Doe v. State University of New York at Stony Brook

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JOHN DOE,

Plaintiff,

MEMORANDUM AND

- against - ORDER

19-CV-6039 (RRM) (RLM)

STATE UNIVERSITY OF NEW YORK AT STONY

BROOK, MATTY A. ORLICH, and KATHRYN N.

SANTIAGO,

Defendants.

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ROSLYNN R. MAUSKOPF, United States District Judge.

John Doe brings this action against the State University of New York at Stony Brook

(“SUNY”), as well as Director of the Office of Community Standards Matty A. Orlich and Title

IX Investigator Kathryn N. Santiago in their individual capacities, alleging, among other things,

violations of Title IX of the Educational Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et

seq., Title VI of the Civil Rights Act (“Title VI”), 42 U.S.C. §2000d et seq., and the Constitution,

stemming from a disciplinary action for alleged sexual misconduct. Defendants now move to

dismiss the Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of

Civil Procedure. (Notice of Mot. (Doc. No. 25).) For the reasons set forth below, Defendants’

motion is granted.

BACKGROUND

The following facts are taken from the Amended Complaint and are assumed to be true

for the purpose of this memorandum and order.

On or about April 14, 2016, Doe, an African-American man, was walking with his

roommate (“Roommate”), a white man, through SUNY’s campus on the way to their dormitory

when a female student approached them. (Am. Compl. (Doc. No. 20) ¶¶ 13–15.) The female

student, whom Doe did not know, stated that she liked Doe and would like to accompany him to

his dorm room. (Id. ¶ 15.) Doe agreed and the three of them returned together to Doe and

Roommate’s shared dorm room. (Id. ¶ 16.) Once in the dorm room, the female student engaged

in sexual contact with both Doe and Roommate. (Id. ¶ 17.) She did not object to the sexual

contact, but consented to it and participated willingly. (Id. ¶ 18.) At no point during this sexual

encounter did Doe penetrate her anus with his finger (or in any other manner). (Id. ¶ 19.)

Immediately following a sexual encounter with Doe, the female student went to the bathroom

with Roommate and, when she returned to the room, engaged in consensual oral sex with

Roommate. (Id. ¶ 20.) Witnesses who saw her leaving Doe’s dorm room reported that she did

not appear distraught or upset in any way. (Id. ¶ 21.)

On or about April 18, 2016, SUNY accused Doe of violating seven sections of SUNY’s

code of conduct in connection with allegedly sexually assaulting the female student during the

encounter in Doe’s dorm room, based on her allegations that the sexual acts that occurred that

night were non-consensual. (Id. ¶¶ 22, 24.) The seven alleged violations were as follows: “a)

Section III.A.1.a—Offense against Person (threatening, intimidating, bullying or abusive acts);

b) Section III.A.1.d—Interference (prevented person from leaving room); c) Section III.A.1.f—

Discrimination; d) Section III.A.9.a—Disruption of University Activities; e) Section

VII.C.5.a—Sexual Harassment (kissing); f) Section VII.C.5.b—Sexual Harassment (vaginal

intercourse); g) Section VII.C.5.c—Sexual Harassment (oral sex).” (Id. ¶ 23.) Roommate was

also accused of sexual assault by the female student. (Id. ¶ 25.)

Based on these allegations, Defendants sent Doe an email outlining his rights as a student

accused of sexual assault (as set forth in SUNY’s code of conduct) and banned Doe from

SUNY’s campus. (Id. ¶ 26.) During this time, Doe was still taking classes and preparing for

final exams, but once he was suspended, Doe was unable to continue attending classes or to take

his final exams. (Id. ¶¶ 27–28.) Doe withdrew from all of his classes for the spring 2016

semester. (Id. ¶ 29.)

Doe and his attorney met with university officials, including Kathryn Santiago, to make a

voluntary statement. (Id. ¶ 30.) At that time, Santiago served both as Title IX Investigator and

Deputy Title IX Coordinator. (Id. ¶ 34.) It was SUNY’s custom or practice to allow Santiago to

serve in both roles. (Id. ¶ 35.) In his statement, Doe stated that all sexual contact that he and the

female student engaged in was consensual. (Id. ¶ 31.) Doe also told Santiago that after he and

the female student had engaged in sexual conduct, Roommate and the female student had

engaged in consensual sexual conduct. (Id. ¶ 32.) In her report of Doe’s statement, “Santiago

erroneously stated that [Doe] reported that he ‘poked [her] butt hole with his finger (jokingly)

and said “is this the right hole” and she laughed’ while she performed oral sex on him.” (Id. ¶

35.) The female student did not accuse Doe of having poked her anus with his finger. (Id. ¶ 36.)

On or about July 6, 2016, Doe received formal charges, with a hearing date scheduled for

August 19, 2019. (Id. ¶ 37.) The hearing was held before a panel of administrators who had the

authority to make the final determination on the matter. (Id. ¶ 38.) Doe and his counsel were

present, as well as the female student and her advisor. (Id.) Neither Doe’s attorney nor

Roommate’s attorney were permitted to participate in the hearing. (Id. ¶ 39.) Doe was permitted

to submit a list of questions for the female student. (Id. ¶ 40.) The panel asked some of these

questions and reviewed some of the evidence. (Id.) Both Doe and Roommate invoked the Fifth

Amendment and refused to answer any questions. (Id. ¶ 41.) The issue of whether Doe had

poked the female student’s anus was not addressed during the hearing. (Id. ¶ 42.)

On or about September 2, 2016, Orlich executed a letter informing Doe that he had been

found responsible for just one violation of the code of conduct. A subsequent written decision,

however, found Doe responsible for three code of conduct violations: “a) Section VII.C.5.a—

Sexual Harassment: Kissing, Vaginal Intercourse, Oral Sex, Anal Sex; b) Section VII.C.5.b—

Non-Consensual Sexual Contact: Kissing, Vaginal Intercourse, Oral Sex, Anal Sex; c) Section

VII.C.5.c—Non-Consensual Sexual Intercourse and/or Penetration: Vaginal Intercourse, Oral

Sex, Anal Sex.” (Id. ¶¶ 43, 45.) As alleged, the findings of responsibility were premised solely

upon Doe’s statement that he “poked [her] butt hole with his finger,” even though the female

student never testified that Doe poked her anus or inserted his finger or anything else into her

anus. (Id. ¶¶ 46–47.) Even though the female student had testified that Roommate engaged in

anal sex with her, Roommate was found “not responsible” for any sexual assault or code of

conduct violation. (Id. ¶¶ 48–49.) Doe timely appealed the decision to SUNY’s internal

Appeals Board, which denied his appeal on or about January 13, 2017. (Id. ¶ 53.)

On or about May 8, 2017, Doe filed an Article 78 action against Defendants in the

Supreme Court of the State of New York, alleging that Defendants’ decision should be

overturned because it was not supported by substantial evidence. (Id. ¶ 59.) On or about March

27, 2019, the New York Supreme Court, Appellate Division, Second Department, annulled the

determination and vacated Doe’s suspension. (Id. ¶ 60.) In that decision (the “Article 78

Decision”), the Appellate Division held that the determination “was not supported by substantial

evidence,” “was based on no evidence,” and was “comprised of nothing more than surmise,

conjecture or speculation.” (Id. ¶ 61.) As a result of the Article 78 Decision, the record of the

alleged sexual assault will no longer appear on his transcript. (Id. ¶ 62.)

Prior to the misconduct allegations, Doe had been on track to graduate in the spring of

2017. (Id. ¶ 50.) However, Doe was suspended through the spring of 2017, totaling three

semesters when he was unable to complete coursework because of the allegations against him.

(Id. ¶ 51.) He was also unable to register at another college or university while the proceedings

were in progress. (Id. ¶ 52.) His suspension for sexual harassment and non-consensual sexual

contact was noted on his transcript and was part of his permanent school record. (Id. ¶ 54.) Doe

had already paid tuition for the spring 2016 semester and, by the time he withdrew, it was non-

refundable. (Id. ¶ 57.) He also lost financial aid due to his suspension. (Id. ¶ 58.)

Doe brings six causes of action in his Amended Complaint. First, Doe alleges that

SUNY unlawfully discriminated against Doe based on his sex in violation of Title IX by

suspending him for three semesters in an intentionally discriminatory manner because he was

male, on the basis of a “patently false claim that wholly favored the female accuser’s version of

events and damages [Doe].” (Id. ¶¶ 64–72.) Second, Doe alleges that SUNY unlawfully

discriminated against him based on his race in violation of Title VI by penalizing him, an

African-American man, for alleged anal contact but giving preferential treatment to his

Roommate and the female student, who actually engaged in anal sex and are both white. (Id. ¶¶

73–83.) Doe therefore asserts that his race was “an intentional and motivating factor for

Defendant’s decision to prosecute the proceeding and sanction Plaintiff.” (Am. Comp. ¶ 80.)

Doe brings his third cause of action against all Defendants pursuant to 42 U.S.C. § 1981, alleging

that all Defendants discriminated against him based on his race and in violation of his civil

rights. (Id. ¶¶ 84–95.) Specifically, Doe states that Santiago’s dual role as Title IX Investigator

and Deputy Title IX Coordinator created a conflict of interest, and “to the extent that Ms. Orlich

signed off on Ms. Santiago’s investigation and findings, she did so without adequate oversight,”

thereby denying Doe his contractual rights and benefits under SUNY’s University Student

Conduct Code. (Id.) Doe’s fourth and fifth causes of action are brought against all Defendants

pursuant to 42 U.S.C. § 1983, alleging that Doe endured both procedural and substantive due

process violations when he was suspended from campus and subjected to a “wholly arbitrary”

process with Santiago, who “could not be an independent investigator,” at the helm. (Id. ¶¶ 96–

112.) In his sixth cause of action, also brought pursuant to § 1983, Doe alleges that Defendants

committed an equal protection violation when they “unilaterally accused” him, because of his

race, of non-consensual contact with the female student’s anus while simultaneously electing not

to penalize Roommate, who is white, for anal sex with the female student. (Id. ¶¶ 113–21.)

The Instant Motion

Defendants now move to dismiss the Amended Complaint. Defendants assert that Doe’s

§§ 1981 and 1983 claims against SUNY should be dismissed for lack of subject matter

jurisdiction because neither statute provides a waiver of sovereign immunity as required under

the Eleventh Amendment. (Defs.’ Mem. (Doc. No. 25-1) at 24.) Moreover, because § 1983 is

the exclusive damages remedy for claims brought against state actors, Defendants argue that

Doe’s § 1981 action must be dismissed against Orlich and Santiago. (Id. at 25.)

Defendants further contend that Doe has failed to allege personal involvement of Orlich

or Santiago under § 1983, (id. at 25–26), and that Doe’s § 1983 procedural due process claim

fails because he has failed to allege procedural deficiencies in his disciplinary hearing. (Id. at

19–22.) Defendants state that even if Doe had managed to state a claim under § 1983 for

procedural due process or equal protection violations, Santiago and Orlich are entitled to

qualified immunity because the law regarding potential conflicts of interest is not clearly

established. (Id. at 27–30.)

Defendants argue that Doe’s Title IX claim should be dismissed for failure to plausibly

allege that the outcome of his disciplinary hearing was motivated by his gender. (Id. at 12–16.)

Doe’s conclusory allegation that the outcome of the disciplinary proceeding was motivated by

gender bias is insufficient to support a Title IX violation. (Id. at 13–16.) Finally, Defendants

argue that Doe’s Title VI claim and his equal protection and substantive due process allegations

under § 1983 should be dismissed for failure to allege that Defendants intentionally

discriminated against Doe on the basis of race. (Id. at 16–17.) Defendants append to their

motion a document Doe filed in his Article 78 action (“Exhibit 1”) (Doc. No. 25-3) which

purports to show that Doe did tell investigators that he had poked the female student’s anus with

his finger and made a joke, to dispute Doe’s apparent allegation that Defendants “manufactured”

the statement upon which the disciplinary determination was based. (Id. at 17–19.)

In his reply motion, Doe for the first time argues that SUNY was subject to significant

public pressure relating to their handling of women’s claims of sexual harassment and

misconduct, and that this public pressure, combined with Santiago’s dual role as Title IX

Investigator and Deputy Title IX Coordinator, provide sufficient basis to conclude that the

outcome of Doe’s disciplinary proceedings was the result of gender bias in violation of Title IX.

(Pl.’s Mem. (Doc. No. 26) at 10-17.) Doe also argues that Defendants are estopped from arguing

that the disciplinary hearing was proper due to the doctrine of res judicata. (Id. at 8.) Further,

Doe asserts that the “sine qua non of [Doe’s] Title VI, § 1981, and Equal Protection claim for

racial discrimination under the Fourteenth Amendment’s protection is that similarly situated

students outside of the protection of these statutes were treated differently.” (Id. at 17.) Doe

asserts that because Doe’s white roommate was not found responsible for sexual assault, but Doe

was, Doe has sufficiently alleged racial discrimination. (Id. at 18–21.) Doe argues, “Violating

impartiality parameters and pitting herself against [Doe] as the Accuser’s surrogate, Santiago did

what the Accuser herself failed to do–get her pound of flesh. Of course, it came from the Black

guy.” (Id. at 21.) Doe also asserts that Santiago’s use of Doe’s statement that he had poked the

female student’s anus – a statement Doe argues was “misused” to “remov[e] the Accuser’s

consent from the context” – was motivated by bad faith sufficient to support a procedural due

process claim under § 1983. (Id. at 21–23.) Confusingly, Doe also argues that Defendants

falsified evidence when they relied on this statement, even though Doe also admits that, as

demonstrated in Exhibit 1, Defendants “did not make up the sexual act, they just ignored its most

prescient element, which is key to nearly all Title IX determinations concerning sexual

allegations: that it was consensual.” (Id. at 26, 24.) Finally, Doe argues that Orlich and Santiago

are not entitled to qualified immunity for either Santiago’s dual roles or for acting to sanction

Doe for clearly consensual sexual activity that was not included in the female student’s

complaint. (Id. at 27–28.) To support this last contention, Doe cites the “unofficial 2020 Title

IX Regulations,” promulgated on May 6, 2020, which, though not in effect when Doe’s

disciplinary hearing took place, are “persuasive authority of the failings of the investigations and

adjudications used by Defendants.” (Id. at 29.)

In response, Defendants argue that because Doe failed to address whether the §§ 1981

and 1983 claims against SUNY are barred by sovereign immunity, Doe has abandoned these

claims. (Defs.’ Reply (Doc. 27) at 14.) Defendants assert that Doe has failed to allege a

procedural or substantive due process violation, or personal involvement on behalf of Orlich or

Santiago, and so the § 1983 claims must be dismissed. (Id. at 9–14.) Further, Defendants argue

that Doe has failed to plausibly allege that the outcome of his disciplinary proceedings was

motivated by his gender, and that the new arguments raised in his reply brief should not be

considered by this Court. (Id. at 6–8.) Finally, Defendants state that Doe has failed to plausibly

allege that the outcome of the proceeding was based on race, because by Doe’s own admission

he had admitted to sexual conduct in his voluntary statement that Roommate had not admitted to.

(Id. at 8–9.)

DISCUSSION

I. Rule 12(b)(1) Motion

“[A] district court may properly dismiss a case for lack of subject matter jurisdiction

under Rule 12(b)(1) if it lacks the statutory or constitutional power to adjudicate it.”

Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (internal

quotation marks omitted). A “plaintiff asserting subject matter jurisdiction has the burden of

proving by a preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d

110, 113 (2d Cir. 2000).

The Eleventh Amendment provides, “The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.

Const. amend. XI. The Eleventh Amendment bars suits in federal court for relief against a State

by a private citizen absent the State’s consent or a valid Congressional abrogation of immunity.

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989). Sections 1981 and 1983 provide no

such abrogation for suits against the State. Id. at 68–69 (“We find nothing substantial in the

legislative history that leads us to believe that Congress intended that the word ‘person’ in §

1983 included the States of the Union.”); Wang v. Office of Prof’l Med. Conduct, 354 F. App’x

459 (2d Cir. 2009) (finding sovereign immunity barred § 1981 claims against the states). New

York’s sovereign immunity extends to the State University of New York system. See Dube v.

State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990), cert. denied sub nom. Wharton v. Dube,

501 U.S. 1211 (1991)). Doe’s §§ 1981 and 1983 claims against SUNY must therefore be

dismissed.

II. Rule 12(b)(6) Motion

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move to dismiss

a cause of action that “fail[s] to state a claim upon which relief can be granted.” In evaluating a

Rule 12(b)(6) motion, the Court assumes the truth of the facts alleged, and draws all reasonable

inferences in the nonmovant’s favor. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).

Although all factual allegations contained in the complaint are assumed to be true, this tenet is

“inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In all cases a

plaintiff’s complaint must include “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Iqbal, 556 U.S. at 663 (citing Twombly,

550 U.S. at 570). When ruling on a motion to dismiss under Rule 12(b)(6), the Court may

consider the “facts stated on the face of the complaint and in documents appended to the

complaint or incorporated in the complaint by reference, as well as matters of which judicial

notice may be taken.” Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993).

a. § 1981 Claim

In instances where there is an alleged violation of § 1981 by a “state actor,” § 1983

provides the “exclusive federal damages remedy.” Whaley v. City U. of New York, 555 F. Supp.

2d 381, 400 (S.D.N.Y. 2008) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989)).

“Moreover, the holding in Jett has been interpreted to encompass not only governmental entities

but also individuals sued in their individual capacities who are ‘state actors.’” Roddini v. City

Univ. of N.Y., 02-CV-4640 (LAP), 2003 WL 435981, at *5 (S.D.N.Y. Feb. 21, 2003). “State

employment has generally been deemed sufficient to render the defendant a ‘state actor.’” Id. at

*5. Orlich and Santiago, as employees of SUNY and therefore state actors, must be sued under §

1983, not § 1981. Accordingly, Doe’s § 1981 claim against Orlich and Santiago is dismissed.

b. § 1983 Claims

“It is well settled that, in order to establish a defendant’s individual liability in a suit

brought under § 1983, a plaintiff must show … the defendant’s personal involvement in the

alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.

2013). In other words, “because vicarious liability is inapplicable to … § 1983 suits, a plaintiff

must plead that each … defendant, through the official’s own individual actions, has violated the

Constitution.” Iqbal, 556 U.S. at 676. For supervisory defendants, personal involvement may be

shown where:

(1) the defendant participated directly in the alleged constitutional violation, (2)

the defendant, after being informed of the violation through a report or appeal,

failed to remedy the wrong, (3) the defendant created a policy or custom under

which unconstitutional practices occurred, or allowed the continuance of such a

policy or custom, (4) the defendant was grossly negligent in supervising

subordinates who committed the wrongful acts, or (5) the defendant exhibited

deliberate indifference to the rights of [plaintiff] by failing to act on information

indicating that unconstitutional acts were occurring.

Grullon, 720 F. 3d at 139.

Doe repeatedly asserts in his Amended Complaint that Orlich sent a letter to Doe

informing him that he had been found responsible for sexual misconduct, and, “[t]o the extent

that Ms. Orlich ‘signed off’ on Ms. Santiago’s investigation and findings, she did so without

adequate oversight, pursuant to SUNY’s custom or practice, which was particularly damaging

given the conflict of interest and potential for error if not abuse.” (Am. Compl. ¶¶ 85, 97, 105.)

These allegations do not satisfy any of the five prongs enumerated above. Though Doe asserts

that if Orlich had signed off on Santiago’s investigation or findings she would have done so as

part of a custom or practice of inadequate oversight, Doe does not actually allege that Orlich

signed off on Santiago’s investigation or findings. Mere speculation as to whether Orlich signed

off on Santiago’s report is not sufficient to establish Orlich’s personal involvement in an alleged

constitutional violation. Further, Doe does not state any facts to plausibly show that Orlich was

grossly negligent or had participated directly in a constitutional violation when she sent him a

letter informing him of the results of his disciplinary hearing. Doe’s § 1983 claims against

Orlich are therefore dismissed for failure to allege personal involvement.

Doe’s allegations against Santiago are even less clear. Doe asserts that Santiago’s dual

role as Title IX Investigator and Deputy Title IX Coordinator created a conflict of interest, but

fails to explain what that conflict of interest was or how it actually shaped the disciplinary

proceedings or the outcome, arguing only that Santiago’s dual role introduced “potential for error

if not abuse.” Moreover, though Doe states that “Defendants proffered evidence” against him

that was “comprised of surmise, speculation, and conjecture,” he does not identify what that

speculative evidence was, how this evidence constitutes a Constitutional violation, or what

Santiago specifically did in furtherance of that violation. Doe cites to the Article 78 Decision to

show that Doe’s disciplinary determination was based on “no evidence” and “comprised of

nothing more than surmise, conjecture or speculation,” but it does not follow that the evidence

that Santiago provided in her report was conjectural.

Though Doe appears to assert in his Amended Complaint that Santiago fabricated

evidence by “erroneously” including a statement he allegedly made where he admitted to poking

the female student’s anus with his finger, Doe seems to disclaim this assertion in his subsequent

briefing. In his discussion of whether to consider Defendants’ Exhibit 1, he does not in fact

allege that Santiago fabricated that statement when she included it in her report. Rather, Doe

argues that Santiago’s report “misused” his statement by “removing consent from the context,”

and this misconstrued statement was the basis of the panel’s determination that he had committed

code of conduct violations. (Pl.’s Mem. at 21–23.) Doe fails to explain in his Amended

Complaint and subsequent briefing how Santiago misused or misconstrued his statement by

including it, apparently in full, in her report. Further, if, as he seems to argue, the statement was

misconstrued during the disciplinary proceedings, Doe fails to explain how this manipulation of

his statement is attributable to Santiago.

None of these allegations – that Santiago served in two roles simultaneously, that she

included a statement in her report that may have been taken out of context, and that the

disciplinary outcome was conjectural and based on a lack of evidence – explain how Santiago

was personally involved in any alleged constitutional violation. Doe’s § 1983 claims against

Santiago are therefore dismissed for failure to allege personal involvement.

c. Title IX Claim

Title IX provides, in relevant part, “No 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(a). A plaintiff asserting a Title IX erroneous disciplinary outcome claim must

demonstrate (1) “articulable doubt [as to] the accuracy of the outcome of the disciplinary

proceeding,” and (2) that “gender bias was a motivating factor behind the erroneous finding.”

Doe v. Colgate University, 760 Fed. App’x 22, 30 (2d Cir. 2019). In the context of an erroneous

outcome claim, allegations that a disciplinary process favored a female accuser “do not

necessarily relate to bias on account of sex.” Doe v. Columbia, 831 F.3d 46, 57 (2d Cir. 2016).

Additionally, “allegations of a procedurally or otherwise flawed proceeding that has led to an

adverse and erroneous outcome combined with a conclusory allegation of gender discrimination

is not sufficient to survive a motion to dismiss …. A plaintiff must thus also allege 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).

Here, it is undisputed that Doe has pled sufficient facts to raise an articulable doubt

regarding the accuracy of his disciplinary outcome. Doe has already prevailed in his Article 78

action, which annulled the disciplinary determination and vacated his suspension based on a lack

of evidence. However, Doe fails to allege sufficient facts to raise an inference of gender bias as

a motivating factor behind the disciplinary decision. Doe’s Amended Complaint contains the

conclusory allegation that Doe, a male student, was disadvantaged in the disciplinary

proceedings because he was male, but is otherwise devoid of facts that would tend to support this

claim. Because Doe’s Title IX claim rests solely on a conclusory allegation of gender bias or sex

discrimination, it cannot survive a motion to dismiss.

In his response brief to Defendants’ motion to dismiss, Doe asserts for the first time that

SUNY was facing campus unrest and government scrutiny regarding sexual assault on campus

and was under significant public pressure to appear sympathetic to female accusers. These

assertions were not contained in the Amended Complaint and so the Court cannot consider them.

Rodriguez v. Holder, 11-CV-2124, 2014 WL 6983401 at *3 (E.D.N.Y. Dec. 10, 2014) (“The

Court cannot consider allegations that a petitioner raises for the first time in [his] brief opposing

a motion to dismiss.”); see also, e.g., K.D. ex rel. Duncan v. White Plains Sch. Dist., 921 F.

Supp. 2d 197, 209 n.8 (S.D.N.Y. 2013) (“Plaintiff[] cannot amend [his] complaint by asserting

new facts or theories for the first time in opposition to Defendants’ motion to dismiss.”).

d. Title VI Claim

Title VI provides, in relevant part, that “no person in the United States shall, on the

ground of race, color, or national origin, be excluded from participation in, be denied the benefits

of, or be subjected to discrimination under any program or activity receiving Federal financial

assistance.” 42 U.S.C. § 2000d. A plaintiff asserting a claim pursuant to Title VI must plausibly

allege “that the defendant discriminated against him on the basis of race, that that discrimination

was intentional, and that the discrimination was a substantial or motivating factor for the

defendant’s actions.” Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir. 2001) (internal citations

and quotation marks omitted).

Doe asserts in his Amended Complaint that Roommate, who is white, was the only

person accused of non-consensual anal contact with the female student, but that it was Doe, who

is black, who was punished for this contact. Doe also asserts that the female student, who is also

white, received preferential treatment during the disciplinary proceedings. Doe therefore asserts

that his race was “an intentional and motivating factor for Defendant’s decision to prosecute the

proceeding and sanction Plaintiff.” (Am. Comp. ¶ 80.) In his response brief, Doe further asserts

that he faced racial discrimination when “Defendants unilaterally invented an accusation of a

non-consensual sexual act that the accuser herself never alleged – at least not against Plaintiff,”

(Resp. at 8.); that because he is black he is “particularly vulnerable to false accusations,” (id. at

20); and that Santiago, by “[v]iolating impartiality parameters and pitting herself against Plaintiff

as the Accuser’s surrogate, … did what the Accuser herself failed to do–get her pound of flesh.

Of course, it came from the Black guy,” (id. at 21.)

These inflammatory and conclusory allegations are not sufficient to establish intentional

discrimination. Doe alleges no facts to support his assertion that Defendants sought to punish

him because he is black, besides the facts that he is black and that the other two students are not.

Further, though Doe appears to argue that he took the blame for Roommate when he was found

responsible for code of conduct violations stemming from allegedly non-consensual anal contact,

Doe also gave a statement to Santiago in which he admitted to anal contact. Though Doe argues

that this statement was taken out of context and used against him, Doe alleges no facts in his

Amended Complaint to support his argument that this statement was taken out of context or used

against him because of his race. Accordingly, Doe’s Title VI claim must be dismissed.

CONCLUSION

For the reasons set forth above, Defendants’ motion to dismiss is granted. The Clerk of

Court is respectfully directed to enter judgment in favor of Defendants and to close this case.

SO ORDERED.

Dated: Brooklyn, New York Roslynn R. Mauskopf

March 30, 2021 _______________________________

ROSLYNN R. MAUSKOPF

United States District Judge