Doe v. Samford Univ.

29 F.4th 675

John DOE, Plaintiff-Appellant,

v.SAMFORD UNIVERSITY, Mallory Kruntorad, Ed.D. Tim S. Hebson, Defendants-Appellees.

John Doe, Plaintiff-Appellant,

v.Samford University, Mallory Kruntorad, Ed.D. Tim S. Hebson, Defendants-Appellees.

No. 21-12592

No. 21-12840

United States Court of Appeals, Eleventh Circuit.

Filed: March 24, 2022

Susan Stone, Kristina W. Supler, Kohrman Jackson & Krantz, LLP, Cleveland, OH, Richard Stephen Jaffe, Brett Knight, Jaffe Hanle Whisonant & Knight, PC, Birmingham, AL, for Plaintiff-Appellant.

James C. Pennington, Amy Q. Glenos, Ogletree Deakins Nash Smoak & Stewart, PC, Birmingham, AL, for Defendants-Appellees.

Before William Pryor, Chief Judge, Jordan, Circuit Judge, and Brown,^* District Judge.

Opinion of the Court

William Pryor, Chief Judge:

This consolidated appeal presents two questions: first, whether John Doe, a pseudonymous student at Samford University, has stated a claim against the university for a violation of Title IX, 20 U.S.C. § 1681(a), based on a university disciplinary board finding him responsible for sexual assault and suspending him for five years; and second, whether Doe is entitled to proceed under a pseudonym. Because Doe has not plausibly alleged that his suspension was "on the basis of sex," see id., we affirm the dismissal of his claim. And because the dismissal puts an end to the litigation, we dismiss as moot the appeal from the order denying Doe's motion to proceed under a pseudonym.

I. BACKGROUND

Because one of the consolidated appeals "is from the dismissal of a complaint, we accept the allegations of the complaint as true. We recount the facts as alleged in the complaint. And we construe them in the light most favorable to the plaintiff." Darrisaw v. Pa. Higher Educ. Assistance Agency, 949 F.3d 1302, 1303 (11th Cir. 2020) (citation omitted).

John Doe, the pseudonymous plaintiff, was a senior at Samford University, a private Christian university. On the evening of Halloween 2020, he attended a party located at an off-campus apartment. He brought with him two pitchers of an alcoholic beverage he concocted. "[T]he drink was, at most, seven percent ... alcohol."

Jane Roe, another pseudonymous student, arrived at the apartment sometime later. Doe and Roe had never met before. After trying some of the beverage Doe brought to the party, Roe struck up a conversation with him. "Jane Roe commented to [Doe] about the loud noise level at the [p]arty. [Doe] suggested that they go to [a] ... [f]riend's [a]partment [nearby] where it was quieter so they could talk." Roe agreed and the two left together. "Jane Roe did not appear intoxicated" and "[n]o one stopped [her] from leaving the [p]arty with [Doe]." "From the time Jane Roe met [Doe] to the time she left the [p]arty with [him], approximately twelve minutes passed."

At the friend's apartment, after engaging in small talk, "Jane Roe asked [Doe] if he wanted to 'hook up.’ " "John asked Jane if she was sure she wanted to engage in sexual activity with him, and she confirmed that she did." "Several times before and during their consensual sexual intercourse, [Doe] asked Jane Roe for her consent, and Jane Roe expressed consent." "At all times during the consensual sexual intercourse, Jane Roe had control over her speech and bodily movements." And "[a]t all times during the consensual sexual intercourse," Doe believed, based on "Jane Roe's words and actions," that Roe "understood the who, what, where, when, why, and/or how of the sexual interaction." "After the sexual intercourse ended, Jane Roe re-dressed on her own, left the [f]riend's [a]partment, descended a staircase, and returned to the [p]arty, all without any assistance from [Doe]."

"Upon her return to the [p]arty, Jane Roe told [one witness] that she was sexually assaulted by [Doe]." Roe then walked outside. "Jane Roe's sister ... arrived at the outside location where Jane was and asked what was going on." By then, Doe had also returned to the party, and he went outside at the request of another partygoer. "A female outside asked [Doe] what he put in Jane Roe's drink. [Doe] responded that he put 'everything in her drink.’ " Doe states that he "mean[t] that he [had] made the [alcoholic beverage]."

After "Jane Roe's sister ... took [Roe] back to [Roe]’s dorm," Roe stated that Doe "raped her, gave her hickeys, and bit her lip and breast." The sister "took photos of Jane's alleged injuries." Roe filed a police report against Doe the next day. "Jane's blood was drawn to test for the presence of drugs," but "John never saw the results of the blood test."

Four days later, "Jane Roe filed a Title IX complaint ... against [Doe,] alleging that [Doe]" had violated the university's Title IX policy. Specifically, "Jane Roe alleged that [Doe] had raped her on the night of October 31, 2020, when she was incapacitated."

Doe asserts that the initial steps of the investigation were "[i]n clear violation of [the university's Title IX] [p]olicy." The policy provides that "the [university's] Title IX Coordinator must provide a written notice of allegations [of sexual misconduct] to the parties." It also provides that, "[w]hen the Title IX Coordinator receives a formal complaint of [s]exual [m]isconduct, the Title IX Coordinator will attempt to schedule an initial meeting with the respondent." But, according to Doe, Tim Hebson, the Title IX Coordinator, "did not provide [Doe] with a written notice of the allegations made against him by Jane Roe before [he] was interviewed." And Hebson "never conducted an initial meeting with [Doe] to notify him of Jane Roe's complaint and the alleged policy violations in issue." Doe does not mention whether he received a written notice or met with Hebson at a later date.

Hebson "assigned [Mallory] Kruntorad as the Title IX Investigator to investigate the allegations of [Roe's] [c]omplaint." This investigation was Kruntorad's "first Title IX investigation." Kruntorad "received little to no training about conducting unbiased and impartial Title IX investigations," and "lacked the experience necessary to conduct a Title IX investigation on her own in accordance with the [p]olicy." After emailing Doe about the investigation in early November, Kruntorad "met with [Doe] to take his statement" in mid-November. "Kruntorad never advised [Doe] of the specifics of Jane Roe's allegations against him aside from a claim that [he] raped Jane Roe."

Kruntorad interviewed Roe several days later. "Jane Roe told ... Kruntorad that she was drugged at the [p]arty and could not consent to the sexual interaction with [Doe]." Roe also stated "that when [Doe] got her a drink at the party, [Doe]’s back was to her and she 'could not see what was being put in it.’ " And she stated that "she started to feel 'fuzzy’ when walking to the [f]riend's [a]partment with [Doe]." On an audio recording of Kruntorad's interview with Jane Roe, "Kruntorad can be heard stating, 'I still think, regardless, you couldn't give consent.’ "

Doe asserts that the interview was deficient because Kruntorad failed to ask Roe certain questions. Kruntorad "failed to question Jane Roe about whether Jane Roe consumed any alcoholic beverages prior to the [p]arty." She "never questioned Jane Roe about whether she obtained hickeys from sexual activity on another night." And she did not "conduct[ ] follow-up interviews with Jane Roe or [Doe] during the course of the investigation."

At the end of an eleven-day-long investigation, Kruntorad wrote and provided to Doe and Roe a preliminary investigation report. Doe asserts that it "contained highly prejudicial hearsay statements purportedly made by law enforcement about [his] alleged attack of [Roe] and [his] suspected prior sexual history," and "highly prejudicial and inflammatory statements about [Doe]’s mental health." Still, one witness had "expressed disbelief that [Roe] was drugged." The same witness had "reported that Jane Roe's sister ... stated that Jane Roe may have received the hickeys on a prior evening." That witness had also reported that "Jane Roe told [a third party] that she consented to sex with [Doe]." But "several witnesses ... attested to [Roe's] incapacitation." And Kruntorad "found Jane Roe more credible than [Doe]" based on the statements of those witnesses. The report was accompanied by recordings of the interviews Kruntorad had conducted.

Doe and Roe both responded to the report, as the Title IX policy permits. Roe reiterated "that she believed she was drugged by [Doe] and that she never got physically sick from excess alcohol." And she "was critical of [the witness] who expressed disbelief that she was drugged." Doe "submitted evidence about his [Attention-Deficit/Hyperactivity Disorder] and [Pervasive Developmental Disorder-Not Otherwise Specified], which is high functioning autism." "This evidence was submitted to explain [Doe]’s rigid communication style." According to the complaint, a revised report "found [Doe] to be less credible than Jane Roe based on statements that [Doe] made about immaterial facts."

Separately, Doe lodged objections with Hebson about the investigation. Doe contested the jurisdiction of the university over the complaint. He "questioned the incompleteness and lack of impartiality of [the] investigation." He "express[ed] concern" that Kruntorad failed to do more "to uncover exculpatory evidence." He "requested the full names of all witnesses interviewed in the investigation," "the photographs of Jane Roe's alleged injuries," and "Jane Roe's medical ... records." He "objected to the inclusion of the recordings in the materials to be provided to the Title IX [h]earing panel" because the report "did not identify ... the names of the speakers heard on the recording." And he asked that the interview summaries of statements made by parties "who would not be testifying at the hearing be redacted from the investigative report." The Title IX policy does not appear to require the disclosure of the names of witnesses, but it does...