John Doe v. Univ. of Denver

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;KATHRYNE GROVE, individually and as agent for University of Denver;and ERIC BUTLER, individually and as agent for University of Denver, Defendants.

Civil Action No. 16-cv-00152-PAB-KMT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

March 13, 2018

Judge Philip A. Brimmer

ORDER

This matter is before the Court on Defendants' Motion for Summary Judgment [Docket No. 68], Plaintiff's Motion for Leave to Submit Supplemental Authority [Docket No. 108], Plaintiff's Second Motion for Leave to Submit Supplemental Authority [Docket No. 110], and Defendants' Motion to Exclude Expert Testimony [Docket No. 117]. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.

I. BACKGROUND¹

Plaintiff John Doe enrolled at the University of Denver ("DU"), a privateuniversity, in the fall of 2014 as an undergraduate student. Docket No. 68 at 2, ¶¶ 1-2. On April 15, 2015, DU Graduate Resident Director Jeffrey Mariano received a complaint that plaintiff had sexually assaulted a female student, Jane Doe. Id., ¶ 4. Mr. Mariano notified Kathryne Grove, then-Director of the Office of Equal Opportunity ("OEO") and Title IX coordinator, regarding the complaint. Id. On May 1, 2015, Ms. Grove and Eric Butler, an OEO investigator, met with Ms. Doe for an informational meeting regarding the OEO process. Id. at 3, ¶ 6.²

DU began its investigation into Ms. Doe's complaint on May 5, 2015. Id., ¶ 7. On that day, Ms. Grove and Mr. Butler interviewed Ms. Doe regarding the incident. Id. On May 11, 2015, Ms. Grove and Mr. Butler interviewed plaintiff's roommate, M.F. Id., ¶ 9.

On May 12, 2015, Mr. Butler sent plaintiff a letter notifying him that "an expression of concern ha[d] been filed that [he had] allegedly committed the following prohibited conduct: Non-Consensual Sexual Contact." Id. at 3-4, ¶ 10; see also Docket No. 68-30. The letter further informed plaintiff of his rights and responsibilities and provided him with a list of resources. Docket No. 68 at 3-4, ¶ 10; Docket No. 68-30 at 5-8.³ On May 13, 2015, Ms. Grove and Mr. Butler interviewed J.M., a mutualacquaintance of plaintiff and Ms. Doe who was in plaintiff's dorm room on the night of the incident. Docket No. 68 at 4, ¶ 11.

Ms. Grove and Mr. Butler conducted an informational interview with plaintiff on May 20, 2015, which was attended by plaintiff's attorney. Docket No. 85 at 2, ¶ 12. On May 27, 2015, Ms. Grove and Mr. Butler again interviewed plaintiff. Id., ¶ 13. At that time, plaintiff provided the investigators with a list of witnesses. Id. On May 28 and 29, 2015, the investigators interviewed (1) Jeffrey Mariano, the Graduate Resident Director to whom the sexual assault complaint was initially reported, and (2) R.H., the student who had accompanied Ms. Doe when she first reported the sexual assault. Id. at 4-5, ¶ 15. Supplemental interviews of Ms. Doe, Mr. Mariano, plaintiff, and M.F. were conducted between May 29, 2015 and June 16, 2015. Id. at 5, ¶ 16. After each interview, Ms. Grove and Mr. Butler would provide the interviewee with a Summary Statement and give him or her an opportunity to review the statement and make changes to ensure its accuracy. Id. at 3, ¶ 8.

On June 26, 2015, Ms. Grove and Mr. Butler issued their preliminary report to plaintiff and Ms. Doe. Id. at 5, ¶ 18. The preliminary report did not contain the investigators' findings. Id. Mr. Butler informed plaintiff and Ms. Doe that they could submit additional information or corrections to him via e-mail. Id., ¶ 19. Plaintiff requested a "slight edit" to the report on July 3, 2015. Id.

The investigators issued their final report to Kristin Olson, DU's Director of Student Conduct, on July 14, 2015. Id., ¶ 20; Docket No. 67-1 at 1. The report states that "[t]he investigators find it more likely than not that [John's] actions on the night of October 9, 2014 resulted in non-consensual sexual contact with [Jane] by means of coercion in violation of the University's Equal Opportunity Policies." Id. at 6, ¶ 21. The parties dispute whether Jean McAllister, who began her employment as DU's Director of Title IX on June 1, 2015, reviewed or provided any input on the report prior to its issuance. See id., ¶ 24 (stating that Ms. McAllister only read the report as a "training exercise"); Docket No. 86 at 3, ¶ 24 (stating that "McAllister reviewed the final report prior to its issuance and could not recall whether she provided thoughts on the report to Grove or Butler"). The parties also dispute whether defendant Rebecca Chopp, a chancellor of the university, had any role in plaintiff's case. See Docket No. 68 at 9, ¶ 35 (stating that "Chancellor Chopp had no involvement in any aspect of John's investigation, outcome determination, or appeal"); Docket No. 86 at 5, ¶ 35 (stating that "Chopp had significant influence on DU's policies and procedures").

On July 17, 2015, Ms. Olson sent a letter to plaintiff and Ms. Doe informing them that an Outcome Council would be convened as a result of the investigators' finding of responsibility. Docket No. 68 at 7, ¶ 28. The letter listed the names of the council members and informed plaintiff and Ms. Doe that they had the "right to object to the participation of a member of the Outcome Council based on a demonstrable significant bias" by sending Ms. Olson "supporting information" within twenty-four hours. Id., ¶¶ 28-29. At that time, plaintiff did not have a reason to believe that any of the membersof the Outcome Council - Molly Hooker, Matthew Rutherford, and Ms. Olson - were biased against him based on his gender. Id. at 8, ¶ 30; Docket No. 86 at 5, ¶ 30.

The Outcome Council convened on July 20, 2015. Docket No. 68 at 8, ¶ 32. On July 22, 2015, the Council notified plaintiff by phone and written letter of its determination that it was "in the University's best interest" to dismiss plaintiff from DU. Id. Plaintiff appealed the Council's determination on July 27, 2015, arguing that "[t]here were substantial procedural errors in [the] investigation that would have likely altered the course of the investigative findings and ultimate outcomes." Docket No. 68-6 at 1; Docket No. 68 at 8-9, ¶ 33. Among these errors were "(1) [the] failure to include information provided by [plaintiff] in the investigative report; (2) [the] failure to properly investigate and collect all available information; and (3) [the] failure to ensure proper investigatory techniques were followed and/or give weight or consideration to [the] fact that they were not followed." Docket No. 68-6 at 1; Docket No. 68 at 8-9, ¶ 33.⁴

On July 30, 2015, Barbara Wilcots, Associate Provost of Graduate Studies, sent plaintiff a letter informing him that his appeal was denied and providing an explanation for the denial. Docket No. 68 at 9, ¶ 34; Docket No. 68-7 (denial letter). The letter stated that this was a "final decision, with no further route of appeal." Docket No. 68 at 9, ¶ 34; Docket No. 68-7 at 2.

Plaintiff filed his complaint in this case on January 21, 2016. Docket No. 5. He asserts claims for: (1) violation of his rights under Title IX of the Education Amendmentsof 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; (3) breach of contract; (4) breach of the covenant of good faith and fair dealing; (5) promissory estoppel; (6) negligence; and (7) a declaratory judgment directing, among other things, that "the outcome and findings made by University of Denver be reversed," that plaintiff's "disciplinary record be expunged," and that plaintiff be "readmitted to [the] University of Denver for the Spring 2016 semester." Docket No. 5 at 39-57.

Though not addressed in depth in the parties' statement of undisputed facts, plaintiff's claims hinge, in part, on DU's response to an April 4, 2011 "Dear Colleague" letter ("DCL") issued by the Department of Education's Office for Civil Rights ("OCR"). Noting the "deeply troubling" statistics regarding sexual violence on college campuses, the DCL purported to provide "additional guidance and practical examples regarding the Title IX requirements as they relate to sexual violence." Russlynn Ali, Assistant Sec'y for Civil Rights, Dear Colleague Letter, at 2 (Apr. 4, 2011), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html (last visited Mar. 13, 2018). It also identified "remedies that schools and OCR [could] use to end such conduct, prevent its recurrence, and address its effects." Id. Another court in this district has noted that the DCL "had two major effects": (1) "it generally signaled that OCR had adopted a 'get tough' approach, thus prompting colleges and universities to devote more attention to sexual assault accusations"; and (2) it "announced OCR's view that school investigators should apply a preponderance-of-the-evidence standard when determining whether a sexual assault accusation is founded." Doe v. Univ. of Colo., Boulder, 255 F. Supp. 3d 1064, 1067 (D. Colo. 2017). Plaintiff's claims are predicatedin part on the fact that DU revised certain of its procedures for addressing sexual misconduct in response to the DCL. Docket No. 85 at 8-11; Docket No. 95 at 4, ¶ 10.

On May 5, 2017, defendants moved for summary judgment on all claims. Docket No. 68. After briefing on the motion was complete, plaintiff filed two motions to supplement his response to defendants' motion for summary judgment. Docket Nos. 108, 110. On January 29, 2018, defendants moved to exclude the expert testimony of Aya Gruber and Hanna Stotland under Fed. R. Civ. P. 702. Docket No. 117.

II. LEGAL STANDARD

Summary judgment is warranted under Federal Rule of Civil Procedure 56 when the "movant shows...