Ross v. Univ. of Tulsa

• Decision Date: 15 April 2016
• Docket Number: Case No. 14–CV–484–TCK–PJC
• Citation: 180 F.Supp.3d 951
• Parties: Abigail Ross, Plaintiff, v. University of Tulsa, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

180 F.Supp.3d 951

Abigail Ross, Plaintiff,

v.University of Tulsa, Defendant.

Case No. 14–CV–484–TCK–PJC

United States District Court, N.D. Oklahoma.

Signed April 15, 2016

John Spencer Bryan, Steven James Terrill, Bryan & Terrill Law, PLLC, Tulsa, OK, John Clune, Hutchinson Black and Cook LLC, Boulder, CO, for Plaintiff.

Amy Nicole Bennett, John David Lackey, John Richard Paul, Paul & Lackey PC, J. Patrick Cremin, Johnathan Louis Rogers, Hall Estill Hardwick Gable Golden & Nelson, Tulsa, OK, for Defendant.

OPINION AND ORDER¹

TERENCE C. KERN, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant's Motion for Summary Judgment on all remaining claims (Doc. 95). For reasons explained below, the motion is granted.

I. Claims for Relief

While a sophomore at the University of Tulsa (“TU”), Plaintiff Abigail Ross (“Ross”) reported to the Tulsa Police Department (“TPD”) and the TU Dean of Students, Yolanda Taylor (“Taylor”), that TU student Patrick Swilling, Jr. (“Swilling”) raped her on the night of January 27, 2014. Swilling was a member of the TU men's basketball team. TU Campus Police (“TUCP”)² conducted an investigation, and Taylor held a student conduct hearing. Taylor found insufficient evidence that Swilling had violated TU policies prohibiting sexual assault. Subsequently, the Tulsa County District Attorney's office elected not to file criminal charges against Swilling. Ross left TU mid-semester in 2014. TU permitted Swilling to remain on campus and re-enroll the next year.

Ross filed this civil suit seeking damages from TU under Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681(a) (“Title IX”) and Oklahoma common law. Ross asserted six claims for relief: (1) violation of Title IX based on TU's deliberate indifference to prior accusations against Swilling; (2) violation of Title IX based on TU's deliberate indifference to Ross's own complaint against Swilling; (3) negligence per se based on violation of Title IX regulations; (4) negligent failure to protect Ross from sexual assault by Swilling; (5) negligent supervision of Swilling; and (6) intentional infliction of emotional distress (“IIED”). On July 2, 2015, the Court dismissed Ross's negligence per se claim. TU moved for summary judgment on all remaining claims.

II. Relevant Policies

A. Dear Colleague Letter

On April 4, 2011, the United States Department of Education Office of Civil Rights (“OCR”) issued a nineteen-page letter known as the “Dear Colleague Letter” (“DCL”). This letter explains that “[s]exual harassment of students, including sexual violence, is a form of sex discrimination prohibited by Title IX.” (DCL, Ex. 9 to Pl.'s Resp. to Mot. for Summ. J., at 1.) The DCL was prompted by “deeply troubling” statistics of sexual violence on college campuses and was aimed at “ensuring that all students feel safe in their school, so that they have the opportunity to benefit fully from the school's programs and activities.” (Id. at 2.)

The DCL supplements the OCR's Revised Sexual Harassment Guidance published in 2001 and provides “additional guidance and practical examples regarding the Title IX requirements as they relate to sexual violence.” (Id. ) With respect to a college's investigation, the DCL explains that “[r]egardless of whether a harassed student, his or her parent, or a third party files a complaint under the school's grievance procedures ... a school that knows, or reasonably should know, about possible harassment must promptly investigate to determine what occurred....” (Id. at 4.) With respect to a college's hearing process, the DCL encourages a preponderance of the evidence standard and discourages allowing students to personally question each other. The DCL is silent as to a crucial issue in this case—whether the decisionmaker should consider prior allegations of sexual violence against the alleged perpetrator that do not result in a conviction or other finding of responsibility. However, the DCL does provide that “prior complaints” against an accused student should be considered in deciding whether and how to proceed when a subsequent victim of that student requests anonymity. (Id. at 5.)

B. TU Policies

TU's general policy governing procedures for all student conduct hearings (“General Procedures”) provides:

3. Information regarding a prior complaint against the accused student that did not result in a finding of responsibility shall not be admissible at the proceedings.

4. A finding of no responsibility or partially/fully responsible shall be based on the information presented at the proceeding.

5. The University of Tulsa may designate legal counsel to advise the panel or the Dean as to their conduct of the proceedings against the accused student.

...

8. Formal rules of process, procedures, and/or technical rules of evidence, such as are applied in criminal or civil court are not used in this Code's proceedings.

(Ex. 8 to Pl.'s Resp. to Mot. for Summ. J.) The General Procedures can be trumped where specific policies allegedly violated “carry their own procedures.” (Id. at Art. II.D. (emphasis added).)

TU has a specific policy governing sexual violence (“Sexual Violence Policy”), which was revised after issuance of the DCL. It provides:

Because the University stands against [sexual violence] and intends to be in compliance with Title IX, the University will take prompt, decisive action to: investigate allegations of sexual violence; initiate the disciplinary process if appropriate, and issue appropriate sanctions against any student found responsible for acts of sexual violence whether the behavior occurred on campus or off campus.

(Ex. 21 to Def.'s Mot. for Summ. J.) The policy provides instructions for reporting sexual violence, stating that “[s]tudents who are the recipients of sexual violence are encouraged to report the incident to appropriate University officials such as Housing staff members, Campus Security, a faculty member, and Health Center and Counseling Center staff and to do so immediately.” (Id. (emphasis added).)

It also sets forth “Courses of Action,” which include follow-up medical assistance, counseling, filing a university complaint, and assistance in filing criminal charges. The section entitled “Filing a University Complaint” largely tracks the DCL and provides:

C. Filing a University Complaint: Sexual violence constitutes a violation of University policy. The University will inform and obtain consent from the complainant before beginning an investigation. By filing a complaint with the Dean/Associate Dean of Students, complainants will have their complaints investigated by the Dean of Students. If the Dean finds there is good reason to proceed, the complaint will have access to the provisions of the University Student Code of Conduct. Most investigations would be expected to be completed within 60 days from the date of the original complaint.

If the complainant requests confidentiality or asks that the complaint not be pursued, the University will take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or the request not to pursue an investigation. If the complainant insists that his or her name or other identifiable information not be disclosed to the alleged perpetrator, the complainant would be informed that the University's ability to respond may be limited. The complainant will also be reminded that Title IX prohibits retaliation and that University officials will not only take steps to prevent retaliation but also take strong responsive action if it occurs.

After all such advice if the complainant continues to ask that his or her name or other identifiable information not be revealed, the University will evaluate that request in the context of its responsibility to provide a safe and nondiscriminatory environment for all students. This includes considering such factors as: the seriousness of the alleged harassment; the complainant's age; whether there have been other harassment complaints against the same individual ; and the alleged harasser's rights to receive information about the allegations if the information is maintained as an “educational record” under FERPA.

...

If the alleged perpetrator is a TU student, the complainant may choose to have the complaint heard by the University Student Conduct Board or by the Dean/Associate Dean of Students. Mediation is not an option to resolve a complaint of sexual violence. Among the provisions of either process are the following:

1. Both parties will be able to present witnesses and evidence;

2. Attorneys will not be permitted for either party;

3. Neither party will be allowed to question or cross examine the other;

4. Both parties will have the opportunity to appeal;

5. The past sexual history of the complainant and alleged perpetrator will be deemed irrelevant to the proceeding process except as that history may be related directly to the incident being heard ;³ and

6. A decision will be based on the standard that it is more likely than not that the alleged behavior occurred, sometimes referred to as the preponderance of the evidence.

(Id. (emphases added).)

III. Summary Judgment Standard

Summary judgment is proper only if “there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the burden of showing that no genuine issue of material fact exists. See Zamora v. Elite Logistics, Inc., 449 F.3d 1106, 1112 (10th Cir.2006). The Court resolves all factual disputes and draws all reasonable inferences in favor of the non-moving party. Id. However, the party seeking to overcome a motion for summary judgment may not “rest on mere allegations” in his complaint but must “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The party seeking to overcome a motion for summary judgment must also make a showing sufficient to establish the existence of those elements essential to that party...