Gischel v. Univ. of Cincinnati

• Decision Date: 05 February 2018
• Docket Number: Case No. 1:17–cv–475
• Citation: 302 F.Supp.3d 961
• Parties: Tyler GISCHEL, Plaintiff, v. UNIVERSITY OF CINCINNATI, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

302 F.Supp.3d 961

Tyler GISCHEL, Plaintiff,

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

Case No. 1:17–cv–475

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

Signed February 5, 2018

Eric John Rosenberg, Ellen L. Foell, The Rosenberg Law Office LPA, Granville, OH, Tracy L. Turner, Law Office of Tracy L. Turner, New Albany, OH, for Plaintiff.

Eric Kendall Combs, Andrew Cassady, Dinsmore & Shohl, Cincinnati, OH, for Defendants.

Amended Order Granting in Part and Denying in Part Motion to Dismiss First Amended Complaint

Susan J. Dlott, United States District Judge

This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's First Amended Complaint (Doc. 11).¹ Plaintiff Tyler Gischel has sued the University of Cincinnati ("UC") and multiple UC officials following his dismissal from UC as a sanction for being found responsible for the sexual assault of a female student. Gischel alleges that Defendants violated Title IX and his civil rights by discriminating against him on the basis of his gender during the disciplinary proceedings. Defendants have moved to dismiss all claims. For the reasons that follow, the Court will GRANT IN PART AND DENY IN PART the Motion.

I. BACKGROUND

The well-pleaded allegations of fact in the First Amended Complaint (Doc. 10) and the Exhibits attached thereto (Docs. 1–2 to 1–48)² are taken as true for purposes of the Motion.

A. The Parties

Plaintiff Tyler Gischel is a former student at UC, a public university in Ohio. Defendant Jyl Shaffer is UC's former Title IX Coordinator and the investigator for the Title IX complaint filed with UC by a female student, Jennifer Schoewe, against Gischel. Defendant William Richey is a UC Police Department detective. Defendant Daniel Cummins is UC's Associate Dean of Students and the Director of the Office of Judicial Affairs. Defendant Brice Mickey is a UC administrator and served as the chair of the Administrative Review Committee ("ARC") panel that adjudicated Schoewe's complaint and disciplined Gischel. Defendants Carol Tonge Mack and Arnett Glassco are UC administrators and also served on the ARC panel. Defendant Rachel Smith is a professor at the UC College of Law and served as the University Appeals Administrator who reviewed and denied Gischel's appeal. (Doc. 10 at PageID 725–27.)

B. The Alleged Assault

Gischel and Schoewe met at an off-campus party hosted by a UC student during the overnight hours on August 22–23, 2015. (Doc. 1–12 at PageID 331–44.) Both Gischel and Schoewe consumed alcohol at the party. Witnesses described Schoewe as the most intoxicated person at the party, who stumbled and slurred her words. (Id. at PageID 367–74.) A group of students went to a pizza restaurant around midnight or 1:00 a.m. Id. Schoewe kissed Gischel. (Id. at 370, 395.) Gischel asserts that Schoewe also grabbed his penis outside the pizza place. (Id. at PageID 395.) Gischel and his friend, another male student, offered to walk Schoewe home when she indicated that she wanted to leave. (Id. at PageID 373.) The friend became separated from Gischel and Schoewe when he was stopped by an officer asking about an unrelated matter. (Id. ) Gischel texted him around 3:30 a.m. that Schoewe was making wrong turns and did not remember where she lived. (Id. at PageID 411–13.) Gischel texted his friend again between 4:00 a.m. and 5:00 a.m. that Schoewe did not want to return to her student housing and asked to go to his apartment instead. (Id. at PageID 373–76; 411–13.) Gischel asserts that Schoewe expressly consented to having intercourse with Gischel when they arrived at his apartment. (Id. at PageID 392, 398.) After they had intercourse, Gischel asserts that he did not walk Schoewe home because she wanted to go to another party. (Id. at PageID 391–92, 413.) Schoewe texted friends the next day that she was okay. (Id. at PageID 387.)

C. Investigation and Proceedings against Gischel

At some point between August 23 and 25, 2015, Schoewe spoke to her boyfriend and her mother, Rebecca Schoewe. Rebecca Schoewe called the UC Police Department on August 25, 2015 and spoke to Defendant William Richey expressing a concern that her daughter had been raped over the weekend. (Id. at PageID 334–35.) Schoewe herself reported the incident to Jyl Shaffer, the UC Title IX Coordinator, that same day, and then she spoke with Detective Richey on August 26, 2015. (Id. at PageID 331–32, 336.) She reported that she had blacked out on the night of the incident, that she did not believe she had consumed enough alcohol to cause her to black out, and that she suspected she had been drugged. She reported that she woke up in her apartment feeling unwell, that her underwear was missing when she woke up, and that she thought she had been sexually assaulted while unconscious. (Id. ) UC determined not to do Title IX notifications until Schoewe decided whether to pursue criminal charges. (Id. at PageID 338.) By September 4, 2015, Detective Richey knew Schoewe wanted to pursue both criminal charges and a Title IX complaint against Gischel.

Detective Richey and non-party UC Police Officer Jennifer McMahon interviewed Gischel on September 16, 2015 without informing him that he was the subject of either a criminal or Title IX investigation. Gischel waived his Miranda rights and provided his version of the events to the officers. (Id. at PageID 388–406.) Detective Richey was the primary interrogator. (Id. ) On September 18, 2015, Shaffer gave Gischel notice of the Title IX complaint against him.

On October 16, 2015, UC placed Gischel on an interim suspension. Almost four months later, on February 3, 2016, Shaffer sent her Title IX investigative report to Daniel Cummins, UC's Assistant Dean of Students and the Director of the Office of Judicial Affairs ("OUJA"). Cummins advised Gischel that same day that Schoewe's complaint had been referred to OUJA and stated that a procedural review was scheduled for February 12, 2016. Gischel was informed that he had the right to bring an attorney to the procedural review. (Doc. 1–11 at PageID 316.)

On February 9, 2016, UC received notice that the federal Department of Education's Office of Civil Rights ("OCR") had opened an investigation into UC upon Schoewe's complaint that UC "fail[ed] to promptly and adequately respond to complaints, reports and/or incidents of sexual violence" and that students like Schoewe "were subjected to a sexually hostile environment." (Doc. 1–5 at PageID 180.) Schoewe had filed the Title IX complaint against UC with the OCR on November 23, 2015. (Id. ) UC did not inform Gischel about the pending OCR investigation at any time during the disciplinary investigation or proceedings against him.

On February 25, 2016, Cummins informed Gischel that a hearing would be held before an ARC panel on March 15, 2016 to determine if Gischel had broken Student Code of Conduct policies regarding a violation of law, physical harm or abuse, harassment or discrimination, or of UC's Title IX policies and statements. (Doc. 1–11 at PageID 318–20.) Gischel was given a deadline of February 29, 2016 to submit the identity of witnesses and evidence he would present at the ARC hearing. (Id. ) He was informed that he could have an advisor, including an attorney, at the hearing. (Id. )

On March 15, 2016, Shaffer appeared at the ARC hearing with Schoewe. The hearing lasted less than two hours. Schoewe and Gischel were both given the opportunity to submit questions. The ARC panel asked Gischel almost all of Schoewe's questions. Gischel submitted 63 questions, but the ARC panel refused to ask Schoewe questions about two topics important to Gischel. (Doc. 1–11 at PageID 325–29.) First, it refused to ask Schoewe questions about whether she had a personal or romantic relationship with Detective Richey, questions designed to establish that Detective Richey acted inappropriately or was biased. Detective Richey did not appear at the hearing. Second, the ARC panel refused to ask Schoewe questions intended to disprove that Schoewe was incapacitated on the night of the incident.

The ARC panel recommended that Gischel be held responsible as follows:

You are found responsible for violating provision(s) of the Student Code of Conduct specifically, Violation of Law, Physical Abuse or Harm, Harassment or Discrimination, and Violation of University Policies or Rules, most specifically University Policy Statement on Sex Offenses.

(Id. at PageID 323.) On March 28, 2016, non-party Denine Rocco, the Assistant Vice President of Students Affairs and Dean of Students, accepted the recommendation of the ARC panel and imposed a sanction of immediate permanent dismissal.

Gischel appealed the decision on March 29, 2016 to Rachel Smith, the University Appeals Administrator, based on alleged violations of UC's own policies, Title IX, and his due process rights. Smith issued a letter dated April 18, 2016 denying the appeal. (Doc. 1–7 at PageID 196.) She considered only the procedural arguments in accordance with the scope of her authority. (Id. ) She concluded that the ARC panel did not commit procedural error by refusing to ask questions proffered by Gischel regarding Detective Richey's alleged bias or Schoewe's level of intoxication. (Id. ) Gischel points out that Smith used the term "intoxication," not the term "incapacitation." UC's Title IX policy defined the term "consent" to include that a "person cannot give consent if he or she is mentally or physically incapacitated or impaired such that the person cannot understand the fact, nature or extent of the sexual situation." (Doc. 1–2 at PageID 107–08.) However, UC's Policy Statement on Sex Offenses, effective August 15, 2012, states under the definition of sexual assault that "[l]egally, consent cannot be given while intoxicated or medicated since these states inhibit an aware state of mind." (Id. at PageID 119, 124.)

D. The Alleged Bias of Detective Richey

Gischel attached to the Complaint evidence purporting to show the existence of an improper...