Doe v. Colgate Univ.

457 F.Supp.3d 164

John DOE,¹ Plaintiff,

v.COLGATE UNIVERSITY, Defendant.

5:17-CV-1298 (FJS/ATB)

United States District Court, N.D. New York.

Signed April 30, 2020

OF COUNSEL: ANDREW MILTENBERG, ESQ., STUART BERNSTEIN, ESQ., TARA J. DAVIS, ESQ., NICHOLAS EVAN LEWIS, ESQ., NESENOFF & MILTENBERG, LLP, 363 Seventh Avenue – 5th Floor, New York, New York 10001, Attorneys for Plaintiff.

OF COUNSEL: LAURA H. HARSHBARGER, ESQ., BOND, SCHOENECK & KING, PLLC, One Lincoln Center, Syracuse, New York 13202, Attorneys for Defendant.

MEMORANDUM-DECISION AND ORDER

SCULLIN, Senior Judge

I. INTRODUCTION

Plaintiff, who is identified by the pseudonym John Doe, brings this action against Colgate University ("Defendant") seeking compensatory damages, prejudgment interest, attorney's fees, expenses, costs, and disbursements. See generally Dkt. No. 1, Compl. Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, see Dkt. No. 44, and for an order precluding Plaintiff's expert, Dr. Stan V. Smith, Ph.D., from testifying with respect to hedonic damages, see Dkt. No. 45.

II. BACKGROUND

On February 26, 2017, a student referred to as "Jane Roe" informed a university official that she wished to formally report a sexual assault, which she claimed occurred during the night of October 29, 2016, into the early morning of October 30, 2016, on Defendant's campus. See Dkt. No. 44-16, Def's Stmt. of Material Facts, at ¶ 13; see also Dkt. No. 1 at ¶¶ 58-76. Although the specific facts of the alleged assault are clearly in dispute, Plaintiff and Roe agree that, while in Plaintiff's dorm room, they kissed, engaged in foreplay, had sexual intercourse twice before falling asleep, and engaged in sexual intercourse a third time upon waking in the early hours of October 30, 2016. See id. at ¶¶ 66-70.

In her formal report, Roe alleged that Plaintiff "pushed her onto the bed," "started kissing [her] and taking his clothes off," and digitally penetrated her even though she told him she was "not in the mood." See id. at ¶¶ 96-99. Roe then reported that Plaintiff had sex with her and was "holding [her] down" and that she woke up around 4:00 a.m. because Plaintiff was penetrating her. See id. at ¶¶ 100-101. Roe claimed that she explicitly told him "no" and tried to squirm away but could not because Plaintiff's hands were on her hips. See id. at ¶ 102.

Plaintiff, to the contrary, contends that the kissing, foreplay, and episodes of sexual intercourse were consensual. See id. at ¶¶ 66-68. Plaintiff claims that, at approximately 4:30 a.m., he awoke to Roe's hand brushing his penis. See id. at ¶ 70. Plaintiff interpreted this, as well as the position of Roe's body, as a sign that Roe wanted to engage in sexual intercourse a third time; and Plaintiff proceeded to have sex with her. See id.

On either March 2nd or 3rd, 2017, Roe informed Campus Safety Investigator Valerie Brogan that she wished to file a criminal complaint against Plaintiff and asked for assistance in getting in touch with the police. See Dkt. No. 44-16 at ¶ 15; see also Dkt. No. 55-27, Pl.’s Response to Stmt. of Material Facts, at ¶ 15. Brogan assisted Roe by contacting New York State Police Campus Sexual Assault Victims Unit Investigator Dennis Dougherty. See Dkt. No. 44-16 at ¶ 16. Brogan then arranged for Dougherty to use a room on campus to meet with Plaintiff and Roe and investigate their accounts. See id. at ¶ 17; see also Dkt. No. 55-27 at ¶ 17.

On March 22, 2017, Dougherty and Roe placed a "controlled" call to Plaintiff. See Dkt. No. 44-16 at ¶ 19. During the call, Roe attempted to get Plaintiff to admit that he had sexually assaulted her; meanwhile Plaintiff was unaware that he was being recorded. See Dkt. No. 1 at ¶ 118. In that call, Plaintiff denied that their sexual contact was non-consensual, indicated that he remembered Roe giving "verbal consent ... like multiple times," that he recalled Roe initiating the third act of sexual intercourse, and that he did not remember her saying "no." See Dkt. No. 55-4, Controlled Call T., at 69-71.

The next day, March 23, 2017, Dougherty met with Plaintiff on campus, which Plaintiff refers to as an "interrogation." See Dkt. No. 44-16 at ¶ 20; Dkt. No. 55-27 at ¶ 20. Plaintiff signed a "Voluntary Statement" at that time, although he contends that it was not voluntary. See Dkt. No. 44-16 at ¶ 21; Dkt. No. 55-27 at ¶ 21. In the Voluntary Statement, Plaintiff admitted it was possible that Roe was asleep when he began to penetrate her during the third act of intercourse, but Plaintiff maintains that his statement was coerced. See Dkt. No. 55-4, Voluntary Statement, at 31-32; see generally Dkt. No. 55-26, Pl.’s Decl., at ¶¶ 40-59.

On either March 27th or 28th, 2017, Roe informed Brogan that, in addition to her criminal complaint, she wished to move forward with a formal complaint against Plaintiff pursuant to Defendant's Equity Grievance Policy ("EGP"), which sets forth the procedures for making, investigating, and adjudicating complaints of misconduct.² See Dkt. No. 44-16 at ¶¶ 5, 25; Dkt. No. 55-27 at ¶ 25. Brogan began investigating Roe's allegations by interviewing Plaintiff, Roe, and several witnesses. See Dkt. No. 44-16 at ¶¶ 27-33. She also received copies of information in Plaintiff's criminal case file, including his and Roe's statements to Dougherty and a recording of the controlled call. See Dkt. No. 44-3, Brogan Decl., at ¶ 33.

As a result of the EGP investigation, Kimberly Taylor, Associate Dean for Conduct, issued Plaintiff a charge letter on May 16, 2017, containing the following four charges: (1) non-consensual sexual contact alleging that he kissed Roe without her consent, (2) sexual exploitation alleging that he removed articles of Roe's clothing without her consent, (3) non-consensual sexual intercourse alleging that he digitally penetrated Roe without her consent, and (4) non-consensual sexual intercourse alleging that he penetrated Roe with his penis without her consent. See id. at ¶ 37.

Both parties were present throughout the EGP hearing, as were their attorneys, and they had the right to ask questions of the other party through Dean Taylor as the Chair of the EGP Hearing Panel. See id. at ¶¶ 46-47. After two sessions of deliberations, the three Hearing Panelists found Plaintiff not responsible for the first three charges and unanimously found him responsible for the fourth charge. See id. at ¶¶ 52-54; Dkt. No. 55-27 at ¶¶ 52-54. Specifically, the Panel found that Roe was asleep and unable to consent to the third act of intercourse in the morning of October 30, 2016. See Dkt. No. 1 at ¶ 201. As a result of this finding, the Hearing Panelists decided on the sanction of expulsion. See Dkt. No. 44-16 at ¶ 56. Plaintiff appealed this decision twice, but his expulsion was upheld. See id. at ¶¶ 58-65.

Plaintiff then filed his complaint in the instant action on November 27, 2017, alleging the following five causes of action:

(1) violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. , under the theories of erroneous outcome and selective enforcement;

(2) breach of contract;

(3) breach of contract/common law: denial of basic fairness/arbitrary and capricious decision making;

(4) estoppel and reliance; and

(5) violation of New York State Human Rights Law.

See generally Dkt. No. 1.

III. DISCUSSION

A. Defendant's motion for summary judgment

1. Legal standard governing motions for summary judgment

Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment. Under this Rule, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). When deciding a summary judgment motion, a court must resolve any ambiguities and draw all reasonable inferences in a light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted).

2. Plaintiff's gender discrimination claims³

Title IX provides, in relevant part, that "[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 education program or activity receiving Federal financial assistance ..." 20 U.S.C. § 1681(a). Therefore, "Title IX bars the imposition of university discipline where gender is a motivating factor in the decision to discipline." Yusuf v. Vassar Coll. , 35 F.3d 709, 715 (2d Cir. 1994) (citation omitted).

"Plaintiffs attacking a university disciplinary proceeding on grounds of gender bias can be expected to fall generally within two categories." Id. Plaintiffs alleging a violation based on the "erroneous outcome" theory claim that they are "innocent and wrongly found to have committed an offense." Id. Plaintiffs alleging a violation based on the "selective enforcement" theory claim 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." Id. Plaintiff proceeds under both theories in his complaint, and the Court analyzes each in turn.

a. Erroneous outcome

To succeed under an "erroneous outcome" theory at the summary judgment stage, a plaintiff "must demonstrate (1) ‘articulable doubt [as to] the accuracy of the outcome of the disciplinary proceeding,’ and (2) that ‘gender bias was a motivating factor behind the erroneous finding.’ " Doe v. Colgate Univ. , 760 F. App'x 22, 30 (2d Cir. 2019) (summary order)⁴ (quoting [ Yusuf , 35 F.3d at 715 ] ). In Colgate Univ. , both the District Court and the Second Circuit assumed that the plaintiff raised a disputed issue of material fact on the question of misconduct by insisting that the sexual encounters for which he was suspended were consensual. See Doe v. Colgate Univ. , No. 5:15-CV-1069 (LEK/DEP), 2017 WL 4990629, *11-*12 (N....