Doe v Johnson & Wales University

Filing 72

ORDER granting in part and denying in part 48 Motion for Summary Judgment. The motion is granted with respect to Counts IV and VI and denied with respect to Counts I and II - So Ordered by District Judge Mary S. McElroy on 11/26/2019. (Urizandi, Nisshy)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

JOHN DOE 1
Plaintiff,

v.

C.A. No. 18-CV-00106-MSM-LDA

JOHNSON & WALES UNIVERSITY,
Defendant.

MEMORANDUM AND ORDER
MaryS. McElroy, United States District Judge.
This matter comes before the Court on a Motion for Summary Judgment filed by
defendant Johnson & Wales University ("JWU"}, in a lawsuit claiming jurisdiction under both
the diversity clause of 28 U.S.C. § 1332 and the federal question clause of 28 U.S.C. §1331. For
the reasons that follow, I grant the Motion with respect to Counts IV (discrimination in
education on the basis of gender, in violation of Title IX, 20 U.S.C. § 1681L and VI (negligent
infliction of emotional distress). I deny the Motion with respect to Counts I (breach of contract)
and II (breach of the covenant of good faith and fair dealing).

1

This case was transferred from the District of Massachusetts, where the plaintiff is a resident and
where it was originally filed. (ECF 22). Shortly thereafter, he was granted permission to pursue this
lawsuit under the pseudonym of John Doe.

1

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BACKGROUND
This complaint was filed by a former student at JWU who, in the fall of his junior year,
was accused of having committed two sexual assaults on a fellow student approximately one
year earlier in October 2016. According to the undisputed facts, Mary Smith 2 and Doe had had
a romantic and sexual relationship in the Fall of 2016. During that relationship, they had slept
together and engaged in consensual sexual intercourse in Doe's dormitory room on at least
four occasions. On the fifth occasion, according to Smith, she was sleeping with Doe in his
dormitory room, but awoke to use the bathroom; he followed her into the bathroom where
they had intercourse. This time, however, she complained of pain and Doe, she alleges, refused
to stop. The couple then returned to bed for the remainder of the night. Approximately a
week later, the two had consensual intercourse again and again it caused her pain; they
changed positions in an attempt to eliminate the pain but that was not successful. Smith
claimed that Doe continued to complete the sex act until he ejaculated.
Eight or nine months later, around June 1, 2017, Smith's then-boyfriend B.K. reported to
campus police that his girlfriend had been sexually assaulted by Doe. After campus police
conducted a preliminary investigation, Smith said she did not want to proceed, and the matter
was closed. Three months later, however, accompanied by B.K., Smith filed a formal complaint.
Doe was charged, the University held a disciplinary proceeding, and he was ultimately expelled.
The conduct of the investigation and adjudication of that allegation form the basis of
Doe's complaint in this Court. Doe maintains that the procedure was unfair and as such

2

Also, a pseudonym. All students have been referred to by pseudonyms or initials by the parties and,
therefore, by the Court.

2

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violated his contractual right to a "fair" proceeding as granted him by the "Conduct Review
Process/' ("CRP") which is part of the JWU "Student Code of Conduct." ("SCC"). 3 He also
asserts that JWU's conduct in this case manifested gender discrimination in violation of Title IX
and constituted negligent infliction of emotional distress. JWU maintains that it gave Doe all
the rights he could reasonably expect under its process as described in the Conduct Review
Process; it denies the allegations of discrimination and negligence. 4
THE DISCIPLINARY PROCESS

Doe's complaint takes issue with specific parts of the proceedings, and from that
platform alleges violations of state and federal law. In brief, he complains that:

1. he was never given a copy of what was an 18-page statement by Smith; it was read
to him at a "Pre-Hearing Conference" shortly after he was charged and he was
allowed, in the presence of another student whom he chose as his "advisor," to take
notes. That is undisputed.
2. the process was not sufficiently explained to him, in that he was not told "how and if
he could question any witnesses, bring any witnesses, bring and/or submit any
evidence, whether there would be opening statements or closing statements." JWU
asserts that Doe was adequately informed and that he was told at least twice he
should ask questions if he did not understand something or wanted more
information. Doe disputes that the explanation was adequate but does not dispute
he was told he could call with questions.
3. he was allowed to listen to the adjudication panel's questioning of Mary Smith, but
he was not allowed to question her or any witnesses. In JWU's description of the
process, and the Affidavits of the panelists questioning the students (EFC 54, 55, 56L
it is clear that while the panelists went back and forth between the two students
twice, they did not ask Doe whether he had any questions he wanted propounded to
Smith.

3

The CRP provides, "The university administers the Conduct Review Process in good faith, making every
reasonable effort to be fair to all involved." It also guarantees a resolution that is "prompt, fair and
impartial."

4

A number of counts were previously dismissed by this Court: Counts Ill (estoppel and relianceL V
(intentional infliction of emotional distressL and VII (a prayer for injunctive relief as a separate cause of
action).

3

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4. the standard of proof was preponderance of the evidence. 5 JWU agrees.
5. the hearing was not transcribed, and no other record was made of it. JWU agrees.
6. his appeal should have been granted because there was new evidence of a postincident lnstagram posting by Smith. JWU contends this is not grounds for an appeal
and that the evidence was not new.
7. JWU has conducted its disciplinary procedures in a gender discriminatory way. The
factual assertions Doe makes in support of this contention are noted infra at n.11.
JWU does not contest the specific facts Doe points to but maintains they do not
demonstrate gender discrimination.

STANDARD FOR SUMMARY JUDGMENT
The standard for summary judgment is a familiar one and needs little elaboration here.
The Court must examine the documents submitted by the parties to determine whether there
exists a disputed issue of material fact. "Summary judgment is only proper when 'there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law."' Doe v. Trustees of Boston College, 892 F.3d 67, 79 {1st Cir. 2018), quoting Fed.R.Civ.P.
56( a). My inquiry, therefore, is to determine, with respect to each surviving count of the
complaint, whether there are material facts sufficiently in dispute that "a reasonable jury could
resolve the point in favor of the nonmoving party." /d., quoting Rivera-Muriente v. Agosto-

Alicea, 959 F.2d 349, 352 (1st Cir. 1992).

In the CRP, the standard of proof is described as "more likely than not." Doe complains that this
standard, whether phrased in terms of preponderance or likelihood, is too low.
5

4

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STATE LAW CLAIMS
COUNTS I AND II
BREACH OF CONTRACT AND OF COVENANT OF GOOD FAITH

Both the breach of contract and breach of the covenant of good faith and fair dealing
claims, in a diversity case, sound in state law. Doe v Trustees of Boston College, supra at 88
(applying Massachusetts law}; Crellin Technologies, Inc. v. Equipment/ease Corp., 18 F.3d 1, 4
(1 5t Cir. 1994} (applying Rhode Island law}. JWU is a Rhode Island Corporation with campuses in
several parts of the country, including Rhode Island and Massachusetts. 6
The relationship between a student and a private university "is contractual in nature."
Gorman v. St. Raphael Acad., 853 A.2d 28, 34 (R.I. 2004}. Accord, Mang/a v. Brown University,

135 F.3d 80, 83 (Pt Cir. 1998}. These contracts have "unique qualities" that warrant deference
to the flexibility of the institution to "properly exercise its educational responsibility." Gorman,
supra at 34, quoting Mahavongsanan v. Hall, 529 F.2d 448, 450 (5th Cir. 1976}. That same

deference excuses "strict adherence to contract law." Gorman, supra
The contract that is relevant here is JWU's "Student Code of Conduct," which includes
the JWU "Conduct Review Process." It is that process that led to Doe's expulsion. The Student
Code of Conduct, like a student handbook, forms part of the overall contract between the
student and university and "can be a source of the terms defining the reciprocal rights and
obligations of a school and its students." Gorman, supra at 34. In construing terms of the
contract between students and universities courts look to, among other things, the student

6

The parties have addressed the state law claims under Rhode Island law, and I will do the same.
Fashion House, Inc. v. K mart Corp, 892 F.2d 1076, 1080 (1st Cir. 1989) (Court honored parties'
agreement to follow Michigan law).

5

See,

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handbook. See Dinu v. President and Fellows of Harvard College. 56 F.Supp.2d. 129, 130 (D.
Mass 1999} (student handbook is one source of rights and obligations). The standard for
interpreting the contractual terms contained in the "Conduct Review Process" is that of
'"reasonable expectation-what meaning the party making the manifestation, the university,
should reasonably expect the other party to give it."' Mangla v. Brown University, supra at 83.
Turning to the "Conduct Review Process," that publication promises that JWU will
adjudicate disciplinary complaints in a "fair" proceeding. While the plaintiff acknowledges that
the process does not explicitly give him any of the rights he alleges were denied him (e.g., a
right to a copy of the complaint, a right to question witnesses), he maintains that these and
other entitlements are integral to a "fair" proceeding. 7
"Fair" is not a term with a commonly accepted definition. It is conclusory: its precise
meaning fluctuates with the context in which it is used. 8 Its meaning, particularly with respect
to what components of an investigation and hearing process must be included in order to
satisfy "fair," is thus open to interpretation. While the Court determines as a matter of law
whether a contract term has a clear and unambiguous meaning, Paul v. Paul, 986 A.2d 989, 993
(R.I. 2010}, it is up to the fact-finder to determine that meaning once the Court finds that the
term is susceptible of more than one interpretation. Botelho v. City of Pawtucket School Dept.,

JWU makes much of Doe's failure to address each of the University's assertions in its Statement of
Undisputed Facts, and, citing Schiffman v. United States, No. 12-695, 2014 WL 1394199 at *1 (D.R.I. April
9, 2014), it demands that any factual allegations not specifically disputed be deemed admitted. But Doe
makes his case for an unfair proceeding virtually entirely on facts put forth or acknowledged by JWU
itself.
7

s For example, a determination of a "fair" price depends on factors not relevant to a determination of
whether a particular punishment of a child for misbehavior is "fair."

6

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130 A.3d 172, 176 (R.I. 2016) (a term is ambiguous when it is 'reasonably and clearly susceptible
to more than one rational interpretation."); Haviland v. Simmons, 45 A.3d 1246, 1258 (R.I.
2012). When a term is ambiguous, its meaning becomes a "question of fact" for the jury.

Botelho at 177-78. See e.g., McBrayer v. Teckla, Inc., 496 F.2d 122, 126 (5th Cir. 1974), reh. den.
502 F.2d 1167 (whether financing was carried out in a "reasonable and businesslike manner" as
required by the contract was question of fact for the jury); Home Shopping Club, Inc. v. Miller

Broadcasting, Inc., 982 F.Supp. 809, 811 (D.Kan. 1997) (where contract required plaintiff to
"make available" certain programming time to defendant, jury was to decide what steps
constituted "mak[ing time] available"); Westinghouse Broadcasting Co., Inc. v. Dial Media, Inc.,
410 A.2d 986, 991 (R.I. 1980) (what "best interest" meant in context of advertiser's obligation
was a question of fact for the jury).
Whether Doe was entitled to the procedural protections he specifies depends on
whether the guarantee of a "fair" proceeding would create a reasonable expectation that those
aspects would be included. 9 Doe v. Brown University, 166 F.Supp. 3d 177, 191 (D.R.I. 2016),
citing Havlik v. Johnson & Wales Univ., 509 F.3d 25, 34-35 {1st Cir. 2007). I find that in the
context of an uncounseled college junior, facing the frightening and very serious prospect of

Doe v. Trustees of Boston College, No. 19-1871, _ F.3d _(1st Cir. Nov. 20, 2019), presented a very
different situation. The contract at issue there guaranteed "fundamental fairness" in the disciplinary
proceeding. Agreeing that the contract governed the process to which Doe was entitled, and looking to
state law, the Court noted that Massachusetts had a well-developed and extensive body of law defining
the meaning of "fundamental fairness" in school disciplinary cases. Here, the word "fair" is not similarly
clearly defined in Rhode Island law as it applies to a school disciplinary hearing and, therefore, its
interpretation is a question for the jury. This Court does not seek to impose federal due process
standards on this private university and its students; rather the issue here is a question of contractual
interpretation and application. The current case also occurs in a fundamentally different procedural
context. In Doe the plaintiff had to demonstrate probability of success in order to prevail on his motion
for a preliminary injunction.

9

7

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possible expulsion from school, in a case of contrary "he said," "she said" allegations, a
reasonable juror could determine that the meaning of "fair" includes being provided more
protections than Doe alleges he received. 10

See, Doe v. Trustees of Boston College, 892 F.3d at

86 (whether an outside communication breached a reasonable expectation that Board would
meet in private was a dispute of material fact that a reasonable jury could resolve in favor of
the plaintiffs}.
Because the breach of contract claim survives the summary judgment phase, the count
alleging a breach of the covenant of fair dealing does as well and summary judgment is denied
on Counts I and II.

Doe v. Trustees of Boston College, supra at 88.

COUNT VI: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The parties do not disagree that Rhode Island law requires physical symptoms in order
to maintain an action for negligent infliction of emotional distress.

Reilly v. United States, 547

A.2d 894, 896 (R.I. 1988}. Doe offers no proof to support this component of his claim.

For example, it appears that JWU put a significant burden on Doe to ascertain the details of the
process, rather than provide him with a detailed description. It gave him copies of the relevant policies
and publications, it told him he could bring "relevant" materials and "witnesses with personal
knowledge" and that the Director of Student Conduct was available to answer questions. In a
subsequent letter, Director Gray reiterated that he should contact her if he had any questions. A
reasonable jury could find that requiring Doe to discern what questions he should ask (e.g., could he
propound written questions before Ms. Smith was interviewed by the panel or after she gave a
statement; could he make an opening or closing statement, what would constitute "personal
knowledge" by a witness, would a roommate sleeping in the room close to the bathroom who heard
nothing be a witness "with personal knowledge," etc.), is unfair when students are strangers to such a
process and rely entirely on what is told to them to inform their understanding of what they are up
against. A reasonable juror could decide that it is not "fair" to require a student who knows little or
nothing to figure out what s/he does not know in order to ask productive questions.

10

8

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Therefore, there is no genuine issue of material fact and summary judgment in favor of JWU is
appropriate and hereby granted on Count VI.

FEDERAL CLAIM
COUNT IV: TITLE IX
Doe maintains that his treatment at the hands of JWU constituted discrimination on the
basis of gender in violation of 20 U.S.C. § 1681, known more familiarly as Title IX [of the
Education Amendments of 1972]. "Title IX provides that '[n]o person in the United States shall,
on the basis of sex ... be subjected to discrimination under any education program or activity
receiving Federal financial assistance.'20 U.S.C. § 1681{a). This provision is enforceable
'through an implied private right of action."' Doe v. Trustees of Boston College, 892 F.3d at 8990 (citations omitted). University discipline violates Title IX when "gender is a motivating factor
in the decision to discipline." Yusufv. Vassar College, 35 F.3d 709, 715 {2d Cir. 1994).
For the purpose of reviewing Title IX discrimination claims, the First Circuit has adopted
the framework of Yusuf v. Vassar College, supra, describing two categories of gender
discrimination: "erroneous outcome" and "selective enforcement." Yusuf at 715, explicitly
adopted by Doe v. Trustees of Boston College, 892 F.3d at 90. Although the approval by the
First Circuit of the Second Circuit's formulation was predicated upon the agreement of the
parties in Trustees of Boston College, the Circuit has since again applied the Yusufframework.

Haidak v. University of Massachusetts-Amherst, 933 F.3d 56, 74 (tst Cir. 2019). 11

11

Doe has suggested that I eschew Yusef's framework in favor of one recently articulated by the Seventh
Circuit in Doe v. Purdue University, 928 F.3d 652 (7 1h Cir. 2019}. As Haidak applied the Yusufframework
two months after Doe v. Purdue University was published, I decline that invitation.

9

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Doe frames his complaint as one of "erroneous outcome/' arguing that the adjudication
by JWU that Doe was "responsible" on these facts and circumstances, as well as other factors, 12
was egregiously inaccurate. A plaintiff must, indeed, "offer evidence 'cast[ing] some articulable
doubt on the accuracy of the outcome of the disciplinary proceeding/' in order to prevail on an
"erroneous outcome" theory. Doe v. Trustees of Boston College, 892 F.3d at 90.
A challenge, even if persuasive, to the integrity ofthe University's factfinding, however,
is not sufficient: a plaintiff must also offer evidence to "show [that] gender bias was a
motivating factor." /d. at 91, quoting Yusef, 35 F.3d at 715. Gender as a motivating factor
supplies the causal connection between Title IX's prohibition and the injury to the plaintiff. Doe

v. Vanderbilt University, No. 3:18-cv-00569, 2019 WL 4748310 at *7 (M.D. Tenn. Sept. 30,
2019). It is this obstacle that Doe fails to surmount. Absent some smoking gun, 13 which a single
reference to Mary Smith as a [possible] "victim" is not, Doe must like others in his position rely
on statistical evidence to raise an inference of gender bias as a motivating factor. Here, Doe
points only to the fact that a relatively small number of students adjudicated were female: he
acknowledged, however and JWU has demonstrated, that the vast majority of complainants are
female and the minority male. The only way the ratio of adjudicated males to females would

He complains of the nomenclature used by campus police during the investigative stage in referring to
Mary Smith as a "victim"; and of an alleged over-reaction to what is known as the "Dear Colleague"
letter from the Obama-era Department of Education which he believes caused the University to engage
in a "witch-hunt against men;" and on a rate of adjudications showing that only 20% of the students
charged with sexual assault have been female. These combined, he avers, create an inference of
purposeful discrimination.
13 See, e.g., Doe v. Washington and Lee University, No. 6:14-cv-00052, 2015 WL 4647996 at *10 (W.O.
Va. Aug. 5, 2015) (finding as indicative of discriminatory motivation the fact that the University's Title IX
Officer, who had "considerable influence" on the proceedings, had publicly endorsed an article positing
that sexual assault occurs whenever a woman has consensual sex with a man and regrets it because she
had internal reservations that she did not outwardly express," a scenario much like the facts at issue
there.).
12

10

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be probative of gender bias as a motivating factor is if Doe could point to a disparity between
the number of males and females making accusations and those charged by the University; it
for example, the University prosecuted 95% of males who were accused but only 5% of females
who were accused, that would raise at least a suspicion of purposeful bias on the part of the
University. Doe lacks, however, the critical component of that statistical comparison because
he has paid no attention to the breakdown of accusations. If the showing in Haidak, supra was
insufficient to establish a causal connection despite the evidence there that of 93 men and 26
women who were the subject of hearings, all 13 of the ones expelled were male, it is surely
insufficient here. See also, Doe v. Trustees of Boston College, 892 F.3d at 90 (statistical showing
inadequate despite the fact that "between August 1, 2005 and July 1, 2015, only male students
have been accused of sexual assault."). Moreover, as the Circuit noted in Boston College, the
word "victim" is gender neutral; thus, the fact that the campus police referred to the accuser as
a possible "victim" does not by itself indicate gender bias.
No matter how strong Doe's showing is that the verdict reached by JWU was factually
wrong, that is not enough. JWU is entitled to summary judgment on Count IV.
CONCLUSION

The defendant's Motion for Summary Judgment is denied with respect to Counts I and II
and granted with respect to Counts IV and VI.

Ma~y S. McElroy l

lc

)

United States DistricfJ~dge
11126/19

11