United States District Court, M.D. Tennessee, Nashville Division
MAGISTRATE JUDGE FRENSLEY
WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE.
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
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).
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”).
Vanderbilt's Sexual Misconduct Policy
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).
The Sexual Misconduct Policy Complaint and Investigation
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.).
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.”
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.”
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
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
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.
The Sexual Misconduct Policy Appeal Process
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
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;
b. The evidence does not support the
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; or d. Severity of the sanction imposed by
(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.).
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.).
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.
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).
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).
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).
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).
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).
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).
STANDARD OF REVIEW
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).
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).
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)).
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.
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).
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
Title IX Claims
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. Klemencic v. Ohio St. Univ., 263
F.3d 504, 510 (6th Cir. 2001).
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.