Rossley v. Drake Univ.

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: WOLLMAN, Circuit Judge.
• Citation: Rossley v. Drake Univ., 979 F.3d 1184 (8th Cir. 2020)
• Decision Date: 05 November 2020
• Docket Number: No. 18-3258,18-3258
• Parties: Thomas ROSSLEY, Jr. Plaintiff - Appellee v. DRAKE UNIVERSITY, et al. Defendant - Appellant

979 F.3d 1184

Thomas ROSSLEY, Jr. Plaintiff - Appellee

v.DRAKE UNIVERSITY, et al. Defendant - Appellant

No. 18-3258

United States Court of Appeals, Eighth Circuit.

Filed: November 5, 2020

Submitted: November 12, 2019

Counsel who presented argument on behalf of the appellant and appeared on the brief was Philip Arwood Byler, of New York, NY. The following attorney(s) appeared on the appellant brief; David Harris Goldman, of Des Moines, IA., Andrew Miltenberg, of New York, NY.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Frances M. Haas, of Cedar Rapids, IA. The following attorney(s) appeared on the appellee brief; Frank Boyd Harty, of Des Moines, IA., Mary Elizabeth Funk, of Des Moines, IA.

Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges.

WOLLMAN, Circuit Judge.

Drake University and its Board of Trustees (Drake) expelled student Thomas Rossley, Jr. after university officials found that he had sexually assaulted a female student (hereinafter referred to as Jane Doe or Doe). Rossley sued Drake in an eight-count complaint, which alleged, as relevant here, violations of Title IX and the Americans with Disabilities (ADA), as well as claims related to breach of contract. The district court¹ granted summary judgment in favor of Drake on all but Rossley's Title IX claim based on a selective enforcement theory and his breach of contract claim based on Drake's failure to investigate his allegation of sexual misconduct on Doe's part. Rossley v. Drake Univ., 342 F. Supp. 3d 904 (S.D. Iowa 2018). Following the district court's ruling, the parties stipulated to the dismissal without prejudice of those two claims. On appeal, Rossley challenges the district court's grant of summary judgment on his Title IX claim based on an erroneous outcome theory, his ADA claim, and his breach of implied duty of good faith and promissory estoppel claims.

We address first whether we have jurisdiction to review Rossley's appeal in light of the stipulated dismissal of the two above-described claims. We have "jurisdiction of appeals from all final decisions of the district courts." 28 U.S.C. § 1291 ; see Ruppert v. Principal Life Ins. Co., 705 F.3d 839, 842-43 (8th Cir. 2013). When a district court dismisses a claim "without prejudice pursuant to the parties' stipulation," there is "no final decision" for purposes of appellate jurisdiction. W. Am. Ins. Co. v. RLI Ins. Co., 698 F.3d 1069, 1071 n.1 (8th Cir. 2012). During oral argument before us, however, Rossley agreed to dismiss these claims with prejudice. We accordingly conclude that we have jurisdiction to consider the appeal. See Ruppert, 705 F.3d at 843 ("[U]nless the appellant's claims are unequivocally dismissed with prejudice, there is no final appealable decision.").

We review de novo the district court's grant of summary judgment dismissing Rossley's Title IX, ADA, breach of implied duty of good faith, and promissory estoppel claims. See Quinn v. St. Louis Cty., 653 F.3d 745, 750 (8th Cir. 2011) (standard of review). Summary judgment is appropriate if, when the record is viewed in the light most favorable to the nonmoving party, there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). "An issue of fact is genuine when ‘a reasonable jury could return a verdict for the nonmoving party’ on the question." Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "We may affirm the district court's grant of summary judgment on any ground supported by the record." Id.

Drake, a private university in Des Moines, Iowa, receives federal funding. Two documents govern Drake's sexual assault investigations and disciplinary hearings: the Code of Student Conduct (Code) and the Sexual and Interpersonal Misconduct Policy and Notification of Complainant's Rights (Policy). The Code proscribes certain forms of misconduct, including sexual misconduct. It states that Drake may "take whatever disciplinary action is appropriate (up to and including expulsion from the University) to protect the safety and well-being of students." The Policy addresses Drake's policies and procedures relating to sexual and interpersonal misconduct and is "intended to ensure that [these policies] are interpreted and applied consistently with Title ... IX." The Policy also "notif[ies] victims/survivors of their rights and resources that are available to them" and "explains the investigatory and disciplinary procedures ... and possible sanctions" Drake may impose.

The Code and Policy define sexual assault as "an extreme form of sexual misconduct ranging from forcible rape to nonphysical forms of pressure that compel individuals to engage in sexual activity against their will." Sexual assault includes "[e]ngaging in sexual activity with a person who is unable to provide consent due to the influence of drugs, alcohol, or other condition[s]." The Policy defines "consent" in the context of sexual activity as "clear, unambiguous action, agreeing, giving permission or saying ‘yes’ to sexual activity with someone else." The Policy states that "an individual cannot give consent if incapacitated from doing so due to the influence of ... alcohol."

The Code provides that any student or staff member may file a complaint against a student suspected of sexual misconduct by contacting the Dean of Students Office or the Title IX Coordinator. The Dean of Students is assigned the responsibility of overseeing the investigation of the complaint. The individuals who coordinate and investigate the complaint shall have "received special training or have experience in (1) handling complaints of sexual and/or interpersonal misconduct; and (2) applicable confidentiality requirements." Both the complainant and the accused student are advised that they may have a "personal advisor" present "at any stage of the process," including at "any meeting or hearing." Formal disciplinary proceedings may be initiated if the Dean forms a "reasonable belief that the charge ... can be proven by a preponderance of the evidence."

The hearing officer at the disciplinary hearing "shall determine (1) whether a preponderance of the evidence establishes the accused student engaged in ... misconduct; and (2) recommended disciplinary sanction(s), if any." "The accused, the complainant and Dean/designee may call witnesses, conduct cross-examination, and may answer any evidence presented by others through rebuttal." The accused's personal representative's sole role is to "provide counsel and advice." An attorney personal representative may "make an opening statement, a closing argument and may present written questions to be read by the hearing officer to a witness." The complainant and accused may cross-examine witnesses, but may not cross-examine one another. Rather, the hearing officer will pose to the adverse party the questions that each party has submitted, as well as asking such questions as the hearing officer may decide to pose at any time. The hearing officer will provide to all parties a post-hearing written opinion.

The accused student may appeal any adverse finding and proposed sanction by requesting a hearing before a three-member appeals panel, at which the appeals panel will "meet with the appealing and responding parties (and their personal representatives, if any) for the purpose of hearing argument." If the appeals panel determines that none of the enumerated grounds for an appeal has been shown, the appeal is dismissed and the hearing officer's decision becomes final. If the appeals panel finds a showing of grounds for an appeal, the panel may affirm or reverse the hearing officer's decision or modify the sanction imposed. If the President of Drake concurs with the panel's findings, the Dean "shall have the authority to impose the sanction of expulsion," and only the President "may recommend readmission."

The district court's comprehensive opinion sets forth a detailed account of the interactions between Rossley and Jane Doe that resulted in the expulsion from Drake that led to this appeal. Our summary of those events follows.

Jane Doe, a female student at Drake, contacted Drake Public Safety on October 9, 2015, to report that Rossley had sexually assaulted her earlier that morning. She reported that she had consumed a large amount of alcohol, "blacked out" for an "unknown amount of time," and next remembered being on a bean bag chair in Rossley's room, with Rossley being on top of and having intercourse with her. Drake Public Safety filed Doe's report with Gerald Parker, the acting Dean of Students. Rossley was sent a letter notifying him of the complaint of sexual misconduct and requiring him to attend a later-scheduled meeting regarding the complaint, to which he could "bring a personal representative." Because Dean Parker was ill at the time, Drake employed Mary Howell Sirna to serve as the lead investigator. Sirna had been a prosecutor for thirteen years, during which time she prosecuted sexual violence crimes and served as Iowa State University's interim Title IX coordinator. She had also received training on handling students' complaints of sexual assault. Sirna worked with similarly trained Tricia McKinney, Drake's Assistant Director of Public Safety, in conducting the investigation.

Sirna and McKinney interviewed Doe and Rossley separately on October 23, 2015. Rossley did not bring a personal representative with him to the meeting and admitted that he had not finished reading the email that informed him of his right to do so. Sirna questioned Rossley about the evening of October 8 and early morning of October 9. Sirna and McKinney interviewed twelve witnesses and collected documentary evidence during the course of their investigation. Sirna chose not to interview any additional witnesses, believing that their statements might be duplicative.

Dean...