Moe v. Grinnell Coll.

• Decision Date: 23 August 2021
• Docket Number: 4:20-cv-00058-RGE-SBJ
• Citation: 556 F.Supp.3d 916
• Parties: Peter P. MOE, Plaintiff, v. GRINNELL COLLEGE, Defendant.
• Court: U.S. District Court — Southern District of Iowa

556 F.Supp.3d 916

Peter P. MOE, Plaintiff,

v.GRINNELL COLLEGE, Defendant.

No. 4:20-cv-00058-RGE-SBJ

United States District Court, S.D. Iowa, Central Division.

Signed August 23, 2021

David Harris Goldman, Babich Goldman, P.C., Amy Kathryn Davis, Miller Zimmerman & Evans PLC, Des Moines, IA, Andrew T. Miltenberg, Pro Hac Vice, Kara Gorycki, Pro Hac Vice, Stuart Bernstein, Pro Hac Vice, Nesenoff & Miltenberg, LLP, New York, NY, for Plaintiff.

Frank B. Harty, Nyemaster Goode PC, Des Moines, IA, Frances M. Haas, Nyemaster Goode PC, Cedar Rapids, IA, for Defendant.

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

REBECCA GOODGAME EBINGER, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiff Peter P. Moe¹ filed suit against Defendant Grinnell College after Grinnell College expelled him for violating its sexual misconduct policy. Moe alleges Grinnell College discriminated against him on the basis of sex in violation of Title IX of the Education Amendment of 1972. He also alleges various state law claims. Grinnell College moves for summary judgment on all of Moe's claims. Moe resists. Because genuine issues of material fact are present as to Moe's Title IX and breach of contract claims, the Court denies Grinnell College's motion for summary judgment on those claims. The Court grants Grinnell College's motion as to the other state law claims.

II. BACKGROUND

In presenting the facts relevant to Grinnell College's motion for summary judgment, the Court first sets forth Grinnell College's sexual misconduct policy. Next the Court recounts the sexual misconduct allegations against Moe and the resulting disciplinary investigation, adjudication, and appeal. The following facts are either uncontested or, if contested, viewed in the light most favorable to Moe, the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A. Grinnell College's Sexual Misconduct Policy

Grinnell College's Policy, Procedures and Guide to Preventing, Reporting, and Responding to Sexual Misconduct and Other Forms of Interpersonal Violence (the Policy) governs sexual assault investigations and discipline at Grinnell College. See Pl.'s App. Supp. Resist. Def.'s Mot. Summ. J. P-APP 000001–56, ECF No. 77-3 (Policy). At the beginning of each fall semester Grinnell College provides the Policy to students. Compl. ¶ 84, ECF No. 1. The September 2017 version of the Policy was in effect when the events at issue occurred. See id. ¶ 86; see also ECF No. 77-3 at P-APP 000001. The Policy is intended to "[p]rovide the Grinnell College community with a clear set of behavioral standards and clear definitions of [p]rohibited [c]onduct." ECF No. 77-3 at P-APP 000002. The Policy explains how a "College community member" can report a Policy violation and provides information about "how a report against a student ... will be investigated, evaluated, and adjudicated by [Grinnell C]ollege." Id.

Grinnell's Policy "prohibits ... sexual assault," which it defines as

having or attempting to have sexual intercourse or sexual contact with another individual without consent. This includes sexual intercourse or sexual contact achieved by the use or threat of force or coercion, where an individual does not consent to the sexual act, or where an individual is incapacitated. Sexual assault includes the following acts: ...

Having or attempting to have sexual intercourse with another individual without consent. Sexual intercourse includes vaginal or anal penetration, however slight, with a body part or object, or oral copulation by mouth-to-genital contact....

Having or attempting to have sexual contact with another individual without consent. Sexual contact includes kissing, touching the intimate parts of another, causing the other to touch one's intimate parts, causing the other to touch their own intimate parts, or disrobing or exposure of another without permission. Intimate parts may include the breasts, groin, genitals, buttocks, mouth[,] or any other part of the body that is touched in a sexual manner. Non-consensual Sexual Contact can occur whether individuals are clothed or unclothed.

Id. at P-APP 000004, 16–17. "The [P]olicy is based on affirmative consent." Id. at P-APP 000019.

Consent to engage in sexual activity must be given knowingly, voluntarily, and affirmatively. Consent to engage in sexual activity must exist from the beginning to end of each instance of sexual activity and for each form of sexual contact. Consent is demonstrated through mutually understandable words and/or clear, unambiguous actions that indicate a willingness to engage freely in sexual activity. Consent is active, not passive.

Id.

Under the Policy, any individual who is affected by prohibited conduct may file a Title IX report. See id. at P-APP 000023. The Title IX Coordinator works with the Title IX response team, including the Deputy Title IX Coordinators, to respond to Title IX allegations. See id. at P-APP 000009, 34. After a complainant files a report against a student-respondent,² a member of the Title IX response team conducts an initial assessment. See id. at P-APP 000034–35. The initial assessment "consider[s] the nature of the report, the [c]omplainant's expressed preference for resolution, and the appropriate course of action, which may include Informal or Formal Resolution." Id. at P-APP 000035. "Informal Resolution does not involve disciplinary action against a [r]espondent." Id. Formal Resolution "involves an investigation to determine if there has been a policy violation," an adjudication, and may result in "sanctions through conduct (corrective) action." See id. at P-APP 000041. "The College seeks to resolve all reports of [p]rohibited [c]onduct within 60 calendar days of the initial report or the Notice of Investigation." Id. If "the investigation and resolution exceed this time frame for good cause, the College will notify all parties of the need for additional time and best efforts will be made to complete the process in a timely manner while balancing principles of thoroughness and fairness with promptness." Id.

After Grinnell College initiates an investigation as part of a Formal Resolution, the Dean of Students issues a written Notice of Investigation to the complainant and the respondent. Id. at P-APP 000044. "The Notice will include the names of the parties, a brief description of the alleged conduct, and the potential policy violations." Id. The Title IX Coordinator then appoints a "trained investigator to conduct a prompt, equitable, thorough, and impartial investigation" of the alleged Policy violations. Id. "It is the responsibility of ... [Grinnell] College, not the parties, to gather relevant evidence." Id. The investigator is responsible for interviewing the parties separately; "interviewing potential witnesses; collecting relevant documentation and physical evidence;" and "preparing a written report documenting the complete investigation." Id. at P-APP 000045. Grinnell College "expects all members of the Grinnell community to cooperate fully with the investigation and disciplinary procedures." Id. "[A]ny student ... who refuses to cooperate in an investigation may be subject to sanction. Refusal to cooperate includes ... failing to acknowledge requests from College officials for information...." Id.

After the investigation, the investigator writes a preliminary investigation report, which, in part, "identif[ies] the potential [P]olicy violations." Id. at P-APP 000047. The complainant and respondent review the preliminary investigation report and "may provide comments, propose questions for the investigator[ ] to ask the other party, or identify additional witnesses or source[s] of information." Id. The investigator then prepares the final investigation report. Id. The final investigation report "provides a statement of the policy violation(s) that are alleged to have taken place and a summary of the facts underlying the allegations." Id. at P-APP 000048.

The final investigation report forms the basis for the adjudication. Id. Grinnell College utilizes a third party adjudicator. See id. ; Pl.'s Statement Additional Material Facts Supp. Resist. Def.'s Mot. Summ. J. ¶ 164, ECF No. 77-1. "The adjudicator bears the ultimate responsibility of determining, by a preponderance of the evidence, whether the [r]espondent is responsible for committing [p]rohibited [c]onduct in violation of [the] [P]olicy." ECF No. 77-3 at P-APP 000048. After the adjudicator receives the final investigation report, the adjudicator "will" meet with a member of the investigation team and ask any questions to fully understand the case. Id. at P-APP 000050. The adjudicator also conducts private adjudication meetings with each party. See id. at P-APP 000049–51.

The Dean of Students will send each party an explanation of the process; provide the parties with the date, time, and place of the meeting; and the name of the adjudicator. The Dean of Students will also provide an opportunity to the parties to ask questions about the process and meet before the adjudication meeting occurs.

Id. at APP 000048–49. Prior to the adjudication meetings, "[t]he adjudicator is required to review all pertinent information regarding the incident, including written statements, the investigation report, documents, ... and/or oral information from the [c]omplainant(s), [r]espondent(s), and witnesses." Id. at P-APP 000050. Although the adjudication meetings are private, each party "will be provided with the opportunity to listen to the adjudicator's meeting with the other party." Id. at P-APP 000049, 51.

At the adjudication meeting, the respondent may respond to the allegations, present a Mitigation Statement, and answer the adjudicator's questions. Id. at P-APP 000051. After listening to the opposing party's adjudication meeting, the complainant and the respondent may raise questions or comments to the adjudicator. Id. Then the...