Doe v. Wake Forest Univ.

671 F.Supp.3d 624

John DOE, Plaintiff, v. WAKE FOREST UNIVERSITY, Defendant.

CIVIL ACTION NO. 1:23-CV-00114

United States District Court, M.D. North Carolina

Signed May 1, 2023

Andrew Miltenberg, Stuart Bernstein, Tara Jill Davis, Nesenoff & Miltenberg, LLP, New York, NY, Robert C. Ekstrand, Ekstrand & Ekstrand, LLP, Durham, NC, for Plaintiff.

Douglas Sampson, Saul Ewing LLP, Baltimore, MD, Daniel Alan M. Ruley, Mark A. Jones, William K. Davis, Bell Davis & Pitt, P.A., Winston-Salem, NC, Joshua W. B. Richards, Saul Ewing LLP, Philadelphia, PA, for Defendant.

ORDER

Kenneth D. Bell, United States District Judge

THIS MATTER is before the Court on Defendant's Motion to Dismiss for Failure to State a Claim (Doc. No. 31). For the reasons discussed below, which reflect the more lenient standard of review of a plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6), the Court will deny the motion. Defendant's motion to dismiss the Title IX claim will be denied for the reasons previously stated in Doc. Nos. 25, 27, 33 and the February 17, 2023, hearing. The Court will also allow Plaintiff's breach of contract claim to proceed. Plaintiff has alleged that Wake Forest violated "identifiable" and "specific" contractual terms of the parties' relationship related to the process by which students could be suspended from the University. Therefore, even though it is a close question as to whether Plaintiff has alleged an objective material breach of that process rather than unavailable subjective claims that the process could have been implemented more fairly or the school simply reached the wrong result, the Court will wait until summary judgment to reach a final decision on whether Plaintiff's breach of contract claim can proceed to trial.

I. LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted" tests whether the complaint is legally and factually sufficient. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012). A complaint must only contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. In evaluating whether a claim is sufficiently stated, "[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff," but does not consider "legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Further, a court is not bound to "accept as true allegations that contradict matters properly subject to judicial notice or by exhibit." Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002); see also Miller v. Pacific Shore Funding, 224 F.Supp.2d 977, 984 n.1 (D. Md. 2002) ("When the bare allegations of the complaint conflict with any exhibits or documents, whether attached or adopted by reference, the exhibits or documents prevail") (citing Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991)); Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007). Thus, a motion to dismiss under Rule 12(b)(6) determines only whether a claim is stated; "it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).

II. FACTS AND PROCEDURAL HISTORY

Plaintiff John Doe, a senior student at Wake Forest, was suspended for one year from the University on January 24, 2023, after he was found to be responsible for an alleged sexual assault on a female Wake Forest student ("Jane Roe") in October 2021. In brief summary, John and Jane were involved in a dating relationship during their Sophomore year that included numerous instances of sexual activity, although not including intercourse. The relationship continued, albeit on a more limited basis, when they returned for their Junior Fall semester. On the night in question, John accepted Jane's invitation to be her date at a sorority social event. After the party, the two returned to Jane's dorm room to spend the night (as they had done before) and engaged in sexual relations. Jane contends that she was assaulted when John engaged in intercourse either while she was incapacitated by alcohol or after she withdrew her consent to intercourse once it began. She also contends that she was assaulted the next morning when John engaged in further sexual activity while she was incapacitated due to sleep. John denies committing any assault, denies that the two engaged in intercourse and generally describes their sexual relations that night and morning as consistent with their consensual relationship that preceded that evening. He also alleges that Jane's complaint was motivated by his decision to begin dating another Wake Forest student shortly after the events in dispute.

On April 12, 2022, approximately six months after the alleged assault, Jane filed a Formal Complaint against John pursuant to the Wake Forest University Sex and Gender Discrimination and Harassment Policy and Title IX Sexual Harassment and Non-Title IX Sexual Misconduct Grievance Procedures (the "Policy"). John received a written Notice of Allegations under the Policy the next day. Jane and John then agreed to participate in Adaptive Resolution, a process in which the students attempt to reach a resolution prior to a formal investigation. After Adaptive Resolution was unsuccessful, an investigation proceeded at Jane's request consistent with the Policy.

A "Title IX Investigator," who is a University employee, interviewed John and Jane four times each. In Jane's first interview with the investigator she alleged for the first time that the claimed assault included intercourse. Based on this information, the University's Title IX department provided John with a supplemental Notice expanding Jane's allegations before his first interview with the investigator. In addition to John and Jane, the investigator interviewed six other witnesses and collected documents and exhibits submitted by the parties. On November 5, 2022, the Investigator issued a twenty page written report to both John and Jane.

A hearing was then held on November 29, 2022, before attorney Dixie T. Wells, a partner in the Ellis & Winters, LLP law firm, who served as the appointed external "Hearing Officer." The hearing lasted over ten hours and included in-person or Zoom testimony from John, Jane and several other witnesses. At the hearing and during the investigation, John was represented by legal counsel, who was given an opportunity to present witnesses and cross-examine Jane and the other witnesses. On December 20, 2022, Ms. Wells issued her decision in the form of a twenty-five page single spaced "Final Outcome Letter," finding that the evidence established that it was more likely than not that John Doe committed sexual misconduct in violation of University policy. Under the Policy, a University Administrator then determined the punishment for the violation, which was set as a one year suspension. On January 3, 2023, John filed an Appeal of the Final Outcome Letter and suspension. On January 23, 2023, Appeal Officer Howard Kallem, another external attorney, issued a detailed Appellate Decision, which affirmed the Final Outcome Letter.

The University then finalized Plaintiff's suspension on January 24, 2023, and he has not attended classes since the suspension was imposed (although he was permitted to do so remotely during his appeal). On February 7, 2023, Plaintiff filed his Complaint in this action alleging two causes of action - violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., ("Title IX") and breach of contract. The same day, Plaintiff filed a motion seeking a TRO and preliminary injunction enjoining Wake Forest from further enforcing its decision to suspend him from the University for one year, thereby allowing him to immediately return to his classes and obtain his degree upon successful completion of his degree requirements. After a hearing on the Motion on February 17, 2023, the Court denied the motion in two subsequent orders holding that Plaintiff had failed to establish a likelihood of success on the merits based on the limited record before the Court. See Doc. Nos. 25, 27.

Notwithstanding the Court's suggestion that a motion to dismiss not be filed (in particular with respect to Plaintiff's Title IX claim), Defendant filed its motion to dismiss both of Plaintiff's claims on March 16, 2023. Doc. No. 31. Noting again that it intended to allow Plaintiff's Title IX claim to proceed, the Court permitted the parties to fully brief Defendant's motion to dismiss Plaintiff's breach of contract claim. Doc. No. 33. That briefing has now concluded and the full motion is ripe for the Court's decision.

III. DISCUSSION

A. Title IX

For the reasons discussed in the Court's earlier orders, Defendant's motion to dismiss Plaintiff's Title IX claim will be denied. See Doc. Nos. 25, 27, 33. In brief summary, the Court has held that while Plaintiff's allegations fall short of clear evidence that the Plaintiff is likely to succeed on the merits of his Title IX claim at trial; that is, establishing that a jury will likely find that Plaintiff has proven that gender bias was a "but-for" cause of Plaintiff's suspension, "the Court [has] no difficulty in denying a defense motion under the significantly lower Rule 12(b)(6) standard for merely 'plausibly' stating a claim under Title IX . . ." See Doe v. Wake Forest Univ., ...