Doe v. State University of New York at Stony Brook et al

Filing 28

MEMORANDUM AND ORDER: For the reasons set forth above, Defendants' motion to dismiss is granted. The Clerk of Court is respectfully directed to enter judgment in favor of Defendants and to close this case. Ordered by Judge Roslynn R. Mauskopf on 3/30/2021. (Taronji, Robert)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOHN DOE,
Plaintiff,
- against STATE UNIVERSITY OF NEW YORK AT STONY
BROOK, MATTY A. ORLICH, and KATHRYN N.
SANTIAGO,

MEMORANDUM AND
ORDER
19-CV-6039 (RRM) (RLM)

Defendants.
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ROSLYNN R. MAUSKOPF, United States District Judge.
John Doe brings this action against the State University of New York at Stony Brook
(“SUNY”), as well as Director of the Office of Community Standards Matty A. Orlich and Title
IX Investigator Kathryn N. Santiago in their individual capacities, alleging, among other things,
violations of Title IX of the Educational Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et
seq., Title VI of the Civil Rights Act (“Title VI”), 42 U.S.C. §2000d et seq., and the Constitution,
stemming from a disciplinary action for alleged sexual misconduct. Defendants now move to
dismiss the Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of
Civil Procedure. (Notice of Mot. (Doc. No. 25).) For the reasons set forth below, Defendants’
motion is granted.
BACKGROUND
The following facts are taken from the Amended Complaint and are assumed to be true
for the purpose of this memorandum and order.
On or about April 14, 2016, Doe, an African-American man, was walking with his
roommate (“Roommate”), a white man, through SUNY’s campus on the way to their dormitory
when a female student approached them. (Am. Compl. (Doc. No. 20) ¶¶ 13–15.) The female

student, whom Doe did not know, stated that she liked Doe and would like to accompany him to
his dorm room. (Id. ¶ 15.) Doe agreed and the three of them returned together to Doe and
Roommate’s shared dorm room. (Id. ¶ 16.) Once in the dorm room, the female student engaged
in sexual contact with both Doe and Roommate. (Id. ¶ 17.) She did not object to the sexual
contact, but consented to it and participated willingly. (Id. ¶ 18.) At no point during this sexual
encounter did Doe penetrate her anus with his finger (or in any other manner). (Id. ¶ 19.)
Immediately following a sexual encounter with Doe, the female student went to the bathroom
with Roommate and, when she returned to the room, engaged in consensual oral sex with
Roommate. (Id. ¶ 20.) Witnesses who saw her leaving Doe’s dorm room reported that she did
not appear distraught or upset in any way. (Id. ¶ 21.)
On or about April 18, 2016, SUNY accused Doe of violating seven sections of SUNY’s
code of conduct in connection with allegedly sexually assaulting the female student during the
encounter in Doe’s dorm room, based on her allegations that the sexual acts that occurred that
night were non-consensual. (Id. ¶¶ 22, 24.) The seven alleged violations were as follows: “a)
Section III.A.1.a—Offense against Person (threatening, intimidating, bullying or abusive acts);
b) Section III.A.1.d—Interference (prevented person from leaving room); c) Section III.A.1.f—
Discrimination; d) Section III.A.9.a—Disruption of University Activities; e) Section
VII.C.5.a—Sexual Harassment (kissing); f) Section VII.C.5.b—Sexual Harassment (vaginal
intercourse); g) Section VII.C.5.c—Sexual Harassment (oral sex).” (Id. ¶ 23.) Roommate was
also accused of sexual assault by the female student. (Id. ¶ 25.)
Based on these allegations, Defendants sent Doe an email outlining his rights as a student
accused of sexual assault (as set forth in SUNY’s code of conduct) and banned Doe from
SUNY’s campus. (Id. ¶ 26.) During this time, Doe was still taking classes and preparing for

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final exams, but once he was suspended, Doe was unable to continue attending classes or to take
his final exams. (Id. ¶¶ 27–28.) Doe withdrew from all of his classes for the spring 2016
semester. (Id. ¶ 29.)
Doe and his attorney met with university officials, including Kathryn Santiago, to make a
voluntary statement. (Id. ¶ 30.) At that time, Santiago served both as Title IX Investigator and
Deputy Title IX Coordinator. (Id. ¶ 34.) It was SUNY’s custom or practice to allow Santiago to
serve in both roles. (Id. ¶ 35.) In his statement, Doe stated that all sexual contact that he and the
female student engaged in was consensual. (Id. ¶ 31.) Doe also told Santiago that after he and
the female student had engaged in sexual conduct, Roommate and the female student had
engaged in consensual sexual conduct. (Id. ¶ 32.) In her report of Doe’s statement, “Santiago
erroneously stated that [Doe] reported that he ‘poked [her] butt hole with his finger (jokingly)
and said “is this the right hole” and she laughed’ while she performed oral sex on him.” (Id. ¶
35.) The female student did not accuse Doe of having poked her anus with his finger. (Id. ¶ 36.)
On or about July 6, 2016, Doe received formal charges, with a hearing date scheduled for
August 19, 2019. (Id. ¶ 37.) The hearing was held before a panel of administrators who had the
authority to make the final determination on the matter. (Id. ¶ 38.) Doe and his counsel were
present, as well as the female student and her advisor. (Id.) Neither Doe’s attorney nor
Roommate’s attorney were permitted to participate in the hearing. (Id. ¶ 39.) Doe was permitted
to submit a list of questions for the female student. (Id. ¶ 40.) The panel asked some of these
questions and reviewed some of the evidence. (Id.) Both Doe and Roommate invoked the Fifth
Amendment and refused to answer any questions. (Id. ¶ 41.) The issue of whether Doe had
poked the female student’s anus was not addressed during the hearing. (Id. ¶ 42.)

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On or about September 2, 2016, Orlich executed a letter informing Doe that he had been
found responsible for just one violation of the code of conduct. A subsequent written decision,
however, found Doe responsible for three code of conduct violations: “a) Section VII.C.5.a—
Sexual Harassment: Kissing, Vaginal Intercourse, Oral Sex, Anal Sex; b) Section VII.C.5.b—
Non-Consensual Sexual Contact: Kissing, Vaginal Intercourse, Oral Sex, Anal Sex; c) Section
VII.C.5.c—Non-Consensual Sexual Intercourse and/or Penetration: Vaginal Intercourse, Oral
Sex, Anal Sex.” (Id. ¶¶ 43, 45.) As alleged, the findings of responsibility were premised solely
upon Doe’s statement that he “poked [her] butt hole with his finger,” even though the female
student never testified that Doe poked her anus or inserted his finger or anything else into her
anus. (Id. ¶¶ 46–47.) Even though the female student had testified that Roommate engaged in
anal sex with her, Roommate was found “not responsible” for any sexual assault or code of
conduct violation. (Id. ¶¶ 48–49.) Doe timely appealed the decision to SUNY’s internal
Appeals Board, which denied his appeal on or about January 13, 2017. (Id. ¶ 53.)
On or about May 8, 2017, Doe filed an Article 78 action against Defendants in the
Supreme Court of the State of New York, alleging that Defendants’ decision should be
overturned because it was not supported by substantial evidence. (Id. ¶ 59.) On or about March
27, 2019, the New York Supreme Court, Appellate Division, Second Department, annulled the
determination and vacated Doe’s suspension. (Id. ¶ 60.) In that decision (the “Article 78
Decision”), the Appellate Division held that the determination “was not supported by substantial
evidence,” “was based on no evidence,” and was “comprised of nothing more than surmise,
conjecture or speculation.” (Id. ¶ 61.) As a result of the Article 78 Decision, the record of the
alleged sexual assault will no longer appear on his transcript. (Id. ¶ 62.)

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Prior to the misconduct allegations, Doe had been on track to graduate in the spring of
2017. (Id. ¶ 50.) However, Doe was suspended through the spring of 2017, totaling three
semesters when he was unable to complete coursework because of the allegations against him.
(Id. ¶ 51.) He was also unable to register at another college or university while the proceedings
were in progress. (Id. ¶ 52.) His suspension for sexual harassment and non-consensual sexual
contact was noted on his transcript and was part of his permanent school record. (Id. ¶ 54.) Doe
had already paid tuition for the spring 2016 semester and, by the time he withdrew, it was nonrefundable. (Id. ¶ 57.) He also lost financial aid due to his suspension. (Id. ¶ 58.)
Doe brings six causes of action in his Amended Complaint. First, Doe alleges that
SUNY unlawfully discriminated against Doe based on his sex in violation of Title IX by
suspending him for three semesters in an intentionally discriminatory manner because he was
male, on the basis of a “patently false claim that wholly favored the female accuser’s version of
events and damages [Doe].” (Id. ¶¶ 64–72.) Second, Doe alleges that SUNY unlawfully
discriminated against him based on his race in violation of Title VI by penalizing him, an
African-American man, for alleged anal contact but giving preferential treatment to his
Roommate and the female student, who actually engaged in anal sex and are both white. (Id. ¶¶
73–83.) Doe therefore asserts that his race was “an intentional and motivating factor for
Defendant’s decision to prosecute the proceeding and sanction Plaintiff.” (Am. Comp. ¶ 80.)
Doe brings his third cause of action against all Defendants pursuant to 42 U.S.C. § 1981, alleging
that all Defendants discriminated against him based on his race and in violation of his civil
rights. (Id. ¶¶ 84–95.) Specifically, Doe states that Santiago’s dual role as Title IX Investigator
and Deputy Title IX Coordinator created a conflict of interest, and “to the extent that Ms. Orlich
signed off on Ms. Santiago’s investigation and findings, she did so without adequate oversight,”

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thereby denying Doe his contractual rights and benefits under SUNY’s University Student
Conduct Code. (Id.) Doe’s fourth and fifth causes of action are brought against all Defendants
pursuant to 42 U.S.C. § 1983, alleging that Doe endured both procedural and substantive due
process violations when he was suspended from campus and subjected to a “wholly arbitrary”
process with Santiago, who “could not be an independent investigator,” at the helm. (Id. ¶¶ 96–
112.) In his sixth cause of action, also brought pursuant to § 1983, Doe alleges that Defendants
committed an equal protection violation when they “unilaterally accused” him, because of his
race, of non-consensual contact with the female student’s anus while simultaneously electing not
to penalize Roommate, who is white, for anal sex with the female student. (Id. ¶¶ 113–21.)
The Instant Motion
Defendants now move to dismiss the Amended Complaint. Defendants assert that Doe’s
§§ 1981 and 1983 claims against SUNY should be dismissed for lack of subject matter
jurisdiction because neither statute provides a waiver of sovereign immunity as required under
the Eleventh Amendment. (Defs.’ Mem. (Doc. No. 25-1) at 24.) Moreover, because § 1983 is
the exclusive damages remedy for claims brought against state actors, Defendants argue that
Doe’s § 1981 action must be dismissed against Orlich and Santiago. (Id. at 25.)
Defendants further contend that Doe has failed to allege personal involvement of Orlich
or Santiago under § 1983, (id. at 25–26), and that Doe’s § 1983 procedural due process claim
fails because he has failed to allege procedural deficiencies in his disciplinary hearing. (Id. at
19–22.) Defendants state that even if Doe had managed to state a claim under § 1983 for
procedural due process or equal protection violations, Santiago and Orlich are entitled to
qualified immunity because the law regarding potential conflicts of interest is not clearly
established. (Id. at 27–30.)

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Defendants argue that Doe’s Title IX claim should be dismissed for failure to plausibly
allege that the outcome of his disciplinary hearing was motivated by his gender. (Id. at 12–16.)
Doe’s conclusory allegation that the outcome of the disciplinary proceeding was motivated by
gender bias is insufficient to support a Title IX violation. (Id. at 13–16.) Finally, Defendants
argue that Doe’s Title VI claim and his equal protection and substantive due process allegations
under § 1983 should be dismissed for failure to allege that Defendants intentionally
discriminated against Doe on the basis of race. (Id. at 16–17.) Defendants append to their
motion a document Doe filed in his Article 78 action (“Exhibit 1”) (Doc. No. 25-3) which
purports to show that Doe did tell investigators that he had poked the female student’s anus with
his finger and made a joke, to dispute Doe’s apparent allegation that Defendants “manufactured”
the statement upon which the disciplinary determination was based. (Id. at 17–19.)
In his reply motion, Doe for the first time argues that SUNY was subject to significant
public pressure relating to their handling of women’s claims of sexual harassment and
misconduct, and that this public pressure, combined with Santiago’s dual role as Title IX
Investigator and Deputy Title IX Coordinator, provide sufficient basis to conclude that the
outcome of Doe’s disciplinary proceedings was the result of gender bias in violation of Title IX.
(Pl.’s Mem. (Doc. No. 26) at 10-17.) Doe also argues that Defendants are estopped from arguing
that the disciplinary hearing was proper due to the doctrine of res judicata. (Id. at 8.) Further,
Doe asserts that the “sine qua non of [Doe’s] Title VI, § 1981, and Equal Protection claim for
racial discrimination under the Fourteenth Amendment’s protection is that similarly situated
students outside of the protection of these statutes were treated differently.” (Id. at 17.) Doe
asserts that because Doe’s white roommate was not found responsible for sexual assault, but Doe
was, Doe has sufficiently alleged racial discrimination. (Id. at 18–21.) Doe argues, “Violating

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impartiality parameters and pitting herself against [Doe] as the Accuser’s surrogate, Santiago did
what the Accuser herself failed to do–get her pound of flesh. Of course, it came from the Black
guy.” (Id. at 21.) Doe also asserts that Santiago’s use of Doe’s statement that he had poked the
female student’s anus – a statement Doe argues was “misused” to “remov[e] the Accuser’s
consent from the context” – was motivated by bad faith sufficient to support a procedural due
process claim under § 1983. (Id. at 21–23.) Confusingly, Doe also argues that Defendants
falsified evidence when they relied on this statement, even though Doe also admits that, as
demonstrated in Exhibit 1, Defendants “did not make up the sexual act, they just ignored its most
prescient element, which is key to nearly all Title IX determinations concerning sexual
allegations: that it was consensual.” (Id. at 26, 24.) Finally, Doe argues that Orlich and Santiago
are not entitled to qualified immunity for either Santiago’s dual roles or for acting to sanction
Doe for clearly consensual sexual activity that was not included in the female student’s
complaint. (Id. at 27–28.) To support this last contention, Doe cites the “unofficial 2020 Title
IX Regulations,” promulgated on May 6, 2020, which, though not in effect when Doe’s
disciplinary hearing took place, are “persuasive authority of the failings of the investigations and
adjudications used by Defendants.” (Id. at 29.)
In response, Defendants argue that because Doe failed to address whether the §§ 1981
and 1983 claims against SUNY are barred by sovereign immunity, Doe has abandoned these
claims. (Defs.’ Reply (Doc. 27) at 14.) Defendants assert that Doe has failed to allege a
procedural or substantive due process violation, or personal involvement on behalf of Orlich or
Santiago, and so the § 1983 claims must be dismissed. (Id. at 9–14.) Further, Defendants argue
that Doe has failed to plausibly allege that the outcome of his disciplinary proceedings was
motivated by his gender, and that the new arguments raised in his reply brief should not be

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considered by this Court. (Id. at 6–8.) Finally, Defendants state that Doe has failed to plausibly
allege that the outcome of the proceeding was based on race, because by Doe’s own admission
he had admitted to sexual conduct in his voluntary statement that Roommate had not admitted to.
(Id. at 8–9.)
DISCUSSION
I.

Rule 12(b)(1) Motion
“[A] district court may properly dismiss a case for lack of subject matter jurisdiction

under Rule 12(b)(1) if it lacks the statutory or constitutional power to adjudicate it.”
Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (internal
quotation marks omitted). A “plaintiff asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000).
The Eleventh Amendment provides, “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. The Eleventh Amendment bars suits in federal court for relief against a State
by a private citizen absent the State’s consent or a valid Congressional abrogation of immunity.
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989). Sections 1981 and 1983 provide no
such abrogation for suits against the State. Id. at 68–69 (“We find nothing substantial in the
legislative history that leads us to believe that Congress intended that the word ‘person’ in §
1983 included the States of the Union.”); Wang v. Office of Prof’l Med. Conduct, 354 F. App’x
459 (2d Cir. 2009) (finding sovereign immunity barred § 1981 claims against the states). New
York’s sovereign immunity extends to the State University of New York system. See Dube v.

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State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990), cert. denied sub nom. Wharton v. Dube,
501 U.S. 1211 (1991)). Doe’s §§ 1981 and 1983 claims against SUNY must therefore be
dismissed.
II.

Rule 12(b)(6) Motion
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move to dismiss

a cause of action that “fail[s] to state a claim upon which relief can be granted.” In evaluating a
Rule 12(b)(6) motion, the Court assumes the truth of the facts alleged, and draws all reasonable
inferences in the nonmovant’s favor. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).
Although all factual allegations contained in the complaint are assumed to be true, this tenet is
“inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In all cases a
plaintiff’s complaint must include “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663 (citing Twombly,
550 U.S. at 570). When ruling on a motion to dismiss under Rule 12(b)(6), the Court may
consider the “facts stated on the face of the complaint and in documents appended to the
complaint or incorporated in the complaint by reference, as well as matters of which judicial
notice may be taken.” Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993).
a. § 1981 Claim
In instances where there is an alleged violation of § 1981 by a “state actor,” § 1983
provides the “exclusive federal damages remedy.” Whaley v. City U. of New York, 555 F. Supp.
2d 381, 400 (S.D.N.Y. 2008) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989)).
“Moreover, the holding in Jett has been interpreted to encompass not only governmental entities

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but also individuals sued in their individual capacities who are ‘state actors.’” Roddini v. City
Univ. of N.Y., 02-CV-4640 (LAP), 2003 WL 435981, at *5 (S.D.N.Y. Feb. 21, 2003). “State
employment has generally been deemed sufficient to render the defendant a ‘state actor.’” Id. at
*5. Orlich and Santiago, as employees of SUNY and therefore state actors, must be sued under §
1983, not § 1981. Accordingly, Doe’s § 1981 claim against Orlich and Santiago is dismissed.
b. § 1983 Claims
“It is well settled that, in order to establish a defendant’s individual liability in a suit
brought under § 1983, a plaintiff must show … the defendant’s personal involvement in the
alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.
2013). In other words, “because vicarious liability is inapplicable to … § 1983 suits, a plaintiff
must plead that each … defendant, through the official’s own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676. For supervisory defendants, personal involvement may be
shown where:
(1) the defendant participated directly in the alleged constitutional violation, (2)
the defendant, after being informed of the violation through a report or appeal,
failed to remedy the wrong, (3) the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed the continuance of such a
policy or custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the defendant exhibited
deliberate indifference to the rights of [plaintiff] by failing to act on information
indicating that unconstitutional acts were occurring.
Grullon, 720 F. 3d at 139.
Doe repeatedly asserts in his Amended Complaint that Orlich sent a letter to Doe
informing him that he had been found responsible for sexual misconduct, and, “[t]o the extent
that Ms. Orlich ‘signed off’ on Ms. Santiago’s investigation and findings, she did so without
adequate oversight, pursuant to SUNY’s custom or practice, which was particularly damaging
given the conflict of interest and potential for error if not abuse.” (Am. Compl. ¶¶ 85, 97, 105.)
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These allegations do not satisfy any of the five prongs enumerated above. Though Doe asserts
that if Orlich had signed off on Santiago’s investigation or findings she would have done so as
part of a custom or practice of inadequate oversight, Doe does not actually allege that Orlich
signed off on Santiago’s investigation or findings. Mere speculation as to whether Orlich signed
off on Santiago’s report is not sufficient to establish Orlich’s personal involvement in an alleged
constitutional violation. Further, Doe does not state any facts to plausibly show that Orlich was
grossly negligent or had participated directly in a constitutional violation when she sent him a
letter informing him of the results of his disciplinary hearing. Doe’s § 1983 claims against
Orlich are therefore dismissed for failure to allege personal involvement.
Doe’s allegations against Santiago are even less clear. Doe asserts that Santiago’s dual
role as Title IX Investigator and Deputy Title IX Coordinator created a conflict of interest, but
fails to explain what that conflict of interest was or how it actually shaped the disciplinary
proceedings or the outcome, arguing only that Santiago’s dual role introduced “potential for error
if not abuse.” Moreover, though Doe states that “Defendants proffered evidence” against him
that was “comprised of surmise, speculation, and conjecture,” he does not identify what that
speculative evidence was, how this evidence constitutes a Constitutional violation, or what
Santiago specifically did in furtherance of that violation. Doe cites to the Article 78 Decision to
show that Doe’s disciplinary determination was based on “no evidence” and “comprised of
nothing more than surmise, conjecture or speculation,” but it does not follow that the evidence
that Santiago provided in her report was conjectural.
Though Doe appears to assert in his Amended Complaint that Santiago fabricated
evidence by “erroneously” including a statement he allegedly made where he admitted to poking
the female student’s anus with his finger, Doe seems to disclaim this assertion in his subsequent

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briefing. In his discussion of whether to consider Defendants’ Exhibit 1, he does not in fact
allege that Santiago fabricated that statement when she included it in her report. Rather, Doe
argues that Santiago’s report “misused” his statement by “removing consent from the context,”
and this misconstrued statement was the basis of the panel’s determination that he had committed
code of conduct violations. (Pl.’s Mem. at 21–23.) Doe fails to explain in his Amended
Complaint and subsequent briefing how Santiago misused or misconstrued his statement by
including it, apparently in full, in her report. Further, if, as he seems to argue, the statement was
misconstrued during the disciplinary proceedings, Doe fails to explain how this manipulation of
his statement is attributable to Santiago.
None of these allegations – that Santiago served in two roles simultaneously, that she
included a statement in her report that may have been taken out of context, and that the
disciplinary outcome was conjectural and based on a lack of evidence – explain how Santiago
was personally involved in any alleged constitutional violation. Doe’s § 1983 claims against
Santiago are therefore dismissed for failure to allege personal involvement.
c. Title IX Claim
Title IX provides, in relevant part, “No 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 education program or activity receiving Federal financial assistance.”
20 U.S.C. § 1681(a). A plaintiff asserting a Title IX erroneous disciplinary outcome claim must
demonstrate (1) “articulable doubt [as to] the accuracy of the outcome of the disciplinary
proceeding,” and (2) that “gender bias was a motivating factor behind the erroneous finding.”
Doe v. Colgate University, 760 Fed. App’x 22, 30 (2d Cir. 2019). In the context of an erroneous
outcome claim, allegations that a disciplinary process favored a female accuser “do not

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necessarily relate to bias on account of sex.” Doe v. Columbia, 831 F.3d 46, 57 (2d Cir. 2016).
Additionally, “allegations 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 …. A plaintiff must thus also allege particular
circumstances suggesting that gender bias was a motivating factor behind the erroneous finding.”
Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994).
Here, it is undisputed that Doe has pled sufficient facts to raise an articulable doubt
regarding the accuracy of his disciplinary outcome. Doe has already prevailed in his Article 78
action, which annulled the disciplinary determination and vacated his suspension based on a lack
of evidence. However, Doe fails to allege sufficient facts to raise an inference of gender bias as
a motivating factor behind the disciplinary decision. Doe’s Amended Complaint contains the
conclusory allegation that Doe, a male student, was disadvantaged in the disciplinary
proceedings because he was male, but is otherwise devoid of facts that would tend to support this
claim. Because Doe’s Title IX claim rests solely on a conclusory allegation of gender bias or sex
discrimination, it cannot survive a motion to dismiss.
In his response brief to Defendants’ motion to dismiss, Doe asserts for the first time that
SUNY was facing campus unrest and government scrutiny regarding sexual assault on campus
and was under significant public pressure to appear sympathetic to female accusers. These
assertions were not contained in the Amended Complaint and so the Court cannot consider them.
Rodriguez v. Holder, 11-CV-2124, 2014 WL 6983401 at *3 (E.D.N.Y. Dec. 10, 2014) (“The
Court cannot consider allegations that a petitioner raises for the first time in [his] brief opposing
a motion to dismiss.”); see also, e.g., K.D. ex rel. Duncan v. White Plains Sch. Dist., 921 F.

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Supp. 2d 197, 209 n.8 (S.D.N.Y. 2013) (“Plaintiff[] cannot amend [his] complaint by asserting
new facts or theories for the first time in opposition to Defendants’ motion to dismiss.”).
d. Title VI Claim
Title VI provides, in relevant part, that “no person in the United States shall, on the
ground of race, color, or national origin, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any program or activity receiving Federal financial
assistance.” 42 U.S.C. § 2000d. A plaintiff asserting a claim pursuant to Title VI must plausibly
allege “that the defendant discriminated against him on the basis of race, that that discrimination
was intentional, and that the discrimination was a substantial or motivating factor for the
defendant’s actions.” Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir. 2001) (internal citations
and quotation marks omitted).
Doe asserts in his Amended Complaint that Roommate, who is white, was the only
person accused of non-consensual anal contact with the female student, but that it was Doe, who
is black, who was punished for this contact. Doe also asserts that the female student, who is also
white, received preferential treatment during the disciplinary proceedings. Doe therefore asserts
that his race was “an intentional and motivating factor for Defendant’s decision to prosecute the
proceeding and sanction Plaintiff.” (Am. Comp. ¶ 80.) In his response brief, Doe further asserts
that he faced racial discrimination when “Defendants unilaterally invented an accusation of a
non-consensual sexual act that the accuser herself never alleged – at least not against Plaintiff,”
(Resp. at 8.); that because he is black he is “particularly vulnerable to false accusations,” (id. at
20); and that Santiago, by “[v]iolating impartiality parameters and pitting herself against Plaintiff
as the Accuser’s surrogate, … did what the Accuser herself failed to do–get her pound of flesh.
Of course, it came from the Black guy,” (id. at 21.)

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These inflammatory and conclusory allegations are not sufficient to establish intentional
discrimination. Doe alleges no facts to support his assertion that Defendants sought to punish
him because he is black, besides the facts that he is black and that the other two students are not.
Further, though Doe appears to argue that he took the blame for Roommate when he was found
responsible for code of conduct violations stemming from allegedly non-consensual anal contact,
Doe also gave a statement to Santiago in which he admitted to anal contact. Though Doe argues
that this statement was taken out of context and used against him, Doe alleges no facts in his
Amended Complaint to support his argument that this statement was taken out of context or used
against him because of his race. Accordingly, Doe’s Title VI claim must be dismissed.
CONCLUSION
For the reasons set forth above, Defendants’ motion to dismiss is granted. The Clerk of
Court is respectfully directed to enter judgment in favor of Defendants and to close this case.

SO ORDERED.
Dated: Brooklyn, New York
March 30, 2021

Roslynn R. Mauskopf
_______________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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