Doe v. Trs. of the Univ. of Pa.

270 F.Supp.3d 799

John DOE

v.THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA

CIVIL ACTION NO. 16–5088

United States District Court, E.D. Pennsylvania.

Signed September 13, 2017

Patricia M. Hamill, Lorie K. Dakessian, Conrad O'Brien PC, Philadelphia, PA, for John Doe.

Amy L. Piccola, Saul Ewing Arnstein & Lehr LLP, Philadelphia, PA, James A. Keller, Saul Ewing Arnstein & Lehr LLP, Philadelphia, PA, Joshua W.B. Richards, Saul Ewing LLP, Philadelphia, PA, Wendy S. White, Univ Of PA Office of Gen Counsel, Philadelphia, PA, for The Trustees of the University of Pennsylvania.

MEMORANDUM

John R. Padova, J.

Plaintiff John Doe, a student at the University of Pennsylvania, commenced this action against Defendant The Trustees of the University of Pennsylvania to challenge disciplinary proceedings that resulted in a finding that Plaintiff had violated the University's Sexual Violence Policy in connection with a sexual encounter he had with another student, identified as Jane Roe. Defendant has filed a Motion to Dismiss Plaintiff's Verified Amended Complaint (the "Complaint") pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. For the following reasons, we grant the Motion in part and deny it in part.

I. BACKGROUND

The Complaint alleges that, on the night of June 7, 2016, Plaintiff and Jane Roe, both rising seniors at Penn, were introduced to one another by a mutual friend at a local bar. (Compl. ¶¶ 1, 4, 56.) At 1:45 a.m. on June 8, the three went to a nearby members-only bar, where Jane, who did not appear drunk, flirted with John. (Id. ¶¶ 56–57.) When Jane was ready to leave, Plaintiff offered to walk her home and she agreed. (Id. ¶ 58.) Plaintiff and Jane held hands during the five or six block walk, and kissed along the way. (Id. ¶ 59.) When they arrived at an intersection near Plaintiff's house, Plaintiff invited Jane in for "some fun." (Id. ¶ 61.) She said that she was tired, but Plaintiff suggested that she join him for just a few minutes and she agreed. (Id. ) They both walked upstairs to Plaintiff's bedroom on the second floor and had a sexual encounter, which included intercourse. (Id. ¶¶ 1, 4, 62, 66.) Afterwards, Jane stayed and cuddled with Plaintiff, asked that he set an alarm so that she could get to work in the morning, and went to sleep in his bed. (Id. ¶ 69.)

Plaintiff later learned that when Jane returned home during the morning of June 8, she found her roommate sitting on the front step, having returned from study abroad in the middle of the night. (Id. ¶ 73.) The roommate had not been able to get into the house because Jane was not home. (Id. ) When the roommate asked where Jane had been, Jane responded that she had been at "some asshole's place." (Id. ¶ 74.) Jane then went inside to charge her phone and saw that her roommate had sent her a text message in the middle of the night, saying "I'm going to kill you," because Jane had promised to be home when her roommate arrived. (Id. ¶¶ 73, 75.) The roommate reported that she later found Jane crying and asked if she'd been raped, and Jane said yes. (Id. ¶ 76.) That same day, Jane went to Penn Women's Center, then to the Special Services Department in the Division of Public Safety and, finally, to the Philadelphia Police Department's Special Victims Unit. (Id. ¶ 78.)

Jane filed an official complaint with the University's Office of the Sexual Violence Investigative Officer on June 20, 2016, and an officer was assigned to review the matter. (Id. ¶¶ 79–80.) On June 24, the investigator sent Plaintiff an email, stating that he was investigating an allegation that Plaintiff had violated the University's Sexual Violence Policy, but did not provide any additional details. (Id. ¶ 128.) The investigator interviewed Plaintiff on July 6, 2016. (Id. ¶ 130.) Plaintiff admitted that he and Jane had a sexual encounter and answered all of the questions he was asked. (Id. ) Two days later, on July 8, the investigator emailed Plaintiff a letter labeled "Statement of the Charge," which advised John that he was being charged with "sexual assault," but contained no details other than that Jane had accused him of sexually assaulting her on June 8. (Id. ¶ 131.) The University's Sexual Violence Policy defines "sexual assault" as follows:

Sexual assault (including but not limited to rape) is defined as having committed any of the following acts:

–Any physical sexual contact that involves the use or threat of force or violence or any other form of coercion or intimidation;

–Any physical sexual contact with a person who is unable to consent due to incapacity or impairment, mental or physical. "Incapacity" or "impairment" includes but is not limited to being under the influence of alcohol or drugs or being too young to consent.

(Compl. Ex. A at 1.)

On August 22, 2016, after conducting an investigation, the "investigative team" issued a Draft Report, which reported the investigator's findings, by a preponderance of the evidence, that Plaintiff had violated the Sexual Violence Policy by engaging in intercourse and other sexual acts without Jane's consent. (Id. ¶ 133.) The University's policy defines consent as " ‘an affirmative decision to engage in mutually agreed upon sexual activity and is given by clear words or actions .’ " (Id. (quoting Compl. Ex. A. at 1).) The Draft Report includes the team's conclusion that Jane had not consented because she "never said ‘yes,’ " was never asked for consent, and never initiated sexual conduct. (Id. ) The Report did not address the elements of sexual assault that are set forth in the University's Sexual Violence Policy. (Id.; see also Compl. Ex. A at 1.) The Draft Report included the investigator's conclusion that Plaintiff should be expelled and that his violation of the University's Sexual Violence Policy should be permanently placed on Plaintiff's academic transcript. (Compl. ¶ 134.)

Plaintiff learned of Jane's version of events through the Draft Report, and it shocked him. (Id. ¶ 135.) The Report focused on the absence of a specific conversation about intercourse and completely discounted, inter alia , Plaintiff's stated belief that Jane was "definitely into it" and Jane's own statement that she "cooperated." (Id. ) The parties were given seven days to review and comment on the Draft Report, which included the opportunity to review the underlying evidence and statements, but they were not given permission to make copies. (Id. ¶ 136.) In reviewing the report, Plaintiff learned for the first time that Jane had "given completely different stories to the police and to the investigator" concerning what happened when they stopped outside Plaintiff's house on June 8, telling the police that Plaintiff "grabbed [her] by [her] hair, arm and neck,...while pulling [her] into [his] house" and telling the investigator, as documented in the investigator's notes, that Plaintiff had "gently pulled her toward [his] front door" and "led her upstairs." (Id. ¶ 140.) The Draft Report purported to reconcile these two accounts by concluding that Plaintiff "pulled" Jane toward the house (omitting the qualifier "gently") and "pulled" her into the bedroom and onto the bed. (Id. ¶ 141.)

In early September, Plaintiff submitted his response to the Draft Report, which pointed out "fundamental flaws" in the investigation and the report, including the investigative team's application of different credibility standards to Plaintiff and Jane. (Id. ¶ 142.) Among the other problems Plaintiff raised were: the investigative team's failure to acknowledge (1) inconsistencies between Jane's account to police and her account to the investigator, (2) Jane's motive for fabricating a story, and (3) text messages that Jane sent to her roommate later in the morning of June 8, which, according to the Complaint, undermined Jane's account; the investigator's reliance on two witnesses (the roommate and the student who introduced Jane and Plaintiff to one another), neither of whom had first-hand knowledge of the sexual encounter and both of whom were biased and unreliable; the investigator's determination that Plaintiff was incredible based in part on his mis-reporting of when Jane left Plaintiff's house;¹ and the investigator's drawing of unsupported and unwarranted conclusions from the fact that Plaintiff turned off Jane's cell phone and then told her that he had not. (Id. ¶¶ 142, 146, 159, 161, 164, 166, 168.) Plaintiff also submitted a supplemental statement of facts giving greater details, including details supporting his position that Jane affirmatively consented, all of which he would have provided earlier had he been given more specific detailed notice of the allegations against him during the initial interview. (Id. ¶ 143.)

Two days after receiving Plaintiff's objections, the investigative team issued a Final Report, which included the same conclusions as the Draft Report and omitted any discussion of the majority of John's concerns and his supplemental factual statement. (Id. ¶ 145.) The investigator addressed the inconsistencies in Jane's statements in the Final Report by adding new information concerning his interview with Jane that he had not included in his initial report summary. (Id. ¶¶ 146–47.) Crucially, the investigator reported that, when he questioned Jane about her inconsistent statement to the police, she told him that Plaintiff had "pulled her into the house while holding her hand and using his other arm to hold her around her neck, head, and hair." (Id. ¶ 146.)

Following the issuance of the Final Report, the case proceeded to a hearing before a Hearing Panel. (Id. ¶¶ 21, 178.) The Panel was comprised of three University faculty members, all of whom were among the small subset of professors professionally affiliated with the University's Gender, Sexuality and Women's Studies Program and all of whom had a relationship with Jane's advisor. (Id. ¶¶ 21, 213–14.) Moreover, the Panel had been trained with materials that...