Doe v. Embry-Riddle Aeronautical Univ.

• Decision Date: 04 November 2021
• Docket Number: 6:20-cv-1220-WWB-LRH
• Parties: JOHN DOE, Plaintiff, v. EMBRY-RIDDLE AERONAUTICAL UNIVERSITY, INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

JOHN DOE, Plaintiff,
v.
EMBRY-RIDDLE AERONAUTICAL UNIVERSITY, INC., Defendant.

No. 6:20-cv-1220-WWB-LRH

United States District Court, M.D. Florida, Orlando Division

November 4, 2021

ORDER

WENDY W. BERGER UNITED STATE DISTRICT JUDGE

THIS CAUSE is before the Court on Plaintiff's Motion for Partial Summary Judgment (Doc. 96), Defendant's Response (Doc. 123), and Plaintiff's Reply (Doc. 124). Also before the Court is Defendant's Dispositive Motion for Summary Judgment (Doc. 101), Plaintiff's Opposition (Doc. 126), and Defendant's Reply (Doc. 127).

I. BACKGROUND

Plaintiff, John Doe, is a student and member of the track team at Defendant Embry-Riddle Aeronautical University, Inc.'s (“ERAU”) Daytona Beach campus. (Doc. 161-21 at 1). On October 26, 2019, Plaintiff, along with his friends and roommates, hosted a Halloween party at his home. (Doc. 106 at 7, 11; Doc. 119 at 17:8-14, 18:7-23). Plaintiff invited fellow ERAU student and track team member Jane Roe to attend the party as his guest. (Doc. 101-6 at 1-2; Doc. 106 at 7). Prior to the party, Plaintiff and Jane Roe had gone on three to four dates and Plaintiff felt that they were likely to begin a relationship. (Doc. 106 at 7, 11; Doc. 119 at 114:6-11, 19-22, 116:3-5). At the time, Plaintiff was not

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aware that Jane Roe was in a long-distance relationship with another individual. (Doc. 106 at 42; Doc. 119 at 203:5-11).

The day before the party, Plaintiff and Jane Roe exchanged numerous text messages regarding the party. (Doc. 101-6 at 6-7). In the messages, Jane Roe expressed concern that Plaintiff was only interested in having sex with her and would “tak[e] advantage of [her]” while she was intoxicated. (Id. at 6). Plaintiff unequivocally stated that he did not wish to have sex with her unless they were both sober and it was “the right [ ] romantic time.” (Id.; see also Doc. 106 at 12).

On the day of the party, Plaintiff began drinking at roughly 8:00 p.m. (Doc. 106 at 11; Doc. 119 at 19:23-24). Throughout the course of the night, he estimates that he consumed roughly fifteen drinks consisting of beer, wine, liquor shots, and mixed drinks containing a large percentage of vodka. (Doc. 106 at 11; Doc. 119 at 19:6-8, 22:22-23, 23:4, 24:1-22, 27:1-3, 28:6-7, 30:2-5, 33:22-25). Plaintiff continued to text Jane Roe throughout the night and sometime prior to her arrival Jane Roe acknowledged that Plaintiff was already intoxicated. (Doc. 101-6 at 2-3). At 10:56 p.m., Plaintiff informed Jane Roe that he “overdid it” and was going to lay down. (Id. at 3). Plaintiff also began to vomit or dry heave during that time. (Doc. 106 at 11, 28; Doc. 119 at 54:3-9). Despite this, Plaintiff continued to drink. (Doc. 119 at 55:18-20).

Jane Roe arrived at the party between 11:00 p.m. and midnight and consumed approximately four to five liquor shots. (Doc. 106 at 7, 9; Doc. 119 at 62:24-63:5, 64:910). Jane Roe stated that when she arrived at the party, Plaintiff “was already drunk and out of it.” (Doc. 106 at 7). At some point, Plaintiff and Jane Roe went to Plaintiff's bedroom where they kissed, exchanged oral sex, and had intercourse. (Doc. 106 at 8, 11-12; Doc.

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119 at 117:3-5, 118:17-119:4, 121:14-25, 122:11-13, 123:9-16). The next day Plaintiff drove Jane Roe home and, after learning that she was upset about the previous night, made several apologies for the night's events. (Doc. 101-6 at 4; Doc. 106 at 8, 12; Doc. 119 at 143:7-10). Jane Roe stated that Plaintiff was “more sober” than she was and that she felt he had taken advantage of her. (Doc. 101-6 at 4).

As result of the incident, on October 28, 2019, Jane Roe filed a report with Linda Dammer, ERAU's Title IX Coordinator, alleging that Plaintiff had engaged in non-consensual sexual intercourse with her. (Doc. 87-1 at 9:10-11, 18-21; Doc. 101-1, ¶ 5). At that time, Jane Roe asked that Plaintiff be suspended from the track team pending the investigation, which Dammer granted. (Doc. 87-1 at 31:20-22, 83:24-84:11; Doc. 101-1, ¶ 11). On November 13, 2019, Plaintiff met with Dammer to provide his intake statement. (Doc. 101-1, ¶ 7; Doc. 106 at 11). At the meeting, Plaintiff expressed to Dammer that he was also intoxicated and felt that he was not able to consent to the sexual conduct of Jane Roe and voiced some interest in filing his own complaint. (Doc. 101-1, ¶¶ 8-9; Doc. 106 at 13; Doc. 119 at 162:13-21, 186:2-14). Dammer told Plaintiff that filing such a complaint against Jane Roe could be considered retaliatory. (Doc. 87-1 at 142:9-19; Doc. 101-1, ¶ 9; Doc. 106 at 13; Doc. 119 at 162:24-163:1, 190:18-191:2).

After informal resolution measures failed to resolve the claim to Jane Roe's satisfaction, she asked ERAU to proceed with a formal investigation, which was opened on January 8, 2020, and Autumn Meyers-Parker was assigned to investigate Jane Roe's claim. (Doc. 101-1, ¶¶ 15-18; Doc. 106 at 9). Two days later, Plaintiff filed an incident report against Jane Roe. (Doc. 1-1 at 1; Doc. 101-1, ¶ 19; Doc. 106 at 13 n.8). On March 24, 2020, ERAU issued an Outcome Letter (Doc. 1-2) finding Plaintiff responsible for a

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violation of the Civil Rights Equity & Sex / Gender Based Harassment, Discrimination, and Sexual Misconduct Policy (“Sexual Misconduct Policy, ” Doc. 1-5) and dismissing him from the University. (Doc. 1-2 at 1-3). The Outcome Letter specifically notes that it relates to “the allegations filed against [Plaintiff] by [Jane Roe]” and does not discuss, acknowledge, or provide an outcome regarding Plaintiff's claim against Jane Roe. (Id. at 1-4).

Plaintiff made a request for reconsideration, which was considered by Elizabeth Frost, the Title IX Coordinator at ERAU's Prescott, Arizona campus. (Doc. 101-3, ¶¶ 12, 12). Frost reviewed the case and determined that Plaintiff had made a threshold showing of potential bias in the handling of the claims because the investigator and decision maker relied on unverified medical records provided by Jane Roe, failed to calculate Plaintiff's blood-alcohol content, failed to follow-up on Plaintiff's claim against Jane Roe, gave inconsistent treatment of witnesses, and failed to fully investigate the levels of intoxication or incapacitation as to both parties. (Id. ¶ 15; Doc. 96-3 at 1-3). As a result, Frost assigned Jason Langston to conduct a reconsideration of the file. (Doc. 101-3, ¶¶ 16-17; Doc. 101-4, ¶ 14). Langston reviewed the file and paper evidence but did not engage in any further investigation of the claim. (Doc. 96-2 at 35:4-36:8). On June 10, 2020, Langston issued a letter again finding Plaintiff responsible and dismissing him from the University. (Doc. 1-4 at 1-3). The June 10, 2020 Letter only references the allegations against Plaintiff and does not mention, make findings regarding, or provide a conclusion as to Plaintiff's claim against Jane Roe. (Id.).

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II. LEGAL STANDARD

Summary judgment is appropriate when the moving party demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it may “affect the outcome of the suit under the governing law.” Id. “The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1313-14 (11th Cir. 2007). Stated differently, the moving party discharges its burden by showing “that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

However, once the moving party has discharged its burden, “Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (quotation omitted). The nonmoving party may not rely solely on “conclusory allegations without specific supporting facts.” Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985). Nevertheless, “[i]f there is a conflict between the parties' allegations or evidence, the [nonmoving] party's evidence is presumed to be true and all reasonable inferences must be drawn in the [nonmoving] party's favor.” Allen, 495 F.3d at 1314.

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III. DISCUSSION

Plaintiff asserts two claims against ERAU: (1) selective enforcement in violation of Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq., and (2) breach of contract. (See generally Doc. 1). The parties have filed cross-motions for summary judgment as to both claims.

A. Title IX

Count I alleges a claim for selective enforcement under Title IX. Pursuant to Title IX, “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]” 20 U.S.C. § 1681(a). “A selective enforcement claim asserts that a school decided to discipline a student or decided on certain penalties based on the student's gender.” Doe v. Rollins Coll., No. 6:18-cv-1069-Orl-37LRH, 2020 WL 8409325, at *10 (M.D. Fla. July 13, 2020) (citing Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994)). “Under that theory, a plaintiff challenging a university disciplinary proceeding must establish that ‘regardless of the student's guilt or innocence, the severity of the penalty and/or the decision to initiate the proceeding was affected by the student's gender.'” Whitaker v. Bd. of Regents of Univ. Sys. of Ga., No. 20-13618, 2021 WL 4168151, at *3 (11th Cir. Sept. 14, 2021) (quoting Yusuf, 35 F.3d...