Doe v. Coll. of Wooster, CASE NO. 5:16–cv–979

• Decision Date: 17 March 2017
• Docket Number: CASE NO. 5:16–cv–979
• Citation: 243 F.Supp.3d 875
• Parties: John DOE, Plaintiff, v. The COLLEGE OF WOOSTER, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

243 F.Supp.3d 875

John DOE, Plaintiff,

v.The COLLEGE OF WOOSTER, et al., Defendants.

CASE NO. 5:16–cv–979

United States District Court, N.D. Ohio, Eastern Division.

Signed March 17, 2017

Anne L. Tamashasky, Joshua A. Engel, Engel & Martin, Mason, OH, for Plaintiff.

Daryl J. Lapp, Elizabeth H. Kelly, Locke Lord, Boston, MA, Kimberly Lanae Hall, Peggy J. Schmitz, Critchfield, Critchfield & Johnston, Wooster, OH, D. Justin Gingerich, Vorys, Sater, Seymour & Pease, Cleveland, OH, for Defendants.

MEMORANDUM OPINION

HONORABLE SARA LIOI, UNITED STATES DISTRICT JUDGE

There are several motions before the Court. First, plaintiff John Doe ("plaintiff" or "Doe") has moved for leave to proceed anonymously against defendant The College of Wooster ("Wooster") and defendant Jane Roe ("Roe") (Doc. Nos. 2 and 12, respectively). These motions are unopposed. Second, plaintiff has moved for expedited discovery (Doc. No. 3). Wooster opposes the motion (Doc. No. 9), and plaintiff has replied (Doc. No. 11). Third, Wooster moves, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for dismissal of the claims raised in the first amended complaint ("FAC") against it (Doc. No. 15 ["MTD"] ). Plaintiff has filed an opposition to the motion to dismiss (Doc. No. 16 ["MTD Opp'n"] ), and Wooster has filed a reply (Doc. No. 17 ["MTD Reply"] ). Finally, plaintiff seeks leave to file a second amended complaint ("SAC") (Doc. No. 21 ["Mot. Amend"] ). Wooster opposes this motion (Doc. No. 23 ["Mot. Amend Opp'n"] ), and plaintiff has replied (Doc. No. 24 ["Mot. Amend Reply"] ). For all of the foregoing reasons, Wooster's motion to dismiss is granted, plaintiff's motion to amend is denied, plaintiff's motion to proceed anonymously against Jane Roe is granted, plaintiff's motions to proceed anonymously against Wooster and for expedited discovery are denied as moot.

I. BACKGROUND

In this state law action, here on diversity jurisdiction, plaintiff challenges his expulsion from Wooster, claiming that Wooster violated his contractual rights when it improperly determined that plaintiff had sexually assaulted a female student, defendant Roe, in violation of Wooster's Equal Opportunity, Harrassment and Non–Discrimination Policy (the "Policy"). He raises state law claims against Wooster for breach of contract, promissory estoppel, negligence, intentional infliction of emotional distress, and defamation.¹ He seeks damages, costs, attorney's fees, and an injunction restoring him as a student in good standing at Wooster and prohibiting further disciplinary proceedings against him.

The present litigation is among the multitude of cases that have been filed in the wake of the 2011 "Dear Colleague Letter," issued by the U.S. Department of Education's Office for Civil Rights ("OCR"), which instructs universities to "promptly investigate" any allegation of sexual harassment or assault when it "knows, or reasonably should know, about possible harassment" of a student, regardless of whether the harassed student actually makes a complaint. Russlynn Ali, Dear Colleague Letter, U.S. Dept. of Educ. at 4 (Apr. 4, 2011), available at: http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf . The Dear Colleague Letter requires academic institutions to employ certain procedures in disciplinary actions involving sexual misconduct by students and faculty, including the use of a "preponderance of the evidence standard," rather than more demanding standards of proof used by academic institutions in the past. Id. at 11. (See FAC ¶ 11.)

Much of the FAC is devoted to the impact the Dear Colleague Letter has had on university investigations and prosecutions of students. It is plaintiff's position, and it is one shared by male litigants around the Country, that this government initiative has resulted in colleges and universities being pressured into aggressively pursuing the prosecution of sexual assaults on campuses, and treating "all those accused of sexual misconduct with a presumption of guilt." (FAC ¶¶ 12, 13(a).) See, e.g., Doe v. Brown Univ. , 166 F.Supp.3d 177, 181 (D. R.I. 2016) ("Many of the recent cases, including this one, allege that the pressure on universities from the OCR has caused a backlash against male students accused of sexual assault."). According to plaintiff, the concern that the Department of Education might withhold federal funding if it finds a university's enforcement wanting, serves as a powerful incentive for colleges to err on the side of violating an accused student's rights.

Purportedly in response to the Dear Colleague Letter, Wooster adopted a policy entitled "Equal Opportunity, Harassment and Non–Discrimination." (See FAC ¶ 14; Doc. No. 6–1 [the Policy].) The Policy provides that "The College of Wooster considers Non–Consensual Sexual Intercourse violations to be the most serious and, therefore, typically imposes the most severe sanctions, including suspension or expulsion for students and termination for employees." (FAC ¶ 14(b)) (quoting the Policy.) It defines the various acts of sexual misconduct that violate the Policy, and provides for alleged violations to be adjudicated pursuant to the terms of Wooster's Official Student Handbook, known as "The Scot's Key." (Id. ¶ 16; see Doc. No. 6–2 ["Student Handbook"].)

It is against this backdrop that plaintiff claims he was wrongfully accused and disciplined for violating the Policy. The Court considers the facts offered in support of these claims in a light most favorable to plaintiff. According to the FAC, plaintiff and Roe were both students at Wooster. (FAC ¶¶ 3, 5.) The two were "good friends" who had engaged in sexual contact in the past, but had never had sexual intercourse. (Id. ¶ 21.) On the evening of November 1, 2014² , Roe was drinking with a number of her friends, first in a dorm and later at a couple of parties, including one hosted by a fraternity (Id. ¶ 23.) Roe saw plaintiff at the fraternity party, but the two did not speak. (Id. ¶ 25.) Later that evening, plaintiff called Roe requesting her assistance in getting into the dorm because he had misplaced his access card. (Id. ¶ 26.) After she admitted plaintiff into the dorm, Roe invited him into her room. The two removed their clothing and started kissing on Roe's bed. (Id. ¶ 28.) Plaintiff twice asked Roe if she wanted to have sex. Although she said "no," she continued to kiss Doe. (Id. ) Eventually, Doe got out of bed and started to leave. Roe wanted plaintiff to "stay and cuddle with her." (Id. ¶ 29.) The two argued, in part because plaintiff did not want "that type of relationship." (Id. ) Plaintiff left the room without having intercourse with Roe. In fact, plaintiff maintains that he has never had intercourse with Roe. (Id. ¶ 30.)

"On May 12, 2015—more than six months after the" incident—Roe filed a Report of Discriminatory Harassment/Sexual Misconduct with Wooster. (Id. ¶ 33, internal quotation marks and citation omitted.) In her report, she did not state that plaintiff had sexual intercourse with her. Instead, she wrote, "As [Doe] tried to remove his clothes, along with mine, I was able to mule kick him off of me. He then yelled in my face, shook me, and left the room." (Id. ¶ 33(c), internal quotation marks and citation omitted.) Angela Johnston is the Secretary of Wooster and serves as the Title IX coordinator for the institution. (Id. ¶¶ 15(b), 34.) After receiving Roe's complaint, she emailed Roe and asked for a meeting. Roe responded that she was studying abroad but would "touch base" with Johnston when she returned on June 3, 2015. (Id. ¶ 35.) Johnston did not meet with Roe, or otherwise investigate Roe's complaint, at any point during the summer of 2015. (Id. ¶¶ 36, 38.)

On August 5, 2015, Johnston emailed Roe and, again, requested a meeting. Roe stated that she would consider meeting with Johnston when she returned to campus. (Id. ¶ 39.) Roe advised Johnston that her first year at Wooster was "horrible" and that she had not done well. (Id. ¶ 39(a).) Johnston responded by assuring her, "I'm sorry you didn't have a good first year; I'll do what I can to help you get off to a good start this year." (Id. ¶ 39(b).) Notwithstanding this exchange, Roe did not meet with Johnston, and Johnston took no steps between August 5, 2015 and November 2015 to investigate the complaint. (Id. ¶ 40.)

Roe did not actually meet with Johnston until December 2, 2015. (Id. ¶ 43; see id. ¶¶ 41–42.) It was during this meeting that Roe "changed her story and told Johnston that she had been raped by John Doe (i.e. that John Doe had compelled her to have intercourse by force)." (Id. ¶ 43.) Plaintiff insists that these allegations were false. (Id. ¶ 44.) Four days after this meeting (December 6, 2015), Roe emailed Johnston and indicated that she did not want to further pursue her complaint. (Id. ¶ 45.) Johnston responded with a request to meet again. In doing so, Johnston advised Roe that her new allegation of rape "heightens the concern" about Doe. (Id. ¶ 45(c) and (i).) She advised Roe that she saw the allegations as an opportunity to "take actions to remove the ‘perception out there in the study body’ about the College's handling of sexual assault allegations." (Id. ¶ 45(ii).) The two met, again, on December 15, 2015, at which time Johnston "encouraged and convinced" Roe to go forward with her complaint. (Id. ¶ 46.)

On December 18, 2015, Johnston "informed John Doe by email, ‘a female student has filed a complaint of sexual misconduct against you.’ " (Id. ¶ 48.) He was not told the identity of the complainant at that time. Two days later (December 20, 2015), Johnston informed Doe that Wooster had received a complaint that he had violated the Policy. (Id. ¶ 50.) Wooster started its investigation into the complaint on December 22, 2015. (Id. ¶ 51.) The private attorney retained by Wooster to investigate the matter, Katie Clifford, interviewed plaintiff on January 19, 2016. (Id. ¶¶ 52–54.) Clifford's investigation was completed by ...