Doe v. Loh

          MEMORANDUM OPINION

          Paula Xinis United States District Judge

         Plaintiff John Doe (“Doe”), a former student at the University of Maryland, College Park (“UMCP”), proceeding pseudonymously, brings this action to challenge UMCP's decision to expel him for sexual misconduct. Doe asserts claims pursuant to 42 U.S.C. § 1983 for violations of his Fourteenth Amendment rights to due process and equal protection, and claims alleging Title IX gender discrimination, violations of the Maryland constitution, and other state common law claims against the University's Board of Regents in their capacity as the governing body of UMCP, and against Defendants Wallace Loh, Linda Clement, Josh Bronson, Catherine A. Carroll, and Andrea Goodwin, individually and in their official capacities as UMCP employees. ECF No. 38. The issues are fully briefed and a hearing on the motion was held on March 23, 2018. For the foregoing reasons, Defendants' motion to dismiss is GRANTED.

         I. Background^[1]

         On the evening of December 14, 2014, Plaintiff John Doe, Jane Roe, ^[2] and several of Doe's friends, identified as “K.P” and “A.S., ” left a College Park, Maryland bar for K.P. and A.S.'s on-campus apartment. Once at the apartment, Roe grew tired and fell asleep in K.P.'s bedroom. ECF No. 38 at ¶ 7. K.P. initially joined Roe in his bed, but later complained that he could not get physically comfortable. K.P. left the bedroom and suggested to Doe, who was resting on K.P.'s couch, that Doe instead sleep in the bed with Roe, and K.P. would sleep on the couch. Id.

         K.P. initially claimed that at this point, Doe “brought up a dare, ” that he (Doe) would “play a joke on [Roe]” by cuddling with Roe in the bed “until she turns around and realizes that she is not ‘cuddling' with [K.P.].” Id. at ¶ 10; see also ECF No. 54-1. Doe denies that he proposed or engaged in any kind of a “dare, ” and K.P. now disclaims that Doe suggested a dare. ECF Nos. 38 at ¶ 11; 43-2 at 27-29; 45-4.

         Doe, however, did proceed to get into bed with Roe and fall asleep next to her. Id. About an hour later, Doe and Roe woke up and began kissing. ECF No. 38 at ¶ 8; see also ECF No. 54-1. Doe fondled Roe, and asked Roe to perform oral sex on him, to which she agreed. Id. at ¶ 8. At some point shortly after, Roe looked at Doe and exclaimed, “You're not K.P.!” Id. Doe immediately left the room. Soon thereafter, Roe exited K.P.'s apartment, visibly upset, and called the police. Id.

         At around 6:00 a.m., the Campus Police at UMCP began investigating the incident. Campus Police took oral and written statements from Roe regarding the encounter, and interviewed Doe, K.P, and A.S. ECF No. 38 at ¶ 9. Doe confirmed to the police his version of events regarding his sexual encounter with Roe. Doe added that he thought that Roe knew it was him and not K.P. because Roe would recognize Doe's voice, and when they were kissing, Roe would have seen and felt Doe's beard (K.P. is clean shaven). ECF No. 38 at ¶ 11. Doe also insisted to the police that he had not entered the room on a dare, and instead went to K.P.'s bedroom intending to sleep. Id. at ¶ 12.

         The Campus Police declined to bring criminal charges against Doe, but forwarded the written incident report to the University of Maryland Office of Civil Rights and Sexual Misconduct (OCRSM) on January 27, 2015. Id. at ¶ 12. Roe had also filed a complaint with OCRSM. Id. at ¶ 13. On January 29, OCRSM notified Doe in writing that UMCP was investigating a complaint “regarding an incident of sexual misconduct” that took place on December 14, 2014 at Frederick Hall, the location of K.P.'s apartment. Id. The notice also forewarned Doe of the range of possible disciplinary actions, including expulsion, if found in violation of UMCP's sexual misconduct policy. ECF Nos. 54-2 & 54-3. Attached to the letter was a separate “rights and responsibilities” notice, which listed the pertinent procedures and policies under which Doe was being investigated, including UMCP's recently adopted sexual misconduct policy known as “Appendix A.” See ECF No. 54-3. Appendix A, which took effect in the fall of 2014, details UMCP's procedures for investigating and reviewing a sexual misconduct complaint. See ECF No. 54-10.

         On February 13, 2015, Doe met with Defendant Josh Bronson (“Bronson”), the Assistant Director of OCRSM. Defendant Catherine Carroll (“Carroll”), OCRSM's director, had appointed Bronson to investigate Roe's complaint. ECF No. 38 at ¶ 14. Bronson interviewed Doe in a “prosecutorial” manner, “repeatedly challeng[ing] or attempt[ing] to contradict the version of events given by [Doe].” Id. at ¶ 25. Bronson also told Doe that he viewed his role as akin to that of a prosecutor. Id. Bronson did not record the interview, and although Doe provided Bronson with the contact information for K.P. and A.S., “Bronson never contacted the witnesses.” Id. at ¶ 16. Bronson's final Investigation Report attached to the Amended Complaint, however, notes that Bronson unsuccessfully attempted to contact several witnesses. Id. at ¶ 16; see also ECF Nos. 43-2 & 54-4.

         On April 24, Doe met with Bronson to review his Investigation Report. ECF No. 38 at ¶ 17. Although Doe was able to review the Investigation Report and take notes, he was not given a physical copy of the report. Bronson incorporated Doe's comments into the final version of the report submitted to OCRSM. Id.

         On May 5, Defendant Goodwin notified Doe via email that his Outcome Conference would take place at 2:00 p.m. the next day. Id. at ¶ 20. Doe was invited to attend, although his presence was not mandatory. ECF No. 54-5. The email further explained that at the Outcome Conference, Doe would receive the final Investigation Report and learn “the outcome of the investigation, any resulting disciplinary charges, and discuss pertinent procedures for final resolution.” ECF No. 38 at ¶ 20. Doe was reminded that he had the right to retain counsel or seek the assistance of the Undergraduate Student Legal Aid Office. Id.

         Doe was also advised to review an attached “Sexual Misconduct Policy and Code of Student Conduct” prior to the meeting. Id. at ¶ 21. The attached “Sexual Misconduct Policy and Code of Student Conduct, ” described a UMCP policy that was no longer in effect. More particularly, the attachment advised that Doe would be entitled to a hearing where he could “pose questions to the other party, ” and “question witnesses and present evidence.” Id. The old policy also noted that “the burden of proof is on the complainant, who must establish the responsibility of the student charged by a preponderance of the evidence standard.” Id. By contrast, Appendix A eliminated the right to cross examine the complainant and directly question witnesses. Id. at ¶ 23; see also ECF No. 54-10.

         Shortly after receiving Defendant Goodwin's May 5 email, Doe informed Defendant Goodwin that because of the short notice, he was unable to attend the scheduled Outcome Conference. ECF No. 38 at ¶ 22. On May 7, 2015, Doe received a “charging letter” for violation of UMCP's “Sexual Misconduct Policy.” Id.; see also ECF No. 54-8. The May 7 letter also included a link to UMCP's operative Sexual Misconduct Policy and “Sexual Misconduct Procedures, ” including Appendix A. Id. at ¶¶ 22-23. The charging letter informed Doe that a Standing Review Committee (SRC) meeting was scheduled for Wednesday, May 13 to review his alleged involvement in the December 14 incident. Id. at ¶ 24; see also ECF No. 54-8. The letter further informed Doe that he was welcome to attend the SRC meeting but his presence was not required, and explained that if he attended, Doe could listen to presentation of the final Investigation Report and ask questions of Bronson. See ECF No. 54-8. Doe was also reminded that Roe's presence was not compelled, and that even if she was present, Doe would not be permitted to ask her questions. Id.; see also ECF No. 38 at ¶ 23. Doe was not told that Goodwin would recommend to the SRC that Doe be expelled. ECF No. 38 at ¶¶ 30, 69.

         Doe requested to postpone the SRC meeting so he could “concentrate wholly on [his] academics, ” and have more time to prepare for the “trial.” Id. at ¶ 24; see also ECF No. 54-7. Goodwin denied the request, noting that the SRC was “not a hearing” and that there was “no process for postponement.” Id.; see also ECF No. 54-10.

         The SRC meeting took place on May 13, during which Doe was given the opportunity to pose questions to Bronson, as well as answer questions posed by SRC members. ECF No. 38 at ¶ 26; see also ECF No. 43-2. Roe was not present, although the SRC was given the written statements that she had submitted to the police and Bronson. See ECF No. 43-2. Doe questioned Bronson about Roe's differing written descriptions of the December 14th encounter. ECF No. 38 at ¶ 26; see also ECF Nos. 43-2; 54-8; 54-10. The SRC also allowed Doe to supplement the record with affidavits from A.S, K.P., and another individual, M.T., who was at K.P.'s apartment on December 14. Each affidavit stated that Bronson had not contacted them regarding his investigation. See Id. at ¶ 26; see also ECF Nos. 43-2 & 54-11.

         On May 20, 2015, Doe was informed in writing of the SRC's determination that the December 14 encounter violated UMCP's Sexual Misconduct Policy. Id. at ¶ 27; see also ECF No. 54-12. The SRC specifically determined that Doe committed sexual misconduct by engaging in sexual contact with Roe without making a “reasonable attempt to identify himself to [Roe, ] who had no reason to believe the person who began touching her was not the person she went to bed with.” Id. at ¶ 27. The SRC recommended Doe's expulsion from UMCP as sanction for his “gross violation of the sexual misconduct policy” and lack of “mitigating factors that would warrant a lesser sanction.” Id.; see also ECF No. 54-12. In setting forth its findings, the SRC effectively determined that Roe's version of events prevailed. ECF No. 54-12.

         Doe timely appealed the SRC's determination. ECF No. 38 at ¶ 28. Pursuant to UMCP's Code of Student Conduct, Doe challenged the SRC procedures, articulated new evidence which he believed was not considered, and highlighted that Defendant Bronson conducted his investigation in a biased and partisan manner. See ECF No. 54-13. Doe also noted that Roe had given conflicting statements about the December 14 events, and particularized those conflicts for the reviewing board. Id.

         Doe's appeal was denied on September 30, 2015. ECF No. 38 at ¶ 28. Doe was informed by Defendant Keira Martone, Assistant Director of Resident Life, that he was expelled from UMCP, effective immediately. Id.; see also ECF No. 54-14. Because Appendix A required UMCP's Vice President for Student Affairs, Defendant Linda Clement, and UMCP President, Defendant Wallace Loh, to approve all expulsions for sexual misconduct, Doe contacted Loh in a final attempt to avoid expulsion. ECF No. 38 at ¶ 28. Loh denied Doe's request to remain a student. Id.

         On September 30, 2016, Doe filed suit in this Court. ECF No. 1. On March 30, 2017, Doe was granted leave to amend his complaint. ECF No. 38. Defendants thereafter moved to dismiss, or in the alternative, for summary judgment, as to all counts. ECF No. 43. The issues were fully briefed and a hearing was held on March 23, 2018. See ECF Nos. 45-55.

         II. Standard of Review

         The Court treats Defendants' motion as one to dismiss all claims. When ruling on a motion to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must “accept the well-pled allegations of the complaint as true” and “construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). The court “may consider any written instrument attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as documents upon which the complaint relies and which are integral to the complaint.” Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir. 2005); see also Philips v. Pitt County Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Because the Amended Complaint incorporates attachments for which authenticity is undisputed, the Court will consider these attachments. The Court will also consider the transcript of the May 13, 2015 SRC meeting because the ...