Doe v. Case Western Reserve University et al
Memorandum Opinion and Order granting 17 the Motion of Defendant Tomkins to dismiss complaint for failure to state a claim. All claims against Ms. Tomkins are dismissed. The Motion of Defendants CWRU, Barbara R. Snyder, Lou Stark, G. Dea n Patterson, Jr., George O'Connell and Shannon J. Greybar Milliken to Dismiss (ECF # 11 ) is granted in part and denied in part as follows: Count 1: Violation of Title IX against CWRU denied; Count 2: Violation of the Fourteenth Amendment agai nst CWRU granted; Count 3: Breach of Contract against Individual Defendants granted; as to CWRU denied; Count 4: Breach of Covenant of Good Faith and Fair Dealing against all Defendants granted; Count 5: Negligence denied, but limited to duties ari sing from Title IX directives; Count 6: Promissory Estoppel against CWRU denied. As explained, Plaintiff's motion for leave to submit supplemental authority (ECF# 34 ) is granted and Plaintiff's Motion to Convert 12(b)(6) motion to dismiss into a rule 56 motion for summary judgment (ECF # 36 ) is denied. Judge Donald C. Nugent 9/1/2017(C,KA)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
CASE WESTERN RESERVE
UNIVERSITY, et al.,
CASE NO. 1:17 CV 414
JUDGE DONALD C. NUGENT
This matter is before the Court on the Motion of Defendants Case Western Reserve
University (“CWRU”), Barbara R. Snyder, Lou Stark, G. Dean Patterson, Jr., George O’Connell,
and Shannon J. Greybar Milliken to Dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6)1.
(ECF #11) Defendant Lauren Tompkins filed a separate Motion to Dismiss pursuant to Fed. R.
Civ. P. 12(b)(6) and to join in the Motion to Dismiss of the other Defendants, asserting that the
arguments contained in that Motion apply equally to Ms. Tompkins.(ECF #17) The motions are
now fully briefed and ready for decision.
Plaintiff John Doe is a citizen of Texas, but was a student at CWRU and residing in
Defendants assert that the Complaint improperly names “Case Western Reserve
University Board of Trustees as a defendant because the CWRU Board of Trustees is not
a separate legal entity. The corporate entity subject to suit is CWRU. Plaintiff does not
take issue with this pronouncement and as such, the CWRU Board of Trustees will be
The factual allegations are taken from the Plaintiff’s Complaint and will be accepted as
true for the purposes of this motion.
university housing in Cleveland, Ohio during the events at issue in the Complaint. (Compl. ¶ 17)
Plaintiff brings this action against Defendants CWRU, Barbara J. Snyder, president of CWRU,
Lou Stark, Vice President for Student Affairs of CWRU, G. Dean Patterson, Jr., Associate Vice
President for Student Affairs of CWRU, George O’Connell, Director of Student Conduct and
Community Standards of CWRU, Shannon J. Greybar Milliken, Associate Dean of Students and
Deputy Title IX Coordinator at CWRU, and Lauren Tompkins, an Investigator at CWRU.
(Compl. ¶¶ 18-25) Plaintiff asserts the following causes of action against one or more of the
Defendants: Count 1: Violation of Title IX of the Education Amendments of 1972-Erroneous
Outcome (against CWRU); Count 2: Violation of the Fourteenth Amendment of the United States
Constitution Procedural Due Process (against CWRU); Count 3: Breach of Contract (against the
CWRU Defendants)3; Count 4: Breach of the Covenant of Good Faith and Fair Dealing (against
the CWRU Defendants); Count 5: Negligence (against the CWRU Defendants); Count 6:
Promissory Estoppel (against CWRU); and a request for a declaratory judgment pursuant to 28
U.S.C. § 2201 (against unspecified defendants). These claims arise out of the actions taken and
procedures employed by the Defendants concerning the investigation of allegedly false
allegations of sexual assault made by a student, Jane Doe, against Plaintiff resulting in serious
sanctions being imposed on Plaintiff, including a multi-year suspension from CWRU.
The alleged sexual misconduct at issue occurred on the night of September 13-14, 2014.
Plaintiff alleges that he met Jane Doe during freshman orientation activities held in August 2014
at CWRU. At that time John Doe was a sophomore orientation team member and Jane Doe was
The Court will assume that the Plaintiff is referring to all of the defendants when he uses
the term “CWRU defendants”).
an incoming freshman. Plaintiff and Jane Doe became close friends which developed into an
intimate, mutually consensual sexual relationship consisting of frequent sexual encounters.
(Compl. ¶¶ 67-69) On the afternoon of September 13, 2014, Jane Doe told Plaintiff she was
unsure of her feelings for him and suggested they needed time apart, perhaps the forthcoming
weekend. At 9:00 that evening, Jane Doe was at a dorm party where she consumed beer and
shots. Plaintiff met his friends at the same dorm party before attending the new pledge initiation
party for his fraternity. At about 1:00 a.m., while at an off-campus fraternity party, Plaintiff
received a text from a friend stating that Jane Doe has asked him to send Plaintiff a text telling
him to come out with them. Jane Doe then sent a text to Plaintiff telling him to come find her.
Plaintiff went to the location specified by Jane Doe and found Jane Doe with her arms around
another guy. Plaintiff turned around and walked away. At that point Jane Doe spotted Plaintiff
and ran after him. She asked him if she could spend the night at his fraternity house. Plaintiff
walked with Jane Doe back to her dorm so she could change into sweat pants before going to the
fraternity house for the night. (Compl. ¶¶ 70-73).
Once at the fraternity house, Plaintiff made something for Jane Doe to eat and they talked
and played billiards for some time. Jane Doe told Plaintiff that she wanted to sleep with him so
they went to the basement of the fraternity house where they knew that they could be alone. They
laid on the couch together in the dark room, where they engaged in kissing and mutual touching.
Plaintiff helped Jane Doe remove her pants and digitally penetrated her and performed oral sex
on her. This was the usual pattern of their sexual relationship that they had done many times
before when engaging in consensual sexual relations. Jane Doe did not provide oral sex to
Plaintiff nor did Plaintiff ever attempt to have vaginal intercourse with Jane Doe. As Plaintiff
and Jane Doe lay facing each other on the sofa, Jane Doe suddenly pushed Plaintiff away, got up
from the couch and began to cry. Plaintiff did not know why she was crying but tried to comfort
her. Jane Doe told him she wanted to go back to her dorm so Plaintiff drove her back to her
building. While in the car Plaintiff apologized to Jane Doe if he had done anything to upset her.
Jane Doe told him that she needed time apart to think about their relationship. (Compl. ¶¶ 74-80).
The next day Plaintiff states that he and Jane Doe went for a drive and talked about their
relationship. Jane Doe told him that she wanted to take a break. Thereafter, Plaintiff texted Jane
Doe, sent her gifts and tried to talk to her whenever he saw her. He states that after trying for
weeks to make amends, by the end of October, Plaintiff stopped all efforts to communicate with
Jane Doe. (Compl. ¶¶ 81-83).
On November 25, 2014, at the insistence of a friend, Jane Doe agreed to speak to
Defendant Milliken, the Title IX director for CWRU, to try to “sort out her feelings” for Plaintiff
about what happened between them. Prior to initiating an investigation, Ms. Milliken asked Jane
Doe if she wanted to request academic accommodations. Plaintiff believes that Jane Doe was
failing one of her courses (Anatomy) one week prior to the final exam and that she was permitted
to withdraw from that class as an academic accommodation provided by the Title IX Office. The
Anatomy course was allegedly required for Jane Doe to continue in the nursing program and by
allowing her to withdraw, she would be eligible to repeat the course without having had a failing
grade from the first attempt and the failed class would not affect her grade point average. (Id. ¶¶
84-87) In contrast, Plaintiff states that he informed Ms. Milliken (at their first meeting on
December 11, 2014) that due to his recent severe depression he had stopped going to classes for
two weeks, had dropped one course and was having difficulty in Spanish. Although CWRU
policy stated that a student accused of sexual misconduct must also be provided with support
resources, Plaintiff was not informed of or offered any academic accommodations. (Id. ¶¶ 88, 89)
Ms. Milliken allegedly asked Jane Doe what she would like to see happen with the sexual
misconduct investigation and described the next steps, including support resources, no contact
directive, police notification, and written statement. (Id. ¶¶ 91-92). On December 10, 2014,
Plaintiff received a No Contact Directive with respect to Jane Doe. On December 11, 2014, he
received an email directing him to make an appointment with Trina Jones. The email did not state
the purpose of the meeting or advise him that he could bring an advisor with him. Plaintiff asserts
that he was blind sided when the meeting turned out to be with Ms. Milliken, the Title IX
investigator. Plaintiff contends that he had not received a notice of investigation or a discussion
of his rights and responsibilities. (Id. ¶¶ 93-94) Further, he informed Ms. Milliken at the start of
their meeting that he was having trouble verbalizing things lately because of a depression based
aphasia and that he had an impairment in the speaking portion of the brain, so he had been taking
pills. (Id. ¶ 95) Ms. Milliken offered no resources or accommodation to Plaintiff upon receiving
the information regarding Plaintiff’s mental health and disabilities. (Id. ¶ 96)
In response to Ms. Milliken’s request that Plaintiff tell her what happened on the night of
the incident with Jane Doe, Plaintiff, who is devoutly religious, began to confess that he “became
tempted to do things that were not moral.” Plaintiff alleges that Ms. Milliken did not ask him
what he meant by “not moral” and asserts that she presumed that his statement was an admission
of responsibility for sexual assault. (Id. ¶ 97)
Plaintiff met with Ms. Milliken a second time on January 21, 2015, where she told
Plaintiff that the purpose of the meeting was to confirm his statements made in his December
interview and proceed to hearing. Plaintiff alleges that he denied the allegations and requested a
formal hearing. (Id. ¶ 100)
Jane Doe was contacted by the CWRU Police on two occasions regarding a report made
by the Student Conduct Office that she had been involved in an incident of forcible sexual
assault. After meeting with the officers, Jane Doe declined to pursue charges against Plaintiff and
informed them that she had no interest in assisting with a criminal prosecution against Plaintiff.
Plaintiff asserts that he did not learn of the allegations against him until February 6, 2015.
(Id. ¶ 102) Defendants Milliken and Tompkins interviewed 14 witnesses between February 9 and
February 24, 2015. Plaintiff was not permitted to review the witness statements or to provide
responses to the statements. Defendant interviewed Jane Doe again and again discussed academic
accommodations for Jane Doe. (Id. ¶¶ 104-05)
On February 25. 2017, an Administrative Hearing was held before Defendant O’Connell,
CWRU’s Director of Student Conduct and Community Standards. The only participants were
Ms. Milliken and Plaintiff. Mr. O’Connell notified Plaintiff of his decision letter on February 27,
2015, which sanctioned Plaintiff to two years of suspension, status of persona non grata, no
contact order with Jane Doe, and permanent ban from residing in University housing. Plaintiff
was given three days to appeal the decision. The Appellate Board affirmed the sanctions in all
respects except it increased the suspension from two years to three years, through May 2018.(Id.
Plaintiff alleges that the Department of Education’s April 2011 “Dear Colleague Letter”
put increased pressure on colleges to have prompt procedures to investigate and resolve
complaints of sexual misconduct. The Dear Colleague Letter (“DCL”) required schools to adopt a
preponderance of the evidence standard in cases involving sexual misconduct, and urged schools
to minimize the burden on the complainant. (Id. ¶¶ 37-38). The Complaint details the Obama
Administration’s efforts to make the DCL binding on schools, including the hiring of hundreds
more investigators by the Department of Education Office of Civil Rights to ensure Title IX
enforcement and notes that the Federal Government is investigating approximately 307 schools
for possible Title IX violations. In July 2016, Vice President Biden warned that schools that do
not comply with administration guidelines could be stripped of federal funding. (Id. at ¶¶ 39-43)
Plaintiff cites numerous 2014 media reports that “schools are running so scared of violating the
civil rights of alleged victims that the end up violating the due process rights of defendants
instead.” (Id. at ¶¶ 43-44) Plaintiff alleges that in response to all of the pressure from the Office
of Civil Rights, the Department of Justice and the White House, educational institutions like
CWRU, have limited the procedural protections afforded to male students like Plaintiff in sexual
misconduct cases.(Id. ¶ 45)
STANDARD OF REVIEW
In evaluating a motion to dismiss, the court must construe the complaint in the light most
favorable to the plaintiff, accept its factual allegations as true, and draw reasonable inferences in
favor of the plaintiff. See Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). The
complaint need not contain detailed factual allegations, but it must include more than labels,
conclusions, and formulaic recitations of the elements of a cause of action. Id. “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing
Twombly, 550 U.S. at 555).
To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege facts that
“state a claim to relief that is plausible on its face,” and that, if accepted as true, are sufficient to
“raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. 678. “A claim is plausible on
its face if the ‘plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.’ ” Ctr. for Bio–Ethical Reform,
Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir.2011), cert. denied, 132 S.Ct. 1583, (2012)
(quoting Iqbal, 556 U.S. at 677).
On a motion brought under Rule 12(b)(6), the court’s inquiry is limited to the content of
the complaint, although matters of public record, orders, items appearing in the record of the
case, and exhibits attached to the complaint may also be taken into account. See Bassett v. Nat’l
Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008); Amini v. Oberlin College, 259 F.3d
493, 502 (6th Cir. 2001).
Thus, for the purposes of this Motion to Dismiss, the Court accepts the Plaintiff’s factual
allegations as true and construes the Complaint in the light most favorable to Plaintiff. However,
the Court will not credit the Complaint’s mere conclusory statements without reference to its
factual content. Iqbal, 566 U.S. at 686.
I. Federal Claims
Moving first to the federal claims asserted in the Complaint, Defendants argue that
Plaintiff’s Title IX claim (Count 1) fails because it lacks any non-conclusory factual allegations
that any of the alleged procedural flaws were motivated by gender bias. Defendants argue that
Plaintiff’s Fourteenth Amendment claim (Count 2) must be dismissed because the Fourteenth
Amendment due process requirements do not apply to a private educational institution’s
disciplinary proceedings. The Court will consider these arguments in order.
A. Title IX Claim against (CWRU)
Title IX provides: “[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
educational program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The
Department of Education and the Department of Justice have also adopted regulations that
require schools to “adopt and publish grievance procedures providing for the prompt and
equitable resolution of student [...] complaints alleging any action that would be prohibited by”
Title IX regulations, including sexual assault. See 34 C.F.R. § 106.8(b); 28 C.F.R. §
54.135(b).The Sixth Circuit, citing Yusuf v. Vassar College, 35 F.3d 709, 715 (2d Cir. 1994), has
recognized a private right of action under Title IX where a plaintiff alleges that an educational
institution implemented disciplinary actions that discriminated against the plaintiff based on sex.
Mallory v. Ohio Univ., 76 F. App’x 634, 638-39 (6th Cir. 2003); Doe v. Case Western Reserve
Univ., No. 1:14 CV 2044, 2015 WL 5522001 at *4 (N.D. Ohio Sept. 16, 2015). “Title IX bars
the imposition of university discipline where gender is a motivating factor in the decision to
discipline. Yusuf, 35 F.3d at 715.
Courts have analyzed Title IX claims arising from disciplinary hearings under four
standards: the “erroneous outcome” standard, the “selective enforcement” standard, the
“deliberate indifference” standard, and the “archaic assumptions” standard. Doe v. Univ. of the
South, 687 F. Supp. 2d 744, 756 (E.D. Tenn. 2009); Doe v. Case Western Reserve Univ., 2015
WL 5522001 at *4. In this case, Plaintiff’s first cause of action alleges a Title IX violation
against CWRU based on the erroneous outcome theory4. (ECF #21 at 13) The gravamen of an
erroneous outcome claim is that an innocent person was wrongly found to have committed an
offense because of his or her gender. Marshall v. Ohio Univ., No. 2:15 CV 775, 2015 WL
7254213, at *5 (S.D. Ohio Nov. 17, 2015).
In order to state an erroneous-outcome claim, a plaintiff must plead:
(1) facts sufficient to cast some articulable doubt on the
accuracy of the outcome of the disciplinary proceeding” and
(2) a particularized ... causal connection between the flawed
outcome and gender bias.
Doe v. Cummins, 662 F. App'x 437, 452 (6th Cir. 2016), citing Yusuf , supra, 35 F.3d 709, 715.
In order to satisfy the first element of the test, Plaintiff must
allege particular facts sufficient to cast some articulable doubt on
the accuracy of the outcome of the disciplinary
proceeding....However, the pleading burden in this regard is not
heavy. For example, a complaint may allege particular evidentiary
weaknesses behind the finding of an offense such as a motive to lie
on the part of a complainant or witnesses, particularized strengths
of the defense, or other reason to doubt the veracity of the charge.
A complaint may also allege particular procedural flaws affecting
Defendants move to dismiss Plaintiff’s Title IX claim against the individual defendants.
The Complaint in Count One alleges a Title IX claim against CWRU. Plaintiff emphasizes
in his opposition to Defendants’ motion to dismiss that Plaintiff does not assert a Title IX
claim against the individual defendants. (ECF #21 p.2- III F)
Yusef, 35 F.3d at 715. Here, Plaintiff alleges that Jane Doe had a reason to lie–she allegedly
needed the Title IX accommodation to withdraw from a class that she was failing without having
the F applied to her gpa; Defendants found Jane Doe to be more credible despite her inconsistent
and varying account of the events; Defendants lured Plaintiff into a false sense of security when
they falsely assured him it would be in his best interests to cooperate and tell them everything;
overlooked all exculpatory evidence; Defendants ignored evidence regarding Plaintiff’s mental
health and disabilities and the fact that he was taking medication affecting his ability to
communicate and instead pressed forward with the interview without suggesting contacting
disability or support services; Plaintiff was never permitted to review or respond to any of the 14
witness statements prior to the hearing; Plaintiff was not provided with the Investigation Report
prior to his hearing and was only allowed 20 minutes to review the report on the day after his
hearing to prepare his appeal. The Court finds that Plaintiff alleges facts sufficient to cast some
doubt on the accuracy of the outcome of the disciplinary proceedings5.
In their initial Memorandum in Support of the Motion to Dismiss, Defendants
moved directly to the second element of the test–arguing that Plaintiff has failed to make
any factual, non-conclusory allegations showing that the flawed outcome of the
disciplinary proceeding was caused or motivated by gender bias. The Court assumed
Defendants conceded that the Complaint satisfied the first element of the test. However, in
their reply brief, Defendants attach a copy of CWRU’s Sexual Misconduct Policy, and
filed a copy of the no contact directive emailed to Plaintiff, Ms. Milliken’s DRR Initial
Inquiry Notes from December 11, 2014 and Ms. Milliken’s Sexual Misconduct Interview
Memorandum Notes from February 6, 2015, under seal. Defendants refer to these
documents to show that CWRU complied with its Sexual Misconduct Policy and that some
of the allegations asserted in the Complaint are untrue or incomplete. Thereafter, Plaintiff
moved to covert the Motion to Dismiss to a Motion for Summary Judgment (ECF # 36)
which Defendants opposed. Upon review, it appears that the documents submitted under
seal to refute some of Plaintiff’s factual allegations are some, but not all of the documents
prepared during the course of the investigation at issue. Moreover, the documents are
To satisfy the second element of the test, Plaintiff must allege facts sufficient to show “a
particularized ... causal connection between the flawed outcome and gender bias.” Cummins, 662
F. App'x at 452. Causation sufficient to state a Title IX discrimination claim can be shown in a
number of ways including via “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.” Yusuf, 35 F.3d at 715. “However, 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.” Id.
Plaintiff makes the following allegations in support of his claim of gender bias:
--Upon information and belief there are no reported incidents of male complaints against
female students for sexual assault and/or no reports of female accused students being disciplined
for sexual misconduct by males;
–-Upon information and belief CWRU defendants are knowledgeable of the fact that
complaints of sexual misconduct are disproportionately lodged by females against males;
–-Upon information and belief CWRU recognized the increased pressure, both internally,
and from the United States government to aggressively discipline male students accused of sexual
misconduct, under threat of rescission of federal funds.
–CWRU’s response to this pressure, and attempts to avoid rescission of federal funding, is
evident from CWRU’s Clery Reports which reveal that the number of forcible sex offenses
submitted to prove the truth (or untruth) of Plaintiff’s allegations or Defendants’ defense.
As such, the Court will not consider those documents in ruling on the instant motion to
dismiss. The Court will consider the Sexual Misconduct Policy attached to the reply brief.
Plaintiff’s Motion to Convert is denied.
reported on CWRU’s campus during 2014 increased considerably, from 9 reported instances in
2013 to 19 in 2014, with only 6 reported incidents in 2015.
–Significantly, it was just prior to calendar year 2014 that Defendant Milliken assumed
the role of Title IX Sexual Misconduct Investigator and Deputy Title IX Coordinator. After more
than doubling the number of reported forcible sex offenses to 19 at CWRU during her tenure,
upon Defendant Milliken’s departure from CWRU in 2015, the number of alleged incidents
decreased to 6 for 2015.
In 2013 Defendant Milliken wrote her doctoral dissertation on “The Dangerous Reality:
Sexual Risk Taking Among College Women” which focused on the detrimental effects to women
of engaging in casual sex in college. She concluded that “we have an epidemic in higher
education regarding the sexual risk taking of college students, in particular women.”
–The foregoing demonstrates Defendant Milliken’s inherent belief that males accused of
sexual misconduct on college campuses are always responsible, a theory she perpetuated while at
–CWRU demonstrated a gender bias against Plaintiff because while both parties were
admittedly intoxicated at the time of the sexual encounter, the CWRU Defendants failed to
consider the effect of Plaintiff’s intoxication on his ability to affirmatively consent to physical
contact initiated by Jane Doe.
–CWRU demonstrated bias by affording academic accommodations to Jane Doe but
Defendant Milliken failed to offer any aid or accommodation to Plaintiff despite Plaintiff’s
admissions of physical and mental health issues and academic difficulties.
–CWRU’s gender bias against Plaintiff resulted in a decision that did not afford Plaintiff
the requisite preponderance of the evidence standard, instead he was assumed guilty unless
proven innocent. CWRU’s interpretation of the evidence failed to recognize or address Jane
Doe’s potential motive of reporting a false allegation against Plaintiff in order to obtain a Title IX
academic accommodation to permit her to withdraw at the end of the semester from a class she
–Defendant Milliken’s report adds acts not in the record, accuses Plaintiff of objectifying
Jane Doe, wanting to control Jane Doe–evidencing a presumption that Plaintiff was the sexual
–CWRU accepted at face value Jane Doe’s allegations, notwithstanding her inconsistent
statements and contradictory evidence.
–Investigators intentionally overlooked any evidence tending to diminish Jane Doe’s
credibility and/or exculpate Plaintiff.
–Only an anti-male bias to find for the female complainant and against the male
respondent can explain CWRU’s findings concerning the preponderance of the evidence.
These allegations, accepted as true with all inferences taken in favor of the Plaintiff for
the purposes of this Motion to Dismiss, are sufficient to support an allegation of gender bias at
this stage of the proceedings. It is not Plaintiff’s responsibility at this time to demonstrate facts
that prove that the outcome of the disciplinary procedure was erroneous as a result of gender bias.
Rather, to survive a motion to dismiss, Plaintiff need plead only enough facts to show that his
allegation that the flawed outcome of his disciplinary proceeding was motivated by gender bias is
“plausible.” Here Plaintiff has alleged that the Deputy Title IX Coordinator Ms. Milliken, who
was the person to investigate the complaint, prepare the evidentiary report, and testified at the
hearing was biased against men and or considered them the sexual aggressor based upon
statements made in her recent doctoral dissertation. He also alleged that sexual misconduct
complaints more than doubled during Ms. Milliken’s tenure as Deputy Title IX Coordinator.
Making all inferences in Plaintiff’s favor, these allegations at least give rise to the possibility that
Ms. Milliken had a bias against men in these types of situations, and while she was not the
decision maker in this instance, she exercised enormous influence over the record and evidence
presented to the decision maker.
Moreover, Plaintiff alleges that both parties to the incident were intoxicated, but that only
Plaintiff was punished for the consensual sexual acts initiated by Jane Doe. If only the male
participant is disciplined for participating in the same acts–the implication of gender bias is clear.
If these facts are taken as true and all inferences are credited to Plaintiff, then Plaintiff’ claim that
his discipline was motivated by gender bias is plausible.6 Accordingly, Defendants’ Motion to
There has been an explosion of Title IX lawsuits alleging reverse gender backlash from the
2011 DCL and the Department of Education’s enforcement of it. Lower courts are divided
on what Plaintiffs must allege in order to make their claims of gender bias plausible
enough to survive a motion to dismiss. In Yusuf, decided before Twombly and Iqbal, the
court found that the plaintiff’s alleged deficiencies in his disciplinary proceeding coupled
with his allegation “that males accused of sexual harassment at Vassar are ‘historically and
systematically’ found guilty regardless of the evidence, or lack thereof, to be sufficient.
Yusuf, 35 F.3d at 716. Post Iqbal and Twombly, courts have split on whether allegations
along these lines, that schools are concerned about appearing too lenient on male students
accused of sexual assault, and therefore those students are systematically found guilty
regardless of the evidence, a factual allegation–which must be credited–or a conclusory
legal allegation–which does not get the presumption of truth. See Doe v. Brown University,
166 F. Supp. 177, 186-190 (D. RI 2016) (collecting cases) In this case and others where
courts denied motions to dismiss a plaintiff’s Title IX erroneous outcome claim, the courts
found additional factual allegations that supported the Plaintiff’s claim of gender bias. See
Doe v. Ohio State University, 2017 WL 951464 (S.D. Ohio March 10, 2017); Doe v.
Columbia University, 831 F.3d 46 (2d Cir. 2016); Wells v. Xavier, 7 F.Supp.3d 746, 751
(S.D. Ohio 2014); Doe v. Washington and Lee Univ., No.6:14-CV-00052, 2015 WL
4647996 (W.D. Va. Aug. 5, 2015).
Dismiss Count 1 is denied.
B. Fourteenth Amendment Due Process Claim (Count 2)
Plaintiff’s second claim is titled, “Violation of the Fourteenth Amendment of the United
States Constitution Procedural Due Process (against CWRU)”. The Fourteenth Amendment,
“which prohibits the states from denying federal constitutional rights and which guarantees due
process, applies to acts of the state, not to acts of private persons or entities.” Rendell Baker v.
Kohn, 457 U.S. 830, 837-38 (1982). The Fourteenth Amendment is “is not self-enforcing. Rather,
§ 5 of the Fourteenth Amendment grants Congress the power to enact legislation with the purpose
of enforcing the Fourteenth Amendment.” Johnson v. Sutter Delta Medical Center, No. C 1103628 SI, 2011 WL 5444319, at *2 (N.D. CA Nov. 9, 2011) (citing City of Boerne v. Flores, 521
U.S. 507, 518-19 (1997). 42 U.S.C. § 1983 was enacted by pursuant to the authority of Congress
to enforce the Fourteenth Amendment. Kohn, 457 U.S. 837-38. Here, Plaintiff failed to assert his
Fourteenth Amendment claim through § 1983.
Even if this claim is not dismissed for that failure, Plaintiff must make factual, nonconclusory allegations to demonstrate that CWRU, a private university, was acting as a state
actor when it investigated Jane Doe’s complaint and adjudicated the charges. The ultimate issue
in determining whether a person or entity is subject to suit under § 1983 is the same as ‘state
action’ required under the Fourteenth Amendment, that is–“is the alleged infringement of federal
rights ‘fairly attributable to the State?’”Kohn, 457 U.S. at 838 quoting Lugar v. Edmondson Oil
Co., 457 U.S. 922, 937 (1982); Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000).
The Sixth Circuit applies three tests to determine whether a private party has acted under color of
state law, for the purposes of § 1983: (1) the “public function test”; (2) the “state compulsion
test”; and (3) the “nexus” test. Wolotsky v. Huhn, 960 F.3d 1331, 1335 (6th Cir. 1992); Lansing,
202 F.3d at 828. Under the “public function” test, the actions of a private individual are fairly
attributable to the state if the private party “exercises powers which are traditionally exclusively
reserved to the state, such as holding elections or eminent domain.” Wolotsky, 960 F.2d 1331,
1335. Under the “state compulsion” test, the state must “exercise such coercive power or provide
such significant encouragement, either overt or covert, that in law the choice of the private actor
is deemed to be that of the state.” Id. Finally, the “symbiotic or nexus” test requires a sufficiently
close relationship (i.e., through state regulation or contract) between the state and the private
actor so that the action taken may be attributed to the state. Id. State regulation and the receipt of
public funds will not convert private conduct into state action. Lansing, 202 F.3d at 830.
Plaintiff argues that there is a nexus between CWRU and the Department of Education
and its enforcement of the directives contained in the DCL such that CWRU’s actions relative to
Plaintiff were coerced by the Government under the threat of withdrawal of federal funds.
Specifically, Plaintiff alleges that the DCL threatened colleges with large de-funding penalties if
they did not immediately begin investigating and adjudicating allegations of campus sexual
assault under procedures and terms dictated by the federal government including the
requirements that colleges:
-- investigate and adjudicate sexual assault allegations regardless of whether the
complainant reported the allegations to the police;
–establish a coordinated and centralized investigative and adjudicative procedure
according to federal guidelines;
–protect the anonymity of complainants if the complainant so requests;
–apply a preponderance of the evidence standard;
–not permit cross examination by the accused student;
–strongly encouraged to expel students that the college finds to have engaged in
unconsented-to sexual intercourse with another student. (Compl ¶¶ 205-06).
Thus, Plaintiff contends that CWRU became a state actor, subject to the requirements of
Fourteenth Amendment due process, when it was coerced to investigate and adjudicate the
allegations against Plaintiff in compliance with the mandates of the 2011 Dear Colleague Letter.
This argument was rejected by the Court in Doe v. Washington and Lee University, No. 6:14 CV
00052, 2015 WL 4647996 (W.D. Va Aug. 15, 2015). Noting that for Fifth Amendment [or
Fourteenth Amendment] protections to apply “the government must have compelled the act of
which [Plaintiff] complains,” the Court in Washington and Lee determined that the actions taken
by Washington and Lee in response to the DCL and pressure from the Department of Education
Office of Civil Rights did not rise to government coercion:
Responding to the OCR’s guidance, W & L made changes that one could
infer were designed to secure more convictions. W & L removed
protections that had previously been afforded to the accused, such as the
right to counsel, and adopted a low burden of proof, preponderance of the
evidence, rather that the beyond reasonable doubt standard used for honor
code violations. Plaintiff does not, however, ...contend that the
government participated in the decision-making process at any stage of the
proceedings, [a] factor crucial to the determination of whether a school’s
actions are attributable to the government.” See Logan v. Benning Coll.
Corp., 72 F.3d 1017, 1028 (2d Cir. 1995)(finding no state action where the
state “neither drafted the disciplinary code, nor participated in determining
what sentence was to be handed out under it.”); accord Stefanowicz v.
Bucknell Univ., No. 10-CV-2040, 2010 WL 3938243, at *3 (M.D. Pa. Oct.
5, 2010)(determining that university was not a state actor when the
“hearing at issue appear[ed] to be strictly an internal investigation,
conducted freely from state intervention.) On these allegations, W & L
cannot be considered a governmental actor subject to the due process
requirements of the Fifth Amendment7.
The standards used to find federal action for purposes of the Fifth Amendment are
identical to those employed to detect state action subject to the strictures of the Fourteenth
Id. at *9. There is no allegation here that the federal government participated in the proceedings
against Plaintiff, or dictated the specific finding of responsibility in this case. Federal regulation
and receipt of federal funds alone, does not convert private conduct to government or state action.
See Lansing, 202 F.3d at 830.
The Court has reviewed dozens of cases filed by students like Plaintiff from around the
country who have been expelled or otherwise disciplined by a college or university in Title IX
investigations and disciplinary proceedings. Despite extensive research, the Court has not found a
single case in which a court has determined that a private school’s compliance with Title IX’s
regulations make that entity a state actor for purposes of a Fourteenth Amendment due process
claim, nor has Plaintiff cited any such decision. Rather, the courts that have considered this issue
agree that private colleges are not state actors by virtue of their adoption of Title IX grievance
procedures. See, e.g., Tsuruta v. Augustana Univ., No. 4:15 CV 04150 KES, 2015 WL
5838602, at *2-3 (D.S.D. Oct. 7, 2015)(college’s compliance with Title IX requirements and
receipt of contingent federal funds did not make the private college a state actor); Xiaolu Peter Yu
v. Vasser College, 97 F.Supp.3d 448, 462 (S.D.N.Y. 2015)(“to extent Yu is claiming that Vassar’s
disciplinary proceedings denied him constitutional due process, this argument is without merit”
since Vassar is not a state actor); Doe v. Columbia University, 2015 WL 1840402 at *9 n. 5
(S.D.N.Y. Apr. 21, 2015) (same) overruled by Doe v. Columbia University, 831 F.3d 46 (2d Cir.
2016) ; see also Curto v. Smith, 248 F.Supp.2d 132, 139 (N.D.N.Y.2003) (noting “no direct
Amendment. Doe v. Washington and Lee Univ., 2015 WL 4647996 at *8. Moreover, the
tests utilized by the Fourth Circuit to determine whether a private party’s conduct can be
considered governmental or state action are the same as those utilized by the Sixth Circuit.
oversight or involvement by state officials” in matters such as creating and enforcing disciplinary
policies in a private institution weigh against state action determination).
Accordingly the Court finds that Plaintiff has failed to allege facts sufficient to plausibly
establish that CWRU is a state actor for purposes of the Fourteenth Amendment due process
analysis under any of the three accepted tests. As such, Count 2 of the Complaint is dismissed.
II. State Law Claims
Plaintiff asserts state law claims of Breach of Contract (Count 3) against CWRU
defendants, Breach of Covenant of Good Faith and Fair Dealing (Count 4) against the CWRU
defendants and Promissory Estoppel (Count 6) against CWRU.
A. Breach of Contract against CWRU Defendants (Count 3)
In order to state a claim for breach of contract under Ohio law a plaintiff must allege “the
existence of a contract, performance by the plaintiff, breach by the defendant and damage or loss
to the plaintiff.” Savedoff v. Access Group, Inc., 524 F.3d 754, 762 (6th Cir. 2008) citing Jarupan
v. Hanna, 173 Ohio App.3d 284, 878 N.E.2d 66, 73 (2007)(further citations omitted).
The Complaint alleges that a contractual relationship existed between CWRU and John
Doe through CWRU’s policies and procedures governing the student discipline system. (Compl. ¶
227) There is no allegation in the Complaint of a contract between Plaintiff and any of the
individual defendants. As such, the Complaint fails to state a breach of contract claim against any
of the individual Defendants. Dismissal is warranted if the complaint lacks an allegation as to a
necessary element of the claim raised. Craighead v. E.F. Hutton & Co., 899 F.2d 485 (6th Cir.
1990). As such, Plaintiff’s breach of contract claim is dismissed against the individual Defendants.
As to Defendant CWRU the Complaint alleges that there was a contractual relationship
between Plaintiff and CWRU through CWRU’s policies and procedures governing the student
disciplinary system. (Compl. ¶ 227). The Complaint also alleges performance by Plaintiff when he
accepted an offer of admission from CWRU and paid the required tuition and fees to CWRU. (Id.
¶ 229). Plaintiff alleges that CWRU materially breached the contract by failing to provide a “fair
process for the handling of sexual misconduct matters,” failing to give adequate notice, failing to
perform a fair, thorough and non-discriminatory investigation, and failing to comply with its
policies and procedures. (Id. ¶ 232) These alleged breaches are detailed in paragraphs 234-251 of
the Complaint. Finally, Plaintiff alleges that he sustained damage as a direct and proximate result
of CWRU’s breaches including emotional distress, loss of educational and career opportunities,
reputational damages, and economic injuries. On its face, the Complaint states a claim for breach
of contract against CWRU that satisfies the Twombley/Iqbal standard.
CWRU contends that the breach of contract claim should be dismissed because courts must
defer to the decisions of a school unless there is a substantial departure from accepted academic
norms as to demonstrate a lack of professional judgment. (ECF #11 at 12) CWRU further
contends that it has made a reasonable effort to comply with its policies, procedures and Title IX
procedures and thus has fulfilled its obligations to Plaintiff. (Id. at 12-13.) While CWRU may be
entirely correct that it is not in breach, the Court is unable at this juncture in the proceedings to
determine whether CWRU breached its contract with Plaintiff. Accordingly, the motion to dismiss
Count 3 is denied as to CWRU.
B. Breach of the Covenant of Good Faith and Fair Dealing against All Defendants
CWRU asserts that Plaintiff’s Claim for Breach of the Covenant of Good Faith and Fair
Dealing should be dismissed because Ohio courts decline to recognize such a claim in situations
involving universities and students. See Valente v. Univ. of Dayton, 438 Fed. Appx. 381, 385-386
(6th Cir. 2011). In Valente, a law school student brought an action against the University of Dayton
asserting breach of contract and various tort claims including breach of the covenant of good faith
and fair dealing. Holding that the student’s claim that the University’s actions violated its duty of
good faith and fair dealing failed, the Sixth Circuit explained:
This contention has no merit because, excepting insurance contracts, see, e.g.,
Suver v. Pers. Serv. Ins. Co., 11 Ohio St.3d 6, 462 N.E.2d 415, 417 (1984), “Ohio
courts have been circumspect in allowing tort remedies for breaches of such
duties,” In re Commercial Money *386 Ctr., Inc., Equip. Lease Litig., 603
F.Supp.2d 1095, 1122 (N.D.Ohio 2009). In fact, when addressing a contractual
dispute between a school and its former employees and students, the Ohio Court
of Appeals held that “[t]here is no separate tort cause of action for breach of good
faith that is separate from a breach of contract claim.” Ne. Ohio Coll. of
Massotherapy v. Burek, 144 Ohio App.3d 196, 759 N.E.2d 869, 875 (2001).
Valente, 438 F. App'x at 385–86. Accord Lakota Local School Dist. v. Brickner, 108 Ohio App.
3d 637, 646, 671 N.E.2d 578, 584 (Ohio Ct. App. 1996)(Dismissed breach of covenant of good
faith and fair dealing claim because there is no separate tort cause of action for breach of good
faith and fair dealing that is separate from a breach of contract claim. Rather, “good faith is part of
a contract claim and does not stand alone.”); Buescher v. Baldwin Wallace University, No. 1:13
CV 2821, 2014 WL 1910907 (N.D. Ohio May 12, 2014)(dismisses students’ breach of duty of
good faith and fair dealing claim based upon Valente.) Based upon this precedent, Plaintiff’s
claim for Breach of the Covenant of Good Faith and Fair Dealing is dismissed.
C. Negligence against All Defendants (Count 5)
Plaintiff alleges that Defendants owed him a duty of care arising from the obligations
delineated in CWRU’s Policies and federal Title IX directives. Plaintiff asserts that such duties
included a duties of reasonable care to allow Plaintiff an equal opportunity to present information
and witnesses in support of his defense; to conduct an impartial and thorough investigation and to
utilize the preponderance of the evidence standard in reaching a determination. (Compl. ¶263)
Plaintiff further asserts that Defendants breached their duties and as a result Plaintiff suffered
damages. The elements of a negligence claim are “(1) the existence of a legal duty, (2) the
defendant's breach of that duty, and (3) injury that is the proximate cause of the defendant's
breach.”Schmitz v. Natl. Collegiate Athletic Assn., 2016 Ohio 8041, ¶ 46, 67 N.E.3d 852,
865–66, citing Wallace v. Ohio DOC, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶
22, citing Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989).
Defendants argue that Plaintiff’s negligence claim fails as a matter of law because in Ohio,
a claim for negligence within the university-student context “is essentially one of educational
malpractice...[and such] a claim is not recognized in the state of Ohio.” Lemmon v. Univ. of
Cincinnati, 112 Ohio Misc.2d 23, 29, 750 N.E.2d 668 (Ohio Ct. Claims 2001). In Lemmon,
students enrolled in a university’s computerized court reporting program brought a negligence
claim against the school asserting that the university represented to the students that they were
achieving certain levels of speed when, in fact, they were not close to achieving those speeds. The
Court determined that the claim was essentially a claim for educational malpractice which is not
recognized in Ohio. “Educational malpractice” has been loosely defined as any allegation directed
to the adequacy or quality of education received. Malone v. Academy of Court Reporting, 64 Ohio
App.3d 588, 593, 582 N.E.2d 54 (Ohio Ct. App. 1990). See also, Denson v. Steubenville Bd. Of
Educ., No. 85-J-31, 1986 WL 8239 (Ohio Ct. App. 7th Dist. 1986)(Complaint dismissed where
student-athlete alleged educational malpractice because Defendants passed him from grade one
through grade 12 without teaching him how to read or write.); Baker v. Oregon City Schools, No.
L-11-1109, 2012 WL 762482 (Ohio App. 6th Dist. Mar. 9, 2012) (Plaintiffs, students in the Green
Energy, Electrical, & Environmental Specialist Program, asserted that the school made
representations in brochures and the student handbook that were known to be false; program did
not live up to brochures because of poor facilities, incompetency of instructors, lack of instruction
on promised curriculum and hands on training, failure of program directors to make changes after
student complaints, and the lack of promised job shadowing. The trial court dismissed plaintiffs’
negligence claim because it was “in fact a claim of educational malpractice which is not
cognizable under Ohio law.”)
The defendant college in Buescher v. Baldwin Wallace University, No., 1:13 CV 2821,
2014 WL 1910907 (N.D. Ohio May 12, 2014) argued successfully that Plaintiffs’ negligence
claim should be dismissed as an educational malpractice claim. The plaintiffs were students in an
Accelerated Bachelor of Science Degree in Nursing Program (ABSN) who were discharged from
the program for different reasons. Plaintiffs argued that their claim for negligent hiring and
supervision of ABSN administrative staff and faculty was distinguishable from educational
malpractice because they did not allege a substandard education. Judge Gaughan, comparing
Plaintiffs’ claim to the claim in Baker v. Oregon City Schools, determined that plaintiffs’
allegations that defendants’ failure to provide them with a quality nursing education through the
ABSN program despite the representations made in defendants’ marketing of the program and
statements made in the handbook, do amount to [an educational malpractice claim] even though
plaintiffs’ did not use the term “substandard education” that had been used by the plaintiffs in
Baker. Id. at *4
In this case Plaintiff attempts to distinguish Lemmon and its progeny, arguing that
“Defendants conflate a claim that a university has violated a duty of care with a claim that an
institution failed to provide a certain quality of education, which has been deemed educational
malpractice.” (ECF #21 at 28). Plaintiff’s distinction was not really addressed by Defendants in
their reply brief. Rather, Defendants assert, without analysis or factual comparisons, that any
negligence claim asserted in the university-student context is “essentially one of educational
malpractice...a claim not recognized in the state of Ohio.” Defendants position overstates the
holdings of Lemmon and the following cases.
It is clear that all of the cases dismissing plaintiffs’ negligence claims as educational
malpractice claims involved claims that the education received by the plaintiffs was in some way
lacking. Here Plaintiff’s Complaint focuses on CWRU’s investigation and disciplinary
proceedings and the School’s policies regarding the same and not on the education he received. As
such, Plaintiff’s negligence claim is not a claim for educational malpractice. Rather, Plaintiff’s
negligence claim is mostly a re-statement of his breach of contract claim. Plaintiff asserts that
Defendants owed him a duty “arising from the obligations delineated in CWRU’s Policies, and
directives issued by the U.S. Department of Education’s Office for Civil Rights.” (Compl. ¶ 263).
Defendant Tompkins raises the point that in Ohio, a breach of contract does not create a tort claim.
Textron Financial Corp. v. Nationwide Mutual Ins., 115 Ohio App.3d 137, 151 (8th Dist.
1996)(citing Wolfe v. Continental Cas. Co., 647 F.2d 705, 710 (6th Cir. 1981).
Generally, the existence of a contract action * * * excludes the opportunity to
present the same case as a tort claim. A tort claim based upon the same actions as
those upon which a claim of contract breach is based will exist independently of
the contract action only if the breaching party also breached a duty owed
separately from that created by the contract, that is, a duty owed even if no
Id. See also, Wright v. Bank of Am. N.A., 517 Fed. Appx. 304, 307 (6th Cir. 2013). Thus, Plaintiff’s
negligence claim based upon a duty arising from “obligations delineated in CWRU’s policies” is
barred because the alleged duties are contractual duties, not separate and independent duties
created by common law that would exist even if no contract existed. However, the negligence
claim based upon a duty allegedly owed by the CWRU defendants arising from the directives
issued by the U.S. Department of Education’s Office for Civil Rights is not necessarily duplicative
of Plaintiff’s breach of contract claim and may, for the moment, proceed.
In her separate Motion to Dismiss, Defendant Tomkins asserts that neither CWRU policy
nor the directives from the OCR impose a duty on her, as an individual. The Complaint refers to
the DCL which outlines the responsibilities of the Title IX coordinator of the university, which
Ms. Tompkins is not. (Compl. ¶¶ 122-24) The Complaint details the duties the Department of
Education’s Office of Civil Rights directives imposed upon schools, colleges and universities. (Id.
¶¶ 39, 41, 122-24, 135, 170-72.) The Complaint does not allege that the directives imposed a duty
upon an individual such as Ms. Tompkins. Moreover, the fact that Title IX does not impose
personal liability on individuals, only on recipients of federal funds, i.e., the educational
institutions, bolsters the argument that the directives issued under Title IX do not impose a duty of
care for litigation purposes on an individual. See generally Davis v. Monroe County Bd. Of Educ.,
526 U.S. 629, 640 (1999); Campbell v. Dundee Cmty. Sch., 661 Fed. Appx. 884, 887-888 (6th Cir.
2016)(upholding dismissal of individual defendants because “Title IX does not permit individual
liablity”); Fitzgerald v. Barnstable Sch.Comm., 555 U.S. 246, 257 (2009)(Title IX “has been
consistently interpreted as not authorizing suits against school officials, teachers and
Accordingly, the Court finds that the Complaint fails to assert the first element required for a
negligence claim–the existence of a legal duty– as to Defendant Tomkins. As such the negligence
claim is dismissed as to Ms. Tomkins. The negligence claim against the remaining Defendants is
limited to any duty arising from the OCR directives.
D. Promissory Estoppel against CWRU (Count 6)8
Plaintiff asserts a claim of promissory estoppel as his sixth claim for relief. In order to
establish a claim for promissory estoppel under Ohio law a plaintiff must establish the following
elements: (1) a clear and unambiguous promise; (2) reliance upon the promise by the person to
whom the promise is made; (3) the reliance is reasonable and forseeable; and (4) the person
claiming reliance was injured as a result of the reliance on the promise. Stewart v. Everyware
Global, Inc., 68 F.Supp.3d 759, 766 (S.D. Ohio 2014); Weiper v. W.A. Hill & Associates, 104
Ohio App.3d 250, 260, 661 N.E.2d 796 (1st Dist. Ohio Ap. 1995).
Plaintiff has pled all of these elements. Plaintiff alleges that CWRU’s policies constitute
unambiguous representations and promises that CWRU should reasonably expected to induce
action or forbearance on the part of Plaintiff. (Compl. ¶ 268) Specifically, Plaintiff asserts the
promises include that “CWRU would not deny Plaintiff his procedural rights should he be accused
of a violation of CWRU’s policies; that CWRU was committed to providing support to anyone
involved in an incident of sexual misconduct; the University would ensure the rights of the
complainant and the respondent are maintained by supporting a fair process for the handling of
Defendants move to dismiss this claim against the individual defendants, however the
Complaint states that the claim is against CWRU. Plaintiff confirms that fact in its
opposition. (ECF #21 at 26-27.)
sexual misconduct matters and making determinations regarding the Policy; and the University
would respect the rights of all involved by following the stated university sexual misconduct
process.”(Id. ¶ 269) Further, Plaintiff alleges that he reasonably and foreseeably relied to his
detriment on these promises and representations made by CWRU by choosing to attend CWRU
rather than other schools of equal caliber which offered full scholarships and academic
advantages. Finally, Plaintiff alleges that he was injured as a direct and proximate result of
CWRU’s conduct, sustaining emotional distress, loss of educational and career opportunities,
reputational damages and economic injury.
CWRU argues that Plaintiff’s promissory estoppel claim should be dismissed because the
policies on which its based also form the basis of Plaintiff’s breach of contract claim. Specifically,
CWRU contends that the presence of a valid and enforceable contract between CWRU and the
Plaintiff generally precludes a claim of promissory estoppel arising from claims related to the
contract. O’Neill v. Kemper Ins. Cos., 497 F.3d 578, 583 (6th Cir. 2007) In O’Neill the Court
determined that where neither party disputes the fact that an enforceable contract exists and
governs the substance of the lawsuit, the plaintiff may not mount a claim for promissory estoppel
that directly contradicts the language of the contract. Id. While a party is not permitted to recover
for the same wrong under both claims, Ohio courts permit promissory estoppel claims to be
argued alternatively to breach of contract claims. Bonner Farms, Ltd. v. Power Gas Mktg. &
Transmission, No. 5:04–2188, 2007 WL 2463247 at *7 (N.D.Ohio Aug. 28, 2007)(Promissory
estoppel and unjust enrichment are quasi-contractual or equitable claims that may be pled in the
alternative to a breach of contract claim. See Fed.R.Civ.P. 8(e)(2) (“A party may set forth two or
more statements of a claim ... alternately or hypothetically, either in one count ... or in separate
counts. * * * A party may also state as many separate claims ... as the party has regardless of
consistency and whether based on legal [or] equitable ... grounds.”).
Plaintiff here has sufficiently pleaded the elements of promissory estoppel in the
III. Declaratory Judgment
Plaintiff seeks declaratory relief pursuant to 28 U.S.C. § 2201. Defendants move to dismiss
this claim because Plaintiff’s substantive claims have failed and thus he is not entitled to
declaratory relief. United States Wrestling Fed’n v. Wrestling Div. Of the AAU, Inc., 711 F.2d
1060, 1060 (6th Cir. 1983) However, since the Court has declined to dismiss all of Plaintiff’s
substantive claims, his request for declaratory relief will not be dismissed at this time.
For the reasons set forth above, the Motion of Defendant Tomkins (ECF # 17) is granted.
All claims against Ms. Tomkins are dismissed.9 The Motion of Defendants CWRU, Barbara R.
Snyder, Lou Stark, G. Dean Patterson, Jr., George O’Connell and Shannon J. Greybar Milliken to
Dismiss (ECF #11) is granted in part and denied in part as follows:
Count1: Violation of Title IX against CWRU-denied;
Count 2: Violation of the Fourteenth Amendment against CWRU– granted;
Count 3: Breach of Contract against Individual Defendants–granted; as to CWRU-denied;
Count 4: Breach of Covenant of Good Faith and Fair Dealing against all
Plaintiff’s alternative request to amend his complaint is denied because the claims against
Defendant Tompkins lack merit and any amendment would be futile. See e.g. Riverview
Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d 505, 523 (6th Cir. 2010).
Count 5: Negligence –denied, but limited to duties arising from Title IX directives;
Count 6: Promissory Estoppel against CWRU–denied.
As explained above, Plaintiff’s motion for leave to submit supplemental authority (ECF
#34) is granted and Plaintiff’s Motion to Convert (ECF #36) is denied.
IT IS SO ORDERED.
_/s/Donald C. Nugent ___
DONALD C. NUGENT
United States District Judge
DATED:_September 1, 2017__
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