Doe v. Univ. of Cincinnati

• Decision Date: 23 March 2016
• Docket Number: Case No. 1:15-CV-681
• Citation: 173 F.Supp.3d 586
• Parties: John Doe I and John Doe II, Plaintiffs, v. University of Cincinnati, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

173 F.Supp.3d 586

John Doe I and John Doe II, Plaintiffs,

v.University of Cincinnati, et al., Defendants.

Case No. 1:15-CV-681

United States District Court, S.D. Ohio, Western Division.

Signed March 23, 2016

Joshua A. Engel, Engel & Martin, LLC, Mason, OH, for Plaintiffs.

Rosemary Doreen Canton, Evan T. Priestle, Taft Stettinius & Hollister, LLP, Cincinnati, OH, for Defendants.

ORDER

Sandra S. Beckwith

, Senior United States District Judge

This matter is before the Court on the motion to dismiss filed by Defendants University of Cincinnati, Daniel Cummins, Denine M. Rocco, and Debra Merchant. Doc. No. 11. For the reasons that follow, Defendants' motion to dismiss is well-taken and is GRANTED .

I. Background

Plaintiffs John Doe I and John Doe II were charged in separate incidents with violating the University of Cincinnati's (“UC”) Student Code of Conduct by sexually assaulting a female student. After hearings before the Administrative Review Committee (“ARC”), Doe I and Doe II were found “responsible” for the charged violation. Doe I received a three-year suspension but ultimately transferred to another educational institution. Doe II was placed on disciplinary probation and banned from several buildings on campus for a one-year period. Doe II was also required to submit a seven-page research paper. Doe II, however, was allowed to remain enrolled in school; he completed his post-graduate degree and has graduated from UC.

Doe I and Doe II claim that the ARC hearing procedures were grossly inadequate to protect their right to due process. Doe I and Doe II also allege that where claims of sexual assault are concerned, the ARC hearing procedures are skewed in favor of the female complainant and against the male respondent with the purpose of producing outcomes allegedly favored by the U.S. Department of Education so as to preserve UC's federal funding. Doe I and Doe II allege, therefore, that Defendants have violated their right to due process and have discriminated against them on the basis of gender in violation of Title IX of the Education Amendments Act of 1972.

For purposes of the instant motion to dismiss, the Court accepts the following facts from the complaint as being true.

A. John Doe I

In March 2014, Doe I was a junior at UC's Blue Ash campus. On March 9, 2014, Doe I left a party held near campus with Jane Roe I and Jane Roe II. Doe I went with Roe I and Roe II to their dormitory room at Daniels Hall. Doe I claims that Roe I and Roe II were intoxicated and had been smoking marijuana. Roe I claimed that she fell asleep and awoke to find Doe I attempting to have sexual intercourse with her. Roe I claimed that she told Doe I “no” and then fled the room. Doe I then allegedly got into bed with Roe II and had intercourse with her while she was passed out. Doe I denies that he sexually assaulted Roe I and Roe II.

Doe I claims that Roe I and Roe II gave inconsistent statements about this incident to UC administrative officials and to the UC Police. For instance, Doe I alleges that Roe I gave inconsistent statements about whether she had smoked marijuana that night. Additionally, Roe I told the UC police that she changed clothes in front of Doe I and then Doe I got into bed with her but later gave a statement saying that she fell asleep and awoke to find Doe I on top of her. Roe II allegedly denied being intoxicated in her complaint to UC but later stated that she could not remember significant events before she passed out. Roe II also told the UC Police that she rated her intoxication level as “8 of 10.” Additionally, Roe II allegedly gave inconsistent statements about whether she passed out before or after Doe I penetrated her.

Doe I claims that he cooperated with the police investigation and that there was substantial evidence that exonerated him. For instance, despite Roe I's claim that she did not know how Doe I got into her dormitory, and Roe II's claim that dormitory staff let Doe I into the building even though he did not have identification, security camera video shows that Roe I waited while Roe II signed Doe I into the dorm. Additionally, although Roe II said during the ARC hearing that she had passed out and did not remember walking back to the dorm because she was “so high and intoxicated,” neither Roe I nor Roe II appear intoxicated in the surveillance video. Additionally, forensic evidence showed that Roe I and Roe II sent text messages during the time they supposedly were passed out. In later messages, they joked about the case. Another female student who was present at the time denied witnessing any illegal conduct. Doe I believes that rape kits submitted to the crime lab for analysis support his version of the events.

Doe I alleges that high-placed UC officials tried to interfere with the criminal investigation. An email from the UC Police Chief to UC's general counsel expressed concern that “we are allowed to conduct a thorough and complete investigation without any appearance of influence.” Complaint ¶ 58(a) (emphasis in original omitted). Doe I also alleges that UC detectives became frustrated that the UC's general counsel was trying to steer, obstruct, and impede their investigation.

Doe I alleges that Defendant Dan Cummins, who is UC's Assistant Dean of Students and Director of the Office of Judicial Affairs, instituted disciplinary proceedings against him without investigating whether the allegations of sexual assault against him were credible. Cummins notified Doe I of the charges by letter on March 12, 2014. Cummins and Doe I had an in-person meeting on March 28, 2014 to discuss the allegations. Doe I denied the allegations but otherwise exercised his right to remain silent. Cummins asked Doe I to sign a form stating that he had received the evidence supporting the allegation although he was not actually provided with any evidence during the meeting.

Cummins scheduled an ARC disciplinary hearing before actually interviewing any witnesses. Cummins initially scheduled the hearing for April 7, 2014 but later moved it to May 2, 2014. On April 28, 2014, Cummins issued a written report finding as a “fact” that Doe I had engaged in sexual activity with Roe I and Roe II without their consent. Doe I claims that Cummins's report had a number of significant omissions:

1. It did not include a review of any of the physical evidence obtained by UC police.

2. It did not include Doe I's statements to the UC police.

3. It did not include a statement from an Ohio University student who witnessed Roe I and Roe II being “pretty flirtatious” with Doe I and said that Roe I and Roe II “basically dragged” Doe I back to their dorm.

4. Cummins did not attempt to obtain from the UC Police any evidence that tended to exonerate him, such as the surveillance tape and text messages.

Doe I claims that UC made no attempt to provide an impartial hearing panel and that the hearing convened on May 2, 2014 was a “kangaroo court.” Doe I alleges, for instance, that prior to the hearing, committee member Carol Tong-Mack had been copied on emails requesting academic accommodations for Roe I because she “had recently been the victim of a crime.” Roe I also copied Tong-Mack on an email to another professor in which she stated that she had been sexually assaulted in her dorm room. Doe I alleges that after receiving these emails, it was inappropriate for Tong-Mack to remain on the hearing panel.

Doe I claims that Cummins and/or UC denied him of a number of procedural protections during the ARC hearing:

1. UC never responded to requests from Doe I's attorney to have the UC police investigator present at the hearing.

2. UC only provided Doe I a heavily redacted copy of the investigative file.

3. UC did not provide the results of the rape kit analysis or of the SANE examinations.¹

4. Cummins did not allow Doe I to record the hearing.

5. The hearing committee chair would not permit Doe I to impeach a witness, Roe I's boyfriend, who lacked firsthand knowledge of the incident.

6. The hearing committee chair did not permit Doe I to show the surveillance video.

7. The hearing committee chair would not accept the UC police report into evidence.

8. The hearing committee chair would not accept the text messages into evidence.

9. The hearing committee chair would not accept the rape kit analysis or the SANE examinations into evidence.

10. The hearing committee chair refused to ask witnesses written questions submitted by Doe I.

11. The hearing committee chair refused Doe I's request to obtain the presence of the UC police officers.

12. The hearing committee refused to consider a binder of evidence Doe I submitted on his behalf.

Doe I alleges on information and belief that Cummins orchestrated the hearing committee's actions since the hearing committee chair left the room on a number of occasions, stating that he had to consult with Cummins. The ARC committee found that Doe I violated the Student Code of Conduct with respect to one of the students. Doe I states that he left before the conclusion of the hearing regarding the second student since it was clear to him that he would not be afforded due process.

Less than a week later, UC determined that substantial procedural errors had occurred during Doe I's hearing and ordered that a new hearing take place. The new hearing was held on May 18-19, 2015. While not a “kangaroo court,” Doe I alleges that he was still denied significant procedural protections during the second hearing:

1. The hearing committee considered Cummins's alleged biased investigative report.

2. The hearing committee was never advised that the complainant had the burden of proof and that Doe I was innocent until proven guilty.

3. The hearing committee refused to ask the complainants a number of written questions submitted by Doe I designed to highlight inconsistencies in their statements and to discover the extent of their alcohol and drug use on the night in question.

4. UC denied Doe I permission to make his own recording of the hearing.

5. UC failed to provide

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