Doe v. Brown Univ.

43 F.4th 195

John DOE, Plaintiff, Appellant,

v.BROWN UNIVERSITY, Defendant, Appellee.

No. 20-2023

United States Court of Appeals, First Circuit.

August 4, 2022

Susan Kaplan, with whom Kaplan Law and Sonja L. Deyoe were on brief, for appellant.

Steven M. Richard, with whom Nixon Peabody LLP was on brief, for appellee.

Before Kayatta and Howard, Circuit Judges, and Casper, District Judge.^*

KAYATTA, Circuit Judge.

Shortly after he began his freshman year at Brown University, John Doe, an African-American man, had a brief encounter with Jane Doe, a white woman.¹ Their stories of what happened differ slightly in emphasis but are generally consistent. They met at a bar and both decided to move to an outside patio. There, they kissed. The pair then moved to a small alleyway behind the building -- the record is unclear whether Jane or John initiated the relocation to the more private spot. According to Jane (as expressed in her formal complaint about the incident), John became more aggressive and repeatedly tried to lift her dress without her express permission. According to John, Jane was aggressive throughout the encounter, choking him, biting his lip, and telling him, "Stop, I make the rules." Jane admitted going "for his neck" and saying, "Stop, I make the rules here." John said that, feeling uncomfortable, he ended the interaction and walked away.

A few months later, Jane filed a complaint against John with Brown's Office of Student Life, commencing a multi-year process leading to John's suspension from school, a suicide attempt, and, eventually, this lawsuit by John against Brown. For the reasons that follow, we affirm the grant of summary judgment dismissing John's federal claims, reverse the grant as to his state law claim for intentional infliction of emotional distress, and remand for further proceedings.

I.

Because this is an appeal from the grant of summary judgment, we recount the facts not as they necessarily are, but rather as a jury might reasonably find them to be in favor of John, the non-movant. See Brader v. Biogen Inc., 983 F.3d 39, 44 (1st Cir. 2020).

After Jane filed her complaint in November 2013, the Associate Dean of Student Life, Yolanda Castillo-Appollonio, informed John of the allegations against him and that the school would begin an investigation. John was also informed that he had a right to provide a list of witnesses and a written statement to assist the investigation and that he had a right to choose an advisor to help shepherd him through the process. Dean Castillo also issued a mutual no-contact order to both students.

Shortly after he was notified of the complaint, John met with Dean Castillo and expressed his desire to file a counter-complaint against Jane. Dean Castillo discouraged him from doing so. John recalls her telling him that she could not help him file a complaint and that she made it sound as if he would have to start a separate process only after the current complaint process concluded. This advice did not accord with Brown's rules, which permitted counter-complaints. Dean Castillo also determined that John's version of Jane's conduct did not rise to sexual assault in her eyes because John did not explicitly say "that there was no consent to the activity" or "that he said, stop doing that." Dean Castillo did not file a complaint against Jane on John's behalf, nor did she initiate any investigation of Jane.

Brown eventually decided that, despite John's statement that Jane choked and bit him, John alone should be charged with three violations of its Code of Student Conduct. Brown charged John not only with sexual misconduct, but also with committing acts that could "be reasonably expected to result in physical harm to a person or persons" and "[m]isconduct that includes ... violent physical force or injury." Brown also charged John with illegal underage use of alcohol.

The school then held a hearing, after which the Student Conduct Board found John responsible for sexual misconduct "that involves non-consensual physical contact of a sexual nature" and for illegally drinking alcohol (which he had admitted). The Board did not find John responsible for either charge related to physical harm. As a sanction, Brown applied a "deferred suspension" that would expire at the end of the following academic year. Deferred suspension is somewhat akin to probation. It provides the student "the opportunity to demonstrate the ability to abide by the community's expectations of behavior," but it also means that any new allegations "will receive greater scrutiny," and it "increase[s] the likelihood" of "more serious outcomes," "including separation from the University." Jane appealed this decision because she believed the sanction was not severe enough. Brown denied the appeal. John later testified that, despite his belief that Brown reached the wrong result, he did not appeal because he "was put on probation" and not "suspended or expelled." He "was ready to move on."

In the spring of 2014, during a conversation among sorority sisters regarding "certain men on campus," Jane stated that John tried to touch her inappropriately, that he choked her, and that he was sexually aggressive, but she did not mention that she bit or choked him. Sally Roe was a part of that conversation. She told her sorority sisters that she and John had met at a party and consensually kissed. She explained that he wanted to take a shower with her and continued to encourage her (either verbally or physically, she couldn't remember) even after she said no. When she started to feel uncomfortable, she left "[a]nd that was the end of [their] interaction."²

After hearing Sally's story, Jane sought "permission" to share it with a dean at Brown. Sally agreed, after which a dean "asked [Sally] to come in and make a formal complaint."³ Sally then met with that dean in person. She prefaced the meeting by explaining that she was not formally complaining that John sexually assaulted her; rather, she was reporting him "more for [the] protection of others" because he had the "potential to have other negative interactions with women." She thought her interaction "could potentially have led to sexual assault." Sally testified that her view of John's character was based on the fact that he supposedly "continued to have uncomfortable interactions" with Jane.

Sally also filled out a "Campus Incident Complaint Form." On that form, she alleged that in October 2013 "a boy that [she] was with tried to force [her] to have a shower with him." She explained that she had consensually kissed the boy, but, after he tried to take a shower with her, she "promptly left and told him [she] wasn't comfortable." Sally also asked for a no-contact order to be put in place.

Upon receiving the written complaint, Dean Castillo -- who was not the dean who initially met with Sally -- repeatedly sought to meet with her to confirm that John was the person against whom she had filed a formal complaint. Sally was initially nonresponsive, but eventually told Dean Castillo that she requested no "serious action" and had in fact "felt forced to report." The day after Sally responded, May 7, 2014, the Office of Student Life nevertheless sent John three letters: The first informed him that someone had filed a complaint against him for actions that could be considered "[s]exual [m]isconduct that involves non-consensual physical contact of a sexual nature" and/or "[s]ubjecting another person ... to abusive, threatening, intimidating, or harassing actions." The second letter informed him that he and Sally should have no contact. And the third ordered him removed from campus for an indefinite period of time, "effective immediately." To justify this removal, Brown decided to treat John "a danger to [himself] or the immediate well-being of the University community."

Dean Maria Suarez -- who was the Associate Director of Brown's Psychological Services -- and Dean Castillo met with John that day to explain his removal. When Dean Suarez told John that he had been accused of sexual assault again, he became distraught and expressed suicidal thoughts. He fell to the floor, rolled into a ball, and cried. Both Dean Suarez and Dean Castillo testified that they found John's response extreme. They permitted him to remain on campus to finish his finals (the letter came in the middle of finals week), but he was required to immediately leave campus once his last exam was over.

In light of John's response, Dean Suarez brought John to the Brown University Counseling and Psychological Services (CAPS) for an emergency crisis evaluation. The doctor who evaluated him at CAPS was concerned and recommended hospitalization, which John rejected. Because the doctor did not feel that John's presentation "rose to the level of an involuntary hospitalization," she made a plan with John on what to do if he had any further suicidal ideation, and she scheduled a follow-up appointment with him. John went back to CAPS at least twice more before he was required to leave campus after his final exam the following week.

Over the summer, Dean Castillo reached out to Sally three more times asking her to meet about the incident. Sally did not respond. Throughout that summer, John and his mother repeatedly contacted school officials asking for updates on the investigation and his suspension. The University gave little information in return. By August, Vice President Margaret Klawunn, prompted by an email from John, decided that Brown had to "wrap this up so that [John] can come back for the fall" if Sally was not going to pursue the complaint. On August 7, Dean Castillo informed John by email that Brown was "lifting the emergency removal" and that he would "be able to resume classes and all activities for the upcoming fall [2014] semester." She also explained that, although they were closing this complaint for now, the school could "choose to proceed at a later time" if it received more information.

The fall semester did not...