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Doe v. Vanderbilt University

United States District Court, M.D. Tennessee, Nashville Division

September 30, 2019

JOHN DOE, Plaintiff,
v.
VANDERBILT UNIVERSITY, et al., Defendants.

          MAGISTRATE JUDGE FRENSLEY

          MEMORANDUM

          WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Defendants' Motion to Dismiss. (Doc. No. 39). Plaintiff filed a Response in Opposition (Doc. No. 42), and Defendants filed a Reply. (Doc. No. 43). For the reasons discussed below, Defendants' Motion to Dismiss is GRANTED.

         I. PROCEDURAL BACKGROUND

         Plaintiff, a former Vanderbilt University (“Vanderbilt”) student, brings this action arising out of Vanderbilt's investigation of an accusation of sexual misconduct made against him by a female student (“Jane Roe”). After the investigation, Vanderbilt concluded sexual misconduct had occurred and expelled Plaintiff as a sanction. On September 24, 2018, Plaintiff filed a Second Amended Complaint asserting numerous causes of action, specifically (1) Title IX of the Educational Amendments Act of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”); (2) the Declaratory Judgment Act, 28 U.S.C. § 2201; (3) breach of contract; (4) promissory estoppel; (5) intentional infliction of emotional distress; (6) negligence; (7) gross negligence; (8) negligent infliction of emotional distress; and (9) negligent training and supervision of employee claims, including sub-claims based on different theories of liability. (See Doc. No. 35). On October 9, 2018, Defendants moved to dismiss the Second Amended Complaint for failure to state a claim upon which relief can be granted. (Doc. No. 39).

         II. FACTUAL BACKGROUND

         Vanderbilt is a private university located in Nashville, Tennessee, that accepts federal funding. (Doc. No. 35 at ¶ 5). Plaintiff, a citizen and resident of Mumbai, India, was a sophomore at Vanderbilt in the spring of 2017. (Id. at ¶¶ 4, 14). Upon enrolling at Vanderbilt, Plaintiff - like every other student - became (1) generally bound by Vanderbilt's honor code, which is embodied in the “Community Creed, ” and (2) specifically governed by the policies and regulations set forth in the Vanderbilt Student Handbook (“Handbook”).

         A. Vanderbilt's Sexual Misconduct Policy

         The Handbook includes a dedicated disciplinary policy concerning “Sexual Misconduct and Intimate Partner Violence” (“Sexual Misconduct Policy”). (Doc. No. 41-1 at 105-126). Vanderbilt recommends that students make complaints of sexual misconduct directly to its Equal Opportunity, Affirmative Action, and Disabilities Services Department (“EAD”), which is led by the University's Title IX Coordinator (at the time Anita Jenious), and has responsibility for administrative investigation of reports of Sexual Misconduct Policy violations. (Id. at 115, 106). “The Title IX Coordinator, EAD staff, the Director of Student Accountability, and Project Safe Center staff are trained at least annually, and on an ongoing basis, on issues related to sexual harassment, sexual misconduct, and intimate partner violence, and in in conducting investigations in a manner that protects the well-being and safety of the complainant, the respondent, and the University community.” (Id. 40-1 at 125). Students may also make an initial complaint to another Vanderbilt employee, and that person will refer the matter to EAD. (Id. at 108).

         B. The Sexual Misconduct Policy Complaint and Investigation Process

         After a complaint of a violation of the Sexual Misconduct Policy is brought to the attention of EAD, the Title IX Coordinator will determine whether EAD should conduct an investigation. (Doc. No. 40-1 at 116-17). The EAD will conduct an intake process to assist the Title IX Coordinator in determining how to proceed with a sexual misconduct report and whether interim measures are needed. (Id. at 116). The intake process may include preliminary interviews of the complainant, respondent, or witnesses, consultation with other University offices, and initial review of potentially relevant evidence. (Id.).

         Upon a determination by the Title IX Coordinator that an investigation involving a student respondent will be conducted, “EAD will normally provide a summary of the allegations to the Director of Student Accountability, ” who will then “determine the charge(s) to be brought, if any, and present the charge(s) and possible sanctions to the respondent.” (Id. at 117). “After the presentation of any charge(s), “the respondent will have the opportunity to agree or disagree with each of them.” (Id.). “Whether or not Student Accountability has already presented the charges, EAD will inform the respondent of the allegations, provide the respondent an opportunity to respond to the allegations, ask questions, provide information, and offer names of witnesses or other people with relevant information.” (Id.).

         The Sexual Misconduct Policy provides that EAD investigators will interview the respondent and other individuals that it determines “may have pertinent knowledge.” (Id.). “Potentially relevant information and documents may be collected from the complainant, respondent, witnesses, and third parties.” (Id.). The Sexual Misconduct Policy states that the EAD will prepare summaries of its interviews, and the complainant and the respondent will be given the opportunity “to review and revise the summary of their own interview.” (Id.).

         During an investigation, both a complainant and respondent are permitted to have an “adviser” of their choosing to accompany them to meetings related to the report of a violation of the Sexual Misconduct Policy. (Id. at 116, 118). The adviser for either party may confer privately with that party, but may not speak on the party's behalf or otherwise participate in any meeting. (Id. at 118).

         Prior to making a final determination, EAD prepares a preliminary investigation report that contains a summary of the information and documents that EAD considers relevant to whether the respondent violated the Sexual Misconduct Policy. (Id. at 117). The complainant and respondent are each given an opportunity to review a copy of the preliminary investigation report. (Id.). Both the complainant and respondent are then allowed to submit, within five days, up to five pages of written comments. (Id. at 118). After considering those comments on the preliminary report, EAD issues a final investigation report that sets forth EAD's final determinations, based on a preponderance of the evidence (i.e., more likely than not) standard, regarding whether the respondent engaged in sexual misconduct in violation of the Sexual Misconduct Policy. (Id. at 119). The final investigation report contains a summary of the information and documents on which it is based and addresses, “to the extent EAD considers appropriate, ” any comments received from the complainant or respondent on the preliminary report. (Id.). The parties' comments to the preliminary investigation report are also appended to the final investigation report. (Id.). When the respondent is determined to have engaged in the conduct for which the respondent was charged, the final investigation report will also be forwarded to the appropriate person for sanctioning, referral, or follow-up - in the case of a student respondent, the Director of Student Accountability. (Id.).

         If the EAD has determined that a respondent violated the Sexual Misconduct Policy, “Student Accountability will review EAD's final investigation report and will render an appropriate sanction.” (Id. at 121). The sanctioning determination is made “based on the information contained in the EAD investigative report, with particular regard for the nature of the incident, the respondent's reported cooperation and candor, and the respondent's disciplinary history (if any).” (Id.). The range of sanctions for any student found responsible for sexual assault-intercourse is suspension to expulsion; for sexual assault-contact, dating violence, or the other delineated forms of sexual misconduct the sanctions range from disciplinary probation to expulsion. (Id.).

         C. The Sexual Misconduct Policy Appeal Process

         Either party has the right to appeal a determination by EAD and any sanction rendered by Student Accountability. (Doc. No. 40-1 at 121). Student appeals are decided by a panel of three Appellate Officers for Sexual Misconduct (“Appellate Officers”). (Id.). Appellate Officers are faculty and/or administrators, appointed by the Chancellor (or the Chancellor's designee) for two or three-year terms, who receive annual training on issues involved in sexual misconduct, such as relevant evidence, the appeals process, standards of review, and avoiding actual or perceived conflicts of interest. (Id. at 121-122). A respondent assessed with a sanction may submit a written appeal petition within ten days of the date the complainant and respondent are notified of the sanction. (Id. at 122). The petition must include a statement of the grounds for appeal, a supporting explanation, and copies of, or reference to, all information not previously submitted to the EAD that the petitioner wishes the Appellate Officers to consider. (Id.).

         There are only four limited grounds for appeal, however, and “new” information will only be considered in the limited context of those contentions. The possible grounds for appeal are:

a. Procedural irregularities sufficient to affect the determination or sanction;[1]
b. The evidence does not support the determination;[2]
c. New evidence that was not reasonably available for presentation to EAD, the introduction of which could reasonably be expected to affect EAD's determination;[3] or d. Severity of the sanction imposed by Student Accountability.[4]

(Doc. No. 40-1 at 122-23). As part of the appeal process, the petition is sent to the Title IX Coordinator, Student Accountability, and the non-petitioning student, and those parties are given an opportunity to submit a written response. (Id. at 123). The petitioning student may then reply. (Id.).

         The Appellate Officers then proceed to consideration of the appeal. “The Appellate Officers' consideration of the appeal must be based only on (a) the original records created by or provided to EAD and/or Student Accountability, including the final investigation report, (b) the petition, (c) any new evidence in the petition that was not reasonably available for presentation to EAD and the introduction of which could reasonably be expected to change EAD's determination, (d) any written comments/response, and (e) any reply. (Doc. No. 40-1 at 123). The Appellate Officers decide by majority vote whether to affirm, modify, or reverse the determination by EAD and/or sanction imposed by Student Accountability or to remand the case to EAD and/or Student Accountability with instructions. (Id.). “At no time may Appellate Officers substitute their opinions or values for University policy.” (Id.).

         D. Factual Allegations

         On February 10, 2017, a sophomore at Vanderbilt, Jane Roe, reported sexual misconduct involving Plaintiff to a resident advisor. (Doc. No. 35 ¶¶ 8, 15). The Associate Dean of Students, Community Standards and Student Support, referred the matter to the Equal Opportunity, Affirmative Action, and Disabilities Services Department (“EAD”). (Id. at ¶ 9). Three days later, on February 13, 2017, the Director of Project Safe, Defendant Cara Tuttle Bell, also referred the matter to EAD. (Id.).

         EAD interviewed Jane Roe on March 1, 2017 and March 21, 2017. (Id. at ¶ 20). On March 31, 2017, the Office of Student Accountability, Community Standards, & Academic Integrity, charged Plaintiff with sexual assault-intercourse, sexual assault- contact, and dating violence, as the result of the complaint filed by Jane Roe. (Id. at ¶ 12). Plaintiff indicated on the charge sheet that he disagreed with the charge. (Id. at ¶ 13).

         EAD then interviewed Plaintiff on April 27, 2017 and on August 2, 2017 (via telephone). (Id. at ¶ 21). Jane Roe was interviewed a third time by the EAD on July 6, 2017. (Id. at ¶ 20). Jane Roe attended all interviews with her chosen advisor. (Id. at ¶ 20). Plaintiff was not encouraged to select an advisor and did not have an advisor attend either of his interviews. (Id. at ¶¶ 90, 21).

         On or about October 10, 2017, EAD issued its investigative report and findings. (Doc. No. 35 ¶ 45). In its Findings of Fact, EAD concluded, based on the preponderance of the evidence, and taking all of the evidence into account, “that if Jane Roe was intoxicated to the point of incapacitation, [Plaintiff] did not know and/or reasonably would not have known that she was incapacitated” and that “from the point at which [Plaintiff] choked Jane Roe, the incident became nonconsensual.” (Id. at ¶¶ 42-43). EAD concluded that Plaintiff committed sexual assault-intercourse, sexual assault-contact, and dating violence in violation of the 2016-2017 Sexual Misconduct and Intimate Partner Violence Policy. (Id. at ¶ 44).

         On October 25, 2017, Plaintiff was informed that his sanction would be expulsion. (Id. at ¶ 46). Plaintiff appealed his expulsion on November 3, 2017. (Id. at ¶¶ 47-48). Plaintiff also emailed Vanderbilt's Chancellor on December 4, 2017, asking him to reverse his expulsion. (Id. at ¶ 49).

         On January 17, 2018, Plaintiff was informed that his appeal had been unsuccessful and escorted to Student Accountability. (Id. at ¶ 51). Plaintiff informed the Director of Student Accountability, Defendant Mary Helen Solomon, that he was suicidal. (Id. at ¶ 52). Defendant Solomon told Plaintiff that she was either going to call the police or accompany him to the student counseling center. (Id. at ¶ 53). The student counseling center determined that Plaintiff was a suicide risk and involuntarily committed him to a mental health facility. (Id. at ¶ 54). Plaintiff spent five nights in the hospital before his father checked him out. (Id. at ¶¶ 61- 62).

         Plaintiff alleges that Defendant Solomon prevented the hospital from notifying Doe's next of kin and did not notify his next of kin herself. (Id. at ¶ 55). Plaintiff further alleges that upon admitting Doe to the Vanderbilt hospital mental health facility, Vanderbilt or Defendant Solomon provided the hospital with Doe's educational records, in violation of the Family Educational Rights and Privacy Act. (Id. at ¶ 58).

         III. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 12(b)(6), permits dismissal of a complaint for failure to state a claim upon which relief can be granted. For purposes of a motion to dismiss, a court must take all of the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662 (2009); Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). To survive a Rule 12(b)(6) motion, “‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557). “If the plaintiffs do not nudge their claims across the line from conceivable to plausible, their complaint must be dismissed.” Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013) (citation and brackets omitted). Dismissal is likewise appropriate where the complaint, however factually detailed, fails to state a claim as a matter of law. Mitchell v. McNeil, 487 F.3d 374, 379 (6th Cir. 2007). The Court of Appeals for the Sixth Circuit recently confirmed, after a challenge, that this is indeed the governing standard for Title IX claims as well as other claims. See Doe v. Miami Univ., 882 F.3d 579, 588-589 (6th Cir. 2018) (rejecting the reduced pleading standard in Title IX cases enunciated by the Court of Appeals for the Second Circuit).

         In deciding a motion to dismiss, the court is not required to accept summary allegations, legal conclusions, or unwarranted factual inferences. Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999); Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996). Nor is the court required to accept as true allegations that are contradicted by documents that have been incorporated by reference in the complaint. Williams v. CitiMortgage, Inc., 498 Fed.Appx. 532, 536 (6th Cir. 2012).

         As a general rule, “matters outside the pleadings may not be considered in ruling on a 12(b)(6) motion to dismiss unless the motion is converted to one for summary judgment under [Federal Rule of Civil Procedure] 56.” Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997). The term “pleadings” encompasses both the complaint and the answer, Fed.R.Civ.P. 7(a), and a copy of any exhibit thereto. Fed.R.Civ.P. 10(c). However, “[d]ocuments attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to the plaintiff's claim.” Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); see also Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335 (6th Cir. 2007) (holding that a district court may consider documents referenced in the pleadings that are “integral to the claims” in deciding motion to dismiss); Wyser-Pratte Mgmt. Co., Inc. v. Telxon Corp., 413 F.3d 553, 560 (6th Cir. 2005) (noting that in deciding a motion to dismiss “the court may also consider other materials that are integral to the complaint, are public records, or are otherwise appropriate for the taking of judicial notice”). In short, “if both parties reference and quote extensively from particular documents, and neither party contests the appropriateness of considering the documents on review of a motion to dismiss, the Court may consider the documents.” Doe v. Ohio St. Univ., 219 F.Supp.3d 645, 653 (S.D. Ohio 2016) (citing In re Fair Fin. Co., 834 F.3d 651, 656 n.1 (6th Cir. 2016)).

         Defendants attached the 2016-2017 Handbook to their Motion. (See Doc. No. 40-1.) This is the version relevant to this case. Plaintiff does not contest the authenticity of the Handbook (see Doc. No. 42), the Handbook has been expressly and extensively referenced in the Complaint, and the Handbook is integral to Plaintiff's claims. Accordingly, the Court considers this document in its entirety for purposes of the pending motion to dismiss.

         IV. ANALYSIS

         “There has been much debate in recent times about the most effective method for addressing the formidable problem of sexual assault on college campuses. College administrators, politicians, academics and students alike have clashed on how best to balance the interests and rights of complainants with those of the accused.” Yu v. Vassar College, 97 F.Supp.3d 448, 461 (S.D.N.Y. 2015). The Court, however, has a limited role to play. Particularly at the motion to dismiss stage, “this case comes before the Court in limited posture.” Doe v. Univ. of the South, 687 F.Supp.2d 744, 755 (E.D. Tenn. 2009) (hereinafter “Univ. of the South I”). Because Plaintiff's claims against Vanderbilt are grounded upon the manner in which the university conducted the process leading to its conclusion that he had violated the Sexual Misconduct Policy and the resulting imposition of sanctions, the Court's review is “substantially circumscribed” - namely, “the law does not allow th[e] Court to retry the University's disciplinary proceeding.” Id. (quoting Gomes v. Univ. of Maine Sys., 365 F.Supp.2d 6, 14 (D. Maine 2005)); Doe v. Belmont Univ., 334 F.Supp.3d 877, 899 (M.D. Tenn. 2018) (same); see also Plummer v. Univ. of Houston, 860 F.3d 767, 772 (5th Cir. 2017) (“It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking in wisdom or compassion.”); Saravanan v. Drexel Univ., 2017 WL 5659821, at *4 (E.D. Pa. Nov. 24, 2017) (“In reviewing [the university's] proceedings, we may not “advocate for best practices nor [...] retry disciplinary proceedings.”) (quoting Yu, 97 F.Supp.3d at 461).

         Furthermore, this is not a lawsuit between Plaintiff and Jane Roe. Accordingly, the Court is not asked to make an independent determination as to what happened between Plaintiff and Jane Roe on February 10, 2017. “The Court therefore expresses no opinion as to whether [a violation of the Sexual Misconduct Policy] occurred, whether any such acts were consensual, or who, as between [Plaintiff] and [Jane Roe] is credible.” Univ. of the South I, 687 F.Supp.2d at 755; see also Pierre v. Univ. of Dayton, 143 F.Supp.3d 703, 713 (S.D. Ohio 2015) (noting that “the issue before this Court is not whether the [university] should have believed a certain party's version of events”) (hereinafter “Pierre”); Yu, 97 F.Supp.3d at 461 (explaining that the Court's role is only to determine if the school discriminated against the plaintiff under federal law or otherwise violated a provision of state law when it expelled him for sexually assaulting a fellow student). The Court only evaluates factual discrepancies to the extent they go to questions regarding the nature of the investigation, rather than the quality of the outcome. Doe v. Univ. of the South, No. 4:09-cv-62, 2011 WL 1258104, at *14 (E.D. Tenn. Mar. 31, 2011) (hereinafter “Univ. of the South II”).

         A. Title IX Claims

         Title IX was enacted to supplement the ban on discrimination in the Civil Rights Act of 1964, and it is designed to prevent sexual discrimination and harassment in educational institutions receiving federal funding. Bonnell v. Lorenzo, 241 F.3d 800, 810 n.6 (6th Cir. 2001); Schaumleffel v. Muskingum Univ., No. 2:17-cv-463, 2018 WL 1173043, at *12 (S.D. Ohio Mar. 6, 2018). Title IX states that: “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program receiving Federal financial assistance....” 20 U.S.C. § 1681(a). It is beyond cavil that “Title IX bars the imposition of university discipline where gender is a motivating factor in the decision to discipline.” Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994). While the Court of Appeals has noted that “[e]ducation is a university's first priority [and] adjudication of student disputes is, at best, a distant second, ” Doe v. Univ. of Cincinnati, 872 F.3d 393, 400 (6th Cir. 2017) (citing Bd. of Curators of the Univ. of Missouri v. Horowitz, 435 U.S. 78, 88 (1978)), regulations require educational institutions to implement “grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action which would be prohibited by [Title IX].” 34 C.F.R. § 106.8(b). Title IX is enforceable through a judicially implied private right of action, through which monetary damages are available.[5] Klemencic v. Ohio St. Univ., 263 F.3d 504, 510 (6th Cir. 2001).

         In Miami University, the Court of Appeals explicitly adopted for the first time in a published opinion the analytical framework set forth by the Second Circuit in Yusuf for determining whether a plaintiff is able to demonstrate that intentional gender discrimination occurred in connection with a university disciplinary proceeding. As a result, the Court of Appeals recognizes at least four theories of liability that a student who is attacking a university disciplinary proceeding on grounds of gender bias can potentially assert under Title IX. Doe v. Miami Univ., 882 F.3d 579, 589 (6th Cir. 2018) (citing Yusuf, 35 F.3d at 715). These theories are: (1) “erroneous outcome”; (2) “selective enforcement”; (3) “deliberate indifference”; and (4) “archaic assumptions.” Id. at 589 (citing Yusuf, 35 F.3d at 715; Doe v. Cummins, 662 F.Appx. 437, 451-52 & n.9 (6th Cir. 2016); Mallory v. Ohio ...


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