John Doe v. Univ. of Or.

JOHN DOE, Plaintiff, v. UNIVERSITY OF OREGON; SANDY WEINTRAUB, an individual acting in his personal capacity;CAROL MILLIE, an individual acting in her personal capacity;and ROBIN HOLMES, an individual acting in her personal capacity, Defendants.

Case No. 6:17-cv-01103-AA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON EUGENE DIVISION

March 26, 2018

OPINION AND ORDER

AIKEN, Judge:

Plaintiff John Doe, a student at defendant University of Oregon ("the University"), brought suit against the University and individual defendants Sandy Weintraub, Carol Millie, and Robin Holmes. In 2016, plaintiff was accused of sexually assaulting fellow student Jane Roe.¹ After an investigation and a hearing, the University suspended plaintiff for one year. The Lane County Circuit Court later vacated that suspension, finding that the University had violated its own investigatory and adjudicatory procedures. In this action, plaintiff alleges that defendantsviolated his rights under the Due Process and Equal Protection Clauses of the United States Constitution, the Equal Rights Amendment to the Oregon Constitution, and Title IX of the Education Amendments of 1972. He also asserts state law claims of breach of contract, breach of the duty of good faith and fair dealing, and unlawful trade practices.

Defendants moved to dismiss all claims. Oral arguments were held on the motion on January 29, 2018. For the reasons set forth below, defendants' motion to dismiss is granted in part and denied in part.

BACKGROUND

Accepting plaintiff's allegations as true for the purposes of the motion to dismiss, the relevant facts are as follows, Jane Roe and plaintiff met in the fall of 2015, when they were both attending the University. They began a sexual relationship. About halfway through the fall term, they stopped having sex because plaintiff wanted to be in a serious relationship, whereas Roe wanted something more casual. Shortly after they stopped having sex, plaintiff, who is a "germaphobe," became so worried that Roe had infected him with the herpes virus that he visited the student health facility and texted his mother about his concerns. Compl. ¶ 37. As a result, he was no longer interested in having sex with Roe.

Plaintiff and Roe began talking again during the winter term of 2016. On February 11, 2016, Roe and plaintiff met for coffee and took a walk together. The next day, Roe contacted plaintiff, who lived in the same dorm, because she was "highly intoxicated and afraid that, if she fell asleep, she might inhale her own vomit." Id. ¶ 40. Plaintiff routinely assisted other students who were under the influence of alcohol and could not take care of themselves, Plaintiff agreed to watch over Roe while she slept. Plaintiff slept in his own bed while Roe slept in his roommate's bed. When plaintiff woke up the next morning, Roe had already left.

Four days later, Roe filed a report accusing plaintiff of making unwanted sexual advances during the February 11 walk and having non-consensual sexual contact with her early the morning of February 13. Plaintiff denied all allegations. Because plaintiff and Roe shared a residence hall, the University required plaintiff to immediately move to a different building pending an investigation. Defendant Sandy Weintraub, the Director of Student Conduct & Community Standards at the University, sustained that emergency action after a hearing.

The University launched an investigation, which was conducted by defendant Carol Millie, the Senior Equal Opportunity Specialist in the University's Office of Affirmative Action and Equal Opportunity. During the investigation, Millie repeatedly explained away inconsistencies in Roe's account, while simultaneously ignoring evidence tending to corroborate plaintiff's version of events.

For example, Roe's story about important events changed as the investigation proceeded. She originally told Millie that plaintiff had merely "hit on her" and tried to get her to "do stuff" during the walk, but she later stated that plaintiff had grabbed her buttocks, picked her up and threw her over his shoulder, and frightened her so much that she had to run away. Id. ¶ 66. Regarding the assault itself, Roe at first reported that plaintiff pulled her from the dorm bed onto the floor and on top of him, then began kissing her and putting his hand down her pants. In her second interview with Millie, however, Roe mentioned new details for the first time. She stated that plaintiff was slapping her awake during the assault and interrogating her about how many sexual partners she had.

Roe's testimony about the timing of the assault was also inconsistent with available evidence. At 3:24 A.M. the morning of February 13, Roe texted her ex-boyfriend, "Just for documentation, can you make it known I was almost raped tonight?" Id. ¶ 54. Roe toldUniversity investigators that she had sent the message immediately after the alleged assault. However, two witnesses who were playing video games in the dorm room opposite plaintiff's that night reported that the door to plaintiff's room remained partially open from the time plaintiff and Roe entered the room until well past 3:24 A.M. Those witnesses testified that they had the sound turned down low and their door was open, so they would have been able to hear slapping, yelling, or other loud noises; they reported that they heard nothing. Millie concluded that the assault must have taken place "much earlier" than Roe remembered, and that the text message did not immediately follow the assault. Id. ¶ 74.

Furthermore, there were reasons to doubt the reliability of some of plaintiff's evidence. Roe provided Millie a screenshot of incriminating iMessages² allegedly received from plaintiff the morning after the assault, but asserted she could not produce the original messages because they had been automatically deleted when she erased plaintiff's contact information from her phone. Plaintiff produced expert testimony that iMessages are not automatically erased when an individual removes a contact from her iPhone. Confronted with that evidence, Roe changed her story, and explained that she had intentionally destroyed the iMessages.

The University held an administrative hearing. Plaintiff alleges that Millie violated University procedures in numerous ways in connection with the hearing, including by failing to provide plaintiff with advance copies of exhibits from Roe's attorney prior to that hearing; improperly telling Roe's advisor that she could decline to answer plaintiff's questions at the hearing;³ allowing Roe to introduce new evidence into the record after the conclusion of thehearing without permitting plaintiff to respond; preventing plaintiff from submitting allowable evidence; and admitting expert evidence without allowing plaintiff a chance to respond.

Plaintiff passed a total of four polygraph tests concerning the incident; two that concluded he was being truthful when he said he had not had sex with Roe on the night of February 12/moming of February 13, and two that concluded he was being truthful in stating that he never sent Roe iMessages or social media messages about the alleged assault.

After the hearing, Millie concluded that plaintiff had violated the University's sexual harassment policies and suspended him for one year; after an internal appeal, the University upheld that decision. In issuing her decision, Millie relied on an undisclosed expert's opinion that trauma can affect victims' memories in a way that could explain the inconsistencies in Roe's statements. This created a "Catch-22 situation" in which plaintiff was unable to establish his innocence because Roe would be believed whether her story was consistent or not. Id. ¶ 77. Plaintiff never had an opportunity to respond to the expert opinion. Millie did not discuss or even mention the polygraph results.

After the University upheld the suspension, plaintiff filed a petition for writ of review in Lane County Circuit Court, seeking reversal of his suspension and alleging due process, equal protection, and Title IX violations by the University and individual defendants. The courthouse rejected plaintiff's filing and informed plaintiff that his civil rights and other affirmative claims were beyond the scope of a writ of review petition and must be filed separately in a separate civil complaint. Plaintiff complied and submitted only the writ of review petition.

The circuit court ultimately agreed with plaintiff regarding the University's disciplinary proceedings and vacated plaintiff's suspension. The court's decision to vacate plaintiff's suspension rested on its finding that Mille had violated University procedure in her investigationand adjudication of the sexual misconduct allegations. Plaintiff then filed this action, asserting violations of his rights under federal and state law. He seeks compensatory damages, punitive damages, and attorney's fees.

STANDARD

Where the plaintiff "fail[s] to state a claim upon which relief can be granted," the court must dismiss the action. Fed. R. Civ. P. 12(b)(6). A court considering a motion to dismiss for failure to state a claim construes the complaint in favor of the plaintiff and takes the complaint's factual allegations as true. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). "[F]or a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

"[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court...