# DOE v. MANOR COLLEGE

> District Court, E.D. Pennsylvania · August 17, 2020

URL: https://www.frixlaw.com/law-library/cases/10666706

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** August 17, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JANE DOE,
Plaintiff CIVIL ACTION
© NO. 18-5309
MANOR COLLEGE, :
Defendant .
MEMORANDUM
PRATTER, J. AUGUST 17, 2020
INTRODUCTION
Disturbing facts generally make for especially difficult cases. This litigation again proves
that point.
In the fall of 2016, Ms. Doe alleges she was sexually assaulted while attending Manor

College as a residential student. She also contends that Manor College paid no mind to her
allegations and instead retaliated against her for complaining about its response. On the basis of
this treatment, Ms. Doe asserts Title [X discrimination and retaliation claims.
Before the Court are cross-motions for summary judgment and a motion in limine. Ms.
Doe seeks summary judgment as to the notice prong of her discrimination claim, as well as
summary judgment in her favor on the retaliation claim, in its entirety. Manor College seeks to
dismiss both claims for Ms. Doe’s alleged failure to demonstrate certain elements of the claims.
Ms. Doe also seeks the preclusion of Manor College’s psychiatric expert. -
The Court must evaluate the sufficiency of the factual record presented to determine if
material disputes exist for resolution by a jury. For the reasons that follow, the Court grants Ms.
Doe’s motion for summary judgment with respect to (1) the notice prong of the discrimination
claim and (2) the protected activity and adverse action prongs of her prima facie retaliation case.

The Court grants Manor College’s motion insofar as there are no disputes of material fact with
respect to its burden of production on the retaliation claim. As to all other aspects of the claims,
the Court denies the motions. Finally, the Court denies Ms. Doe’s motion in limine.
BACKGROUND!
I. The underlying alleged sexual assault.
Jane Doe is a former undergraduate student at Manor College. She first enrolled at the
school in the fall of 2016. Manor College, located in Jenkintown, Pennsylvania, is a private
Catholic institution. Ms. Doe lived on campus while a student at the school. The parties do not
dispute that Manor College received federal funding.
During the early morning hours of September 21, 2016, Ms. Doe reported an incident of .
sexual assault to Resident Coordinator Lynn Wales. The alleged assault occurred four days prior
and purportedly involved Kenyadda Rice, a resident assistant, resident Marquise Hardy, and Mr.
Hardy’s cousin, Josh Manor. Mr. Rice and Mr. Hardy at the time also were students at Manor
College. The complaint of sexual assault was also reported to Director of Student Engagement
Allison Mootz and the school’s Chief of Public Safety, William Pepitone. Manor College asserts
the sexual encounter was consensual.
Ms. Doe filed an incident report with the school related to the underlying complaint of
sexual assault. In that incident report, Ms. Doe states that while in Mr. Rice’s dorm room, she was
drinking milkshakes with the three men. She states that the men sought to coerce her into sexual

The factual disputes in this case are sprawling. For instance, there are multiple accounts of the
sexual assault that forms the underlying basis of Ms. Doe’s claims in this case. The Background for this
Memorandum is based on a fair reading of both parties’ statements of facts to the extent they can be
reconciled at this point. To the extent that there are factual disputes material to Ms. Doe’s claims, the Court
notes them and addresses them in greater detail in the Discussion section of this Memorandum. As is
customary at this stage of the proceedings, the Court disregards those factual allegations that the parties
make without any evidentiary support from the record, and rejects the parties’ endeavor to have this Court
make credibility determinations and otherwise weigh the evidence. .

activity to which she did not consent, and because she was nervous, she started audio recording
the encounter on her phone. She states that one of the men touched her vagina, and the men exposed
their genitalia to her. Ms. Doe also believed that at one point, two of the men had left the room.
She remained with Mr. Rice who asked if she wanted to “do [sic] with other people so he could
watch.... [Ms. Doe States she] was hesitant and said eh, maybe, sure.” Doe Incident Report, Ex.
9, Def.’s Mot. for Summary Judgment. She then goes on to describe “[h]e had my eyes covered
but from the corner of his hands I saw him signal [the two other men,] and they came in the room.
Afterward [Ms. Doe] [ ] made out with Josh for Kenyadda to watch and all three of them”
masturbated. Jd.
In her deposition, Ms. Doe testified to the encounter and as to writing her incident report
in a manner that would “lessen the blow.” Doe Dep., Ex. 1, Def.’s Mot. for Summary Judgment
at 77:9-23. Ms. Doe testified that after the men took their pants off, they blocked Mr. Rice’s dorm
room door. According to Ms. Doe, the alleged assailants mentioned “they had Bill Cosby’d [her]
drink and that they were just trying to have some fun. And they suggested [Ms. Doe] also get
naked.” Jd. at 47:10-13. Ms. Doe refused. /d. She testified that thereafter, Mr. Hardy forcibly
kissed her, pushed her on the bed, and removed her clothes. Ms. Doe also stated all three men,

without her consent, touched her inappropriately. Mr. Hardy and Mr. Manor “fondled and touched
[her] chest[,] butt[,] and genitalia.” /d. at 50:9-i4. Ms. Doe testified that the men performed digital
intercourse on her, and that after the alleged assailants placed a pillow over her face, she passed
out. Ms. Doe regained consciousness and saw a phone in Mr. Hardy’s hand. Ms. Doe testified □

that another woman had entered the room, screamed, and then ran out.

The record reflects that after leaving Mr. Rice’s room, at some point, Ms. Doe and her
friend, Diamond Hairston, began getting ready for a party, and later that evening, Ms. Doe went
to anight club. Mr. Hardy and his cousin also went to the party.
A photograph of Ms. Doe circulated without her consent days after the incident. After
confronting Mr. Hardy about the photograph, he denied taking it.
Two police reports reflect that Ms. Doe spoke to the Abington Township Police
Department regarding the incident on a few occasions. The police report dated September 21,
2016 states that on the night of September 17, 2016, Ms. Doe agreed to engage in sexual activity
with the three men. It also involves details about the nude photograph of Ms. Doe, and her alleged
desire that the police not get involved. The police report dated December 9, 2016 states that Ms.
Doe sought to understand why the police had not pressed any charges after she had reported to the
police previously that she was sexually assaulted. Ms. Doe also visited the ‘police station on
December 13, 2016, and described a nonconsensual encounter with the men. During that
interview, she said she had also been the victim of sexual assault as a child.
II. Manor College’s response to the sexual assault complaint.
The College’s response to the complaint of sexual assault, and the events that took place
after that initial complaint are material to the claims here, and thus, are the subject and focus of
this Court’s consideration.”

2 Indeed, while the parties litigate the merits of the underlying sexual assault complaint, seeking a
referendum by this Court as to whether to believe Ms. Doe or the men and Manor College as to whether
the assault in fact took place, see, e.g., Def.’s Mot. for Summary Judgment, p. 2 n. 1 (“Doe’s version of
what occurred on September 17, 2016 has changed several times. Her version of events as described to the
College and the Abington Township Police Department on September 21, 2016 vary greatly from the
allegations set forth in her Complaint and deposition testimony, in which she described a non-consensual
violent assault.”), that request is only tangential to the Court’s determination on the sufficiency of the factual
record with respect to the parties’ positions on Ms. Doe’s Title IX claims. To the extent that the facts
related to the underlying sexual assault matter, they matter insofar as they can support either party’s
affirmative or defensive case with respect to whether the claims may proceed to trial.

On the same day that Resident Coordinator Ms. Wales, Director of Student Engagement
Ms. Mootz, and Chief of Public Safety Mr. Pepitone were made aware of Ms. Doe’s complaint,
she was informed of the College’s provision for victim’s services. Manor College also contacted
law enforcement, and as noted, Ms. Doe spoke to officers of the Abington Township Police
Department. While Ms. Doe was at the police station, Manor College sent letters to both Mr.
Hardy and Mr. Rice stating that they would be under immediate suspension from the resident hall,
all club activity, and work obligations. There is only one residence hall on the Manor College
campus. Mr. Hardy was also asked to temporarily switch out of Ms. Doe’s chemistry class, to
another chemistry section.
On September 26, 2020, Manor College’s Code of Conduct Committee held two
consecutive hearings related to the underlying sexual assault complaint lodged by Ms. Doe. The
members of the Committee that oversaw the hearings that involved accusations against Mr. Rice
and Mr. Hardy included voting members Janice Salerno, Diane Saridakis, and a student
representative, Destinye Andrews. Ms. Mootz was also present at the hearings as the hearing
officer, and Ms. Christina Prokopovych was present, serving as the chair of the Code of Conduct
Committee.
At the hearings, Ms. Doe testified to a nonconsensual sexual encounter. At Mr. Rice’s
hearing, Mr. Rice was present when Ms. Doe gave her statement of the incident, including a
description that Mr. Hardy had stated he “would have made [her] swallow the whole pill and not
have put something in [her] drink.” Tr. of Rice Hearing, Ex. 13, Def.’s Mot. for Summary
Judgment, p. 12. The transcript of the hearing reflects Mr. Rice repeatedly interrupting Ms. Doe
as she gave her statement. Ms. Doe also informed the Committee of the photograph of her
circulating around campus and the audio recording she made of the encounter. The Committee

heard from Mr. Rice as well. He represented that Ms. Doe’s statement was false, that she was
taking Snapchats in the police car the day of the underlying incident, and that Ms. Doe went to a
club after the incident where Mr. Hardy and his cousin were also present. According to Mr. Rice,
Ms. Doe told him she “was going to Bill Cosby [him and asked him] how much money [he] had.”
Id., p. 29. The transcript of the hearing also reflects that Ms. Doe was not present when Mr. Rice
gave his counter-statement to the Committee. _

At Mr. Hardy’s hearing, which took place on the same day as Mr. Rice’s, Ms. Mootz read
Ms. Doe’s incident report related to the endensine sexual assault complaint and Mr. Hardy’s
alleged part in it, including recording and photographing Ms. Doe without her consent. Mr. Hardy
gave his statement about the incident. Ms. Doe’s friend, Diamond Hairston, also gave a statement
about her interactions with Ms. Doe and Ms. Doe’s conduct after the alleged assault. According
to Manor College, Ms. Hairston’s statement described that Ms. Doe acted in ways that contradicted
that she had been sexually assaulted. Ms. Doe was not present in the room during these statements.
Ms. Doe then gave live testimony, but was not permitted to present evidence of the audio recording
she made during the encounter at either of the ww hearings because the College determined her
recording was taken without the consent of the neh Mr. Hardy denied taking any photograph of
Ms. Doe.
After the hearings were held, the Code of Conduct Committee determined that neither Mr.
Rice nor Mr. Hardy had sexually assaulted Ms. Doe. Specifically, by way of letters dated
September 27, 2016 and September 28, 2016, both Mr. Rice and Mr. Hardy were sanctioned for
failing to supervise a guest (Mr. Manor) under school policy. There also was no determination
that a lewd photo was taken of Ms. Doe by one of the men. As aresult, the men lost guest privileges

□

for thirty (30) days. Their temporary residence hall suspension was lifted, and Mr. Hardy returned
to Ms. Doe’s chemistry class.
On September 29, 2016, the chair of the Code of Conduct Committee sent an email to Ms.
Doe with the Committee’s findings. In response, Ms. Doe expressed her disagreement with the
determination. She reiterated that she was coerced into sexual activity, and took issue with the
photograph taken of her. Ms. Doe also complained of the lack of any accommodations made for
her despite her having to attend the same class as one of the men and live in the same residence
hall as her alleged attackers. Ms. Mootz responded to Ms. Doe’s email indicating Ms. Doe had
not articulated a basis for an appeal and directed Ms. Doe to the proper appeal process.
The following day, namely, October 1, 2016, Mr. Rice was terminated as a resident
assistant, with citations to repeated issues including the guest policy violation on September 17,
2016. On the same day, Ms. Doe formally appealed the determination made with respect to her
claim of assault by contacting via email Dean of Students, Sister Marie Francis Walchonsky. Sister
Walchonsky then forwarded the email to Ms. Mootz. In her deposition, Ms. Mootz testified as to
Sister Walchonsky being incapable of hearing the word sex, stating the following.
She can’t handle seeing the word sex, thinking about sex. It’s not in
her capacity to handle that. She was 80, 81 at the time. She’s been
anun since she was 18 years old. And it’s — she just mentally cannot
handle hearing that. So, that’s why she has other hearing officers
and Code of Conduct chairs to handle situations like that, handle all
of student conduct. .. . I think her religious background makes it
difficult for her to understand. . . . I don’t think she can even think
about it. You visibly see her, if you mention it or talk about it, she
gets very agitated and upset and nervous and anxious. It’s just not —
it shouldn’t be that confused, she’s a nun, it’s nothing she’s ever
experienced in her life.
Mootz Dep., Ex. 7, Def.’s Mot. for Summary Judgment at 38-39. .

Ms. Doe’s appeal related to the alleged sexual assault determination was denied on October
5, 2016, by way of a letter from Sheila Gillespie, the Vice Chair of the Student Conduct Appeals
Committee, based on the lack of any grounds for an appeal, namely that all proper hearing
procedures were followed and there was no new admissible evidence. Ms. Doe’s request for video
footage from the night of the alleged offense was also denied. Ex. 22, Def.’s Mot. for Summary
Judgment. In another email Ms. Doe sent to Ms. Gillespie that same day, Ms. Doe claimed that
her complaint was not handled properly, and she also expressed her discomfort with having to be
in the same class and in the same residence hall as the alleged assailants. Ex. 45, Def.’s Mot. for
Summary Judgment.
Two days later, the president of the school, Jonathan Peri, spoke to Mr. Rice and expressed
he would “get through this . . . [he had] to keep going. . . . if [Ms. Doe] causes [him] problems, ...
report it.” Ex. 4, Pl.’s Opp’n to Def.’s Mot. for Summary Judgment.
WI. Manor College sanctions Ms. Doe.
Beginning within days of her complaint to the school, Ms. Doe was written up and
sanctioned for several violations of the school’s Code of Conduct policy. On September 23, 2020,
incident reports were made related to Ms. Doe’s alleged altercations with other girls in her
dormitory. The incident reports state that Ms. Doe demonstrated aggressive behavior and was
non-compliant with orders to disperse. September 23, 2016 Incident Reports, Ex. 29, Def.’s Mot.
for Summary Judgment. They also state that despite such orders, Ms. Doe was found again
knocking on a resident’s door followed by additional verbal altercations that took place. Jd While
the parties dispute whether Ms. Doe actually received the following letter, Manor College has
produced a formal letter which appears signed by Resident Coordinator Ms. Wales on behalf of
the school, placing Ms. Doe on probation for 60 days, in part due to her altercations and Code of

Conduct violations for disrespect for authority and aggressive behavior. The letter also notifies
Ms. Doe she will be required to work with a resident assistant to conduct two education programs
related to student success, awareness, or engagement. Wales Letter, Ex. 29, Def.’s Mot. for
Summary Judgment.
Ms. Doe testified at her deposition to a different explanation of the altercations, describing:
[A] group of girls had got upset. They had brung [sic] up during [a
floor] meeting . . . the incident of the assault and the fact that I
reported it and . . . thinking I was trying to get Marquise and
Kenyadda in trouble because they were friends and they were cool
with a lot of people in the campus. So I got into an argument with
them. And I didn’t want to talk about it with the incident being
brought up in an open{ ] setting. And there were just threats given
to me to hurt me between girls because I came forward.
Doe Dep., Ex. 1, Def.’s Mot. for Summary Judgment at 106:13-24. According to Ms. Doe, she
attempted to calm the students. /d. at 109:25-110:6.
On September 30, 2016, another incident report was made related to Ms. Doe’s violation
of the Code of Conduct for recording the underlying alleged sexual assault. On October 4, 2016,
Doe was sanctioned for having made that recording. According to Manor College, because she
made the recording without permission of the other participants, and because she failed to appear
at the hearing related to the audio recording violation, Ms. Doe was fined $50 and required to do
ten hours of community service.? Ms. Doe was also warned that additional violations of the Code
of Conduct could lead to more serious sanctions and possible dismissal from the residence hall.
Two days later, Ms. Doe sent an email to the dean of students appealing the sanction related
to the audio recording. She stated she recorded the encounter because she feared for her safety.
Ms. Mootz responded to Ms. Doe on behalf of the dean of students and stated the school’s position

3 The record reflects that Ms. Mootz eventually told Ms. Doe she would waive the fine because Ms.
Doe could not attend the hearing due to a conflicting doctor’s appointment.

that there was no additional opportunity for an appeal. Ms. Mootz also cautioned Ms. Doe “to keep
conversations about the case private. If [Ms. Doe] ha[d] further issue with the case, it should be
directed to [Ms. Mootz] and/or the Code of Conduct Chair.” Mootz E-mail, Ex. 24, Def.’s Mot.
for Summary Judgment.
At some point, Ms. Doe was fined $150 for disorderly conduct, disrespect for authority,
and probation violation which the school represents occurred on October 25, 2016. On that date,
according to Ms. Doe, a resident assistant came to her door asking for her to turn her music down.
The resident assistant returned with another resident assistant, telling Ms. Doe to turn down her
music. Ms. Doe asserts she complied after the first request, but that the two resident assistants
took issue with her loud music because they were friends of Mr. Rice. Ms. Doe testified at her
deposition that it felt as though Mr. Rice’s friends “were just kind of . . . out to get me.” Doe Dep.,
Ex. 1, Def.’s Mot. for Summary Judgment at 116:6-117:12.
Manor College also sanctioned Ms. Doe for a purported violation of the guest policy while
on probation. This violation allegedly occurred on November 7, 2016.
Four days later, Ms. Doe emailed Ms. Prokopovych about the charges related to disorderly
conduct. In that email, Ms. Doe indicated she would be contacting outside sources “to review the
things that [she is] being wrongfully sanctioned for[.]” Ex. 56, Def.’s Mot. for Summary Judgment.
Ms. Doe also complained to Mr. Peri, informing him that she was considering a potential civil
lawsuit against the school because of its wrongful conduct.
On November 18, 2016, Manor College permanently evicted Ms. Doe from the college
dormitory, citing Ms. Doe’s “continued corresponden[ce] with individuals in and across the
community instead of following institutional policies and procedures on how to properly address
Code of Conduct concerns.” Ex. 19, Def.’s Mot. for Summary Judgment. Manor College also

10

cited Ms. Doe’s previous multiple sanctions. /d. Ms. Doe was warned in the same letter that the
school may take appropriate civil action against her if she continues in what the College contends
was her inappropriate behavior.
According to Ms. Doe, within days, she attempted to commit suicide. Sometime that
month, she also withdrew from the College.
On December 1, 2016, Mr. Peri informed Ms. Wales, Ms. Mootz, Mr. Pepitone, Ms.
Prokopovych and others that Ms. Doe had retained counsel. On December 8, 2016, Ms. Wales
informed Mr. Peri that Ms. Doe had told other students she was suing Manor College and had
offered to pay them to testify on her behalf. Mr. Peri asked for incident reports related to these
alleged bribery attempts. On December 8 and 12, 2016, Mr. Rice and a student named Cathelyne
Etienne wrote incident reports to that effect. Mr. Rice stated he was told by other students Ms. Doe
tried to bribe them to make a statement on her behalf. Ms. Etienne stated Doe offered her money
to make a statement for her.’ Mr. Peri also emailed Ms. Doe’s then attorney informing him that
students had approached the College with information that they had been offered a bribe by Ms.
Doe to make a statement for her. To this attorney, he stated that “Manor College w[ould] also
bring whatever civil actions [were] necessary to evidence [Ms. Doe’s] frivolous claims, and by
virtue of [his] representation, [counsel’s] frivolous suit[.]” Ex. 23, Pl.’s Mot. for Summary
Judgment. .
By the end of December, in response to Ms. Doe’s request seeking a refund of her dorm
room deposit, Mr. Peri informed Ms. Doe she must cease all communications with the school
because she had counsel. He instructed, “{i]f you have no attorney and agree to withdraw any and
all claims and potential claims against the college, and any and all of its personnel, then maybe we

4 Ms. Doe correctly contends these statements are hearsay. She also argues the statements are not
material to her claims. P!.’s Response to Def.’s Mot. for Summary Judgment, 976c.

11

can correspond. [E]ven if you agree to those things we will need to have it in writing and prepared
in the form of a release and signed by you. . . . This is not an offer; you cannot accept.... If you
persist with communications with anyone at the college, then we will seek all available civil
remedies against you.” Ex. 21, Pl.’s Mot. for Summary Judgment.
In March of the following year, in response to an inquiry made by the Department of
Education Office of Civil Rights (“OCR”) related to Ms. Doe’s complaint, Mr. Peri wrote to the
OCR stating Ms. Doe engaged in attempted fraud, entrapment, and bribery, and that Doe’s
complaint was submitted in bad faith. He also asked OCR for certain FOIA information related to
whether post-secondary institutions in Title IX cases were directed to speak to law enforcement
about alleged criminal conduct by the complainant. □
LEGALSTANDARD
A court may grant a motion for summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). An issue is “genuine” if there is a sufficient evidentiary basis on
which a reasonable fact finder could return a verdict for the non-moving party. Kaucher v. Cnty.
of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). A factual dispute is “material” if it might affect the outcome of the case under
governing law. /d. (citing Anderson, 477 U.S. at 248). Under Rule 56, the Court must view the
evidence presented on the motion in the light most favorable to the . non-moving
party. See Anderson, 477 U.S. at 255. However, “[u]nsupported assertions, conclusory
allegations, or mere suspicions are insufficient to overcome a motion for summary
judgment.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010).

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The movant bears the initial responsibility for informing the Court of the basis for the
motion for summary judgment and identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Where the non-moving party bears the burden of proof on a particular issue, the moving party’s
initial burden can be met simply by “pointing out to the district court that there is an absence of
evidence to support the nonmoving party’s case.” Id. at 325.
After the moving party has met the initial burden, the non-moving party must set forth
specific facts showing that there is a genuinely disputed factual issue for trial by “citing to
particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other
materials” or by “showing that the materials cited do not establish the absence or presence of a
genuine dispute.” FED. R. CIV. P. 56(c). Summary judgment is appropriate if the non-moving
party fails to rebut by making a factual showing “sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex, 477 U.S. at 322.
DISCUSSION
Manor College seeks the dismissal of both of Ms. Doe’s discrimination and retaliation
claims under Title LX. It seeks dismissal of the discrimination claim on the basis that Ms. Doe has
not demonstrated two elements of the claim: deliberate indifference and causation. It also seeks
dismissal of the retaliation claim challenging Ms. Doe’s ability to meet her burden on her prima
facie case as well as to show pretext. The parties also contest whether Ms. Doe has proffered direct
evidence or circumstantial evidence with respect to the causation prong of her claim.

On the other hand, Ms. Doe seeks summary judgment as to the ie prong of her
discrimination claim, as well as on the entire retaliation claim. Because Manor College concedes
the notice prong of the discrimination claim, the Court discusses the remaining disputes in turn,
namely, (1) neon Ms. Doe can show deliberate indifference and causation as to her
Eccrimination claim, and (2) whether there are triable issues with respect to Ms. Doe’s claim of

retaliation.
I. Discrimination claim under Title IX
Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seg., provides that
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). Title IX’s protections encompass □

student-on-student sexual harassment. In Davis Next Friend LaShonda D. v. Monroe County Bd.
of Educ., 526 U.S. 629 (1999), the United States Supreme Court created an implied private right
of action pursuant to Title IX for such sex-based harassment. Jane Doe asserts she was
discriminated in this way, and seeks to prove this discrimination on the basis of the College’s
deliberate indifference to her claims.
To assert a claim of discrimination on the basis of deliberate indifference, a plaintiff must
show that (1) the defendant received federal funds; (2) sexual harassment occurred; (3) the
harassment took place under circumstances in which the school exercised substantial control over
both the harasser and the context in which the harassment occurred; (4) the defendant had actual
knowledge of the harassment; (5) the harassment was so severe, pervasive, and objectively
offensive that it could be said to have deprived the victim of access to the educational opportunities
or benefits provided by the school; (6) the defendant was deliberately indifferent to the harassment;
and (7) the defendant’s deliberate indifference subjected the plaintiff to harassment, i.e. caused the

14

plaintiff to undergo harassment or made the plaintiff liable or vulnerable to it. Jd at 644-45. As
noted, Manor College seeks dismissal of Jane Doe’s claim for her alleged failure to meet the last
two elements.
To demonstrate Manor College was deliberately indifferent and defeat summary judgment
on that element, Ms. Doe must raise a factual inference that Manor College’s “‘response to the
harassment or lack thereof [wa]s clearly unreasonable in light of the known circumstances.” Davis,
526 U.S. at 648. Deliberate indifference refers to “an official decision [made by the school] not
to remedy the violation.” Gebster v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). Courts
eer to the totality of the circumstances when determining deliberate indifference, and “deliberate
indifference will often be a fact-based question, for which bright line rules are ill-suited.” Doe ex
rel. Doe v. Coventry Bd. of Educ., 630 F. Supp. 2d 226, 235 (D. Conn. 2009).
The deliberate indifference “must [then], at a minimum, cause students to undergo
harassment or make them liable or vulnerable to it.” Davis, 526 U.S. at 645. However, in making
its determinations today, the Court is mindful that “in holding that deliberate indifference to known
acts of harassment may amount to an intentional violation of Title IX, capable of supporting a
private damages action in the context of student-to-student harassment, the Supreme Court made
clear that school districts were not required to ‘purge’ their schools of ‘actionable peer harassment’
or ‘engage in particular disciplinary action.’” G.C. ex rel. Counts v. N. Clackamas Sch. Dist., 654
F. Supp. 2d 1226, 1237 (D. Or. 2009) (citing Davis, 526 U.S. at 648).

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a. The deliberate indifference element.
i. Parties’ arguments
The parties’ specific arguments made in support of their respective positions on this
element are numerous, and are not entirely responsive of each other. However, they may be fairly
summarized as follows.
Manor College claims Jane Doe cannot bear her burden on the deliberate indifference
prong because (1) the school took prompt and clearly reasonable actions after she lodged her initial
complaint of sexual assault; (2) as a matter of law, the claim that the underlying Code of Conduct
hearings related to the complaint were faulty fails; furthermore, the hearings were adequate; (3)
Ms. Doe cannot rely on Title [X regulations and Department of Education guidance to establish
deliberate indifference; and (4) Ms. “Doe’s claims of subsequent, non-gender based harassment
fai] as a matter of law.” Def.’s Mot. for Summary Judgment, p. 13; Def.’s Memorandum of Law
in Support of Def.’s Mot. for Summary Judgment, pp. 29-30.
Manor College cites the following actions it took in response to Ms. Doe’s complaint in
support of its assertion that it adequately handled the sexual assault complaint:
e After Ms. Doe reported the allegations to Resident Coordinator Ms. Wales in the early
morning hours of September 21, 2016, Ms. Wales immediately contacted Director of
Student Engagement Ms. Mootz and advised her of the complaint.
e On the same day, Ms. Mootz, Ms. Wales, and the Chief of Public Safety, Mr. Pepitone,
met with Ms. Doe to discuss her report.
e According to Manor College, Ms. Doe was informed of the available victim’s services.
Jane Doe also met with the College’s counseling department on November 16, 2016, and
the counselor made an appointment for Ms. Doe to see an outside therapist.
e Manor College determined it would be appropriate to make a report to the local police
department, and then informed Abington Township Police Department of Ms. Doe’s
complaint. Jane Doe spoke to members of the police department.

16

e On the same day that Ms. Doe reported the incident to Manor College, Mr. Rice and Mr.
Hardy were informed of the complaint against them. According to the College, interim
sanctions were imposed, and both individuals were immediately suspended from the
residence hall and could not return untii after a formal disciplinary hearing.
e Mr. Hardy was instructed to attend a different section of a chemistry class because Ms.
Doe was in the same section. .

e The College held two formal hearings concerning Jane Doe’s allegations on September 26,
2016 with respect to Mr. Rice and Mr. Hardy. At the hearings, Ms. Doe was permitted to
offer evidence.
e Although the College did not find Ms. Doe’s version of the events credible, it implemented
sanctions on the male students by removing their guest privileges for one month.
e The College also terminated Mr. Rice as a resident assistant.
e The College terminated the resident assistant Ms. Doe initially told her report to, who the
College asserts failed to report the incident to the resident coordinator.
Def.’s Mot. for Summary Judgment, pp. 15-16. Manor College also asserts that Ms. Doe did not
come into contact with any of her assailants after the hearings related to the alleged sexual assault,
and she was not further subjected to additional sexual assault.
In response, Ms. Doe argues deliberate indifference on the basis that “Manor remained idle
in the face of [Ms.] Doe’s safety concerns, failed to train the employees who responded to [Ms.]
Doe’s report of sexual assault, treated [Ms.] Doe with distinct hostility different than the assailants
and starkly similar to other victims of sexual assault, lied to the U.S. Department of Education
during its investigation into violations of [Ms.] Doe’s civil rights, failed to address [Ms.] Doe’s
report of the assailant’s distribution of a nude photo without her consent, and took affirmative steps
to bury [Ms.] Doe in alleged disciplinary infractions as she experienced observable emotional
distress[.]” Pl.’s Opp’n to Def.’s Mot. for Summary Judgment, p. 5.
The Court need not address all of the arguments for purposes of assessing Manor College’s
contention that Ms. Doe cannot show the requisite deliberate indifference. For the reasons that

17

follow, and considering all of the factual circumstances, the Court finds that Ms. Doe has raised
the requisite factual dispute as to this element of her discrimination claim.
ii. Whether Manor College’s actions were clearly unreasonable in light of
known circumstances.
The record reflects Manor College failed to make accommodations for Ms. Doe when she
raised safety concerns after the school detertnined no sexual assault had occurred. After her
repeated requests for accommodations to Manor College officials, specifically with respect to Mr.
Hardy’s attendance in her chemistry section, and Mr. Rice and Mr. Hardy’s continued residence
in the only residence hall on campus, Manor College failed to make any accommodation
whatsoever. Ms. Doe testified in her deposition to seeing Mr. Hardy in class which made her “feel
like [she] was just kind of a joke. [She] felt afraid and [she] felt intimidated. [She] couldn’t focus
in class[, and] didn’t want to go to class. He would stare at [her]. [Her] grades went down.” Doe
Dep. at 139:14-141:15. Jane Doe also testified to feeling like she “didn’t want to go anywhere
outside [her] dorm room” after seeing Mr. Rice around campus. Id.
On these facts alone, a jury could determine that the school acted with deliberate
indifference. A failure to accommodate a student’s safety concerns, for instance, by failing to
separate a student from her alleged assailant, may amount to deliberate indifference. In Coventry
Board of Education, supra, the district court determined there to be a triable issue as to whether
the school acted with deliberate indifference where the alleged victim had made requests for
accommodations, and the school refused to act immediately, failing to remove the plaintiff's
assailant from her lunch period and class, and failing to limit his participation in any school
activities, until the assailant’s arrest months later. 630 F. Supp. 2d at 235. Ina factually analogous
case, the district court in Matthews v. Nwankwo, 36 F. Supp. 3d 718 (N.D. Miss. 2014), determined
there was a factual dispute as to whether the school acted with deliberate indifference to the

. 18

plaintiff's complaints where the plaintiff had alleged that her professor sexually harassed her, but
the school failed to permanently separate the plaintiff from her professor after a temporary
separation of plaintiff from his class. /d. at 725-26. And in the E.N. v. Susquehanna Tp. Sch. Dist., □
No. 09-1727, 2011 WL 3608544 (M.D. Pa. July 5, 2011), report and recommendation adopted by
2011 WL 3608490 (M.D. Pa. Aug. 16, 2011), the court determined a jury could find the school
acted with deliberate indifference when it failed to act on known circumstances of harassment, in
part, due to the continued presence of the assailant. The court noted that after the plaintiff had
complained of sexual assault, there was evidence of school officials disbelieving her, showing
their support for the assailant, and making no efforts to separate the assailant or the assailant’s wife
from the student. Here, the record shows Manor College did not separate Mr. Rice and Mr. Hardy
from Ms. Doe, either by removing them from the residence hall or from her class permanently.
A jury could also find that Ms. Doe was being harassed by friends of Mr. Rice, and perhaps,
even Mr. Rice, after she made the complaint of sexual assault. In December 2016, Mr. Rice wrote
an incident report about Ms. Doe, accusing her of bribery for asking other students to make a
statement on her behalf. Furthermore, there is a triable issue as to whether Ms. Doe suffered from
post-complaint incident reports related to purported loud noise and altercations with other students
because of her complaint about Mr. Rice and Mr. Hardy. A jury may consider the import of all of
these facts when determining whether, and if at all, Manor College acted with deliberate
indifference when it failed to separate Mr. Rice and Mr. Hardy from the residence hall or from the
school’s campus. See Coventry, supra, 630 F. Supp. 2d at 237 (determining that a jury could find
deliberate indifference where Mary Doe had complained about treatment by her peers yet the
school did nothing in response).

, 19

Finally, the record here shows that teachers and other administrators at Manor College
viewed Jane Doe as a bothersome student and/or repeat emailer, which a jury in light of all of the
surrounding circumstances, could find supportive of Ms. Doe’s assertion of deliberate indifference
on the part of the College. In October of 2016, President Peri sent Mr. Rice a note comforting him
and telling him to report Ms. Doe if she continued to give him problems. After Jane Doe sent an
email to her chemistry teacher about challenges she was facing in the wake of her alleged sexual
assault, the teacher forwarded the email to Director of Student Engagement Ms. Mootz, and Ms.
Mootz agreed that Ms. Doe was a “very challenging student. (I have close to 100 emails from her
since this semester started.)” Ex. 56, Def.’s Mot. for Summary Judgment. The record shows Ms.
Mootz was largely responsible for responding to Ms. Doe’s initial complaint, and repeated
communications seeking to appeal the determination made by the school on her sexual assault
claim. In Manor College’s letter evicting Ms. Doe permanently from the dorms, it cited “continued
corresponden[ce] with individuals in and across the community instead of following institutional □
policies and procedures on how to properly address Code of Conduct concerns.” Ex. 19, Def.’s
Mot. for Summary Judgment. The letter also cites Ms. Doe’s multiple previous sanctions, and Ms.
Doe was warned that the school may take civil action against her if she continues in her □
inappropriate behavior. These facts could give rise to the inference that the school was deliberately
indifferent to Doe’s concerns related to hostility and her safety after making a complaint of sexual
assault.°

5 The conclusion does not change despite Manor College’s argument that it did not believe Ms. Doe’s
complaint of sexual assault. It specifically argues that because it did not credit Jane Doe’s narrative and
ultimately found no sexual assault had taken place, buttressed, it claims, by the fact that the Abington Police
Department did not bring charges, it did not need to make accommodations for Ms. Doe’s claims of fear.
Manor College does not adequately address why this is part of the calculus. Nor should it be. See, e.g.,
E.N., supra, 2011 WL 3608544, at *3,.15, report and recommendation adopted by 2011 WL 3608490
(finding there to be a triable issue with respect to deliberate indifference, after the alleged assailant was

20

While these reasons suffice to reject Manor College’s challenge to Ms. Doe’s ability to
demonstrate deliberate indifference, at this stage, the Court also addresses the parties’ dispute with
respect to whether the school acted unreasonably during its investigation of Jane Doe’s complaint.
ili. A jury could determine Manor College’s investigations process was
inadequate.
Again, the parties’ arguments are serial. Ms. Doe cites to numerous examples of how she
claims the school’s investigation and hearings process failed to pass muster. See, e.g., Pl.’s Opp’n,
pp. 12-21. Manor College vigorously asserts its processes related to investigating, determining,
and appealing the sexual assault finding were all proper, and it explains why. See, e.g., Def.’s
Memorandum of Law in Support of Def.’s Mot. for Summary Judgment, pp. 40-47. For example,
Ms. Doe points to an alleged differential treatment of her from her alleged assailants after the Code
of Conduct hearings. She contends that while Mr. Rice and Mr. Hardy were given details about
how to appeal the school’s determination in the school’s formal letter informing the students about
its determination, Manor College failed to include that same information in letters it sent to Ms.
Doe conveying sanctions to her.
Ms. Doe also points to the lack of proper training of school administrators who handled
her complaint. She claims “[a]lthough Manor policy states that the hearing is to be conducted by
using a ‘preponderance of the evidence standard,’” the members of the Code of Conduct
Committee who oversaw Mr. Rice’s and Mr. Hardy’s hearings were unaware of the burden of
proof. Pl.’s Opp’n, p. 9. Ms. Doe points to the deposition testimony of Janice Salerno, one of the
school’s administrators who was a voting member that served on the Committee at the two
hearings, who testified she was unfamiliar with the burden of proof, and furthermore, never given

found not guilty on the underlying sexual assault charge, where the school could have been said to have
created a hostile school environment).

21

guidance on how to weigh evidence, stating “‘:t was just the group would talk afterward . □□ if it
was clear, that’s usually how we made a decision . . . if it was just so obvious that they admitted
that they did it then the Committee would sanction the student.” Jd, p. 10 (citing Salerno Dep.,
Ex. 39, Def.’s Mot. for Summary Judgment at 22-24; 49). Ms. Doe also cites the deposition
testimony of Diane Saridakis who also served as a voting member of the committee, who testified
that no guidance was given on how to evaluate the evidence at the hearings. Saridakis Dep., Ex.
38, Def.’s Mot. for Summary Judgment at 27:17-3:12.°
An inference, while not the only inference, can be made that the way in which Manor
College conducted its investigation of the underlying sexual assault complaint was sufficiently
flawed such that Manor College acted with deliberate indifference to Ms. Doe’s initial complaint
of sexual assault. See, e.g., G.C. ex rel. Counts v. North Clackamas Sch. Dist., 654 F. Supp. 2d
1226, 1238-39 (D. Or. 2009) (The “failure to ensure that [administrators or teachers], received
training in handling reports of sex abuse, could be viewed by a reasonable juror as evidence that
the District does not take such allegations with the seriousness such allegations deserve.”)
Moreover, Manor College’s argument that as a matter of law, a theory of “biased,” “faulty,”
or “sham” investigations or hearings is not cognizable when a plaintiff pursues a deliberate

6 Jane Doe also takes issue with the alleged deficient training of Ms. Prokopovych, the Chair of the
Code of Conduct Committee, who was present at the conduct hearings. She asserts that by Ms.
Prokopovych’s own concession, she testified that she did not remember sitting in on a single hearing before
transitioning into the role of the chair. She also testified to handling no complaints of sexual assault prior
to Jane Doe’s. Id, p. 10-11 (citing Prokopovych Dep., Ex. 12, Def.’s Mot. for Summary Judgment at-16:16-
21; 43-44). Ms. Prokopovych shadowed the Dean of Students, Sister Walchonsky, who Ms. Mootz testified
difficult time stomaching sexual assault claims, or even the word sex. Despite the deficiency in Ms.
Prokopovych’s training, she then trained Ms. Salerno before Ms. Salerno participated in a single Code of
Conduct hearing, by way of a conversation. Salerno Dep., Ex. 11, Pl.’s Mot. for Summary Judgment at 16-
17. Ms. Sidarkis also testified to never undergoing any training specific to her role on the conduct
committee. Sidarkis Dep., Pl.’s Ex. 12 at 23:20-24:15.

22

indifference claim, fails.’ Federal courts have recognized that deliberate indifference claims can
reach a “flawed” hearings theory. Thus, it cannot be said that as a matter of law, such a theory is
not cognizable when a plaintiff sets forth a deliberate indifference claim. See Ross v. Univ. of
Tulsa, 180 F. Supp. 951, 970 (N.D. Ok. 2016) (“Ross has not cited a Title [IX case discussing a
‘sham process’ theory of deliberate indifference to a report of sexual violence. However, the Court
finds no reason to disallow such a theory so long as there is sufficient evidence to support it.
Intentionally biased student conduct proceedings, or clearly unreasonable methods of handling
student reports of sexual violence, seem to fit within the parameters of Title IX[.]”) For example,
in Doe v. Forest Hills School District, No. 13-428, 2015 WL 9906260 (W.D. Mich. March 31,
2015), the district court determined there was a triable issue of fact with respect to the plaintiffs
deliberate indifference claim where a jury could find that her school engaged in an insufficient and
untimely investigation, in part because the school conducted a limited investigation into the initial
report of sexual assault, as well as failed to consider witness statements and other evidence that
related to plaintiff's account of the sexual assault. Jd. at *11.8 Thus, the Court finds that Manor

7 In support of its position, Manor College states that typically, cases involving the theory that a Title
IX procedure was flawed involve plaintiffs who have been accused of misconduct. “When such cases are
brought, alternate theories are utilized, including the erroneous outcome and selective enforcement theories
under Title [X, and breach of contract pursuant to state law.” Jd., p. 34. Because Ms. Doe chose only to
pursue a deliberate indifference claim, according to the College, Ms. Doe cannot challenge the way in which
Manor College investigated her complaint of sexual assault.
§ The case law offered in support of Manor College’s position is unpersuasive. For example, the
school states that in Doe v. The Trustees of the University of Pennsylvania, 270 F. Supp. 3d 799 (E.D. Pa.
2017), the district court noted “courts across the nation have expressed serious skepticism that deliberate
indifference claims can be brought to challenge disciplinary proceedings{.]” Def.’s Memorandum of Law
in Support of Def.’s Mot. for Summary Judgment, p. 35. However, even the Trustees Court engaged in an
analysis of the merits of plaintiffs deliberate indifference theory with respect to the sexual assault hearing.
See id. at 825-826. Additionally, Manor College has failed to inform this Court that the Third Circuit Court
of Appeals reversed the decision it cites in Doe v. University of Sciences, No. 19-358, 2019 WL 3413821
(E.D. Pa. July 29, 2019). Even more, in University of Sciences, while addressing a Rule 12(b)(6) motion,
the district court expressly noted “it need not decide whether deliberate indifference is ever viable to

23

College has failed to meet its burden of showing that Title IX deliberate indifference claims, where
the purpose of Title IX is to reach sex-based discrimination at institutions receiving federal
funding, does not encompass conduct related to deficient or flawed investigations or hearings.”
b. The causation dispute.
Manor College also contends Ms. Doe has failed to show causation, namely, that its
deliberate indifference caused or made her vulnerable to harassment. It states that Jane Doe does
not assert that the assailants harassed her, but only that their friends did, and again, as a matter of
law, bullying and maliciousness are not cognizable harassment. That is, the harassment had
nothing to do with Jane Doe’s sex or gender.
The Court rejects the school’s contentions in this regard. In the Court’s view, and as Ms.
Doe aptly points out, “[w]Jhen a student reports a sexual assault, or she experiences harassment
because of her report of a sexual assault, it is sex-based[.]” Pl.’s Opp’n, p. 8. A factfinder could
determine that in the context of Ms. Doe’s assault allegation, she was harassed, by way of incident
reports for instance, because of her report of sexual assault and/or because she made a complaint
about Mr. Rice and Mr. Hardy specifically. As a matter of law, the Court cannot say, under these
circumstances, that the contacts and alleged hostility from Ms. Doe’s peers failed to amount to
sexual harassment. See Doe v. East Haven Bd. of Educ., 200 F. App'x. 46, 48 (2d Cir. 2006)

challenge university disciplinary proceedings because, even assuming it is, Doe’s claim is deficient.” Jd. at
*8.
° The Court also views the multitude of nuanced factual disputes with respect to the deliberate
indifference element the quintessential example of when material factual disputes lie. Moreover, to the
extent that Ms. Doe makes contentions that sound as if she is calling Manor College a liar, see P1.’s Opp’n,
pp. 19-21, the Court addresses these arguments in footnote 12, infra. With respect to Manor College’s
argument that “[t]he Theory of Deliberate Indifference Does Not Apply to Violations of Title Ix
Regulations,” the Court need not address this argument. Def.’s Memorandum of Law in Support of Def.’s
Mot. for Summary Judgment, p. 38. Neither Jane Doe’s complaint nor her motion papers address whether
she seeks to prove Manor College violated Titie IX in part by failing to adhere to administrative
requirements. Thus, the arguments as to the issue are not fully set forth and not ripe for the Court’s
consideration. |

24

(“Although we recognize that name-calling in school which implicates a student's sex does not
itself permit an inference of sex-based discrimination, ... we cannot exclude the possibility that
such name-calling in the context of a reported rape constitutes sexual harassment.”’).
For all of these reasons, the Court denies Manor College’s motion for summary judgment
as to Jane Doe’s discrimination claim.
Il. Retaliation under Title IX
With respect to Ms. Doe’s retaliation claim, the parties each seek summary judgment for
varying reasons. Manor College seeks summary judgment because it contends Ms. Doe has failed
to meet the prima facie elements of her case, as well as failed to show pretext. Jane Doe argues
she has met her burdens on all prongs of her case, regardless of whether she has done so via direct
or circumstantial evidence. At oral argument, the parties clarified their positions as to issues
relevant to the analysis here. The Court discusses them below, and addresses the remaining
disputes, in turn. For the reasons that follow, the Court will permit the retaliation claim to proceed.
a. Legal Standard
To establish a prima facie case of retaliation under Title IX, a pleat must show that: (1)
she engaged in activity protected by Title IX; (2) she suffered an adverse action; and (3) there was
a causal connection between the two. Doe v. Merty Catholic Med. Ctr., 850 F.3d 545, 564 (3d Cir.
2017). The parties agree that the familiar Title VII framework applies to the Court’s analysis of
the Title IX claim. If Jane Doe can satisfy the elements of the prima facie case, the analysis then
diverges depending upon the type of evidence available. See Atkinson v. Lafayette Coll., 653 F.
Supp. 2d 581, 594 (E.D. Pa. 2009) (citation omitted). “Where there is direct evidence of
retaliation, the defendant must demonstrate, by a preponderance of the evidence, ‘that it would
have reached the same decision’ absent Plaintiffs' protected conduct.’” Jd If there is only

25

circumstantial evidence of retaliation, the familiar burden-shifting framework with respect to a
pretext case applies. Mercy Catholic Med. Ctr., 850 F.3d at 564.
In the latter scenario, after the plaintiff has made out a prima facie case, the burden shifts
back to the defendant to articulate a legitimate, non-retaliatory reason for the adverse action. If
the defendant carries that burden, the burden shifts back to the plaintiff to prove that the legitimate
reason was not the defendant’s true reason. Rather, the true reason was retaliation. Although the
burden of production shifts under this analysis, the burden of proof always stays with the plaintiff.
Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). Thus, the Court first determines if there are
triable issues with respect to the elements of Ms. Doe’s prima facie ease and whether Ms. Doe has
proffered any direct evidence of retaliation.
b. Whether plaintiff engaged in protected activity.
i. Parties’ arguments
Manor College contends that only Ms. Doe’s initial complaint of sexual assault is protected
activity. It asserts that any other assertions of protected activity outside of her initial complaint do
not explicitly reference gender or sex, and oe at best, to complaints of unfair treatment, not
protected activity. Def.’s Mot., p. 56; Def.’s Memorandum of Law in support of Mot. for Summary
Judgment, pp. 54-55.
Ms. Doe asserts she engaged in protected activity not only by way of her initial complaint
but also in other ways. She represents she also engaged in protected activity when she challenged □

how Manor College treated her complaint; when she sought reconsideration of the Code of
Conduct Committee’s findings regarding the claim of sexual assault and distribution of a lewd
photo; questioned the adequacy and fairness of the Code of Conduct hearings and asked for help
because she did not feel safe on campus; asked for academic support and accommodations; and

26 .

sought outside review of the college’s treatment of her. Compl., J 115-19. Ms. Doe also cites
the many communications she sent to the school objecting to the treatment of her complaint.
ii. Discussion
Protected activity extends beyond formal complaints and includes “informal protests of
discriminatory . . . practices,” “making complaints to management” or administration, “writing
critical letters,” “protesting against discrimination by industry or society in general,” and the like.
Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 135 (3d Cir. 2006). That
is, explicit opposition to discrimination is not necessary, “[s]o long as it is ‘possible to discern
from the context of the statement” that an individual opposed an unlawful practice.” Dawn L. v.
Greater Johnstown Sch. Dist., 586 F. Supp. 2d 332, 374 (W.D. Pa. 2008) (citing Curay-Cramer,
450 F.3d at 135-36); see also Curay-Cramer, supra, 450 F.3d at 135 (“When deciding whether a
plaintiff has engaged in opposition conduct, we look to the message being conveyed rather than
the means of conveyance.”). To that end, however, “not every complaint about unfair practices or
perceived slights qualify as ‘protected activity.’” Isler v. Keystone Sch. Dist., No. 07-1335, 2008
WL 3540603, at *9 (W.D. Pa. Aug. 12, 2008), aff'd, 335 Fed. Appx. 200 (3d Cir. 2009).
Here, the dispute is not as to whether Jane Doe engaged in protected activity with respect
to her initial complaint of sexual assault. Rather, it is with respect to Ms. Doe’s assertion that she
engaged in protected activity when she made complaints about school’s response to her
allegation of sexual assault. At this time, the Court finds there is no dispute of material fact with
respect to whether Jane Doe ever engaged in protected activity. Sen when viewed in the light
most favorable to both parties, with respect to each opponent’s vocion the Court finds that Jane
Doe engaged in protected activity outside of her initial cereal assault complaint, at the very least,
when she made complaints about the school’s response to her complaint of sexual assault. This is

. 27

not to say that the parties may not dispute which specific instances of communications Ms. Doe
made actually constitute such protected activity. However, the burden of meeting a plaintiff's
prima facie case is not high. Consequently, the Court will grant Ms. Doe’s motion for summary
judgment on this element of her prima face case.
c. Adverse action
An adverse action is one that “well might have dissuaded a reasonable [person] from
making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 56-58 (2006). As to adverse action, Ms. Doe contends that Manor College “took multiple,
documented, uncontroverted adverse actions against [her] when it evicted her from the dormitory,
demanded she move off campus in 24 hours, sanctioned her with monetary fines and community
service, required her to attend counseling sessions, and threatened her with legal action.” □□□□□□
Mot. for Summary Judgment, p. 15. Manor College does not appear to dispute these actions as
adverse action. Rather, Manor College only asserts to the extent that Ms. Doe relies on an
allegation that the sexual assault hearing was unfair or defective, such conduct cannot meet the
second element of her prima facie case. At oral argument, counsel for Ms. Doe clarified that Ms.
Doe does not rely on this theory of adverse action. Thus, the Court finds there is no triable issue
with respect to this prong, and grants Jane Doe’s motion for summary judgment as to adverse
action. .
d. Causation
With respect to causation, the parties dispute whether Jane Doe has offered direct evidence
of causation, or only circumstantial evidence. Thus, determining whether there are triable issues
with respect to this element, and if so, to what extent, depends in part on whether the Court finds
Jane Doe has presented direct evidence of retaliation.

28

i. Direct evidence of causation.
Ms. Doe argues the following actions were taken by the president of the college, Mr.
Peri, and these actions show direct evidence of the causal connection between her protected
activity and the adverse actions Manor College took.
e On December 31, 2016, Mr. Peri threatened Ms. Doe with civil legal action after she
contacted the school to process the return of her dorm room deposit.
e Manor College threatened Ms. Doe with civil action when she was evicted from her
dormitory, citing her communications campus-wide.
e Inthe same email in which Mr. Peri responded to the U.S. Department of Education Office
for Civil Rights (“OCR”) during its investigation, he inquired into whether the College
could sue Doe for a bad-faith complaint.
e When Ms. Doe retained counsel to assist her in her claims against the college, Mr. Peri
responded to the attorney’s engagement by expressing the following: “I can assure you that
Manor College will do everything in its power to show any court of law that [Ms. Doe’s]
claims are wholly frivolous. Manor College will also bring whatever civil actions are
necessary to evidence your client’s frivolous claims, and by virtue of your representation
your frivolous [assertion of Doe’s Title IX claims].”
Pl.’s Mot. for Summary Judgment, pp. 17-21. Ms. Doe also points to the refusal to allow use of
the audio recording in the Code of Conduct hearings, and a more general “pattern of threats and
open hostility” as direct evidence of causation.
The Court finds that Ms. Doe has not presented direct evidence. “Direct evidence means
evidence sufficient to allow the jury to find that the decision makers placed substantial negative
reliance on [the protected activity] in reaching their decision to [take adverse action].” Conoshenti
v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 147 n.10 (3d Cir. 2004). It is evidence that does not
require any process of inference to prove an ultimate fact in the case, save inferences of credibility.
Woodson v. Scott Paper Co., 109 F.3d 913, 939 (3d Cir. 1997).
First, Ms. Doe has mischaracterized some of the proofs she asserts as showing direct
evidence of retaliation.

29

Second, each proof proffered requires an inference in order to come to the ultimate
conclusion that any “protected activity” was the cause of the adverse action.
For example, in the letter dated November 18, 2016, in which Manor College required Ms.
Doe to move out of her dormitory, the school cites Ms. Doe’s multiple sanctions as the basis for
the eviction. It cites “continued correspond[ence] with individuals in and across the community
instead of following institutional policies and procedures on how to properly address Code of
Conduct concerns,” and Ms. Doe’s use of “prolific, harassing and potentially slanderous or
libel[o]us communications across [the] institution.” Ex. 19, Pl.’s Mot. for Summary Judgment.
The letter further provides the potential basis for the school’s consideration of civil remedies
against her. While the language in the letter may indeed be harsh, ultimately, an inference is
required to determine which communications the school is specifically referring to that may
constitute protected activity. The Court notes that Manor College has cited to communications
Ms. Doe made to the schoo! that appear to have nothing to do with Ms. Doe’s asserted protected
activity.
As another example, with respect to the communication to Jane Doe’s attorney, the full
context of the communication shows that Mr. Peri reached out to Ms. Doe’s counsel because he
had just been informed of Ms. Doe’s alleged attempts to bribe students in support of her civil
action. For this reason, an inference can be made that that is the reason why he called Ms. Doe’s

10 For example, Manor College cites to an email between-Jane Doe and her professor as an example
of the kind of prolific emailing Jane Doe engaged in. Ex. 1, Def.’s Response to PI.’s Mot. for Summary
Judgment. The email itself does not reference her sexual assault complaint or her concerns related to her
treatment after she made the complaint. The school also contends that it used the term “potentially libelous,”
in part, because in an email to Ms. Gillespie, Ms. Doe indicated she filed an appeal of her sexual assault
determination because “the police had gotten involved and this is an illegal case of sexual assault.” Ex. 45,
Def.’s Mot. for Summary Judgment. According to Manor College, Ms. Doe was told to stop perpetuating
misrepresentations across the school because the police in fact never determined a sexual assault had
occurred.

30

case frivolous, as well as why he made assurances as to utilizing civil recourse to protect the
school’s interest. The Court determines that because an inference, for all the evidence Ms. Doe
cites, is required to reach the conclusion that the school or Mr. Peri engaged in adverse action in
substantial reliance on her protected activity, such evidence is not direct evidence of causation.!!
ii. Does the circumstantial evidence create a triable issue as to causation?
However, the evidence offered above, as well as other proofs proffered by Jane Doe
demonstrate circumstantial evidence of causation. A Title IX plaintiff may demonstrate causation
in three ways: (1) by way of temporal proximity between the adverse action and the protected
activity, (2) by showing a “pattern of animus” after the protected activity; or (3) “by other
circumstantial evidence concerning the” school’s vicki including “inconsistent reasons
given” by the school or its treatment of others. Atkinson, 653 F. Supp. 2d at 603 (citing Theriault
v. Dollar Gen., 336 F. App’x 172, 174-75 (3d Cir. 2009)).
Here, the record reflects sufficient temporal proximity me between the first complaint
of sexual assault and the repeated complaints and concerns Ms. Doe made thereafter, and repeated
sanctions lodged against her. The following timeline of events exemplifies this proximity.
e Jane Doe made her initial complaint of sexual assault jon September 21, 2016.
e Acouple days later, she was written up and later sanctioned for disorderly conduct
related to altercations with girls in her residence hall.

Moreover, the non-binding cases Ms. Doe cites do not support her position. See, e.g., Burnell v.
Gates Rubber Co., 647 F.3d 704, 709 (7" Cir. 2011) (finding direct evidence of causation where the plaintiff
had made previous complaints of racial discrimination and a former supervisor decided to terminate the
plaintiff in the same conversation that the supervisor mentioned the plaintiff was again “playing the race
card... [and] this was the last straw”); Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6" Cir. 2003)
(“[P]laintiff's tendered evidence is not direct because, even if it were believed, it would not require the
conclusion that defendant retaliated against plaintiff; rather, one would draw that conclusion only by
making a series of inferences arising from plaintiff's evidence.”).

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e After the Code of Conduct Committee told Jane Doe that it found the two men did
not sexually assault her, beginning on September 29, 2016, Jane Doe
communicated her disagreement with the assault determination to the college.
e On October 4, 2016, three days after Ms. Doe lodged an official appeal of the sexual
assault decision, she was found to have violated the Code of Conduct for her audio
recording.
e Manor College sanctions Ms. Doe for additional misconduct, and eventually
dismisses her from the College on November 18, 2016.
e All this activity takes place over the course of less than two months from her initial
complaint, and within days or weeks of Jane Doe raising additional objections to
the College’s response to her initial complaint as well as its failure to make
accommodations for Ms. Doe.
In addition to temporal proximity, Ms. Doe has pointed to evidence of alleged hostility,
including the numerous sanctions she endured, alleged Soentfontericent harassment and lack of
accommodations, and purported threats from the college, such that a factfinder could determine
that the hostility was due to Ms. Doe’s protected activity. Perhaps a jury could read the November
18, 2016 letter evicting Ms. Doe from her dormitory as such evidence, in light of another email
from Ms. Mootz stating the letter dismissing Jane Doe from the dormitory would be given later
that day. That second, earlier letter states Ms. Doe “came to my office .. . and was quite aggressive
again. We also found out that she has been in contact with another employee, [a campus ministry
representative] regarding the situation and has continued to state that we are unsupportive.” Ex.
18, Pl.’s Mot. for Summary Judgment. From these facts, an inference could be made that the
eviction was not based on prior sanctions, as it states, or that the other sanctions were based on

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bad behavior, but on Ms. Doe’s repeated complaints about the treatment of her assault claim to the
school.!?
But, that is not the only inference that can be made from the letters. Manor College has
otherwise pointed to legitimate reasons for the actions it took, including that it sanctioned Ms. Doe
for misbehavior. Consequently, the Court finds that the issue of causation must go to a jury.”
e. Pretext
Finally, the Court addresses whether there are triable issues related to Ms. Doe’s pretext
claim. At trial, she must “convince the factfinder both that the [school’s] proffered reason was
pretext, and that retaliation was the real reason for the adverse [ ] action.” Collins v. Kimberly-
Clark Pa., LLC, 247 F. Supp. 3d 571, 597 (E.D. Pa. 2017), aff'd, 708 F. App’x 48 (3d Cir. 2017).
Thus, to survive summary judgment on this prong, the parties must each produce sufficient
evidence such that a jury could either find that retaliation was the real reason for the adverse action
or no evidence exists to rebut Manor College’s legitimate reasons for sanctioning Ms. Doe. For
the same reasons that the Court determines there are triable issues with respect to the prima facie
element of causation, there are also material factual disputes with respect to pretext. In considering

12 Ms. Doe also relies on Manor College’s reporting data under requirements set forth by the Clery
Act, 20 U.S.C. § 1092, et seg. as well as the alleged treatment of similarly situated sexual assault victims
in an attempt to demonstrate circumstantial evidence of retaliation (and of discrimination). The Court need
not address the merits of this proffered evidence at this time, but cautions the implied inference Ms. Doe
seeks to make with this evidence. On multiple occasions, including on this one, Ms. Doe has sought to
paint the picture that the school, through its representatives, is a liar. As set forth at oral argument, such
accusatory language does not support, in this Court’s negative view of such “advocacy,” either of the
parties’ efforts here.
3 The parties do not appear to dispute whether Manor College has met its burden of production on
proffering a legitimate, non-retaliatory reason for its actions. Nor does the Court find Jane Doe could
plausibly contest Manor College has met its burden. Thus, under the McDonnell Douglas framework, the
Court addresses next whether material factual disputes exist with respect to the pretext prong.

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all of the circumstantial evidence proffered and record as a whole, inferences can be made to
support both parties’ positions on pretext.’
Manor College also offers comparator evidence contending that because others were
sanctioned similarly to Ms. Doe, she cannot demonstrate pretext. The evidence itself cannot sustain
Manor College’s burden on its motion for summary judgment. Manor College’s purported
comparator evidence, see Ex. 61, Def.’s Memorandum of Law in Support of Def.’s Mot. for
Summary Judgment, suffers from several flaws.
First, Manor College relies on a sanction related to a male student who took a photo during
a sex act to show Jane Doe would have been sanctioned for her recording regardless of her report
of sexual assault. But, Manor College’s record proof that Jane Doe was sanctioned in the same □

way belies its contention. Ms. Doe claims she made a recording during an alleged coerced act. The
record cited by Manor College shows the man took the photograph during a consensual sex act.
The man is not a sufficient comparator. McCormick v. Allegheny Valley School, No. 06-3332, 2008
WL 355617, at *11 (E.D. Pa. Feb. 6, 2008) (“[FJor fellow [alleged comparators] to be considered
similarly situated, they must have ‘engaged in the same conduct without such differentiating or
mitigating circumstances that would distinguish their conduct or the[ir] . .. treatment... for it.’”)
Second, the remainder of the comparator evidence is unavailing. Manor College provides
a chart that lists the year in which a student was sanctioned, for what alleged violation they were
sanctionéd, and what they were sanctioned with. But the chart is not helpful because it provides

This is so, even.under Manor College’s purported but-for burden of persuasion under the pretext
prong. See Def.’s Mot. for Summary Judgment, p. 71 (Manor College advocating “to prove causation at the
pretext stage, the plaintiff must show she would not have suffered the adverse action ‘but for’ her protected
activity.”; “Doe must also demonstrate that the ‘unlawful retaliation would not have occurred in the absence
of the alleged wrongful action or actions of the’ college.”) For this reason, the Court need not address at
this time whether Ms. Doe must prove causation at trial on the basis of a but-for standard.

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no additional information with respect to the circumstances under which the school sanctioned the □□□
students. For example, was the student also a “victim” of some sort? Did he or she complain
about the school’s response to a complaint? Did the student engage in prior misconduct? Manor
College’s characterization of the data is not enough. The facts themselves must give some support
to those characterizations. The questions left by the purported comparator evidence, as presented,
require the Court to speculate as to their import. At this time, if credited, the only fact the charts
show is the fact of the college disciplining its students, nothing more. Consequently, the Court □

rejects Manor College’s comparator argument.
For all these reasons, the Court determines that Ms. Doe’s retaliation claim must be
decided by a jury.
Hil. Motion in limine
As to Ms. Doe’s motion in limine, during oral argument, the Court denied Ms. Doe’s
motion. Citing to Federal Rules of Evidence 403 and 702, Ms. Doe asserts that the testimony of
Defendant’s expert, Stephen Mechanick, M.D.,'> must be precluded. Dr. Mechanik is a
psychiatrist who was tasked to evaluate Ms. Doe’s psychiatric condition, including her condition
as it relates to her allegations in the complaint. The Court provided the general parameters in
which Dr. Mechanik’s testimony may be relevant. Thus, for the reasons set forth on the record,
the Court denies Ms. Doe’s motion without prejudice.
CONCLUSION
By way of the parties’ advocacy, they have evidenced the severity of the allegations at
issue in this case. However, the Court’s task today is not to evaluate the seriousness of the
averments, but the factual sufficiency of them. For the reasons set forth in this Memorandum, the

Is Dr. Mechanik performed Ms. Doe’s Rule 35 psychiatric examination.

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Court will permit both of Ms. Doe’s.claims to proceed to trial. Both parties haye raised triable
issues with respect to.the Title IX claims, such that a factfinder must ultimately determine the
validity of Jane Doe’s causes of action. Consequently, the Court grants in part and denies in part
the cross-motions for summary judgment. The Court also denies without prejudice the motion in
limine. An appropriate order follows. a oe

a □ _ . «-<BYTHEZOURT: |...

“of GENE E.K. PRATTER
UNITED STALES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10666706. Public record. Not legal advice.