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Doe v. The Ohio State University

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

April 24, 2018

JOHN DOE, Plaintiff,
v.
THE OHIO STATE UNIVERSITY, et al., Defendants.

          OPINION & ORDER

          JAMES L. GRAHAM United States District Judge.

         This matter is before the Court on Defendants' Motion for Summary Judgment on the issue of qualified immunity with respect to Plaintiff's due process claims. (Doc. 116).

         The limited discovery permitted in the Court's order, (Doc. 82), has given the Court a much better understanding of this case. Here, John Doe, a male, fourth-year medical student on track to receive a combined MD/MBA degree was expelled after a female medical student, Jane Roe, who had twice failed the first year of medical school was able to obtain a reprieve from dismissal after reporting that John Doe engaged in non-consensual sexual activity with her while she was under the effects of alcohol. Jane Roe claimed that she suffered a “blackout” and could not remember what happened but realized that sexual conduct had occurred between them when she woke up naked in John Doe's bed the morning after a night of partying.

         Jane Roe had not reported this alleged sexual assault to the university at any time during the 10 month interval between the night in question and her receipt of a letter from the medical school that called her before a review committee and warned she could be dismissed for academic failure. In the academic review proceeding that followed, she blamed her academic failure on the emotional consequences of the alleged non-consensual sexual activity. The university granted her an academic accommodation-the opportunity to restart the first year of medical school for a third time-on the ground that her grades had suffered as a result of the non-consensual sexual activity.

         A disciplinary charge was then leveled against John Doe, and a disciplinary proceeding was held. John Doe testified that the sexual encounter was consensual and that although Jane Roe had been drinking some hours before, she was not incapacitated when they had sex. Jane Roe testified that she was so intoxicated she could not remember the event.

         Not surprisingly, the credibility of the two-John Doe and Jane Roe-was the pivotal issue. Jane Roe asserted that she had no motive to lie and argued that, on the contrary, it was John Doe who had a lot to lose: expulsion from the medical school before entering his final year. One of the hearing board members asked a question about this to John Doe, asking John Doe if he knew why Jane Roe would make this up? And, what would be her motivation to lie? John Doe, who knew nothing about the academic accommodation Jane Roe had received could only reply, “I can't speak for [Jane Roe].” (Disciplinary Hrg. Trans. at 269:25-270:1, Doc. 15).

         Doe claims that the university denied him the ability to provide the decisionmakers with important evidence relevant to Jane Roe's credibility, including the fact that she avoided dismissal from medical school by asserting that her academic failure was caused by his alleged sexual misconduct and that she may have lied when she said that she didn't report his alleged sexual misconduct to the university until the medical school's academic committee had already decided to permit her to restart her first year of medical school for the third time.

         I. Background

         A. Procedural History

         The plaintiff, proceeding under a pseudonym, John Doe, sued The Ohio State University (“OSU”) and five of its administrators (collectively, “Defendants”), alleging that, among other things, they denied him due process when they expelled him from the university. John Doe, was an MD/MBA student at OSU. OSU expelled Doe after a hearing board at the university found Doe “responsible” for violating the university's sexual misconduct policy.

         The Court dismissed most of Doe's First Amended Complaint but allowed one claim to proceed against four of the administrators. (Op. & Order, Doc. 82). The Court outlined a narrow scope of discovery to resolve the issue of whether the remaining Defendants were entitled to qualified immunity. (See id.). The Court, after an intervening, relevant Sixth Circuit decision and Motion for Reconsideration from Doe, brought back Doe's claim for injunctive relief. (Order, Doc. 104). In the meantime, the Court also granted Doe leave to amend his complaint, and he did so, adding Title IX claims, which are the subject of Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint: Title IX Claim, (Second Am. Compl., Doc. 99; Defs.' Mot. Dismiss, Doc. 131). For relief, Doe seeks both money damages under § 1983 and injunctive relief.

         B. Factual Background

         John Doe began medical school at The Ohio State University in August 2011. In May 2015, he was a fourth-year graduate student, pursuing both a medical degree and an MBA. He was in the last year of his training and expected to graduate in May of 2016. He was preparing to apply for residencies in emergency medicine. His friends described him as a hard worker who was more likely to be up late studying than out at a bar.

         Jane Roe began medical school at OSU in the fall of 2013. She was failing her first-year classes. Before taking a final exam, Roe requested and was granted a leave of absence. Roe then asked to restart the first-year medical school curriculum. The medical school's Academic and Behavioral Review Committee (the “ABRC”) decided to grant Roe's request to re-enroll and imposed a few stipulations, including requiring Roe to complete summer preparation courses, continue study-strategy counseling, and participate in tutoring.

         Roe restarted the first year of medical school in the fall of 2014. She failed the first year of medical school again. On March 23, 2015, Dr. Douglas Danforth wrote a letter to the ABRC chairwoman referring Jane Roe to the ABRC because of her second failure of the first-year medical school curriculum. Dr. Danforth said, “[s]ince this is [Jane Roe's] second attempt at Part One, my recommendation is that the ABRC consider dismissal from the College of Medicine.” (PageID 1552).

         John Doe and Jane Roe met in early 2013 through a joint project that never came to fruition. The two reconnected in June 2014. John Doe reports that the two were at a bar celebrating the end of third year tests. John Doe reports that they were “talking and flirting, and we decided to hang out again sometime.” (PI Hearing Trans. at 15:13-14, Doc. 67). John Doe thought Jane Roe was interested in him: he reports that she made comments about his body, playfully spanked his “glutes, ” and, two days later, Jane Roe texted John Doe saying she wanted to “hang out for part 2.” (Disciplinary Hrg. Trans. at 220:1-3). The two exchanged text messages over the next two weeks and ultimately met at bar where Jane Roe was with friends. That's where the stories diverge: the night that Jane Roe claims she was sexually assaulted.

         Jane Roe claims that she was intoxicated, suffered a “blackout, ” and can't remember anything after about 12:00-12:30 a.m. of the night in question. Jane Roe's night revolved around a friend's birthday celebrations. She first went with that friend and others to dinner, then to that friend's house, then to a bar called Callahan's. In the five and a half hours before 12:30 a.m., she had six alcoholic drinks: a glass of wine with dinner from 7:00 p.m. to 9:00 p.m., then three drinks within 90 minutes from 9:00 p.m. to around 10:30 p.m. at her friend's house, then another two drinks at Callahan's from around 11:00 p.m. to 12:00 a.m.. In the last 3-3.5 hours before she says she can't remember anything, Jane Roe had five liquor drinks, including three shots.

         Witness testimony on whether Jane Roe was significantly impaired is conflicting. She says she was completely intoxicated and suffered a blackout. John Doe says she was aware, communicative, engaged, and didn't exhibit signs of significant impairment. The other witnesses' testimony is equivocal and conflicting.

         Jane Roe claims she can't remember anything after about 12:00 a.m. at Callahan's, so all information from this point on is from third-party witnesses and John Doe. Other witnesses recount her arriving at another bar about a block away, Gaswerks, around 12:30 a.m.. Jane Roe's text messages to John Doe from around this time corroborate this. John Doe received Jane Roe's text message, informing him she was at Gaswerks, so he and two friends left to meet her there.

         John Doe and two friends met up with Jane Roe at Gaswerks. In the group of friends, Doe says he only talked to Jane Roe, and eventually they removed themselves from the group conversation to talk alone on the bar's patio. One of the witnesses reported seeing the two “giggling and having a good time” on the patio by themselves. (Id. at 48:14-19). John Doe and Jane Roe apparently talked at length, and eventually were kissing on the patio. At this point, according to Doe, the two confessed their attraction to one another, and the conversation turned sexual. Doe says he asked her if she wanted to go home with him; she declined, citing their common friend group, that she was too old for him, and the risks and consequences of being together. Some time passed, and John Doe says he asked again, Jane Roe agreed, and the two walked to John Doe's car, which was parked some considerable distance away (John Doe says it was past two other bars and a parking lot). (Id. at 227:18-24). The two then went to John Doe's apartment, drank some water, watched TV on the couch, and spoke briefly with John Doe's roommate. Then, at about 3:00 a.m., the two went to John Doe's bedroom and engaged in sexual activity. John Doe recounts their encounter in detail, including specific examples of Jane Roe's ac- tive participation and awareness during the encounter. Jane Roe says she can't remember anything about her sexual encounter with John Doe.

         The next morning, again, accounts diverge. John Doe says that when he and Jane Roe woke up, they were affectionate, talked about travel, and he tried to initiate sex with Jane Roe. She declined to have sex, and they didn't. They looked at pictures on John Doe's phone of his trips to Asia and discussed hobbies. Jane Roe asked to borrow some of John Doe's clothes before leaving his house. Eventually, John Doe took Jane Roe, dressed in his clothes, back to her house, where she leaned in to give him a kiss goodbye. Later that afternoon, Jane Roe sent John Doe a text message, saying “Thanks again for taking me home last night. Re-read this text this morning. Glad you can decipher bourbon talk.” (Id. at 238:4-7).

         Jane Roe's account of the next morning is quite different. She says she woke up naked, confused, and scared. She saw John Doe and was shocked. She first asked John Doe what happened, to which he replied that Jane Roe was really drunk, he took her home, and they had sex. She was disturbed to see her phone off and her clothes folded and hung up. She says that John Doe started touching her, and she reciprocated because she “felt like I had to.” (Id. at 163:21- 22). She laid “frozen” as he kissed her many times. She told him that she didn't want to have sex, and they didn't. She explains that she tried to make normal conversation “so that we wouldn't have to continue the physical contact.” (Id. at 164:10-11). She “didn't feel comfortable enough to say, hey, don't touch me anymore.” (Id. at 164:17-19). While it may have appeared to John Doe that nothing was amiss, this was Jane Roe's coping mechanism, a way to make “sure that I had control, that we're friends.” (Id. at 164:22-24). She told John Doe that she wanted to go home, put on some of John Doe's clothes, and he drove her home. She said that they “kissed at the end of the encounter because I just wanted to make everything seem rational, seem like I was in control, because I was in a state of shock and I had no idea what was going on.” (Id. at 165:18-22).

         Jane Roe's version of the subsequent weeks is somewhat different than John Doe's. According to her, the two met at a happy hour at a restaurant to exchange clothing, so Jane Roe brought the clothing with her, but John Doe left Jane Roe's clothes at his apartment and left her undergarments in his bedroom. Jane Roe went to his apartment to retrieve her undergarments and did so, and John Doe tried to kiss her several times, with Jane Roe rebuffing each attempt. She reports texting with John Doe over the next months, but only cordially as friends, never in an attempt to initiate dates or furthering a relationship.

         According to John Doe, Jane Roe texted him thanking him for taking her home and continued to text him throughout the next weeks, and they made plans to go out for food and drinks. They eventually did meet up and went out for drinks and food at two different restaurants. In the weeks that followed, the two exchanged numerous text messages. This continued, casually, for the following months. Five months after their encounter, Jane Roe was still sending John Doe unsolicited text messages, wishing him good luck on exams, wishing him happy birthday, offering to take him out for his birthday, or even a “playful text about [John Doe's] muscles.” (Id. at 250:16-17). Nearly seven months after their encounter, the two ran into each other while walking outside of the hospital. Jane Roe noticed John Doe jogging, said hello, and gave him a hug. They exchanged pleasantries then went their separate ways. This was the last time before the disciplinary hearing that the two spoke face-to-face, in January 2015.

         On March 23, 2015, Jane Roe was informed by OSU that she failed the first year of medical school again. The first-year academic program director at the medical school, Dr. Danforth, recommended her to the ABRC for a hearing, and he recommended to the ABRC that it consider dismissing her from the medical school. (March 23, 2015 Letter, Doc. 114-2 at PageID 1552).

         Following up on Dr. Danforth's letter, on March 26, 2015, the ABRC notified Jane Roe that she was being referred to the committee because she failed the first-year medical school curriculum for a second time. The ABRC stated that its job was, in part, to review Roe's “performance to date in the College of Medicine and determine recommendations regarding your continuation in the College.” (March 26, 2015 Letter, Doc. 114-2 at PageID 1547).

         On April 2, 2015, Jane Roe informed Natalie Spiert, the assistant director of the Sexual Civility and Empowerment Program at OSU, that she was a victim of sexual assault. (PI Hrg. Trans. at 249:15-16; 260:12-14). One of Spiert's jobs at OSU is to “provide direct one-on-one support for all students who experience any form of sexual violence.” (Id. at 249:21-23). Jane Roe told Spiert that she was at risk of failing out of medical school. (Id. at 260:15-18). Spiert agreed to attend the ABRC hearing with Roe and write her a letter of support.

         On April 15, 2015, Roe appeared before the ABRC. She told the ABRC that part of the reason she failed the first year of medical school for the second time was the fact that she was dealing with the fallout from being sexually assaulted over the summer. She asked the ABRC to allow her to continue in the medical school curriculum. Jane Roe outlined a plan to continue in the medical school that included a plan to officially report “the sexual assault via the university conduct board.” (ABRC Meeting Minutes, PageID 1581). Jane Roe also asked for more time to remediate an exam so she could “work with OSU on the assault reporting process.” (Id.). Natalie Spiert was present at the ABRC hearing as one of two advocates for Jane Roe. Spiert supported Jane Roe's “wish to continue in the program.” (Id.). Spiert also informed the ABRC about “a federal requirement for everything in the reporting process to be completed in 60 days once a formal report is given. She stated that [Jane Roe's] participation would total anywhere from 15- 25 hours, including giving the initial statement and attending the hearing. She also stated the Student Conduct Board will make all necessary accommodations for [Jane Roe]'s academic commitments.” (Id.). The ABRC minutes state that “[Jane Roe] plans to officially report the incident in the near future.” (Id.). The ABRC minutes show the committee's decision to allow Jane Roe to re-enroll in the medical school, and the committee noted it would advise Jane Roe to “determine her course of action regarding the University process for reporting and addressing her complaint . . . and try[] to complete any needed steps prior to restarting the curriculum.” (PageID 1582).

         On April 21, 2015, the ABRC informed Roe in writing that “[i]n acknowledgement of the apparent impact of the personal incident which you described as affecting your performance, you will be granted the opportunity to restart LSI Part One, Year 1, in August, 2015.” (April 21, 2015 Letter, Doc. 114-2 at PageID 1550).

         On April 30, 2015, Jane Roe met with Jeff Majarian to provide him with information about the alleged assault. (Jane Roe Dep. at 90-91, Doc. 114-1). Majarian was responsible for the investigation into Jane Roe's allegations and the production of the hearing packet of information given to the disciplinary hearing board.

         C. The ...


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