# Doe v. Wentworth Institute of Technology, Inc.

> District Court, D. Massachusetts · June 3, 2022

URL: https://www.frixlaw.com/law-library/cases/10200295

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** June 3, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

JANE DOE, *
*
Plaintiff, *
*
v. * Civil Action No. 1:21-cv-10840-IT
*
WENTWORTH INSTITUTE OF *
TECHNOLOGY, INC, *
*
Defendant.

MEMORANDUM & ORDER

June 3, 2022
TALWANI, D.J.
Plaintiff, proceeding as Jane Doe, brings this action against Defendant Wentworth
Institute of Technology, Inc. (“Wentworth”) for violations of Title IX of the Education
Amendments of 1972 (“Title IX”) and breach of contract. Wentworth filed a Motion to Dismiss
[Doc. No. 15]. For the following reasons, the motion is GRANTED IN PART and DENIED IN
PART.
I. Factual Background
As alleged in the Complaint [Doc. No. 1], the facts are as follows.
A. Wentworth’s Sexual Misconduct Policies
Wentworth is a private institution of higher education in Boston, Massachusetts. Compl.
¶ 1 [Doc. No. 1]. During the period relevant to this matter, it received federal funding from the
Department of Education (“DOE”). Id. at ¶ 9. To receive those funds, Wentworth agreed to
operate its programs and activities in accordance with Title IX and Title IX regulations. Id.
Wentworth has a Sexual Misconduct and Sex-Based Discrimination Policy that sets forth
the university’s policies regarding sexual and gender-based misconduct. Id. at ¶ 15. For students
who make complaints of sexual discrimination or sexual assault, the policy affords:
a. Complainants and Respondents [] the right “to be treated equitably by the
University” which includes Wentworth “following a grievance process that
complies with this policy”;
b. The right to a fair, impartial proceeding that begins promptly;
c. The right to a resolution process that is consistent with the University’s policies,
transparent to the Complainant, and in which the burden of proof and of gathering
evidence rests with the University and not the parties;
d. The right to an Advisor of the Party’s choosing during the grievance process. If a
Party does not have an Advisor present at a Title-IX related hearing, the
University will provide without fee or charge, an Advisor of the University’s
choice; [and]
e. The right to an objective evaluation of all relevant evidence—including both
inculpatory and exculpatory evidence—and provide that credibility
determinations will not be based on a person’s status as a Complainant,
Respondent, or witness.
Id. The policy states that the Title IX coordinator will send a final investigative report no fewer
than ten business days prior to a hearing. Id. at ¶ 16.1

1 Wentworth refers the court to an untitled document which Wentworth identifies as its 2019-
2020 Code of Conduct. Def’s Mem. 3 & n.2 [Doc. No. 15-1]; Exhibit A [Doc. No. 15-2].
Wentworth asserts that the document may be considered on a motion to dismiss because the
Complaint [Doc. No. 1] references the Code of Conduct. It is not apparent, however, that the
document proffered by Wentworth is the policy referenced in the complaint, which primarily
refers to a “Sexual Misconduct and Sex-Based Discrimination Policy.” Accordingly, the court
treats the document as one outside of the pleadings.
On a motion to dismiss, if matters outside the pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary judgment. Fed. R. Civ. P. 12(d). Here, the
court excludes the outside material where a summary judgment motion would be premature and
Wentworth has not provided any authentication, such as by affidavit, that the untitled document
is in fact Wentworth’s 2019-2020 Code of Conduct or that it is Wentworth’s only relevant policy
for the applicable period.
During the hearing, each party’s advisor is responsible for conducting the cross-
examination of the other party and witnesses. Id. If a party does not have an advisor, the school
will appoint one for the sole purpose of conducting cross-examination. Id. Evidence regarding a
complainant’s prior sexual behavior or history must not be included in the investigative record or

during the hearing unless (1) it is offered to prove that someone other than the respondent
committed the conduct alleged or (2) if the evidence concerns specific incidents of the
complainant’s sexual history with the respondent, it is offered to prove consent. Id. Having heard
the evidence, the decisionmakers must use a preponderance of the evidence standard to
determine whether the alleged violation occurred. Id. The complainant and respondent will
simultaneously receive a written determination of responsibility, typically within five business
days of the hearing. Id. The statement should include (1) a statement of the allegations, (2) a
description of the procedural steps taken during the grievance process, (3) findings of fact
supporting the determination, (4) conclusions regarding the application of the policy to the facts,
(5) a statement and rationale for the result of each allegation, and (6) options for appeal. Id.

B. The Alleged Assault, Doe’s Reports of the Event, and Wentworth’s Initial Actions
Doe began her freshman year at Wentworth in the fall of 2019. Id. at ¶ 17. She alleges
that on the night of November 22, 2019, and into the next morning, a fellow student
(“respondent”) raped her in her dorm room while she was incapacitated by alcohol. Id. at ¶ 18.
When she awoke on November 23, she was extremely distraught and disclosed the assault to her
friend. Id. at ¶ 19.
The next day, November 24, Doe disclosed the rape to the coach of her sports team. Id. at
¶ 20. Doe also made a report to campus police officers Sergeant Dexter Francis and Patrol
Officer Robert Moran. Id. at ¶ 21. The same day, Doe went to the hospital for a medical
examination and sexual assault evidence collection kit. Id. at ¶ 23. Campus police concurrently
gathered evidence from Doe’s dorm room, such as clothing and bedsheets, and brought it to the
hospital. Id. at ¶ 24.
The coach reported the sexual assault allegations to Wentworth’s athletic director, who

made a report to Annamaria Wenner, the Dean of Students. Id. at ¶ 20. The campus police
officers also contacted Dean Wenner, and Sergeant Francis told her that Doe “had been
incapacitated and thus unable to give consent.” Id. at ¶ 22. Francis suggested issuing a no contact
order between Doe and the respondent, but Wenner said that she would do so only if Doe
requested it. Id.
The following day, November 25, Doe met with Dean Wenner and requested a no contact
order, which issued the same day. Id. at ¶ 25. During the meeting, Wenner did not explain in
detail Doe’s options under Title IX and the school’s policies. Id. at ¶ 26. Wenner also did not
submit a report to Beth Devonshire, the Title IX Coordinator. Id. Instead, Wenner placed the
burden on Doe to make a decision regarding how the complaint should be handled, even though

Wentworth’s policies allow for a formal investigative process without a complainant’s
involvement or consent. Id.
C. The Formal Complaint and Investigation
On December 12, 2019, after Doe’s mother contacted Dean Wenner about the alleged
assault, Wenner offered to put Doe in contact with Devonshire. Id. at ¶ 27. Doe met with
Devonshire on December 19, 2019, and elected to proceed with the formal investigative process
as set out in Wentworth’s policies. Id. at ¶ 28. The next day, Wentworth issued a notice of Doe’s
formal complaint to her and the respondent and purported to initiate the formal investigative
process. Id. at ¶ 31.
During December 2019 and January 2020, Doe became increasingly isolated from her
peers, began suffering from anxiety and depression, and moved to a different residence hall away
from the respondent. Id. at ¶¶ 30, 33. She struggled in her classes and stopped attending campus
events. Id. at ¶ 54. Although Devonshire reached out to Doe on a few occasions regarding the

investigation, Doe’s emotional state hindered her ability to communicate with Devonshire about
the assault and investigation. Id. at ¶ 33. Doe did not know who to turn to as a support person
and was not aware that the school policies afforded her the right to be appointed a support person
to help her through the investigative process. Id. at ¶ 33.
On January 10, 2020, Wentworth put the investigation on hold until further notice
because Doe could not actively participate in the investigation, even though Wentworth policy
allows for an investigation to proceed with or without the participation of the victim. Id. at ¶ 34.
The school reopened the investigation on January 31, 2020, but did not retain a third-party
investigator per school policy until February 12, 2020. Id. at ¶ 35. Interviews of witnesses took
place between February 25 and 27, 2020. Id. at ¶ 36. The respondent was not interviewed until

March 10, 2020, once he obtained counsel. Id. at ¶ 37. During the interview, the respondent
claimed that he and Doe had had consensual sex. Id. at ¶ 38. The investigators noted in their final
report, however, that the respondent “gave two versions [of his story] to investigators that
differed slightly.” Id.
Under Wentworth’s policy, information regarding a complainant’s prior sexual behavior
or history may not be included in the investigative record or the grievance hearing unless (1) it is
offered to prove that someone other than the respondent committed the alleged conduct or (2) if
the incidents of sexual behavior were with the respondent, it is offered to prove consent. Id. at
¶ 16. Despite this policy, Doe’s sexual history with others was repeatedly mentioned in the
investigative record. Id. at ¶ 48. The investigation included witnesses’ allegations that they
themselves had had sexual relationships with Doe and that she often regretted sexual encounters
after the fact. Id. at ¶¶ 51-52. The investigative record also reported that witnesses stated that
Doe had been dancing “provocatively” on the night of the incident. Id. at ¶ 52. No information

about the respondent’s sexual behavior and history was included in the school’s investigative
report. Id. at ¶ 50.
During Sergeant Francis’s interview, he told investigators that he had conducted
additional interviews with Doe and the respondent soon after the incident; however, complete
notes from those interviews were never provided to the investigators. Id. at ¶¶ 40-41. Francis
also told investigators that he did not have his file on the incident with him, but the investigators
did not request a follow-up interview with Francis in which he had access to his notes. Id. at
¶ 43. Francis indicated during his interview that there were possibly other people in the room
when the alleged rape occurred, but there was no additional inquiry into this claim. Id. at ¶ 44.
Francis also remarked that Officer Moran may have had additional information about Doe’s

sexual assault evidence collection exam, but the school investigators did not follow up on this
claim and apparently did not request the results of the exam. Id. at ¶ 45.
On April 21, 2020, after the investigation was complete, Devonshire notified Doe that the
hearing was scheduled for April 30, 2020. Id. at ¶ 55. Doe also received a copy of the final
investigative report. Id. On April 28, 2020, Doe was informed for the first time that she could
attend the hearing. Id. at ¶ 56. Devonshire asked Doe whether she had an advisor or support
person, and Doe replied that she did not. Id. at ¶ 58. Devonshire did not inform Doe that it was
Wentworth’s policy to appoint a support person free of charge. Id.
On April 30, 2020, the hearing was held over Zoom, during which the panel questioned a
small number of witnesses. Id. at ¶ 61. The next day, the panel concluded that the respondent
was not responsible for the sexual assault. Id. at ¶ 62. The panel did determine that sexual
intercourse took place between Doe and the respondent and that Doe was intoxicated, but it

concluded that it could not determine whether she was incapacitated. Id. at ¶¶ 63, 67. The panel
found that the information in the investigative record and hearing testimony “suggest that a
sober, reasonable person would not have thought that [Doe] was incapacitated.” Id. at ¶ 63. The
panel cited testimony that alleged that Doe and the respondent “engaged in a coherent
conversation about politics” prior to having sex, that Doe retrieved a condom prior to the
intercourse, and that Doe got up to close her door when other witnesses had opened it to check
on them. Id. However, many witnesses also testified that Doe was extremely intoxicated the
night of the alleged assault. Id. at ¶ 68. Witnesses reported that Doe had “kind of passed out,”
that she was “slurring her speech,” that, at one point, she was slumped over a chair,” and that the
respondent had carried her to the bathroom because she could not move. Id.

D. Continuing Harm
Doe alleges that the respondent continues to attend Wentworth and that she must actively
avoid him because each time she encounters him she is retraumatized. Id. at ¶ 70. This has
limited her ability to participate in class and in extra-curricular activities. Id. Doe also claims that
she continues to suffer from declining mental health arising from the incident and requires
treatment and therapy. Id. at ¶ 71.
II. Standard of Review
In evaluating a motion to dismiss for failure to state a claim, the court assumes “the truth
of all well-pleaded facts” and draws “all reasonable inferences in the plaintiff's favor.” Nisselson
v. Lernout, 469 F.3d 143, 150 (1st Cir. 2006). To survive dismissal, a complaint must contain
sufficient factual material to “state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). “While a complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations . . . [f]actual allegations must be enough to

raise a right to relief above the speculative level . . . .” Id. at 555 (internal citations omitted). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
III. Discussion
A. Title IX
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.”
20 U.S.C. § 1681. An individual has a private right of action against an educational institution

that violates the provisions of Title IX under several different theories. Franklin v. Gwinnet
Cnty. Pub. Sch., 503 U.S. 60, 76 (1992). Doe brings Title IX claims under two such theories:
deliberate indifference and erroneous outcome.
1. Deliberate Indifference
Title IX provides a private right of action “where the [federal] funding recipient acts with
deliberate indifference to known acts of harassment in its programs or activities.” Davis v.
Monroe Cnty. Bd. Of Educ., 526 U.S. 629, 633 (1999). To state a claim of deliberate
indifference, a plaintiff must plausibly allege that “[1] [a federally] funded recipient is [2]
deliberately indifferent to sexual harassment, [3] of which they have actual knowledge, [4] that is
so severe, pervasive, and objectively offensive that it can be said to deprive the [plaintiff] of
access to the educational opportunities or benefits provided by the school.” Id. at 650. A
defendant acts with deliberate indifference “to acts of student-on-student harassment only where
the [defendant’s] response to the harassment or lack thereof is clearly unreasonable in light of the

known circumstances.” Id. at 648. “[T]he deliberate indifference must, at a minimum, cause
students to undergo harassment or make them liable or vulnerable to it.” Id. at 645 (internal
quotations and alteration omitted).
The bar for a showing of deliberate indifference under Title IX is a high one.
Significantly, the Supreme Court has described deliberate indifference as “an official decision by
[the person with notice] not to remedy the violation.” Gebser v. Lago Vista Indep. Sch. Dist., 524
U.S. 274, 277 (1998). And the First Circuit has concluded that “Title IX does not require
educational institutions to take heroic measures, to perform flawless investigations, [or] to craft
perfect solutions.” Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 174 (1st Cir. 2007), rev’d
on other grounds, 555 U.S. 246 (2009). A school will not be held liable for deliberate

indifference if it takes “timely and reasonable” measures to end the harassment. Wills v. Brown
Univ., 184 F.3d 20, 26 (1st Cir. 1999).
In this case, Doe alleges that Wentworth violated her Title IX rights by responding with
deliberate indifference to her report of sexual assault. Specifically, she points to the facts that
Wentworth (1) waited three months to interview the respondent; (2) failed to conduct a complete
investigation and adequate follow-up; (3) failed to conduct an impartial investigation; (4)
considered Doe’s sexual history, contrary to its stated policies; (5) disregarded evidence of Doe’s
incapacitation; and (6) allowed the respondent to remain on campus without consequence,
causing Doe to be regularly retraumatized. Wentworth counters that its investigation was
reasonable where it (1) issued a no-contact order the day that Doe requested it; (2) placed the
investigation on hold after Doe failed to respond to outreach from the Title IX coordinator; (3)
reopened the investigation upon Doe’s request; (4) hired investigators to conduct numerous
additional interviews; and (5) held a hearing, at which Doe was able to testify.

As described in Doe’s Complaint [Doc. No. 1], Wentworth took action in response to her
allegations that ended the sexual harassment. Wentworth immediately issued the requested no
contact order at Doe’s request. Doe has made no allegations that respondent ever violated this
order. That Doe believes the subsequent investigation should have been conducted differently
does not amount to a claim of deliberate indifference. See Porto v. Town of Tewksbury, 488 F.3d
67, 73 (1st Cir. 2007) (“a claim that the school system could or should have done more is
insufficient to establish deliberate indifference”). Dismissal of the Title IX deliberate
indifference claim is therefore warranted.
2. Erroneous Outcome
Doe also brings a Title IX claim under an erroneous outcome theory. To state a claim of

an erroneous outcome, a plaintiff must allege (1) “particular facts sufficient to cast some
articulable doubt on the accuracy of the outcome of the disciplinary proceeding” and (2)
“particular circumstances suggesting that gender bias was a motivating factor behind the
erroneous finding.” Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994); see Doe v. Trs. of
Boston Coll., 892 F.3d 67, 90 (1st Cir. 2018) (citing, without adopting, the standard articulated in
Yusuf). As to the first prong, the pleading burden “is not heavy.” Yusuf, 35 F.3d at 715. For
example, a complaint may allege “particular evidentiary weaknesses behind the finding of an
offense such as a motive to lie on the part of a complainant or witnesses, particularized strengths
of the defense, or other reason to doubt the veracity of the charge” or a “particular procedural
flaws affecting the proof.” Id. Here, where Doe alleges, among other things, that Wentworth
delayed interviewing witnesses after giving respondent and others notice of her complaint, failed
to request the results of the hospital exam or the campus police’s investigative notes, and largely
discounted witness reports regarding her intoxication, she has satisfied the first prong.

The second prong poses a more difficult hurdle. The facts alleged must “tend to show that
there was a causal connection between the outcome of [the plaintiff’s] disciplinary proceedings
and gender bias.” Trs. of Bos. Coll., 892 F.3d at 91. Cognizable allegations of gender bias
typically include “statements by members of the disciplinary tribunal, statements by pertinent
university officials, or patterns of decision-making that also tend to show the influence of
gender.” Yusuf, 35 F.3d at 715.
Wentworth argues that Doe’s allegation that she “suffered an erroneous outcome in the
school’s adjudicatory process pertaining to her sexual assault complaint . . . based on her
gender,” Compl. ¶ 81 [Doc. No. 1], is conclusory. Doe responds by pointing to a number of
factual allegations that Doe contends support her claim that Wentworth engaged in a pattern of

conduct that disfavored her because she was a woman. The court agrees that the first allegation is
insufficient to state a claim and finds that most of the alleged facts identified by Doe amount to
no more than an allegation that the respondent was favored over the complainant, which alone is
gender neutral.
One allegation highlighted by Doe stands out, however, namely, that “[t]he Hearing
Panel decided to improperly review and consider rumors regarding the Plaintiff’s sexual history
(which the Title IX Coordinator allowed to be submitted to the Panel) in rendering their decision,
but did not do the same for the male Respondent.” Wentworth responds that to the extent that
Doe’s claim is based on witness statements that reference Doe’s past sexual activity, those
statements do not reflect conduct by Wentworth and cannot establish that Wentworth was
motivated by gender bias in rendering its decision. Doe’s complaint, however, is not that the
students made these statements but that the statements were included in Wentworth’s
Investigative Report. The court agrees that the inclusion of Doe’s sexual behavior with others—

when combined with the discounting of evidence of her incapacity—is sufficient to allow her to
move forward on her Title IX erroneous outcome.
B. Breach of Contract
Doe also brings a claim for breach of contract under state law. “The student-college
relationship is essentially contractual in nature.” Mangla v. Brown Univ., 135 F.3d 80, 83 (1st
Cir. 1998) (citing Russell v. Salve Regina College, 938 F.2d 315, 316 (1st Cir. 1991)). “The
terms of the contract may include statements provided in student manuals and registration
materials.” Id. When interpreting contracts between students and their academic institutions,
courts in Massachusetts “employ ‘the standard of reasonable expectation—what meaning the
party making the manifestation, the university, should reasonably expect the other party to give

it.’” Schaer v. Brandeis Univ., 432 Mass. 474, 478, 735 N.E.2d 373 (2000). Although
universities have “flexibility to adopt diverse approaches to student discipline matters that do not
meet federal due process requirements,” Doe v. Trustees of Bos. Coll., 942 F.3d 527, 535 (1st
Cir. 2019), they must meet the expectations that arise from the terms of the contract, id. at 533.
Doe alleges that Wentworth breached its contractual obligations under the Student Code
of Conduct and the Sexual Misconduct and Sex-Based Discrimination Policy by (1) failing to
conduct a prompt and impartial investigation; (2) failing to objectively evaluate the evidence
obtained during the investigation; (3) failing to gather and consider all the relevant evidence
during the investigative and adjudicatory process, (4) failing to use a preponderance of the
evidence standard in reaching its determination, (5) including improper information in the
investigative record, and (6) considering such improper information in the rendering of the
decision. Wentworth counters that Doe is citing from an “unidentified policy” that may not have
been in effect during the 2019-2020 academic year. But on a motion to dismiss, the court must

take Doe’s allegations as true. Where Doe has set forth the alleged terms of the contract between
Doe and Wentworth and made specific allegations regarding how Wentworth breached those
terms, her claim survives a motion to dismiss.
IV. Conclusion
For the foregoing reasons, Wentworth’s Motion to Dismiss [Doc. No. 15] is GRANTED
IN PART as to Count I (Title IX deliberate indifference) and DENIED IN PART as to Counts II
(Title IX erroneous outcome) and III (breach of contract).
IT IS SO ORDERED.
June 3, 2022 /s/ Indira Talwani
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10200295. Public record. Not legal advice.