Doe v. Univ. of S. Ala.
| Decision Date | 14 February 2020 |
| Docket Number | CIVIL ACTION NO. 17-0394-CG-C |
| Parties | JOHN DOE, Plaintiff, v. THE UNIVERSITY OF SOUTH ALABAMA; et al., Defendants. |
| Court | U.S. District Court — Southern District of Alabama |
This matter is before the court on Defendants' motion to dismiss the Amended Complaint (Doc. 49), Plaintiff's opposition thereto (Doc. 55), and Defendants' reply (Doc. 56). For reasons explained below, the Court finds that the motion should be granted in part and denied in part.
This case arises from disciplinary actions that were initiated against Plaintiff John Doe, at The University of South Alabama ("the University"). Plaintiff filed an Amended Complaint on October 11, 2017 and attached several exhibits, which include copies of letters and emails between the parties, documents that contain the University's policies and procedures, and documents that were used during the disciplinary proceedings. (Doc. 43). The Amended Complaint alleges that Plaintiff was enrolled as a student at the University for the fall semester of 2016, the spring semester of 2017, and the fall semester of 2017. (Doc. 43, ¶ 3(a)). Plaintiff is the recipient of an Army ROTC scholarship through which he received full tuition scholarship and fees, as well as a monthly subsidence check and money for books. (Doc. 43, ¶ 3(a)). The Defendants named in the Amended Complaint are the University, Michael A. Mitchell who is the Vice President for Student Affairs and Dean of Students and Deputy Title IX Coordinator for Students, Andrea C. Agnew who is the Assistant Dean of Students, and Krista Harrell who is the Associate Dean of Students and Title IX Coordinator. (Doc. 43, ¶¶ 4-8). The Amended Complaint alleges that the University is a public university that at all material times "acted through its administrators, supervisors and employees who were agents of the [University] and were acting within the course and scope of their employment in their official capacity." (Doc. 43, ¶¶ 4-5).
The Amended Complaint states that in October 2016, Plaintiff was notified that he had "been listed as the responsible person in a violation of the Code of Student Conduct," for engaging in sexual violence towards two individuals (hereafter referred to as Roe 1 and Roe 2). (Doc. 43-2, p. 89). The "sexual violence" he allegedly engaged in was defined or listed in the notice as "[a]ny physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent." (Doc. 43-2, p. 89).
Defendant Agnew conducted an investigation and made specific findings of fact in writing and conclusions in favor of Roe 1 and Roe 2 and presented her findings and conclusions to the UDC prior to any testimony at the hearing. (Doc. 43, ¶ 98). Plaintiff objected and requested that her findings at least include additional highly relevant other factors, but Agnew refused. (Doc. 43, ¶ 99). Agnew hadtrained and supervised the UDC panel and was allegedly of great influence on them. (Doc. 43, ¶¶ 100-102, 202, 207). A hearing on Roe 1 and Roe 2's allegations was held on November 15, 2016. (Doc. 43, ¶ 103). Banners and flyers, hung by Title IX advocates, were in the common area outside the hearing room that included statements such as "Using alcohol to get sex is sexual assault" and "My cup is not my consent." (Doc. 43, ¶ 104). Kimberly Ortiz presided over the hearing and since it was her first time Agnew sat in for guidance. (Doc. 43, ¶ 105). Plaintiff called Student 11 (who reportedly had also been wrongfully accused of a Title IX sexual assault by Roe 1 (Doc. 43, ¶ 95)) to testify but Defendants did not allow him to testify. (Doc. 43, ¶ 106-107). Student 11 would have testified about Roe 1's credibility and the credibility of one of Roe 1's witnesses. (Doc. 43, ¶ 108, 109). Student 11's written unsworn statement was allowed to be presented to the UDC. (Doc. 43, ¶ 113). Defendants allowed as evidence against Plaintiff the unsworn written statements of Student 5 and others. (Doc. 43, ¶¶ 111, 115). No witness was put under oath. (Doc. 43, ¶ 114). Roe 1 and Roe 2 were specifically instructed not to mention a third female student (hereafter referred to as "Roe 3"), but both repeatedly violated this instruction despite admonitions, and Defendants allowed the hearing to continue. (Doc. 43, ¶¶ 119, 120). Agnew presided over and participated in the UDC deliberations and coached the UDC members outside Plaintiff's presence. No recording was made of these interactions. (Doc. 43 ¶¶ 118, 122, 123).
After the hearing, Plaintiff was notified that the UDC had found Plaintiff "responsible" for the violation and as a result a mutual "No Contact Order" was entered between Plaintiff and Roe 1 and Roe 2. Additionally, Plaintiff was placed on conduct probation for the remainder of his academic career and was to complete 100 hours of community service. Plaintiff's housing contract was terminated, and he could not live in or visit University Housing and a few other listed campus facilities for the rest of his academic career. Also, Plaintiff was to complete an educational module on prevention of sexual violence. (Doc. 43-4, p. 4).
Plaintiff appealed the decision. Defendant Michael A. Mitchell, Vice President for Student Affairs and Dean of Students and Deputy Title IX Coordinator for Students, upheld the decision but modified the sanction imposed and allowed Plaintiff to maintain campus residence. (Doc. 43-4, pp. 7-8). Mitchell found that "[t]hough Dr. Agnew's report of her investigation findings were intended to be informational for the committee, her assessment of witness credibility could have had some impact on the committee." (Doc. 43-4, p. 7). Mitchell also found that the statement by Student 11 provided sufficient information and that it was reasonable to limit his presence because of his history with one of the complainants. (Doc. 43-4, p. 7). Lastly, Mitchell found that the information "does support the complainant's claims that they were intoxicated beyond the point of being able to consent to sex and that there had been a conversation shortly before the event in which the complainants indicated their intent to not engage in future sexual contact with you." (Doc. 43-4, p. 8).
Plaintiff was notified on November 8, 2016 that he was the subject of a Title IX complaint by Roe 3. (Doc. 43, ¶ 137). A letter from the University, dated November 16, 2016, states that Roe 3 had reported to the Title IX Office that Plaintiff had engaged in sexual misconduct off campus, alleging that she was too incapacitated to provide consent for sex. (Doc. 43-4, p. 10-11). The notice stated that an impartial investigation of the allegation would be conducted. (Doc. 43-4, p. 10). Plaintiff then filed a sexual assault Title IX complaint against Roe 3 alleging that Roe 3 had transmitted a sexually transmitted disease to him. (Doc. 43, ¶ 159). The University did not assist Plaintiff in gathering evidence and made no attempt to get Roe 3's medical records or otherwise seriously investigate Plaintiff's Title IX complaint against Roe 3. (Doc. 43, ¶¶ 165, 166). Agnew was assigned to investigate Plaintiff's complaint. (Doc. 43, ¶ 168). A University advocate was appointed for Plaintiff, but the advocate did not reach out to Plaintiff and did not appear at the hearing. (Doc. 43, ¶¶ 169, 170). Plaintiff requested that he be provided with all interim measures, including benefits, accommodations and services that were provided to Roe 3, but his request was denied. (Doc. 43, ¶¶ 174, 176). Plaintiff requested that all witnesses be instructed to not mention any prior Title IX hearings Plaintiff had been involved in and Mitchell agreed to do so. (Doc. 43, ¶¶ 178, 179). Plaintiff also requested that the Assistant Dean of Students, Defendant Andrea C. Agnew, recuse herself because Plaintiff had named her as a potential witness, because she had exhibited animus and malice against Plaintiff in the prior hearing, and because she had personally participated in the investigation. (Doc. 43-4, p. 17). In response, Defendant Mitchell stated that though he "did not find any prior conduct by Dr. Agnew merits her removal from this proceeding, Dr. Agnew has recused herself from today's proceeding." (Doc. 43-4, p. 16).
The two cross-complaints were heard by the same UDC panel on March 27, 2017. (Doc. 43, ¶¶ 173, 182). One of the UDC panel members, UDC 7, was Facebook friends with Defendant Mitchell, but did not disclose that fact. (Doc. 43, ¶ 183, Doc. 43-4, pp. 36-40). At the hearing, Roe 3 mentioned details and allegations involving the prior complaints and/or hearings despite having been instructed not to and the hearing was stopped and Roe 3 was escorted outside. (Doc. 43, ¶¶ 184, 185). Plaintiff requested the panel be dismissed and the case be dismissed, but the hearing was allowed to proceed. (Doc. 43, ¶ 186, 189). During the hearing, Roe 3's Title IX advocate directly addressed Plaintiff in a hostile manner in front of the UDC panel and the defendants did not address the breach of the rules. (Doc. 43, ¶¶ 190, 191).
Plaintiff was found "responsible" by the UDC of violating the code of Student Conduct for engaging in "sexual violence." (Doc. 43-4, pp. 19-20). Roe 3 was found "not responsible." (Doc. 43-4, pp. 23-24). Plaintiff appealed the decisions. (Doc. 43, ¶ 195). Defendant Mitchell upheld the finding that Roe 3 was "not responsible" but found that the charge against Plaintiff should be heard again during a new proceeding with a different committee. (Doc. 43-4, pp. 27-28). Defendant Mitchell stated that "the introduction of prior allegations against you was significant enough to warrant that this charge be heard again." (Doc. 43-4, p. 27). Defendant Mitchellstated that Defendant Agnew would preside over the new hearing because her "level of experience presiding over Title IX hearings will provide additional assurance that all required policies and procedures will be followed." Defendant Mitchell...
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