Doe v. University of Kentucky

Filing 151

MEMORANDUM OPINION & ORDER: Dft.'s Motion for Summary Judgment 129 is GRANTED. Judgment to be entered contemporaneously herewith.. Signed by Judge Joseph M. Hood on 10/14/2022.(JER)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JANE DOE,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
UNIVERSITY OF KENTUCKY,
Defendant.
***

***

Civil Case No.
5:15-cv-296-JMH
MEMORANDUM OPINION
And ORDER
***

Jane Doe (“Doe”) filed this action against the University of
Kentucky on October 1, 2015, alleging several claims; now, only
one remains. Given the lengthy procedural history, the Court solely
touches upon those facts most pertinent to the current action. The
University has moved for Summary Judgment against Doe on the
remaining issue: Title IX retaliation. (DE 129). Doe has voiced
opposition to the motion and this matter has been fully briefed.
For the reasons that follow, the University is granted summary
judgment against Doe. This matter is dismissed.
I.
In the fall of 2014 Doe was a first-year student, enrolled in
a dual-enrollment program between the Bluegrass Community and
Technical College (“BCTC”) and the University of Kentucky (“the
University”).

(DE

57,

¶

7).

According

to

the

Third

Amended

Complaint, the program provided students, like Doe, an opportunity
Page 1 of 20

to take courses at BCTC, whose credits — if applicable — would be
eligible for transfer to be applied towards a bachelor’s degree at
the University. Because of this dual-enrollment program, and with
the goal of ensuring a “seamless transition,” Doe was permitted to
live on University campus and in a University dorm. (Id., ¶¶ 7,
9).
On October 2, 2014, Doe alleges that a sexual assault occurred
in her dorm room. (Id., ¶¶ 10, 15). The alleged assailant was her
ex-boyfriend, a member of the University football team. ( Id., ¶¶
10-12). That same day, after the assailant had left her dorm room,
Doe

called

911

to

report

the

rape

to

the

University

police

department. (Id., ¶ 17). Officer Laura Sizemore responded to the
call and drove Doe and her roommate to the University’s Albert B.
Chandler Hospital. (Id.). Once there, a nurse examined Doe for
sexual assault.
The University issued a no-contact order and suspended the
assailant (“Student B”) on October 3, 2014. (Id., ¶ 26). Both Doe
and Student B were notified that a student conduct (“disciplinary”)
hearing was scheduled for October 8, 2014; however, Student B could
not attend, due to a conflict. 1 (Id., ¶ 27). At this hearing, Doe

Student B submitted a written statement noting his unavailability
and requesting a continuance. (DE 57, ¶¶ 27, 39).
Page 2 of 20
1

testified that she was feeling physically and mentally traumatized 2
following the assault. (Id., ¶ 30). The hearing panel issued its
decision by letter the next day, October 9, finding Student B
responsible for sexual misconduct, with the disciplinary action
resulting in permanent expulsion. Through an attorney, Student B
appealed the decision to the University’s Appeal Board (“UAB”).
(Id., ¶ 34).
On December 4, 2014, the UAB found that the hearing panel had
committed a procedural error in conducting the hearing without
Student B present. (Id., ¶ 39). Therefore, a second hearing was
scheduled for December 18, 2014. (Id., ¶ 41). Doe submitted a
statement that she would not be attending the hearing on accoun t
of the “distress caused by the appeal process,” as well as the
counsel she received from University employees. ( Id., ¶ 42). Doe
was told that her recorded statement from the first hearing would
be used, as well as the police report. (Id.).
The University panel issued its decision on December 22, 2014.
The hearing panel found Student B responsible for the assault and
ordered that he be permanently expelled from the University. (Id.,
¶ 43). Student B appealed this decision. (Id., ¶ 44).

Following the hearing, Doe withdrew from classes and university
housing. (Id., ¶ 33).
2

Page 3 of 20

On February 9, 2015,3 the UAB found that the second hearing
panel’s decision could not stand and must be reversed, again, on
account of having committed procedural errors. The first error
consisted of the panel’s usage of Doe’s recorded testimony from
the first hearing. (Id., ¶ 46). This is so, because the “prior UAB
decision rendered the record from the first hearing ‘essentially
inadmissible in any later proceeding’ against [Student B].” (Id.).
Second, because Doe and her roommate were absent from the second
hearing, the UAB found that Student B’s right to confront his
witnesses had been “improperly denied.” (Id.).
The UAB contacted Doe to inquire about her availability and/or
willingness to participate in a third hearing. (Id., ¶ 49). Doe
consulted with various University officials, and eventually agreed
to participate via telephone from another location on University
campus. (Id., ¶¶ 48-50). The third hearing was scheduled for March
26, 2015, and the decision was rendered on April 2, 2015. (Id., ¶¶
50, 52). Student B was found responsible for the alleged misconduct
and was ordered to be suspended for a period of five years, with
a contingency of return only if the requisite counseling was
received. (Id., ¶ 52). Student B appealed this decision on April
13, 2015. (Id., ¶ 53).

At this time, Doe had re-enrolled in classes at the BCTCLawrenceburg campus. (Id., ¶ 45).
3

Page 4 of 20

On June 9, 2015, finding that the third hearing panel had
committed a procedural error, the decision was reversed. (Id., ¶
55). The error pertained to the panel’s decision to allow Officer
Sizemore and Detective Brannock, who had interviewed Student B, to
testify in each other’s presence in violation of the Student Code
of Conduct. (Id.).
On June 29, 2015, Dr. Denise Simpson, then-Director of the
Office of

Student

Conduct,

emailed

Doe

to

inquire about her

availability and interest in participating in the fourth hearing;
she indicated that the “goal” would be to conduct the hearing
sometime between July 20 and July 31, 2015. (DE 131 -1 at 1). Dr.
Simpson also stated that she was interested in hearing about any
concerns she might have regarding the hearing. Doe responded, on
July 6, noting that she would be out of town within that time
period and asking whether the hearing could occur in August. (Id.,
at 5). On July 15, Dr. Simpson responded to Doe, asking her to
complete an online poll regarding her availably in August. ( Id.,
at 9). Dr. Simpson assured Doe that this poll would be unique to
her participation only. (Id.). On July 30, Doe indicated that she
had retained new counsel, and thus, would need to check with her
counsel’s availability before proceeding with scheduling. (Id. at
11).

Page 5 of 20

In August 2015, Doe dropped out of the program at BCTC in
Lawrenceburg.

(DE

57,

¶

62).

Doe’s

newly-retained

counsel,

Elizabeth Howell, corresponded with the University during that
period. (DE 131-1 at 13-14, 16-17). Howell indicated that she would
make efforts to advise the university of Doe’s decision regarding
her participation at the hearing when such decision was made .
(Id.).
Doe initiated the current action on October 1, 2015. (DE 57,
¶ 63). Injunctive relief requesting that the University comp ly
with federal law under Title IX was included among the list of
requested relief. (See DE 1 at 11).
On October 5, 2016, the University notified Doe and Student
B that the fourth hearing would be set for October 19, 2016. (Id.,
66). However, on the morning of the 19th, the hearing was cancelled
and rescheduled for the week of November 14, 2016; subsequently,
the hearing was rescheduled once more. (Id., ¶ 67). On December
19, 2016, the University notified the parties that the fourth
disciplinary hearing would be set for January 10, 2017. This
hearing took place as scheduled.
At

the

conclusion

of

the

hearing,

the

panel

issued its

decision; Student B was found not responsible. (Id., ¶ 78). Doe
appealed; it was denied by the Appeals Board. (Id., ¶

Page 6 of 20

86).

As of the date of filing, Doe’s Third Amended Complaint
consisted of Two Counts, discrimination (Count 1) and retaliation
(Count

2),

both

in

Violation

of

Title

IX

of

the

Education

Amendments of 1972. (Id., ¶¶ 95-99). Now, only one claim remains:
retaliation. (DE 104). Defendant has moved for summary judgment.
(DE 129). Doe vehemently opposes, arguing that the issues presented
are

plainly

for

a

jury

to

decide.

(DE

138).

Because

Doe’s

assertions are too speculative to survive the summary judgmen t
standard, the Court finds that the University is entitled to
judgment as a matter of law.
II.
Under Federal Rule of Civil Procedure 56(c), summary judgment
is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56. The moving party
has the initial burden of demonstrating the basis for its motion
and identifying those parts of the record that establish the
absence of a genuine issue of material fact. Chao v. Hall Holding
Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). The movant may
satisfy its burden by showing “that there is an absence of evidence
to support the nonmoving party’s case.” Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). Once the movant has satisfied this
burden, the nonmoving party must go beyond the pleadings and come
Page 7 of 20

forward with

specific facts

demonstrating the

existence

of

a

genuine dispute for trial. Fed. R. Civ. P. 56; Hall Holding, 285
F.3d at 424 (citing Celotex, 477 U.S. at 324). This is so because
“[o]ne of the principal purposes of the summary judgment rule is
to

isolate

and

dispose

of

factually

unsupported

claims

or

defenses.” Celotex, 477 U.S. at 323-24.
“A genuine dispute exists on a material fact, and thus summary
judgment is improper, if the evidence shows ‘that a reasonable
jury could return a verdict for the nonmoving party.’” Olinger v.
Corp. of the President of the Church, 521 F. Supp. 2d 577, 582
(E.D. Ky. 2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)). Stated otherwise, “[t]he mere existence of a
scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
When applying the summary judgment standard, the Court must review
the facts and draw all reasonable inferences in favor of the
nonmoving party. Logan v. Denny’s, Inc., 259 F.3d 558, 566 (6th
Cir. 2001) (citing Anderson, 477 U.S. at 255). The nonmovant “must
do more than show there is some metaphysical doubt as to the
material fact. It must present significant probative evidence in
support of its opposition to the motion for summary judgment.”
Hall

Holding,

285

F.3d

at

424

(internal

Page 8 of 20

citations

omitted).

However, the Court is under “no … duty to search the entire record
to establish that it is bereft of a genuine issue of material
fact.” In re Morris, 260 F.3d 654, 655 (6th Cir. 2001). Rather,
“the nonmoving party has an affirmative duty to direct the court’s
attention to those specific portions of the record upon which it
seeks to rely to create a genuine issue of material fact.” Id.
III.
“Title IX provides that ‘[n]o person ... shall, on the basis
of sex, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any education program
or activity receiving Federal financial assistance.’ ” Williams ex
rel. Hart v. Paint Valley Local Sch. Dist., 400 F.3d 360, 366 (6th
Cir. 2005) (quoting 20 U.S.C. § 1681(a)). In Davis, the Supreme
Court held that student-on-student sexual harassment can sustain
a Title IX claim against the victim's school “[i]n certain limited
circumstances.” Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629,
643 (1999).
Doe argues that the University retaliated against her in
violation of Title IX. She argues that “[t]he University delayed
and manipulated the conduct of the fourth [administrative] hearing
and abandoned its role under its own policy as prosecutor, failing
to advance the “best case” against Doe’s assailant.” (DE 138 at

Page 9 of 20

1). As outlined in Doe’s Third Amended Complaint, filed on January
30, 2018, her claim is premised on the following:
[] The University retaliated against Doe when
the University’s chief of police deliberately
interfered with the disciplinary process to
aid the Assailant and impede Doe.
[] The University retaliated against Doe when
it asked her about her federal lawsuit in the
fourth administrative hearing and injected
the hearing with suggestion that Doe’s
assertion of her rights was motivated by a
desire for a monetary recovery.
[] The University retaliated against Doe when
against the weight of the evidence, it found
the Assailant not responsible.
(DE 57 at 16). However, as detailed in Doe’s Response to an earlier
Motion to Dismiss (DE 106), she attempts to clarify that the
University retaliated when it:
(1) delayed scheduling the fourth hearing by
more than fifteen months, (2) cancelled the
fourth hearing on the morning it was to start,
(3) failed to hold the required pre-hearing
meeting, (4) failed to make a request to
continue the hearing until Officer Sizemore
could testify, (5) intentionally kept Officer
Sizemore from testifying, (6) permitted the
Assailant to use Doe’s recorded statements
contrary to its prior ruling prohibiting such
use, (7) allowed the fourth hearing panel to
question her about her federal lawsuit during
the hearing, (8) found the Assailant not
responsible after three previous findings in
her favor, (9) denied her appeal, and (10)
made her unable to re-enroll in school because
of the significant distress caused by the
three additional administrative hearings and
lack of appropriate supports.
Page 10 of 20

(Id. at 18). The University argues that ”Doe cannot attempt to
cure the inadequacies of her … Complaint by alleging additional
retaliatory actions by the University in briefing.” (DE 129 at
18). The Court agrees. Below, the Court focuses its attention to
the facts most pertinent to the claims alleged in the complaint
(DE 57 at 16).
To establish her claim of retaliation under Title IX, Doe
must show “‘that (1) [s]he engaged in protected activity, (2) [the
funding recipient] knew of the
suffered

an

adverse

protected

school-related

activity,

action,

and

(3) [s]he

(4)

a

causal

connection exists between the protected activity and the adverse
action.’ ” Bose v. Bea, 947 F.3d 983, 988 (6th Cir. 2020), cert.
denied sub nom. Bose, Prianka v. Bea, Roberto, et al., No. 20-216,
2021 WL 78095 (U.S. Jan. 11, 2021) (citing Gordon v. Traverse
City Area Pub. Schs., 686 F. App'x 315, 320 (6th Cir. 2017)). “To
qualify as ‘adverse,’ an educational action must be sufficiently
severe to dissuade a ‘reasonable person’ from engaging in the
protected

activity.”

Gordon,

686

F.

App'x

at

320

(citing

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
Examples of

“sufficiently

severe”

adverse educational

actions

include suspension, in-class punishment, placement in a different
class, and denying enrollment in a desired class. Id. at 320–21.

Page 11 of 20

Since

Doe

has

failed

to

produce

direct

evidence,

her

retaliation claim is evaluated using the McDonnell Douglas burdenshifting framework. In the absence of direct evidence, courts apply
the McDonnell Douglas burden-shifting framework to discrimination
claims. Gordon, 686 F. App’x at 319-20; Fuhr v. Hazel Park Sch.
Dist., 710 F.3d 688, 674 (6th Cir. 2013) abrogated on other grounds
by Univ. of Texas Southwest Med. Ctr. v. Nassar, 133 S. Ct. 217
(2013); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–
05 (1973)). Under this framework, the burden is first placed on
Doe to submit evidence from which a reasonable jury could conclude
that she established a prima facie case of retaliation. Id. The
burden shifts to the University to articulate a “legitimate, nondiscriminatory reason” for any adverse action(s). Finally, the
burden then shifts back to Doe to prove the University’s reason is
mere

“pretext.”

She

must

do

so

by

establishing

that

the

University’s reasons “(1) have no basis in fact; (2) did not
actually motivate the action; or (3) were insufficient to warrant
the action.” Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 285
(6th Cir. 2012).
As explained above, to establish her claim of retaliation,
Doe must show four elements. Bose v. Bea, 947 F.3d at 988. The
University directs its arguments to the last two prongs: whether
Doe can establish that she suffered an adverse school-related
Page 12 of 20

action,

and

whether

a

causal

connection

exists

between

the

protected activity and the adverse action. (DE 129 at 17-28). The
University proffers that Doe cannot establish either.
As an initial matter, the Court finds that none of the
retaliatory items cited in the Complaint (DE 57, ¶¶ 97 -99), can
be considered educational and/or school-related actions.
On

June

9,

2015,

the

appeals

board

determined

that

procedural errors were committed as to the third hearing. (Id.,
¶ 55). By August 2015, Doe was no longer enrolled at the BCTC’s
Lawrenceburg

campus;

rather,

she

was

enrolled

at

MedQuest

College. (Id., ¶ 62). While discussions related to the scheduling
of the fourth hearing proceeded throughout the fall, a final
hearing date was not established until December 9, 2016, with
the hearing being scheduled for January 10, 2017. (Id., ¶ 70).
By January, it had been approximately 2 years and 3 months since
Doe had resided in the University, and had participated in any
school-related functions. (See id., ¶¶ 33, 70). On this basis
alone, Doe’s claim fails.
Prior

to

the

hearing,

as

expressed

by

her

attorney

in

correspondence to then-Director of Student Conduct, Dr. Simpson,
Doe was disinclined to participate at the fourth hearing. (DE 1311 at 13-14). She stated that she would participate “if necessary
to ensure [Student B] was responsible,” but noted that the process
Page 13 of 20

has been “extremely detrimental” to her “health and well-being.”
(Id.). The University’s general counsel communicated to Doe’s
attorney that her participation could be critical, as it could
“increase the chances of obtaining a finding of responsibility.”
(Id. at 32). He added that, “the University believes the chances
of obtaining findings of responsibility are maximized” by having
Doe testify in person. (Id.).
To accommodate Doe’s mental health, her attorney anticipated
that Doe might “waive” her right to attend, requesting that her
prior testimony from the third hearing be used at the fourth
hearing as direct examination. (Id. at 63). As such, Doe would
only

have

to

participate

questions,

which

would

attorney’s

office.

by

occur

(Id.

at

answering
through

64-

65).

cross-examination

telephone
The

from

hearing

her

officer,

Professor Robert Lawson granted Doe’s request, finding that the
request

was

well-founded

and

that

such

accommodations

were

reasonable in light of the underlying circumstances. ( Id. at 6869). Doe’s counsel was advised of the pre-hearing process, which
included

Professor

Lawson

screening

all

questions,

and

being

notified of the right to object at the hearing. (Id. at 71).
As requested and agreed upon by Doe, at the January 10, 2017
hearing, Doe’s prior testimony from the third hearing was played
to

the

panel.

Doe

was

then

asked

Page 14 of 20

questions

after

each

recording,

which

she

answered

live

via

videoconference.

(See

generally DE 131-22). The panel heard testimony from Student B,
Doe, as well as Doe’s roommate, Brittney Smith. (DE 131-1 at 15455).

The

panel

reviewed

multiple

exhibits,

including

45

photographs and eight videos of footage from security came ras at
Doe’s dorm; this included the dormitory hall’s front entrance and
exit, the front desk, and the elevator. (Id. at 154). The panel
further received a copy of the police report written by Office r
Sizemore, which was read aloud by Professor Lawson. ( See id. 215221).
Ultimately, “based on the preponderance of evidence[,]” the
hearing panel determined that Student B was not responsible. (Id.).
The panel noted that the “documentary information and statements”
made by Student B were “instrumental in the collective decision.”
(Id. at 155). And particularly, that the decision came down to
“credibility and plausibility.” (Id.).
Neither party disputes the general sequence of
events the day of October 2, 2014. However,
the panel did notice a few discrepancies
between [Student B] and [Doe’s] memory of the
sequence of events.
(Id.). On January 31, 2017, Doe’s attorney appealed the hearing
panel’s decision. (Id. at 158-63). She asserted multiple grounds.
As

a

baseline,

Doe

argued

that

the

hearing

“was

not

conducted in accordance with the principles of due process” and
Page 15 of 20

that new information was not presented at the hearing that could
have altered the outcome of the hearing. (Id. at 158, 160, 162).
As

an

initial

matter,

the appeals board found

no

error

in

Professor Lawson’s evidentiary rulings at the hearing, as they
were

well-reasoned,

“and

the

hearing

was

conducted

fairly

considering the charges and information presented.” (Id., at
127).
One of Doe’s claims on appeal, and before the Court now,
concerns Officer Sizemore’s absence from the fourth hearing. Doe
argues

that

Officer

Sizemore

should

have

been

called

as

a

witness, alleging that her testimony would have been critical
and

would

have

bolstered

her

credibility.

(DE

138

at

24).

However, Doe does not identify what additional testimony Officer
Sizemore could have provided, nor how her perceived testimony
would have affected or altered the outcome of the hearing.
The appeal’s board provided a lengthy 23-page decision. The
board noted that Doe failed to request a continuance or object
to Officer Sizemore’s absence at the hearing. (DE 131 -1 at 13738).

It

concluded

that

it

would

“not

overturn

the

Panel’s

decision based upon her unsubstantiated report of corruption.”
(Id. at 138). Officer Sizemore, too, agreed that all of her
factual knowledge about the allegations were included in the
police

report,

which

the

appeals

board,

Page 16 of 20

too,

had

in

its

possession upon review. Officer Sizemore’s absence si mply did
not alter the outcome of the hearing.4 Doe and her attorney could
have objected to Officer Sizemore’s non-attendance or requested
a continuance of the hearing, but no such action occurred on
their part.
Doe also cannot establish that Professor Lawson’s rulings
constituted retaliation. As previously stated, Doe’s counsel was
aware of the pre-hearing process, and had sufficient notice of
how the hearing would be conducted. (Id. at 68-69). Under thenUniversity

procedure,

the

parties

were

required

to

submit

proposed questions in advance of the hearing to Professor Lawson.
As Mr. Lawson had previously told counsel, he would receive the
proposed questions beforehand, and at the hearing, counsel would
have the right to object, whereupon he would make a ruling.
To the extent that Doe claims Police Chief Monroe caused
Officer Sizemore’s absence from the hearing, this claim fails
for the same

reasons.

Doe’s

arguments indicate some

motive

stemmed on the part of Chief Monroe; however, any conduct from
Chief Monroe is not the University’s conduct.
As to Doe’s allegation that she
message

that

concerned

Officer

received an anonymous

Sizemore’s

non-attendance,

Officer Sizemore had previously testified in only one of Student
B’s prior hearings which resulted in the same outcome as two
previous hearings where she did not testify.
Page 17 of 20
4

counsel

was

requested

to

provide

information

so

that

the

allegation could be fully investigated. (Id. at 260-61). She
refused. (Id. at 259). When Officer Sizemore was asked about her
non-attendance, she denied that anyone told her not to attend.
Too, Officer Sizemore met with Chief Monroe about this matter;
she drafted a memorandum that detailed her conversation with him
and her involvement with Doe. (DE 131-34). Therein, Officer
Sizemore confirms her conversation with the Chief, and affirms
that she was asked if she had childcare issues that would make
her unable to attend the fourth hearing.
University counsel also inquired with Chief Monroe about
the allegation made by Doe that he had some interference, or
level of involvement, with Officer Sizemore’s attendance. Chief
Monroe provided a timeline and supporting information concerning
the events preceding the fourth hearing. (DE 131-36 at 3). Chief
Monroe noted that Officer Sizemore was unable to attend the
Fourth Hearing because the police department was notified of the
hearing with less that twenty-four hours’ notice and, due to the
short notice, she was unable to obtain childcare (see DE 13135).
The hearing panel’s ruling concretely identified the bases
for its decision. The ruling explained that the case failed on
credibility, as Doe’s testimony was contradicted in part by the
Page 18 of 20

documentary evidence. The reasons proffered by the appeals board
in affirming the panel’s decision, too, are legitimate, nondiscriminatory reasons. Doe can identify nothing in either of
those rulings that would constitute pretexts.
Here, not only can Doe not cite to any adverse-related school
actions, but Doe also cannot show a causal link to retaliation for
her claims. In sum, Doe’s claim simply fails because she has not
submitted evidence from which a reasonable jury could conclude
that she established a prima facie case of retaliation. Gordon,
686 F. App’x at 319-20.
IV.
“A dispute about a material fact is genuine if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Smith v. Perkins Bd. of Educ., 708 F.3d 821, 825
(6th Cir. 2013) (internal quotations omitted). Here, the Court
finds that no material facts are in dispute. At best, Doe’s
arguments are conjecture.
IT IS HEREIN ORDERED that the Defendant’s motion for summary
judgment (DE 129) is GRANTED. An appropriate judgment will be
entered contemporaneously herewith.
Dated this 14th day of October, 2022.

Page 19 of 20

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