Roe v. Marshall Univ. Bd. of Governors

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JANE ROE, Plaintiff, v. MARSHALL UNIVERSITY BOARD OF GOVERNORS, Defendant.

Civil Action No. 3:22-0532

United States District Court, S.D. West Virginia, Huntington Division

June 24, 2024

MEMORANDUM OPINION & ORDER

ROBERT C. CHAMBERS, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Marshall University Board of Governors' Motion for Summary Judgment. See ECF No. 165. After review, the Court GRANTS Defendant's Motion.^[1]

BACKGROUND

I

On September 3, 2022, Marshall University hosted a daytime football game. See Def.'s Mem., Ex. F at 5 (Hearing Packet), ECF No. 171-4. Jane Roe attended. See id., Ex. A at 23:6-11, ECF No. 171 (Jane Roe Dep.). During the game, Roe encountered her ex-boyfriend John Doe. See id. They hugged. See id. at 23:13-14. Soon after they parted, Roe left the game. See id. at 27:1-4.

Around 5:30 pm, Roe attended a party at 359 Marion Court in Huntington, West Virginia. See id. at 31:1-2; 34:3-16. Around fifteen people attended. See id. at 42:11-15. By the time Roe arrived, the “game was already over.” Id. at 34:14-15.

Neither Marshall University nor its student organizations owned controlled, or leased 359 Marion Court. See id., Ex C ¶¶ 5-6, 8-10, ECF No. 165-3. Similarly, Marshall University did not host, sanction, sponsor, or affiliate itself with the party. See id. ¶¶ 12-13. No student, faculty member, or other member of Marshall University's community sought permission to host the party. See id. ¶ 13. Marshall University was not aware of the party before it occurred. See id. ¶ 15.

At the party, Roe took a “couple shots” of alcohol. Id. at 42:20-22. She ran into Doe. See id. at 41:12-15. He was “blackout drunk.” Hearing Packet at 5. At some point, the two students sought privacy in a bathroom. See Jane Roe Dep. at 51:8. There, Doe got “really aggressive.” Id. at 51:9. He pushed Roe into a wall, put his hands on her throat, and attempted to pull her pants down. See Hearing Packet at 5. Roe escaped outside. See id. Doe followed. See id. He attempted to kiss her. See id. When she refused, Doe bit the outside of her mouth “drawing blood.” Id. Disturbed, Roe called her brother. See id. Someone called 911. See id.

When officers arrived, they found Doe on the front porch of the residence. See Def.'s Mem., Ex. B at 2, ECF No 171-1. They arrested him and charged him with domestic battery. See id. They then reported the incident to Marshall University's Title IX office. See Def.'s Mem., Ex. D at 27:14-21, ECF No. 171-2 (Lisa Martin Dep.); Hearing Packet at 3.^[2]

II

A

On September 7th, Marshall University's Title IX Evaluation Committee reviewed the Huntington Police Department's report, see Lisa Martin Dep. at 27:9-28:3, to decide whether Marshall University's Title IX office or Office of Student Conduct should handle the university's response to the incident, see id., Ex. E at 122:1-20, ECF No. 171-3 (Debra Hart Dep.).

The Committee looked to Marshall University Board of Governors Policy No. GA-1. See id., Ex. H, ECF No. 165-8. Policy No. GA-1 states: Marshall University will address sexual harassment in its “programs and activities.” Id. at 4. These include “locations, events[,] or circumstances over which the University exercises substantial control over both the Respondent and the Complainant and the context in which the alleged sexual harassment occurs.” Id. Although “[o]ff-campus conduct at private residences, businesses, events, or other locations” are areas of concern, if the alleged conduct did not occur in an education program or activity, the Title IX office “must dismiss the formal complaint . . . for purposes of sexual harassment under Title IX.” Id. Such dismissal, however, does not “preclude action under another provision of the University's policies or procedures”-including its Student Code of Rights & Responsibilities. Id.

Typically, the Committee would analyze a “number of things” when determining Title IX jurisdiction. Debra Hart Dep. at 123:7. For example, it would ask whether the underlying incident occurred on campus or off campus, whether the party was a sanctioned university activity or outing, and whether students advertised the party on HerdLink-a portal used by student organizations to advertise their events. See id. at 49:14-16; 51:22-52:11. It would also look to see if Marshall University provided any financial or other support to the event. See id. at 123:1-8 (looking for university money, refreshments, transportation, or advertising connected to the party).

Here, the Evaluation Committee took an abridged approach. It looked at the police report and observed the incident involved two students, see id. at 152:6-7, at an apartment off campus, see id. at 151:9-10, 156:3-5. See also id. at 160:10-11 (explaining the Committee determines location from the complaint). After seeing these two pieces of information, the Committee did not “go any further.” Id. at 160:10-11. Instead, it “immediately]” transferred, id. at 151:12, the police report to the Office of Student Conduct “for further detail,” id. at 160:12.

B

Once transferred to the Office of Student Conduct, Assistant Director of Student Conduct Michaela Arthur took over the investigation. See generally Pl.'s Resp., Ex. J, ECF No. 186-7.

On September 7th, Arthur sent Roe and Doe No Contact Orders. See Def.'s Mem., Ex. G at 2, 4, ECF No. 171-5. Arthur also charged Doe with violating Student Code of Rights & Responsibilities Provisions 5.2.2.1 and 5.2.2.4. See id. at 12. Provision 5.2.2.1 prohibits “[p]hysical or emotional/psychological abuse” of another person “whether such conduct occurs on or off University property.” Id. Provision 5.2.2.4 prohibits “[r]elationship violence.” Id.

Arthur then met with Doe and Roe several times over the next six weeks. On September 13th, Arthur met with Doe to discuss his charges. See Hearing Packet at 4-5. He quibbled with a few details of the night. See, e.g., id. at 6 (suggesting Roe's bit lip was consensual). He also emphasized “everyone was drinking” at the party. Id. at 4.

On September 15th, Arthur met with Roe to hear her perspective. See id. at 5. During their meeting, Roe stated “she and [Doe] had both had drinks.” Id. Six days later, Roe clarified she “had 2-3 seltzers before the [f]ootball game” and “two shots of Yeager back to back” at the party. Id. at 7. She stated she saw Doe with a “beer in his hand” and “drink directly from the bottle of Yeager for 20-30 seconds.” Id. However, “based on his behavior,” Roe suggested Doe “drank more.” Id.

On September 23rd, Arthur met with Doe again. See id. During their meeting, Doe refused to say how much he drank and whether he saw Roe drinking “due to his legal process.” Id. Doe then asked whether Marshall University's investigation could be postponed until after his criminal case. See id. Arthur stated she would ask, but if Doe refused to cooperate, Marshall University would “go on the evidence [it] [is] able to collect and testimony [it] gather[s].” Id.

On October 7th, Arthur met with Doe a third time. See id. This time, Doe asked questions about the No Contact Order and the investigation process. See id.

On October 20th, Doe accepted responsibility for violating Provisions 5.2.2.1 (physical/emotional abuse), 5.2.2.4 (relationship violence), and 5.2.4.3 (underage drinking). See Def.'s Mem., Ex. G at 15. Doe agreed to be placed on probation, to participate in an alcohol education course, and to complete twenty hours of community service. See id. at 15-16.

The same day, Arthur charged Roe with violating Provision 5.2.4.3 prohibiting “underage consumption of alcohol.” Def.'s Mem., Ex. G at 7. As justification, Arthur explained Roe “admitted to drinking underage during the incident.” Id. She also told Roe that she could request a hearing with an advisor or accept a “voluntary resolution.” See id. at 8. Under a voluntary resolution, Roe would accept probation, participate in an alcohol education course, and complete ten hours of community service. See id.

On October 24th, Roe accepted the voluntary resolution. See id. at 11.

III

Roe sued. She alleges two Title IX causes of action. In Count I, Roe alleges Marshall University's response to her sexual harassment was deliberately indifferent. See Am. Compl. ¶¶ 62-76, ECF No. 34. In Count II, Roe alleges Marshall University unlawfully retaliated against her for reporting sexual harassment by punishing her for underage drinking. See id. ¶¶ 77-88.

STANDARD OF REVIEW

Summary judgment is appropriate if the moving party shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018) (quoting Fed.R.Civ.P. 56(a)). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if a “reasonable jury could return a verdict for the non-moving party.” Id. at 248.

In its analysis, the Court does not resolve disputed facts, weigh the evidence, or make determinations of credibility. See Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir. 1995); Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). Instead, the Court draws all permissible inferences from the facts in the light most favorable to the nonmoving party. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Still, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts.” Scott v. Harris, 550 U.S. 372, 380 (2007).

ANALYSIS

Title IX provides that “no person in the United States shall on the basis of sex, be...