Doe v. University of Chicago et al

Filing 76

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang on 9/20/2017: For the reasons stated in the Opinion, Defendant University of Chicago's motion 64 to dismiss is granted in part and denied in part. As currently interpreted (b ut must be confirmed in a position paper), the Title IX claims based on gender discrimination, selective enforcement, and retaliation (Counts 1-3) survive, as does the claim for intentional infliction of emotional distress (Count 5). But the delibera te indifference theory of liability under Title IX (part of Count 1), and the claims for promissory estoppel (Count 4) and negligent infliction of emotional distress (Count 5), are dismissed. As explained in the Opinion, the survival of Counts 1, 2, 3, and 5 depends on the interpretation of Amended Complaint paragraphs 46-48 to allege that Jeremy Inabinet intentionally encouraged Jane Doe to file a false complaint against John Doe, knowing that the complaint was false. John Doe must file a position paper, by 10/02/2017, either confirming that interpretation or explaining how the allegations should otherwise be read. The status hearing of 10/05/2017 remains as scheduled.Emailed notice(Chang, Edmond)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN DOE,
Plaintiff,
v.
THE UNIVERSITY OF CHICAGO,
Defendant.

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No. 16 C 08298
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
This case arises out of Plaintiff John Doe’s challenge to the University of
Chicago’s handling of sexual assault allegations brought against him by two female
students, Jane Roe and Jane Doe.1 In his Amended Complaint, John Doe claims
that the University violated Title IX of the Educational Amendments of 1972, 20
U.S.C. §1681, et seq. R. 50, Amended Complaint (Am. Cmplt.) ¶¶ 93-126. He also
brings state-law claims for promissory estoppel and for negligent and intentional
infliction of emotional distress.2 Am. Cmplt. ¶¶ 127-51. The University moves to
dismiss John Doe’s complaint in its entirety for failure to state a claim. R. 64, Def.’s
Motion to Dismiss.
For the reasons stated below, the University’s motion is granted as to Counts
4 (Promissory Estoppel), and 5 (Negligent Infliction of Emotional Distress). The
In light of the allegations of sexual assault and severe emotional distress, and the
relative youth of the individuals involved in the allegations, the parties have been
permitted to proceed under pseudonyms. See Doe v. Blue Cross & Blue Shield United of
Wisc., 112 F.3d 869, 872 (7th Cir. 1997).
2 This Court has subject matter jurisdiction over the Title IX claims under 28 U.S.C.
§ 1331, and over the state-law claims under 28 U.S.C. § 1367.
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Court also dismisses Count 1 insofar as it asserts a hostile-environment theory of
Title IX liability. The claims of gender discrimination and retaliation under Title IX
(Counts 1, 2, and 3) and the claim of intentional infliction of emotional distress
(Count 6) survive, albeit narrowly. As detailed in the Opinion, their survival is
contingent on a particular interpretation of key allegations in the Amended
Complaint, Am. Cmplt. ¶¶ 46-48, and Plaintiff must file a position paper confirming
that interpretation by the deadline set forth below.
I. Background
For purposes of this motion, the Court accepts as true the allegations in the
Amended Complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Documents
attached to a complaint are considered part of the complaint for all purposes. Fed.
R. Civ. P. 10(c).
A. Accusations by Jane Roe
In Spring 2014, Jane Roe, a female University of Chicago student, accused
John Doe of sexual assault. Am. Cmplt. ¶¶ 15, 20. The University convened a
disciplinary proceeding, which resulted in a finding that the preponderance of the
evidence did not support the allegations. Am. Cmplt., Exh. 2.3

The Amended Complaint states that the University “completely exonerated” John
Doe. R. 50, Am. Cmplt. ¶ 20. But a copy of the University’s formal announcement of the
proceeding’s result is attached as Exhibit 2 to the Amended Complaint, R. 50-2, Am.
Cmplt., Exh. 2, and the actual finding simply states that the University committee “found
that the preponderance of the evidence did not support” the allegation, id. at 1. The
announcement does not use the term “completely exonerated,” or any words to that effect.
When a complaint characterizes an exhibit in a certain way but the exhibit contradicts the
characterization, the exhibit trumps the allegation. Phillips v. Prudential Ins. Co. of
America, 714 F.3d 1017 (7th Cir. 2013).
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Despite the no-liability finding, in Fall 2014, Roe began to publicly accuse
John of sexual assault. She placed John’s name on a document called the “Hyde
Park List,” which purported to identify “people known to commit varying levels of
gender-based violence.” Am. Cmplt. ¶ 21. This list was distributed during student
orientation week and published online. Id. Roe also told members of the University
of Chicago community that John Doe was a “sexual predator,” and falsely told fellow
students that the University found John Doe “guilty” but failed to punish him. Id.
After the publication of the Hyde Park List, John Doe brought Jane Roe’s actions to
the attention of University employees who had been involved in the earlier
disciplinary process. Am. Cmplt. ¶ 22. In response, the University allegedly told
John Doe that the University’s confidentiality policies prohibited him from
personally refuting Jane Roe’s accusations. Id. The University also refused to
discipline Jane Roe. Id.
Roe continued to make the sexual-assault accusations in October 2014, when
she blogged that the University was forcing her to participate in a class “with the
person who sexually assaulted her.” Am. Cmplt. ¶ 23. Soon after that blog post, the
University removed John Doe, over his strenuous objections, from the physics lab
that he shared with Jane Roe. Am. Cmplt. ¶ 24.
Finally, in November 2014, John Doe’s adult sister responded (without John
Doe’s knowledge) to Roe’s Twitter comments about the alleged sexual assault. Am.
Cmplt. ¶ 26. Based on John Doe’s sister’s contact with Jane Doe, the University
threatened to discipline him for violation of a “No-Contact Directive” that was in

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place in connection with the earlier disciplinary proceeding. Am. Cmplt. ¶ 26; Am.
Cmplt. Exh. 2 (directing John Doe to refrain from contact with Jane Roe).
B. Accusations by Jane Doe
The Amended Complaint also details accusations of sexual assault by Jane
Doe, another female University of Chicago student. Am. Cmplt. ¶ 14. John Doe and
Jane Doe “hooked up” in September 2013, an encounter which Jane Doe described
on her Tumblr blog. Am. Cmplt. ¶¶ 27-28. According to the Amended Complaint, all
sexual contact between John and Jane Doe was consensual. Am. Cmplt. ¶ 29. John
Doe also alleges that this characterization is consistent with Jane Doe’s blog posts,
which describe the September 2013 encounter as “beautiful and sweet and all great
things” and stated that Jane wanted to pursue a romantic relationship with John
Doe in the months following the alleged assault. Id. at ¶ 51; Am. Cmplt., Exh. 3. By
November 2014, however, Jane Doe began to claim on her blog that she had been
sexually assaulted, and by December she had definitively identified John Doe as her
attacker. Am. Cmplt. ¶ 30. Jane Doe continued to repeat her accusations against
John Doe through Summer 2016. Am. Cmplt. ¶ 31.
Jane Doe’s allegations against John Doe came to a head in Spring 2016. At
the time, John Doe was the director of a student-performed theater program
(referred to in the complaint as “the Show” in order to protect John Doe’s identity).
Am. Cmplt. ¶ 33. In early May 2016, Jane Doe published a series of tweets and a
Facebook post criticizing the University for putting on a show “directed by the boy
who sexually assaulted me/many others on this campus.” Am. Cmplt. ¶ 36; Am.
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Cmplt. Exh. 3. The Facebook post identified the Show and John Doe as the subject
of Jane Doe’s criticism. Am. Cmplt. ¶ 37.4
C. The University’s Response
Upon learning about Jane Doe’s tweets, John Doe emailed a complaint to
several University officials. Am. Cmplt. ¶ 43-46; Am. Cmplt., Exh. 4. The complaint,
sent on May 5, 2016, characterized Jane Doe’s comments as “online sexual
harassment” and stated that the email constituted a formal Title IX complaint. Am.
Cmplt., Exh. 4. Jay Ellison, the University’s Dean of Students, referred the
complaint to Jeremy Inabinet, the Associate Dean for Disciplinary Affairs. Am.
Cmplt. ¶ 44.
While John Doe’s May 5 complaint was under review, Inabinet met with Jane
Doe. Am. Cmplt. ¶ 46. In a crucial allegation, the Amended Complaint asserts that
Inabinet “intentionally and/or negligently encouraged and ‘approved’ Jane Doe’s
filing of a false and retaliatory” Title IX complaint against John Doe. Id. Inabinet
“encouraged” Jane to file her complaint by (1) advising her that her complaint
would be adjudicated under the University’s 2015 Student Manual, which had a
more stringent sexual assault standard than the manual in place in 2013; (2) failing
The Amended Complaint asserts that Jane Doe’s tweets were meant to incite fellow
students to “knock[] down the doors” of the theater in which John was directing the Show.
Am. Cmplt. ¶ 39. The full context of the statement makes it unlikely that the tweet urged
students to literally “knock down the doors” of the theater. The full context is contained in
Exhibit 3 to the Amended Complaint: in response to a comment correcting Jane Doe’s
initial misattribution of the theater sponsoring John Doe’s show, Jane Doe replied “now I
know who to picket.” She followed up by correcting her mistake: “it’s actually TAPS, not
UT, so don’t go knocking down the doors of the wrong precious theater bbs.” R. 50-3, Pl.
Exh. 3. When viewed in that context, the tweet is not necessarily an incitement to literally
and physically “knock down the doors” of the theater.
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to tell Jane Doe that the University was obligated to proceed on John Doe’s May 5
complaint against her; and (3) failing to advise her that her own complaint would
subject her to disciplinary proceedings. Am. Cmplt. ¶ 48.
In late May, Inabinet informed John Doe, via email, that the University
would not proceed on John Doe’s May 5 complaint. Am. Cmplt. ¶ 49 & Exh. 5. The
email stated that Inabinet found “no evident violation” of the University’s Policy on
Harassment, Discrimination, and Sexual Misconduct. Am. Cmplt., Exh. 5. Instead,
Inabinet suggested that Jane Doe’s behavior might violate other University policies
or be the basis of a defamation lawsuit. Id. Inabinet also referred the matter to
Assistant Dean Stephen Scott. Id.
Communications between Inabinet and John Doe continued to sour
throughout the summer. On August 5, 2016, John Doe and Inabinet discussed the
two dueling complaints on a phone call. Am. Cmplt. ¶ 56. During the call, Inabinet
told John that the University would not consider Jane Doe’s June 2016 complaint to
have been filed in retaliation for John Doe’s May complaint. Am. Cmplt. ¶ 50.
Inabinet reiterated that the 2015 Manual’s definition of sexual misconduct would be
applied Jane Doe’s complaint, and stated that John Doe would not be allowed to
raise his complaints of harassment in response to Jane Doe’s complaint. Am. Cmplt.
¶ 50. During the phone call, John Doe repeatedly asked Inabinet if he would have
investigated the conduct exhibited by Jane Doe if it had been perpetrated by a male
student against a female student. Id. Inabinet refused to give John a direct answer.
Id.

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After the August 5 phone call, John wrote to Inabinet to ask UC to change its
position. Am. Cmplt. ¶ 51. As proof that Jane Doe’s allegations were false, John Doe
provided Inabinet with Jane Doe’s blog posts from Fall 2013. Id. As discussed above,
these blog posts tended to undermine Jane Doe’s claim that John Doe had sexually
assaulted her. Id.; see also Am. Cmplt., Exh. 3. Inabinet did not dismiss Jane Doe’s
complaint or change any of the University’s positions after receiving this evidence.
Am. Cmplt. ¶¶ 51-52. In light of the rapidly approaching deadline to respond to
Jane Doe’s complaint, John Doe filed this lawsuit. Am. Cmplt. ¶ 53.
II. Standard of Review
A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to
state a claim upon which relief may be granted. Hallinan v. Fraternal Order of
Police Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[W]hen ruling on a
defendant’s motion to dismiss, a judge must accept as true all of the factual
allegations contained in the complaint.” Erickson, 551 U.S. at 94. A “complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
v. Twombly, 550 U.S. 544, 570 (2007)). These allegations “must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555. And the
allegations that are entitled to the assumption of truth are those that are factual,
rather than mere legal conclusions. Iqbal, 556 U.S. at 679.

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III. Analysis
A. Count 1 – Title IX Hostile Environment and/or Discrimination
Count 1 outlines at least two5 different theories of recovery under Title IX.
See R. 69, Pl. Mem. Opp. at 3-4. First, John asserts that the University’s Title IX
disciplinary process was biased against him because of his male gender. Am. Cmplt.
¶¶ 99-111. For purposes of discussion, this aspect of Count 1 will be labelled the
general-discrimination claim; it overlaps with Count 3’s selective-enforcement
claim. Second, Count 1 alleges that the University is liable on a deliberate
indifference theory of Title IX, specifically for failing to prevent sexual harassment
of John Doe by Jane Doe and Jane Roe. AC ¶ 113; Pl. Mem. Opp. at 8-9. The Court
addresses each theory separately.
1. Gender Discrimination
John Doe argues that the University discriminated against him because of
his gender. In particular, John Doe alleges that the University ignored his May 5
complaint because he was a male student complaining of harassment by female
students and that the University “rewarded and encouraged [ ] gender-based
harassment of Plaintiff” (presumably by encouraging Jane Doe to file her 2016
complaint). Pl. Mem. Opp. at 4. Thus, John Doe’s gender discrimination claim boils

The Amended Complaint appeared to claim that the University itself was
responsible for creating a hostile environment for male students. But John Doe does not
develop this argument and seems to have abandoned it in its brief. See R. 69, Pl. Mem. Opp.
at 8-12 (discussing only the University’s response to Jane Doe and Jane Roe’s conduct).
This was a sensible tact, because the Amended Complaint does not otherwise allege how
the University created a hostile environment for John Doe other than the allegations on the
response to the complaints against him.
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down to a contention that he was treated adversely in the Title IX disciplinary
process because he is male, and that Jane Doe, a female student, was treated better
because she was female. If true—and assuming that there were concrete factual
allegations describing the difference in treatment—this would be enough to make
out a claim of gender discrimination in violation of Title IX. See Yusuf v. Vassar
Coll., 35 F.3d 709, 715 (2d Cir. 1994). At the motion to dismiss stage, John Doe
must plead sufficient facts to make the inference of disparate treatment based on
gender “plausible.” See Iqbal, 556 U.S. at 678.
Although the Court ultimately concludes that one particular aspect of this
discrimination claim survives the dismissal motion, most of the allegations do not
adequately state a claim. For starters, the allegations about the general climate of
the University do not amount to a discrimination claim. Much of the Amended
Complaint is dedicated to facts purporting to show that the University favors
female sexual-misconduct complainants at the expense of male respondents because
of a desire to appease the United States Department of Education’s Office of Civil
Rights. See Am. Cmplt. ¶¶ 54-70. The Amended Complaint notes that the Office of
Civil Rights (which calls itself “OCR”) discusses sexual assault as a problem that
particularly affects women, and characterizes the policies suggested by OCR’s 2011
“Dear Colleague” Letter as “anti-male.” Am. Cmplt. ¶¶ 54-56. The Amended
Complaint also notes that in 2016 the University had been the subject of recent
Department of Education scrutiny for its handling of complaints by female students
against male students. Am. Cmplt. ¶ 58. John Doe also makes much of Inabinet’s

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affiliation with the Association of Title IX Administrators and the National Center
for Higher Education Risk Management. Am. Cmplt. ¶¶ 64-67. The Amended
Complaint characterizes these entities as anti-male, largely because they use
female pronouns for victims of sexual assault and male pronouns for the accused,
and because they advocate complainant-focused procedures for handling sexual
assault allegations. Am. Cmplt. ¶¶ 67-69.
Rounding off the attempt to portray the University as pervasively anti-male,
the Amended Complaint notes that the University has endorsed the Clothesline
Project, a project dedicated to breaking the silence about violence against women,
and the Red Flag Campaign, which seeks to raise awareness about sexual and
dating violence. Am. Cmplt. ¶¶ 70-72, 74-75. The University also sponsors a chapter
of the “Phoenix Survivor’s Alliance,” an organization dedicated to “encourag[ing] an
active dialogue on and an engagement with women[’]s and gender issues.” Am.
Cmplt. ¶ 73; Am. Cmplt., Exh. 11. The University also sponsored a showing of the
film “The Hunting Ground,” a documentary about campus sexual assault, which
some commentators have criticized for being inaccurate. Am. Cmplt. ¶ 75.
All of those high-level allegations do little to advance the actual gender
discrimination claim at issue in this case. With the conclusory characterizations (as
distinct from factual allegations) of “anti-male” bias set to the side, these allegations
do not plausibly allege anti-male bias. For example, the allegations concerning the
Department of Education at most raise the prospect that OCR believes that campus
sexual assault of women is a problem. The University’s adoption of positions
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recommended by the federal government does not in turn suggest that the
University did so because of gender bias—all it plausibly suggests is that the
University sought to comply with OCR’s recommendations for handling sexualassault

complaints.

Similarly,

the

gender-pronoun

allegations

about

the

organizations in which Inabinet is (or was) a member suggest only that both
organizations believe that women are more likely to be accusers of sexual violence
and men are more likely to be the accused. The Amended Complaint does not assert
otherwise, nor does any allegation in the Amended Complaint even imply otherwise.
And despite the Amended Complaint’s conclusory characterization of the
Clothesline Project, the Phoenix Survivors’ Alliance, and the Red Flag Campaign as
anti-male, the factual allegations do not plausibly suggest that is so. For example,
the materials John Doe provides on the Red Flag Alliance contain scenarios where
the perpetrator of dating violence is female. Am. Cmplt., Exh. 12. Even more
importantly, again there is no allegation that the University sponsored those
initiatives with the intent to discriminate against males. All in all, John Doe’s
allegations about the University’s general climate do not give rise to any plausible
inference of anti-male (or pro-female) bias on the part of the University.
Moving on from the generalized attack to this specific case, the key allegation
that avoids dismissal of the discrimination claim arises from Inabinet’s meeting
with Jane Doe on May 11, 2016. One interpretation of the allegation is that, during
the meeting, Inabinet encouraged Jane Doe to file a false complaint—knowing it
was false:
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Rather than take corrective actions required following John Doe’s May 2016
Title IX Complaint, on information and belief, Inabinet met with Jane Doe on
or about May 11, 2016 and intentionally and/or negligently encouraged and
“approved” Jane Doe’s filing of a false and retaliatory complaint against John
Doe in violation of Title IX and UC’s policies prohibiting the filing of such
false and retaliatory charges against a fellow student.
Am. Cmpl. ¶ 46 (emphasis added). If Inabinet intentionally encouraged Jane Doe to
file a false complaint—that is, he knew or believed that her complaint was false and
encouraged her to file it anyway—then it is plausible that Inabinet did so based on
gender bias. The plausibility is reinforced by another allegation: as noted earlier, on
August 5, 2016, John Doe and Inabinet discussed the complaints on a phone call.
Am. Cmplt. ¶ 50. According to John Doe, during the call, he repeatedly asked
Inabinet if he would have investigated the same conduct exhibited by Jane Doe if a
male student had engaged in that same conduct against a female student. Id.
Inabinet allegedly refused to give John a direct answer. Id. It is plausible to expect
that Inabinet, if he were treating both genders alike, would have answered directly
(and would have answered that the situations would be treated the same regardless
of gender). In combination, these two factual assertions sufficiently allege that
Inabinet engaged in discrimination on the basis of sex when he refused (at least
initially) to proceed on John Doe’s harassment complaint.
A sharp-eyed reader will have noted that the key allegation in paragraph 46
is not crystal clear. The allegation states that Inabinet “intentionally and/or
negligently” encouraged Jane Doe to file false charges. Am. Cmplt. ¶ 46 (emphasis
added). The difference between intentional and negligent conduct is crucial: if

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Inabinet was merely negligent,6 then the inference of gender bias dissipates.
Inabinet, after all, is charged with enforcing the University policy on sexual
misconduct. Am. Cmplt., Exh. 5. Ensuring that the University’s complaint system is
open to students is part of his job. Against this background, negligently
encouraging a complaint is not the kind of inexplicable and suspicious conduct that
would give rise to a plausible inference that gender bias was the motivating factor.
In light of the ambiguity on this critical point, John Doe is directed to file a
position statement by October 2, 2017, confirming that he is alleging that Inabinet
intentionally encouraged the filing of a false report, knowing that the report was
false. If John Doe disavows this interpretation of the allegation, then the Court will
invite the parties to argue whether reconsideration of the motion to dismiss is
necessary.
It is worth noting that Inabinet’s initial refusal to proceed on John Doe’s
harassment complaint and Inabinet’s willingness to proceed on Jane Doe’s
complaint would not—standing alone—give rise to a plausible inference of gender
bias. The two complaints alleged different conduct: John Doe’s alleged that he was
harassed by being falsely accused of sexual assault, while Jane Doe’s alleged that
she was the victim of sexual assault. Am. Cmplt. ¶ 52. Inabinet could reasonably
conclude, without drawing an inference of intentional discrimination, that Jane
Doe’s conduct did not amount to “harassment” under the University’s policies.
Indeed, Inabinet even informed John Doe that he could have a legal claim against
The Amended Complaint does not specify how Inabinet was negligent in allowing
Jane Doe to file her complaint. Without specifics, it is difficult to infer anything about his
conduct, let alone that it was motivated by gender bias.
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Jane Doe for defamation. Am. Cmplt. ¶ 49; Am. Cmplt., Exh. 5. To be sure, if
Inabinet had rejected John’s complaint for an irrational reason, that rejection might
give rise to an inference that Inabinet rejected the complaint because of gender bias.
But Inabinet’s conclusion that Jane Doe’s conduct was not harassment based gender
is not that sort of transparently false reason.
Along the same lines, Inabinet’s decision not to dismiss Jane Doe’s complaint
even after John Doe provided Jane Doe’s blog posts is also insufficient, standing
alone, to give rise to a plausible claim of gender bias. True, Jane Doe’s blog posts
tended to undermine her claim that John Doe had sexually assaulted her. But
Inabinet’s decision to proceed did not, on its own, amount to discrimination. The
blog posts were only one piece of evidence, and Inabinet could sensibly conclude that
the best way to evaluate their weight would be to proceed to a hearing. The upshot
is that the allegation that Inabinet intentionally encouraged the filing of a false
report and Inabinet’s refusal to answer John Doe’s question about differential
treatment are the key allegations supporting the discrimination claim.
One final note: the parties should bear in mind that the facts sufficient to
survive a motion to dismiss may not be enough at a later stage of the case,
especially after discovery. The Court expects that more specific details about the
phone call and Inabinet’s conversations with Jane Doe will emerge in discovery. At
this point, however, the Court is not deciding whether John Doe is likely to win,
only whether he has told a story that holds together. Swanson v. Citibank, 614 F.3d

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400, 404 (7th Cir. 2010). Contingent on the interpretation of Paragraph 46, he has
done so.
2. Deliberate Indifference
John Doe’s next liability theory is that the University was deliberately
indifferent to sexual harassment carried out by Jane Doe and Jane Roe against
John Doe. Am. Cmplt. ¶ 113; Pl. Mem. Opp. at 8-9. In order to state a claim of sex
discrimination based on a school’s deliberate indifference to student-on-student
sexual harassment, a plaintiff must allege that the defendant is a funding recipient
who exhibited deliberate indifference to known acts of sexual harassment. Davis
Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 643-44 (1999).
Crucially, the underlying harassment must be sex-based to state a claim under Title
IX. Mary M. v. N. Lawrence Cmty. School Corp., 131 F.3d 1220, 1228 (7th Cir.
1997); Doe v. Galster, 768 F.3d 611, 617 (7th Cir. 2014) (“Title VI protects students
from discrimination only if it is based on race, color, or national origin, and Title IX
only if based on sex.”). In this case, John Doe’s deliberate indifference theory fails
for two reasons. First, no allegations suggest that the harassment he suffered was
sex-based. Second, the facts do not give rise to an inference that the University was
deliberately indifferent.
The main problem with the deliberate indifference claim is that the
harassment John Doe complains of was not plausibly sex-based. The behavior John
Doe points to as harassment comprises: (1) Jane Roe’s public accusations, including
placing John on the Hyde Park List; (2) Jane Doe’s public accusation that John
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sexually assaulted her and “many others;” and (3) Jane Doe’s 2016 Title IX
complaint accusing John Doe of sexual misconduct. Pl. Mem. Opp. at 8-9. Even
taking as true that these accusations were false, they do not constitute sexual
harassment under Title IX.
For Title IX purposes, actionable sexual harassment means harassment
because of sex. Mary M., 131 F.3d at 1228; Galster, 768 F.3d at 617. Both the
Supreme Court and the Seventh Circuit have long recognized in the Title VII
context that not all comments having to do with sex constitute sexual harassment.
See Oncale v. Sundower Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (“We have
never held that workplace harassment, even harassment between men and women,
is automatically discrimination because of sex merely because the words used have
sexual content or connotations.”); Johnson v. Hondo, 125 F.3d 408, 412 (“Although
explicit sexual content or vulgarity may often take a factfinder a long way toward
concluding that harassing comments were in fact based on gender … this need not
necessarily be the case.”); Lord v. High Voltage Software, Inc., 839 F.3d 556, 562
(7th Cir. 2016) (comments with “sexual overtones” did not constitute harassment
because of sex).
So too in the Title IX context. As several courts have recently held, a false
accusation of sexual assault is not, without more, harassment based on sex,
notwithstanding the sexual content of the accusation. Eilenfeldt v. United C.U.S.D.
# 304 Bd. of Educ., 84 F.Supp.3d 834, 839, 842 (C.D. Ill. 2015) (allegations that a
male student was called “a rapist, pedophile, and child molester” were insufficient

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to state a claim that the student was harassed because of his gender); Nungesser v.
Columbia Univ., 169 F.Supp.3d 353, 365 (S.D.N.Y. 2016) (rejecting the assertion
that calling someone a rapist is inherently gendered); Doe v. Univ. of
Massachusetts-Amherst, 2015 WL 4306521, at *9 (D. Mass. July 14, 2015)
(dismissing complaint where plaintiff failed to give any examples of conduct that
targeted him based on gender rather than his status as a student accused of sexual
assault). When someone levels an accusation that another person, male or female,
committed sexual assault, the accuser is not making the accusation because the
alleged perpetrator is one gender or the other. Instead, the accusation is that the
perpetrator committed a crime. To be sure, accusations of sexual assault might be
part of gender-based harassment—consider if a man was called a “male rapist pig,”
purely out of a desire to harass him for being male—but sexual-assault accusations
on their own are not inherently gendered.
The kind of mechanical formula that would label any comment referencing
sex or gender as “sexual harassment” is inconsistent with the case law’s approach to
identifying sexual harassment. Context is crucial, and the ultimate question is
whether the object of the harassment was treated differently because of their
gender. Even seemingly gendered words, in context, may not be harassment based
on gender. See Oncale, 523 U.S. at 80; Galloway v. Gen. Motors Servs. Parts
Operations, 78 F.3d 1164, 1167-68 (7th Cir. 1996), abrogated on other grounds, Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002); Hall v. City of Chi., 713 F.3d
325, 334-35 (7th Cir. 2013). Examined in context, there is no reason to think that
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Jane Roe and Jane Doe’s comments were aimed at John because of his gender. To
the contrary, the allegations suggest only that Doe and Roe harassed him either
because they believed he had committed sexual assault or because of personal—not
gender—animus. See, e.g. Am. Cmplt. ¶ 51(j)-(k). False accusations of sexual
misconduct are, of course, disturbing and harmful—both to the victim of the false
accusation and to true survivors of sexual assault. But Title IX’s reach is limited to
discrimination “on the basis of sex.” 20 U.S.C. § 1681(a). Because John Doe has not
alleged facts plausibly suggesting that Jane Roe and Jane Doe’s harassment was
based on sex, he has failed to state a viable deliberate indifference claim.
But even if Jane Doe and Jane Roe’s conduct could be considered sexual
harassment under Title IX, the Amended Complaint would still have failed to state
a deliberate indifference claim. That is because the Amended Complaint does not
plausibly allege that the University’s conduct rose to the level of deliberate
indifference. A school’s response to student-on-student sexual harassment is not
deliberately indifferent unless its “response to the harassment or lack thereof is
clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648
(1999). When it comes to Jane Roe’s accusations, the Amended Complaint states
that the University responded to John Doe’s complaints by refusing to discipline
Jane Roe, removing John Doe from his and Jane Roe’s shared physics lab, and
warning John Doe not to respond to Jane Roe. Am. Cmplt. ¶ 22-26. The University
also failed to discipline Jane Roe when she publicly lied about the outcome of her
sexual assault complaint against John Doe. Am. Cmplt. ¶ 21. Although the
18

University’s response might not have been fair, that is not the standard for
deliberate indifference: it must be clearly unreasonable in order to violate Title IX.
The University does have a policy on defamation (see Am. Cmplt. ¶ 83), but it could
not have known with certainty that Jane Roe’s accusations were false.7 And apart
from anything else, the University is entitled to exercise discretion in the discipline
of its students without being second-guessed by federal courts, so long as its
exercise of discretion is not “clearly” unreasonable.
John Doe’s allegations about the University’s response to Jane Doe’s
comments also fall short. Again, it would not have been clear from the University’s
perspective that Jane Doe’s accusations constituted defamation. Also, the
University did act on John Doe’s May 5 complaint by referring it to Dean Scott and
advising John Doe that Jane Doe’s actions might be legally actionable. Am. Cmplt.,
Exh. 5. This response, though not what John Doe would have wished, was not
clearly unreasonable. The deliberate indifference claim fails.
B. Count 2 – Title IX Retaliation
John Doe’s third Title IX theory of liability is that the University retaliated
against him for complaining of sexual harassment by Jane Doe and Jane Roe. The
framework for Title IX retaliation claims is the same as for Title VII. Burton v. Bd.
of Regents of the Univ. of Wis. Sys., 851 F.3d 690, 695 (7th Cir. 2017). A plaintiff can
state a retaliation claim by alleging that (1) he engaged in protected activity under

7

See note 2, supra.

19

Title IX (2) the defendant took an adverse action against him, and (3) there is a butfor causal connection between the protected activity and the adverse action.8 Id.
Most of the conduct John Doe cites is not plausibly retaliatory. For example,
the Amended Complaint alleges that the University retaliated against John Doe by
removing him from the physics lab that he shared with Jane Roe. Am. Cmplt. ¶ 21.
But the Amended Complaint does not provide any facts to support the claim that
the University removed John Doe from the physics lab because he complained about
Jane Doe’s conduct. A bare, conclusory statement that the University removed John
Doe from the lab in order to retaliate is not enough to survive a motion to dismiss.
John Doe makes a similar allegation about the University’s warnings that John Doe
should not publicly refute Jane Roe’s accusations. Am. Cmplt. ¶¶ 22, 26. Here as
well, there are no facts supporting an inference that the University warned John
Doe in order to retaliate against him for complaining of Roe’s harassment.
In contrast, John Doe does state a plausible claim of retaliation based on his
and Jane Doe’s complaints filed in Spring 2016. The same set of facts that supports
a plausible inference of gender bias—that John complained of sexual harassment
and, shortly after, Inabinet knowingly encouraged Jane to file a false complaint
against John—also supports an inference of retaliation. Am. Cmplt. ¶¶ 45-50. As
discussed earlier, Inabinet’s alleged conduct is so inexplicable that there is room for

John Doe may also attempt to proceed by the “indirect” method of proving
retaliation. Burton v. Bd. of Regents of the Univ. of Wis. Sys., 171 F.Supp.3d 830, 839 (W.D.
Wis. 2016). But because John Doe does not appear to invoke the indirect method, see Am.
Cmplt. ¶¶ 117-22; Pl. Mem. Opp. at 12-13, this Opinion will discuss only the direct method.
8

20

a retaliatory inference in John Doe’s favor to explain Inabinet’s behavior. That
Inabinet intentionally encouraged the false complaint within days of receiving John
Doe’s complaint bolsters the inference of retaliation.9 See Doe v. Salisbury Univ.,
107 F.Supp.3d 481, 489–90 (D. Md. 2015) (suspicious timing of defendant’s action
supported claim of retaliation); Coleman v. Donahue, 667 F.3d 835, 861 (7th Cir.
2012) (noting that close temporal proximity can be evidence of causation); but see
Moser v. Ind. Dep't of Corr., 406 F.3d 895, 905 (7th Cir.2005) (“suspicious timing
alone rarely is sufficient to create a triable issue”); Wyninger v. New Venture Gear,
Inc., 361 F.3d 965, 981 (7th Cir. 2004) (“mere temporal proximity is not enough to
establish a genuine issue of material fact” (internal quotation marks omitted)).
The University argues that John Doe has not engaged in any protected
activity because the conduct he complained of was not sexual harassment. Def.’s
Mem. Opp. at 15-16. Yes, the Court agrees that Jane Roe and Jane Doe’s conduct
was not sexual harassment under Title IX. See Section III.A.2, supra. But the fact
that the conduct a plaintiff challenges turns out not to be sexual harassment in the
legal sense does not necessarily undermine a retaliation claim. The wrong identified
by a Title IX retaliation claim is the differential treatment of a complaint, whether
or not the complaint turns out to have merit. See Jackson v. Birmingham Bd. of
Educ., 544 U.S. 167, 174 (2005) (“[Retaliation] is a form of discrimination because
the complaint is being subjected to differential treatment.” (internal quotation
It is worth flagging that, like Count 1, the survival of Count 2 depends on the
Court’s reading of the Amended Complaint to allege intentional conduct by Inabinet. If this
is contradicted by John Doe’s position statement, then the Court will also reconsider its
decision about Count 2.
9

21

marks omitted)). Thus, it is enough that John Doe complained of conduct which he
believed in good faith to be gender-based harassment prohibited by Title IX. See
Fine v. Ryan Int’l Airlines, 305 F.3d 746, 752 (7th Cir. 2002) (explaining that, in the
Title VII context, all that is required is a good-faith belief that the practice plaintiff
opposed violated Title VII); Alexander v. Gerhardt Enters., Inc., 40 F.3d 187, 195–96
(7th Cir. 1994) (same). John Doe’s email complaint to Inabinet plausibly alleges that
he believed that Jane Doe’s conduct was gender-based harassment. See Am. Cmplt.
Exh. 3. So the retaliation claim survives.
C. Count 3 – Title IX Selective Enforcement
The claim that the University violated Title IX by selectively enforcing its
policies against John Doe because of his male gender appears to completely overlap
with his general claim of gender discrimination (Count 1), which is based on the
same conduct and theory. Because of this overlap, Count 3 shares the fate of Count
1’s gender discrimination claim: it survives the motion to dismiss, pending receipt of
John Doe’s position statement.
D. Count 4 – Promissory Estoppel
John Doe also brings a state-law claim for promissory estoppel based on
statements in the University’s 2013 and 2015 Student Manuals. Am. Cmplt. ¶¶ 12740. To bring a successful claim of promissory estoppel under Illinois law, a plaintiff
must prove (and at the pleading stage, allege) that (1) defendants made an
unambiguous promise to plaintiff, (2) plaintiff relied on the promise, (3) plaintiff’s
22

reliance was expected and foreseeable by defendants, and (4) plaintiff relied on the
promise to its detriment. Quake Constr., Inc. v. American Airlines, Inc., 565 N.E.2d
990, 1004 (Ill. 1990). The Amended Complaint fails on the first element, and likely
on the third as well: John Doe has not alleged facts suggesting that the University
made any unambiguous promise to Plaintiff, and therefore has not stated a claim
for promissory estoppel.
The promises that make up John Doe’s purported promissory estoppel claim
are: (1) the University’s promise to protect John Doe’s educational experience from
unlawful harassment based on defamation and other unlawful grounds (Am. Cmplt.
¶128); (2) the University’s promise to adjudicate complaints in a fair and impartial
manner (Am. Cmplt. ¶ 129); (3) the University’s promises to provide in all cases of
alleged sexual misconduct “a prompt, fair, impartial and thorough investigation and
resolution that is consistent with the University’s policies and is transparent to the
complainant and the respondent” (Am. Cmplt. ¶ 134); and (4) the University’s
promise to implement its policies in a manner “consistent with federal, state, and
local

regulations

governing

non-discrimination

and

unlawful

harassment

including … Title IX” (Am. Cmplt. ¶135). But none of these statements is definite
enough to constitute an unambiguous promise. At most, they reflect a commitment
to broad principles of fairness and nondiscrimination without giving specifics about
how those goals will be achieved.
The context in which these statements were made confirms that they are not
the kind of unambiguous promises on which a reasonable person would be entitled
23

to rely. The 2015 Manual, for example, states that the Manual is subject to change
“at the sole discretion of the University.”10 R. 65, Def.’s Mem. in Support of Motion
to Dismiss, Exh. 1 at 6. What’s more, the introduction to the 2015 Manual
emphasizes the broad nature of the promises, and warns that implementation
might vary: “Policies and regulations are often not more specific than necessary and
often are general enough to allow the University to respond to situations in their
unique complexities.” Id. In addition to casting doubt on the unambiguous nature of
the promises pointed to by John Doe, these disclaimers also make it clear that his
reliance would not have been expected or foreseeable to the University.
John Doe correctly points out that promises sufficient to support a claim of
promissory estoppel may come from a defendant’s policies and procedures manual.
Pl. Mem. Opp. at 18-19. The cases cited by John Doe, however, all deal with much
more specific promises made in the employment context, not the kind of general
claims made by the University in its manuals and policies. See Lawrence v. Bd. of
Educ. of Sch. Dist. 189, 503 N.E.2d 1201 (Ill. App. Ct. 1987); Perlin v. Bd. of Educ.
of City of Chi., 407 N.E.2d 792 (Ill. App. Ct. 1980).11 Because the promises made in

Although the 2015 Manual is not attached to the Amended Complaint, the Court
may consider it under the incorporation-by-reference doctrine. Brownmark Films, LLC v.
Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (“[A] court may consider documents
attached to a motion to dismiss [ ] if they are referred to in the plaintiff's complaint and are
central to his claim.” (citation and internal quotation marks omitted)). The University’s
student manuals and policies are referenced in the Amended Complaint and are central to
the promissory estoppel claim. See, e.g., Am. Cmplt. ¶¶ 82-86. John Doe cannot “evade
dismissal under Rule 12(b)(6) simply by failing to attach to his complaint a document that
prove[s] that his claim ha[s] no merit.” Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002).
11 John Doe also cites Brown-Wright v. E. St. Louis Sch. Dist. 189, 2016 IL App (5th)
150148-U, 2016 WL 1182803 (Ill. App. Ct. March 23, 2016) in support of his position.
Because this is an unpublished decision, it cannot be cited as precedential authority per
10

24

these cases are different in kind from the promises the University makes in its
student manuals, the case law does not support the promissory estoppel claim.
E. Count 5 – Negligent Infliction of Emotional Distress
Count 5 alleges negligent infliction of emotional distress as a result of the
University’s alleged refusal to honor the 2013 Manual and the University’s other
policies. Setting aside the question whether the University had any legal duty to
honor the provisions of the student manual and, if so, whether it breached that
duty, this claim fails because Illinois common law follows the “impact rule.”
Schweihs v. Chase Home Fin., LLC, 77 N.E.3d 50, 59 (Ill. 2016), reh'g denied (Mar.
27, 2017); Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 703 (7th Cir. 2009).
Specifically, under the impact rule, a plaintiff cannot recover for negligent infliction
of emotional distress unless he suffers a contemporaneous physical injury or impact.
Scweihs, 77 N.E.3d at 59. Because John Doe has not alleged any contemporaneous
physical injury or impact,12 he has failed to state a claim for negligent infliction of
emotional distress.

Illinois Supreme Court Rule 23(e)(1). In any event, Brown-Wright does not help John Doe’s
claim because, like the other cases he cites, it involves promises that are much more
concrete than the University’s statements in the Manuals.
12 John Doe suggests in a footnote to his response brief that the injuries described in
the redacted portions of the prior Order (R. 35 at 6) and in the sealed affidavits submitted
to the Court (R. 34-1 and 34-2, incorporated by Am. Cmplt. ¶ 92) are sufficient to support
an emotional-distress claim. Pl. Mem. Opp. at 22 n. 11. But this argument-in-passing is not
developed, and underdeveloped arguments are deemed waived. United States v. Berkowitz,
927 F.2d 1376, 1384 (7th Cir.1991). And in any event, the injuries described in the sealed
affidavits are not contemporaneous with the University’s alleged misconduct, and so would
be insufficient to support the claim.

25

F. Count 6 – Intentional Infliction of Emotional Distress
John Doe’s final claim is that the University intentionally caused him severe
emotional distress. He points to Inabinet’s “intentional misconduct” as the source of
his distress. As with Counts 1, 2, and 3, John Doe has alleged enough facts to state
a claim if the Amended Complaint is interpreted as alleging that Inabinet
deliberately encouraged Jane Roe to file a false complaint, knowing that the
complaint was false.
To make out a claim of intentional infliction of emotional distress, a plaintiff
must allege that (1) the defendant’s conduct was “extreme and outrageous;” (2) the
defendant either intended that his conduct inflict severe emotional distress or knew
that there was at least a high probability that his conduct would cause severe
emotional distress; and (3) the defendant’s conduct in fact caused severe emotional
distress. Shweihs, 77 N.E.3d at 63. Run-of-the mill annoyances and oppressions do
not constitute “extreme and outrageous” conduct. The offending conduct must be “so
outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community.” Id. (citing Restatement (Second) of Torts § 46 cmt. d, at 73
(1965)).
Because the bar for extreme and outrageous conduct is so high, Inabinet’s
mere negligent encouragement of Jane Doe’s complaint would not be sufficient to
state a claim of emotional distress. Reading the Amended Complaint to allege that
26

Inabinet intentionally encouraged Jane Doe to file a false complaint, however, casts
things in a different light. Deliberately encouraging one student to file a Title IX
sexual-assault complaint about another student, knowing the complaint is false, is
conduct that a factfinder could reasonably find to be extreme and outrageous. The
accused student is subjected to the anxiety and uncertainty of participation in the
university disciplinary process, and often becomes the target of public disdain
caused by the accusation. Under the circumstances alleged here, Inabinet must
have known that there was a high probability that being pursued by a false sexualassault complaint would cause John Doe severe emotional distress. And indeed,
John Doe has plausibly alleged that he is suffering from severe emotional distress,
and that his distress was caused, at least in part, by the University’s disciplinary
process in pursuing Jane Doe’s Title IX complaint. Am. Cmplt. ¶ 92; R. 34, sealed
Exhibits 1 and 2. John Doe has sufficiently alleged the elements of intentional
infliction of emotional distress.
IV. Conclusion
At the motion to dismiss stage, the Court must decide only whether the
plaintiff has alleged sufficient facts to make his legal claims “plausible.” Iqbal, 556
U.S. at 678. As interpreted, the Amended Complaint does allege sufficient facts to
support a plausible Title IX violation based on gender discrimination, selective
enforcement, and retaliation (Counts 1-3). John Doe has also successfully pled
intentional infliction of emotional distress (Count 5). But the deliberate indifference
theory of liability under Title IX (part of Count 1), and the claims for promissory
27

estoppel (Count 4) and negligent infliction of emotional distress (Count 5), fall short
of alleging a valid claim.
As discussed in detail, the survival of Counts 1, 2, 3, and 5 depends on the
interpretation of Amended Complaint paragraphs 46-48 to allege that Inabinet
intentionally encouraged Jane Doe to file a false complaint against John Doe,
knowing that the complaint was false. John Doe is reminded that he must file a
position paper by October 2, 2017, either confirming that interpretation or
explaining how the allegations should otherwise be read. The status hearing of
October 5, 2017, remains as scheduled.

ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: September 20, 2017

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