Faiaz v. Colgate Univ., 5:14–CV–322 GTS/ATB.

• Court: United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
• Citation: 64 F.Supp.3d 336
• Docket Number: No. 5:14–CV–322 GTS/ATB.,5:14–CV–322 GTS/ATB.
• Parties: Abrar FAIAZ, Plaintiff, v. COLGATE UNIVERSITY, et al., Defendants.
• Decision Date: 24 November 2014

64 F.Supp.3d 336

Abrar FAIAZ, Plaintiff
v.
COLGATE UNIVERSITY, et al., Defendants.

No. 5:14–CV–322 GTS/ATB.

United States District Court, N.D. New York.

Signed Nov. 24, 2014.

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Joshua S Moskovitz, Esq., for Plaintiff.

Laura A. Harshbarger, Esq., for Defendants.

MEMORANDUM–DECISION and ORDER

ANDREW T. BAXTER, United States Magistrate Judge.

Presently before the court is the defendants' motion for partial judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 21). Plaintiff opposes the motion, and defendants have filed a reply. (Dkt. Nos. 29–30, 33, 36). Plaintiff has also filed a letter, requesting that the court consider additional “previously unavailable” evidence in opposition to defendants' motion, and defendants have opposed. (Dkt. Nos. 39, 40). This matter was referred to me by the Honorable Glenn T. Suddaby, upon consent of the parties, pursuant to 28 U.S.C. § 636(c) for final resolution of this motion only. (Dkt. Nos. 37–38).

I. Background

A. Facts

Both parties have reviewed the facts of this case extensively in their memoranda of law, and the court assumes the parties familiarity with the relevant facts. The motion for judgment on the pleadings applies only to some of plaintiff's claims. However, I will include a brief summary of the facts as stated in the complaint.

In the spring of 2013, Rachel Valdivieso, a Colgate University (“CU”) student with whom plaintiff once had a brief relationship, reported to CU officials¹ that plaintiff had pushed her in 2012. (Complaint (“Compl.”) ¶ 37) (Dkt. No. 1). Plaintiff alleges that Ms. Valdivieso reported the incident a year after it happened “because of [another] incident from 2011 involving [plaintiff] and another student, Yuliya Karashel.” According to plaintiff, Ms. Valdivieso's 2013 allegations were “suspicious,” and made only out of jealousy because plaintiff had “rekindled” his relationship with Ms. Karashel. (Compl. ¶¶ 2, 38). Specifically, Ms. Valdivieso alleged that in 2011, plaintiff had pushed Ms. Karashel, resulting in her falling, hitting her head against a table, and receiving stitches for the injury. (Compl. ¶ 38). Officer Kane

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prepared an Incident Report, regarding Ms. Valdivieso's email, assigning a “case number” to each incident. (Compl. ¶ 39). The report was dated February 26, 2013 and was sent to defendant Taylor. (Id. )

When defendant Valerie Brogan, an Investigator in the CU Campus Safety Department, attempted to contact Ms. Valdivieso to schedule a meeting, Ms. Valdivieso responded that “she was on leave from school.” (Compl. ¶ 40). Plaintiff alleges that ultimately, defendants determined to investigate the incident between plaintiff and Ms. Karashel, even though she did not personally make the complaint. (Compl. ¶¶ 42–44). Defendants Kimberly Taylor² and Marilyn Rugg³ assigned defendant Brogan to conduct the investigation. (Compl. ¶¶ 42–44). Defendant Brogan interviewed Ms. Karashel, who prepared an initial written statement at defendant Brogan's request.⁴ (Compl. ¶¶ 47–51).

Defendant Brogan contacted plaintiff and scheduled a meeting with him for March 22, 2013. (Compl. ¶ 54). In a letter, dated March 21, 2013, defendant Taylor ordered plaintiff to have no contact with either Ms. Valdivieso or Ms. Karashel. (Compl. ¶ 55). The meeting between plaintiff and defendant Brogan, which was also attended by defendant Christina Khan,⁵ took place on March 22, 2013. Plaintiff alleges that the meeting/interrogation was “aggressive” and lasted for an extended period of time. (Compl. ¶¶ 75–76). Plaintiff claims that he was deprived of food until shortly after he informed the defendants that he was feeling dizzy and faint. (Compl. ¶ 75). Following the meeting, defendant Brogan prepared a report, plaintiff was given a copy of the March 21st “no-contact”⁶ order, and he was told that he was placed on interim suspension. (Compl. ¶¶ 77–79). Plaintiff was also informed that his disciplinary hearing would be held on April 1, 2013 “at the earliest.” (Compl. ¶ 82).

Defendant Taylor informed plaintiff that he would be detained “in the basement of Curtis Hall,” pending his disciplinary hearing, and he would not be allowed to go anywhere else. (Compl. ¶¶ 83–84). Plaintiff alleges that defendant Taylor told plaintiff that if he wanted to forego staying in Curtis Hall pending the disciplinary hearing, he could return home to Bangladesh, and CU would pay for the flight. Plaintiff would then be given the opportunity to participate in the disciplinary hearing by “Skype” or by telephone. (Compl. ¶ 85). Plaintiff opted to stay in the United States, and at approximately 10:00 p.m. on March 22, 2013, he was escorted by Campus Safety Officers from the location of his interrogation to his dormitory room, where he was given the opportunity to gather

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some personal belongings and then was taken to Curtis Hall, where he stayed until noon on March 24, 2013. (Compl. ¶¶ 86–87).

Plaintiff claims that the Curtis Hall room was dirty, had no “drinking water” in it,⁷ and had no cellular reception or Wi–Fi, which prevented plaintiff from communicating with his family or friends. (Compl. ¶ 88). Plaintiff claims that defendant Khan came to visit him in order to encourage him to return home. However, it appears that defendant Khan was also responsible for having plaintiff escorted back to his dormitory room at approximately midnight on March 22, 2013 so that he could obtain an ethernet cable and “several other belongings.” (Compl. ¶ 90). Defendant Khan was also responsible for bringing plaintiff a telephone on March 23, 2013. (Compl. ¶ 95). Plaintiff contacted professor Melissa Kagle,⁸ plaintiff's “host” parent. (Compl. ¶ 96). Although plaintiff claims that the request to stay with Professor Kagle was initially “denied,” plaintiff was sent home with Professor Kagle and her partner at 11:00 a.m. on March 24, 2013. (Compl. ¶¶ 96, 101).

Plaintiff received a “charge letter,” stating that plaintiff violated CU policy, based on five incidents involving Ms. Karashel and one incident involving Ms. Valdivieso. (Compl. ¶ 111). The disciplinary hearing was scheduled for April 2, 2013. (Id. ) Plaintiff states that he tried, without success, to adjourn the hearing date.⁹ (Compl. ¶¶ 122–27). In the interim, on March 29, 2013, plaintiff went to the Campus Security Office to review the evidence against him. (Compl. ¶ 115). Plaintiff claims that while he was reviewing the files, defendants Cook and Tucker verbally harassed him. (Compl. ¶¶ 116–18).

Plaintiff claims that eventually, he felt too intimidated to continue reviewing the documents and sent a text message to Professor Kagle in an effort to get a ride back to her house. (Compl. ¶ 118). Defendant Cook “demanded to know” who plaintiff was texting, and “[s]everal minutes later” Professor Kagle was “pulled over by a Hamilton Police Officer,” but was not issued a citation. (Compl. ¶ 119). Plaintiff claims that defendant Cook told plaintiff that Cook's “partner” in the Hamilton Police Department told Cook that plaintiff's “host mom” had been pulled over and “would not be coming to get him.”¹⁰ (Id. )

Plaintiff claims that on April 1, 2013, defendants Khan and Suzy M. Nelson¹¹ held a video “Skype” call with plaintiff's family and told them that criminal charges “may be pursued” against plaintiff. (Compl. ¶ 123). These defendants encouraged plaintiff's family to persuade plaintiff to return home to Bangladesh. (Id. ) Plaintiff's hearing was conducted on April

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2, 2013, under the Equity Grievance Process (“EGP”), but neither Ms. Karashel, nor Ms. Valdivieso testified. (Compl. ¶ 134). The hearing panel was chaired by defendant Taylor, with defendants Setlak,¹² Palmer,¹³ and Darby¹⁴ as members. (Compl. ¶ 135). Defendant Brogan presented the case based upon her investigation. (Id. ) During the hearing, plaintiff claims that he was asked whether his “religion or culture was the reason for his actions.” (Compl. ¶ 136). Plaintiff presented two witnesses, but claims that he would have called others if he had been given sufficient time to prepare. (Compl. ¶ 137–38).

After the hearing, defendant Taylor told plaintiff that the panel had decided to expel him, but refused to explain the reasons for the chosen sanction. (Compl. ¶ 140). Defendant Brogan contacted Ms. Karashel to inform her of the panel's decision to expel plaintiff. (Compl. ¶ 142). Plaintiff appealed, defendant Nelson recused herself, and appointed defendant Douglas A. Hicks¹⁵ to hear the appeal. (Compl. ¶¶ 143–50). The appeal was supported by a new statement from Ms. Karashel, alleging inter alia, that she was pressured by defendant Brogan to give her earlier statement, and that Ms. Karashel was not aware how her earlier statement would be used. (Compl. ¶ 147). Plaintiff's appeal was denied. (Compl. ¶ 150).

The day after defendants denied plaintiff's appeal, defendants Khan and Taylor contacted plaintiff and told him that he had to leave the country immediately because his student visa was terminated when he was expelled. (Compl. ¶ 159). Plaintiff left Hamilton and moved to New York City in May of 2013....