Opinion

Doe v. Colgate University

Court
District Court, N.D. New York
Filed
Jun 23, 2020
Cited by
0 cases
Authority
More cited than 26.8%

The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

JOHN DOE,

Plaintiff,

v. 5:17-CV-1298

(FJS/ATB)

COLGATE UNIVERSITY,

Defendant.

APPEARANCES OF COUNSEL

NESENOFF & MILTENBERG, LLP ANDREW MILTENBERG, ESQ.

363 Seventh Avenue – 5th Floor STUART BERNSTEIN, ESQ.

New York, New York 10001 TARA J. DAVIS, ESQ.

Attorneys for Plaintiff NICHOLAS EVAN LEWIS, ESQ.

BOND, SCHOENECK & KING, PLLC LAURA H. HARSHBARGER, ESQ.

One Lincoln Center

Syracuse, New York 13202

Attorneys for Defendant

SCULLIN, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION1

In a Memorandum-Decision and Order dated April 30, 2020, this Court granted

Defendant’s motion for summary judgment with respect to Plaintiff’s third and fourth causes of

action, interpreted as violations of the breach of the covenant of good faith and fair dealing and

equitable estoppel, and granted Defendant’s motion to preclude Plaintiff’s expert, Dr. Stan V.

Smith, Ph.D., from testifying about hedonic damages. See Dkt. No. 58 (“April 30th Order”) at

20. The Court denied Defendant’s motion for summary judgment with respect to Plaintiff’s

1 The Court presumes that the parties are familiar with the facts of the case as described

in its April 30th Order. See Dkt. No. 58 at 2-5.

first cause of action for violation of Title IX of 20 U.S.C. § 1681 et seq., under the theories of

erroneous outcome and selective enforcement, and parallel fifth cause of action for violations of

the New York States Human Rights Law. See id. The Court also denied Defendant’s motion

for summary judgment with respect to Plaintiff’s second cause of action for breach of contract.

See id.

Pending before the Court is Defendant’s motion for reconsideration, in which Defendant

requests that the Court reconsider its denial of summary judgment with respect to Plaintiff’s

first, second, and fifth causes of action. See Dkt. No. 59.

II. DISCUSSION

A. Legal standard governing motions for reconsideration

“In this district, reconsideration of an order entered by the Court is appropriate upon a

showing of ‘(1) an intervening change in controlling law, (2) the availability of new evidence

not previously available, or (3) the need to correct a clear error of law or prevent manifest

injustice.’” Agee v. Mitchell, No. 9:19-CV-0057 (BKS/ATB), 2019 U.S. Dist. LEXIS 214930,

*2 (Dec. 13, 2019) (quoting In re C-TC 9th Ave. P’ship, 182 B.R. 1, 3 (N.D.N.Y. 1995)) (other

citations omitted). “To qualify for reconsideration, ‘[t]he moving party [must] point to

controlling decisions or data that the court overlooked – matters, in other words, that might

reasonably be expected to alter the conclusion reached by the court.’” Id. at *3 (quoting

Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). “Motions for reconsideration

are not vehicles in which a party may get two bites at the apple, and any litigant considering

bringing a motion for reconsideration must evaluate whether what may seem to be a clear error

of law is in fact simply a point of disagreement between the Court and the litigant.” In re C-TC

9th Ave. P’ship, 182 B.R. 1, 3 (N.D.N.Y. 1995) (citation omitted).

B. Plaintiff’s gender bias claims

In support of its motion, Defendant argues that the Court committed clear error in

finding that Plaintiff had raised an issue of fact about whether his investigation, hearing, and

expulsion were the result of gender bias. See generally Dkt. No. 59-2, Def’s Memorandum in

Support, at 6-14. However, the Court finds that Defendant does not meet the “strict and

demanding” standard for reconsideration set out above. See Major v. Lamanna, No. 9:18-CV-

0418 (MAD/DEP), 2019 U.S. Dist. LEXIS 77582, *9 (N.D.N.Y. May 8, 2019). Defendant has

not pointed to any legal or factual material that the Court overlooked. See id. Rather, in

making its motion, Defendant seeks to re-litigate whether a factfinder could reasonably find that

gender bias led to the Hearing Panel’s finding Plaintiff responsible for non-consensual sexual

intercourse and his ultimate expulsion. Simply because Defendant disagrees with the Court’s

finding does not mean that the Court committed clear error or that its finding will create a

manifest injustice.

In his complaint, Plaintiff alleged that Defendant violated his rights under Title IX and

the New York State Human Rights Law by wrongly finding that he had committed the offense

(“erroneous outcome theory”) and for penalizing Plaintiff more severely than it would have

penalized a female for a comparable offense (“selective enforcement theory”). See Dkt. No. 58

at 6; see also Dkt. No. 1, Compl., at ¶¶ 5-7. To succeed under an “erroneous outcome” theory

at the summary judgment stage, a plaintiff “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 Univ., 760 F. App’x 22, 30

(2d Cir. 2019) (summary order), cert. denied, 139 S. Ct. 2765 (2019) (quoting [Yusuf v. Vassar

Coll., 35 F.3d 709, 715 (2d Cir. 1994)]).

In its April 30th Order, the Court found that Plaintiff had raised an issue of fact with

regard to his Title IX claim based on the theory of erroneous outcome because “a reasonable

factfinder could find that Brogan was biased against Plaintiff when she entangled herself in

Dougherty’s criminal investigation, failed to investigate inconsistencies in Roe’s account, and

did not question Roe about Plaintiff’s potentially accurate account of the incident.” See Dkt.

No. 58 at 10. Here, Defendant argues, Brogan’s conduct in investigating Roe’s claims and her

interactions with Dougherty were compliant with Defendant’s protocol; and, thus, they could

not lead to an inference of gender bias. See generally Dkt. No. 59-2 at 6-12. Defendant does

not argue that the Court applied the wrong law; it simply disagrees with the Court’s findings

about what a factfinder could reasonably believe.

As Plaintiff correctly notes, it is up to the factfinder – not the Court at summary

judgment – to assess Brogan’s credibility to ultimately determine whether she acted with

gender bias in investigating Plaintiff. See generally Dkt. No. 60, Pl’s Memorandum in

Response, at 4, 6. Plaintiff alleged numerous facts that called Brogan’s supposedly impartial

investigation into question, which the Court thoroughly discussed in its April 30th Order. See

Dkt. No. 58 at 6-10. Looking at the totality of the facts and circumstances, Plaintiff plausibly

established a causal connection between gender bias and the outcome of his disciplinary

proceeding so that a factfinder could find in his favor. See Prasad v. Cornell Univ., No. 5:15-

CV-322, 2016 U.S. Dist. LEXIS 161297, *56 (N.D.N.Y. Feb. 24, 2016). Thus, the Court

denies Defendant’s motion for reconsideration with respect to Plaintiff’s Title IX claim based

on the theory of erroneous outcome.

Additionally, “‘[t]o support a claim of selective enforcement, [a male plaintiff] must

demonstrate that a female was in circumstances sufficiently similar to his own and was treated

more favorably by the University.’” Yu v. Vassar Coll., 97 F. Supp. 3d 448, 480 (S.D.N.Y.

2015) (quotation omitted). With regard to this claim, Plaintiff argued that a female respondent

was a direct comparator because both had been found responsible for “Sexual Assault” under

the Equity Grievance Policy’s (“EGP”) definition, but Plaintiff was expelled, and the female

respondent was suspended for two years. See Dkt. No. 58 at 13. Thus, the Court found that

“Plaintiff ha[d] raised a genuine issue of material fact as to whether Defendant treated female

students who were accused of sexual assault more favorably than male students under similar

circumstances[.]” Id.

Defendant now claims that the Court’s finding would amount to a manifest injustice to

penalize all forms of sexual assault equally instead of punishing penetrative offenses more

severely than non-penetrative offenses. See Dkt. No. 59-2 at 60. However, this argument

interprets the Court’s holding too broadly. The Court did not find that all students who commit

any form of sexual assault should be expelled. The Court merely found that Plaintiff had

asserted sufficient facts to raise a question about whether a female student would receive the

same punishment as Plaintiff, a male student, for comparable conduct.

Those facts include that Dr. Mark Thompson, who served on Plaintiff’s first EGP

Appeal Panel, specifically stated that “[a] finding of responsibility for sexual assault is a

significant offense” and one that “warranted separation from the institution.” See Dkt. No. 58

at 12 (quoting Dkt. No. 55-21, Thompson Dep., at 39). Yet, Plaintiff has shown that a female

respondent who was found responsible for sexual harassment and non-consensual sexual

contact – considered “sexual assault” under the EGP’s definition – did not warrant permanent

separation from the institution. See Dkt. No. 44-9, Ex. C, Sexual Misconduct R., at 46.

Furthermore, as Plaintiff notes, the Hearing Outcome Letter indicated that Plaintiff’s expulsion

was warranted, in part, due to “identical sanctions in other EGP cases involving nonconsensual

sexual intercourse consisting of penile vaginal penetration[,]” a violation of which a female

could never be found responsible. See Dkt. No. 60 at 16 (quoting Dkt. No. 55-5, Ex. D,

Hearing Outcome Letter, at 5).

This finding does not amount to a manifest injustice. Plaintiff has pointed to evidence

that Defendant may not have punished a similarly situated female to the same extent that it

punished Plaintiff for comparable conduct. Thus, the Court simply held that a factfinder could

find that Defendant discriminated against Plaintiff—one of its male students—because of his

gender, in violation of Title IX. Accordingly, the Court denies Defendant’s motion for

reconsideration on this issue.

C. Plaintiff’s breach of contract claim

In its April 30th Order, the Court denied Defendant’s motion for summary judgment

with regard to Plaintiff’s fifth cause of action for breach of contract having found that “there are

genuine disputes of material fact as to whether Defendant acted appropriately and substantially

complied with its contractual promises in investigating, adjudicating, and sanctioning

Plaintiff…” See Dkt. No. 58 at 15. Specifically, the Court noted that Defendant had

contractually promised its students “the right to be free from disciplinary sanction except by

due process, with avenues of resource available when a student claims to have been subjected to

prejudicial, discriminatory, or capricious treatment.” Id. at 14 (quoting Dkt. No. 55, Pl’s

Memorandum in Response to Def’s Mot. Summ. J., at 30-31). Furthermore, as Plaintiff notes,

the Statement of Rights for All Students guarantees each student the right to “participate in a

process that is fair, impartial and provides adequate notice and meaningful opportunity to be

heard.” See Dkt. No. 60 at 18 (quoting Dkt. No. 55-11, Ex. J, EGP, at § IX).

Defendant asks the Court to reconsider its finding, arguing that Plaintiff’s breach of

contract claim cannot be based on the fact that Defendant’s employees acted arbitrarily or that

Brogan was not impartial in conducting her investigation. See Dkt. No. 59-2 at 15. For

support, Defendant relies on caselaw stating, “’[t]o the extent [the p]laintiff intends his breach

of contract claim to be a reexamination of the result or penalty of his disciplinary hearing

because [the defendant] acted arbitrarily during the proceeding …’” a New York Civil Practice

Law and Rules Article 78 proceeding, not a breach of contract claim, is appropriate. See Dkt.

No. 59-2 at 15 (quoting Prasad, 2016 U.S. Dist. LEXIS 161297, at *64). However, the Prasad

court noted immediately thereafter, “[t]o the extent [the p]laintiff intends his breach of contract

claim to be for the recovery of monetary damages because a specific agreement was breached,

repleading may be allowed.” Prasad, 2016 U.S. Dist. LEXIS 161297, at *64 (footnote

omitted). In this case, Plaintiff does not ask the Court to reexamine the result or penalty of his

disciplinary hearing because Defendant allegedly acted arbitrarily during the proceeding.

Instead, “on the second cause of action for breach of contract,” Plaintiff requests “a judgment

awarding [him] damages in an amount to be determined at trial, including, without limitation,

past and future economic losses, loss of educational and career opportunities, and loss of future

career prospects[.]” See Dkt. No. 1 at 51.

Defendant further argues that Plaintiff cannot show that it breached a “specific

agreement,” contending that the above-quoted Handbook provisions are “types of general

statements of policy which New York law dictates cannot form the basis of a viable contract

claim.” Noakes v. Syracuse Univ., 369 F. Supp. 3d 397, 419 (N.D.N.Y. 2019) (citing Gally v.

Columbia University, 22 F. Supp. 2d 199, 207 (S.D.N.Y. 1998); Nungesser v. Columbia Univ.,

244 F. Supp. 3d 345, 373 (S.D.N.Y. 2017)) (footnote omitted). The Court finds, however, that

Plaintiff clearly alleged specific breaches in Defendant’s investigating, adjudicating, and

sanctioning him in response to Roe’s claim. See Dkt. No. 60 at 18 (citing Dkt. No. 55-1, Ex. J,

at §§ I-III, V, IX; Statement of Rights for Respondents at § IX). For example, the EGP

guarantees that “any person assigned to a role pursuant to [the EGP who] is aware of any

relationship, fact, circumstance or occurrence that he or she believes creates or constitutes a

conflict of interest that would render him or her incapable of performing the role in an impartial

manner … shall identify the conflict of interest to the associate provost for equity and diversity

at the earliest practicable time…” See Dkt. No. 55-11, Ex. J, at § IX. Plaintiff has alleged

several facts about Brogan’s investigation that, when taken together, could lead a factfinder to

conclude that Brogan was incapable of performing the investigation in an impartial manner and

that she did not seek removal from the investigation. See generally Dkt. No. 1 at ¶¶ 148-170.

Thus, unlike the plaintiff in Noakes, Plaintiff’s breach of contract claim relies on specific

contractual promises with concrete evidence that could lead a reasonable factfinder to believe

that those promises had been breached.

Accordingly, the Court did not commit clear error in holding that a factfinder could find

that Defendant breached its contractual promises to Plaintiff; and, therefore, the Court denies

Defendant’s motion for reconsideration with respect to this claim.

III. CONCLUSION

After carefully considering the entire file in this matter, the parties’ submissions, and the

applicable law, and for the above-stated reasons, the Court hereby

ORDERS that Defendant’s motion for reconsideration, see Dkt. No. 59, is DENIED.

IT IS SO ORDERED.

Dated: June 23, 2020 °

Syracuse, New York

Freder&k J, @cullin, Jr.

Senior United States District Judge

-9-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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