Doe v. Univ. of Denver

• Decision Date: 26 May 2022
• Docket Number: Court of Appeals No. 20CA1545
• Citation: 516 P.3d 946,2022 COA 57
• Parties: John DOE, Plaintiff-Appellant, v. UNIVERSITY OF DENVER; University of Denver Board of Trustees; Rebecca Chopp, individually and as an agent for University of Denver; Kristin Olson, individually and as an agent for University of Denver; Jean McAllister, individually and as an agent for University of Denver; Siri Slater, individually and as an agent for University of Denver; Eric Butler, individually and as an agent for University of Denver, Defendants-Appellees.
• Court: Colorado Court of Appeals

516 P.3d 946

2022 COA 57

John DOE, Plaintiff-Appellant,

v.UNIVERSITY OF DENVER; University of Denver Board of Trustees; Rebecca Chopp, individually and as an agent for University of Denver; Kristin Olson, individually and as an agent for University of Denver; Jean McAllister, individually and as an agent for University of Denver; Siri Slater, individually and as an agent for University of Denver; Eric Butler, individually and as an agent for University of Denver, Defendants-Appellees.

Court of Appeals No. 20CA1545

Colorado Court of Appeals, Division VII.

Announced May 26, 2022

Campbell Killin Brittan & Ray, LLC, Michael Mirabella, Denver, Colorado, for Plaintiff-Appellant

Constangy, Brooks, Smith & Prophete, LLP, Jimmy Goh, Erin Mangum, Denver, Colorado, for Defendants-Appellees

Opinion by JUDGE BERGER

¶ 1 John Doe appeals the district court's summary judgment in favor of the University of Denver (DU), its board of trustees, and the individuals responsible for the investigation and adjudication that culminated in John's expulsion for non-consensual sexual contact with Jane Roe.¹

¶ 2 This case requires us to decide two questions of first impression in Colorado. First, are DU's Office of Equal Opportunity Procedures 2015-2016 (Aug. 17, 2015), https://perma.cc/6TDL-4M6S (OEO Procedures), regarding student sexual misconduct investigations sufficiently definite to be enforceable in contract? Second, what tort duties, if any, does a private educational institution owe its students when investigating and adjudicating claims of sexual misconduct by its students?

¶ 3 We hold that DU's OEO Procedures regarding student sexual misconduct investigations are sufficiently certain to be enforced under Colorado contract law. We also hold that a private educational institution owes a duty, independent of any contractual promises, to adopt fair procedures and to implement those procedures with reasonable care when investigating and adjudicating claims of sexual misconduct by one student against another. We also hold, however, that a university's trustees, employees, and agents do not owe this tort duty.

¶ 4 Accordingly, we affirm in part and reverse in part the district court's judgment and remand for further proceedings.

I. Relevant Facts and Procedural History

¶ 5 We glean the following facts from multiple sources, including John's, Jane's, and other witnesses’ written submissions to DU, the correspondence between John and DU's investigators, and the facts found in the final investigation report. No evidentiary hearing on the disputed facts was ever held. We recite these facts solely to guide our legal analysis; none of the stated facts is binding on the district court on remand.

A. John and Jane's Relationship

¶ 6 In fall 2015, John and Jane enrolled as undergraduate students at DU. In January 2016, they began a romantic relationship in which they sometimes spent the night with each other but did not engage in sexual intercourse. In February 2016, the relationship cooled, and they interacted with each other less often.

¶ 7 On a Friday in early March 2016, Jane was drinking alcohol with friends in a dorm and later at a bar. Jane wanted to talk to John, so after Jane returned to the dorm where both she and John lived, she attempted to locate John. After finding John in his friend's dormroom, where he had also been drinking alcohol, Jane brought him to her dormroom. They began kissing and engaging in sexual contact but did not engage in sexual intercourse that night.

¶ 8 John and Jane dispute the events that occurred the following morning. John claimed that he awoke to find Jane on top of him attempting to engage in intercourse. They then engaged in consensual sexual intercourse "for a very brief time." At some point, Jane abruptly left the room. About ten minutes later, she returned and wanted to talk about their relationship. John was unwilling to discuss their relationship and returned to his room.

¶ 9 Jane's version of the Saturday morning events differed materially. She said that she woke up naked to find John fondling her genitals and kissing her. She claimed that John then had sexual intercourse with her without her consent.

¶ 10 After hearing John discuss the incident with others at a party and after returning from spring break to discover that John had told additional people about their sexual encounter, Jane filed a complaint with DU's Office of Equal Opportunity (OEO).²

B. The OEO Procedures

¶ 11 As part of the enrollment process, John received a copy of the OEO Procedures. The OEO Procedures provide that DU will make an initial assessment when a report alleges a violation of a DU policy. OEO Procedures at XI.A. "Where the initial assessment concludes that Corrective Action and/or Outcomes may be appropriate, [DU] will initiate an investigation." Id. at XI.E.

¶ 12 The OEO Procedures require DU to designate either an employee of DU or an external investigator to conduct the investigation. Id. They require that "[a]ny investigator chosen to conduct the investigation must be impartial and free of any actual conflict of interest." Id. The OEO Procedures contain various provisions designed to ensure that an investigation is "thorough, impartial and fair." Id.

¶ 13 At the conclusion of the investigation, the investigator must prepare a "written report that summarizes the information gathered and synthesizes the areas of agreement and disagreement between the parties." Id. at XI.F. In preparing the report, "the investigator will review all facts gathered to determine whether the information is material to the determination of responsibility given the nature of the allegation. In general, the investigator may exclude information that is immaterial." Id. Before the report is finalized, the complainant and respondent are given an opportunity to review the preliminary report and offer oral and written comments. Id.

¶ 14 Upon receipt of additional information from the complainant or respondent, "the investigator will make a finding as to whether there is sufficient information to establish, by a preponderance of the evidence, that a policy violation occurred. The final written report will include the determination of responsibility and the rationale for the determination." Id.

¶ 15 "When there is a determination of responsibility for a policy violation[,] the [OEO] will refer the matter to the appropriate administrator for Corrective Action or Outcomes." Id. at XI.H.1. If the respondent is a student, the matter is then referred to the Outcome Council. Id. at XI.I. The OEO Procedures direct the Outcome Council to "mak[e] a neutral and impartial review of investigations and findings, and impos[e] outcomes (sanctions)." Id. at XIII.B.1. "In general[,] violations of the non-consensual sexual contact provision of [the OEO] Procedures typically result in a dismissal ...." Id. at XIII.D. Once the Outcome Council renders a finding, it issues a letter describing the outcome and appeal options. Id. at XIII.E. The OEO Procedures provide that "[a]ppeal decisions are final." Id. at XIII.F.

C. The Investigation

¶ 16 On March 24, 2016, the OEO received Jane's complaint. The Title IX Coordinator reached out to Jane that same day and held an informational meeting with her in early April. On April 12, Jane requested a formal investigation.

¶ 17 In late April, the Title IX Coordinator gave John notice of Jane's allegations and issued a "no contact order" to John.³ John submitted to a formal interview with the investigators in early May. John provided the names of five people he wanted the investigators to interview: his mother, his legal counsel, his therapist, and two students. In addition to Jane and John, the investigators interviewed eleven witnesses whom Jane had identified.

¶ 18 Before submitting her complaint to the OEO, Jane underwent a sexual assault nurse examination (SANE). During the investigation, she submitted portions of the SANE report. The portions she submitted described a dozen observable abrasions and contusions on her body. Jane did not submit, however, (1) photographs of her abrasions and contusions; (2) summaries by the SANE nurse or the attending physician; or (3) her written statement to the SANE nurse regarding the source of her injuries. The portions of the SANE report that Jane submitted did not include any medical analysis as to the possible cause or age of her injuries.

¶ 19 Though the preliminary report is not in the record, the final report states that John and Jane "were given the opportunity to review the preliminary report and offer any factual clarifications and additional relevant information related to the statements." After he reviewed the investigators’ preliminary report, John realized that the investigators had not interviewed any of his witnesses and again requested that the investigators interview them. The investigators then interviewed one of John's witnesses — his therapist.

¶ 20 The investigators declined to interview the other witnesses John identified even though some of those witnesses — students — were in the dormroom with him when Jane came and brought him back to her dormroom on the night in question. The final report stated that interviews of John's witnesses were unnecessary because "the [i]nvestigators had already interviewed witnesses [who] could corroborate the information that [John] expected them to provide."

¶ 21 The final report further acknowledged that Jane had not produced the complete SANE report but nevertheless concluded that the portions of the report she had submitted corroborated Jane's version of events.

¶ 22 The final report concluded, "it is more likely than not that [John] engaged in non-consensual sexual contact with [Jane] on the morning in question."

¶ 23 Shortly after the final report was issued, John was informed that the Outcome Council "determined that dismissal is the only reasonable outcome" and that his dismissal from DU was effective immediately.

¶ 24 John appealed, alleging that the...