Doe v. Western New England University et al

Filing 59

Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered Regarding 54 Report and Recommendations Re: Defendants' Motion to Dismiss. "...For the foregoing reasons, upon de novo review, the court hereby ADOPTS the Report and Recommen dation (Dkt. No. 54) in its entirety. Defendants' Motion to Dismiss (Dkt. No. 30) is hereby ALLOWED, except as to the portions of Counts I and II identified in the Report and Recommendation and as to Count XIII. This case is hereby referred to Magistrate Judge Robertson for a scheduling conference pursuant to Fed. R.Civ. P. 16." See Memorandum and Order for details. (Attachments: # 1 Report and Recommendation) (Healy, Bethaney)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
JOHN DOE,
Plaintiff,
v.
WESTERN NEW ENGLAND
UNIVERSITY, ET AL.,
Defendants.

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C.A. NO. 15-30192-MAP

MEMORANDUM AND ORDER REGARDING
REPORT AND RECOMMENDATION RE:
DEFENDANTS’ MOTION TO DISMISS
(Dkt. Nos. 30 & 54)
January 10, 2017
PONSOR, U.S.D.J.
Plaintiff, a former student at Defendant Western New
England University (“WNEU”)-- proceeding under the pseudonym
John Doe -- has filed a twelve-count1 complaint against WNEU
and eight university employees, seeking damages and
equitable relief in connection with his two-year suspension
for sexual misconduct.
In response, Defendants have filed a Motion to Dismiss
the complaint in its entirety. (Dkt. No. 30).

The motion

was referred to Magistrate Judge Katherine A. Robertson for
a Report and Recommendation.
Judge Robertson’s Report and Recommendation (Dkt. No.
54) advises that Defendants’ motion to dismiss should be

1 The complaint titularly contains Counts I through XIII,
but it omits any denominated Count XII.

allowed, except as to three elements of the complaint: a
portion of Count I, which generally alleges breach of
contract; a portion of Count II, which generally alleges a
breach of the covenant of good faith and fair dealing; and
misnumbered Count XIII, which seeks declaratory relief.

In

all other respects, including the bulk of the claims offered
under Count I and Count II, the Report suggests that the
motion to dismiss should be allowed.
Both Plaintiff and Defendants have filed objections to
the Report and Recommendation in accordance with the
timetable set forth in the Magistrate Judge’s memorandum.
For the reasons set forth below, these objections are
unpersuasive.

As a result, on de novo review, the court

will adopt the Report and Recommendation and allow the
motion to dismiss the complaint, in part.
It is not necessary to repeat the essential facts; they
are scrupulously recited in the Report and Recommendation
and, for purposes of the motion to dismiss, largely
undisputed.

The Report and Recommendation is attached for

reference.
Plaintiff does not protest the Report’s recommendation
that most of his claims be dismissed.

He objects only to

dismissal of two counts: Count VII, which seeks damages for
common law intentional infliction of emotional distress; and
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Count XI, which seeks damages for violation of Title IX.
Though vigorously asserted, neither of these objections has
traction.
With regard to Count VII, the Report correctly
concludes that, even accepting all the allegations of the
complaint, Defendants’ behavior would not, as a matter of
law, rise to the level of outrageousness necessary to
support a claim for intentional infliction of emotional
distress.

This conclusion is well supported, both by

general authorities detailing the standards for a claim of
this sort, and by specific cases involving precisely the
disciplinary context the parties confront here.

(Dkt. No.

54 at 43-44.)
Plaintiff’s arguments in support of his objection to
the dismissal of Count XI are similarly unavailing.

Title

IX of the Education Amendments of 1972, 20 U.S.C. §§ 168188, is a federal statute barring gender-based discrimination
in federally supported educational institutions.

As the

Report points out, a claim may be offered pursuant to Title
IX only where non-speculative evidence exists of
discrimination based on sex.

See, e.g., Yusuf v. Vassar

Coll., 35 F.3d 709, 715 (2d Cir. 1994).

Here, the complaint

offers no sufficient evidence –- indeed, no evidence of any
kind beyond conjecture –- supporting a claim that
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discrimination on the basis of gender was a motivating
factor in Defendants’ decision to suspend Plaintiff.

As the

Report and Recommendation notes, numerous courts have
dismissed claims for violation of Title IX in the face of
allegations substantially identical to those offered here.
(Dkt. No. 54 at 44-52.)

Analogous cases denying motions to

dismiss Title IX claims cite far more compelling facts.
Defendants’ objections to the Report and Recommendation
similarly fall short, but require more discussion.

A

summary of the facts that are undisputed at this stage is
necessary to make the basis for the court’s ruling clear.
The triggering incident, a sexual encounter between
Plaintiff Doe, a male, and a female fellow student -referred to in this litigation as Loe –- occurred on the
night, and during the early morning hours, of September 2627, 2014.

At that time, the only applicable standards

governing claims of sexual misconduct by a student were set
forth in the Student Code of Conduct contained in WNEU’s
2014-2015 Handbook.

Sexual misconduct was defined in the

Handbook as “any form of physical contact or exploitation of
another person of a sexual nature that is made without
effective consent.”

(Dkt. No. 54 at 18.)

Consent is

effective when “a person is able to make free, informed, and
reasonable choices and decisions -- and is not impaired by
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intoxication or other drug consumption . . . by disability,
or by fear.” (Id. at 19.)

The Handbook states, in bold

type, that consent is effective “when it has been clearly
communicated.

Consent may never occur if a person is

unconscious, unaware, or otherwise physically helpless.”
Id.
The undeveloped facts that led -- nine months after the
incident -- to the charges of misconduct against Plaintiff
may be summarized crudely as follows.
used in both senses.

The word “crudely” is

It is distasteful to have to get into

these details but unfortunately necessary.
Doe and Loe met at a party.

They consumed some

alcohol, but not enough to be impaired.
room, ostensibly to watch a movie.

They went to Doe’s

They began kissing.

mutual consent, they both removed all their clothing.

By
Loe

said she did not want to have penile-vaginal intercourse,
and Doe respected this.

By mutual consent, they began

performing oral sex on each other.

At some point, Loe said

she did not want to continue this, and Doe stopped.

At this

point, Doe’s and Loe’s versions of what happened appear to
diverge slightly.

According to Doe, he asked Loe to “finish

him off” so that he would not be left with “blue balls.”
She then masturbated him to ejaculation.

(Id. at 5.)

According to Loe, Doe said, “Now you have to finish me off,”
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placed her hand on his penis, and held it there until he
ejaculated.

(Id.)

It is undisputed that Loe never

explicitly voiced any disinclination to masturbate Doe or
tried to pull her hand away.
Based on this incident, Defendants eventually informed
Plaintiff that he was being charged with two violations of
Article III-A of the 2014-2015 Handbook’s Student Code of
Conduct.

Plaintiff prepared his defense to the charges

based on this disclosure.
Eventually, WNEU’s Conduct Review Board (CRB), the
quasi-judicial entity responsible for weighing the charges
and determining the sanction, found Plaintiff had committed
the violations and suspended him for two years.

The crucial

factual tipping point was that the CRB found Loe’s version
of the facts -- that Doe said, “now you have to finish me
off,” before placing her hand on his penis -- more credible
than Doe’s version, which was that he first said, “Could you
at least finish me off?”

(Id. at 11.)

Now the analysis reaches its key moment.

In issuing

its November 2015 sanction letter, the CRB relied not on the
provisions of the applicable 2014-2015 Handbook, but on
language contained in its Title IX policy.

It is undisputed

that this policy was not in effect in September 2014 when
Doe and Loe had their fateful encounter.
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Defendants argue vehemently that the CRB’s reference to
the Title IX policy has no bearing on the motion to dismiss,
since both the 2014-2015 Handbook and the Title IX policy
prohibit coerced sexual conduct of any kind and both define
coerced sex as sex without consent.
The problem with this argument is that the Title IX
policy defines what constitutes coerced sex significantly
more broadly than the Handbook.

The Title IX policy, but

not the Handbook, states that “[a]nything but a clear,
knowing and voluntary consent to any sexual activity is
equivalent to a ‘no.’” (Id. at 11.)

The CRB concluded that,

in the absence of clear and voluntary consent, the
masturbation was non-consensual and therefore coerced.

Id.

The emphasis in the Handbook is very largely on the
condition of the participants, their state of impairment,
and their ability to make reasonable judgments.

The demand

in the Title IX policy of clear, knowing and voluntary
consent, it might well be argued, takes the standard a step
beyond that.

It appears to require a higher degree of

explicitness for consent to be effective than may often be
found even in wholly voluntary encounters.
Reasonable people may debate which standard is
preferable.

It cannot fairly be denied, however, that the

Title IX standard demanded more than the Handbook required.
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Defendants concede that the Title IX policy was not in
effect at the time of Plaintiff’s alleged misconduct and was
therefore inapplicable.

Meticulous adherence to

definitional boundaries and notification requirements
regarding what constituted consent and coercion was
especially critical in determining whether discipline was
appropriate on this record’s factual landscape.

Certainly,

Judge Robertson was correct in concluding that, at a
minimum, Plaintiff is entitled to discovery before losing
his day in court on this issue.
For the foregoing reasons, upon de novo review, the
court hereby ADOPTS the Report and Recommendation (Dkt. No.
54) in its entirety.

Defendants’ Motion to Dismiss (Dkt.

No. 30) is hereby ALLOWED, except as to the portions of
Counts I and II identified in the Report and Recommendation
and as to Count XIII.
This case is hereby referred to Magistrate Judge
Robertson for a scheduling conference pursuant to Fed. R.
Civ. P. 16.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge

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