Doe v. Univ. of Denver, Civil Action No. 17-cv-01962-PAB-KMT

JOHN DOE, Plaintiff, v. UNIVERSITY OF DENVER, UNIVERSITY OF DENVER BOARD OF TRUSTEES,REBECCA CHOPP, individually and as agent for University of Denver,KRISTIN OLSON, individually and as agent for University of Denver,JEAN McALLISTER, individually and as agent for University of Denver,SIRI SLATER, individually and as agent for University of Denver,and ERIC BUTLER, individually and as agent for University of Denver, Defendants.

Civil Action No. 17-cv-01962-PAB-KMT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

August 20, 2019

Chief Judge Philip A. Brimmer

ORDER

This matter is before the Court on Plaintiff John Doe's Motion for Partial Summary Judgment [Docket No. 70], Defendants' Motion for Summary Judgment [Docket No. 71], Defendants' Unopposed Motion for Leave to Submit Supplemental Authority [Docket No. 93], and Plaintiff's Motion for Leave to Submit Supplemental Authority [Docket No. 94]. The Court has jurisdiction under 28 U.S.C. §§ 1331 and 1367.

I. BACKGROUND¹

Plaintiff John Doe enrolled as an undergraduate student at the University ofDenver ("DU"), a private, not-for-profit university, in the fall of 2015. Docket No. 71 at 2, ¶¶ 1-2. On March 24, 2016, a DU resident assistant gave notice to DU's Office of Title IX that, on March 5, 2016, plaintiff subjected Jane Roe to non-consensual sexual contact. Id. at 3, ¶ 4. Ms. Roe had visited a hospital on or around March 8, 2016 to obtain a forensic examination from a sexual assault nurse examiner ("SANE"). Id. at 3, ¶ 5. DU's then-Title IX coordinator, Jean McAllister, sent Ms. Roe an email on March 24, 2016 stating, "I understand that you have experienced a sexual assault by another DU student. I am very sorry that you had to deal with that experience." Docket No. 70 at 5, ¶ 30. Ms. McAllister met with Ms. Roe on April 4, 2016 to discuss the resources available to her and her options for reporting. Docket No. 71 at 3, ¶ 6; Docket No. 71-4 at 2. Ms. Roe requested a formal investigation on or around April 11, 2016. Docket No. 71 at 3, ¶ 7.

An investigation commenced on April 22, 2016, led by Office of Equal Opportunity ("OEO") investigators Eric Butler and Siri Slater. Id., ¶ 8. On April 29, 2016, Ms. McAllister sent plaintiff a letter stating that "a DU student has reported concerns that you may have engaged in violations of University Policies related to non-consensual sexual contact." Docket No. 70 at 5, ¶ 33; Docket No. 71 at 4, ¶ 11. The letter informed plaintiff of his rights and attached a list of resources available to him. Docket No. 71 at 4, ¶ 11. The list of resources included counseling services and the University chaplain.² Id. The next week Ms. McAllister met with plaintiff for aninformational meeting. Id., ¶ 12. Ms. McAllister again informed plaintiff of resources available to him as the respondent.³ Id.

Between May 2 and June 1, 2016, Mr. Butler and Ms. Slater interviewed eleven witnesses identified by Ms. Roe. Docket No. 70 at 6, ¶ 39. None of these witnesses were present immediately before or immediately after the incident. Id., ¶ 40. Plaintiff and Ms. Roe were also interviewed. Id., ¶ 39.

On May 23, 2016, Mr. Butler emailed plaintiff to inform him that the investigators anticipated finishing interviews that week and asked plaintiff if he had any other information he would like considered. Docket No. 71 at 6, ¶ 26. The investigators issued a preliminary report to plaintiff on June 7, 2016. Id. at 7, ¶ 29. Plaintiff and Ms. Roe were given until June 22, 2016 to review the preliminary report and to submit additional information. Id., ¶ 31. Plaintiff responded that he had no additional information, but was disappointed that the investigators did not interview any of the five people he had listed in his interview statement [Docket No. 71-24]. Id., ¶ 33; Docket No. 71-10 at 2. Ms. Slater responded that two of the individuals he sought to have interviewed - his mother and his lawyer - were not appropriate to be interviewed because they were "identified as [plaintiff's] support people and ha[d] been privy to all the communications that ha[d] taken place during this case." Docket No. 71 at 8, ¶ 36; Docket No. 71-11 at 4. Ms. Slater stated that the other two individuals were not interviewed because the investigators "did not find that they could give us any more relevant information than [the investigators] already had and chose not to bring theminto this." Docket No. 71-10 at 2. The investigators agreed to interview plaintiff's psychologist, Dr. Mary Bricker. Docket No. 71 at 8, ¶ 37. On July 18, 2016, the investigators made the amended preliminary report available for plaintiff to review. Id. at 9, ¶ 39. Plaintiff requested no changes.⁴ Id., ¶ 40.

On August 16, 2016, Mr. Butler informed plaintiff that the investigators found it "more likely than not that [plaintiff] engaged in non-consensual sexual contact with [Ms. Roe] in her residence hall bedroom on the morning of March 5, 2016." Id., ¶ 41. Kristin Olson, DU's Director of Student Conduct, sent a letter to plaintiff on August 18, 2016 stating that, because the OEO found him responsible for violating DU's non-consensual sexual contact policy, an Outcome Council would be convened. Id. at 10, ¶ 43. The letter identified the members of the Outcome Council - Ms. Olson, Molly Hooker, and either Ryan Buller or Matthew Rutherford - and informed plaintiff that he "could object to the participation of a member of the Outcome Council based on a demonstrable significant bias." Id. There is no allegation that plaintiff objected. The Outcome Council convened on August 22, 2016, id. at ¶ 45, and determined that, due to the nature and severity of plaintiff's actions, dismissal from DU was the "only reasonable outcome." Id. Plaintiff was informed of this decision by telephone and by letter on August 23, 2016. Id. at 11, ¶ 46.

Plaintiff appealed this decision on August 30, 2016. Id. at 11, ¶ 47. He argued that the investigation contained "procedural errors so substantial that it greatly impactedthe findings, responsibility determination, and/or the ultimate outcomes" and that "[t]he outcomes imposed [were] substantially disproportionate to the severity of the violation." Docket No. 71-15 at 2. On September 1, 2016, DU's Associate Provost of Graduate Studies, Barbara Wilcots, sent plaintiff a letter informing him that his appeal was denied and providing the reasons for the denial. Docket No. 71 at 11, ¶ 48; Docket No. 71-16 at 4. The letter stated that this was "a final decision, with no further route of appeal." Id.⁵

Plaintiff filed this lawsuit on August 15, 2017. Docket No. 3. He asserts claims for (1) violation of his rights under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.; (2) violation of his procedural due process rights under the Fourteenth Amendment of the U.S. Constitution pursuant to 42 U.S.C. § 1983; (3) breach of contract; (4) breach of the covenant of good faith and fair dealing; (5) promissory estoppel; and (6) negligence. Docket No. 3 at 46-59.

On November 16, 2018, plaintiff filed a motion for partial summary judgment on his Title IX claim. Docket No. 70. The same day defendants filed a motion forsummary judgment on all claims. Docket No. 71. On March 5, 2019, defendants filed a motion for leave to submit supplemental authority. Docket No. 93. Plaintiff filed a motion for leave to submit supplemental authority on June 22, 2019. Docket No. 94.

II. LEGAL STANDARD

Summary judgment is warranted under Federal Rule of Civil Procedure 56 when 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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is "material" if under the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

Where "the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (internal quotation marks omitted) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter."Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation marks omitted). "To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case." Bausman, 252 F.3d at 1115. When considering a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id. However, where, as here, there are cross motions for summary judgment, the reasonable inferences drawn from affidavits, attached exhibits, and depositions are rendered in the light most favorable to the non-prevailing party. Jacklovich v. Simmons, 392 F.3d 420, 425 (10th Cir. 2004). Furthermore, "[w]hen the parties file cross motions for summary judgment, we are entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary...