of the plaintiff. See Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). The complaint need not contain detailed factual allegations, but it must include more than labels, conclusions, and formulaic recitations of the elements of a cause of action. Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 555).

         To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege facts that “state a claim to relief that is plausible on its face, ” and that, if accepted as true, are sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570. “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. 678. “A claim is plausible on its face if the ‘plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' ” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir.2011), cert. denied, 132 S.Ct. 1583, (2012) (quoting Iqbal, 556 U.S. at 677).

         On a motion brought under Rule 12(b)(6), the court's inquiry is limited to the content of the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint may also be taken into account. See Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008); Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001).

         Thus, for the purposes of this Motion to Dismiss, the Court accepts the Plaintiff's factual allegations as true and construes the Complaint in the light most favorable to Plaintiff. However, the Court will not credit the Complaint's mere conclusory statements without reference to its factual content. Iqbal, 566 U.S. at 686.


         I. Federal Claims

         Moving first to the federal claims asserted in the Complaint, Defendants argue that Plaintiff's Title IX claim (Count 1) fails because it lacks any non-conclusory factual allegations that any of the alleged procedural flaws were motivated by gender bias. Defendants argue that Plaintiff's Fourteenth Amendment claim (Count 2) must be dismissed because the Fourteenth Amendment due process requirements do not apply to a private educational institution's disciplinary proceedings. The Court will consider these arguments in order.

         A. Title IX Claim against (CWRU)

         Title IX provides: “[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 educational program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The Department of Education and the Department of Justice have also adopted regulations that require schools to “adopt and publish grievance procedures providing for the prompt and equitable resolution of student [...] complaints alleging any action that would be prohibited by” Title IX regulations, including sexual assault. See 34 C.F.R. § 106.8(b); 28 C.F.R. § 54.135(b).The Sixth Circuit, citing Yusuf v. Vassar College, 35 F.3d 709, 715 (2d Cir. 1994), has recognized a private right of action under Title IX where a plaintiff alleges that an educational institution implemented disciplinary actions that discriminated against the plaintiff based on sex. Mallory v. Ohio Univ., 76 F. App'x 634, 638-39 (6th Cir. 2003); Doe v. Case Western Reserve Univ., No. 1:14 CV 2044, 2015 WL 5522001 at *4 (N.D. Ohio Sept. 16, 2015). “Title IX bars the imposition of university discipline where gender is a motivating factor in the decision to discipline. Yusuf, 35 F.3d at 715.

         Courts have analyzed Title IX claims arising from disciplinary hearings under four standards: the “erroneous outcome” standard, the “selective enforcement” standard, the “deliberate indifference” standard, and the “archaic assumptions” standard. Doe v. Univ. of the South, 687 F.Supp.2d 744, 756 (E.D. Tenn. 2009); Doe v. Case Western Reserve Univ., 2015 WL 5522001 at *4. In this case, Plaintiff's first cause of action alleges a Title IX violation against CWRU based on the erroneous outcome theory[4]. (ECF #21 at 13) The gravamen of an erroneous outcome claim is that an innocent person was wrongly found to have committed an offense because of his or her gender. Marshall v. Ohio Univ., No. 2:15 CV 775, 2015 WL 7254213, at *5 (S.D. Ohio Nov. 17, 2015).

         In order to state an erroneous-outcome claim, a plaintiff must plead:

(1) facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding” and
(2) a particularized ... causal connection between the flawed outcome and gender bias.

Doe v. Cummins, 662 F.App'x 437, 452 (6th Cir. 2016), citing Yusuf, supra, 35 F.3d 709, 715.

         In order to satisfy the first element of the test, Plaintiff must

allege particular facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding....However, the pleading burden in this regard is not heavy. For example, a complaint may allege particular evidentiary weaknesses behind the finding of an offense such as a motive to lie on the part of a complainant or witnesses, particularized strengths of the defense, or other reason to doubt the veracity of the charge. A complaint may also allege particular procedural flaws affecting the proof.

Yusef, 35 F.3d at 715. Here, Plaintiff alleges that Jane Doe had a reason to lie-she allegedly needed the Title IX accommodation to withdraw from a class that she was failing without having the F applied to her gpa; Defendants found Jane Doe to be more credible despite her inconsistent and varying account of the events; Defendants lured Plaintiff into a false sense of security when they falsely assured him it would be in his best interests to cooperate and tell them everything; overlooked all exculpatory evidence; Defendants ignored evidence regarding Plaintiff's mental health and disabilities and the fact that he was taking medication affecting his ability to communicate and instead pressed forward with the interview without suggesting contacting disability or support services; Plaintiff was never permitted to review or respond to any of the 14 witness statements prior to the hearing; Plaintiff was not provided with the Investigation Report prior to his hearing and was ...

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