Doe v. Oberlin College

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN DOE, ) Case No. 1:20-cv-0669

)

Plaintiff, )

) JUDGE DAN AARON POLSTER

v. )

)

OBERLIN COLLEGE, et al., ) OPINION AND ORDER

)

Defendant. )

)

I. Introduction

This case involves a sexual misconduct investigation by Defendants resulting in

Plaintiff’s favor. Before Defendants’ investigation was concluded, Plaintiff filed a lawsuit

against Oberlin College, its Board of Trustees and its Title IX Director, Rebecca Mosely.

Despite the subsequent favorable outcome, Plaintiff continues to pursue his claims for Title IX

selective enforcement, breach of contract and negligence against Defendants. Because his

complaint states plausible claims for a Title IX selective enforcement violation and breach of

contract, the Court DENIES Defendants’ motion for judgment on the pleadings on those claims.

However, Defendants are entitled to judgment on Plaintiff’s remaining claims. As further

explained below, the Court GRANTS, in part, and DENIES, in part, Defendants’ motion for

judgment on the pleadings. ECF Doc. 18.

II. Statement of Facts

This case involves a female college student (“Roe”) reporting Plaintiff’s alleged sexual

misconduct to her volleyball coach in December 2019. In February 2020, after classes had

resumed for the spring 2020 term, Oberlin notified Plaintiff of Roe’s allegations against him. In

response, Plaintiff hired a private investigator and complained that Roe was defaming his

character to other students. Initially, Roe had requested an informal review process but,

sometime after being questioned by Plaintiff’s investigator, Roe requested Oberlin conduct a

formal review.

In March 2020, Plaintiff filed this lawsuit. After completing the investigation of Roe’s

complaint in July 2020, Oberlin found that Plaintiff had not violated the school’s Sexual

Misconduct Policy. Accordingly, Plaintiff’s college transcript does not show any record of

Roe’s allegations or the school’s investigation. Nonetheless, Plaintiff continues to pursue his

Title IX selective enforcement claim against Defendants. He also argues that he has asserted a

valid breach of contract claim and negligence claim against them.

III. Procedural History

Defendants removed this lawsuit from state court on March 30, 2020. ECF Doc. 1.

Plaintiff’s lengthy verified complaint stated seven causes of action: 1) violation of Title IX –

erroneous outcome against Oberlin; 2) violation of Title IX – selective enforcement against

Oberlin College; 3) § 1983 claim for procedural due process against all defendants; 4) breach of

contract; 5) breach of the covenant of good faith and fair dealing; 6) negligence; and 7)

promissory estoppel. ECF Doc. 1. At the time Plaintiff filed his complaint, Oberlin’s

investigation was ongoing. Plaintiff was granted leave to file an amended complaint on April 2,

2020. See ECF Doc. 5-1.

On April 7, 2020, the Court dismissed Plaintiff’s federal due process claim (Third Cause

of Action) on the merits and dismissed Plaintiff’s remaining claims without prejudice because

they were premature. ECF Doc. 6. Plaintiff appealed. On March 9, 2023, the Sixth Circuit

Court of Appeals affirmed the dismissal of Plaintiff’s due process claim and also dismissed, as

moot, his Title IX claim for erroneous outcome. The Sixth Circuit remanded Plaintiff’s

remaining five causes of action to this Court. ECF Doc. 14.

On April 6, 2023, Defendants moved for judgment on the pleadings on Plaintiff’s five

remaining claims. ECF Doc. 18. Defendants also argue that Plaintiff cannot state a valid claim

against its “Board of Trustees” because this is not a legal entity that can be sued. Plaintiff filed a

brief in opposition on May 8, 2023, but he only responded on three causes of action — his claim

for selective enforcement under Title IX, his breach of contract claim, and his negligence claim.

ECF Doc. 21. Thus, it appears he is abandoning his claims for breach of a covenant for good

faith and fair dealing (fifth cause of action) and promissory estoppel (seventh cause of action).

Plaintiff also failed to respond to Defendants’ argument that the Board of Trustees cannot be

sued as a legal entity. Defendants filed a reply on May 22, 2023. ECF Doc. 22.

IV. Standard of Review

The same standard for deciding a Rule 12(b)(6) motion to dismiss applies to a Rule 12(c)

motion for judgment on the pleadings. Roth v. Guzman, 650 F.3d 603, 605 (6th Cir. 2011). A

12(b)(6) motion tests the sufficiency of the complaint. Gardner v. Quicken Loans, Inc., 567 F.

App’x. 362, 364 (6th Cir. 2014). To survive a Rule 12(b)(6) motion to dismiss, “a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). A claim is plausible on its face “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 678 (citing Twombly, 550 U.S. at 556). “All well-

pleaded material allegations of the pleadings of the opposing party must be taken as true.”

JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal quotation

marks and citation omitted).

V. Law & Analysis

A. Title IX – Selective Enforcement Claim

To state a Title IX selective enforcement claim, Plaintiff must allege that he was in a

“similar situation” as another student, but was treated differently than that student because of his

sex. Mallory v. Ohio University, 76 F. App’x. 634, 641 (6th Cir. 2003). To establish that the

two parties are similarly situated, the parties must show that relevant aspects of the situation are

“nearly identical” to each other. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th

Cir. 1994); Doe v. Oberlin College, 60 F.4th 345, 356 (6th Cir. 2023). In other words, to

establish that the two students are similarly situated, Plaintiff must show that relevant aspects of

his situation are nearly identical to that of another student.

Plaintiff’s complaint alleges that, because he and Roe were both intoxicated at the time of

the incident, Oberlin should have initiated proceedings under its Sexual Misconduct Policy

against both of them. ECF Doc. 5-1, ¶ 281. Plaintiff alleges that Defendants failed to do so

because of his gender. Id. In Doe v. Miami University, the Sixth Circuit held that the defendant

university had an obligation to conduct a Title IX investigation of both parties because they were

both intoxicated at the time of the alleged incident. 882 F.3d 579, 591-593 (6th Cir. 2018).

Subsequently, a district court applying Miami University held that that a university’s failure to

investigate both intoxicated parties under Title IX could potentially support a selective

enforcement claim. Gischel v. University of Cincinnati, 2018 WL 9944971, at *2 (S.D. Ohio

2018). However, in Miami University the plaintiff had asserted a deliberate indifference claim,

not one for selective enforcement. Miami University, 882 F.3d at 593. Thus, the Gischel court’s

application of Miami University may not even apply to Plaintiff’s claim.

In Mallory v. Ohio University, a case involving a selective enforcement claim, the

plaintiff argued that, because both he and his accuser were intoxicated, they were similarly

situated. Mallory v. Ohio University, 76 F. App’x 634, 640-641 (6th Cir. 2003). The court

disagreed because plaintiff’s accuser had been far more intoxicated than plaintiff. Due to their

different levels of intoxication, the court found the parties were not similarly situated for

purposes of a selective enforcement claim under Title IX. Id.

Here, Plaintiff’s amended complaint does not allege he was so drunk he could not

remember what happened between him and Roe. Conversely, Roe has alleged she is unable to

fully recall the events leading to her sexual misconduct claim. ECF Doc. 5-1, ¶¶ 161-163, 193,

196. Consequently, Doe’s case is likely more similar to Mallory than Gischel.

However, at this stage, the Court need only determine whether Plaintiff has sufficiently

alleged a plausible claim after assuming all the facts in the amended complaint are true. Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)); JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007). And

Plaintiff has met this relatively low burden. Plaintiff’s Complaint alleges that Roe believed

Plaintiff was also intoxicated. ECF Doc. 5-1, ¶¶ 193–195. If Plaintiff can show that he and Roe

were equally intoxicated and that he was treated differently from Roe based solely on his gender,

his claim will most likely survive summary judgment. Pierce, 40 F.3d at 802. Because Plaintiff

has stated a plausible claim for selective enforcement of Oberlin’s Sexual Misconduct Policy

under Title IX, Defendants’ 12(c) motion must be denied on this claim.

In addition, Plaintiff alleges his retaliation claim against Roe was not investigated due to

his gender, constituting an additional occurrence of selective enforcement. ECF Doc. 5-1, ¶ 282.

This part of Plaintiff’s selective enforcement claim is subject to the same standard of review—

Plaintiff must allege he was treated differently than a similarly situated female on account of his

gender. Mallory, 76 F. App’x. at 641; Oberlin College, 60 F.4th at 356. It does not appear that

Plaintiff’s amended complaint alleges that Oberlin investigated a retaliation claim from a

similarly situated female while denying Plaintiff the same investigation on account of his sex.

Thus, this portion of his selective enforcement claim is dubious. It will be necessary for Plaintiff

to identify a similarly situated female student to avoid summary judgment. However, because

the Court is denying Defendants’ motion for judgment on the pleadings on this claim, Plaintiff

may be able to identify such a similarly situated female student during the discovery process and

avoid summary judgment.

While Plaintiff has stated a plausible claim for selective enforcement, the Court

recognizes his damages will likely be limited to those that are recoverable under his breach of

contract claim. In Cummings v. Premier Rehab Keller, the Supreme Court determined that

federal funding recipients have not consented to emotional distress damages as a result of the

federal Spending Clause statutes, such as Title IX. 142 S. Ct. 1562, 1569–1570, 1572, 212 L. Ed.

2d 552 (2022) (holding that the plaintiff could not recover emotional distress damages for

potential violations of the Rehabilitation Act of 1973 and the Affordable Care Act). Rather, the

only economic damages available for Title IX claims are those traditionally available under

breach of contract actions. Id., at 1571. As a result, Doe will not be able to recover any damages

for emotional distress under his Title IX selective enforcement claim.

Viewing Plaintiff’s amended complaint in a light most favorable to him, the Court finds

he has stated a plausible Title IX selective enforcement claim. Plaintiff and Roe may have been

similarly situated if they were equally intoxicated when the alleged sexual misconduct took

place. Alternatively, Plaintiff may be able to identify a similarly situated student who reported

retaliation and was treated differently by Defendants due to her gender. Under the plausibility

standard outlined by Iqbal and Winget, Plaintiff’s Title IX claim for selective enforcement

survives the Court’s review under Fed. R. Civ. P. 12(c).

B. Breach of Contract Claim

Plaintiff has also attempted to state a claim for breach of contract. To assert a breach of

contract claim, Plaintiff must allege that there is “(1) the existence of a contract, (2) performance

by the plaintiff, (3) breach by the defendant; and (4) damage or loss to the plaintiff as a result of

the breach.” V & M Star Steel v. Centimark Corp., 678 F.3d 459, 465 (6th Cir. 2012) (holding

that the plaintiff’s allegations of an ambiguous contract under Ohio law were sufficient to

prevent summary judgment). To avoid dismissal, Plaintiff must plead facts supporting each

element of his breach of contract claim. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at

556).

Plaintiff alleges that Oberlin’s Sexual Misconduct Policy created an implied contract

between Oberlin and Plaintiff. ECF Doc. 5-1, ¶¶ 309–310. The contract, according to Plaintiff,

was created by his acceptance of an offer of admission by Oberlin and the payment of tuition,

fees, and/or room and board as consideration. ECF Doc. 5-1. ¶ 311. Plaintiff alleges that Oberlin

breached the contract when it failed to comply with its Sexual Misconduct Policy. ECF Doc. 5-

1, ¶¶ 312-313. In addition, he alleges that Oberlin’s failure to follow the implied agreement to

engage in informal resolution constituted an additional breach of contract. ECF Doc. 5-1, ¶ 314.

Plaintiff has also alleged damages, some of which are appropriate under his breach of contract

claim.1 ECF Doc. 5-1, ¶ 318.

After accepting all of Plaintiff's allegations as true, the Court finds he has sufficiently

stated a breach of contract claim. While breach of contract claims against educational

institutions are subject to limitations, “a student may raise breach of contract claims arising from

a university’s alleged failure to comply with its rules governing disciplinary proceedings.”

Anderson v. Vanderbilt University, 450 F. App’x. 500, 502 (6th Cir. 2011). Courts have held

that violations of sexual misconduct policies by universities may be litigated under a breach of

contract claim. Doe v. Northern Michigan University, 393 F. Supp. 3d 683, 699 (W.D. Mich.

2019), citing Anderson v. Vanderbilt Univ., 450 F. App’x 500, 502 (6th Cir. 2011) (holding that

the defendants’ breach of the school’s Sexual Misconduct Policy by failing to advise the plaintiff

of his right to an attorney qualified as a breach of contract claim). Because Plaintiff has alleged

facts stating the basic elements of a breach of contract claim, the Court denies Defendants’

motion for judgment on the pleadings on this claim.

C. Negligence Claim

Finally, Plaintiff has attempted to assert a negligence claim against all Defendants. To

state a negligence claim, Plaintiff must allege “(1) the existence of a duty, (2) breach of the duty,

and (3) an injury proximately resulting from the breach.” V & M Star Steel, 678 F.3d at 465-466.

To survive a Rule 12(c) motion, Plaintiff’s “complaint must contain sufficient factual matter,

1 Plaintiff alleges he has sustained damages including “emotional distress, loss of educational and career

opportunities, reputational damages, economic injuries and other direct and consequential damages.” ECF Doc. 5-1

at 318. Some of his damages, such as emotional distress, are not recoverable on a breach of contract claim.

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Defendants argue that Plaintiff is not entitled to proceed on both his breach of contract

claim and his general negligence claim. Under Ohio law, the filing of a contract action generally

excludes the right to present the same claim as a tort. Wolfe v. Cont'l Cas. Co., 647 F.2d 705,

710 (6th Cir. 1981). The Sixth Circuit has applied this principle in the context of a university

and its students. See Valente v. Univ. of Dayton, 438 F. App’x 381 (6th Cir. 2011), citing

Bleicher v. Univ. of Cincinnati Coll. of Med., 78 Ohio App. 3d 302, 604 N.E.2d 783, 787-788

(Ohio Ct. App. 1992).

Plaintiff does not respond to this argument. His response states only that his amended

complaint “clearly sets forth a plausible cause of action for Defendant Mosely’s negligence.”

ECF Doc. 21 at 15. This is not enough. Plaintiff has not explained how his negligence claim is

independent from his breach of contract claim, and he cannot proceed on both. Because

Plaintiff’s negligence claim appears to be based on the same facts as his breach of contract claim,

and because he has not responded to Defendants’ argument on the negligence claim, Defendants

are entitled to judgment on the pleadings on this claim.

VI. Conclusion

Because Plaintiff’s claims for Title IX selective enforcement and breach of contract are

plausible on their face, the Court DENIES Defendants’ motion for judgment on the pleadings on

those claims. However, Plaintiff’s negligence claim is not plausible on its face, and he has

abandoned his claims for breach of a covenant for good faith and fair dealing and promissory

estoppel. He has also abandoned his claims against Oberlin’s Board of Trustees because they are

not a legal entity. The Court GRANTS Defendants’ motion for judgment on the pleadings on the

negligence, breach of a covenant for good faith and fair dealing and promissory estoppel claims.

The Zoom status conference scheduled for July 13, 2023 at 9:30 a.m. is CONFIRMED. All

counsel and parties are required to participate.

IT IS SO ORDERED.

Dated: June 16, 2023

s/Dan Aaron Polster

United States District Judge