John Doe v. Univ. of Colo.

• Decision Date: 26 May 2017
• Docket Number: Civil Action No. 16-cv-1789-WJM-KLM.
• Parties: John DOE, Plaintiff, v. UNIVERSITY OF COLORADO, BOULDER, THROUGH its Board, the BOARD OF REGENTS OF the UNIVERSITY OF COLORADO; Christina Gonzales, individually and as agent for the University of Colorado, Boulder; Alexandra Tracy–Ramirez, individually and as agent for the University Colorado, Boulder; and Jessica Doty, individually and as agent for the University of Colorado, Boulder, Defendants.
• Court: U.S. District Court — District of Colorado

255 F.Supp.3d 1064

John DOE, Plaintiff,

v.UNIVERSITY OF COLORADO, BOULDER, THROUGH its Board, the BOARD OF REGENTS OF the UNIVERSITY OF COLORADO; Christina Gonzales, individually and as agent for the University of Colorado, Boulder; Alexandra Tracy–Ramirez, individually and as agent for the University Colorado, Boulder; and Jessica Doty, individually and as agent for the University of Colorado, Boulder, Defendants.

Civil Action No. 16-cv-1789-WJM-KLM.

United States District Court, D. Colorado.

Signed May 26, 2017

Tara Jill Davis, Nesenoff & Miltenberg, LLP, New York, NY, Michael J. Mirabella, Michael Mirabella, P.C., Denver, CO, for Plaintiff.

David P. Temple, Erica Mae Weston, University of Colorado–Office of University Counsel, Cathy Havener Greer, Katherine M.L. Pratt, Wells, Anderson & Race, LLC, Rachel Ollar Entrican, Colorado Attorney General's Office–Dept. of Law Department of Law, Denver, CO, for Defendants.

ORDER ON PENDING MOTIONS

William J. Martínez, United States District Judge

Title IX of the Civil Rights Act of 1964, 20 U.S.C. § 1681 et seq . ("Title IX"), declares that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). Federal agencies "empowered to extend Federal financial assistance to any education program or activity" may promulgate regulations to enforce this prohibition, and may terminate an educational institution's federal funding if the institution does not comply with these regulations. Id . § 1682.

Congress added Title IX to the Civil Rights Act in 1972, when "the concept of sexual harassment as [a form of] gender discrimination had not been recognized or considered by the courts." Davis v. Monroe Cnty. Bd. of Educ. , 526 U.S. 629, 664, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (Kennedy, J., dissenting) (internal quotation marks omitted). Fourteen years later, however, the Supreme Court recognized in a Title VII (employment discrimination) context that sexual harassment which creates a hostile working environment is a form of sex discrimination for which employers may be held liable. See Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Since at least the mid–1990s, the Department of Education's Office of Civil Rights ("OCR") has applied this principle to Title IX, advising that sexually harassing conduct, including "unwelcome sexual advances" by one student to another, can create a hostile, sexually discriminatory educational environment; and that schools may lose their federal funding "if (i) a hostile environment exists in the school's programs or activities, (ii) the school knows or should have known of the harassment, and (iii) the school fails to take immediate and appropriate corrective action." 62 Fed. Reg. 12034, 12038, 12039 (Mar. 13, 1997).¹

"Unwelcome sexual advances" obviously includes sexual assault, thus raising the question of what Title IX requires of schools—particularly colleges and universities—when they learn of alleged student-on-student sexual assault. Department of Education regulations generically require "grievance procedures providing for prompt and equitable resolution of...complaints alleging any action that would be prohibited [under Title IX]," 34 C.F.R. § 106.8(b), and "Title IX...permits the use of a student disciplinary procedure not designed specifically for Title IX grievances to resolve sex discrimination complaints, as long as the procedure meets the requirement of affording a complainant a ‘prompt and equitable’ resolution of the complaint," 62 Fed. Reg. at 12045. But what sort of procedure provides a "prompt and equitable resolution" for a claim of rape?

Noting that "[t]he statistics on sexual violence [on college campuses] are both deeply troubling and a call to action for the nation," OCR ventured an answer to this question in a 2011 "Dear Colleague Letter." See Russlynn Ali, Assistant Sec'y for Civil Rights, Dear Colleague Letter at 2 (Apr. 4, 2011), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague–201104.pdf (last accessed May 12, 2017). This letter appears to have had two major effects. First, it generally signaled that OCR had adopted a "get tough" approach, thus prompting colleges and universities to devote more attention to sexual assault accusations. Second, the letter announced OCR's view that school investigators should apply a preponderance-of-the-evidence standard when determining whether a sexual assault accusation is founded, in contrast to higher standards "currently used by some schools." (Id . at 10–11.) Thus, it became easier for schools to take action against alleged perpetrators.

As another district court has aptly noted, the Dear Colleague Letter has led to a "wave of litigation" brought by male university students who have been suspended or expelled after they had been found, after allegedly faulty investigations, to have violated school policies regarding sexual assault. Doe v. Brown Univ. , 166 F.Supp.3d 177, 181 (D.R.I. 2016) (" Brown "). That wave has washed over this Court at least once before, see Johnson v. W. State Colo. Univ. , 71 F.Supp.3d 1217 (D. Colo. 2014), and now returns.

Plaintiff was expelled from Defendant University of Colorado at Boulder ("the University") in August 2014 after the University's Title IX office concluded by a preponderance of the evidence that he had raped two female students in separate incidents. Plaintiff now claims that the University's Title IX process was biased toward him because he is male, and therefore the University discriminated against him on the basis of sex in violation of Title IX. Plaintiff also brings a Fourteenth Amendment procedural due process claim and various state-law claims. (See generally ECF No. 26.) Apart from the University, Plaintiff has sued three University officials who had some role in the investigation of the accusations against him, or in the decision to expel him: Christina Gonzalez ("Gonzalez"), the University's Title IX co-coordinator; Alexandra Tracy–Ramirez ("Tracy–Ramirez"), the Title IX investigator assigned to his case; and Jessica Doty ("Doty"), head of the University's Office of Student Conduct. The Court will refer to these three individuals collectively as the "Individual Defendants."

Currently before the Court is the Individual Defendants' Motion to Dismiss (ECF No. 28) and the University's Motion to Dismiss (ECF No. 52).² For the reasons explained below the Court grants the Individual Defendants' motion in full, and grants the University's motion as to all claims except prospective injunctive relief under Plaintiff's procedural due process claim. However, the Court must still dismiss that claim—although without prejudice—because it is unclear whether Plaintiff has sued the right state official. Plaintiff will therefore be granted leave to amend as to his procedural due process claim.

I. RULE 12(b)(6) STANDARD

A. General Standard

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a claim in a complaint for "failure to state a claim upon which relief can be granted." The 12(b)(6) standard requires the Court to "assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff." Ridge at Red Hawk, LLC v. Schneider , 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is "whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’ " Id. (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Granting a motion to dismiss "is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Dias v. City & Cnty. of Denver , 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). "Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.’ " Id. (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).

B. Documents Outside the Pleadings

The University and the Individual Defendants ask this Court to consider additional documents they have placed in the record, namely, Defendant Tracy–Ramirez's final report of her investigation into the alleged assaults at issue in this lawsuit (ECF Nos. 28–1, 52–1), and the University's Student Conduct Code Policies & Procedures for the 2013–14 academic year (ECF Nos. 28–2, 52–2). The Court may consider these documents if they are (1) "mentioned in the complaint," (2) "central to [the] claims [at issue]," and (3) not challenged as inauthentic. Toone v. Wells Fargo Bank, N.A. , 716 F.3d 516, 521 (10th Cir. 2013).³

Here, all three elements are satisfied. Both documents are frequently mentioned, sometimes quoted, and generally relied upon in the currently operative complaint as evidence of Defendants' liability. (See ECF No. 26 ¶¶ 80–95 (Tracy–Ramirez's report); id . ¶¶ 27–38, 137–50 (Student Conduct Code).) Thus, these documents are both "mentioned" and "central" to Plaintiff's claims. Moreover, Plaintiff does not argue that these documents are inauthentic, nor has he stated any other objection to the Court considering them as if part of his complaint. The Court will therefore consider them for purposes of the Rule 12(b)(6) analysis below. However, there are instances, noted below, when Plaintiff's complaint alleges the contents of certain documents and those allegations appear to contradict Tracy–Ramirez's report of what the same documents contain. In those instances, the Court has adopted Plaintiff's allegation as true for present purposes.

II. FACTS

The Court accepts the following facts as true for purposes of the University's and the...