Rossley v. Drake Univ.

Decision Date12 October 2018
Docket NumberNo. 4:16-cv-00623-RGE,4:16-cv-00623-RGE
Citation342 F.Supp.3d 904
Parties Thomas ROSSLEY, Jr., Plaintiff, v. DRAKE UNIVERSITY and Drake University Board of Trustees, Defendants.
CourtU.S. District Court — Southern District of Iowa

David Harris Goldman, Phillip F. Van Liew, Babich Goldman, P.C., Des Moines, IA, Andrew T. Miltenberg, Diana R. Warshow, Pro Hac Vice, Philip Arwood Byler, Pro Hac Vice, Nesenoff & Miltenberg, LLP, New York, NY, for Plaintiff.

Frances M. Haas, Nyemaster Goode PC, Cedar Rapids, IA, Frank B. Harty, Mary E. Funk, Nyemaster Goode PC, Des Moines, IA, for Defendants.


Rebecca Goodgame Ebinger, United States District Judge


Plaintiff Thomas Rossley, Jr. brings this suit against Defendants Drake University and Drake University Board of Trustees, challenging Defendants' Title IX investigation that concluded Plaintiff sexually assaulted a female student, and contesting Defendants' failure to investigate his own sexual assault allegations. Plaintiff asserts Defendants violated both Title IX of the Education Amendments Act of 1972 and the Americans with Disabilities Act (ADA). Plaintiff also brings state law claims alleging breach of contract, breach of the covenant of good faith and fair dealing, and estoppel.

Defendants move for summary judgment on all of Plaintiff's claims, asserting: 1) Plaintiff has not identified any genuine issues of material fact showing gender was a motivating factor in the disciplinary process; 2) Plaintiff did not request a reasonable accommodation and thus cannot bring an ADA claim; and 3) Plaintiff has not shown Drake violated any promise or contractual provisions contained in its Code of Conduct or Sexual Misconduct Policy. The Court grants Defendants' motion for summary judgment as to Plaintiff's Title IX claim regarding Plaintiff's erroneous outcome and deliberate indifference theories, but denies Defendants' motion for summary judgment on Plaintiff's Title IX claim regarding Plaintiff's selective enforcement theory. The Court grants Defendants' motion for summary judgment as to Plaintiff's Americans with Disabilities Act claim. As for Plaintiff's state law claims, the Court first determines Plaintiff's estoppel and breach of covenant of good faith and fair dealing claims are subsumed by his breach of contract claim. The Court denies Defendants' motion for summary judgment on some but not all of Plaintiff's alleged breaches of contract. The Court also dismisses Plaintiff's claim of negligent infliction of emotional distress because Plaintiff does not resist Defendants' motion for summary judgment on this claim.


The following facts are either uncontested or, if contested, viewed in the light most favorable to Plaintiff. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Munz v. Michael , 28 F.3d 795, 796 (8th Cir. 1994).

A. Drake's Code of Conduct & Sexual Misconduct Policy

Two documents govern sexual assault investigations and discipline at Drake: the Code of Student Conduct ("the Code") and the Sexual and Interpersonal Misconduct Policy and Notification of Complainant's Rights ("the Policy"). Defs.' Suppl. App. Supp. Defs.' Mot. Summ. J. at APP. 099–132, 133–51, ECF No. 137. The Code addresses various forms of academic and non-academic misconduct. Id. at APP. 102–03. The Policy specifically addresses Drake's "policies and procedures related to [s]exual and [i]nterpersonal [m]isconduct" and is meant to ensure those policies are "interpreted and applied consistently with Title ... IX ... and other applicable law." Id. at APP. 133. Additionally, the Policy is "intended to notify victims/survivors of their rights and resources that are available to them when [s]exual or [i]nterpersonal [m]isconduct occurs." Id.

"Sexual assault" is defined in the Code and Policy 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." Id. at APP. 111, 134. "The term ‘consent,’ in the context of sexual activity, means by clear, unambiguous action, agreeing, giving permission or saying yes to sexual activity with someone else ... an individual cannot give consent if incapacitated from doing so due to the influence of drugs, alcohol, or other condition." Id. at APP. 105; see also id. at APP. 134. Neither the Code nor the Policy defines "incapacitation." When there is no consent, "[s]exual intercourse (vaginal, anal, oral)" and "[o]ral sex," among other conduct, constitute sexual assault. Id. at APP. 111–12, 134. Additionally, "[e]ngaging in sexual activity with a person who is unable to provide consent due to the influence of drugs, alcohol, or other condition" is considered sexual assault. Id. The Code states Drake students "acknowledge[ ] the right of the University to initiate disciplinary procedures when an allegation or a complaint of non-academic misconduct is made and to impose disciplinary sanctions when it has been determined that non-academic misconduct has occurred." Id. at APP. 103. Such discipline may include expulsion from the University. Id.

In cases of alleged non-academic misconduct, "[a]ny student, student organization, faculty member or staff member may initiate a complaint against a student or student organization ... by contacting the Dean of Students office or Title IX Coordinator in the case of alleged sexual misconduct." Id. at APP. 116. "Alternatively, the Dean of Students office may initiate a complaint on his or her own initiative, in which case the Dean/designee will be considered the complainant." Id. Under the Policy, "[a]ny University employee who is not statutorily prohibited from doing so ... who becomes aware of [s]exual or [i]nterpersonal [m]isconduct should bring the information to the Title IX Coordinator/Equity and Inclusion Policy Specialist, Dean of Students, or the Director of Human Resources." Id. at APP. 138.

Following a report of alleged sexual misconduct, the Dean of Students will conduct an investigation into the complaint. Id. at APP. 116–17.1 The individuals responsible for coordinating and investigating the complaint "receive special training or have experience in (1) handling complaints of sexual and/or interpersonal misconduct; and (2) applicable confidentiality requirements." Id. at APP. 131. Both the complainant and respondent are advised they may have a personal advisor present "at any stage of the process." Id. at APP. 138. Following the investigation, the Dean of Students or his designee may initiate formal disciplinary proceedings if he has a "reasonable belief that the charge ... can be proven by a preponderance of the evidence." Id. at APP. 117; see also id. at APP. 119–20 (setting forth disciplinary hearing process). "A preponderance of the evidence exists when it is more likely than not, or the greater weight of the evidence suggests, a violation occurred." Id. at APP. 106.

At the disciplinary hearing, a hearing officer must determine "(1) whether a preponderance of the evidence establishes the accused student engaged in non-academic misconduct; and (2) recommended disciplinary sanction(s), if any." Id. at APP. 121. All of the University's evidence against the accused will be presented by the Dean of Students or his designee. Id. Each party's personal representative may only provide counsel and advice and is otherwise prohibited from "advocat[ing] or tak[ing] an active role in the hearing." Id. at APP. 121–22. However, a personal representative who is an attorney "may make an opening statement, a closing statement and may present written questions to be read by the hearing officer to a witness." Id. at APP. 122. The hearing officer is not required to read any written questions he determines "to be inappropriate or irrelevant." Id.

During the hearing, "[t]he accused, the complainant and the Dean/designee may call witnesses, conduct cross-examination, and may answer any evidence presented by others through rebuttal." Id. Following the hearing, the hearing officer will provide a written decision to the complainant, respondent, and Dean of Students detailing the hearing officer's decision and any associated sanctions. Id. at APP. 123.

If a respondent is found to be responsible for sexual misconduct, the respondent, complainant, or the Dean of Students may appeal the decision or sanctions in writing. Id. Following notice of an appeal, the parties can submit a written response. Id. at APP. 123–24. A party may request a hearing before the appeals council. Id. at APP. 125. The appeals council will then "meet with the appealing and responding parties (and their personal representatives, if any)." Id. at APP. 124–25. "[A]n appeal is limited to a review of the record from the disciplinary hearing, the notice(s) of appeal and the response(s)." Id. at APP. 124. After reviewing the applicable materials, the appeals council may dismiss the appeal, affirm the hearing officer's determination, or reverse the previous decision. Id. at APP. 125. If the President concurs with the council's findings, "the Dean/designee shall have the authority to impose the sanction of expulsion." Id. at APP. 126. "Only the President of the University may recommend readmission of a student who has been expelled." Id.

B. Factual Background

Plaintiff is a former student of Defendant Drake University, a private university located in Des Moines, Iowa. Am. Compl. ¶¶ 5–6, ECF No. 46; Pl.'s Resp. Defs.' Statement Undisputed Material Facts ¶¶ 1–2, ECF No. 111-2. Defendant Drake University Board of Trustees is Drake's governing body. ECF No. 46 ¶ 7; ECF No. 111-2 ¶ 2.

In the fall of 2015, Jerry Parker was the acting Dean of Students. ECF No. 111-2 ¶ 3; Defs.' App. Supp. Defs.' Mot. Summ. J. at APP. 041, Parker Dep. 14:1–22, ECF No. 103. In the spring of 2016, Parker was the Associate Dean of Students, acting as the...

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