Pacheco v. St. Mary's Univ., Civil Case No. 15-cv-1131 (RCL)

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtRoyce C. Lamberth United States District Judge
PartiesALFONSO PACHECO, Plaintiff, v. ST. MARY'S UNIVERSITY, et al., Defendants.
Decision Date20 June 2017
Docket NumberCivil Case No. 15-cv-1131 (RCL)

ALFONSO PACHECO, Plaintiff,
v.
ST. MARY'S UNIVERSITY, et al., Defendants.

Civil Case No. 15-cv-1131 (RCL)

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

June 20, 2017


MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Alfonso Pacheco was a student at defendant St. Mary's University, a private Catholic university located in San Antonio, Texas. He was suspended from the university following accusations and a subsequent finding that he committed violations of the university's Code of Conduct for sexual harassment against a fellow student and conduct inconsistent with the university goals and values. Pacheco sued St. Mary's, as well as two members of the St. Mary's Police Department, Officer Apolonia Vargara and Officer Francisco Osuna, alleging that St. Mary's procedures in investigating and disciplining students "discriminates against men who are accused of sexual misconduct on the basis of their sex" and are "fundamentally unfair." Compl. 1, ECF No. 1. Pacheco's complaint raises claims for breach of contract, violation of Title IX of the Education Amendments Act of 1972,1 negligence, violation of the Fifth and Fourteenth Amendments to the United States Constitution, and for declaratory relief under 22 U.S.C. § 2201.

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Defendant St. Mary's and defendants Osuna and Vargara separately moved for summary judgment. ECF Nos. 20 & 21. Before the Court are defendants' summary judgment motions, plaintiff's respective response, ECF No. 25, and defendants' joint reply, ECF No. 29. Also before the Court is defendant's joint motion to exclude plaintiff's summary judgment evidence as irrelevant pursuant to Rule 402 of the Federal Rules of Evidence. ECF No. 30. Plaintiff did not respond to the motion to exclude. For the reasons articulated below, the Court finds that the motion to exclude should be DENIED, and the motions for summary judgment should be GRANTED.

II. BACKGROUND

On the night of May 2, 2014, Alfonso Pacheco, a senior male student, took complainant, a junior female student, to the Kappa Sigma formal, which was held at a bar in downtown San Antonio called the Cadillac Bar. Pacheco and the complainant consumed alcohol prior to and during the formal. The two returned to campus, along with four other students, in the early morning hours—approximately 1:30 a.m. The other students in the car were Brian Zavala, Crystal Zapata, Mia Silva, Christopher Trevino, and Jamie De Los Santos (the driver). According to the others, Pacheco and the complainant were "making out" and exchanging sexually explicit language regarding acts they wanted to perform on each other. When the car arrived at campus, Trevino, Pacheco, and the complainant exited for the Chaminade Residence Hall. Pacheco and the complainant went upstairs to Pacheco's room on the second floor.

Across the hallway from Pacheco's room, Azalea Griego and Fabian Hernandez were watching movies. Pacheco apparently was having trouble unlocking the door to his room due to being highly intoxicated—he was trying to open his dorm room with his mailbox key. The complainant, who was familiar with Griego, asked Hernandez if he would help Pacheco open the door. Hernandez helped Pacheco open the door and deliberately switched the locking mechanism to remain

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unlocked. Pacheco entered the room and unbuckled his pants, telling Hernandez "It's ok bro, I have protection." Pacheco showed Hernandez that he had a condom. Griego asked the complainant if she needed to be taken to her dorm room, but complainant responded "No, I need you to take me to where Pattie's [a sorority sister] at." Trevino returned and told Hernandez and Griego that he would handle the situation. Griego and Hernandez went back to their room. Trevino took complainant and Pacheco into Pacheco's room.

Griego called Pattie—Patricia Escobedo—to tell her about the situation. Escobedo said that she knew Pacheco and that she trusted him. Griego and Hernandez then went to the laundry room, and Hernandez told Griego that Pacheco had showed him a condom saying "I have protection." Griego said she was going to call Pattie. They returned from the laundry room and listened to through the door of Pacheco's room. Griego called spoke to Pattie, telling her that Pacheco had unbuckled his pants and produced a condom, Pattie told her to "get [the complainant] out of there" and to bring the complainant to Pattie's room.

Griego and Hernandez knocked on Pacheco's door, but knew the door was unlocked from when Hernandez had helped Pacheco open his door. They the heard bed-spring squeak, a thump, and plaintiff yell "turn around." Griego and Hernandez opened the door and entered the room. Pacheco was standing with his pants and underwear around his ankles, attempting to remove the complainant's underwear. She was lying motionless, face-down with her legs off the side of the bed and her dress pulled over her thighs. Pacheco had an erection. Griego believed the complainant was unconscious and pushed Pacheco out of the way. Hernandez carried the complainant out of the room. She was mostly mumbling unintelligibly, but Hernandez heard her say something like "I'm so embarrassed."

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Griego and Hernandez took complainant to Pattie's room in John Donohoo Hall. After Pattie returned, she spoke with Griego and attempted to call a sorority advisor. Pattie got no answer. She then called the University Police Department to report the incident. Officers Apolonia Vargara and Francisco Osuna took the call and responded to John Donohoo Hall. The officers were joined by Patricia Lathen, St. Mary's Director on Duty, who was present while the officers spoke with Pattie and Griego. The officers were not able to speak with complainant due to her level of intoxication. Griego and Pattie informed them that the complainant's belongings were still in Pacheco's room.

Officers Vargara and Osuna, accompanied by Director Lathen, went to Pacheco's room in Chaminade Hall. Pacheco answered the door, and the officers noted the smell of alcohol. Pacheco appeared intoxicated and there was vomit on the floor, sink, and cabinets of the room. They asked if anyone had been in the room that evening, which Pacheco denied. When asked about a female shoe visible on the floor, Pacheco said it belonged to him. Officer Vargara noticed the complainant's purse under Pacheco's bed. When asked who the purse belonged to, Pacheco admitted that it belonged to the complainant and that she had been in his room but left because she was tired. The officers gave Pacheco clothing to wear, placed him in handcuffs, and arrested him. They escorted him out of the dormitory, down a flight of stairs, and to the police station. Pacheco was apparently able to walk under his own power.

At the police station, Pacheco was Mirandized and agreed to speak with the police. He said he had invited the complainant out on a date, that they had been drinking at the Cadillac Bar, and that they returned to the university that night. However, Pacheco claimed that the complainant wanted to go back to her dorm because she was tired, and that Pacheco told her to go to her room because she was too intoxicated. After the interview with police, Pacheco was transported to the

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magistrate's office for criminal charges of Attempted 3rd Degree Sexual Assault, Texas Penal Code §§ 15.01, 22.011. Those charges were referred to the Bexar County District Attorney. While at the Bexar County Jail, Pacheco was given notice of a temporary suspension excluding Pacheco from all university facilities, property, and events for the duration of the suspension.

The next morning, May 3, 2014, the complainant was interviewed by Captain Jeff Earle. The complainant remembered having a drink before the formal, and two margaritas at Cadillac Bar. According to her statement, the last thing complainant remembered at Cadillac Bar was line dancing and sitting down at a table. The next thing she remembered was being woken up in Pattie's dorm room. She apparently did not remember how she got there or what had happened in Pacheco's room. After speaking with Captain Earle, the complainant spoke with Tim Bessler, Dean of Students at St. Mary's University. Bessler told her that "everything would be okay" and that she had "done nothing wrong." He explained that the university would respond by selecting a panel to investigate the matter, and that any resulting charges would fall under Title IX. If the investigation found sufficient evidence to support formal charges for a violation of university policy, Pacheco would be charged and have the right to a disciplinary hearing to determine whether he was responsible for the charges.

The grievance procedure regarding violations of the St. Mary's Code of Conduct consists of three phases. First, is the investigation phase. According to the Student Handbook, formal investigations may be conducted to resolve factual disputes. A fact-finding panel may consist of no more than three persons from the university. In appointing the panel, a supervisor must state the terms and conditions of the investigation. The panel has no authority to make recommendations or impose final actions. Rather, the panel presents facts to the supervisor, and the supervisor determines the proper disposition based on a hearing.

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The second phase is this hearing phase. The procedures observed in the hearing are as follows:

i. The hearing will be conducted in private, Indications of irresponsible discussion of the grievance outside of the formal hearing may become the basis for allegations that due process has been violated. All parties to the hearing are cautioned against irresponsible discussion. The parties will make no public statements about the case during the course of the hearing.
ii. During the proceedings, all parties will be permitted to have an advisor present. All parties to the grievance will have the right to obtain witnesses and present evidence. The University will cooperate with
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