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
DISTRICT OF MASSACHUSETTS
JOHN DOE,

)
)
Plaintiff,
)
)
v.
)
)
WESTERN NEW ENGLAND UNIVERSITY, )
ET AL.,
)
)
Defendants.
)

Case No. 15-cv-30192-MAP

REPORT AND RECOMMENDATION REGARDING DEFENDANTS' MOTION TO
DISMISS PLAINTIFF'S AMENDED COMPLAINT
(Dkt. No. 30)
ROBERTSON, U.S.M.J.
I.

INTRODUCTION

Plaintiff John Doe ("Plaintiff") 1 has sued Western New England University ("WNEU" or
"University") and eight university employees (collectively "Defendants") regarding WNEU's
two-year suspension of Plaintiff in November 2015 for alleged sexual misconduct. In his first
amended verified complaint ("Complaint") (Dkt. No. 22), Plaintiff asserts the following causes
of action against the University: breach of contract (Count I); breach of the implied covenant of
good faith and fair dealing (Count II); estoppel and reliance (Count III); breach of the common
law duty of basic fairness (Count V); and a violation of Title IX (Count XI). Plaintiff brings a
claim against all Defendants for the intentional infliction of emotional distress ("IIED") (Count
VII). Plaintiff also seeks a declaratory judgment against the University under 28 U.S.C. § 2201
(Count XIII).

1

The parties have agreed that Plaintiff will proceed under a pseudonym (Dkt. No. 9).
1

Now before the court is Defendants' motion to dismiss all contested counts (Dkt. No.
30), 2 which was referred to the undersigned for report and recommendation (Dkt. No. 43). See
Fed. R. Civ. P. 72; 28 U.S.C. §636(b)(1)(b). The court heard argument from the parties on May
19, 2016. For the reasons stated below, the court recommends that the Defendants' motion to
dismiss be allowed as to Counts III (estoppel and reliance), IV (unjust enrichment), V (breach of
the common law duty of basic fairness), VI (negligence), VII (IIED), VIII (tortious interference
with advantageous business relations), IX (violations of the Clery Act and regulations), X
(violation of FERPA), and XI (violation of Title IX), and denied, in part, as to Counts I (breach
of contract), II (breach of the covenant of good faith and fair dealing), and XIII (declaratory
judgment).
II.

STANDARD OF REVIEW

Defendants move to dismiss the Complaint under Fed. R. Civ. P. 12(b)(6) (Dkt. No. 30).
"Motions to dismiss under Rule 12(b)(6) . . . test the sufficiency of the pleadings." Hagenah v.
Cmty. Enter., Inc., Case No. 15-cv-30036-KAR, 2016 WL 1170963, at *3 (D. Mass. Mar. 23,
2016). "To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to "state a claim [for] relief that is plausible on its face.'" Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

2

Plaintiff failed to oppose Defendants' contention that the following claims should be dismissed:
unjust enrichment (Count IV); negligence (Count VI); tortious interference with advantageous
business relations (Count VIII); a violation of the Clery Act and its regulations (Count IX); and a
violation of FERPA (Count X) (Dkt. No. 36). Plaintiff's failure to respond to Defendants'
request for dismissal of these claims constitutes a waiver. See Vallejo v. Santini–Padilla, 607
F.3d 1, 7 n.4 (1st Cir. 2010) ("[p]laintiffs have not cited a single authority in support of their
assertion that their failure to timely oppose the motion to dismiss did not constitute waiver" and
noting that "[p]laintiffs did not properly raise their arguments below"). See also Edsall v.
Assumption Coll., 367 F. Supp. 2d 72, 78 (D. Mass. 2005) (dismissing a count because plaintiffs
did not object to defendants' motion to dismiss). Plaintiff's amended complaint omits a Count
XII (Dkt. No. 22).
2

"Plausibility does not demand a showing that the claim is likely to succeed. It does, however,
demand a showing of 'more than a sheer possibility' of success." Butler v. Balolia, 736 F.3d 609,
616 (1st Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In order to meet the plausibility standard,
"[t]he plaintiff must proffer more than mere 'labels and conclusions' or 'naked assertions devoid
of further factual enhancement.'" Garrity, Levin & Muir, L.L.P. v. United States, No. CV 1511405-RGS, 2015 WL 6126816, at *2 (D. Mass. Oct. 16, 2015) (quoting Iqbal, 556 U.S. at 678).
The First Circuit has instructed that "[t]he plausibility inquiry necessitates a two-step
pavane." The court must first differentiate between "the complaint's factual allegations
(which must be accepted as true) from its conclusory legal allegations (which need not be
credited)." Next, "the court must determine whether the factual allegations are sufficient
to support 'the reasonable inference that the defendant is liable for the misconduct
alleged.'" Moreover, the First Circuit has "emphasize[d] that the complaint must be read
as a whole" and thus "[t]here need not be a one-to-one relationship between any single
allegation and a necessary element of the cause of action."
Doe v. Brown Univ., C.A. No. 15-144 S, 2016 WL 715794, at *4 (D.R.I. Feb. 22, 2016) (quoting
Garcia-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013)).
III.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

In deciding Defendants' motion to dismiss, the court must determine whether the facts
that are alleged in Plaintiff's Complaint and in documents that were submitted as exhibits to his
original complaint, which are incorporated by reference into the Complaint, clear the plausibility
hurdle (Dkt. Nos. 1, 22). 3 See Iqbal, 556 U.S. at 679. The court also considers facts drawn from

3

The documents incorporated by reference into the Complaint are: a letter from Plaintiff's
counsel to the University's general counsel dated July 6, 2015 (Dkt. No. 1-1); the University's
2015-2016 Student Handbook (Dkt. No. 1-2); the University's 2014-2015 Student Handbook
(Dkt. No. 1-3); minutes of a meeting on July 10, 2015, which was attended by Plaintiff, his
parents, his counsel, Defendant Donna-Rae Kenneally and Defendant Beth A. Hill (Dkt. No. 14); and the University's Discrimination/Harassment/Sexual Misconduct/Title IX Policy and
Procedures (Dkt. No. 1-6). See Trans-Spec Truck Serv. v. Caterpillar Inc., 524 F.3d 315, 321
(1st Cir. 2008) ("Exhibits attached to the complaint are properly considered part of the pleading
'for all purposes,' including rule 12(b)(6)") (quoting Fed. R. Civ. P. 10(c)).
3

documents whose authenticity is "not disputed by the parties" and documents that are
"sufficiently referred to" in Plaintiff's Complaint. Watterson v. Page, 987 F.2d 1, 3 (1st Cir.
1993). 4 "Because this is a motion to dismiss and the [c]ourt must 'assume the truth of the wellpleaded facts and indulge all reasonable inferences therefrom,'" the facts are construed in the
light most favorable to Plaintiff. Brown Univ., 2016 WL 715794, at *2 n.3 (quoting Arruda v.
Sears, Roebuck & Co., 310 F.3d 13, 18 (1st Cir. 2002)).
A.

September 26-27, 2014: The Sexual Encounter between Plaintiff and Loe

Plaintiff, who is a Maine resident, was a full-time student at the University in September
2014 (Dkt. No. 22 ¶41). 5 According to Plaintiff, after he and a female student, Linda Loe
("Loe"), 6 attended a party on the University's campus on the evening of September 26, 2014,
they eventually went to Plaintiff's dormitory room where they kissed, removed their clothes, and

4

On a motion to dismiss, the court may properly take into account documents that are: (1) of
undisputed authenticity; (2) official public records; (3) central to plaintiff's claim; and (4)
sufficiently referred to in the complaint. See Doe v. Brandeis Univ., Civil Action No. 15-11557FDS, 2016 WL 1274533, at *6 n.1 (D. Mass. Mar. 31, 2016) (citing Watterson, 987 F.2d at 3).
Here, the court considers the following documents, which were submitted in support of
Defendants' motion to dismiss (Dkt. No. 31): the summary of the complainant's interview with
Defendant Joanne Ollson on June 16, 2015 (Dkt. No. 22 ¶¶95-115; Dkt. No. 31-1); the notice to
Plaintiff of the interview and investigation (Dkt. No. 31-2); the summary of the complainant's
interview with Kenneally and Hill on July 14, 2015 (Dkt. No. 22 ¶¶138-151; Dkt. No. 31-5); the
summary of the complainant's interview with Kenneally and Hill on September 1, 2015 (Dkt.
No. 22 ¶¶165-170; Dkt. No. 31-6); e-mail messages of September 1, 2015 between Ollson and
Hill (Dkt. No. 22 ¶¶182, 184; Dkt. No. 31-7); the notice to Plaintiff of the pre-hearing
informational meeting (Dkt. No. 31-8); the notice to Plaintiff of the conduct review hearing (Dkt.
No. 31-9); e-mail messages exchanged between Plaintiff's attorney and the University's general
counsel in October 2015 (Dkt. No. 22 ¶¶218-221; Dkt. No. 31-10); the notice to Plaintiff of the
decision and recommended sanction after the conduct review hearing (Dkt. No. 31-13); and
Defendant Jeanne Harte-Steffes's response to Plaintiff's appeal (Dkt. No. 31-14).
5

The University is a private institution that receives federal funds (Dkt. No. 22 ¶43).

6

The parties identify the complainant by this pseudonym.
4

engaged in sexual touching and "consensual mutual and simultaneous oral sex" (id. at ¶¶20, 52).
Plaintiff sought Loe's consent to engage in sexual intercourse (id. at ¶20). Plaintiff honored
Loe's stated "no" (id. at ¶¶20, 53). They continued to engage in mutual oral sex until Loe
indicated that she wanted to stop (id.). Plaintiff complied with her request (id.). According to
Plaintiff, he asked Loe to "finish him off" so that he would not be left with "blue balls" (id. at
¶21). She masturbated him to ejaculation (id.). Loe, however, indicated that Plaintiff said, "Now
you have to finish me off," placed her hand on his penis, and held it there until he ejaculated
(id.).
After Loe dressed and left Plaintiff's room, she sent text messages to at least two friends
conveying details of her experience through words and positive "emojis" 7 (id. at ¶¶56, 58-60).
Other students, including Plaintiff's roommate, indicated that Loe did not display any unease
when she was in Plaintiff's presence after September 27, 2014 (id. at ¶61).
B.

Loe's Complaint against Plaintiff to the University's Title IX Officer and the
University's Investigation

On June 16, 2015, Loe reported the September 26-27, 2014 incident to Defendant Joanne
Ollson, the University's Title IX officer (id. at ¶¶46, 95). Loe told Ollson that her attendance at a
sexual assault prevention workshop in January 2015 precipitated her report (Dkt. No. 22 ¶112;
Dkt. No. 31-5 at 3; Dkt. No. 31-14 at 5). In her first report about the encounter, Loe alleged that
after Plaintiff asked her questions that made her '"uncomfortable,'" he got on top of her, ripped
off her clothes, digitally penetrated her vagina, and forced her to fellate him and to submit to oral
sex, despite her repeated protests of "no" (Dkt. No. 22 ¶¶102-109; Dkt. No. 31-1 at 2-4). Loe

7

An "emoji" "is a pictograph included in a text message." Enjaian v. Schlissel, No. 14-CV13297, 2015 WL 3408805, at *6 n.9 (E.D. Mich. May 27, 2015).

5

told Ollson that, the following day, she sent text messages to her best friend about the incident
(Dkt. No. 31-1 at 3). She requested no contact with Plaintiff (id.).
On June 26, 2015, after Loe's report to Ollson, Defendants Donna Rae Kenneally and
Beth A. Hill, the University's Title IX investigators, informed Plaintiff by letter that the
University was investigating "an allegation that [he] may have engaged in acts of serious
misconduct," including sexual misconduct (Dkt. No. 22 ¶64; Dkt. No. 31-2 at 2, 3). 8 Plaintiff
was notified that he "need[ed]" to meet with the University's investigators for an interview (Dkt.
No. 31-2 at 2). In addition, the letter supplied details of the process "to ensure that [it was] . . .
transparent," and enclosed and referred Plaintiff to the University's "Title IX Discrimination
Policy" ("Title IX Policy" or "Policy"), which was updated and implemented in November 2014,
for the "applicable procedures," including his entitlement to an advisor in a limited role (Dkt. No.
1-6 at 2, 13; Dkt. No. 31-2 at 2-3). Plaintiff was directed to consult the Student Code of Conduct
in the 2014-2015 Student Handbook ("Handbook") for details of his "specific rights," and was
advised to have no contact with Loe (Dkt. No. 22 ¶67; Dkt. No. 31-2 at 2-3).
Kenneally and Hill interviewed Plaintiff on July 10, 2015 in the presence of his counsel
and the University's general counsel (Dkt. No. 22 ¶122). At the outset of the meeting, Hill told
Plaintiff that she was the University's Title IX investigator and that the investigation would be
"'totally neutral'" (id. at ¶123). When the investigators asked Plaintiff for his "'side of the story,'"
his counsel intervened and asked that Plaintiff be advised of the allegation prior to speaking to
the investigators (Dkt. No. 22 ¶¶124-127; Dkt. No. 31-4 at 2). Plaintiff and his counsel reviewed
Ollson's summary of her June 16, 2015 interview of Loe (Dkt. No. 22 ¶127; Dkt. No. 31-4 at 2).

8

Kenneally was the University's Manager of Benefits Administration (Dkt. No. 22 ¶50). Hill
was the University's Senior Associate Director of Residence Life (id. at ¶48).
6

Plaintiff's counsel copied "the relevant portions of the document by hand" because the University
did not provide Plaintiff with a copy of the interview summary (Dkt. No. 22 ¶¶130-131; Dkt. No.
31-4 at 2).
As Plaintiff's counsel copied the summary, Hill "began yelling at [Plaintiff], aggressively
insisting that [Plaintiff] could not take any more time to review . . . Ollson's interview summary
of Loe, and insisting that [Plaintiff] had to immediately start answering her questions" (Dkt. No.
22 ¶132). Plaintiff's counsel informed Hill that he would not permit her to "bully" Plaintiff and
that her behavior indicated that she was not a "'neutral' investigator" (Dkt. No. 22 ¶133; Dkt. No.
31-4 at 2). After counsel conferred with Plaintiff, counsel informed the investigators that
Plaintiff declined to be interviewed (Dkt. No. 22 ¶136; Dkt. No. 31-4 at 2). Counsel requested
copies of relevant documents (Dkt. No. 22 ¶137; Dkt. No. 31-4 at 2). 9
Loe was interviewed twice by Kenneally and Hill. During the first interview on July 14,
2015, Loe indicated that she did not object when Plaintiff kissed her (Dkt. No. 22 ¶138; Dkt. No.
31-5 at 2). She said she refused Plaintiff's request to remove her clothing, but she could not
recall how or when her clothing was removed (Dkt. No. 22 ¶¶142, 143, 149; Dkt. No. 31-5 at 23). Her clothing was not torn (Dkt. No. 22 ¶148; Dkt. No. 31-5 at 3). When Plaintiff asked Loe
to have sexual intercourse, she said, "no," and he honored her communication; that is, they did
not have penile/vaginal intercourse (Dkt. No. 22 ¶¶144, 145; Dkt. No. 31-5 at 2-3). According to

9

On September 1, 2015, Hill sent an e-mail message to Ollson, which summarized Loe's
requests for no contact with Plaintiff, and indicated that Hill wanted to "reach out to [Plaintiff]
and offer any opportunities in which he would feel more comfortable on campus" (Dkt. No. 22
¶182; Dkt. No. 31-7 at 2). Hill sought Ollson's guidance on the appropriate way to communicate
with Plaintiff since his attorney asked that all contact with Plaintiff be made through him (Dkt.
No. 31-7 at 2). Ollson responded that she "believ[ed] that [Plaintiff] should be the one to request
[no contact] measures as [Loe] has" (Dkt. No. 22 ¶184; Dkt. No. 31-7 at 2).
7

Loe, Plaintiff performed cunnilingus while his penis was in her mouth (Dkt. No. 22 ¶155; Dkt.
No. 31-5 at 3). When Loe told Plaintiff to "stop," he complied with her request, and told her that
she had "'to finish [him] off'" (Dkt. No. 22 ¶¶157, 158; Dkt. No. 31-5 at 3). He "put [Loe's] hand
on his penis and ejaculated" (Dkt. No. 22 ¶158; Dkt. No. 31-5 at 3).
Kenneally and Hill's second interview with Loe was on September 1, 2015, after their
interviews of "multiple witnesses" (Dkt. No. 22 ¶¶163, 165; Dkt. No. 31-6 at 2). Loe indicated
that although she had consumed about three drinks at the party, she was not incapacitated (Dkt.
No. 22 ¶166; Dkt. No. 31-6 at 2). This time, Loe said that after she and Plaintiff performed
mutual oral sex for less than a minute, Loe said, "no" (Dkt. No. 31-6 at 2). Plaintiff said,
"'[F]ine, you have to finish me off'" (Dkt. No. 31-6 at 2). Loe was not sure whether Plaintiff
ejaculated in her hand or on the bed (Dkt. No. 22 ¶167; Dkt. No. 31-6 at 2). Loe told the
investigators that her pants were torn at the seam (Dkt. No. 22 ¶168; Dkt. No. 31-6 at 2).
C.

The Pre-hearing Informational Meeting

With counsel, Plaintiff attended a pre-hearing informational meeting on October 14, 2015
in the office of Defendant Kymberly Hendricks, the University's Assistant Director of Residence
Life for Programming and Graduate Housing (Dkt. No. 22 ¶¶51, 189). The University's general
counsel also attended the meeting (id. at ¶189). Hendricks told Plaintiff, "'It's the University
versus the student'" (id. at ¶¶198, 199). The University's general counsel repeatedly informed
Plaintiff that he "was in the predicament he was in because [he] had 'failed to come forward' to
provide his own statement about what had happened" (id. at ¶194).
Hendricks presented Plaintiff with a document entitled "Pre-hearing Informational
Meeting, Cases involving Consideration of Suspension or Dismissal from [WNEU]" (Dkt. No.
22 ¶190; Dkt. No. 31-8 at 2-3). This document described the Alleged Misconduct that would be

8

the subject of the hearing as violations of the 2014-2015 Handbook's "Student Code of Conduct,
Article III-A: Offenses Against Another Person(s)," and "Sexual Harassment and Sexual
Misconduct Policy" (Dkt. No. 1-3 at 37, 54; Dkt. No. 22 ¶191; Dkt. No. 31-8 at 2). The form
also explained the possible sanctions for the alleged misconduct, including dismissal and
suspension, the format of the "judicial hearing," as well as the procedures that would be
employed at the hearing (Dkt. No. 31-8 at 2-3).
The form notified Plaintiff of his obligations to provide a list of witnesses to Hill by a
certain date and to present a written statement to the hearing board, and stated that it was
Plaintiff's responsibility to ensure that his witnesses attended the hearing on time (Dkt. No. 31-8
at 3). Plaintiff was referred to specific articles within Sections III and IV of the Student Conduct
Code in the Handbook for additional details (id.). By his signature, Plaintiff confirmed that he
received a copy of the form as well as copies of the witness list and advisor forms that he was
required to return (id.). 10 Plaintiff and his counsel were provided access to the University's
investigative file, which they were not given time to review in its entirety (Dkt. No. 22 ¶¶195,
203-204, 216-217). 11
D.

The Conduct Review Hearing and Plaintiff's Suspension

10

The form stated: "I am aware that I may seek assistance from an advisor of my choice. I
understand that my advisor may attend my hearing, but may not speak for me." Plaintiff was
required to provide the advisor's name to Hill (Dkt. No. 31-8 at 2-3).

11

Plaintiff and his counsel were offered the opportunity to view documents and the contents of a
thumb drive on a computer in Hendricks's office (Dkt. No. 22 ¶210). Plaintiff understood that
the thumb drive contained Loe's text messages as well as "hundreds of photos and audio
messages" (Dkt. No. 22 ¶209). Plaintiff and his counsel did not have time to view the contents
of the thumb drive because they used the allotted hours to hand-copy hundreds of paper
documents in the investigative file (Dkt. No. 22 ¶¶94, 211, 217). As a result, Plaintiff did not
hear "hundreds of audio messages" and did not see "hundreds of photographs" that the
University obtained from Loe's cell phone (Dkt. No. 22 ¶¶214, 215).
9

On October 26, 2015, Hill notified Plaintiff that Defendants Sean Burke and Adina
Elfant, Ph.D., the Conduct Review Board ("CRB"), would hold the hearing on November 3,
2015 (Dkt. No. 22 ¶218; Dkt. No. 31-9 at 2). 12 The letter repeated the two alleged violations of
the Student Code of Conduct with which Plaintiff was charged: the Student Code of Conduct,
Article III-A: Offenses Against Another Person(s); and the Sexual Harassment and Sexual
Misconduct Policy (Dkt. No. 31-9 at 2). A list of witnesses and advisors for the University, Loe,
and Plaintiff was attached to the letter (id.). 13 Hill advised Plaintiff that it was his responsibility
to contact his advisor and witnesses and to ensure their timely appearance (Dkt. No. 22 ¶218;
Dkt. No. 31-9 at 2).
Plaintiff submitted a written statement at the conduct review hearing and orally presented
his version of events (Dkt. No. 22 ¶22; Dkt. No. 31-13 at 2). The CRB "repeatedly refused" to
pose Plaintiff's proposed questions to witnesses, while they asked most of Loe's proposed
questions (Dkt. No. 22 ¶¶249, 250, 251). In addition, the hearing officers permitted Loe to
"make lengthy self-laudatory statements" (id. at ¶253).
On November 6, 2015, the CRB issued a sanction letter notifying Plaintiff of a two year
suspension from the University (Dkt. No. 22 ¶255; Dkt. No. 31-13). The letter referenced the
two standards within the Student Code of Conduct that Plaintiff was alleged to have violated;
that is, "Article III-A: Offenses Against Another Person(s)" and the "Sexual Harassment and
Sexual Misconduct Policy," and continued by finding that, more likely than not, Plaintiff

12

Burke was the University's Associate Director of Residence Life and Deputy Title IX officer
(Dkt. No. 22 ¶49). Elfant was the University's Assistant Dean for Experiential Learning and
Career Development (id. at ¶47).

13

The list was not provided to the court.
10

violated "both of the standards of the Student Code of Conduct under which [he] was charged"
(Dkt. No. 31-13 at 2). This conclusion was "[b]ased on written statements provided . . . as well
as the verbal statements of those who participated in the hearing" (id.). The hearing officers
made the following factual findings: that Plaintiff and Loe consented to kissing; that Plaintiff
and Loe "engaged in other physical activity of a sexual nature;" that Loe did not want to have
sexual intercourse and that they did not engage in penile/vaginal intercourse; and that both
Plaintiff and Loe acknowledged that Loe's hand was on Plaintiff's penis and she "'finished [him]
off'" (id.).
The CRB relied on two portions of the University's Title IX Policy, as follows, as a basis
for their decision that Plaintiff had violated the Student Code of Conduct:
The masturbation occurred after it was determined that there would not be penile/vaginal
intercourse. According to statements from both [Plaintiff] and Loe, Loe said "no" to
intercourse and [Plaintiff was] aware that she said no to intercourse. Loe's statement
indicates that [Plaintiff] said, "now you have to finish me off" while [Plaintiff] claim[s]
[he] asked her "Could you at least finish me off? Don't leave me with blue balls."
According to University Title IX Policy (p.3) Prohibited Conduct: Sexual Misconduct
http://www1.wne.edu/assets/45/TitleIXDiscrimination7.15.pdf "Coercing someone into
sexual activity violates this policy in the same way as physically forcing someone into
sex. Coercion occurs when someone is pressured for sex." According to the statements
provided, we found Loe's statement to be more plausible and therefore determined that it
is more likely than not that Loe's masturbation of [Plaintiff] was a coerced act.
According to University Title IX Policy (p.3) – Prohibited Conduct: Sexual Misconduct
http://www1.wne.edu/assets/45/TitleIXDiscrimination7.15.pdf "Anything but a clear,
knowing and voluntary consent to any sexual activity is equivalent to a "no." Loe stated,
and [Plaintiff] acknowledged, that she said "no" to sexual intercourse. Loe further stated
that she said "no" to other sexual activity. Loe stated that "[Plaintiff] held my hand with
his hand on his penis until he ejaculated. He made me feel I had no choice by forcing me
to finish." At the hearing [Plaintiff] claimed that this sexual encounter was consensual.
Based on these statements, we believe that it is more likely than not that Loe did not
clearly and voluntarily consent to the masturbation and that it was a non-consensual and
coerced act.

11

(Dkt. No. 22 ¶¶258, 260; Dkt. No. 31-13 at 2-3) (italics original). 14
The CRB indicated that the two year suspension was "effective immediately" and that
Plaintiff could return to the University for the Fall 2017 semester as long as he completed "an
educational training on sexual misconduct" and provided proof of the training to the University
(Dkt. No. 31-13 at 3). Plaintiff was notified that Article VII-B of the Student Code of Conduct
provided that "[s]uspension is noted in the student's file and on the student's transcript during the
term of suspension" and "[i]f suspension occurs during a semester in progress, University
practice mandates that all courses become administrative withdrawals" (id.). Plaintiff was
advised of his right to appeal to Defendant Jeanne Hart-Steffes, the Vice President for Student
Affairs and Dean of Students, which he did (Dkt. No. 31-13 at 3; Dkt. No. 22 at ¶272). 15
Hart-Steffes denied Plaintiff's appeal (Dkt. No. 22 ¶274; Dkt. No. 31-14 at 2). In
response to Plaintiff's argument that he was found in violation of "'a policy that did not even
exist,'" Hart-Steffes stated that the policy existed and cited:
[p]age 182 of the 2014-2015 [WNEU] Student Handbook[, which] states, "Sexual
misconduct refers to ANY (emphasis added) form of physical conduct or exploitation of
14

The links accessed the University's "Discrimination/Harassment/Sexual Misconduct/Title IX
Policy and Procedures," which were updated and implemented in November 2014 and revised as
of July 15, 2015 (Dkt. No. 1-6; Dkt. No. 22 ¶¶260, 261).

15

Regarding the review of conduct decisions by the Vice President for Student Affairs and Dean
of Students, the 2015-2016 Handbook states, in relevant part:
Respondents are not entitled to a re-hearing of the case. Respondents may seek one
review only on the basis of the following:
a.
b.
c.

a procedural error that unfairly and materially affected the outcome of the
case;
the discovery of new information that could reasonably be expected to
alter the decision and was not available at the time of the hearing; or
the sanction is inconsistent with the gravity of the offense.

(Dkt. No. 1-2 at 45).
12

another person of a sexual nature that is made without effective consent." Additionally
the 2014-2015 Student Code of Conduct prohibits any act of coercion even if not spelled
out explicitly. . . The University also has the obligation to revise its policies to be in
compliance with local state and federal mandates. As such, the University distributed its
sexual misconduct policy to the University community in late 2014. The word
"coercion" served as a clarification to the act of un-consented to sexual conduct pursuant
to the University's obligation under Title IX.
(Dkt. No. 22 ¶277; Dkt. No. 31-14 at 2, 3). She further advised that Plaintiff received
"procedural protections" under the Title IX Policy, which were "more expansive" than the rights
articulated in the 2014-2015 Student Code of Conduct (Dkt. No. 31-14 at 2). For example, the
Title IX Policy permitted an attorney to act as an advisor, but the Student Code of Conduct did
not (id.).
Hart-Steffes rejected Plaintiff's twelve other claimed errors in the hearing process, which
included alleged denials of access to information prior to the hearing, complaints about Plaintiff's
witnesses' absence, and imposition of an unfair sanction (Dkt. No. 22 ¶273; Dkt. No. 31-14 at 35). She found that the hearing officers "followed [the University's] process and procedures
exactly as they should" and that the two-year suspension was fair and reasonable (Dkt. No. 31-14
at 5). Hart-Steffes, however, put Plaintiff's Fall 2015 suspension in abeyance, permitted Plaintiff
to complete his courses as an "on-line student" where possible, and allowed him to take his final
examinations on campus "[w]ith special permission" (Dkt. No. 31-14 at 5-6).
E.

Procedural History in this Court

Plaintiff filed his original complaint against Defendants on November 2, 2015 (Dkt. No.
1). After a hearing, the district court denied Plaintiff's motions for a temporary restraining order
and preliminary injunction on November 3, 2015 (Dkt. Nos. 5, 7, 20). Plaintiff filed the
Complaint on November 23, 2015 (Dkt. Nos. 22, 23). Defendants moved to dismiss (Dkt. No.
30). Defendants' motion was referred to this court on March 9, 2016 (Dkt. No. 43).

13

IV.

DISCUSSION

A.

Breach of Contract (Count I)

The parties agree that Massachusetts law applies in this case, and that under state law, the
relationship between a student and a university is based on contract (Dkt. No. 22 ¶70; Dkt. No.
33 at 2 n.3; Dkt. No. 36 at 7). 16 See Cloud v. Trs. of Boston Univ., 720 F.2d 721, 724 (1st Cir.
1983). "The terms of this contract were the terms contained in the Student Handbook and other
college materials." Bleiler v. Coll. of the Holy Cross, Civil Action No. 11-11541-DJC, 2013 WL
4714340, at *14 (D. Mass. Aug. 26, 2013), appeal dismissed, No. 13-2245 (1st Cir. Apr. 30,
2015). See Cloud, 720 F.2d at 724.
Count I of the Complaint asserts that the University breached its contract with Plaintiff by
(1) applying the Title IX Policy retroactively to the incident between Plaintiff and Loe; (2)
failing to investigate; (3) violating Plaintiff's right to an effective advisor throughout the
investigation and at the hearing; (4) failing to provide Plaintiff with copies of the records to
which he was entitled; (5) failing to secure the presence of witnesses favorable to Plaintiff at the
hearing; and (6) violating its obligations to presume Plaintiff innocent, to bear the burden of
proof and the burden of production of evidence at the hearing, and to apply the correct standard
of proof (Dkt. No. 22 ¶286).
Due to the time that elapsed between the alleged sexual contact and WNEU's
investigation and formal disciplinary proceedings, the contract terms are contained in three
documents: the 2014-2015 and 2015-2016 Handbooks, which included the Student Code of

16

"To prevail on a claim for breach of contract [in Massachusetts], a plaintiff must demonstrate
that there was an agreement between the parties; the agreement was supported by consideration;
the plaintiff was ready, willing, and able to perform his or her part of the contract; the defendant
committed a breach of the contract; and the plaintiff suffered harm as a result." Bulwer v. Mount
Auburn Hosp., 46 N.E.3d 24, 39 (Mass. 2016).
14

Conduct, and descriptions of the student judicial system and the judicial process (Dkt. No. 1-2 at
3-4 [2015-2016 Handbook]; Dkt. No. 1-3 [2014-2015 Handbook] at 4-5); and the Title IX
Policy, which contained standards of conduct and the complaint resolution procedure (Dkt. No.
1-6). The parties agree that the 2014-2015 Handbook's provisions applied to Plaintiff's alleged
sexual misconduct in September 2014, and to the investigation in June and July 2015 (Dkt. No.
22 ¶¶263, 264, 270; Dkt. No. 33 at 2 n.3, 23-24). See Doe v. Brandeis Univ., Civil Action No.
15-11557-FDS, 2016 WL 1274533, at *14, *27 (D. Mass. Mar. 31, 2016) (hereinafter Brandeis)
(university "applied the substantive policies (but not the procedures) for the academic year in
which the conduct occurred"); Coveney v. President & Trs. of the Coll. of the Holy Cross, 445
N.E.2d 136, 140 (Mass. 1983) (applying the terms of the student handbook in effect at the time
of the incident and student's expulsion). Defendants do not dispute that the Title IX Policy was
"updated and implemented in November 2014" and amended in July 2015 (Dkt. No. 33 at 2324), which made it applicable to the investigation in June and July 2015 and to the formal
disciplinary process, which commenced in October 2015 (Dkt. No. 1-6 at 2, 13; Dkt. No. 22
¶261). See Brandeis, 2016 WL 1274533, at *11 (university properly applied the procedures in
affect at the time of the investigation and disciplinary decision). In addition, the 2015-2016
Handbook's procedures also applied to the formal disciplinary process. See id. 17
"When interpreting contracts between students and their academic institutions, under
Massachusetts law courts 'employ "the standard of reasonable expectation – what meaning the
party making the manifestation, the university, should reasonably expect the [student] to give
it."'" Bleiler, 2013 WL 4714340, at *15. See also Havlik v. Johnson & Wales Univ., 509 F.3d

17

The "Judicial Process" sections of the 2015-2016 Handbook are substantially similar to the
analogous portions of the 2014-2015 Handbook. Compare Dkt. No. 1-2 at 42-46 with Dkt. No.
1-3 at 44-47.
15

25, 34-35 (1st Cir. 2007); Cloud, 720 F.2d at 724; Schaer v. Brandeis Univ., 735 N.E.2d 373,
378 (Mass. 2000). "Contract interpretation, including whether any ambiguities exist in the
disputed contractual terms, is generally a question of law for the [c]ourt." Bleiler, 2013 WL
4714340, at *15 (citing Driscoll v. Bd. of Trs. of Milton Acad., 873 N.E.2d 1177, 1185-86 (Mass.
App. Ct. 2007)). "Where, as here, the university specifically provides for a disciplinary hearing .
. . [the court] review[s] the procedures followed to ensure that they fall within the range of
reasonable expectations of one reading the relevant rules." Cloud, 720 F.2d at 724–25. As is the
case with interpretation of the Handbook provisions, "an objective reasonableness standard"
applies. Walker v. President & Fellows of Harvard Coll., 82 F. Supp. 3d 524, 530 (D. Mass.
2014) (quoting Cloud, 720 F.2d at 724-25).
Plaintiff recites a litany of complaints about the process, each of which is addressed
below. In the court's view, only two of these state actionable breach of contract claims.
1.

The University Breached the Contract by Retroactively Applying the Title
IX Policy to Plaintiff's Conduct.

The sexual encounter between Plaintiff and Loe occurred on September 26-27, 2014,
more than six weeks before the University implemented the Title IX Policy that it relied on to
conclude that Plaintiff had engaged in sexual misconduct (Dkt. No. 1-6 at 13; Dkt. No. 22 ¶3).
After Loe's complaint to the Title IX officer in June 2015, the University notified Plaintiff that he
allegedly violated two Student Code of Conduct provisions contained in the 2014-2015
Handbook (Dkt. No. 1-3 at 37, 54; Dkt. No. 31-8 at 2-3). In determining that Plaintiff was
responsible for violating the University's sexual misconduct policy, however, the CRB applied
the University's Title IX Policy's descriptions of sexual misconduct implemented after the sexual
contact at issue (Dkt. No. 22 ¶¶258, 260; Dkt. No. 31-13 at 2-3). Plaintiff's assertion that the
University violated its agreement with him encompasses two related claims: (1) he did not
16

receive notice of the prohibited conduct for which he was ultimately found responsible; and (2)
prior to the hearing, he did not have notice of the policy that he was alleged to have violated
(Dkt. No. 22 ¶286). Because the court is not persuaded by the University's argument that the
Title IX Policy merely filled a "definitional hole" in its prior sexual misconduct policy (Dkt. No.
33 at 24), the court finds that Plaintiff states a plausible claims for relief.
The pertinent segments of the 2014-2015 Handbook and the Title IX Policy are as
follows.
a.

Section III of the 2014-2015 Student Handbook, including
description of Title IX

Section One articulates the following "Guiding Philosophy":
The goals of this Student Code of Conduct and the corresponding review processes are to
help students understand and accept their obligations as members of the community and
to advance the University's educational mission by defining and establishing certain
norms of behavior. The rules and policy statements that follow serve to clarify
commonly accepted standards of conduct by members and prospective members of this
University community.
(Dkt. No. 1-3 at 35). 18
Section Two contains the Student Code of Conduct (Dkt. No. 1-3 at 35). Article III of
the Student Code of Conduct describes "Specific Standards of Behavior" as follows:
Certain behaviors by any student, students, or student organizations can violate the
Student Code of Conduct. Prohibited behaviors include, but are not limited to:
A. Offenses Against Another Person(s), such as:
Intentionally or recklessly threatening or causing another person emotional
distress;
...

18

The portion of the Handbook that discusses Residence Life says that the policies and
procedures "exist to inform students of both their rights and their responsibilities as students"
(Dkt. No. 1-3 at 18-19; Dkt. No. 22 ¶¶263, 270).
17

Any actual or threatened non-consensual sexual act or misconduct. Nonconsensual presumes that the other person is able to make a reasonable judgment
under the circumstances and is not impaired by intoxication, unconsciousness, or
other incapacity. If the other person is impaired, a student may not guess, assume,
or infer consent. . . .
(Dkt. No. 1-3 at 37).
F. Responsibility for Standards of Behavior
Students are also responsible for all policies in Section III of this [H]andbook entitled
"Standards of Behavior and Student Accountability," specifically:
Student Code of Conduct
...
Sexual Harassment and Sexual Misconduct Policy
Additional Standards and Policies (. . . Title IX).
(Dkt. No. 1-3 at 38).
The relevant portions of the Sexual Harassment and Sexual Misconduct Policy, which is
contained in Section III of the 2014-2015 Handbook, states:
In Massachusetts, sexual harassment means unwelcome sexual advances, requests for
sexual favors, and/or physical conduct of an unwelcome sexual nature, when:
...
Such advances, requests or conduct have the purpose or effect of unreasonably
interfering with an individual's work performance by creating an intimidating,
hostile, humiliating or sexually offensive work environment or, in the educational
living/learning setting, the creation of [a] similarly hostile, humiliating, or
sexually offensive academic or student residential environment.
...
Other sexually-oriented conduct that is unwelcome and has the effect of creating a
workplace and/or learning environment that is hostile, offensive, intimidating, or
humiliating to male or female members of the University community may also constitute
sexual harassment. While it is not possible to list all circumstances that may constitute
sexual harassment, the following are some examples of conduct which, depending on
each circumstance, may constitute sexual harassment:
Unwelcome sexual advances, whether they involve physical contact or not;
...
Sexual misconduct refers to any form of physical contact or exploitation of another
person of a sexual nature that is made without effective consent. Effective consent means
18

that a person is able to make free, informed, and reasonable choices and decisions – and
is not impaired by intoxication or other drug consumption (be it voluntary or otherwise),
by disability, or by fear. Sexual behavior without effective consent can lead to sexual
misconduct, sexual assault, and/or sexual harassment. Consent is effective when it has
been clearly communicated. Consent may never occur if a person is unconscious,
unaware, or otherwise physically helpless.
(Dkt. No. 1-3 at 53-54) (emphasis original).
The last page of the 2014-2015 Handbook contains a single paragraph describing Title IX
(Dkt. No. 1-3 at 61). This section indicates that WNEU "does not discriminate on the basis of
sex in its education programs; sexual harassment and sexual violence are types of sex
discrimination that will not be tolerated at the University" (id.). It also lists the Title IX officer,
Ollson, and the two deputies, Burke and another (Dkt. No. 1-3 at 62).
b.

The Title IX Policy

The Title IX Policy, implemented on November 17, 2014, describes "Prohibited
Conduct," including "Sexual Misconduct" and "Sexual Assault" (Dkt. No. 1-6 at 4-6, 13), as
follows:
Sexual Misconduct[:] A violation of this policy may occur if one party engages in sexual
activity with another party without consent. In order for individuals to engage in sexual
activity of any kind with each other, there must be clear knowing [sic] and voluntary
consent prior to and during sexual activity. Effective consent means that a person is able
to make free, informed, and reasonable choices and decisions, and is not impaired by
intoxication or other drug consumption (be it voluntarily or otherwise), by disability, or
by fear. Consent is effective when it has been clearly communicated. Consent may
never occur if a person is unconscious, unaware, or otherwise physically helpless.
Anything but a clear, knowing and voluntary consent to any sexual activity is equivalent
to a "no."
Coercing someone into sexual activity violates this policy in the same way as physically
forcing someone into sex. Coercion occurs when someone is pressured for sex.
In short, consent may include explicit communication and mutual approval of the sexual
activities in which the parties are involved. For consent, individuals involved in the
sexual activity must willingly and knowingly engage in the activity. As a result, consent
cannot be given due to physical force, intimidating behavior, threats, or coercion.
19

Engaging in sexual activity with someone through force, intimidation, threats, or coercion
is a violation of this policy. Further consent cannot be given by an individual who is
incapacitated. . . . Sexual misconduct offenses include but are not limited to, sexual
harassment, sexual assault, and sexual violence as defined below.
(Dkt. No. 1-6 at 4) (emphasis added).
Sexual Assault: The term "sexual assault" means any nonconsensual sexual act
proscribed by Federal, tribal, or State law, including when the victim lacks capacity to
consent.
Sexual assault includes, but is not limited to:
...
Coercing, forcing, or attempting to coerce or force a person to touch another
person's intimate parts without that person's consent.
(Dkt. No. 1-6 at 5-6). The Title IX Policy continues by describing the University's reporting
requirements, including the requirements for claims of sexual misconduct and the resulting
investigation (Dkt. No. 1-6 at 7-8). The Policy states that the procedures for the resolution of
claims that are outlined in the Handbook's Student Code of Conduct in the Student Handbook
apply to cases in which the respondent is a student, and provides a link to the 2014-2015
Handbook for a description of these procedures (Dkt. No. 1-6 at 8).
c.

Notice of prohibited conduct.

The purpose of the Handbook's Student Code of Conduct in September 2014 was to "help
students understand and accept their obligations as members of the community" (Dkt. No. 1-3 at
35). The rules and policy statements were aimed at "clarify[ing] commonly accepted standards
of conduct" (id.). In other words, the Student Code of Conduct was the contract between the
University and Plaintiff, which gave Plaintiff notice that the failure to comply with defined
standards of conduct could lead to sanctions.
The question, therefore, is whether, under an objective standard, the University
reasonably could expect a student in Plaintiff's position to understand that the 2014-2015

20

Handbook prohibited the conduct in which he engaged with Loe. See Cloud, 720 F.2d at 724;
Bleiler, 2013 WL 4714340, at *15 (citing Schaer, 735 N.E.2d at 378). In defining sexual
misconduct and consent, the 2014-2015 Handbook and the Title IX Policy draw nuanced
distinctions that may be difficult for a college student, not trained in the law, to understand and
apply. Nonetheless, as a student at WNEU, Plaintiff agreed to abide by Defendant's student
Standards of Behavior, including the sexual harassment and sexual misconduct policy and the
Title IX Policy. The Title IX policy in effect when Plaintiff and Loe had their sexual encounter
in September 2014 provided only that sexual harassment and sexual violence were forms of
sexual discrimination that would not be tolerated (Dkt. No. 1-3 at 61). Thus, under the
agreement between Plaintiff and Defendant, Plaintiff’s obligation, at the time of his sexual
encounter with Loe, was to comply with Defendant’s sexual harassment and sexual misconduct
policy (Dkt. No. 1-3 at 37, 54). That policy provided, insofar as relevant, that "sexual
misconduct" referred to any form of "physical conduct or exploitation of another person of a
sexual nature . . . made without effective consent" (Dkt. No. 1-3 at 54). Consent had to be
clearly communicated (id.).
A finder of fact could conclude in this case that: (1) the CRB found, explicitly or
implicitly, that Loe consented to certain forms of sexual intimacy with Plaintiff and that he
complied when she said "no" to penile/vaginal intercourse and further oral sex; (2) the CRB did
not conclude that Loe said "no" when Plaintiff either asked or instructed her to "finish him off;"
and (3) the CRB found that Loe was not impaired and was in a condition to make free and
informed choices and that she clearly communicated consent to some forms of sexual intimacy
with Plaintiff (Dkt. No. 31-13 at 2-3). The policy was ambiguous as to whether consent had to
be communicated orally or could be communicated by acts. A factfinder could conclude that

21

Plaintiff could reasonably expect, under the terms of the sexual harassment and sexual
misconduct policy in effect in September 2014, that Loe's consent remained operative and
extended to further sexual activity when she did not say "no" or physically rebuff him.
Even if the CRB could reasonably conclude that Plaintiff’s demand that Loe "finish him
off" constituted pressuring her for sex in violation of Defendant’s Title IX Policy, that policy
was not in effect and was not part of the contract between Plaintiff and Defendant as of
September 26-27, 2014. A jury could conclude that the University could not reasonably expect a
student who read the 2014-2015 Handbook's sexual misconduct policy to intuit that it included
the Title IX Policy's more finely tuned definition of sexual misconduct. See Schaer, 735 N.E.2d
at 378. At a minimum, the Handbook's standards regarding coercion are ambiguous, which
results in its terms being construed against the University. See Brandeis, 2016 WL 1274533, at
*26 (citing cases); Suffolk Constr. Co. v. Lanco Scaffolding Co., 716 N.E.2d 130, 133 (Mass.
App. Ct. 1999) ("Contract language is ambiguous where 'an agreement's terms are inconsistent
on their face or where the phraseology can support reasonable difference of opinion as to the
meaning of the words employed and the obligations undertaken'") (quoting Fashion House, Inc.
v. K Mart Corp., 892 F.2d 1076, 1083 (1st Cir. 1989)). Plaintiff has sufficiently pled that the
University breached the contract by finding him responsible for behavior that was not included in
the 2014-2015 Handbook's description of prohibited conduct. For the foregoing reasons, the
court concludes that Plaintiff's breach of contract claim should not be dismissed insofar as he
alleges that he was disciplined for conduct that was not prohibited under existing policies.
d.

Notice of the allegations of misconduct before the CRB.

22

Plaintiff further claims that he received insufficient notice of the allegations that he
would have to prepare to meet at the hearing because he was not informed that the CRB would
apply the Title IX Policy to him (Dkt. No. 22 ¶286). The court agrees.
Section Four of Section III of the 2015-2016 Handbook, which applies to the disciplinary
process here, outlined the "Judicial Process" (Dkt. No. 1-2 at 42-45). Article III of Section Four
describes the process to which a "respondent" -- a student allegedly in violation of the
University's applicable policy or procedure -- was entitled in cases, such as this, which involved
consideration of suspension or dismissal (Dkt. No. 1-2 at 38, 43-45). Plaintiff was entitled to
receive "a written statement identifying the section of the Student Code of Conduct that was
allegedly violated and the possible sanction(s) that might apply" at the pre-hearing informational
meeting (Dkt. No. 1-2 at 43). The Handbook also required the University to provide "the
specific charge(s) relating to the alleged misconduct" in the written notice of the conduct review
hearing (id.).
The Pre-hearing Informational Meeting form notified Plaintiff that he was alleged to have
violated the following two standards within the Student Code of Conduct:
Student Code of Conduct, Article III-A: Offenses Against Another Person(s),
specifically intentionally or recklessly threatening or causing another person emotional
distress; any actual or threatened non-consensual sexual act or misconduct; nonconsensual presumes that the other person is able to make a reasonable judgment under
the circumstances and causing physical and/or emotional harm to another person.
Sexual Harassment and Sexual Misconduct Policy
(Dkt. No. 1-3 at 37, 54; Dkt. No. 22 ¶191; Dkt. No. 31-8 at 2). The letter that notified him of the
conduct review hearing and the CRB's post-hearing decision reiterated these descriptions of the
two standards that he allegedly violated (Dkt. No. 31-9 at 2; Dkt. No. 31-13 at 2).

23

The CRB found that "it was more likely than not" that Plaintiff violated "both of the
standards of the Student Code of Conduct under which [he was] charged" (Dkt. No. 31-13 at 2).
The CRB's decision, however, was based on its findings that Plaintiff violated two sections of the
Title IX Policy on Sexual Misconduct, which were not included in either the 2014-2015
Handbook or the notices provided to Plaintiff (Dkt. No. 1-3 at 37, 54; Dkt. No. 31-8 at 2; Dkt.
No. 31-13 at 2). The University could not reasonably expect Plaintiff to understand that the
descriptions of his alleged misconduct, which it provided to him prior to the hearing, included
the Title IX Policy on sexual misconduct. See Cloud, 720 F.2d at 724. The lack of adequate
notice of the charges suffices to state a claim for a breach of contract. See Fellheimer v.
Middlebury Coll., 869 F. Supp. 238, 246-47 (D. Vt. 1994) (holding that the college breached the
contract contained in the student handbook because "[t]he undisputed facts show that [plaintiff]
was never told what conduct, if proven by a preponderance of the evidence at the hearing, would
violate the . . . portion of the [h]andbook" for which he was sanctioned).
In addition, the Complaint states adequate grounds for the claim that Plaintiff's hearing
was unfair due to the lack of adequate notice. See id. Although a student's due process rights do
not equate to those afforded to a criminal defendant, see Schaer, 735 N.E.2d at 381, adequate
warning of the misconduct that could result in a student's discipline is a fundamental element of
fairness in the proceeding. See Brandeis, 2016 WL 1274533 at *33-34 (denying motion to
dismiss for breach of contract and holding that university's failure to provide plaintiff with notice
of the specific charges "may have substantially impaired the fairness of the proceeding").
Sufficient notice of the alleged misconduct is necessary to the preparation of a defense. See
Fellheimer, 869 F. Supp. at 246-47. Here, Plaintiff presented his version of events to the CRB
with the understanding that he was alleged to have violated standards of conduct in the 2014-

24

2015 Handbook (Dkt. No. 22 ¶22; Dkt. No. 31-13 at 2). The CRB unfairly applied the Title IX
Policy's definition of misconduct. See Cloud, 720 F.2d at 725; Coveney, 445 N.E.2d at 138-39.
Accepting the allegations in Plaintiff's complaint as true, Plaintiff has alleged sufficient facts to
support a finding that the University breached the contract by failing to notify Plaintiff of the
misconduct for which he was disciplined. Plaintiff's remaining claims of breach of contract,
discussed below, are not legally sufficient to state breach of contract claims.
2.

The University conducted an investigation.

Despite Plaintiff's statement that "Defendants undertook an investigation," Plaintiff
alleges that the University was in breach of the contract by failing to adequately investigate Loe's
complaint (Dkt. No. 22 ¶¶11, 286). The Handbooks and the Title IX Policy required the
University to investigate a complaint of sexual misconduct (Dkt. No. 1-2 at 42; Dkt. No. 1-3 at
44; Dkt. No. 1-6 at 8). According to the Title IX Policy, "[p]rior to any hearings, the investigator
will interview all parties and witnesses, compile statements, verify statements, gather
documentation, review evidence, conduct research and draft a report to submit to the [CRB] . . .
if one has been convened" (Dkt. No. 1-6 at 8). Details of Defendants' investigation, which
included these items, are alleged in Plaintiff's Complaint (Dkt. No. 22 ¶¶13, 59-61, 121, 138-155,
163, 165-171, 214, 215). As a result, the Complaint fails to state a claim for breach of contract
for failure to investigate. See Iqbal, 556 U.S. at 678.
3.

The University did not deny Plaintiff effective access to his attorney who
acted as his advisor.

Plaintiff further alleges that the University deprived him of his right to "an effective
advisor" in breach of the Handbooks' provision (Dkt. No. 22 ¶286). The 2014-2015 and 20152016 Handbooks permitted a student, such as Plaintiff, to "seek assistance from an advisor of the
student's choice, provided that the advisor is a member of the University community (current
25

student, faculty member, or staff member) and is not legal counsel acting in this capacity" (Dkt.
No. 1-2 at 44; Dkt. No. 1-3 at 45). "Parents, legal guardians, and/or legal counsel, regardless of
their affiliation with complainants, respondents, and/or witnesses, are not permitted to attend any
part of the process, pre-hearing or hearing" (Dkt. No. 1-2 at 44; Dkt. No. 1-3 at 46). Under the
Title IX Policy, in cases other than those in which a student was the respondent, an attorney was
allowed to act as the respondent's advisor (Dkt. No. 1-6 at 8, 9). The attorney was not permitted
to act "as legal counsel or advocate," but could "observe and consult freely" with the respondent
(Dkt. No. 1-6 at 9). Although Plaintiff, a student-respondent, was not entitled to an attorney as
an advisor under the terms of the Handbooks and Title IX Policy, Plaintiff's Complaint alleges
that his legal counsel was present in the capacity of advisor at every stage of the process (Dkt.
No. 22 ¶¶116-120, 122, 189, 204, 234, 248). 19 By permitting Plaintiff's counsel to act as his
advisor, Defendants allowed Plaintiff assistance during the disciplinary process to which he was
not entitled. Plaintiff fails to state a claim for relief on this ground.
4.

Plaintiff was not denied access to investigative materials.

Plaintiff contends that provisions of the Family Educational Rights and Privacy Act
(FERPA) incorporated in the Handbooks, along with separate provisions of the Handbooks,

19

Plaintiff contends that he was deprived of an effective advisor because "he and his counsel
were unable to privately confer while reviewing the [investigatory] materials" in the presence of
the University's general counsel and that "[t]his restriction alone resulted in the hearing being
one-sided and biased against [Plaintiff]" (Dkt. No. 36 at 9). Plaintiff does not cite language from
the Handbook that provided for his private access to records, and he fails to point to evidence
that WNEU interfered with his right to privately consult with his counsel in other locations.
26

entitled him to receive copies of all of the records that were compiled during the investigation
(Dkt. No. 22 ¶¶12, 208, 340, 341, 349). 20
The section of the 2014-2015 Handbook that discusses "Student Records and
Confidentiality," states that the University "adheres to a policy of compliance with . . . . FERPA"
(Dkt. No. 1-3 at 29). See 20 U.S.C. § 1232g. FERPA "permits students to inspect their
educational records" within 45 days of the student's written request (Dkt. No. 1-3 at 29, 30). 21
See 20 U.S.C. §1232g(a)(1)(A), (d) (right to "inspect and review" education records"). 22
"Educational records include those records that contain information directly related to a student
and are maintained as official files by the University" (Dkt. No. 1-3 at 29). See 20 U.S.C. §
1232g(a)(4)(A).
In addition to the inspection and review of records that FERPA provided, the University
permitted students to obtain copies of their records by paying reproduction costs (Dkt. No. 1-3 at
30). However, "[t]he University reserve[d] the right to deny copies of transcripts or educational
records . . . where there is an unresolved disciplinary action against the student" (id.). 23

20

FERPA does not provide either a private cause of action or rights that are enforceable under 42
U.S.C. § 1983. See Gonzaga Univ. v. Doe, 536 U.S. 273, 287-88 (2002); Zona v. Clark Univ.,
436 F. Supp. 2d 287, 290 (D. Mass. 2006).

21

The 2015-2016 Handbook contains substantially similar provisions (Dkt. No. 1-3 at 28-30).

22

Similar to FERPA, the Clery Act, 20 U.S.C. § 1092, requires that "the accuser, the accused,
and appropriate officials" be provided "timely and equal access" to "any information that will be
used during informal and formal disciplinary meetings and hearings." 34 C.F.R. §
668.46(k)(3)(i)(B)(3).

23

Access to student records was also addressed in Article III of Section Four of Section III of the
2015-2016 Handbook, which explained the judicial process in cases involving consideration of
suspension or dismissal from the University (Dkt. No. 1-2 at 43). This section stated that
respondents were entitled to a pre-hearing informational meeting during which "the report(s)
about the alleged misconduct will be read and explained" (id.). The student, however, was not
27

By letter of July 6, 2015, Plaintiff's attorney, on behalf of Plaintiff, requested copies of
any records that were related to the investigation and disciplinary proceedings (Dkt. No. 1-1 at
3). Plaintiff was not provided copies due to the "unresolved disciplinary action" (Dkt. No. 1-3 at
30; Dkt. No. 33 at 34). He had access, however, to the investigatory materials in the University's
possession, including Loe's statement to Ollson and the substance of witnesses' statements (see,
e.g., Dkt. No. 22 ¶¶59-61, 94-115, 121, 138-161, 210, 229-233). His counsel took notes (id.).
Contrast Brandeis, 2016 WL 1274533, at *29-30 (finding that the student's complaint stated a
breach of contract claim upon which relief could be granted where the pleadings were unclear
regarding whether the university provided the student access to a special examiner's report about
his alleged sexual misconduct, as FERPA required); Brown Univ., 2016 WL 715794, at *13
(finding plaintiff's allegation sufficient to state a claim for breach of contract where the handbook
provided that "'the case administrator will respond' to the respondent's requests for information,"
and the university failed to comply); Dempsey v. Bucknell Univ., Civil Action No. 4:11-cv-1679,
2012 WL 1569826, at *18-19 (M.D. Pa. May 3, 2012) (holding that plaintiff alleged sufficient
facts to support a finding that the university breached the provision of the student handbook that
promised "that Bucknell will provide the accused with a copy of the charges against him, along
with supporting information, including the public safety department's report and witness
statements").
Although Plaintiff had the opportunity to view certain photographs and text messages and
to hear audio messages between Loe and other students, FERPA did not require the University to
grant Plaintiff access (Dkt. No. 22 ¶¶209-210). These were not Plaintiff's "educational records"

entitled to a copy (id.). Plaintiff does not contend that the University breached its obligation to
permit him to review a copy of the investigators' report.
28

because they did not "directly relate[]" to him. 20 U.S.C. § 1232g(a)(4)(A). See also 20 U.S.C.
§ 1232g(a)(1)(A), (d) ("If any material or document in the education record of a student includes
information on more than one student, the [student] . . . shall have the right to inspect and review
only such part of such material or document as relates to such student or to be informed of the
specific information contained in such part of such material").
The case upon which Plaintiff relies, United States v. Miami Univ., 294 F.3d 797 (6th Cir.
2002), does not require a different result (Dkt. No. 36 at 9). Although Miami Univ. indicates that
"disciplinary records" are "educational records" under FERPA, Defendant does not dispute that
fact. Id. at 812. The case, however, does not support Plaintiff's contention that FERPA requires
a university to provide copies of such records, as opposed to access (Dkt. No. 36 at 9). Id. at
812-15.
The allegations in Plaintiff's Complaint do not support a breach of contract claim based
on the University's duty to provide Plaintiff access to records.
5.

The University did not have a duty to secure the presence of Plaintiff's
witnesses at the hearing.

Plaintiff alleges that the University breached its "guarantee" that his favorable fact
witnesses would be allowed to testify at the hearing (Dkt. No. 22 ¶286). Defendant counters that
no such promises were made by the Handbook or by the University's general counsel in her email exchanges with Plaintiff's counsel (Dkt. No. 33 at 17-18). Defendant's argument is
persuasive.
The 2015-2016 Handbook explicitly gave Plaintiff notice that it was his responsibility to
provide "a list of witnesses . . . requested to attend [the] hearing" and that "a failure of one or
more of these person(s) to attend would not delay the hearing itself" (Dkt. No. 1-2 at 43).
Further, according to the Handbook:
29

[t]he hearing board or administrative officer may refuse to hear any evidence that it
deems irrelevant or unreliable. The hearing board or administrative officer will
determine what is reliable and relevant under the circumstances of the case. Rules of
evidence used in courts of law are not used in this process.
(Dkt. No. 1-2 at 44). These admonitions were repeated in the Pre-hearing Informational Meeting
form and in the letter that advised Plaintiff of the hearing date (Dkt. No. 13-8 at 3; Dkt. No. 13-9
at 2). In view of the Handbook's terms, Plaintiff could not have reasonably expected the
University to secure the attendance of his witnesses.
Plaintiff's assertion that the University's general counsel promised that his witnesses
would be present verges on frivolous (Dkt. No. 22 ¶¶218-222, 227-233; Dkt. No. 31-10). The
October 26, 2015 hearing notice to Plaintiff stated:
Attached is a list of witnesses and advisors on behalf of the University, Loe and yourself.
You are responsible for contacting and ensuring your advisor and witnesses appear on
time.
(Dkt. No. 31-9 at 2).
On the following day, Plaintiff's counsel contacted the University's general counsel by email to inquire whether the general counsel represented University employees whom Plaintiff
planned to call as witnesses (Dkt. No. 31-10 at 4). If so, the message continued, the
Massachusetts Supreme Judicial Court's Rules of Professional Conduct prohibited Plaintiff's
counsel's communication with them without the University's general counsel's consent (id.).
Plaintiff's counsel's message stated: "[I]f you do represent these individuals, please assure me
that all of the [WNEU] employees who are on [Plaintiff's] witness list will be present and
available to testify throughout the course of the hearing . . . ." (id.). The University's general
counsel responded by e-mail the next day (Dkt. No. 31-10 at 3). She notified Plaintiff's counsel
that she represented "the administrators involved in this proceeding" (id.). She further advised
that the University's policy did not permit any advisor to a student charged with misconduct to
30

interview any witnesses, whether University employees or students, prior to the hearing (id.).
She added that "any witnesses who have been identified will be available should the Hearing
Officers deem it necessary to question them" (Dkt. No. 31-10 at 4). 24 Plaintiff argues that this
sentence constituted a guarantee that the University would secure the appearance of his witnesses
(Dkt. No. 22 ¶¶220-222).
The communications from the University, including the 2015-2016 Handbook, clearly
notified Plaintiff of his responsibility to secure the attendance of his witnesses (Dkt. No. 1-2 at
43; Dkt. No. 31-8 at 3; Dkt. No. 31-9 at 2). The University's general counsel's e-mail message
did not promise that Plaintiff's witnesses would be present, and, in any event, did not alter
Plaintiff's obligation. Cf. Coffin v. Bowater Inc., 501 F.3d 80, 98 (1st Cir. 2007) ("'Extrinsic
evidence should not be used to add terms to a contract that is plausibly complete without them'")
(quoting Bidlack v. Wheelabrator Corp., 993 F.2d 603, 608 (7th Cir. 1993) (en banc)). Plaintiff
does not allege or show that the University had subpoena power or the authority to compel
witnesses' appearances at a disciplinary hearing. Because Plaintiff is not an attorney, the Rules
of Professional Conduct did not prevent him from communicating with any University
administrator he wanted to call as a witness.
In an effort to show the harm caused by this purported "profound procedural failure," the
Complaint summarizes the testimony that five proposed witnesses would have offered if they

24

Plaintiff's counsel's follow-up e-mail on October 29, 2015 asked whether the general counsel
represented four specific employees, or whether he was permitted to contact them (Dkt. No. 3110 at 3). The general counsel responded that because she represented all University employees,
the University's policy and the Rules of Professional Conduct did not permit counsel to contact
any employees (id. at 2).
31

had attended the hearing (Dkt. No. 22 ¶¶229-233). 25 Plaintiff's conclusory claim -- that if these
witnesses were present at the hearing, their testimony would have altered the outcome of the
proceeding -- piles speculation on speculation (id.). Because the CRB had discretion to hear
relevant testimony and to ask questions, there is no assurance that these individuals, who did not
witness the encounter between Plaintiff and Loe, would have been permitted to testify (Dkt. No.
1-2 at 44; Dkt. No. 22 ¶¶229-233). If they testified, the CRB controlled the questioning and
Plaintiff does not provide any basis to conclude that the CRB would have elicited the testimony
that Plaintiff presents in his Complaint (Dkt. No. 1-2 at 44). Plaintiff does not adequately allege
a breach of contract on this ground. See Cloud, 720 F.2d at 726 ("failure of the university to
produce the witnesses requested by [plaintiff], whose relevance and importance are far from
obvious, did not violate the fairness 'standard' . . . "). 26
6.

Plaintiff fails to adequately allege a procedurally flawed process.

Plaintiff argues that the CRB failed to correctly apply the "presumption of innocence, the
burdens of proof and production, or the standards of proof" (Dkt. No. 36 at 12). "His contention
that the board failed to use the appropriate standard[s] is a legal conclusion, not a factual
allegation." Schaer, 735 N.E.2d at 378-79. As such, the court is entitled to disregard it. See
Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A student at a private
university is not afforded the same procedural protections that apply to a criminal defendant. See

25

Plaintiff does not claim that any of these five individuals were University employees (Dkt. No.
22 ¶229-233).

26

As an aspect of Plaintiff's breach of contract claim, he argues that the University treated him
unfairly and was biased against him because he was a male student who was accused of sexual
misconduct. These contentions are relevant respectively to his claim in Count V of a breach of
the common law duty of basic fairness, and his claim in Count XI of a violation of Title IX,
rather than to an alleged breach of contract.
32

Schaer, 735 N.E.2d at 381. The Title IX Policy required the CRB to apply the "more likely than
not" standard to the totality of the evidence that they considered (Dkt. No. 1-6 at 10; Dkt. No.
31-13 at 2-3). Because the CRB complied, the University did not breach its obligations under
the terms of the contract.
In addition, Plaintiff fails to point to facts that would support his allegation that he was
assigned the burdens of proof and production, which rendered the hearing unfair. See Cloud, 720
F.2d at 725; Schaer, 735 N.E.2d at 380. WNEU's general counsel's alleged statement at the prehearing informational meeting in October 2015 that Plaintiff "was in the predicament he was in
because [he] had 'failed to come forward' to provide his own statement about what had
happened," merely stated the obvious: after Loe's initial complaint to Ollson, Plaintiff refused to
relate his version of events to Kenneally and Hill, and the investigation ensued, which led to
allegations of violations of the Student Code of Conduct (Dkt. No. 22 ¶¶46, 95, 122, 136, 191;
Dkt. No. 31-8 at 2; Dkt. No. 33 at 22). In addition, general counsel was not a member of the
CRB who determined Plaintiff's responsibility for sexual misconduct (Dkt. No. 31-13 at 3). 27
Notwithstanding discrepancies in Doe's statements about her encounter with Plaintiff,
there was an evidentiary basis for the CRB's decision. Plaintiff's disagreement with that decision
does not constitute a claim upon which relief can be granted due to the absence of "basic
fairness." Schaer, 735 N.E.2d at 380 (quoting Cloud, 720 F.2d at 725).
In summary, to the extent that Count I alleges a breach of contract based on the
University's retroactive application of its Title IX Policy and its failure to notify Plaintiff of the

27

Plaintiff argues that there is a dispute about "the timing of general counsel's statement" (Dkt.
No. 36 at 12). However, he does not provide a citation to the record to support his argument that
Defendants claim that the statement was made in July, as opposed to October (id.). In any event,
the alleged statement does not support his claim, irrespective of the timing.
33

charges against him, the court recommends that Defendants' motion to dismiss Count I be
denied. As to the other allegations, the court recommends that the breach of contract count be
dismissed.
B.

Breach of the Implied Covenant of Good Faith and Fair Dealing (Count II)

Count II alleges that the University breached the implied covenant of good faith and fair
dealing by failing to follow the Handbook's policies and procedures and by conducting an "unfair
and biased" investigation and "adjudication" (Dkt. No. 22 ¶¶288-291). "The covenant of good
faith and fair dealing is implied in every contract." Uno Rests., Inc. v. Bos. Kenmore Realty
Corp., 805 N.E.2d 957, 964 (Mass. 2004). "The duty of good faith and fair dealing concerns the
manner of performance." Id. "The covenant may not, however, be invoked to create rights and
duties not otherwise provided for in the existing contractual relationship, as the purpose of the
covenant is to guarantee that the parties remain faithful to the intended and agreed expectations
of the parties in their performance." Id. Accordingly, "[t]he requirement of good faith
performance is . . . circumscribed by the obligations in the contract." Speakman v. Allmerica
Fin. Life Ins., 367 F. Supp. 2d 122, 132 (D. Mass. 2005). "A breach occurs when one party
violates the reasonable expectations of the other." Eigerman v. Putnam Invs., Inc., 877 N.E.2d
1258, 1264 (Mass. 2007) (citing Uno Rests., 805 N.E.2d at 966).
The allegations of the Complaint are sufficient to state a breach of the implied covenant
regarding WNEU's retroactive application of its Title IX Policy. Plaintiff reasonably expected
that he would be required to conform his behavior to the standards of conduct in the 2014-2015
Handbook and would face sanctions if he violated these standards (Dkt. No. 22 ¶¶68-85). After
he received notice of the provisions of the Student Code of Conduct that he was alleged to have
violated, he reasonably expected that the University's CRB would measure his behavior against

34

those standards (Dkt. No. 22 ¶191). The University breached Plaintiff's reasonable expectations
when the CRB applied the Title IX Policy's definitions of sexual misconduct, which had not been
released to the student community at the time of the alleged sexual assault. Compare Brown
Univ., 2016 WL 715794 at *15 ("Because [plaintiff's] [c]omplaint states a plausible claim for
breach of contract, . . . the [c]ourt finds that he similarly states a claim that this conduct violated
the covenant of good faith and fair dealing inherent in that contract").
Plaintiff, however, has failed to allege sufficient facts to demonstrate that the University
failed to "conform[] to the parties' reasonable understanding of performance obligations, as
reflected in the overall spirit of the bargain . . ." in any other respect. Brandeis, 2016 WL
1274533 at *41. Plaintiff has not alleged facts from which an inference could be drawn that the
University violated its other obligations in the Handbooks or the Title IX Policy or that it
conducted the disciplinary procedures arbitrarily or capriciously or in bad faith. See Coveney,
445 N.E.2d at 139.
Accordingly, the court recommends that Defendants' motion to dismiss Count II be
denied to the extent that it alleges a breach of the covenant of good faith and fair dealing based
on the University's retroactive application of its Title IX Policy and its failure to notify Plaintiff
of the charges against him. As to the other allegations, the court recommends that Count II be
dismissed.
C.

Estoppel and Reliance (Count III)

Plaintiff's claim for promissory estoppel alleges that he relied to his detriment on the
University's "express and implied promises and representations" that were contained in the 20142015 Handbook "and elsewhere" (Dkt. No. 22 ¶¶292-297). "Generally, the doctrine of
promissory estoppel is applicable when a promise has been made, but there is no tangible

35

consideration offered in return; instead, detrimental reliance acts as a substitute for actual
consideration." In re J.P. Morgan Chase Mortg. Modification Litig., 880 F. Supp. 2d 220, 238
(D. Mass. 2012) (citing Restatement (Second) of Contracts § 2 (Am. Law Inst. 1981)). "It is
well-established that recovery under a quasi-contract theory is not available where there is a
written contract governing the same subject matter." Brandeis, 2016 WL 1274533, at *41.
Here, "there is no dispute that the student-university relationship is governed by contract, which
includes the reasonable expectations of students based on the [Handbooks and the Title IX
Policy]." Brown Univ., 2016 WL 715794, at *15.
Plaintiff argues that he detrimentally relied upon the University's general counsel's
representation that "all his witnesses would attend his hearing" (Dkt. No. 36 at 16).
To plead a promissory estoppel claim under Massachusetts law, [Plaintiff] must allege
that: (1) [the University] made an unambiguous promise which it should have reasonably
expected to "induce action or forbearance of a definite and substantial character" on the
part of [Plaintiff]; (2) the promise induced action or forbearance; and (3) "injustice can be
avoided only by enforcement of the promise."
Aston Martin Lagonda of N. Am., Inc. v. Lotus Motorsports, Inc., Civil Action No. 13-cv-11213,
2014 WL 1092864, at *6 (D. Mass. Mar. 18, 2014) (quoting Neuhoff v. Marvin Lumber & Cedar
Co., 370 F.3d 197, 203 (1st Cir. 2004)). Plaintiff's Complaint is wholly deficient in these
respects. General counsel's statement was not an "unambiguous promise" to secure the
attendance of Plaintiff's witnesses. Id. Even if this were a reasonable interpretation of the
comment, Plaintiff has not alleged "action or forbearance" due to his reliance. Id. In other
words, he does not state that, but for general counsel's statement, he would have secured the
presence of his witnesses. Further, due to the CRB's discretion regarding witnesses and their
testimony, Plaintiff cannot plead sufficient facts to demonstrate that the failure to enforce general
counsel's promise resulted in injustice. See id.

36

The court recommends dismissal of the promissory estoppel claim (Count III).
D.

Breach of the Common Law Duty of Basic Fairness (Count V)

Plaintiff alleges that the University breached its common law duty to afford him a fair
process (Dkt. No. 22 ¶¶286, 302-305). 28 However, Plaintiff's failure to plausibly claim that the
University's decision was arbitrary or capricious or made in bad faith bars relief under the "basic
fairness" standard. Cloud, 720 F.2d at 725. See Coveney, 445 N.E.2d at 138-39.
The University's "obligation to provide basic fairness in its proceedings is separate from
and in addition to its contractual obligation to follow the rules it set forth in the Handbook."
Brandeis, 2016 WL 1274533, at *31. See Cloud, 720 F.2d at 725; Schaer, 735 N.E.2d at 380.
Notwithstanding this court's obligation to consider fairness, "'[c]ourts are chary about interfering
with academic and disciplinary decisions made by private colleges and universities.'" Schaer,
735 N.E.2d at 381 (quoting Schaer v. Brandeis Univ., 716 N.E.2d 1055, 1060 (Mass. App. Ct.
1999)). "'If school officials act in good faith and on reasonable grounds . . . their decision to
suspend or expel a student will not be subject to successful challenge in the courts.'" Cloud, 720
F.2d at 724 (quoting Coveney, 445 N.E.2d at 139). "A university is not required to adhere to the
standards of due process guaranteed to criminal defendants or to abide by rules of evidence
adopted by courts." Schaer, 735 N.E.2d at 381.
In Brandeis, 2016 WL 1274533, another session of this court concluded that Brandeis
had violated its duty to conduct a disciplinary process with basic fairness. Brandeis's process
was, however, very different from the disciplinary process at WNEU. At Brandeis, a Special

28

Plaintiff's allegation that the University "guarantee[d]" a fair process was not based on any
Handbook language (Dkt. No. 22 ¶286). Instead, he quoted text – out of context – from the
University's June 25, 2015 letter to him (Dkt. No. 22 ¶¶65, 66; Dkt. No. 31-2 at 2-3; Dkt. No. 36
at 9).
37

Examiner controlled the entire disciplinary process beginning with the investigation and
concluding with the determination of responsibility, which was "final." Id. at *3, *10-14. The
Brandeis court described this as "a secret and inquisitorial process." Id. at *3. Brandeis's motion
to dismiss was denied, in part, because the plaintiff "was provided little . . . in terms of
procedural protection." Id. at *10. The Brandeis plaintiff was not entitled to a "'hearing' in any
sense of the word," which is essential to the fundamental fairness of an academic institution's
disciplinary process. Id. at *3, *10. Compare Cloud, 720 F.2d at 723 (plaintiff was afforded a
hearing before an impartial panel); Walker, 82 F. Supp. 3d at 532 (same); Coveney, 445 N.E.2d
at 139 (holding that the college's expulsion of the student was not arbitrary and capricious where
the student was provided two hearings and the opportunity to make statements).
Here, the allegations in the Complaint show that the investigation was conducted by two
Title IX investigators, Kenneally and Hill, who were not members of the CRB, that Plaintiff had
access to investigatory materials and the names of witnesses prior to the hearing, that the twomember CRB, Burke and Elfant, determined responsibility after a hearing, which Plaintiff and
his counsel attended and in which Plaintiff participated, and that Plaintiff received a copy of the
CRB's written decision, which he used to pursue his appeal (See, e.g., Dkt. No. 22 ¶¶22, 59-61,
91, 94-115, 121, 127, 138-161, 165-173, 195-196, 203-210; 229-234, 255; Dkt. No. 31-2 at 3;
Dkt. No. 31-13). WNEU's 2015-2016 Handbook set out the rules for the hearing, including
Plaintiff's opportunity to submit a written statement, "to hear all witness statements, to present
relevant evidence, and to direct questions to the hearing board . . ." (Dkt. No. 1-2 at 44). The
CRB's decision was subject to review by Hart-Steffes, who had the authority to overturn the
CRB's decision (Dkt. No. 1-2 at 45). These procedures, which were followed in Plaintiff's case,
make Brandeis clearly distinguishable.

38

Plaintiff calls attention to the pre-hearing statements of Hendricks and Ollson in an effort
to demonstrate WNEU's bias against him. He points to Ollson's comment that Plaintiff "should
be the one to request [no contact] measures" (Dkt. No. 22 ¶184; Dkt. No. 31-7 at 2). 29 Plaintiff,
however, does not contend that Ollson, or anyone at the University, denied his request for an
accommodation regarding his contact with Loe and he fails to acknowledge that all Ollson said
was that the University should wait for Plaintiff to ask for no contact measures. He also
complains about Hendricks's statement at the pre-hearing informational meeting that "'[i]t's the
University versus the student'" (Dkt. No. 22 ¶¶198, 199). There is no indication that Hendricks
was present at the hearing (Dkt. No. 31-9 at 2). Neither Ollson nor Hendricks was a member of
the CRB (Dkt. No. 31-13 at 2-3). See Bleiler, 2013 WL 4714340, at *12 (holding that faculty
member's views were not relevant to the claim of bias under Title IX because he was not a
deliberating member of the hearing panel).
Plaintiff plows the same ground regarding the University's failure to provide him with
copies of the investigative materials and claims that he first learned of Loe's "exculpatory text
messages" at the hearing (Dkt. No. 22 ¶¶15, 245-246; Dkt. No. 36 at 10). The University
permitted Plaintiff and his counsel to review the investigators' records over the course of several
hours and his counsel took copious notes (Dkt. No. 22 ¶¶59-61, 94-115, 121, 127, 129-131, 138161, 165-173, 178, 210-211, 214-215). Loe's text messages were on the thumb drive that
Plaintiff and his counsel were afforded the opportunity to review prior to the hearing (Dkt. No.
22 ¶¶57, 94, 210, 213). The University was not required to provide copies. 30 Contrast

29

The complete sentence reads: "I believe that [Plaintiff] should be the one to request measures
as the complainant has" (Dkt. No. 31-7 at 2).
30
Plaintiff relies upon the following passage from Brown Univ., 2016 WL 715794, to support his
contention that the University should have provided him with copies of investigatory materials
(Dkt. No. 52 at 2):
39

Brandeis, 2016 WL 1274533, at *3, *13, *30 (plaintiff did not have access to evidence or to the
Special Examiner's detailed report).
Plaintiff also alleges that the hearing officers demonstrated their "blatant hostility"
toward him by failing to challenge Loe's "lies [and] inconsistent statements" (Dkt. No. 36 at 1011). In effect, he claims that the CRB's decision to credit Loe's testimony can sufficiently
demonstrate bias and an unfair process. But "[i]t is not the business of lawyers and judges to tell
universities what statements they may consider and what statements they must reject." Schaer,
735 N.E.2d at 380. See also Doe v. Univ. of the S., 687 F. Supp. 2d 744, 755 (E.D. Tenn. 2009)
(quoting Gomes v. Univ. of Me. Sys., 365 F. Supp. 2d 6, 14 (D. Me. 2005); Coveney, 445 N.E.2d
138-39.
Plaintiff's related contention that the proceedings were unfair due to the University's
denial of his ability to cross-examine Loe and other witnesses at the hearing similarly fails (Dkt.
No. 36 at 17; Dkt. No. 52 at 4). See Schaer, 735 N.E.2d at 381. "[A]ny claim of unfairness due
to a requirement that questions be asked through the panel [c]hair fails as a matter of law." Yu v.
Vassar Coll., 97 F. Supp. 3d 448, 465 (S.D.N.Y. 2015). "Courts have found that similar
procedures are procedurally adequate." Id. (citing Donohue v. Baker, 976 F. Supp. 136, 147
(N.D.N.Y 1997)). Plaintiff was present at the hearing with his counsel and was permitted to

One particular challenge in these types of cases is that the best information for discerning
whether alleged discrimination was based on the plaintiff's gender as opposed to his
status as an accused student is generally in the possession of the defendant: namely, what
are the overall outcomes of such cases and, more specifically, how have cases been
handled in which the accused student is female and/or the alleged victim is male?
Id. at *7. However, the discussion in Brown arose in the context of whether Plaintiff's complaint
contained a viable claim under Title IX, which would entitle him to discovery, not whether the
failure to provide copies of investigatory materials prior to a disciplinary hearing constituted
basic unfairness. See id..
40

direct questions to the CRB members who had discretion to hear evidence that they deemed to be
"reliable and relevant" (Dkt. No. 1-2 at 44; Dkt. No. 22 ¶¶22, 249-253). Contrast Brandeis,
2016 WL 1274533, at *16, *34-35 (the disciplinary process did not include a hearing during
which the respondent proposed questions and heard the complainant and witnesses).
Plaintiff further asserts that Burke, who was one of the two hearing officers, had a
conflict of interest because the investigation and the hearing were controlled by his supervisors,
Ollson and Hill who, according to Plaintiff, were predisposed to find him responsible (Dkt. No.
22 ¶¶24, 237-244). Because there was no Handbook provision that addressed potential conflicts
of interest, the court considers whether the contention represents a valid claim that the
proceeding failed to comport with standards of basic fairness. See Cloud, 720 F.2d at 725;
Schaer, 735 N.E.2d at 380. Compare Bleiler, 2013 WL 4714340, at *15 ("the [h]andbook sets
forth the policy and rules regarding board members and potential conflicts of interest").
"In the intimate setting of a college or university, prior contact between the participants is
likely and does not per se indicate bias or partiality." Gorman v. Univ. of R. I., 837 F.2d 7, 15
(1st Cir. 1988). "Generally the alleged bias of the disciplinary board must be evident from the
record and not based on inference and speculation." Doe v. Univ. of Cincinnati, Case No. 1:15CV-681, 2016 WL 1161935, at *9 (S.D. Ohio Mar. 23, 2016). Even accepting as true Plaintiff's
allegations that Ollson's and Hill's pre-hearing statements demonstrated their bias against
Plaintiff, that Ollson supervised the investigation and Hill's report, and that Hill presented the
University's case against Plaintiff at the hearing, Plaintiff's claim that Ollson and Hill influenced
Burke, their subordinate, is speculative. This bald assertion is not legally sufficient to sustain a
claim for relief. See Ikpeazu v. Univ. of Neb., 775 F.2d 250, 254 (8th Cir. 1985) (holding that a
school's disciplinary body "is entitled to a presumption of honesty and integrity absent a showing

41

of actual bias such as animosity, prejudice, or a personal or financial stake in the outcome can be
proven"); Univ. of the S., 687 F. Supp. 2d at 751 ("a court is not required to accept conclusory
legal allegations cast in the form of factual allegations if those conclusions cannot reasonably be
drawn from the facts alleged") (citing Twombly, 550 U.S. at 570); Bleiler, 2013 WL 4714340, at
*13 ("'alleged prejudice of university hearing bodies must be based upon more than mere
speculation and tenuous inferences'") (quoting Buckholz v. Mass. Inst. of Tech., No. 85–2720,
1993 WL 818618, at *3 (Mass. Super. Ct. July 6, 1993)). Moreover, Burke was not the sole
hearing officer. Elfant, the second hearing officer, also found Plaintiff responsible (Dkt. No. 3113 at 3). Plaintiff does not allege any facts which would lead to an inference of conflict on
Elfant's part. In addition, the CRB's decision was reviewed by Hart-Steffes, who found that
Elfant and Burke followed the University's "process and procedures exactly as they should" and
affirmed their decision, but modified the sanction (Dkt. No. 31-14 at 5). Again, Plaintiff has not
alleged that Hart-Steffes labored under a conflict of interest.
Plaintiff's final allegation -- that the appeal process was unfair because he could not seek
review on the ground that the CRB's decision was not supported by the evidence -- is similarly
deficient (Dkt. No. 52 at 4). 31 The 2015-2106 Handbook's terms prohibited a de novo rehearing
of the case on appeal (Dkt. No. 1-2 at 45). Courts do not rewrite such provisions. See Doe v.
Brown Univ., C.A. No. 15-239-M-PAS, 2016 WL 3570606, at *9 (D.R.I. June 27, 2016)
(quoting Gorman v. St. Raphael Acad., 853 A.2d 28, 34 (R.I. 2004)). Plaintiff raised the issue of
Loe's credibility in his appeal to Hart-Steffes, who responded that "the investigators noted and
[she] confirmed inconsistencies in Loe's information. A review of the case with the [CRB] also

31

The 2015-2016 Handbook permitted respondents and complainants to request review, but they
were "not entitled to a re-hearing of the case" (Dkt. No. 1-2 at 45).
42

presented inconsistencies in [Plaintiff's] testimony at the hearing" (Dkt. No. 31-14 at 4). In other
words, the CRB apparently recognized the contradictions in Loe's version, also found
inconsistencies in Plaintiff's accounts, but found Loe more credible (Dkt. Nos. 31-13, 31-14).
That this decision was committed to the CRB's discretion does not, as a matter of law, make the
process unfair. See Univ. of the S., 687 F. Supp. 2d at 755; Schaer, 735 N.E.2d at 380.
WNEU's process did not suffer from the inherent unfairness that the Brandeis court
identified: the Special Examiner's "power to investigate, prosecute, and convict with little
effective power of review." Brandeis, 2016 WL 1274533, at *13-14, *36. Because of this
inherent procedural inequity, the Brandeis court found that the respondent's inability to appeal
"on the ground that the Special Examiner's decision was not supported by the evidence, or that it
was unfair, unwise, or simply wrong" deprived him of basic fairness. Id. at *36. The process at
WNEU was not similarly flawed.
Because Plaintiff fails to state a claim of basic procedural unfairness, the court
recommends that Count V be dismissed.
E.

Intentional Infliction of Emotional Distress (Count VII)

Count V asserts a claim for IIED against all Defendants (Dkt. No. 22 ¶¶310-315).
In Massachusetts, to state such a claim, a plaintiff must allege (1) that the defendant
either intended to inflict emotional distress or knew or should have known that emotional
distress was the likely result of his conduct; (2) that the conduct was extreme and
outrageous; (3) that the conduct caused the plaintiff emotional distress; and (4) that the
emotional distress was severe and of a nature that no reasonable person could be expected
to endure it.
Brandeis, 2016 WL 1274533, at *45 (citing Agis v. Howard Johnson Co., 355 N.E.2d 315, 31819 (Mass. 1976)).
"Conduct is 'extreme and outrageous' only if it is 'so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
43

atrocious, and utterly intolerable in a civilized community.'" Id. (quoting Foley v. Polaroid
Corp., 508 N.E.2d 72, 82 (Mass. 1987) (quoting Restatement (Second) of Torts § 46 cmt. d (Am.
Law Inst. 1965)). WNEU's actions, as pled, do not rise to the requisite level of atrocity. See
Fellheimer, 869 F. Supp. at 247 (holding that the college's decision to conduct a process to
determine a male student's responsibility for alleged sexual misconduct was not "extreme or
outrageous" despite the college's failure to provide the student with adequate notice of his
alleged misconduct); Brandeis, 2016 WL 1274533, at *45 (holding that despite the unfairness
and unreasonableness of the university's actions, the facts in the complaint did not constitute the
sort of "targeted, deliberate, and malicious conduct that is required for an IIED claim"); Harris v.
St. Joseph's Univ., Civil Action No. 13-3937, 2014 WL 1910242, at *11–12 (E.D. Pa. May 13,
2014) (holding that facts alleged in the amended complaint "fail[ed] to satisfy the requisite
outrageous conduct for such a claim" despite allegations that plaintiff was falsely portrayed as a
"'cruel sex offender'"). The court recommends that Count VII be dismissed for failure to state a
claim.
F.

Title IX (Count XI)

Plaintiff alleges that the University's disciplinary action was erroneous and was motivated
by gender bias in violation of Title IX (Dkt. No. 22 ¶¶352-379). See Yusuf v. Vassar Coll., 35
F.3d 709, 715 (2d Cir. 1994); Marshall v. Ohio Univ., No. 2:15-cv-775, 2015 WL 1179955, at *7
(S.D. Ohio Mar. 13, 2015). "Title IX of the Education Amendments of 1972 is a federal statute
designed to prevent sexual discrimination and harassment in educational institutions receiving
federal funding." Marshall v. Ohio Univ., 2015 WL 1179955, at *7. Title IX provides, in
pertinent part, that "[n]o person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any

44

educational program or activity receiving Federal financial assistance . . . ." 20 U.S.C. §
1681(a). "Title IX is enforceable through an implied right of action for monetary damages, as
well as injunctive relief." Yusuf, 35 F.3d at 714 (citation omitted) (citing Franklin v. Gwinnett
Cty. Pub. Sch., 503 U.S. 60, 76 (1992)). See Brown Univ., 2016 WL 715794, at *5. In order to
show a violation of Title IX, Plaintiff must ultimately demonstrate "'that the defendant
discriminated against him or her because of sex; that the discrimination was intentional; and that
the discrimination was a "substantial" or "motivating factor" for the defendant's actions.'" Brown
Univ., 2016 WL 715794, at *5 (quoting Doe v. Columbia Univ., 101 F. Supp. 3d 356, 367
(S.D.N.Y. 2015)), vacated, Docket Nos. 15-1536 (Lead), 15-166 (XAP), 2016 WL 4056034 (2d
Cir. July 29, 2016)).
"In Yusuf, the Second Circuit developed a framework for [the analysis of] cases attacking
university disciplinary proceedings on the ground of gender bias, which 'fall generally within
two categories' — 'erroneous outcome' and 'selective enforcement.'" Id. (quoting Yusuf, 35 F.3d
at 715). 32 "Although the First Circuit has not directly confronted the issue, district courts in the
First Circuit have looked to the framework established in Yusuf, subject to the heightened
pleading standard set forth in Twombly and Iqbal." Id. (citing Doe v. Univ. of Mass.–Amherst,
Civil Action No. 14-30143-MGM, 2015 WL 4306521, at *8 (D. Mass. July 14, 2015), appeal
docketed, No. 15-856 (1st Cir. July 28, 2015)). 33 See also Bleiler, 2013 WL 4714340, at *5.

32

Courts have also applied the "deliberate indifference" and "archaic assumptions" standards to
Title IX claims. See Bleiler, 2013 WL 4714340, at *5 & n.4.

33

Yusuf was decided prior to the Court's decisions in Iqbal and Twombly, when the standard for a
motion to dismiss was "more relaxed." Univ. of Mass.-Amherst, 2015 WL 4306521, at *8 n.5.
45

"In . . . 'erroneous outcome' cases, 'the claim is that the plaintiff was innocent and
wrongly found to have committed an offense.'" Brown Univ., 2016 WL 715794, at *5 (quoting
Yusuf, 35 F.3d at 715). 34
To state a claim for erroneous outcome discrimination, a plaintiff must allege (1) "a
procedurally or otherwise flawed proceeding"; (2) "that has led to an adverse and
erroneous outcome"; and (3) "particular circumstances suggesting that gender bias was a
motivating factor behind the erroneous finding." To satisfy the third element, a plaintiff
must do more than merely rely on "a conclusory allegation of gender discrimination. . . ."
Sufficiently particularized allegations of gender discrimination "might include, inter alia,
statements by members of the disciplinary tribunal, statements by pertinent university
officials, or patterns of decision-making that also tend to show the influence of gender."
Doe v. Salisbury Univ., 123 F. Supp. 3d 748, 766 (D. Md. 2015) (quoting Yusuf, 35 F.3d at 715).
See also Sahm v. Miami Univ., 110 F. Supp. 3d 774, 778 (S.D. Ohio 2015); Brown Univ., 2016
WL 715794, at *5; Bleiler, 2013 WL 4714340, at *5 ("Under the 'erroneous outcome' standard,
the question is whether the [c]ollege's actions are 'motivated by sexual bias' or if the 'disciplinary
hearing process constitutes a "pattern of decision-making" whereby the [college's] disciplinary
procedures governing sexual assault claims is "discriminatorily applied or motivated by a
chauvinistic view of the sexes"'") (quoting Univ. of the S., 687 F.Supp.2d at 756).
Plaintiff alleges that: (1) the disciplinary proceedings were flawed in several respects; (2)
these flaws produced an erroneous outcome; and (3) gender bias was the motivating factor for
this erroneous outcome (Dkt. No. 22 ¶¶352-379). Although most of Plaintiff's complaints about
the process fail to state a claim, he has adequately alleged that the proceeding was flawed -- and
the outcome possibly erroneous -- due to the CRB's retroactive application of the Title IX
Policy's definition of sexual misconduct. See Salisbury Univ., 123 F. Supp. 3d at 766 (quoting

34

Because the "selective enforcement," "deliberate indifference," and "archaic assumptions"
standards have no application to the instant case, they are not addressed by the court.
46

Yusuf, 35 F.3d at 715). However, the Complaint is rife with conclusory allegations of WNEU's
"prejudice and bias against [Plaintiff] not because he was the accused . . . but because he is a
male" (Dkt. No. 22 ¶¶175, 178, 185, 254, 278, 370, 374, 378). These bare averments of motive
are not sufficient to survive a motion to dismiss even when the standard of review, which favors
Plaintiff, is stretched to its limits. See Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir.
1999). Accordingly, Plaintiff falls short of meeting the third requirement for a viable Title IX
violation. See Harris, 2014 WL 1910242, at *4 ("The averments in the . . . [c]omplaint which
purport to identify '[e]vidence of [the University's] impermissible gender bias against [Plaintiff]',
. . . do not suggest gender bias as a motivating factor").
"[A]llegations of a procedurally or otherwise flawed proceeding that has led to an adverse
and erroneous outcome combined with a conclusory allegation of gender discrimination is not
sufficient to survive a motion to dismiss." Yusuf, 35 F.3d at 715. Plaintiff asserts that Ollson,
the Title IX officer who oversaw the investigation, and Hill, one of the Title IX investigators,
were biased against males and that they influenced their subordinate, Burke, one of the two
hearing officers who found Plaintiff responsible for sexual misconduct (Dkt. No. 22 ¶¶178-180,
239-243; Dkt. No. 36 at 18-19). But Plaintiff fails to allege particularized facts that would
permit a factfinder to draw the reasonable inference that gender discrimination was a motivating
factor behind the CRB's decision. See Prouty v. Hartford Life & Acc. Ins. Co., 997 F. Supp. 2d
85, 88 (D. Mass. 2014) ("even accepting a complaint's factual allegations, together they must
establish, directly or by reasonable inference, each element required to support recovery under
some actionable legal theory") (citing Centro Medico del Turabo, Inc. v. Feliciano de Melecio,
406 F.3d 1, 6 (1st Cir. 2005)); Brown Univ., 2016 WL 715794, at *5.

47

Plaintiff relies on his allegations about Ollson's and Hill's words and demeanor to
demonstrate gender bias. See Yusuf, 35 F.3d at 715. Plaintiff reprises his argument that Ollson
"refused to offer [Plaintiff] the same accommodations as offered to . . . Loe" (Dkt. No. 22 ¶¶24,
184, 377; Dkt. No 36 at 18; Dkt. No. 31-7 at 2) (emphasis original). Plaintiff, however, does not
allege disparate treatment; that is, that he requested protection from contact with Loe, and that
Ollson, or anyone, denied it.
Plaintiff's attempt to demonstrate Hill's gender bias also falls far short of being sufficient.
He avers that Hill's "bullying" of him during his initial interview demonstrated her bias against
males (Dkt. No. 22 ¶¶132-135; Dkt. No. 36 at 10). Plaintiff's initial interview was delayed due
to "the time it was taking for [Plaintiff's counsel] to copy [Loe's] lengthy [initial] interview
summary by hand" (Dkt. No. 22 ¶132). Hill "yelled" at Plaintiff and "insist[ed] that [he] had to
immediately start answering her questions" (id.). Viewing Hill's behavior in the light most
favorable to Plaintiff does not raise a reasonable inference of gender bias. See Nisselson v.
Lernout, 469 F.3d 143, 150 (1st Cir. 2006). Compare Sahm, 110 F. Supp. at 778-79 (holding
that bias against students accused of sexual assault is not equivalent to bias against males) (citing
Bleiler, 2013 WL 7414340, at *12); Univ. of Mass.-Amherst, 2015 WL 4306521, at *8 ("Plaintiff
has not cited examples of any comments that targeted him based on his gender — as opposed to
his status as a student accused of sexual assault — or any conduct suggestive of gender bias").
Contrast Doe v. Columbia Univ., Docket Nos. 15-1536 (Lead), 15-1661 (XAP), 2016 WL
4056034, at *5, *9 (2d Cir. July 29, 2016) (vacating the dismissal of the Title IX complaint
because the investigator was "motivated by a pro-female sex bias"). The absence of facts to
support Ollson's and Hill's alleged gender bias belies Plaintiff's conclusory assertion that their
gender bias influenced Burke's decision. Nor does Plaintiff's reference to general counsel's

48

comment about his "predicament" strengthen his case (Dkt. No. 22 ¶94). Plaintiff has not
alleged that WNEU's general counsel played a role in the CRB's decision. See Mallory v. Ohio
Univ., 76 Fed. Appx. 634, 640 (6th Cir. 2003) (allowing defendant's motion for summary
judgment and finding that "[w]ithout any evidence that [an allegedly biased University
employee] influenced the voting members to find against [plaintiff] because of his sex, and
without any indication that [the allegedly biased employee] affected the proceedings in a
significant way, [plaintiff] has not demonstrated that a genuine issue of material fact exists with
respect to his assertion of a sex-based erroneous outcome").
Plaintiff "asserts no facts to suggest that [the University's administrators] would have
treated a female accused of sexual assault any differently . . . or that the University would have
acted differently in a disciplinary procedure against a female accused of sexual assault." Sahm,
110 F. Supp. 3d at 779. Burke's alleged bias is not supported by "any of the[] traditional means
of demonstrating gender bias." Id. at 778. Instead, Plaintiff relies on legal conclusions, which
the court is counseled to ignore (Dkt. No. 22 ¶244). See Iqbal, 556 U.S. at 678. Absent from the
Complaint are statements by Burke, or Elfant, the other member of the CRB, or any other
pertinent University employee that indicate gender discrimination (Dkt. No. 31-13 at 2-3). See
Yusuf, 35 F. 3d at 715; Sahm, 110 F. Supp. 3d at 778. In addition, Plaintiff has neither alleged
nor established a pattern of biased decision making by WNEU. See Yusuf, 35 F.3d at 715.
"[O]ne case by an individual who was subjectively dissatisfied with the result [of a disciplinary
proceeding] does not constitute 'a pattern of decision-making' . . . ." Mallory, 76 Fed. Appx. at
640 (quoting Yusuf, 35 F.3d at 315). Without any facts to support Plaintiff's assertions that
Ollson and Hill were biased against males and that they influenced Burke, or that discrimination
against males motivated the CRB's decision, Plaintiff fails to state a viable claim for relief.

49

In cases in which courts have denied motions to dismiss Title IX claims, plaintiffs alleged
facts in the form of specific statements or patterns of conduct which plausibly suggested that
gender bias motivated erroneous findings that male plaintiffs were responsible for sexual
misconduct. See Yusuf, 35 F.3d at 715. For example, in Prasad v. Cornell Univ., Civil Action
No. 5:15-cv-322, 2016 WL 3212079 (N.D.N.Y. Feb. 24, 2016), the plaintiff alleged that "an
Investigative Report . . . misconstrued and slanted the evidence against [him]," that there was "a
drastic turnaround" in one investigator's position, and that "a gender stereotype adverse to males
charged with sexual assaults existed at Cornell causing such disciplinary proceedings to
'invariably' end adversely to male respondents." Id. at *16-17.
Similarly, in Brown Univ., 2016 WL 715794, plaintiff's complaint included "specific
allegations related to [the university's] gender bias as opposed to bias against students accused of
sexual assault," including particular statements of a former employee and two professors, and
identification of prior cases of sexual misconduct at the university, which allegedly demonstrated
a pattern of gender bias in favor of females. 35 Id. at *8-9. See also Columbia Univ., 2016 WL
4056034, at *7-10 (vacating dismissal and remanding for consideration under the clarified
standard of review to determine whether the complaint alleged sufficient facts to support a
plausible inference that "the [u]niversity's decision-makers and its investigator were motivated to
favor the accusing female over the accused male, so as to protect themselves and the University
from accusations that they had failed to protect female students from sexual assault"); Yusuf, 35
F.3d at 716 (denying motion to dismiss due to complaint's plausible assertion that "males

35

Although these allegations were pled "upon information and belief," the court found that
"[t]his manner of pleading 'is a permissible way to indicate a factual connection that plaintiff
reasonably believes is true but for which the plaintiff may need discovery to gather and confirm
its evidentiary basis.'" Brown Univ., 2016 WL 715794, at *9 (quoting Salisbury Univ., 123 F.
Supp. 3d at 768).
50

invariably lose when charged with sexual harassment at Vassar"); Salisbury Univ., 123 F. Supp.
3d at 766-68 (denying defendants' motion to dismiss due to allegations, which were based on
information and belief, that the university possessed communications that evidenced their bias
against males accused of sexual assault, and that the university sought to demonstrate to the
Department of Education and to the general public that they were "'aggressively disciplining
male students accused of sexual assault'"); Wells v. Xavier Univ., 7 F. Supp. 3d 746, 747, 751
(S.D. Ohio 2014) (denying motion to dismiss based on procedural flaws in the disciplinary
process and plaintiff's allegation that the university made him a "scapegoat" due to two OCR
investigations into the university's handling of allegations of sexual misconduct complaints;
plaintiff adequately pleaded that the university "had a pattern of decision-making" that reflected
gender bias against males); Washington & Lee Univ., 2015 WL 4647996, at *10 (denying motion
to dismiss based on alleged flaws in the proceedings and specific biased statements of a
university official, who wielded "considerable influence" over the outcome of the disciplinary
process).
This case falls on the side of those in which Title IX claims were dismissed for failure to
plead sufficient particularized factual allegations to support a "causal connection" between
gender bias and the erroneous finding of responsibility for sexual misconduct. Yusuf, 35 F.3d at
715. See Sahm, 110 F. Supp. 3d at 778-80 (dismissing plaintiff's Title IX claim because the
complaint failed to allege any statements of members of the disciplinary body or university
officials or any patterns of conduct that permitted the court to infer bias against male students);
Univ. of Mass.-Amherst, 2015 WL 4306521, at *8 (dismissing plaintiff's Title IX claim because
he failed to cite any statements that plausibly suggested the university's gender bias and because
his unsupported claim that the university discriminated against males accused of sexual

51

misconduct was insufficient); Harris, 2014 WL 1910242, at *4 (E.D. Pa. May 13, 2014)
(dismissing plaintiff's Title IX claim due to his failure to allege sufficient facts to support his
claim that gender bias was a motivating factor in the university's decision); see also King v.
DePauw Univ., Cause No. 2:14-cv-70-WTL-DKL, 2014 WL 4197507, at *10 (S.D. Ind. Aug.
22, 2014) (denying plaintiff's motion for a preliminary injunction based on an alleged violation
of Title IX due to the absence of any evidence that "plaintiff's gender was a motivating factor in
any of [the university's] actions").
Although the Complaint adequately alleges an erroneous outcome due to the retroactive
application of the Title IX Policy, Plaintiff fails to allege sufficient facts to demonstrate that the
University's disciplinary decision was motivated by gender bias. See Yusuf, 35 F.3d at 715. The
court acknowledges that questions of motive and intent generally are matters reserved for trial.
See e.g., Scooter Store, Inc. v. SpinLife.com, L.L.C., 777 F. Supp. 2d 1102, 1118 (S.D. Ohio
2011) (holding that when "[m]otive and intent are at issue, . . . courts hesitate to grant motions to
dismiss before the parties have an opportunity for discovery"). Nonetheless, Plaintiff had an
obligation to plead sufficient facts from which an inference of gender bias could be drawn, and
he has failed to do so.
Accordingly, the court recommends that Count XI be dismissed.
G.

Declaratory Judgment (Count XIII) 36

Plaintiff seeks to reverse the sanction and nullify the University's disciplinary process
under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201 (Dkt. No. 22 ¶¶380-384).
Defendants argue that this count should be dismissed because of the alleged deficiencies in all of

36

As noted earlier, Plaintiff's Complaint omits Count XII (Dkt. No. 22 at 64-68).
52

Plaintiff's substantive claims (Dkt. No. 33 at 38). "[T]he Declaratory Judgment Act does not
create its own substantive cause of action." Brown Univ., WL 715794, at *16. Because the court
recommends the denial of the motion to dismiss the claims for breach of contract and breach of
the covenant of good faith and fair dealing based on the University's retroactive application of
the Title IX Policy and failure to adequately notify Plaintiff of the allegations against him,
Plaintiff "continues to state a claim for declaratory relief." Id. Accordingly, the court
recommends that Defendants' motion to dismiss Plaintiff's request for declaratory relief (Count
XIII) be denied.
V.

CONCLUSION

For the foregoing reasons, the undersigned recommends that Defendants' Motion to
Dismiss (Dkt. No. 30) be allowed as to Counts III (estoppel and reliance), IV (unjust
enrichment), V (breach of the common law duty of basic fairness), VI (negligence), VII (IIED),
VIII (tortious interference with advantageous business relations), IX (violations of the Clery Act
and regulations), X (violation of FERPA), and XI (violation of Title IX), be denied as to so much
of Count I and Count II as allege a breach of contract and a breach of the covenant of good faith
and fair dealing based on the University's retroactive application of the Title IX Policy and
failure to adequately notify Plaintiff of the allegations against him, and be denied as to Count
XIII (declaratory judgment). 37

37

The parties are advised that under the provisions of Fed. R. Civ. P. 72(b) or Fed. R. Crim. P.
59(b), any party who objects to these findings and recommendations must file a written objection
with the Clerk of this Court within fourteen (14) days of the party=s receipt of this Report and
Recommendation. The written objection must specifically identify the portion of the proposed
findings or recommendations to which objection is made and the basis for such objection. The
parties are further advised that failure to comply with this rule shall preclude further appellate review
by the Court of Appeals of the District Court order entered pursuant to this Report and
Recommendation. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.
1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d
53

Dated: August 31, 2016

/s/ Katherine A. Robertson
KATHERINE A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE

13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Park Motor
Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir. 1980). See also Thomas v. Arn, 474 U.S.
140, 154-55 (1985). A party may respond to another party=s objections within fourteen (14) days
after being served with a copy thereof.
54