Doe v. Univ. of Cincinnati

• Decision Date: 30 November 2016
• Docket Number: Case No. 1:16cv987
• Citation: 223 F.Supp.3d 704
• Parties: John DOE, Plaintiff, v. UNIVERSITY OF CINCINNATI, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

223 F.Supp.3d 704

John DOE, Plaintiff,

v.UNIVERSITY OF CINCINNATI, et al., Defendants.

Case No. 1:16cv987

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

Signed November 30, 2016

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

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

OPINION & ORDER

Michael R. Barrett, JUDGE

This matter is before the Court upon Plaintiff John Doe's Motion for Preliminary Injunction. (Doc. 2). Defendants filed a Response in Opposition (Doc. 11); and Plaintiff filed a Reply (Doc. 14). Plaintiff also filed a Notice of Supplemental Authority. (Doc. 15). A hearing was held on November 21, 2016.

I. BACKGROUND

This case arises out of the decision of Defendants University of Cincinnati ("UC"), Aniesha Mitchell, Director of the Office of Student Conduct and Community Standards, and Juan Guardia, Assistant Vice President for Student Affairs and Dean of Students, to impose disciplinary sanctions on Plaintiff John Doe, a graduate student at UC. (Doc. 1, ¶ 2). Plaintiff is scheduled to graduate from his program with a Master's Degree in May of 2018. (Id., ¶ 3).

According to the Complaint, Plaintiff met Jane Roe on Tinder, a social media app. (Id., ¶ 46). They spoke on line for two or three weeks until they met face to face. (Id., ¶ 47). On the evening of September 6, 2015, Jane Roe went to Plaintiff's apartment. (Id.) They started to kiss and make out. (Id.) Things escalated fairly quickly. (Id.) They removed their clothing and Plaintiff retrieved a condom. (Id.) Jane Roe asked Plaintiff to "hold on" before they engaged in intercourse. (Id.) Plaintiff and Jane Roe talked for a bit, and then, according to Plaintiff, the two engaged in consensual sex. (Id.) After they had sex, they hung out in his room. (Id.) Jane Roe said that she did not want their encounter to be a "one-night stand." (Id. ¶ 47). However, Plaintiff did not call her again and was unable to contact her again through Tinder. (Id.)

On September 28, 2015, Jane Roe reported to UC's Title IX Office that she had been sexually assaulted by a fellow UC student. (Doc. 11–1, Karla Phillips Decl. at ¶ 2). On October 30, 2015, Jyl Shaffer, UC's Title IX Coordinator at that time, interviewed Jane Roe. (Id., ¶ 3). Jane Roe told Shaffer that the incident occurred on August 30, 2015. (Doc. 1, ¶ 50). Jane Roe stated that she met Plaintiff through Tinder and agreed to meet him for dinner. (Id.) Jane Roe explained that she had planned to study on campus after dinner, but Plaintiff suggested that she work at his apartment. (Id.) Jane Roe explained that she went to Plaintiff's apartment, sat on his bed to do work and had a glass of wine. (Id.) Jane Roe stated that the two talked and flirted and then began kissing. (Id.) Jane Roe explained that Plaintiff took her dress off, and "kept progressing," but she did not say no. (Id.) Jane Roe stated that the two engaged in oral sex and digital penetration, and after Plaintiff retrieved a condom, Plaintiff engaged in vaginal sex with her and tried to engage in anal sex. (Id.) Plaintiff explained that Plaintiff then walked her to her car. (Id.) Shaffer recorded these allegations, and five pages of her notes were included in the Title IX investigation file. (Phillips Decl. at ¶ 3).

On November 6, 2015, Shaffer interviewed Jane Roe again, and included an additional five pages of her notes in the Title IX investigation file. (Id., ¶ 4). During this interview, Jane Roe told Shaffer that Plaintiff had been forceful with her. (Doc. 1, ¶ 51). Jane Roe explained that there was no explicit conversation about having sex. (Id.) Jane Roe explained that Plaintiff made her feel guilty, but that she never said, "Flat out, no. I don't owe you sex." (Id.) Instead, Jane Roe stated that she responded with statements such as, "I don't know." (Id.)

On December 18, 2015, Jane Roe reported the incident to the UC Police. (Id., ¶ 52). The investigation by the UC Police was reported to the Cincinnati Police Department and closed. (Id.)

On February 19, 2016, Remy Barnett, UC's Program Coordinator for the Title IX Office at that time, notified Plaintiff via email that a complaint of sexual assault had been filed against him by Jane Roe. (Phillips Decl., ¶ 6). Plaintiff initially did not remember Jane Roe, but he later acknowledged that he did remember her. (Id. at ¶ 8).

On February 24, 2016, Barnett interviewed Jane Roe as part of the investigation. (Id. at ¶ 9). Five pages of notes from that interview were included in the Title IX investigation file. (Id.)

On March 7, 2016, Barnett and Shaffer interviewed Plaintiff. (Id.) Plaintiff told Barnett and Shaffer that the sexual encounter with Jane Roe was completely consensual. (Doc. 1, ¶ 56). Barnett and Shaffer documented the interview, including seven pages of notes from the interview in the Title IX investigation file. (Phillips Decl., ¶ 10).

On March 15, 2016, Barnett followed up with Jane Roe to clarify a few of Jane Roe's prior statements. (Id., ¶ 9). The notes from that interview were also included in the Title IX investigation file. (Id.) Jane Roe explained that after Plaintiff retrieved a condom, she tried to "redirect" Plaintiff. (Doc. 1, ¶ 57).

During the investigation, Jane Roe identified four persons with information about the incident. (Phillips Decl., ¶ 10). These four people included two of Jane Roe's friends, Jane Roe's roommate, and a former boyfriend of Jane Roe. (Doc. 1, ¶ 58). These four people were interviewed and the notes of those interviews were included in the Title IX investigation file. (Phillips Decl., ¶ 10). The information these four people provided was based on conversations they had with Jane Roe after the incident. (Doc. 1, ¶ 58).

On April 1, 2016, Jane Roe emailed Barnett with "edits for the file." (Id., ¶ 59). A copy of that email was included in the Title IX investigation file. (Phillips Decl., ¶ 10).

On April 15, 2016, a procedural review was conducted during which Plaintiff was given the opportunity to review the Student Code of Conduct, the incident report, and all other information available at that time. (Doc. 11–2, Aniesha Mitchell Decl., ¶ 3). The Student Code of Conduct includes the procedures to be used for hearings involving nonacademic misconduct.

(Doc. 1, Ex. A, at 25–31). On April 18, 2016, Defendant Aniesha Mitchell gave Plaintiff online access to a copy of the Title IX investigation file. (Mitchell Decl., ¶ 4).

On June 27, 2016, UC conducted an Administrative Review Committee Hearing ("ARC Hearing"). (Id, ¶ 6). Jane Roe was not present at the ARC Hearing. (Id.) Plaintiff was not informed prior to the hearing that Jane Roe would not appear at the hearing. (Doc. 1, ¶ 61). The transcript of the ARC Hearing has been filed with the Court under seal. (Doc. 16) (hereinafter "Tr.").

At the hearing, neither Plaintiff nor Jane Doe presented witnesses. (Tr. 5). While the ARC Hearing procedures permit the respondent and complainant to submit written questions to be asked to all adverse witnesses, no questions were submitted because there were no witnesses. (Tr. 6). A Title IX coordinator was not present. (Tr. 7). Instead, the Administrative Review Committee Chair ("ARC Chair") read a summary of the information contained in the Title IX investigation file. (Tr. 7). This information included the report made by Jane Doe, the response made by Plaintiff, and the statements of the four people Jane Doe identified as having information about the incident. (Tr. 8–25). The ARC Chair gave the ARC Committee the opportunity to ask questions regarding the report, but the Committee did not have any questions. (Tr. 29). The ARC Chair then explained:

Okay, so the complainant is not here. At this time I would have given them [sic] time to ask questions of the Title IX report. But again, they [sic] are not here. So we'll move on.

So now, do you, as the respondent, [REDACTED], have any questions of the Title IX report?

[PLAINTIFF]: Well, since she's not here, I can't really ask anything of the report. Is this the time when I would enter in like a situation where like she said this and this never could have happened? Because that's just—

[ARC CHAIR]: You'll have time here in just a little bit to direct those questions. Just—

[PLAINTIFF]: Then no, I don't have any questions for the report.

(Tr. 29). The ARC Chair then explained that if there were no further questions, the Title IX presentation was concluded. (Tr. 30). The ARC Chair explained that if the complainant had been present she would have been able to read into the record what happened and add any additional information. (Tr. 30). The ARC Chair also explained that Plaintiff would have had the chance to ask questions of the complainant. (Tr. 30). The ARC Chair then told Plaintiff he could summarize what happened and include any additional supporting information to the investigation. (Tr. 30). Plaintiff made a statement which acknowledged that he and Jane Roe had different perspectives on what happened. (Tr. 30–31). Plaintiff disputed some of the specific facts from Jane Roe's statement. (Tr. 31). Plaintiff concluded his statement with the following: "And I would have asked her, I don't know if that can be entered in, at what point did she feel I was hostile? Because the beginning of the sexual encounter was very slow moving. I was feeling out, feeling out if she wanted to engage in that at all. If she had, she would had time to say no, to just stop me outright. There was time." (Tr. 32).

The ARC Committee then asked Plaintiff several questions. (Tr. 32–35). The ARC Chair explained that if the complainant had been there, she also would have had an opportunity to ask questions of Plaintiff. (Tr. 35–36). The ARC Chair then read a statement from Jane Doe. (Tr. 36– 40). The hearing concluded with a statement from Plaintiff. (Tr. 41).

The ARC Committee recommended that Plaintiff be found responsible for violating the UC Student Code of Conduct. (Mi...