John Doe v. Marymount Univ.

• Decision Date: 14 March 2018
• Docket Number: Case No. 1:17–cv–401
• Citation: 297 F.Supp.3d 573
• Court: U.S. District Court — Eastern District of Virginia
• Parties: John DOE, Plaintiff, v. MARYMOUNT UNIVERSITY, et al., Defendants.

297 F.Supp.3d 573

John DOE, Plaintiff,

v.MARYMOUNT UNIVERSITY, et al., Defendants.

Case No. 1:17–cv–401

United States District Court, E.D. Virginia, Alexandria Division.

Filed March 14, 2018

Adam Ross Zurbriggen, Justin Emerson Dillon, Christopher Charles Muha, KaiserDillon PLLC, Washington, DC, for Plaintiff.

Jason Alexander Ross, Saul Ewing LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

T.S. Ellis, III, United States District JudgePlaintiff John Doe ("Doe"), a former student at Marymount University ("Marymount"), was accused by a fellow student, Jane Roe ("Roe"), of sexual assault and was ultimately suspended for two years after Marymount adjudicated Doe guilty of sexual assault using Marymount's then existing disciplinary procedures. Doe now brings this action against three defendants—Marymount, Jane Roe, and Linda McMurdock, Marymount's Title IX coordinator—asserting various claims. Specifically, Doe sues:

i. Roe for defamation;¹

ii. Marymount for Title IX gender discrimination, breach of contract, breach of the covenant of good faith and fair dealing and breach of the law of associations; and

iii. Marymount and Linda McMurdock for breaching a common law duty purportedly owed by Marymount and its employees to Marymount's students.

Marymount and McMurdock have moved to dismiss all of Doe's claims against them.

The matter has been fully briefed and argued, and for the reasons that follow Marymount and McMurdock's motion to dismiss must be granted in part and denied in part.

I.²

A. The Incident

Doe was an undergraduate student at Marymount between August 2014 and August 2016. His accuser, Jane Roe ("Roe"), was also a student at Marymount at that time and ultimately graduated from Marymount in 2017.

Doe and Roe first came into contact with one another in November 2014, when Roe contacted Doe by text message. The two arranged for Roe to visit Doe's dorm room on November 8, 2014. Roe arrived at Doe's room at 6:06 p.m. and the two talked for about twenty minutes in the presence of Doe's roommate. When Doe's roommate left, Doe alleges he and Roe "began to make out" and "fondle each other," but that they did not touch one another's genitals. Pl.'s Compl. ¶ 65. Doe further claims that approximately thirty (30) minutes later Roe got up and said she wanted to go visit some other friends. Doe purportedly "stood up and leaned against the door, in a friendly, playful effort to persuade [ ] Roe not to leave, [but] he did not forcefully restrain her from leaving." Id. ¶ 67. Thereafter, according to Doe, Roe kissed him on the cheek, told him she needed to meet some friends and then left his room without incident.

At 8:10 p.m., approximately one hour later, Doe texted Roe telling her that he was "hanging out" with his friends and asking her what she was doing. Roe responded at 8:23 p.m. asking "Y'all aren't going out," and then stating "I'm eating pizza haha." Id. ¶ 70. After that exchange Doe texted Roe several times, but Roe either did not answer or was slow to respond. On November 15, 2014, after receiving little communication from Roe, Doe sent Roe the following message: "So I don't mean to be [a] weirdo but I wanna ask what's up[?] [I]t's bothering me." Id. ¶ 72. Six days later, Roe responded to this message, saying "Hey, so I don't know what you remember about when I was in your room the other night, but you really scared me when you wouldn't take no for an answer. I think you're a really nice guy, I really, really do, but you got really pushy and I just wanted to let you know ... I hope you have an amazing weekend!!" Id. Doe replied to Roe's message stating, "Ok I'm sorry I frightened you, you have a good one too." Id. ¶ 73. After this final text message, Doe and Roe never communicated again.

B. Marymount's Investigation

On the evening of November 8, 2014, Roe allegedly told Z.M., another Marymount student, that Doe had physically and sexually assaulted her. Z.M. was the first person with whom Roe shared her assault allegations. According to the Complaint, Roe did not tell anyone else about the alleged assault until late summer, early fall 2015, almost one year after the alleged incident, when she shared her allegations with C.S., her resident assistant.³ In September 2015, C.S. filed a written report with Marymount detailing Roe's assault allegations, which led Marymount to initiate an investigation into the November 8, 2014 incident.

Doe was first notified by Marymount officials of Roe's allegations on September 8, 2015. On that same day Marymount issued a no-contact order which forbade Doe from "mak[ing] [any] contact, direct or indirect with [Ms. Roe]," and from "discussi[ng] ... the order or the alleged acts that led to its issuance with other Marymount University students or employees with the exception of support persons identified as Confidential Resources per the University's Sexual Harassment and Interpersonal Misconduct Policy."⁴ Id. ¶ 82.

As part of the investigation, Marymount assigned two faculty or staff members, Dr. Bernadette Costello and Mr. Paul Easton, to serve as investigators. The investigators interviewed Doe on September 21, 2015. Initially, Dr. Costello informed Doe that he would not be allowed to consult with his attorney, but she later relented, allowing Doe to speak with his attorney briefly—for less than two-minutes—before the interview ended.

Roe was then interviewed by the investigators on two separate occasions: October 1, 2015 and November 18, 2015. According to the Complaint, Roe made the following statements to Marymount's investigators in these interviews:⁵

• Roe told investigators that Doe held her down on the bed and tried to remove her clothes by force;

• Roe stated that Doe performed oral sex on her without her consent and that she "kneed him in the face" to stop him;

• Roe further stated that when she got up off the bed, Doe pushed her into the door and put his fist up her vagina while she was standing there.

• Roe claimed that Doe locked the door from the inside that prevented her from leaving.

• Roe finally alleged that Doe took off his pants and threw her on the bed, but that she "grabbed and yanked his penis," and he let her leave saying "if you don't want me, that's ok." Id. ¶ 105.

Doe alleges Roe lied to the investigators during her second interview when she was confronted with the text messages Doe and Roe had exchanged on the evening of the alleged incident. She allegedly told investigators that she sent those messages before the alleged sexual assault, although the time-stamp on the messages revealed that they were sent after the alleged assault.

Marymount's investigators also interviewed Roe's roommate, L.J., on October 22, 2015, and she allegedly told investigators that Roe had previously stated that she wanted to "climb [Doe] like a [expletive] tree" and wanted him to "throw [her] against the wall." Id. ¶ 76. L.J. further reported that upon Roe's return to their shared dorm room on the evening of November 8^th Roe was "happy and giddy," showed off her hickeys, and told her roommates that Doe was "good with his tongue." Id. ¶ 75. L.J. further stated that after none of her roommates paid attention to her, Roe started drinking heavily and her mood changed. Only then, after being ignored by her roommates and consuming alcohol, did Roe claim that Doe had been "aggressive" with her and that she "didn't ask for it." Id. ¶ 76. L.J. also allegedly told investigators that Roe was "good at making herself seem like a victim" and that she often "bent the truth." Id. ¶ 105.

Another female student, W.R., was also interviewed by investigators and confirmed that immediately following the alleged assault Roe bragged about the hickeys she had received from Doe. W.R. otherwise corroborated L.J.'s account of the evening of November 8, 2014.

After interviewing the relevant parties, the investigators prepared a draft investigative report on November 24, 2015. The draft report was first provided to Doe approximately sixty days after Roe filed her complaint, despite the fact that Marymount's Sexual Harassment and Interpersonal Misconduct Policy ("Policy") provides only twenty days for sexual assault investigations. Despite this delay, on December 1, 2015, Doe was permitted to review a copy of the report and was also permitted to take some notes. However, he was not allowed to have his attorney present when reviewing the draft report. When Doe's attorney objected to his exclusion from this process, Marymount permitted Doe to review the draft report a second time on December 7, 2015, this time with his attorney present. But significantly, Doe and his attorney were not permitted to take verbatim notes and were not permitted to retain a copy of the report.

Doe submitted his response to the draft investigative report on December 22, 2015, objecting to the report on multiple grounds, including:

• That Marymount's investigators asked Doe the irrelevant question whether he knew any rape victims and included Doe's equally irrelevant response that he did not know any sexual assault victims, but that he had watched some crime shows on television that portrayed sexual assault victims;• That Marymount's investigators included irrelevant statements describing Mr. Doe's attorney's behavior during the interviews, including that Mr. Doe's attorney asked for the air conditioner to be turned down and for an opportunity to take a break to "advise Mr. Doe";

• That Marymount's investigators included Roe's irrelevant and unverified statement that Doe "sleeps around" to alleviate the pain he feels from his sister's death from cancer

;

• That Marymount's investigators included in their Report summaries of interviews with three students who spoke about Doe's general drinking habits;

• That Marymount's investigators included entries from Roe's journal despite the fact there was no effort made to authenticate these entries;

• That Marymount's investigators failed to gather any physical evidence that Roe had kneed Doe in the face on ...