Doe v. Hobart & William Smith Colls.

• Decision Date: 25 June 2021
• Docket Number: 6:20-CV-06338 EAW
• Citation: 546 F.Supp.3d 250
• Parties: John DOE, Plaintiff, v. HOBART AND WILLIAM SMITH COLLEGES, William Boerner, Tamara Chase, and Kelley Hodge, Defendants.
• Court: U.S. District Court — Western District of New York

546 F.Supp.3d 250

John DOE, Plaintiff,

v.HOBART AND WILLIAM SMITH COLLEGES, William Boerner, Tamara Chase, and Kelley Hodge, Defendants.

6:20-CV-06338 EAW

United States District Court, W.D. New York.

Signed June 25, 2021

Stuart Bernstein, Adrienne D. Levy, Andrew T. Miltenberg, Nesenoff & Miltenberg, LLP, New York, NY, for Plaintiff.

Michael E. Baughman, Pro Hac Vice, Pepper Hamilton LLP, Philadelphia, PA, for Defendants Hobart and William Smith Colleges, William Boerner.

Brian R. Biggie, Gerber Ciano Kelly Brady, Buffalo, NY, for Defendant Tamara Chase.

Amanda L. Lowe, Samuel S. Borbor-Sawyer, Phillips Lytle LLP, Buffalo, NY, for Defendant Kelley Hodge.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff John Doe¹ ("Plaintiff") was expelled from defendant Hobart and William Smith Colleges ("HWS") in April 2020, after having been found responsible for sexually assaulting a female classmate, Jane Roe ("Roe")² . (Dkt. 16). He brings this lawsuit against HWS, William Boerner ("Boerner"), the Title IX Coordinator and Assistant Vice President of HWS, Tamara Chase ("Chase"), an investigator contracted by HWS to investigate Roe's claims against Plaintiff, and Kelley Hodge ("Hodge"), an attorney who served as the adjudicator for Roe's claims against Plaintiff. (Id. ).

Currently pending before the Court are three motions to dismiss, filed by Chase (Dkt. 20), HWS and Boerner (Dkt. 21), and Hodge (Dkt. 22), respectively. For the reasons set forth below, the Court grants in part and denies in part Chase's motion to dismiss, grants in part and denies in part HWS’ and Boerner's motion to dismiss, and grants Hodge's motion to dismiss.

FACTUAL BACKGROUND

The following facts are taken from Plaintiff's amended complaint and, as is required at this stage of the proceedings, are presumed to be true.

I. Background Information Regarding Sexual Assaults on College Campuses and Investigation Into and Public Criticism of HWS

On April 4, 2011, the United States Department of Education's Office for Civil Rights (the "OCR") issued a "Dear Colleague Letter" to colleges and universities in order to explain its interpretation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. ("Title IX"), and the regulations associated therewith. (Dkt. 16 at ¶ 19). The Dear Colleague Letter "advised recipients that sexual violence constitutes sexual harassment within the meaning of Title IX" and required colleges and universities receiving federal funding to "take immediate action to eliminate the harassment, prevent its recurrence, and address its effects." (Id. ). Despite the fact that the Dear Colleague Letter purported to be a guidance document, the Department of Education treated it "as a binding regulation and pressured colleges and universities to aggressively pursue investigations of sexual assault on campus." (Id. at ¶ 20). The Dear Colleague Letter, "while not completely ignoring due process concerns, suggested that schools should focus more on victim advocacy." (Id. at ¶ 21).

On April 19, 2014, the OCR "issued additional directives to colleges and universities in the form of a guidance document titled Questions and Answers on Title IX and Sexual Violence. " (Id. at ¶ 22). This document was "aimed at addressing educational institutions’ sexual misconduct policies[.]" (Id. at ¶ 23). Also in April 2014, "the White House issued a report titled Not Alone , which included a warning that if the OCR finds a school in violation of Title IX, the school risks losing federal funds." (Id. at ¶ 24 (internal quotation marks omitted)).

In May 2014, the Department of Education included HWS on a list of colleges "under investigation for possibly violating federal rules aimed at preventing sexual harassment." (Id. at ¶ 29). The investigation into HWS was related to a complaint made against it in 2014 on behalf of a female student who claimed to have been sexually assaulted by three members of the school's football team. (Id. at ¶¶ 30-31). HWS was subject to extensive criticism in the national media regarding its handling of the female student's claim. (Id. at ¶¶ 32-36). Plaintiff claims that HWS made policy revisions as a result of this backlash, which have "focus[ed] on victim advocacy, in order to avoid any further bad media attention, the likes of which caused the school considerable reputational harm in 2014 and the years that followed." (Id. at ¶ 43). Plaintiff further asserts, relying in part on a 2018 article in HWS’ school newspaper entitled Four Years Later: The Herald Investigates Sexual Misconduct Response at HWS , that HWS "is still acutely aware of the potential for another massive public media bashing should it fail to find a male student responsible for an alleged sexual assault – particularly when the allegations involve alcohol and a female student alleging she was incapacitated, as did the woman at the center of the 2014 controversy." (Id. at ¶¶ 45-49).

A second OCR investigation into HWS was opened in 2015. (Id. at ¶ 50). Both investigations continued for years, and were finally resolved on September 28, 2018. (Id. ).

In 2018, the Department of Education rescinded the Dear Colleague Letter and issued proposed new Title IX regulations. (Id. at ¶¶ 52-53). HWS "signed onto a public objection to the proposed new regulations, arguing in large part that the imposition of uniform standards of fairness and due process in Title IX adjudications would create too heavy a burden on schools." (Id. at ¶ 54).

II. Encounter between Plaintiff and Jane Roe

The encounter between Plaintiff and Jane Roe that gave rise to the disciplinary proceedings at issue in this lawsuit occurred between the late night of October 20, 2018, and the morning of October 21, 2018. Shortly before the encounter, Plaintiff had connected with Roe's roommate, Sally Smith ("Smith") on a dating application called Tinder. (Id. at ¶ 64). Plaintiff thereafter began chatting with Smith on another application known as Snapchat. (Id. at ¶ 67). Plaintiff's username on Snapchat is his first and last name. (Id. at ¶ 68).

Just before midnight on October 20, 2018, Plaintiff was in his dorm room chatting with Smith on Snapchat. (Id. at ¶ 70). Smith invited Plaintiff to her dorm room, but Plaintiff told her that he wanted to be alone with her and complained that her roommate would be present if he came to her room. (Id. at ¶¶ 70-71). Smith told Plaintiff that she would "get rid of her roommate so that they could be alone" and insisted that he come to her dorm room. (Id. at ¶ 71). Smith told Plaintiff that she would let him into the dorm. (Id. ).

Plaintiff walked to Smith's dorm and sent her a message on Snapchat advising her of his arrival and asking her to let him in. (Id. at ¶ 72). However, before Smith arrived, someone else let Plaintiff into the dorm. (Id. ). Plaintiff messaged Smith that someone else had let him into the building but that he was still waiting for her because he did not know which room was hers. (Id. at ¶ 73). Plaintiff and Smith exchanged a few more messages, and Smith eventually met Plaintiff in the lobby of her dorm and took him into her room, where her roommate, Roe, was present. (Id. at ¶¶ 73-75).

"After a few moments, Smith then walked out of her dorm room, leaving Plaintiff there with her roommate, without explanation." (Id. at ¶ 76). Plaintiff asked Roe, "what was that about?" and Roe advised Plaintiff that she and Smith had had a "big night." (Id. at ¶¶ 77, 79). Roe and Plaintiff then had an approximately ten-minute conversation about her home country and family background and Plaintiff's travels outside the United States. (Id. at ¶¶ 80-81). Roe then moved across the bed on which she was laying and kissed Plaintiff. (Id. at ¶ 82). Plaintiff and Roe kissed on the bed and touched each other over their clothes. (Id. at ¶ 83). Roe then lowered Plaintiff's pants, with Plaintiff's assistance, and performed oral sex on him. (Id. at ¶ 84). Plaintiff asked Roe if she wanted to have sex and advised her that he did not have a condom with him. (Id. at ¶ 85). Roe got out of bed and retrieved a condom from her drawers, which she handed to Plaintiff. (Id. at ¶ 85). Plaintiff placed the condom on his penis and had consensual vaginal intercourse with Roe for "a few minutes" before ending the sexual encounter. (Id. at ¶¶ 86-87). "Plaintiff and Roe then bid each other goodbye and Plaintiff returned to his dorm at approximately 1:00 a.m. on October 21, 2018." (Id. at ¶ 88).

Video taken approximately twenty minutes after Plaintiff left Smith's and Roe's dorm room shows Smith, Roe, and another female friend leaving their dorm to meet with a fourth friend, Anna. (Id. at ¶ 89). In the video, Roe "is clearly walking on her own, in steady gate, fully oriented to time, place, and activity, and joking about having to go ‘save’ a friend." (Id. at ¶¶ 90-91). After Roe and Smith met up with Anna, "Smith contacted a different male student, and went home with him. Smith did not return to her and Roe's dorm room until the next morning, after 5:00 a.m." (Id. at ¶ 92-93). Plaintiff never reached out to either Smith or Roe again after the encounter, which he regarded "as a random hookup, a fairly common interaction on College campuses." (Id. at ¶ 96).

III. Complaint by Roe and HWS Investigation

Nearly a year after the encounter described above, Roe, accompanied by Smith, filed a complaint against Plaintiff with HWS's Title IX office. (Id. at ¶ 97). Roe and Smith reported that they had been out drinking on the night of October 20, 2018, and that they were "very drunk" when they returned to their shared room. (Id. at ¶ 98). Roe and Smith further reported that Plaintiff had been "pursuing" Smith and that on October 20, 2018, he was "trying to come over" even though Smith "was telling him no." (Id. at ¶ 99). Smith claimed that she had left her room to go to the bathroom, leaving Roe "face down on her bed, blackout [drunk]." (Id. at ¶ 100). According to Smith, when...