Doe v. Pa. State Univ.

276 F.Supp.3d 300

John DOE, Plaintiff,

v.The PENNSYLVANIA STATE UNIVERSITY, The Pennsylvania State University Board of Trustees, Eric J. Barron, individually and as agent for The Pennsylvania State University, Paul Apicella, individually and as agent for The Pennsylvania State University, Karen Feldbaum, individually and as agent for The Pennsylvania State University, Katharina Matic, individually and as Agent for The Pennsylvania State University, Defendants.

No. 17–CV–01315

United States District Court, M.D. Pennsylvania.

Signed August 18, 2017

Andrew T. Miltenberg, Jeffrey S. Berkowitz, Philip A. Byler, Stuart Bernstein, Nesenoff & Miltenberg, LLP, New York, NY, Kevin D. Rauch, Summers, McDonnell, Hudock & Guthrie, P.C., Harrisburg, PA, for Plaintiff.

Emily H. Edmunds, Saul Ewing LLP, Harrisburg, PA, James A. Keller, Saul Ewing LLP, Philadelphia, PA, for Defendants.

MEMORANDUM OPINION

Matthew W. Brann, United States District Judge

Before the Court for disposition is Plaintiff John Doe's Motion for a Temporary Restraining Order and Preliminary Injunction. Following a hearing on August 10–11, 2017 and upon thoughtful consideration of the parties' arguments, this Motion will be granted in accordance with the reasoning set forth below.

I. BACKGROUND

A. The Complaint

On September 7, 2016, Jane Roe ("Roe"), a student in the joint program between The Pennsylvania State University ("Penn State") and the Sidney Kimmel Medical College at Thomas Jefferson University,¹ made an initial complaint to Resident Life Coordinator Kyle Kowal of alleged² sexual misconduct by Plaintiff John Doe ("Doe").³ Roe specifically alleged that Doe, a fellow student in this joint program, had, earlier on that same day, attempted to kiss her "a couple of times," and touched her with his hands under her clothes.⁴ She further alleged that, during this encounter, she was "unable to fight," "afraid to scream," and, as result, was "bleeding a little" from digital penetration of her vagina.⁵

Following this complaint by Roe, two immediate actions were taken. First, Doe was issued, on September 8, 2016, a "Notification of Administrative Directive" by Mr. Kowal stating that he was to have no contact with Roe.⁶ Second, Doe received an email on September 12, 2016 from Penn State's Title IX Coordinator, Defendant Paul Apicella ("Mr. Apicella"), requesting his presence at a meeting that afternoon to discuss a report of an incident that "may implicate the University's policy against sexual and gender-based harassment and misconduct."⁷ Doe attended the meeting alone and was informed that he would be removed from his current English course, Biology course and Biology lab and reassigned to other sections because Jane Roe was a student in the same classes.⁸ Doe was also given a document listing his procedural rights as a respondent in this student conduct matter.⁹

B. The Investigation

On September 21, 2016 John Doe received an email from the Senior Title IX Compliance Specialist, Defendant Katharina Matic ("Ms. Matic"), requesting a meeting for the following day.¹⁰ During that meeting, ultimately held on September 23, 2016, Doe was informed (1) about Penn State protocol; (2) that Roe would be submitting a written statement and that Doe would have the opportunity to read the statement and then respond; (3) that Investigator Matic would "strive to complete the investigation in 30 days"; and (4) that if he were found responsible, Penn State policy was "more educational than punitive."¹¹ John Doe was further told by the Investigator that he could find the Code of Conduct and Student Conduct Policy and Procedures online.¹² He then reported to Ms. Matic that there had been a breach of confidentiality by Jane Roe's father who openly notified parents of students in the pre-med program using a group chat text that one of the students had committed "forcible sex offenses" against another premed student.¹³ Ms. Matic later had a meeting with Roe in which she "strongly encourage[d] her to talk to her parents" about the messages.¹⁴

On September 28, 2016, John Doe again met with Ms. Matic, the Investigator, during which he was first informed of the general substance of Jane Roe's allegations. He was specifically informed that Residence Life had gone to Jane Roe's room to meet with her and her roommate on the afternoon of September 7, 2016. During that meeting, Jane Roe had stated that John Doe had "attempted to kiss her, that she was afraid to scream, that there was touching of a hand up under her clothes and that she might be bleeding a bit."¹⁵ Doe denied these allegations by stating that it was Roe who had twice attempted to kiss him, and that he had rebuffed both of these advances.¹⁶

John Doe met with Ms. Matic again on October 5, 2016. While Roe had not yet submitted a written report, Ms. Matic stated that, based upon the incident report from Residence Life, Roe was alleging that John Doe was responsible for nonconsensual digital penetration.¹⁷ The following day, on October 6, 2016, Doe submitted a written statement to Ms. Matic detailing his version of the events on September 7, 2016.¹⁸ Doe had two additional meetings with Ms. Matic, on October 21, 2016 and November 16, 2016, respectively, in which he learned that, despite declining to submit a written statement for review, Roe had nevertheless expressed to Ms. Matic verbally that Doe "had his hand on her inner thigh."¹⁹ Doe denied the accusation.²⁰ At the subsequent meeting with Ms. Matic held on November 16, 2016, Doe noted that, despite the investigation now eclipsing the 60 day timeline embodied in Penn State's Code of Conduct and Student Conduct Procedures, Revised 4/25/2016, he had not yet been provided with a written statement of the allegations by Roe.²¹

On December 16, 2016, John Doe was allowed to see the preliminary investigation report compiled by Ms. Matic for a limited time in her office and under her supervision.²² This report stated that the allegations against Doe were based upon Jane Roe's verbal statements made to her Resident Advisor and to the university police, and their unverified incident reports were submitted as Jane Roe's formal Title IX complaint.²³ Doe thereafter submitted a response to the preliminary investigation report on January 3, 2017.²⁴ In that response, he noted, among other things, that (1) one witness whom he alleges had confided in him that Jane Roe had feelings for him and pursued a physical relationship refused to participate in the investigation after consultation with her parents, (2) Roe's statements to University Police concerning her feelings for Doe were contradicted by one of her witnesses to the investigation, and (3) Roe's statements concerning the extent of physical contract and Doe's statements to her during the incident on September 7, 2016 were inconsistent.²⁵ These statements were subsequently redacted by Ms. Matic.²⁶

On January 13, 2017, Doe again met with the Investigator to review the revised investigation report, and, in the course of that meeting, told Ms. Matic that he disagreed with the numerous redactions that had been made in the report.²⁷ Ms. Matic subsequently conducted a second interview of the witness for Doe, and twice interviewed Roe for clarification.²⁸

On March 21, 2017, Doe reviewed another draft of the investigation report, and thereafter submitted another response.²⁹ At the close of her investigation, Ms. Matic had a telephone conversation with Roe in which Roe stated that (1) she had a medical examination a week after the September 7, 2016 incident, and (2) she had provided physical evidence in the form of blood stained underwear and shorts to University Police.³⁰ Despite Ms. Matic's subsequent email requests, Roe never responded, and thus did not provide this physical evidence for purposes of this investigation.³¹

The final Investigative Report and Exhibits was provided to Defendant Karen Feldbaum, Associate Director of Student Conduct ("Ms. Feldbaum") on April 18, 2017.³² On May 10, 2017, Ms. Feldbaum notified John Doe that, based on her review of the investigative packet, it was her determination as case manager "that it is reasonable to believe a code of conduct violation has occurred."³³ This notification further stated:

As such, I have issued the following charge and sanctions:

02.03 / Nonconsensual Penetration: Digital or with an Inanimate Object.

Conduct Suspension through FA2017.

Educational Program and/or Counseling required for readmission determine by assessment.

I have attached the University form which indicates the charge and sanctions. You have five business days to respond (the form indicates 3 but we provide 5 given the nature of the violation and sanction). Your decision is due to me no later than 5:00PM on May 17, 2017. Your options are:

1) Accept the charge and sanction

2) Accept the charge and contest the sanction

3) Contest the charge, which will also carry with it a determination of the sanction.³⁴

John Doe refused to accept the charge and accompanying sanction, and filed a written response on May 17, 2017 denying Roe's allegations and objecting specifically to Penn State's failure to inform him as to a November 3, 2016 revision in the Code of Conduct.³⁵ That Response was again subject to redaction by Ms. Matic.³⁶ A hearing before a Title IX Decision Panel was then scheduled.³⁷

C. The Hearing and the Board's Decision

The Title IX Decision Panel was held on June 6, 2017. Plaintiff alleges that the following errors occurred before the decision panel. First, Doe alleges that he was silenced when he attempted to talk about the procedural errors committed by Penn State which had impacted the investigation and adjudication in violation of Penn State's Code of Conduct.³⁸ Second, Doe alleges that the hearing panel improperly rejected eighteen of twenty-two submitted questions as either not relevant or pertaining to new evidence.³⁹ Doe specifically alleges that the hearing panel rejected the following questions relating to the medical exam...