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-