Vaughan v. Vermont Law School, Inc. et al

Filing 82

MEMORANDUM AND ORDER granting in part and denying in part 53 Motion for Leave to Amend 1 Complaint and Join Additional Party; denying 62 Motion to Preclude the Re-trial of Whether RH "Consented", MOTION to Preserve Confidentiality of Deposition Excerpt; denying 63 Motion to Seal; denying 69 Motion for Partial Summary Judgment; granting 71 Motion for Extension of Time Deadline for Expert Disclosure & Other Dates and 74 Revision to 71 Motion for Extension of Time Deadline for Expert Disclosure & Other Dates ; granting 74 Cross-Motion for Partial Summary Judgment. Signed by Judge William K. Sessions III on 8/4/2011. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
JOSHUA VAUGHAN,

:
:
Plaintiff,
:
:
:
v.
:
:
VERMONT LAW SCHOOL, INC., and :
SHIRLEY JEFFERSON,
:
:
Defendants.
:

Case No. 2:10-cv-276

MEMORANDUM and ORDER
Plaintiff Joshua Vaughan has brought this civil action
against defendants Vermont Law School (“VLS”) and Shirley
Jefferson (VLS’s Dean for Student Affairs and Diversity) for
damages resulting from Defendants’ alleged mishandling of a
sexual assault complaint made against Vaughan by RH, one of his
classmates at VLS.

Vaughan’s complaint currently contains a

claim against VLS and Jefferson for negligence and a claim
against VLS for breach of contract and FERPA obligations.1
Currently pending before the Court are a number of motions
filed by Vaughan: a motion for leave to amend his complaint and
join Church Engle & Associates, Inc. as a party, ECF No. 53; a

1

Vaughan had initially named RH as a Defendant as well, but
has since dismissed his claims against her. Furthermore, the
Court granted VLS and Jefferson’s motion for judgment on the
pleadings for failure to state a claim with regard to Vaughan’s
claims for intentional infliction of emotional distress and
negligent infliction of emotional distress. Feb. 9, 2011
Memorandum and Order, ECF No. 33.

motion to preclude retrial of whether RH consented to sexual
intercourse, ECF No. 62; a motion to preserve the confidentiality
of and seal excerpts of his deposition testimony which have been
used by the Defense as an exhibit in its opposition to the motion
to preclude retrial of the consent issue, ECF Nos. 62 & 63; a
motion for partial summary judgment on several issues, ECF No.
69; an assented-to motion to extend the discovery schedule by
forty-five days, ECF No. 71; and a second motion to extend the
discovery schedule by an additional forty-five days, ECF No. 73.
VLS and Jefferson have cross-moved for partial summary judgment
on the same issues as Vaughan.

ECF No. 74.

For the reasons that follow the motion for leave to amend is
granted in part and denied in part.

Vaughan may amend his

complaint to include a Title IX claim, to revise his contract
claim by excluding references to FERPA and by adding more
specific allegations pertaining to VLS’s alleged breach of its
obligations under the Code of Conduct, and to include factual
allegations learned of or confirmed during discovery.

He may

not, however, revive his intentional infliction of emotional
distress claim against VLS and Jefferson, join Church Engle
Associates, Inc. as a defendant in any of the claims, or use the
term “rape” to describe RH’s allegations against him.

Vaughan’s

motions to preclude retrial of the consent issue, to preserve the
confidentiality of and seal excerpts from his deposition

2

testimony, and for partial summary judgment are denied.
Defendants’ cross-motion for partial summary judgment is granted.
Vaughan’s motions to extend the discovery schedule are granted.
Factual Background
Vaughan is a member of VLS’s class of 2012.

On August 15,

2009, prior to the start of orientation for the 2009-10 academic
year, he met RH at a social gathering.

Later that night, after

both of them had consumed alcohol, they went to Vaughan’s
apartment and had sexual intercourse.

Vaughan claims the sex was

consensual, while RH claims that she expressed to Vaughan that
she did not want to have sexual relations with him.
RH did not report the incident until January 2010, at which
point she filed a complaint with VLS after consulting with two
VLS Student Ambassadors.

In early February 2010, Jefferson met

with Vaughan regarding the complaint and asked him about the
underlying events.

On February 3, 2010, pursuant to procedures

set forth in the VLS Code of Conduct, Jefferson made a
determination that it was more probable than not that Vaughan had
violated the Code of Conduct.

After consulting with Vaughan to

determine whether he wanted to proceed directly to a formal
hearing or have the complaint investigated first, Jefferson
appointed independent investigators from Church Engle &
Associates, Inc. (“CEA”) to investigate the complaint.

On March

30, 2010, RH sent Jefferson an email stating that she did not
3

want further involvement in the investigation or in any
subsequent hearing.
The investigators, Barbara Church and Keith Engle, submitted
a report on April 6, 2010 (“the Church-Engle report”), in which
they reported that RH expressed uncertainty about whether she
verbally said “no” and that, “assuming that RH’ accounts are
accurate, [they could not] say that Mr. Vaughan understood that
RH did not want to have intercourse with him[.]”

ECF No. 7-2, 6.

The report also found that “given the amount of drinking that had
occurred, it is possible that RH was not sober enough to give
informed consent and that Mr. Vaughan was not able to understand
the gestures RH was making[.]”

Id.

The Report noted that under

the VLS Code of Conduct “[i]mpaired judgment because of the use
of alcohol or other drugs is not a defense to a charge of sexual
assault.”

Id. at 7.

The report also made reference to behavior

by Vaughan toward other women described as “weird,” “creepy,”
“inappropriate” and “sexual.”

It described two occasions on

which Vaughan was alleged to have shown up intoxicated at the
apartments of female classmates.

The women alleged that Vaughan,

whom they had not invited, only left when they called other
classmates to convince him to leave.

The report also described

allegations that Vaughan was known to “hit on” women in an
aggressive manner and to try to pressure them into walking home
with him at night.

Id.

4

On April 16, 2010, after reviewing the Church-Engle report,
Jefferson made another determination that there were reasonable
grounds to believe that Vaughan had violated the Code of Conduct
by committing sexual assault and by engaging in a pattern of
behavior constituting sexual harassment.

On April 23, she met

with Vaughan and informed him that VLS would pursue both sexual
assault and sexual harassment charges against him.

However, she

indicated that VLS would drop the sexual assault charge if he
would waive his right to a formal hearing and admit to the sexual
harassment offense.
Vaughan elected to go forward with a hearing, which was held
on September 3, 2010.

At the hearing, the panel indicated that

Vaughan had not been given adequate notice of and opportunity to
respond to the sexual harassment allegation and offered to
suspend the hearing so that an investigation of that allegation
could be performed.
hearing.

Vaughan elected to continue with the

At the conclusion of the hearing, the panel found that

both charges against Vaughan were “unfounded.”
Vaughan alleges that VLS’s handling of RH’s complaint has
negatively affected his educational experience in a number of
ways.

First, during the course of the investigation, VLS refused

to release grade reports or a transcript to him.

The grade

reports and transcript were ultimately released after the
hearing, on September 28, 2010.

Vaughan states that, after his

5

experience during the 2009-10 academic year he wished to transfer
to another law school for the 2010-11 academic year, but that the
delay in the release of his transcript prevented him from
completing transfer applications in a timely fashion.
Furthermore, in January 2010, Vaughan registered for a section of
VLS’s “Legal Profession” course taught by Professor Robert
Rachlin but was told he would not be allowed to take it because
RH was also registered for that section.

“Legal Profession” is a

required course at VLS and Vaughan was given the option of taking
the course with a different professor that semester or waiting to
take the course during his third year.
Vaughan also alleges that “RH, [] Jefferson, VLS, the
Student Ambassadors and/or others acting with their approval”
disclosed information from RH’s complaint to other people in the
VLS community.

Compl. ¶ 46, ECF No. 1.

He asserts that an

erroneous belief that he sexually assaulted RH has become
prevalent in the VLS community and that, as a result of this, his
law school experience has suffered in a number of ways.

For

example, he alleges that as a result of the rumors, he has been
barred from entering Crossroads Bar & Grill for official VLS
functions and informal social gatherings and that he has been
afraid to speak out in classes.

He also complains that, because

of the rumors, many students have declined to socialize with him

6

and that one of the Student Ambassadors, CG, physically assaulted
him.
Finally, Vaughan asserts that his involvement in the
investigation and its aftermath have caused him emotional
distress and stomach ulcers.

He also believes that his grades

suffered during the Spring 2010 semester as a result of the time
he was required to spend responding to RH’s complaint and the
resulting stress.
Discussion
I. Motion for Leave to Amend
A court should freely give leave to amend “when justice so
requires.”

Fed. R. Civ. P. 15(a); see Foman v. Davis, 371 U.S.

178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962).

A Rule 15(a)

motion “should be denied only for such reasons as undue delay,
bad faith, futility of the amendment, and perhaps most important,
the resulting prejudice to the opposing party.”

Aetna Cas. &

Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 603 (2d Cir.
2005) (quoting Richardson Greenshields Sec., Inc. v. Lau, 825
F.2d 647, 653 n.6 (2d Cir. 1987)).

“‘Keeping in mind the

principle that leave to amend should be freely given, it is the
non-moving party’s burden to demonstrate’ that leave to amend
should be denied.”

Arroyo v. Milton Acad., No. 5:10-CV-117, 2011

U.S. Dist. LEXIS 2588, at *3 (D. Vt. Jan. 10, 2011) (quoting
Roller Bearing Co. of Am., Inc. v. Am. Software, Inc., 570 F.
7

Supp. 2d 376, 385 (D. Conn. 2008)).

“[T]he grant or denial of an

opportunity to amend is within the discretion of the District
Court.”

Foman, 371 U.S. at 182.

Vaughan seeks to amend his complaint in a number of ways.
First, he wishes to add a new claim against VLS under Title IX of
the Educational Amendments of 1972.

Second, he seeks to join CEA

as an additional defendant in his negligence claim.

He also

wishes to revive his previously dismissed IIED claim based on new
facts learned during discovery, and to join CEA as a defendant in
that claim.

Furthermore, he wishes to amend his breach of

contract claim against VLS by removing references to FERPA and by
adding more specific allegations pertaining to VLS’s alleged
breach of its obligations under the Code of Conduct.

Finally, he

seeks to add to his complaint various factual allegations learned
of or confirmed during discovery.

Each of the proposed

amendments is addressed in turn.
A) Title IX Claim
Vaughan seeks to add to his complaint a claim against VLS
under Title IX of the Educational Amendments of 1972.
§§ 1681-88 (1988).

20 U.S.C.

Title IX provides, in relevant part, that

“[n]o person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or
activity receiving Federal financial assistance.”

8

20 U.S.C. §

1681(a).

Title IX is enforceable through an implied right of

action.

Franklin v. Gwinnett County Pub. Sch.,503 U.S. 60, 65

(1992); Cannon v. Univ. of Chicago, 441 U.S. 677, 60 L. Ed. 2d
560, 99 S. Ct. 1946 (1979).
In their opposition to the motion to amend, VLS and
Jefferson argue that Vaughan should not be granted leave to add a
Title IX claim to his complaint on the ground that such an
amendment would be futile.

“An amendment to a pleading will be

futile if a proposed claim could not withstand a motion to
dismiss pursuant to Rule 12(b)(6).”

Dougherty v. Town of N.

Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002)
(citing Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d
Cir. 1991)).

Therefore, a claim a plaintiff seeks to add to his

complaint via amendment will be found to be futile if it does not
“contain sufficient factual matter, accepted as true, to ‘state a
claim for relief that is plausible on its face.’”

Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic v.
Twombly, 550 U.S. 544, 570 (2007)).
“To prove a prima facie case under Title IX, Plaintiff must
simply show that he was excluded from participation, denied the
benefits of, or subjected to discrimination in an educational
program, that the program receives federal assistance, and that
the exclusion was on the basis of his sex.”

Bucklen v.

Rensselaer Polytechnic Inst., 166 F. Supp. 2d 721, 726 (N.D.N.Y
9

2001); see also Murray v. New York Univ. College of Dentistry,
No. 93 Civ. 8771, 1994 U.S. Dist. LEXIS 13880, at *13 (S.D.N.Y.
Sept. 29, 1994).

In his proposed amended complaint, Vaughan

alleges that VLS, in its handling of RH’s complaint, “was
motivated by Vaughan’s gender or sex in that VLS favored and gave
preferential treatment to the female complainant and disfavored,
discredited and gave disadvantageous treatment to Vaughan as a
male.”

Am. Compl. ¶ 91, ECF No. 53-1.

Specifically, Vaughan

asserts, inter alia, that VLS “accepted RH’s complaint as having
‘reasonable cause’ without any investigation of it at all, but
refused to accept or even consider Vaughan’s complaint [of
assault] against CG which was intertwined with the RH complaint”;
“gave RH the Church Engle Report as soon as they received it on
April 6, but refused to give it to Vaughan until after he made
his decision to have a hearing on May 14"; “prevented Vaughan,
but not RH, from taking courses where the two of them were both
registered”; and “effectively barred Vaughan from most public
socializing by encouraging the Student Ambassadors to have
Vaughan barred from the Crossroads Bar and Grill.”

Id. at ¶ 90.

He also alleges that VLS took an unreasonable amount of time to
complete its investigation and disciplinary hearing process,
during which he was not given access to his transcript and
thereby prevented from completing transfer applications for other
law schools.

Id.

10

Because the amended complaint “contain[s] sufficient factual
matter, accepted as true, to state a claim for relief [under
Title IX] that is plausible on its face,” the Court cannot
conclude that amendment would be futile.
1949 (internal quotation omitted).
is a Title IX funding recipient.

Iqbal, 129 S. Ct. at

There is no dispute that VLS

Furthermore, Vaughan has made

factual allegations that, if credited as true, suggest that he
was “denied the benefits of, [and] subjected to discrimination in
an educational program” -- for example when he was disallowed
from taking a class for which RH had also registered and
prevented from accessing his transcript during the period when he
sought to complete transfer applications.

Finally, Vaughan has

leveled allegations that may support an inference that his
disparate treatment was based on gender, such as that Dean
Jefferson “accepted RH’s complaint as having ‘reasonable cause’
without any investigation . . . , but refused to accept or even
consider Vaughan’s complaint against CG.”

Am. Compl. ¶ 90.

Rather than addressing the proposed amendment using the
prima facie case for a Title IX claim articulated in Bucklen and
Murray, VLS and Jefferson suggest that Vaughan’s Title IX claim
should be analyzed under a Title VII framework.

Opp’n to Mot. to

Amend 12-13, ECF No. 64 (citing Johnson v. Board of Regents, 106
F. Supp. 2d 1362, 1367 (S. D. Ga.. 2000) (“[T]he standard for
finding gender discrimination under Title IX is the same as Title

11

VII’s standard for racial discrimination.”); Blundell v. Wake
Forest University Baptist Med. Ctr., No. 1:03-CV-998, 2006 U.S.
Dist. LEXIS 11713, at *31 (M.D.N.C. March 15, 2006) (“In many
discrimination cases, because there are fewer cases concerning
Title IX, courts have applied the judicial interpretations of
Title VII to Title IX claims.”).

They argue that Vaughan

therefore must show that: (1) he is within a protected class; (2)
he was performing at a level that met the school’s legitimate
expectations; (3) he suffered an adverse educational action; and
(4) others not in the protected class were treated more
favorably.

Id. (citing

Blundell, 2006 U.S. Dist. LEXIS 11713,

at *32; Darian v. University of Mass., 980 F.Supp. 77, 91 (D.
Mass. 1997)).2

2

Curiously, rather than defending the viability of his
claim by relying either on this set of elements or the elements
articulated in Bucklen and Murray, Vaughan, in his reply brief,
asserts that his Title IX claim is not futile because he has
alleged factual matter sufficient to make out the four elements
necessary for a plaintiff to prevail on a claim that an
educational institution was deliberately indifferent to student
on student sexual harassment:
(1) defendant is a Title IX funding
recipient;(2) an appropriate person has
actual knowledge of the discrimination or
harassment the plaintiff alleges occurred;
(3) the funding recipient has acted with
deliberate indifference to known acts of
harassment; and (4) the discrimination is so
severe, pervasive and objectively offensive
that it effectively bars the victim's access
to an educational opportunity or benefit.”
Reply in Supp. of Mot. to Amend 8-12, ECF No. 68 (citing McGrath
v. Dominican College of Blauvelt, New York, 672 F. Supp. 2d 477,
486 (S.D.N.Y. 2009); Williams v. Board of Regents of the
12

Even assessing his Title IX claim using this set of
elements, the Court cannot conclude that the proposed amendment
would be futile.

Contrary to Defendants’ unsupported assertion

that “[w]hite male law students” are not members of a protected
class, there is no question that males alleging gender
discrimination may bring suit under Title IX.

See, e.g., Yusuf

v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994) (reversing
dismissal of Title IX claim brought by male student alleging he
was victim of gender discrimination during disciplinary
proceedings) (overruled on other grounds).

Moreover, there is no

dispute that Vaughan has performed at a level meeting VLS’s
legitimate expectations.

Finally, he has alleged both that he

has suffered adverse educational actions and that female
students, in particular RH, were treated more favorably than him
-- for example when he was disallowed from taking Professor
Rachlin’s “Legal Profession” course, after the disciplinary
charges against him were dismissed, because RH had also
registered for the course.

University System of Georgia, 477 F. 3d 1282, 1293 (11th Cir.
2007). Vaughan’s sole reliance on law articulated in cases of
deliberate indifference to student on student harassment is
somewhat puzzling since his proposed amended complaint makes
clear that the gravamen of his Title IX complaint is that Dean
Jefferson “was the principal person carrying out the actions
which were discriminatory and/or in violation of the
regulations.” Am. Compl. ¶ 92.
13

VLS and Jefferson also argue that the entire motion to amend
should be denied on the grounds of undue prejudice because the
proposed amendments would require them “to expend significant
additional resources to conduct discovery and prepare for trial
[and] significantly delay the resolution of the dispute.”

Opp’n

to Mot. to Amend 14 (quoting Block v. First Blood Associates, 968
F.2d 344, 350 (2d Cir. 1993)).

Because the factual basis for the

Title IX claim appears already to have been thoroughly explored
through discovery, allowing Vaughan to proceed with this claim
would not unduly prejudice Defendants.
Because the Court cannot conclude that Vaughan’s Title IX
claim would be futile and because addition of the claim would not
cause undue prejudice, the motion to amend is granted with
respect to this claim.
B) Negligence Claim Against CEA
Vaughan seeks to join CEA, which is not currently a party in
this lawsuit, as a defendant in his negligence claim.

He alleges

that CEA owed him a duty to conduct its investigation and write
its investigative report in a reasonable manner consistent with
the standard of care applicable for professional investigators.
He argues that CEA breached this duty by accepting an
investigative assignment for which it was not qualified; by
failing to thoroughly investigate or to give Vaughan an
opportunity to respond to certain factual allegations that

14

appeared in its investigative report, namely excessive alcohol
consumption by Vaughan and RH and a pattern of sexual harassment
by Vaughan; by continuing its investigation after learning of
inconsistencies in RH’s account of the underlying incident; and
by misrepresenting witness statements in a manner that concealed
inconsistencies in RH’s statements and exaggerated the amount of
alcohol consumed by RH and Vaughan.

Am. Compl. ¶¶ 90, 99.

Vaughan alleges that he “suffered damages proximately caused by .
. . Church Engle’s negligence and wrongful actions,” id. at ¶
101, but does not specify exactly what these damages were or
identify any theory of causation.
In order to make out a common law negligence claim, a
plaintiff must prove four elements:
(1) the defendant must owe a legal duty to
conform to a certain standard of conduct so
as to protect the plaintiff from an
unreasonable risk of harm; (2) the defendant
must have committed a breach of this duty by
failing to conform to the standard of conduct
required; (3) the defendant’s conduct must be
the proximate cause of the plaintiff’s
injury; and (4) the plaintiff must have
suffered actual loss or damage.
Langle v. Kurkul, 146 Vt. 513, 517 (1986) (citing W. Prosser and
W. Keeton, The Law of Torts § 30, at 164-65 (5th ed. 1984)).

VLS

and Jefferson argue that amendment of Vaughan’s complaint to
include a negligence claim against CEA would be futile because
“CEA owed no duty to Plaintiff” and because “no actions taken by

15

CEA proximately caused any injury to Plaintiff, who was not
disciplined.”

Opp’n to Mot. to Amend 13.

Although the question of whether CEA owed a legal duty to
Vaughan is more complex than Defendants make it out to be,3 the
Court agrees that the negligence claim against CEA could not
survive a motion to dismiss because Vaughan has failed to allege
facts supporting the causation and damages elements.

It is

undisputed that the investigative report CEA submitted to VLS did
not conclude that Vaughan had sexually assaulted RH.

In fact, in

his original complaint, Vaughan characterized the report as
“exculpatory.”

Compl. ¶ 58.

Furthermore, although the contents

of the report may have affected VLS and Jefferson’s decision to

3

“Whether there is a legal duty is primarily a question of
law, dependent upon a variety of relevant factors . . . of which
foreseeability of the risk is a primary consideration.” Langle
v. Kurkul, 510 A.2d 1301, 1305 (Vt. 1986) (internal quotation
omitted). “Ultimately, whether a duty exists is a question of
fairness that depends on, among other factors, the relationship
of the parties, the nature of the risk, and the public interest
at stake.” Hamill v. Pawtucket Mut. Ins. Co., 2005 VT 133, ¶ 6,
892 A.2d 226, 228 (2005). The Vermont Supreme Court has not
specifically addressed the question of whether private
investigators owe a legal duty to the subjects of their
investigations. However, other jurisdictions have suggested that
such a duty may exist. See Remsburg v. Docusearch, Inc., 816
A.2d 1001, 1007 (N.H. 2003) (“[I]f a private investigator[’s] . .
. disclosure of information to a client creates a foreseeable
risk of criminal misconduct against the third person whose
information was disclosed, the investigator owes a duty to
exercise reasonable care not to subject the third person to an
unreasonable risk of harm.”).
16

move forward with a disciplinary hearing on charges of sexual
assault and sexual harassment, Vaughan was found not to be
responsible for either of these two charges at the conclusion of
the hearing.
In his reply brief, Vaughan attempts to rely on Prive v. Vt.
Asbestos Group, 2010 VT 2, 992 A.2d 1035 (2010), for the
proposition that CEA may be held liable for VLS’s tortious
behavior because it was acting as the law school’s agent.
in Supp. of Mot. to Amend 9.

Reply

While it is true that an agent may

be held liable for the tortious behavior of its principal where
the agent “participates actively in the commission of [the]
tortious act[,]” a plaintiff seeking to recover under such a
theory must still prove that the agent’s actions were a proximate
cause of his injuries.

Prive, 992 A.2d at 1041.

Although Vaughan includes in his proposed amended complaint
a boilerplate assertion that he “suffered damages proximately
caused by . . . Church Engle’s negligence and wrongful actions,”
Am. Compl. ¶ 101, he fails to suggest any plausible causal link
between CEA’s actions and any damages he has suffered.

The

amended complaint does not even clearly identify which damages
CEA’s behavior allegedly caused.
“[A] plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action.”

17

Twombly, 550 U.S. at 554 (internal quotation omitted).

Because

Vaughan has not alleged facts to support the proximate cause or
damages elements of a negligence claim against CEA, allowing him
to amend his complaint to include such a claim would be futile.
Even if Vaughan’s proposed amended complaint did include a
sufficiently pled negligence claim against CEA, the Court would
deny leave to amend on the grounds of undue prejudice.

Discovery

is currently scheduled to conclude by September 14, 2011.

VLS

and Jefferson have made a representation that “[e]xtensive
discovery has [already] been conducted in this case,” including
depositions of the key witnesses and parties.
Amend 15.

Opp’n to Mot. to

Allowing Vaughan to amend his complaint to join a new

defendant to this litigation would require extension of the
discovery schedule –- at the very least to allow CEA to conduct
depositions -- and thereby increase the costs of the litigation
and significantly delay resolution of the case.

See Ruotolo v.

City of New York, 514 F.3d 184, 192 (2d Cir. 2008) (“In gauging
prejudice, [courts] consider, among other factors, whether an
amendment would require the opponent to expend significant
additional resources to conduct discovery and prepare for trial
or significantly delay the resolution of the dispute.” (internal
quotation omitted)).

The motion to amend the complaint is denied

with respect to Vaughan’s request to bring a negligence claim
against CEA.

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C) IIED Claim Against VLS and Jefferson
Vaughan seeks to revive his IIED claim against VLS and
Jefferson, which the Court dismissed on VLS and Jefferson’s
motion for judgment on the pleadings for failure to state a claim
in its Memorandum and Order of February 9, 2011.

ECF No. 33.

He

asserts that his “repleading of the IIED claim [is] based on
substantial new facts uncovered or confirmed during discovery.”
Mot. to Amend 2.
The newly pled allegations Vaughan relies on to support the
IIED claim include: (1) when Defendants learned that the date on
which RH alleged the sexual assault took place was prior to the
start of orientation, they encouraged her to amend her complaint
to reflect that the incident had occurred after the start of
orientation; (2) Defendants “carried out their investigation in a
manner designed to establish Plaintiff’s guilt rather than in a
fair and impartial manner”; (3) Defendants continued their
investigation after RH “changed her key testimony” to reflect
that she had not verbally told Vaughan “no”; (4) Defendants
continued their investigation after RH “withdrew” her complaint
by indicating that she did not want further involvement in the
process; (5) Defendants investigated vague allegations of a
“pattern of sexual harassment” made by witnesses interviewed
during the investigation even though RH’s initial complaint had
been limited to the alleged sexual assault; (6) Defendants

19

threatened Vaughan with what they knew to be an unsupportable
sexual assault charge in an attempt to force him to admit what
they knew to be an unsupportable sexual harassment allegation;
(7) Defendants attempted to pressure Vaughan into waiving his
right to a hearing; (8) Defendants purposefully delayed the
hearing in order to “increase Vaughan’s damage and to attempt to
force him to . . . accept the ‘plea bargain’ offered by
Jefferson”; (9) Defendants purposefully withheld Vaughan’s
transcript in order to prevent him from transferring; and (10)
Defendants precluded Vaughan from taking a course for which he
registered after the charges against him were found to be without
merit.

Am. Compl. ¶ 103.

VLS and Jefferson, relying on Fellheimer v. Middlebury
College, 869 F. Supp. 238, 247 (D. Vt. 1994), argue that “even if
assumed to be true for the purpose of determining whether the reassertion of this claim is futile, [these allegations] do not
form the basis for an IIED claim.”

Opp’n to Mot. to Amend. 13.

In Fellheimer, Judge Parker held that “[a] college's decision,
when confronted with a female student’s accusation of rape, to
confront the male student with the charges, hold a hearing, and
support the findings of the initial tribunal on appeal, even
where various procedural errors are alleged, cannot form the
basis of an IIED claim.”

He noted that, in that case, “the

conduct alleged on the part of the College [was] neither extreme

20

nor outrageous.”

Id.

Vaughan argues that, based on the facts added to his
proposed amended complaint as a result of discovery,4 he has
adequately alleged “extreme and outrageous” conduct on the part
of Defendants.

Reply in Support of Mot. to Amend 10, ECF No. 68

(citing Crump v. P & C Food Mkts., 576 A.2d 441 (Vt. 1990)
(upholding denial of defendant’s motion for judgment
notwithstanding the verdict on IIED claim where 18-year employee
was terminated without prior notice, in three- to four-hour
meeting during which he did not feel free to leave and was
badgered to sign a statement); McCormick v. Dresdale, No. 09-474
S, 2010 U.S. Dist. LEXIS 41848, at *2 (D.R.I. 2010) (denying
motion to dismiss IIED claim against university where student
accused of rape was forced to withdraw from school after
administrators failed to adequately investigate the complaint)).
Vaughan asserts that his allegations are “on a par at least as
strong as the conduct” in Crump and McCormick.
cases are clearly distinguishable.

However both

Whereas the plaintiffs in

those cases were ultimately fired or forced to withdraw from
school, Vaughan was not forced to leave VLS and the disciplinary

4

In fact, much of what Vaughan characterizes as
“substantial new facts learned of or confirmed during discovery,”
Mot. to Amend 2, is information he already possessed prior to
discovery which he has re-framed using argumentative and often
conclusory language.
21

process of which he complains resulted in a determination that
the allegations against him were unfounded.
To prevail on IIED claim, a plaintiff must show that the
defendants’ conduct was “so outrageous as to surpass all possible
bounds of decency, and . . . be regarded as atrocious, and
utterly intolerable in a civilized community.”

Gallipo v. City

of Rutland, 656 A.2d 635, 643 (Vt. 1994) (internal quotation
omitted).

Accepted as true, Vaughan’s allegations of

deficiencies in a process which did not result in any
disciplinary action against him, let alone his expulsion from
school, do not come close to rising to this level.
Because the proposed amended complaint fails to allege facts
sufficient to make out the element of extreme and outrageous
conduct, the motion to amend is denied with respect to the IIED
claim against VLS and Jefferson.
D) IIED Claim Against CEA
Vaughan also seeks to bring an IIED claim against CEA.

In

support of the claim, he alleges that, in composing its
investigative report, CEA “altered statements to Vaughan’s
detriment, [] deleted information to Vaughan’s detriment, and
omitted significant exculpatory information[.]”

Am. Compl. ¶

103.
As discussed supra, joining CEA as a defendant at this late
stage of the discovery schedule would unduly prejudice the

22

current parties by increasing the costs of the litigation and
significantly delaying resolution of the case.

Furthermore,

amending the complaint to include an IIED claim against CEA would
be futile.
Accepting the factual matter alleged in the proposed amended
complaint as true, Vaughan has not alleged behavior on the part
of CEA that rises to the level of extreme or outrageous conduct.
Allegations of questionable editorial decisions in a report that
ultimately states that there was insufficient evidence to
conclude that Vaughan committed a sexual assault do not amount to
a plausible claim that CEA engaged in “outrageous conduct, done
intentionally or with reckless disregard of the probability of
causing emotional distress, resulting in the suffering of extreme
emotion distress, actually or proximately caused by the
outrageous conduct.”

Crump, 576 A.2d at 448;

see Gallipo v.

City of Rutland, 656 A.2d 635, 643 (Vt. 1994) (To prevail on IIED
claim, plaintiff must show that that defendants' conduct was “so
outrageous as to surpass all possible bounds of decency, and . .
. be regarded as atrocious, and utterly intolerable in a
civilized community.”

(internal quotation omitted)).

Because allowing Vaughan to add an IIED claim against CEA to
his complaint would be futile and unduly prejudicial, the motion
to amend is denied with respect to this claim.

23

E) Breach of Contract Claim
Vaughan seeks to amend his claim against VLS for breach of
contract and FERPA obligations by removing references to FERPA
and by adding more specific allegations pertaining to VLS’s
alleged breach of its obligations under the Code of Conduct.
Defendants do not oppose removal of references to FERPA but argue
that, because Vaughan’s contract claim based on the Code of
Conduct is already before the court, “Plaintiff does not need to
amend his complaint to include this expanded contract claim.”
Opp’n to Mot. to Amend 14.

VLS does not appear to allege that it

will suffer any prejudice if Vaughan is allowed to add more
detailed allegations to his contract claim.

Because no undue

prejudice will result, and because the amendment will be helpful
in fleshing out the exact nature of the contract claim, the
motion to amend is granted with respect to the proposed changes
to the contract claim.
F) Addition of New Factual Allegations
Vaughan seeks to add numerous factual allegations, which he
represents he has learned of or confirmed during discovery, to
his complaint.

VLS and Jefferson oppose these additions on the

ground that Vaughan is making them in bad faith.

In particular,

VLS and Jefferson object to the following allegations: “Vaughan
was falsely accused of rape,” Am. Compl. ¶ 2; RH “changed her key
testimony” and “recanted her prior claims,”

24

Am. Compl. ¶¶ 3, 41;

“CEA was not competent to handle the investigation,”

Am. Compl.

¶ 3; Defendants “changed their theory” in the middle of the
investigation and sought “to demonstrate that [RH] was too
intoxicated to consent and the plaintiff was too intoxicated to
discern consent” and “secretly investigated plaintiff for a
‘pattern of sexual harassment,’”

Am. Compl. ¶ 3; and CG had a

“personal agenda” and urged RH to report a “rape.”
50.

Am. Compl. ¶

Defendants assert that Vaughan’s bad faith is evident

because these allegations “are contrary to and unsupported by the
depositions or document productions[.]”

Opp’n to Mot. to Amend

11.
Defendants object to Vaughan’s use of the term “rape” in the
amended complaint because, during her deposition, RH stated that
she was alleging that Vaughan “sexually assaulted” her but was
not alleging that he “forcibly raped” her.

RH Dep. 34-36, ECF

No. 64-1. They argue that “[t]he frequent use of the term ‘rape’
rather than ‘sexual assault,’ in the proposed amended complaint
is not only inaccurate but it can only be intended to
sensationalize the nature of RH’s complaint.”
Amend 5.

Opp’n to Mot. to

The Court agrees that, in light of RH’s deposition

testimony regarding the nature of her allegations, Vaughan’s
attempt to amend his complaint to use the term “rape” instead of
“sexual assault” (the term he used in his original complaint) is
motivated by a desire to use inflammatory language and not by a

25

good faith effort to add newly discovered facts to his
complaint.5
With regard to the other factual allegations and
characterizations to which Defendants’ object, the Court has
reviewed the relevant discovery materials and determined that
Defendants have not established that these allegations and
characterizations are so lacking in support that they demonstrate
bad faith.

See Arroyo, 2011 U.S. Dist. LEXIS 2588, at *3

(“Keeping in mind the principle that leave to amend should be
freely given, it is the non-moving party’s burden to demonstrate
that’ leave to amend should be denied.”).

For example, although

Defendants may not agree with Vaughan’s characterization of
alleged deviations in RH’s account of the incident as “changes in
key testimony,” reasonable minds may differ on the question of
what testimony was “key” in her complaint.

Similarly, Vaughan’s

assessments of CEA’s competence, of Defendant’s apparent
intentions during the investigation, and of CG’s motivations are
not so lacking in factual basis that they are demonstrably false.
Defendants should and will have opportunities to contest the

5

Although Vaughan asserts that “‘rape’ is another term for
sexual assault,” Reply in Support of Mot. to Amend 3, the two
terms have different connotations. See Black’s Law Dictionary,
110, 1267 (7th ed. 1999) (defining “rape” as “unlawful sexual
activity (esp. intercourse) with a person (usu. a female) without
consent and usu. by force or threat of injury” and “sexual
assault” as “sexual intercourse with another person without that
person’s consent . . . [or] offensive sexual contact with another
person, exclusive of rape” (emphasis added)).
26

factual allegations made by Plaintiff during the course of this
litigation.

However, where there is not sufficient evidence to

show that particular allegations have been made in bad faith,
Defendants cannot prevent these allegations from being included
in the Plaintiff’s pleadings merely by disputing them.

Vaughan’s

motion to amend his complaint by adding factual allegations is
denied with regard to his use of the term “rape,” rather than
sexual assault, to describe RH’s allegations against him.

The

motion is granted with regard to the other factual allegations he
seeks to add to his complaint.
II. Motion to Preclude Re-trial of Whether RH Consented
Vaughan has asked the Court to “preclude ‘re-trial’ of the
issue of whether RH consented to sex, and rule that new evidence
on that issue is irrelevant and may not be explored on
discovery.”

Mot. to Preclude 1.

He argues that under none of

his claims is “RH’s actual consent, or whether a sexual assault
actually occurred[] relevant.”

Id. at 2.

Instead, he asserts

“the relevant fact issues will be what information VLS and
Jefferson had . . . and how they acted based on the information
they had[.]”

Id. (emphasis added).

Vaughan’s argument appears to confuse the question of
whether a factual issue is relevant with the question of whether
it is an ultimate issue.

Although RH’s consent may not be an

27

ultimate issue in this case, it is clearly relevant to each of
Vaughan’s claims.
“‘Relevant evidence’ means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.”
added).

Fed. R. Evid. 401 (emphasis

Vaughan’s claims turn on the reasonableness of

Defendants’ actions in investigating RH’s allegations of sexual
assault, and in particular their decisions to pursue the
disciplinary process as far as they did.

There can be no

question that the truthfulness of RH’s complaint bears heavily on
the issue of whether VLS and Jefferson acted reasonably during
the course of the process.

If RH’s allegation that she was

sexually assaulted is true, that fact has some tendency to make
it more probable that Defendants acted reasonably in commencing
and pursuing their investigation.

Put slightly differently,

while Vaughan is correct that “what information VLS and Jefferson
had . . . and how they acted based on the information” are key
issues in the case, the truthfulness of RH’s complaint will help
the fact finder to make determinations with regard to these key
issues.
Vaughan’s assertion that whether RH was actually sexually
assaulted is not relevant to his claims is further belied by the
fact that he repeatedly asserts in his own complaint that the

28

allegations of sexual assault she made against him were false and
that she changed her account of the incident during the course of
the investigation.

See Compl. ¶¶ 2, 3, 13, 18.

As a logical

matter, if Vaughan believes that the falsity of RH’s sexual
assault complaint is relevant -- as his repeated inclusion of
this factual allegation in his complaint would seem to suggest -he cannot also claim that whether she was in fact sexually
assaulted is not relevant.

Similarly, if he asserts that it is

an important fact that RH made certain changes to her account of
the incident during the investigation, then he is obviously
putting the truthfulness of that account at issue.
Because whether or not RH consented is relevant to Vaughan’s
claims his motion to preclude “re-trial” of this issue and for a
ruling that new evidence on that issue is irrelevant and may not
be explored on discovery is denied.
III. Motions to Preserve Confidentiality of and Seal Deposition
Excerpt
Vaughan has moved to maintain the confidentiality of and to
seal excerpts from his deposition, which he has designated as
confidential pursuant to the parties’ stipulated protective
order.

Mot. to Maintain Confidentiality, ECF No. 62; Mot. to

Seal, ECF No. 63.

Defendants have appended these excerpts as an

exhibit to their opposition to the motion to preclude re-trial of
the consent issue, and Vaughan has appended them as an exhibit to
his motion to maintain confidentiality.
29

The versions of the

deposition testimony filed as exhibits have been redacted such
that individuals who are not parties to this litigation are
referred to by their initials.
In the Deposition testimony in question, Vaughan recounts
details of his sexual encounter with RH.

Defendants point out

that this encounter was also described in the same level of
detail in the Church-Engle Report, which Vaughan previously
opposed sealing in the interest of maintaining “an open court
process.”

See Ex. B to Mot. for J. on Pleadings, ECF No. 7-2;

Pl.’s Objection to Motion to File Exhibit Under Seal 2, ECF No.
13.

Agreeing with Vaughan’s arguments regarding the importance

of an open court process, the Court denied Defendants’ motion to
seal the Church-Engle Report.
Mot. to Seal, ECF No. 32.

See Feb. 4, 2011 Order Denying

A version of that report, redacted to

refer to non-parties only by their initials, is currently a
publicly available document in this case.
Consistent with the Court’s prior order denying the motion
to seal the Church-Engle Report, Vaughan’s motions to maintain
the confidentiality of and to seal the redacted excerpts from his
deposition is denied.
IV. Motion for Partial Summary Judgment
Vaughan has moved for partial summary judgment on four
issues on which he asserts that “there is no genuine dispute as
to any material fact and [that he] is entitled to judgment as a

30

matter of law.”

Fed. R. Civ. P. 56(a).

These issues are: (1)

that VLS had no authority to discipline him for pre-matriculation
conduct and, in particular, for his sexual encounter with RH
before the start of orientation; (2) that VLS had no authority to
discipline him for off-campus conduct and, in particular, for
dropping by private apartments of classmates; (3) that VLS had no
authority to discipline him for unidentified statements claimed
to be “creepy,” “weird,” “inappropriate” or “sexual”; and (4)
that RH withdrew her complaint against Vaughan and VLS was fully
aware of the withdrawal.

VLS and Jefferson oppose the motion,

arguing that they are actually entitled to partial summary
judgment on each of these issues
Pursuant to Rule 56(a), “[a] party may move for summary
judgment, identifying each claim or defense — or the part of each
claim or defense — on which summary judgment is sought.”
(emphasis added).

Summary judgment is “‘warranted upon a showing

that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.’”
Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d
450, 455 (2d Cir. 2007) (quoting Feingold v. New York, 366 F.3d
138, 148 (2d Cir. 2004)); Fed. R. Civ. P. 56(c).

“In determining

whether there is a genuine issue of material fact, a court must
resolve all ambiguities, and draw all inferences, against the

31

moving party.”

Beth Israel Med. Ctr. v. Horizon Blue Cross &

Blue Shield of N.J., Inc., 448 F.3d 573, 579 (2d Cir. 2006).
A) Authority of VLS to Discipline Vaughan
The parties agree that the relationship between Vaughan and
VLS is contractual in nature.

See Merrow v. Goldberg, 672

F.Supp. 766, 774 (D. Vt. 1987); Fellheimer, 869 F.Supp. at 242.
“The terms of the contract [between a school and its students]
are contained in the brochures, course offering bulletins, and
other official statements, policies and publications of the
institution.”

Id.

In this case, the most relevant contractual

terms are contained in VLS’s Code of Conduct.

Article 1 of the

Code of Conduct includes the following language:
This code governs all matters of conduct
not covered by the Vermont Law School Honor
Code. It applies to the conduct of students
of Vermont Law School with regard to their
actions in connection with the application
and admissions process, educational
activities, career services, employment, or
other law school-related activities, when
those actions occur on VLS property or in the
use of VLS facilities (including the computer
network and telephone and e-mail systems).
This Code also applies when those actions
occur off campus in connection with events
sponsored by VLS or VLS-approved
organizations, or in connection with official
business undertaken for VLS, or in other
circumstances where an action could have a
significant impact on the educational or
employment environment or the reputation or
integrity of VLS or could pose a threat to
the safety or other interests of VLS or
members of the VLS community. . . .
A student is held to have notice of this
Code of Conduct by enrolling in a Vermont Law
32

School class.
Code of Conduct, Ex. 1 to Mot. for Partial Summ. J. 2, ECF No.
69-2.
Vaughan argues that VLS had no authority to discipline him
for his alleged sexual assault of RH because the encounter in
question occurred before the start of VLS’s orientation week.
According to Dean Jefferson’s deposition, students were not
issued hard copies of the Code of Conduct until orientation.
Jefferson Dep. 26, ECF No. 69-3.

Accordingly, Vaughan argues, he

was not on notice of the contents of the Code of Conduct prior to
orientation and was therefore unable to come to the “meeting of
the minds” necessary for the contract to bind him.
Partial Summ. J. 4-5.

Mot. for

Furthermore, he asserts the Code of

Conduct did not apply to him by its own terms because he was not
yet a “student” and because he had not yet enrolled in a VLS
class.
Defendants dispute these assertions.

They argue that

Vaughan was on notice of the contents of the Code of Conduct
well before orientation week because it was made available to him
on VLS’s website during the spring and summer of 2009.
Jefferson Dep. 199, ECF No. 74-2.

See

Furthermore, they point out

that Vaughan testified at his deposition that he arrived at VLS
with the assumption that sexual assault would be a violation of
any school’s policy.

See Vaughan Dep. 28-29, ECF No. 74-5.

33

Moreover, they argue that, regardless of when Vaughan actually
accepted the contract terms embodied in the Code of Conduct,
those term explicitly allow VLS to discipline members of the VLS
community for conduct that occurs even before they become
students.

For example, by its own terms, the Code “applies to

the conduct of students of Vermont Law School with regard to
their actions in connection with the application and admissions
process,” which occur long before students arrive on campus.
Code of Conduct 2; see also North v. West Virginia Bd. of
Regents, 332 S.E.2d 141, 144-45 (W. Va. 1985) (holding that
disciplinary rules applied to conduct of individual in applying
for admission even though he was not yet a student when actions
took place).
Defendants’ argument is persuasive.

Although Vaughan

alleges that he had not yet entered into the contract embodied in
the Code of Conduct at the time that the alleged sexual assault
occurred, he does not dispute that, once he began classes in the
fall of 2009, he accepted the contract.

Under the unambiguous

terms of that contract, VLS was entitled to investigate any
action that “could have a significant impact on the educational
or employment environment or the reputation or integrity of VLS
or could pose a threat to the safety or other interests of VLS or
members of the VLS community.”

Code of Conduct 2.

The Code of

Conduct contains no language suggesting any limitation that

34

behavior subject to VLS’s disciplinary authority must have taken
place after enrollment, and the fact that the Code explicitly
covers “actions in connection with the application and admissions
process” makes clear that no such limitation exists.
An alleged sexual assault of one soon–to-be student by
another, only days before the start of the semester, is without
question an action that “could have a significant impact on the
educational . . . environment” and “could pose a threat to the
safety or other interests of VLS or members of the VLS
community.”

Accordingly, while the Court does not decide the

disputed fact question of whether RH’s allegations are true,
Defendants are entitled to a ruling that VLS has the authority to
pursue disciplinary charges against a student accused of
committing a sexual assault prior to orientation.
Vaughan next argues that VLS had no authority to discipline
him for the alleged off-campus conduct that constituted the basis
for the sexual harassment charge brought against him after CEA
submitted its report to VLS.

This alleged conduct included

showing up intoxicated at the apartments of two female VLS
students, ignoring social cues that they wanted him to leave and
departing only when they called on other students to convince him
to leave.

The Church-Engle Report also noted that several

students reported that Vaughan made statements to female
classmates described as “creepy,” “weird,” “inappropriate,”

35

and/or “sexual.”

The reports included allegations that Vaughan

aggressively “hit on” female classmates and tried to pressure
some of them into walking home with him at night.
VLS’s Policy Against Harassment, Sexual Harassment and
Discrimination, which is part of the Code of Conduct, prohibits
“verbal or physical conduct that on the basis of a protected
characteristic has the purpose or effect, from the point of view
of a reasonable person possessing that characteristic, either of
interfering with an individual’s . . . educational performance or
of creating an intimidating, hostile or offensive . . .
educational environment.”

Code of Conduct 9.

The policy

specifies that “sexual harassment includes conduct that a
reasonable person would judge to be unwelcome sexual advances[.]”
Id.

Mirroring the introductory language that appears earlier in

the Code of Conduct, the policy indicates that it “applies when
[the] actions occur off campus . . . in [] circumstances where an
action could have a significant impact on the educational or
employment environment or the reputation or integrity of VLS, or
could pose a threat to the safety or other interests of VLS or
members of the VLS community.”

Id. (emphasis added).

The Court makes no judgment as to the disputed factual
question of whether the sexual harassment allegations leveled
against Vaughan are true.

However, in light of the contract

terms embodied in the Code of Conduct, Defendants are entitled to

36

a ruling that VLS has the authority to pursue disciplinary
charges against a student for allegations of off campus sexual
harassment, where those allegations include “unwelcome sexual
advances” that “could have a significant impact on the
educational . . . environment” and “could pose a threat to the
safety or other interests of VLS or members of the VLS
community.”

Id.

B) Whether RH “Withdrew” Her Sexual Assault Complaint
In March 2010, RH wrote Jefferson two emails regarding her
complaint against Vaughan in which she indicated that she did not
“think [she] want[ed] to pursue this matter any further,” and
that she had decided “to no longer be directly involved at this
point in time.”

Ex. 6 & Ex. 12 to Mot. for Partial Summ. J., ECF

Nos. 69-7, 69-13.

In later correspondence, Jefferson referred to

these emails as “dismiss[al]” and “withdrawal” of the complaint.
Ex. 14 & Ex. 16 to Mot. for Partial Summ. J., ECF Nos. 69-15, 6917.

Based upon these communications, Vaughan argues he is

“entitled, as a matter of law, to a ruling that RH withdrew her
Code of Conduct complaint and that VLS and Jefferson were aware
of the withdrawal.”

Mot. for Partial Summ. J. 13.

Defendants assert that RH’s emails, when read in context,
indicate that “she wanted to step back from playing an active and
central role in the investigation and disciplinary process,” but
that she never “formally withdrew” the complaint.

37

Opp’n to Mot.

for Partial Summ. J. 15, ECF No. 74.

Furthermore, they argue

that even if RH had formally withdrawn her complaint, this would
have no bearing on the legality of their actions because,
regardless of a complainant’s wishes, they have an independent
obligation to investigate allegations of sexual assault and
sexual harassment.
The Court agrees with Defendants that whether RH’s emails,
when read in context, constituted a “withdrawal” of her
complaint, or simply a statement that she wished to minimize her
involvement in an ongoing process, is a disputed fact that should
be resolved by the fact finder.

Furthermore, whether RH withdrew

her complaint is not a dispositive issue in this case, since,
once VLS and Jefferson learned of the alleged sexual assault, it
was reasonable for them to determine that VLS had an independent
obligation to its entire student body to follow through with its
investigation regardless of the wishes of the complainant.
In this vein, Defendants have asked the Court for a ruling
that “they were legally obligated, both under VLS’s policies and
Title IX, to investigate RH’s sexual assault complaint and to
pursue disciplinary proceedings to a resolution.”
for Partial Summ. J. 16-17.

Opp’n to Mot.

In support of this request,

Defendants rely on language from the Code of Conduct which states
that VLS “is committed, and required by law, to take action when
it learns of potential harassment or discrimination” and “will

38

take all necessary steps to ensure that such a complaint is
promptly investigated and addressed.”

Code of Conduct 12.

They

also rely on language from a Department of Education - Office for
Civil Rights publication which states that a school’s obligations
to investigate and end harassment “are the school’s
responsibility whether or not the student who was harassed makes
a complaint or otherwise asks the school to take action.”

U.S.

Dept. of Education, Revised Sexual Harassment Guidance:
Harassment of

Students by School Employees, Other Students or

Third Parties, 66 F.R. 5512, at 15 (January 19, 2001).

In his

reply brief, Vaughan has reasserted his position that RH withdrew
her complaint but has failed to respond to Defendants’ argument
that, even if RH did withdraw her complaint, they had a legal
obligation to investigate her allegations.
The Court agrees that, based upon the language contained in
the Code of Conduct, VLS has a contractual obligation to
investigate allegations of sexual harassment of which they become
aware and which “could have a significant impact on the
educational or employment environment or the reputation or
integrity of VLS or could pose a threat to the safety or other
interests of VLS or members of the VLS community.”
Conduct 2.

Code of

As discussed supra, an alleged sexual assault of one

soon–to-be student by another, only days before the start of the
semester, is without question an action that “could have a

39

significant impact on the educational . . . environment” and
“could pose a threat to the safety or other interests of VLS or
members of the VLS community,” and this conduct surely falls
within the Code of Conduct’s definition of sexual harassment.
Accordingly, Defendants are entitled to a legal ruling that VLS
had a contractual obligation to investigate RH’s sexual assault
complaint against Vaughan.
Plaintiff’s motion for partial summary judgment is denied,
and Defendants’ cross-motion for partial summary judgment is
granted.
V. Motions to Extend the Discovery Schedule
On June 10, 2011, Vaughan filed an assented-to motion to
extend the current discovery schedule by forty-five days.

On

July 7, he filed a revised motion to extend the discovery
schedule, asking the Court to extend the schedule by an
additional forty-five days on account of scheduling difficulties
that had arisen with his expert witnesses due to summer
vacations.

Both motions are granted.

The discovery schedule is

extended by a total of 90 days.
Conclusion
For the foregoing reasons, Vaughan’s motion for leave to
amend is granted in part and denied in part.

Vaughan may amend

his complaint to include a Title IX claim, to revise his contract
claim by excluding references to FERPA and by adding more
40

specific allegations pertaining to VLS’s alleged breach of its
obligations under the Code of Conduct, and to include factual
allegations learned of or confirmed during discovery.

He may

not, however, revive his intentional infliction of emotional
distress claim against VLS and Jefferson, join Church Engle
Associates, Inc. as a defendant in any of the claims, or use the
term “rape” to describe RH’s allegations against him.

Vaughan’s

motions to preclude retrial of the consent issue, to preserve the
confidentiality of and seal excerpts from his deposition
testimony, and for partial summary judgment are denied.
Defendants’ cross-motion for partial summary judgment is granted.
Vaughan’s motions to extend the discovery schedule are granted.
Dated at Burlington, in the District of Vermont, this 4th
day of August, 2011.
/s/ William K. Sessions III
William K. Sessions III
U.S. District Court Judge

41