Petition for Writ of Certiorari — Sergio Verdu, Petitioner v. Trustees of Princeton University, et al.

Supreme Court briefDec 22, 2022

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APPENDIX

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 20-1724

SERGIO VERDU,

Appellant

T HE T RUSTEES OF P RINCETON U NIVERSITY ; T HE

B OARD OF T RUSTEES OF P RINCETON U NIVERSITY ;

CHRISTOPHER L. EISGRUBER; DEBORAH A. PRENTICE;

REGAN CROTTY; TONI MARLENE TURANO; LISA M.

SCHREYER; MICHELE MINTER; CLAIRE GMACHL; CHERI

BURGESS; LYNN WILLIAM ENQUIST; SUSAN TUFTS

FISKE; CAROLINA MANGONE; HARVEY S. ROSEN; IRENE

V. SMALL

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 3-19-cv-12484)

District Judge: Honorable Freda L. Wolfson

Submitted under Third Circuit LAR 34.1(a)

On June 24, 2021

Before: CHAGARES, Chief Judge,

PORTER and ROTH, Circuit Judges

(Opinion filed: September 27, 2022)

OPINION*

ROTH, Circuit Judge.

Sergio Verdu served as a tenured professor in the

electrical-engineering department at Princeton

University before his termination in 2018. Verdu

asserts that Princeton and its agents (collectively,

Princeton) violated his rights when it terminated

him, so he filed a complaint in the District Court

asserting violations of Title IX and of Title VII and

state-law claims. Princeton moved to dismiss the

complaint, and the District Court granted the

motion. In doing so, the District Court ruled that

Verdu failed to state a plausible claim for relief

under either Title IX or Title VII. The District

Court then declined to exercise supplemental jurisdiction over Verdu’s state-law claims. Finding no

error, we will affirm the order of the District Court.

I.1

Verdu taught at Princeton for nearly thirty-five

years. In April 2017, Yeohee Im, a graduate stu* This disposition is not an opinion of the full Court and,

under I.O.P. 5.7, does not constitute binding precedent.

These facts are taken from the complaint and treated

as true because, in reviewing a denial of a motion under Federal Rule of Civil Procedure 12(b)(6), we accept as true all

well-pleaded allegations and construe the complaints in the

dent at Princeton, reported Verdu for sexual

harassment. Princeton investigated the charge and

determined that Verdu had violated Princeton’s

sexual-misconduct policy. Princeton disciplined

Verdu by putting him on probation for a year.

According to Verdu, Im did not believe that

Princeton punished Verdu sufficiently. That feeling

was enhanced by Im’s relationship with Paul Cuff,

a former assistant professor at Princeton who held

a grudge against Verdu. When Princeton denied

Cuff tenure, Cuff blamed Verdu. Verdu believed

that Cuff then influenced Im to engage in a publicpressure campaign against Verdu.2 Im’s campaign

led to calls for Verdu’s termination.

In September 2017, Princeton launched a second

investigation into Verdu. The second investigation

involved an alleged romantic relationship between

Verdu and another Princeton graduate student,

E.S., a student whose graduate dissertation Verdu

had evaluated. According to Verdu, the second

investigation was caused, at least in part, by Im’s

efforts to find evidence about the relationship

between Verdu and E.S. At first, Verdu and E.S.

denied that they had had any romantic relationship, Princeton, however, ultimately concluded

that Verdu and E.S. engaged in an impermissible

romantic relationship while Verdu evaluated her

light most favorable to the plaintiff. See Lewis v. Atlas Van

Lines, Inc., 542 F.3d 403, 405 (3d Cir. 2008).

Verdu alleges that Im violated numerous policies and

rules at Princeton when she executed her alleged public-pressure campaign.

dissertation. Verdu later admitted that he and E.S.

did engage in a romantic relationship during that

period. As punishment, Princeton’s president recommended that Verdu be fired. The president

based his recommendation on the fact that Verdu

had lied during the investigation.

Verdu asserts that both investigations involved

discrimination against him because of his sex. He

claims that Princeton’s investigations were defective because of alleged procedural anomalies, Im’s

public-pressure campaign, and other public pressures on Princeton to more rigorously investigate

and punish any on-campus sexual misconduct.

Verdu sued Princeton in the District Court. The

court dismissed his suit because Verdu failed to

plausibly allege his federal-law claims. Verdu’s

appeal is now before us.

II.

The District Court had subject-matter jurisdiction over Verdu’s federal claims under 28 U.S.C.

§ 1331. Although the District Court dismissed

Verdu’s complaint without prejudice, Verdu stood

on his complaint by filing his appeal and by making

certain representations in his appellate briefing.

“Although generally a plaintiff who decides to

stand on the complaint does so in the district

court[,] . . . we have made clear that such a course,

while preferable, is not always necessary.”3 When a

plaintiff “declare[s] [his] intention to stand on [his]

Remick v. Manfredy, 238 F.3d 248, 254 (3d Cir. 2001).

complaint in this [C]ourt[,] . . . we thereafter

treat[ ] the district court’s order dismissing the

complaint, albeit without prejudice, as a final order

dismissing with prejudice . . . .”4 Verdu unequivocally stated his intention to stand on his complaint

in his briefing before us.5 Thus, we have appellate

jurisdiction under 28 U.S.C. § 1291. We review de

novo an order granting a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6).6

III.

Verdu’s first contention is that the District Court

erred when it dismissed his claims for relief under

Title IX of the Education Amendments of 1972.

Title IX provides that “[n]o person . . . 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.”7 In Doe

Id. (citing Semerenko v. Cendant Corp., 223 F.3d 165,

172–73 (3d Cir. 2000)); see also Pascack Valley Hosp. v. Local

464A UFCW Welfare Reimbursement Plan, 388 F.3d 393, 398

(3d Cir. 2004) (“At oral argument [before us], counsel for the

Hospital declared the Hospital’s intention to . . . stand on its

complaint. Counsel’s declaration is sufficient to render the

District Court’s order final and appealable.”).

See, e.g., Appellant’s Opening Br. at 21–22. Princeton

does not contest whether Verdu has clearly stood on his complaint; nor does it contest our appellate jurisdiction.

See, e.g., Connelly v. Lane Constr. Corp., 809 F.3d 780,

786 n.2 (3d Cir. 2016).

20 U.S.C. § 1681(a).

v. University of the Sciences, 8 we adopted a

“straightforward pleading standard” and held

“that, to state a claim under Title IX, the alleged

facts, if true, must support a plausible inference

that a federally-funded college or university discriminated against a person on the basis of sex.”9

Plaintiffs, of course, remain “free to characterize

their claims however they wish.”10

In his complaint, Verdu states three theories

under which Princeton discriminated against him:

erroneous outcome, selective enforcement, and

retaliation.

1. Erroneous Outcome. Verdu claims that Princeton discriminated against him based on his sex by

reaching the incorrect conclusion both times that it

investigated him.

As for the first investigation, Verdu attempts to

show that Princeton discriminated against him

based on his sex when it investigated and disciplined him based on (1) generalized archaic stereotypes about the sexes, (2) the history of complaints

to the Department of Education’s Office for Civil

Rights about Princeton’s purported failure to

respond adequately to allegations of sexual misconduct advanced by female students and the resulting

pressure on Princeton to remedy that perception,

961 F.3d 203 (3d Cir. 2020). We reaffirmed that pleading standard more recently in Doe v. Princeton University,

30 F.4th 335, 343 (3d Cir. 2022).

Univ. of the Scis., 961 F.3d at 209.

Id.

and (3) the fact that three female graduate students studying in a different department at Princeton left abruptly and, as a result, Princeton held a

townhall meeting concerning systematic and longterm sexual harassment within that department.

The District Court correctly found that, based on

those allegations, Verdu had failed to state a plausible claim that, because of his sex, Princeton

investigated and sanctioned him. Verdu’s allegations simply reflect the pressure on Princeton to

enforce its sexual-misconduct policy. These allegations alone are not enough to state a plausible

claim against Princeton under Title IX.11

As for Princeton’s second investigation of Verdu,

the District Court found that Verdu’s erroneousoutcome theory could not survive a motion to dismiss because he failed to sufficiently plead his

innocence. As we explained in University of the

Sciences, we have a standard based on the text of

Title IX itself: “the alleged facts, if true, must support a plausible inference that a federally-funded

college or university discriminated against a

person on the basis of sex.”12 Verdu failed to satisfy

that standard.

On appeal, Verdu contends that his complaint

alleges that the second investigation suffered from

Id. at 210 (“Like our colleagues on the Sixth and Seventh Circuits, we . . . recognize that allegations about pressure from [the Department of Education] and the 2011 Dear

Colleague Letter cannot alone support a plausible claim of

Title IX sex discrimination.” (citations omitted)).

Id. at 209.

sex bias because of a purported lack of evidence of

sexual misconduct, Princeton’s decision to press

the investigation despite E.S. not wanting one to

occur, procedural irregularities in the investigation, and a variety of public pressures placed on

Princeton. However, the District Court found that,

in his own complaint, Verdu acknowledged that he

violated Princeton’s policies: “Plaintiff alleges in

the [c]omplaint that he and E.S. commenced a relationship in Spring 2014, that the relationship was

ongoing during the period when Plaintiff evaluated

E.S.’s dissertation, and that [Princeton’s] rules at

the time prohibited ‘sexual or romantic relation[s]

involv[ing] individuals in a teacher-student relationship.’ ”13 Verdu’s admission of guilt undercuts

the strength of his allegations that Princeton

investigated him because of his sex. As a result,

Verdu’s allegations concerning the second investigation also fall short.

2. Selective Enforcement. Verdu claims that both

the first and second investigation suffered from sex

bias because Princeton selectively enforced its policies against him. He is wrong. As for the first

investigation, Verdu claims that Princeton discriminated against him based on his sex because (1) on

information and belief, females are purportedly

investigated less frequently than males, (2) on

information and belief, females are punished less

severely than males, and (3) Princeton treated his

App. 15 (cleaned up); see also Compl.

298(h).

¶¶ 229,

235,

accuser, Im, differently than it treated him during

the first investigation. As for the allegations about

how females and males are generally treated differently, those allegations are too abstract to support

a claim of sex bias under Title IX.14 In addition, the

purported differences in how Princeton treated

Verdu and Im are too conclusory to support a plausible claim for relief.15

As for the second investigation, Verdu asserts

essentially the same arguments to support his

selective-enforcement theory as he asserts to support his erroneous-outcome theory. For substantially the same reasons that we reject those

arguments in support of his erroneous-outcome

theory, we reject them in support of his selectiveenforcement theory.

3. Retaliation. Verdu challenges the District

Court’s order dismissing his Title IX retaliation

claim. To state a claim for retaliation under Title

IX, the plaintiff must plausibly allege that he

“engaged in activity protected by Title IX, that he

“suffered an adverse action,” and that “there was a

causal connection between the two.”16 “Retaliation

against a person because that person has complained of sex discrimination is another form of

See Univ. of the Sciences, 961 F.3d at 209–11.

See, e.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007).

See, e.g., Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545,

564 (3d Cir. 2017) (cleaned up); Moore v. City of Phila.,

461 F.3d 331, 340–42 (3d Cir. 2006).

10a

intentional sex discrimination encompassed by

Title IX’s private cause of action.”17 A plaintiff

alleging retaliation “need not prove the merits of

the underlying discrimination complaint, but only

that ‘he was acting under a good faith, reasonable

belief that a violation existed.’ ”18

The District Court found that, at a minimum,

Verdu failed to allege that he engaged in activity

protected by Title IX. As we explained earlier, Title

IX protects against discrimination because of sex.

In his complaint, Verdu alleges merely that he

reported being subjected to a “hostile work environment” because of Im’s pressure campaign. 19

Verdu’s complaint never connects the purported

“hostile work environment” and Im’s public-pressure campaign to any purported sex-based discrimination. For that reason, Verdu’s complaint does

not include plausible allegations that Verdu’s conduct of reporting the alleged “hostile work environment” is protected by Title IX.20 Thus, the District

Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173

(2005).

Aman v. Cort Furniture Rental Corp., 85 F.3d 1074,

1085 (3d Cir. 1996) (quoting Griffiths v. CIGNA Corp., 988

F.2d 457, 468 (3d Cir. 1993)).

To be sure, the alleged “hostile work environment” is

related to publicity surrounding Princeton’s first Title IX

investigation into him. However, that is not a sufficient connection by itself to show that the purported “hostile work

environment” was caused by sex discrimination directed at

Verdu.

See, e.g., Twombly, 550 U.S. at 570; cf. Sitar v. Ind.

DOT, 344 F.3d 720, 727 (7th Cir. 2003) (holding that, in Title

11a

Court correctly dismissed Verdu’s retaliation

claim.

IV.

Next, Verdu challenges the District Court’s dismissal of his Title VII claims. Title VII makes it

unlawful “for an employer . . . to discharge any

individual, or otherwise to discriminate against

any individual with respect to his compensation,

terms, conditions, or privileges of employment,

because of such individual’s . . . sex.”21 Verdu

alleges that Princeton violated Title VII under two

theories: one alleging disparate treatment and the

other alleging a hostile work environment.

1. Disparate Treatment. To allege plausibly a

disparate-treatment claim under Title VII, a plaintiff must allege that (1) he is a member of a protected class, (2) he is qualified for the position he

sought to retain or attain, (3) he suffered an

adverse employment action, and (4) the adverse

action occurred under circumstances that may give

rise to an inference of intentional discrimination.22

The “central focus of the prima facie [Title VII]

case is always whether the employer is treating

some people less favorably than others because of

VII context, the plaintiff had not engaged in protected activity because she “complained only that she felt picked on, not

that she was discriminated against ‘because of’ sex or gender,

which is what Title VII requires”).

42 U.S.C. § 2000e–2(a) (emphasis added).

See Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008).

12a

their race, color, religion, sex, or national origin.”23

“The evidence most often used to establish . . . disparate treatment” involves “a plaintiff show[ing]

that [he] was treated less favorably than similarly

situated employees who are not in [his] protected

class.”24

The District Court found that Verdu failed to

allege that he received different treatment by

Princeton than a similarly situated female. He

never identifies a female professor at Princeton as

a comparator; at most, his complaint alleges that

Im—a graduate student and his accuser—is a valid

comparator. Although a plaintiff need not show an

exact match between himself and the comparator,

he must show a sufficient similarity.25 Verdu, a

professor, and Im, a graduate student, hold

unquestionably different roles and levels of authority at Princeton. Verdu has not alleged enough

commonalities to show that they are sufficiently

alike to be considered valid comparators. Although

on appeal Verdu contends that one can infer that

Princeton discriminated against him because of his

Sarullo v. U.S. Postal Serv., 352 F.3d 789, 798 (3d Cir.

2003) (emphasis added) (cleaned up).

Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 366 (3d

Cir. 2008); see also Simpson v. Kay Jewelers, Div. of Sterling,

Inc., 142 F.3d 639, 645 (3d Cir. 1998).

See, e.g., Johnson v. Kroger Co., 319 F.3d 858, 867 (6th

Cir. 2003) (“In the context of personnel actions, the relevant

factors for determining whether employees are similarly situated often include the employees’ supervisors, the standards

that the employees had to meet, and the employees’ conduct.”

(cleaned up)).

13a

sex, none of his allegations plausibly support that

contention.26 His disparate-treatment claim therefore must fail.

2. Hostile Work Environment. To allege a plausible hostile-work-environment claim under Title VII,

a plaintiff must allege that (1) he suffered intentional discrimination based on his being a part of a

protected class, (2) the discrimination was severe

or pervasive; (3) the discrimination had a detrimental influence on the plaintiff; (4) the discrimination would have had a detrimental influence on a

reasonable person in similar circumstances; and (5)

respondeat-superior liability exists.27

The District Court found that Verdu failed to

allege sufficiently the first element: whether any

harassment that he suffered was motivated by sex

discrimination. The District Court’s analysis is correct. In his complaint, Verdu explains that Im’s

public-pressure campaign, along with other public

pressures on Princeton concerning on-campus sexual harassment, led to Verdu facing public scrutiny

from his colleagues and students at Princeton. All

of that, according to Verdu’s complaint, caused him

stress, anxiety, elevated blood pressure; all of it

also allegedly led to a “hostile work environment”

for Verdu.

However, Verdu never plausibly alleges that Im’s

pressure campaign and the “hostile work environ26

See supra § 2.

See, e.g., Mandel v. M & Q Packaging Corp., 706 F.3d

157, 167 (3d Cir. 2013).

14a

ment” that purportedly resulted from it were motivated by sex discrimination. If anything, Verdu

alleges that Im launched her pressure campaign

because she felt “[d]issatisfied with [the] sanction”

of Verdu. 28 Additionally, his complaint makes

much of Im’s purported relationship with Professor

Cuff. According to Verdu, Cuff “held a grudge

against” him because Cuff blamed Verdu for his

failure to obtain tenure.29 Based on Im allegedly

“[h]aving developed a close relationship with Cuff,”

she purportedly filed her grievances against Verdu

based on Cuff’s alleged encouragement.30 Those

allegations do not relate to sex discrimination;

instead, they relate to a purported feud between

Cuff and Im, on one hand, and Verdu, on the other.

That is not enough to allege a plausible hostilework-environment claim based on sex discrimination. “Many may suffer severe or pervasive

harassment . . . , but if the reason for that harassment is one that is not proscribed by Title VII, it

follows that Title VII provides no relief.”31 Thus,

the District Court properly dismissed Verdu’s hostile-work-environment claim under Title VII.

Compl. ¶ 12.

Compl. ¶ 4.

Compl. ¶¶ 6–7.

See, e.g., Jensen v. Potter, 435 F.3d 444, 449 (3d Cir.

2006), overruled in part on other grounds by Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

15a

The District Court properly dismissed the federal-law claims asserted in Verdu’s complaint for

failure to state a claim. We will affirm the District

Court’s order dismissing Verdu’s complaint.32

Having dismissed all federal-law claims and failing to

find any other basis for subject-matter jurisdiction over

Verdu’s state-law claims, the District Court declined to exercise supplemental jurisdiction over the state-law claims. See,

e.g., Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788

(3d Cir. 1995) (stating that, when “the claim[s] over which the

district court has original jurisdiction [are] dismissed before

trial, the district court must decline to decide the pendent

state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative

justification for doing so.”). Verdu makes no contrary argument.

16a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY(v. Action No.

19-12484 (FLW)

SERGIO VERDU,

Plaintiff,

THE TRUSTEES OF PRINCETON UNIVERSITY, et al.,

Defendants.

ORDER

THIS MATTER having been opened to the Court by

Linda Wong, Esq., counsel for Defendants,1 on a

motion to dismiss the Complaint filed by Plaintiff

Sergio Verdu; it appearing that Plaintiff, through

his counsel, Adrienne Levy, Esq., opposes the

motion; the Court having considered the parties’

submissions in connection with the motion without

oral argument, pursuant to Fed. R. Civ. P. 78; for

the reasons set forth in the Opinion filed on this

date, and for good cause shown,

IT IS on this 30th day of March, 2020,

The Complaint names the following defendants: The

Trustees of Princeton University, the Board of Trustees of

Princeton University, Christopher L. Eisgruber, Deborah A.

Prentice, Regan Crotty, Toni Marlene Turano, Lisa Michelle

Schreyer, Michele Minter, Claire Gmachl, Cheri Burgess,

Lynn William Enquist, Susan Tufts Fiske, Carolina Mangone,

Harvey S. Rosen and Irene Small.

17a

ORDERED that Plaintiff’s federal claims (i.e.,

Count I, Count II, Count III, and Count IV of the

Complaint) are dismissed, pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure, for

failure to state a claim; and

FURTHER ORDERED that, pursuant to 28 U.S.C.

§ 1367(c)(3), the Court declines to exercise supplemental jurisdiction over Plaintiff’s state law claims

(i.e., Count V, Count VI, Count VII, Count VIII,

Count IX, Count X, Count XI, Count XII, Count

XIII, Count XIV, Count XV, and XVI of the Complaint); and

FURTHER ORDERED that Plaintiff is given leave

to file an amended complaint, consistent with the

Opinion filed on this date, within forty-five (45)

days of the date of this Order; and

FURTHER ORDERED that, if Plaintiff adequately

pleads one or more of his federal claims in an

amended complaint, the Court may exercise any

supplemental jurisdiction at that time; and

FURTHER ORDERED that, in lieu of filing an

amended complaint in federal district court, Plaintiff may pursue his state law claims in state court,

and the limitations period for each of those claims

is tolled, to the extent the limitations period has

not already expired, for a period of thirty (30) days,

pursuant to 28 U.S.C. § 1367(d).

/s/ Freda L. Wolfson

Hon. Freda L. Wolfson

U.S. Chief District Judge

18a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civ. Action No. 19-12484 (FLW)

SERGIO VERDU,

Plaintiff,

THE TRUSTEES OF PRINCETON UNIVERSITY, et al.,

Defendants.

OPINION

I. INTRODUCTION

Plaintiff Sergio Verdu (“Plaintiff”), a former professor in the Department of Electrical Engineering

at Princeton University (the “University”), was terminated from his employment with the University

in September 2018. His termination followed two

separate investigations by the University, which

concluded that Plaintiff had violated the University’s rules and policies governing sexual misconduct, prohibiting certain relationships between

teachers and students, and requiring faculty members to be honest during interviews with investigators. In this action, Plaintiff sues the University,

the University’s Board of Trustees, and certain

administrators of the University who were involved

19a

in the investigations (collectively, “Defendants”),1

claiming, among other things, that the University’s

proceedings were tainted with gender bias against

him. The Complaint asserts claims for violations of

Title IX of the Education Amendments of 1972

(Counts I thru III) and of Title VII of the Civil

Rights Act of 1964 (Count IV). The Complaint also

asserts a host of state statutory and common law

claims (Counts V thru XIV).

Presently before the Court is Defendants’ motion

to dismiss the Complaint pursuant Rule 12(b)(6)

of the Federal Rules of Civil Procedure. For the

reasons set forth below, Defendants’ motion is

GRANTED IN PART and DENIED IN PART. Plaintiff’s

federal claims (Counts I thru IV) are dismissed for

failure to state a claim, and the Court declines to

exercise supplemental jurisdiction over Plaintiff’s

state law claims (Counts V thru XVI) at this time.

Plaintiff is given leave to file an amended complaint to replead his federal claims, in a manner

consistent with this Opinion, within forty-five

(45) days. In lieu of filing an amended complaint,

Plaintiff may pursue his state law claims in state

court.

The Complaint names the following administrators of

the University as defendants: Christopher L. Eisgruber, Deborah A. Prentice, Regan Crotty, Toni Marlene Turano, Lisa

Michelle Schreyer, Michele Minter, Claire Gmachl, Cheri

Burgess, Lynn William Enquist, Susan Tufts Fiske, Carolina

Mangone, Harvey S. Rosen and Irene Small.

20a

II. BACKGROUND2

Plaintiff taught at the University as a professor

for nearly 35 years without incident until 2017.

(Compl. ¶¶ 2, 49-50.) In April 2017, a twenty-fiveyear-old female graduate student, Yeohee Im

(“Im”), reported to the University’s Title IX Office

that Plaintiff had sexually harassed her. (Id.

¶¶ 118-119.) The University convened a Title IX

panel (“Panel”) to conduct an investigation pursuant to its Sexual Misconduct Policy (the “First

Investigation”). (Id. ¶¶ 76-91, 125.) The Panel ultimately found Plaintiff responsible for sexual

harassment. (Id. ¶¶ 11, 164.) On June 9, 2017, the

Dean of the Faculty disciplined Plaintiff for violating the Sexual Misconduct Policy by, among other

things, placing him on a one-year probation. (Id.

¶¶ 165, 167.)

Plaintiff alleges that, following the conclusion of

the First Investigation, Im believed that the sanction Plaintiff received was inadequate and, as a

result, waged a public campaign against him and

the University. (Id. ¶¶ 177-208.) In the course of

Im’s campaign, Plaintiff alleges that Im committed

numerous violations of the University’s policies.

For example, Plaintiff alleges that Im disclosed

confidential records to news outlets, commented on

the case to journalists who published articles about

In this Background section, I provide a brief overview

of the facts that are pertinent to this motion. In the Discussion section, infra, I set forth a more detailed recitation of the

relevant facts that are alleged by Plaintiff in support of each

of his claims.

21a

it, encouraged social media posts against Plaintiff,

and filed complaints with professional associations

to which Plaintiff belonged. (Id. ¶¶ 12, 177-226.)

Plaintiff alleges that these efforts ultimately led to

calls for his termination. (Id. ¶ 13.) Plaintiff further

alleges that the University refused to address Im’s

violations of the University’s Title IX policies or

remedy the increasingly aggressive harassment

and hostile environment caused by Im’s activities.

(Id. ¶¶ 209-211, 215.)

In September 2017, officials at the University

told Plaintiff that it was commencing a second

investigation into reports that Plaintiff may have

had a romantic relationship with a different graduate student (the “Second Investigation”). (Id.

¶ 239.) The student, E.S., had been a student in two

of Plaintiff’s classes in 2011, and Plaintiff had

served as a reader on her dissertation committee in

Fall 2015. (Id. ¶¶ 235-236.) Witnesses reported that

they had seen Plaintiff and E.S. kissing at a bar in

Hong Kong during a conference, and photographs

emerged of a man and woman kissing who

appeared to be Plaintiff and E.S. (Id. ¶ 227.) Plaintiff alleges that Im unearthed this evidence

because she was dissatisfied with the outcome of

the First Investigation. (Id. ¶ 226.)

The University’s Rules and Procedures of the

Faculty, at the time, prohibited “sexual or romantic

relationship[s] involv[ing] individuals in a teacherstudent relationship (e.g. being directly or indirectly taught, supervised or evaluated).” (Id. ¶ 229.)

Plaintiff and E.S. both denied that any relationship

had occurred during interviews with investigators.

22a

(Id. ¶¶ 124, 250, 299.) Notwithstanding those

denials, the investigators ultimately concluded

that Plaintiff and E.S. had engaged in a romantic

relationship during the time when he evaluated

her dissertation. (Id. ¶ 261.) Plaintiff now admits

in the Complaint that he and E.S. commenced a

relationship in Spring 2014. (Compl. ¶ 235.) That

relationship was ongoing during the period

when Plaintiff evaluated E.S.’s dissertation. (Id.

¶ 298(h).)

On May 21, 2018, the University’s President

issued a memo to the University’s Board of

Trustees recommending that Plaintiff be dismissed. (Id. 304.)3 The memo concluded that Plaintiff lied during the Second Investigation; his lies

were substantial and material under the University’s rules and policies; the lies justified dismissal;

Defendants attach this recommendation memo as an

exhibit to their motion papers. (See Exhibit 1 to Declaration

of Christine E. Gage, ECF 20-3 (“Recommendation Memo”).)

Because the Complaint quotes extensively from the recommendation memo and relies on it as the basis for multiple

claims, this Court may consider the memo for the purposes of

this motion to dismiss. See Buck v. Hampton Twp. Sch. Dist.,

452 F.3d 256, 260 (3d Cir. 2006) (“In evaluating a motion to

dismiss, we may consider documents . . . and any ‘matters

incorporated by reference or integral to the claim[.]’ ” Pension

Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,

1196 (3d Cir. 1993) (citing 5B Charles A. Wright & Arthur R.

Miller, Federal Practice & Procedure § 1357 (3d ed. 2004)); see

also Pension Ben. Guar. Corp. v. White Consol. Indus., Inc.,

998 F.2d 1192, 1196 (3d Cir. 1993) (holding “that a court may

consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on the document.”)

23a

Plaintiff also violated the University’s policies on

consensual relations; and neither Im nor Cuff (a

former Assistant Professor who allegedly blamed

his failure to obtain tenure on Plaintiff, see Compl.

¶ 4) influenced the proceedings in a manner that

could excuse Plaintiff’s conduct. (See Recommendation Memo, ECF 20-3.) On September 24, 2018,

Plaintiff was notified that the University had terminated his employment effective immediately.

(Compl. ¶ 324.)

Plaintiff alleges that, in the course of the Second

Investigation, the University and its administrators violated numerous provisions of the University’s Rules and Procedures of the Faculty and

expanded the investigation to include baseless

claims against him. (Id. ¶¶ 238-331.) Plaintiff further alleges that the University and other defendants relied on gender stereotypes, distorted the

evidence and the applicable standards, and

improperly relied upon Plaintiff’s probation as a

basis for his termination. (Id.) Plaintiff asserts

that the University and other defendants were

motivated by external pressure and the need to

repair the University’s tarnished reputation, which

resulted from: (i) numerous investigations by the

Department of Education’s Office of Civil Rights

for the University’s alleged failure to properly

respond to female students’ claims of sexual

assault and harassment (id. ¶¶ 66-73); (ii) public

criticism over the alleged sexual harassment of a

number of female students in the University’s

German Department (id. ¶ 75); (iii) criticism of the

University by Im and Cuff for the results of the

24a

First Investigation (id. ¶¶ 180-187, 191-201, 208,

216-220); and (iv) the rebirth of the #MeToo movement, which had gained momentum during the

timeframe of the Second Investigation and contributed to further criticism of the University and

public calls for Plaintiff’s termination (id. ¶¶ 188190, 202-207, 212-214, 221-225).

III. LEGAL STANDARD

Rule 12(b)(6) authorizes a defendant to move to

dismiss for “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to

‘state a claim for relief that is plausible on its

face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). “A claim has facial plausibility when

the pleaded factual content allows the court to

draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Id. This “plausibility standard” requires that the plaintiff allege

“more than a sheer possibility that a defendant has

acted unlawfully,” but it “is not akin to a ‘probability requirement.’ ” Id. (citing Twombly, 550 U.S. at

556). Although the court must accept the allegations in the complaint as true, it is not compelled to

accept “unsupported conclusions and unwarranted

inferences, or a legal conclusion couched as a factual allegation,” Morrow v. Balaski, 719 F.3d 160,

165 (3d Cir. 2013) (citation omitted). “Determining

whether a complaint states a plausible claim for

25a

relief [is] . . . a context-specific task that requires

the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. In

deciding a Rule 12(b)(6) motion, although “a district court . . . may not consider matters extraneous to the pleadings,” the court may consider

documents that are “integral to or explicitly relied

upon in the complaint.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)

(citation omitted) (emphasis in original).

IV. DISCUSSION

A. Title IX Claims

Counts I, II, and III of the Complaint assert that

the University violated Title IX of the Education

Amendments of 1972 by discriminating against

Plaintiff on the basis of his gender. (See Compl.

¶¶ 332-352 (Count I), ¶¶ 353-380 (Count II), ¶¶ 381418 (Count III).)4 Title IX states that “[n]o person

. . . 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). Among other

things, it “bars the imposition of university discipline where gender is a motivating factor,” and it

“is enforceable through an implied private right of

action . . . for monetary damages as well as injunc4

Count I alleges a violation of Title IX with respect to

the First Investigation. Counts II and III allege violations of

Title IX with respect to the Second Investigation.

26a

tive relief.” Yusuf v. Vassar Coll., 35 F.3d 709, 71415 (2d Cir. 1994) (citations omitted). In most Title

IX cases, a plaintiff advances a claim under one of

two theories: (1) an “erroneous outcome” theory; or

(2) a “selective enforcement” theory. Doe v. The

Trustees of the Univ. of Pennsylvania, 270 F. Supp.

3d 799, 822 (E.D. Pa. 2017) (citation omitted);

see also Yusuf, 35 F.3d at 714-16 (dividing Title

IX claims involving university disciplinary proceedings into two categories based on erroneous

outcome and selective enforcement theories). 5

Occasionally, a plaintiff will also assert a Title IX

claim under a theory of “retaliation” for complaining of gender discrimination. Doe v. Mercy Catholic

Med. Ctr., 850 F.3d 545, 563-64 (3d Cir. 2017); see

also Jackson v. Birmingham Bd. of Educ., 544 U.S.

167, 173-74 (2005) (stating that “[r]etaliation

against a person because that person has complained of sex discrimination is another form of

intentional sex discrimination encompassed by

Although a Second Circuit case, Yusuf has been cited

by numerous courts in the Third Circuit as setting the standard for Title IX erroneous outcome/selective enforcement

claims. See, e.g., Doe v. Trustees of Princeton Univ., 2020 WL

967860, at *2-3 (D.N.J. Feb. 28, 2020); Doe v. Rider Univ.,

2020 WL 634172, at *7 (D.N.J. Feb. 4, 2020); Doe v. The

Trustees of the Univ. of Pennsylvania, 270 F. Supp. 3d 799,

822 (E.D. Pa. 2017); Saravanan v. Drexel Univ., 2017 WL

5659821, at *4-6 (E.D. Pa. Nov. 24, 2017); see also Doe v.

Princeton Univ., 790 F. App’x 379, 383-84 (3d Cir. 2019)

(affirming a decision of the district court that applied the

Yusuf standard to a Title IX claim that was advanced under

a selective enforcement theory). As such, I apply the standard

from Yusuf in this case.

27a

Title IX’s private cause of action”). Plaintiff proceeds under all three theories. (See Pl.’s Opp. at

7-20, 25-28.)

(1) Erroneous Outcome

Under an “erroneous outcome” theory, a plaintiff

asserts that he or she was “innocent and wrongly

found to have committed an offense.” Yusuf., 35

F.3d at 715. An erroneous outcome challenge to

university disciplinary proceedings requires a

plaintiff to plead (1) “particular facts sufficient to

cast some articulable doubt on the accuracy of the

outcome of the disciplinary proceeding,” and (2)

“particular circumstances suggesting that gender

bias was a motivating factor behind the erroneous

finding.” Id. A complaint meets the first prong if it

alleges “particular evidentiary weaknesses behind

the finding of an offense such as a motive to lie on

the part of a complainant or witnesses, particularized strengths of the defense, or other reason to

doubt the veracity of the charge.” Id. It may also

allege procedural flaws affecting the evidence. Id.

“[T]he pleading burden in this regard is not heavy.”

Id. However, “[i]f no such doubt exists based on the

record before the disciplinary tribunal, the claim

must fail.” Id.

Once doubt has been cast on the accuracy of the

proceedings, the plaintiff must present “particularized allegation[s] relating to a causal connection

between the flawed outcome and gender bias.” Id.

“[A]llegations of a procedurally or otherwise flawed

proceeding that has led to an adverse and erro-

28a

neous outcome combined with a conclusory allegation of gender discrimination is not sufficient to

survive a motion to dismiss.” Id. The allegations

must “go well beyond the surmises of the plaintiff

as to what was in the minds of others and involve

provable events that in the aggregate would allow

a trier of fact to find that gender affected the outcome of the disciplinary proceeding.” Id. at 716.

Allegations that may support gender bias include

“statements by members of the disciplinary tribunal, statements by pertinent university officials, or

patterns of decision- making that also tend to show

the influence of gender.” Id. at 715.6

In his opposition papers, Plaintiff asserts that “[t]he

second prong—gender bias as a motivating factor—can be

met by pleading ‘specific facts that support a minimal plausible inference of [gender] discrimination” (Defs.’ Opp. at 11

(quoting Doe v. Columbia Univ., 831 F.3d 46, 56 (2d Cir.

2016).) I note that at least one circuit has rejected this modified pleading standard. See Doe v. Miami Univ., 882 F.3d 579,

5889 (6th Cir. 2018) (stating that the Second Circuit’s “modified pleading standard . . . lacks support from our precedent

. . . [and] [a] ccordingly, in this Circuit, [the plaintiff] must

meet the requirements of Twombly and Iqbal for each of his

claims”). The Third Circuit has not yet addressed this issue,

but its precedent suggests that it would follow the Sixth Circuit in rejecting the Columbia decision. As the Sixth Circuit

explained in Miami Univ., the Columbia decision was partially premised on the Second Circuit’s decision in Littlejohn v.

City of New York, 795 F.3d 297 (2d Cir. 2015). In Littlejohn,

the Second Circuit reconciled Twombly and Iqbal with the

Supreme Court’s holding in Swierkiewicz v. Sorema N.A., 534

U.S. 506 (2002). While Swierkiewicz remains good law in

some circuits, the Third Circuit has explicitly held that the

pleading standard set forth in Swierkiewicz is incompatible

with Twombly and Iqbal. See Fowler v. UPMC Shadyside, 578

29a

In this case, Plaintiff contends that the allegations in the Complaint support claims under an

erroneous outcome theory with respect to both the

First Investigation and the Second Investigation. I

address the sufficiency of the allegations as they

relate to each of the two investigations, in turn,

below.

First Investigation (Count I). Defendants contend that Plaintiff has failed to allege a Title IX

claim based on an erroneous outcome theory as to

the First Investigation, because, “even assuming

the outcome was flawed” (i.e., the first prong),

Plaintiff does not allege that the erroneous outcome was causally connected to gender bias (i.e.,

the second prong). (Defs.’ Br. at 11-13.) In

response, Plaintiff contends that “the Complaint

properly alleges that [the University] exhibited

gender bias because the infantilization of women

plays into archaic gender stereotypes about women

as chaste, sexually innocent, naive, lacking sexual

autonomy, and needing protection from men, who

are considered the sexual aggressors.” (Pl.’s Opp.

at 11-12 (citing Compl. ¶¶ 151, 343).) Plaintiff also

contends that the Complaint “alleges a considerable connection between the Im investigation and

the specific pressure placed on the University to

prosecute male professors and protect and believe

F.3d 203, 211 (3d Cir. 2009) (claiming that Swierkiewicz “has

been specifically repudiated by both Twombly and Iqbal”).

As such, based on the Third Circuit’s repudiation of

Swierkiewicz, I adopt the Sixth Circuit’s approach by applying the general Twombly/Iqbal pleading standard.

30a

female graduate students in the time period leading up to Ms. Im’s complaint against Plaintiff.” (Id.

at 12.) In support of the latter contention, Plaintiff

cites to allegations in the Complaint, which allege

that, “in addition to [the University]’s history of

complaints and issues with the [Department of

Education’s] Office for Civil Rights for purportedly

failing to sufficiently respond to allegations of sexual misconduct by female students, [the University] faced considerable pressure from its student

body to remedy a perceived atmosphere of gender

bias specifically against female graduate students,

like Im, by male faculty, like Plaintiff.” (Id. at 12

(citing Compl. ¶¶ 66-75, 344).) Plaintiff also cites to

allegations that, during the 2016-2017 academic

year, three female graduate students in the German Department left the University abruptly,

prompting a town hall meeting to address systematic and long-term sexual harassment within the

Department. (Id. at 15 (citing Compl. ¶ 75).) Plaintiff avers that the town hall meeting took place in

May 2017, which was the same timeframe when

the University’s Title IX office was deciding Im’s

case against Plaintiff. (Id.)

Having considered Plaintiff’s allegations, I cannot find that the Complaint supports a plausible

inference that, because of his gender, Plaintiff was

found to have violated the University’s Sexual Misconduct Policy.7 As an initial matter, I note that

Although Defendants do not contest the first prong of

the analysis in the present motion, I note that Plaintiff

alleges facts “sufficient to cast some articulable doubt on the

31a

Plaintiff has neither alleged any statements by

officials showing gender bias in his disciplinary

proceedings, nor has he alleged any pattern or

practice designed to produce gender-specific outcomes. Instead, Plaintiff relies on allegations that

the University infantilized Im during the First

Investigation, for instance by faulting Plaintiff for

offering Im alcohol even though she was of legal

drinking age, or by faulting Plaintiff for inviting Im

to his home to watch movies featuring sexual

assault and full frontal nudity even though she

praised these films. (See Pl.’s Opp. at 11-12 (citing

Compl. ¶¶ 151, 343). However, Plaintiff fails to

explain how “infantilizing” an accuser amounts to

bias against men. These allegations do not reference gender, let alone suggest that gender was a

motivating factor in the University’s decision. At

most, these allegations show that the University

exhibited bias in favor of a younger student vis-avis an older professor, an inference having nothing

to do with gender.

Plaintiff’s allegations about pressure allegedly

faced by the University from the Office of Civil

Rights and students in the German Department

also do not support an inference of bias against

men. Although the Third Circuit has not had occaaccuracy of the outcome” of the First Investigation. Yusuf., 35

F.3d at 715. Specifically, the Complaint describes numerous

instances where, during the course of the First Investigation,

the University’s Title IX office allegedly withheld evidence

from Plaintiff, ignored exculpatory evidence, accepted altered

evidence submitted by Im, or failed to question Im’s credibility or narrative. (See Compl. ¶¶ 229-160.)

32a

sion to address this specific issue, other courts

have recognized that external pressure from campus organizations and government agencies such

as the Office of Civil Rights may “provide[ ] a backdrop that, when combined with other circumstantial evidence of bias in [the plaintiff’s] specific

proceeding, gives rise to a plausible [Title IX]

claim.” Doe v. Baum, 903 F.3d 575, 586 (6th Cir.

2018) (citing Twombly, 550 U.S. at 570). However,

external pressure alone is not enough. Rather,“[i]n

the cases where public pressure was found to support claims of erroneous outcome, that public pressure targeted the specific disciplinary action being

challenged.” Doe v. Univ. of Cincinnati, 2018 WL

1521631, at *6 (S.D. Ohio Mar. 28, 2018) (emphasis

added); see also Doe v. Univ. of St. Thomas, 240 F.

Supp. 3d 984, 992 (D. Minn. 2017) (“[T]his Court

joins the majority of federal courts in finding a general reference to federal pressure, by itself, is

insufficient to show gender bias.”); Doe v. Univ. of

Colo., 255 F. Supp. 3d 1064, 1078 (D. Colo. 2017)

(same); Doe v. Lynn Univ., Inc., 224 F. Supp. 3d

1288, 1294 (S.D. Fla. 2016) (same). In this case,

Plaintiff does not point to any public pressure

directed at any single individual involved in his

specific case, and the allegations in the Complaint

pertain to investigations and incidents that are

unconnected to the First Investigation. Indeed,

these allegations are anything but specific to Plaintiff’s case: they concern federal investigations by

Office of Civil Rights into the University’s handling

of sexual misconduct accusations by students; and

criticism focused on the German Department (to

33a

which Plaintiff did not belong). Without any allegations specifically connecting the external pressure

on the University to Plaintiff’s specific case, there

is simply no basis to plausibly infer that the outcome of the First Investigation was motivated by

his gender.

Second Investigation (Count III). Defendants

contend that Plaintiff cannot sustain a claim as to

the Second Investigation based on an erroneous

outcome theory because “he admits he lied to University officials about his relationship” with E.S.

(Defs.’ Br. at 14 (emphasis in original).) Defendants

further argue that, “[e]ven if [Plaintiff] disputes

that his affair violated University policy . . . , the

admission that he violated the policy on Honesty

and Cooperation in University Matters is enough to

prevent him from alleging his innocence, a required

element of an erroneous outcome claim.” (Id. (citing

Doe v. Rider Univ., 2018 WL 466225, at *8 (D.N.J.

Jan. 17, 2018)).) In his opposition brief, Plaintiff

does not directly address Defendants’ argument

that his claim must fail based on the admission

that he lied. Instead, Plaintiff points to allegations

in the Complaint that show that the Second Investigation suffered from extensive procedural irregularities and was infected by gender bias. (See Pl.’s

Opp. at 16-20.)

I find that, regardless of the presence of any procedural irregularities or alleged gender bias during

the Second Investigation, Plaintiff’s claim under an

erroneous outcome theory fails for the simple reason that he has not sufficiently alleged his innocence. See Yusuf., 35 F.3d at 715 (stating that,

34a

under an erroneous outcome theory, the “claim is

that the plaintiff was innocent and wrongly found

to have committed an offense”). Indeed, rather

than affirmatively alleging that Plaintiff is innocent, the allegations in the Complaint support the

opposite inference: that Plaintiff was guilty of the

charges for which he was ultimately terminated.

Plaintiff alleges in the Complaint that he and E.S.

commenced a relationship in Spring 2014 (see

Compl. ¶ 235), that the relationship was ongoing

during the period when Plaintiff evaluated E.S.’s

dissertation (see id. ¶ 298(h)), and that the University’s rules at the time prohibited “sexual or

romantic relationship[s] involve[ing] individuals in

a teacher-student relationship (e.g. being directly

or indirectly taught, supervised or evaluated)” (id.

¶ 229). Moreover, Plaintiff admits that he lied during the investigation about his relationship with

E.S. (See Compl. ¶ 124 (stating that “Plaintiff . . .

denied the relationship [with E.S.] when interviewed” by a member of the Title IX panel).) It was

for this very conduct—engaging in a prohibited

teacher-student relationship and lying to investigators—that the University terminated Plaintiff’s

employment. (See Recommendation Memo, ECF

20-3.) Because the undisputed facts, as alleged by

Plaintiff, negate any inference that he was innocent, Plaintiff has failed to state a claim as to the

Second Investigation based on an erroneous outcome theory.

35a

(2) Selective Enforcement

Under a selective enforcement theory, a plaintiff

“asserts that, regardless of the student’s [or faculty

member’s] guilt or innocence, the severity of the

penalty and/or the decision to initiate the proceeding was affected by the student’s [or faculty member’s] gender.” Yusuf, 35 F.3d at 715. Under a

selective enforcement theory, a male plaintiff must

allege that “a female was in circumstances sufficiently similar to his own and was treated more

favorably by the [educational institution].” Tafuto

v. N.J. Inst. of Tech., 2011 WL 3163240, at *2

(D.N.J. July 26, 2011) (alteration in original).

Thus, when a male professor claims that a university selectively enforced a policy against him, he

must identify a female professor who received better treatment even though she “engaged in the

same conduct without such differentiating or mitigating circumstances that would distinguish their

conduct or the [school’s] treatment of them for it.”

Saravanan v. Drexel Univ., 2017 WL 5659821, at

*6 (E.D. Pa. Nov. 24, 2017). I address the sufficiency of the allegations as they relate to each of the

two investigations, in turn, below.

First Investigation (Count I). Defendants

assert that Plaintiff has failed to allege selective

enforcement as to the First Investigation because

he has not identified any specific female who was

accused of similar conduct and treated more favorably by the University. (Defs.’ Br. at 9-11.) In

response, Plaintiff cites to allegations in the Complaint that state, on information and belief, female

36a

respondents and faculty members are formally

investigated at a lower rate and are punished less

severely than similarly accused male respondents

and faculty members. (Pl.’s Opp. at 8 (citing Compl.

¶¶ 161-163, 346, 348).) Plaintiff also cites to allegations in the Complaint which allege that the University treated Plaintiff differently than Im, his

female accuser, during the course of the First

Investigation. (Pl.’s Opp. at 9 (citing Compl. ¶¶ 15,

192, 146-150, 157, 207, 210, 215, 243, 255, 265,

304, 359-360, 400, 436, 441, 454).) Plaintiff contends that his female accuser is a sufficient comparator for the purposes of pleading his claim

based on selective enforcement. (Id.)

I do not agree with Plaintiff that Im is a sufficient comparator. A selective enforcement claim

requires a comparison between two similarly situated individuals—in the instant case, a male and

female professor accused of similar conduct. See,

e.g., Tafuto, 2011 WL 3163240, at *2-3; Saravanan,

2017 WL 5659821, at *6; Rider Univ., 2020 WL

634172, at *12. Im—the student complainant

against Plaintiff during the First Investigation—

“is not a counterpart for the purposes of a selective

enforcement claim.” Doe v. Case W. Reserve Univ.,

2015 WL 5522001, at *6 (N.D. Ohio Sept. 16, 2015).

Im was a student and Plaintiff was a professor; the

University’s obligations and relationship to each

were fundamentally different. Further, Plaintiff’s

claim that the University treated Plaintiff differently during the course of the investigation is very

different from Im’s claim that Plaintiff sexually

harassed her. “To consider a student similarly situ-

37a

ated, ‘the individuals with whom a plaintiff seeks

to be compared must have engaged in the same

conduct without such differentiating or mitigating

circumstances that would distinguish their conduct

or the [school’s] treatment of them for it.’ ” See Saravanan, 2017 WL 5659821, at *6 (emphasis and

alteration in original) (citation omitted). There is

no suggestion that Im engaged in sexual harassment, sounding the death knell for Plaintiff’s claim

that Im is an appropriate comparator. Moreover,

Plaintiff’s allegations that female respondents are

formally investigated at a lower rate and are punished less severely than male faculty respondents

is far too general to constitute an example of “a

female [who] was in circumstances sufficiently similar to his own and [who] was treated more favorably.” Tafuto, 2011 WL 3163240, at *2. Because

Plaintiff has failed to allege a single example of a

similarly situated female who was treated differently, I find that his claim fails under a selective

enforcement theory as to the First Investigation.

Second Investigation (Count III). Defendants

contend that Plaintiff has also failed to allege that

a female professor “was in circumstances sufficiently similar to his own and was treated more

favorably” with respect to the Second Investigation. (Defs.’ Br. at 14 (quoting Tafuto, 2011 WL

3163240, at *2).) In response, Plaintiff argues he

has sufficiently alleged that the decision to initiate

the Second Investigation and the severity of the

resulting punishment were influenced by gender

bias. (Pl.’s Opp. at 16-17.) Specifically, Plaintiff

cites to allegations that suggest that the Second

38a

Investigation and decision to terminate Plaintiff

were prompted by Im’s campus-wide pressure campaign and by public pressure from the #MeToo

movement, which had gained momentum during

the timeframe of the Second Investigation. (Id. (citing Compl. ¶¶ 188-208, 217, 222-224, 226-288, 304,

385-395, 408.)

As I found with respect to the First Investigation, I find that, regardless of whether gender bias

influenced the Second Investigation, Plaintiff has

failed to sufficiently allege a single comparator

between two similarly situated individuals, which

is required to sustain his claim under a selective

enforcement theory. See, e.g., Tafuto, 2011 WL

3163240, at *2-3; Saravanan, 2017 WL 5659821, at

*6; Rider Univ., 2020 WL 634172, at *12. Plaintiff

does not identify, for example, any female professor

who was accused of engaging in a prohibited

teacher-student relationship or of being dishonest

during disciplinary proceedings, and who received

different treatment. Accordingly, the Complaint

fails to allege a claim under a selective enforcement theory as to the Second Investigation.

(3) Retaliation

Count II of the Complaint asserts a violation of

Title IX under a theory of retaliation. To plead a

case of “retaliation” under Title IX, a plaintiff must

allege that (i) he “engaged in activity protected by

Title IX,” (ii) he “suffered an adverse action,” and

(iii) “there was a causal connection between the

two.” Doe v. Mercy Catholic Med. Ctr., 850 F.3d

39a

545, 564 (3d Cir. 2017) (citing Moore v. City of

Philadelphia, 461 F.3d 331, 340–42 (3d Cir. 2006)).

If a plaintiff fails to plead any one of the required

elements, the retaliation claim must be dismissed.

See Doe v. Princeton Univ., 2018 WL 2396685, at

*7. In this case, although I find that the allegations

in the Complaint are insufficient to meet either the

first or the third element, I nevertheless address

each of the three elements, in turn, below.

Protected Activity. Under Title IX, “protected

activity” includes reporting or opposing discrimination prohibited by the statute. Jackson v.

Birmingham Board of Ed., 544 U.S. 167, 173

(“Retaliation against a person because that person

has complained of sex discrimination is another

form of intentional sex discrimination encompassed

by Title IX’s private cause of action.”). A plaintiff

alleging retaliation “need not prove the merits of

the underlying discrimination complaint, but only

that ‘he was acting under a good faith, reasonable

belief that a violation existed.’ ” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir.

1996) (quoting Griffiths v. CIGNA Corp., 988 F.2d

457, 468 (3d Cir.1993)). However, “[g]eneral complaints about unfair treatment are not considered

protected activity,” and so do not suffice. Borowski

v. Premier Orthopaedic & Sports Med. Ass’n, Ltd.,

2014 WL 3700342, at *5 (E.D. Pa. July 24, 2014).

Instead, this element requires allegations that that

the complaint was “about conduct prohibited by”

the statute. Davis v. City of Newark, 417 F. App’x

201, 203 (3d Cir. 2011).

40a

In this case, Plaintiff alleges that he reported to

the Acting Chair of Plaintiff’s Department and to

the University’s counsel that he was being subjected to a “hostile work environment” as a result of

Im’s public campaign against him. (See Compl.

¶¶ 209, 215, 361, 364.) However, Plaintiff does not

aver that when he made his complaints to the Acting Chair or the University’s counsel, he also conveyed to them that his complaints related to a

claim about sex discrimination or gender bias. The

only conduct prohibited by Title IX is discrimination on the basis of sex. Plaintiff’s mere use of the

phrase “hostile work environment” in his complaints does not convert those complaints into “protected activity.” Accordingly, I find that Plaintiff

has not satisfied the first prong by alleging that he

engaged in any activity that is protected by Title

IX.

Adverse Action. The second element requires

Plaintiff to “point to an employment action that is

‘harmful to the point that [it] could well dissuade a

reasonable worker from making or supporting a

charge of discrimination.’ ” Clarkson v. SEPTA, 700

F. App’x 111, 115 (3d Cir. 2017) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57

(2006)). Only actions that “effect a material change

in the terms or conditions of . . . employment” are

sufficient. Deans v. Kennedy House, Inc., 587 F.

App’x 731, 734 (3d Cir. 2014). In this case, Plaintiff

alleges that, in response to his complaint to the

Acting Chair of Plaintiff’s Department, Plaintiff

was asked to step down as a co-director of an

upcoming conference. (Compl. ¶ 362.) Plaintiff also

41a

alleges that, after he complained to the University’s counsel about the hostile environment, the

University (i) asked Plaintiff to tender his resignation, (ii) placed him on administrative leave, (iii)

publicly announced Plaintiff’s administrative

leave, and (iv) improperly pursued and extended

the Second Investigation into Plaintiff’s relationship with E.S., despite the University having initially concluded that there was insufficient

evidence of a policy violation. (Compl. ¶¶ 364-377.)

Plaintiff asserts, in his opposition, that “[a]ll of the

above actions served to prevent Plaintiff from performing his ordinary employment duties and further served to humiliate and denigrate him, which

would also discourage reporting by a reasonable

employee.” (Defs.’ Opp. at 27.)

I find that the Acting Chair’s mere request that

Plaintiff step-down from an upcoming conference

(which Plaintiff apparently declined), and the University’s mere pursuit of the Second Investigation,

both fall short of a material change in the terms or

conditions of his employment, which is necessary to

constitute an adverse action. However, Plaintiff’s

placement on administrative leave, which was

taken against Plaintiff after he complained to the

University’s counsel, is more akin to the type of

action that constitutes a material change in employment. Based on that action, I find that Plaintiff has

arguably satisfied the second element.8 Therefore, I

Defendants cite to two cases for the proposition that

placement on administrative leave does not rise to the level of

a material adverse action. (See Defs.’ Br. at 20 (citing Jones

42a

will turn to the issue of whether Plaintiff has sufficiently pled a causal connection between those

actions and his complaints to the University’s

Counsel.

Causal Connection. “[A] plaintiff may demonstrate causation in a retaliation claim by showing:

(1) a close temporal relationship between the protected activity and the adverse action, or (2) that

‘the proffered evidence, looked at as a whole, . . .

raise[s] the inference [of causation].’ ” Nuness v.

Simon & Schuster, Inc., 325 F. Supp. 3d 535, 563

(D.N.J. 2018) (alteration in original) (citation omitted). However, “the mere fact that adverse employment action occurs after a complaint will ordinarily

be insufficient to satisfy the plaintiff’s burden of

demonstrating a causal link between the two

events.” Groeber v. Friedman & Schuman, P.C.,

555 F. App’x 133, 136 (3d Cir. 2014) (citation and

internal quotation marks omitted). Any “causal

connection may be severed by the passage of a

significant amount of time, or by some legitimate

intervening event.” Wiest v. Tyco Elecs. Corp.,

v. Se. Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015)

(stating that “[a] paid suspension pending an investigation of

an employee’s alleged wrongdoing does not fall under any of

the forms of adverse action mentioned by Title VII’s substantive provision.”) and Doe v. Princeton University, 2018 WL

2396685, at *7 (D.N.J. May 24, 2018) (finding that “thoroughly investigating the charges [against the plaintiff], and offering a leave of absence” did not constitute retaliation).

Because I find that Plaintiff has clearly not satisfied the first

and third element of his retaliation claim, I need not address

whether the particular circumstances of his administrative

leave rose to the level of a material adverse action.

43a

812 F.3d 319, 330 (3d Cir. 2016); cf. Hernandez v.

Temple Univ. Hosp., 2019 WL 130508, at *9 (E.D.

Pa. Jan. 8, 2019) (“[M]isconduct occurring between

the dates of the protected activity and adverse

employment action is the type of intervening event

that can destroy what otherwise would be an inference of retaliation.”) (citation omitted).

In this case, I find that the allegations in the

Complaint, when taken together, negate any plausible inference that a causal connection can be

drawn between Plaintiff’s complaint to the University’s counsel and his subsequent placement on

administrative leave. The Complaint alleges that

Plaintiff notified the University’s counsel of his

complaint about a hostile work environment on

December 21, 2017, and was placed on administrative leave approximately one month later, on January 23, 2018. (Compl. ¶¶ 364, 366.) Despite the

temporal proximity between these events, however,

it is significant that, during this same time period,

on December 20, 2017, the Complaint alleges that

the University received an investigative report,

which detailed Plaintiff’s relationship with E.S.

and found that Plaintiff had violated the University’s policy on Consensual Relationships with Students. (Id. ¶¶ 255, 261.) Although the issuance of

this report was not technically an “intervening

event” (because it occurred one day before Plaintiff

complained to the University’s counsel), it provides

an “obvious alternative explanation” for why Plaintiff was placed on administrative leave. Given this

obvious alternative explanation, there is nothing

“unduly suggestive” about the fact he was placed

44a

on administrative leave just one month later. See

George v. Rehiel, 738 F.3d 562, 586 (3d Cir. 2013)

(stating that “an obvious alternative explanation

. . . negates any inference of retaliation”). Therefore, I find that any inference that the University’s

decision to place him on administrative leave was

caused by Plaintiff’s complaint is simply not plausible in light of the contemporaneous report finding

that he had violated the University’s policies.

In sum, I find that, although Plaintiff’s placement on administrative leave arguably constituted

an adverse action, he has failed to allege a causal

connection between any protected activity and that

adverse action. Accordingly, Plaintiff has failed to

allege a Title IX claim under a retaliation theory.

B. Title VII Claims

Count IV of the Complaint asserts that the University violated Title VII of the Civil Rights Act of

1964. (See Compl. ¶¶ 419-476). Title VII states, in

relevant part, that “[i]t shall be an unlawful

employment practice for an employer . . . to discharge any individual, or otherwise to discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e–

2(a) (emphasis added). Plaintiff contends in his

opposition that the Complaint sufficiently alleges a

violation of Title IX under two separate theories of

liability. First, he contends that “he was subjected

to adverse employment actions, including proba-

45a

tion, administrative leave, and termination . . .

under circumstances that could give rise to an

inference of gender bias.” (Pl.’s Opp. at 22.) Second,

he contends that “[t]he actions of [the] University

in knowingly ignoring, and even permitting and

encouraging, numerous actions . . . by Ms. Im

directed at impugning Plaintiff’s reputation and

specifically at ending his career, constituted and

comprised a hostile environment.” (Pl.’s Opp. at

24.) I address the sufficiency of the allegations in

the Complaint as they relate to each of those theories, in turn, below.

(1) Disparate Treatment

Courts analyze claims under Title VII that an

employee was treated differently because of his or

her gender under the framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Under this framework, a plaintiff must

establish a prima facie case of discrimination by

alleging the following: “(1) s/he is a member of a

protected class; (2) s/he was qualified for the position s/he sought to attain or retain; (3) s/he suffered

an adverse employment action; and (4) the action

occurred under circumstances that could give rise

to an inference of intentional discrimination.” Semple

v. Donahoe, 2014 WL 4798727, at *7 (D.N.J. Sept.

25, 2014) (citing Makky v. Chertoff, 541 F.3d 205,

214 (3d Cir. 2008)). At the motion to dismiss stage,

a Title VII plaintiff does not prove a prima facie

case of discrimination, because the McDonnell

Douglas standard “is an evidentiary standard, not

46a

a pleading standard.” Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 510 (2002). However, the plaintiff

must still allege “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft, 556 U.S. at 678 (citing

Twomby, 550 U.S. 570).

The Third Circuit has stated that the “central

focus of the prima facie [Title VII] case ‘is always

whether the employer is treating some people less

favorably than others because of their race, color,

religion, sex, or national origin.” Sarullo v. U.S.

Postal Serv., 352 F.3d 789, 798 (3d Cir.2003) (internal quotation marks omitted). “The facts necessary

to establish a prima facie case of discrimination

under Title VII vary depending on the particular

circumstances of each case.” Id. at 797 n. 7 (citation

omitted). However, “[t]he evidence most often used

to establish this nexus is that of disparate treatment, whereby a plaintiff shows that [he] was

treated less favorably than similarly situated

employees who are not in plaintiff’s protected

class.” Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d

358, 366 (3d Cir. 2008); see also Ewell v. NBA Properties, Inc., 94 F. Supp. 3d 612, 624 (D.N.J. 2015)

(“An inference of discrimination may arise if similarly situated employees of a different race

received more lenient treatment than that afforded

plaintiff.”) (citing Simpson v. Kay Jewelers, Div. of

Sterling, Inc., 142 F.3d 639, 645 (3d Cir.1998)). “A

determination of whether employees are similarly

situated takes into account factors such as the

employees’ job responsibilities, the supervisors and

decision-makers, and the nature of the misconduct

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engaged in.” Wilcher v. Postmaster Gen., 441 F.

App’x 879, 882 (3d Cir. 2011).

In this case, Plaintiff has not alleged any facts

that tend to show that Plaintiff, based on his sex,

was treated differently than any similarly situated

female employee of the University. The allegations

in the Complaint of Plaintiff’s differential treatment vis-a-vis another female employee are all

directed towards the University’s treatment of Im.

(See Compl. ¶¶ 436-438, 441-444, 450-451.) However, Im—a graduate student and the accuser—was

not similarly situated in any relevant respects to

Plaintiff—a faculty member and the accused.

Although Plaintiff “is not required to show that he

is identical to [his alleged] comparator,” he must

still show “substantial similarity.” See Houston v.

Easton Area Sch. Dist., 355 F. App’x 651, 654-55

(3d Cir. 2009) (stating that “[t]o make a comparison

of the plaintiff’s treatment to that of an employee

outside the plaintiff’s protected class for purposes

of a Title VII claim, the plaintiff must show that he

and the employee are similarly situated in all relevant respects”) (citations omitted). Plaintiff has not

alleged that he is similar in any relevant respect to

Im. He also has not identified any other similarly

situated female employees (professors or otherwise) who were treated differently than him in similar circumstances. Accordingly, I find that

Plaintiff has not sufficiently pled facts from which

it can be inferred that Plaintiff was treated differ-

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ently by his employer, the University, because of

his gender.9

(2) Hostile Work Environment

To state a claim for hostile work environment

under Title VII, the plaintiff must allege that: “(1)

he suffered intentional discrimination because of

his membership in a protected class; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected the plaintiff;

the discrimination would detrimentally affect a

reasonable person in like circumstances; and the

existence of respondeat superior liability.” Ali v.

Woodbridge Twp. Sch. Dist., 2019 WL 1930754, at

*8 (D.N.J. Apr. 30, 2019) (citing Mandel v. M & Q

Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013)).

“When the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ that is

‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ ” a hostile environment

is created. Harris v. Forklift Sys., Inc., 510 U.S. 17,

23 (1993)). In evaluating whether a plaintiff was

subjected to a hostile environment, courts look to

“all the circumstances,” including “the frequency of

In his opposition, Plaintiff contends that his claim for

disparate treatment under Title VII may be alleged even

absent an allegation that a similarly situated individual was

treated more favorably than Plaintiff. (Pl.’s Opp. at 21-22.)

Even if that were true, Plaintiff has still not alleged any

other facts from which to infer a connection between his gender and the University’s treatment of him, other than his conclusory accusation.

49a

the discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.”

National R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 116 (2002).

In support of his hostile work environment

claims, Plaintiff points to the following allegations

in the Complaint: (i) Plaintiff and Im were both

employees of the University (Compl. ¶¶ 478-479);

(ii) the University was under considerable scrutiny

in 2016-2017 regarding its perceived failure to protect female students from sexual harassment

(Compl. ¶¶ 71, 74-75); (iii) following the outcome of

the First Investigation, Im embarked on a broad

campaign to destroy Plaintiff’s reputation, relying

heavily on the backdrop of the #MeToo movement

and focusing on the University’s alleged failure to

adequately punish male respondents (Compl.

¶¶ 188-222); (iv) in furtherance of her campaign

against Plaintiff, Im publicized numerous Title IX

documents and information that the University

had marked as confidential (Compl. ¶¶ 193, 200,

219-220); (v) as a result of Im’s public campaign,

Plaintiff was publicly criticized, mocked, and his

courses were protested on campus (Compl. ¶ 207);

(vi) Im’s campaign impeded Plaintiff’s ability to

perform his employment duties and caused him

anxiety, distress, and high blood pressure (Compl.

¶¶ 209, 215); (vii) Plaintiff reported that Im’s

actions were creating a “hostile working environment” to the Acting Chair of Plaintiff’s department

and to the University’s counsel (Compl. ¶¶ 215,

50a

219); and (viii) the University took no actions to

quell or remedy the hostile environment (Compl.

¶¶ 192, 209-211; 215; 220-221). (See Pl.’s Opp. at

23-24.)

I need not exhaustively analyze the sufficiency of

Plaintiff’s allegations against each of the required

elements of a hostile work environment claim,

because I find that Plaintiff has not established a

basic element of a claim. “[H]arassment, no matter

how unpleasant and ill-willed, is simply not prohibited by Title VII if not motivated by the plaintiff’s

gender (or membership in other protected groups).”

Dalton v. New Jersey, 2018 WL 305326, at *9

(D.N.J. Jan. 5, 2018) (citation omitted); see also

Ullrich v. U.S. Sec’y of Veterans Affairs, 457 F.

App’x 132, 140 (3d Cir. 2012) (“Many may suffer

severe or pervasive harassment at work, but if the

reason for that harassment is one that is not proscribed by Title VII, it follows that Title VII provides no relief.”). Although, according to Plaintiff,

Im’s alleged public pressure campaign caused him

a great deal of anxiety and distress, I find that

there are insufficient allegations from which to

infer that Im’s public campaign (or the University’s

failure to quell her campaign) was motivated by

gender bias.10 Indeed, the Complaint ascribes only

two to Im, neither having to do with Plaintiff’s gender: Im’s dissatisfaction with the University’s reso10

In addition, importantly, I note that Plaintiff does not

explain, in his opposition, how Im’s conduct in allegedly creating a hostile work environment can be attributed to the

University.

51a

lution of her report of sexual harassment, and her

desire to advance the alleged vendetta of another

professor in the Electrical Engineering department

against Plaintiff based on departmental politics.

(See Compl. ¶ 12 (stating that Im “embarked on a

vicious, retaliatory campaign” because she was

“[d]issatisfied with [Plaintiff]’s sanction”); id. ¶¶ 4-7

(attributing Im’s report to her “close relationship

with Cuff”). Given these motivations, which are

alleged by Plaintiff in the Complaint, I cannot sustain Plaintiff’s hostile work environment claims

without more specific allegations that Im’s conduct

was motivated by Plaintiff’s gender as a male.

C. State Law Claims

Counts V thru XVI of the Complaint assert

claims under the New Jersey Law Against Discrimination, for breach of contract, for breach of the

covenant of good faith and fair dealing, for negligence and gross negligence, and for wrongful discipline. Because the Court has found that Plaintiff

has failed to state any of his federal claims, the

only potential basis for this Court’s jurisdiction

over Plaintiff’s state law claims is supplemental

jurisdiction pursuant to 28 U.S.C. § 1367. Under

28 U.S.C. § 1367(c)(3), a district court “may decline

to exercise supplemental jurisdiction over a claim

. . . [if] the district court has dismissed all claims

over which it has original jurisdiction.” The Third

Circuit has stated that “where the claim[s] over

which the district court has original jurisdiction

[are] dismissed before trial, the district court must

52a

decline to decide the pendent state claims unless

considerations of judicial economy, convenience,

and fairness to the parties provide an affirmative

justification for doing so.” Borough of West Mifflin

v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995); cf.

Markowitz v. Ne. Land Co., 906 F.2d 100, 106 (3d

Cir. 1990) (“[T]he rule within this Circuit is that

once all claims with an independent basis of federal

jurisdiction have been dismissed the case no longer

belongs in federal court.”). In this case, having dismissed all of Plaintiff’s federal claims, I find that

no considerations justify this Court’s exercise of

supplemental jurisdiction over the remaining state

law claims and, therefore, I decline to exercise

jurisdiction over those claims.

V. CONCLUSION

In summary, I find that Plaintiff has failed to

state his federal claims (Counts I thru IV), and I

decline to exercise supplemental jurisdiction over

Plaintiff’s state law claims (Counts V thru XVI).

Accordingly, Defendants’ motion to dismiss is

GRANTED IN PART and DENIED IN PART. Plaintiff’s

federal claims are dismissed pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure.

Plaintiff is given leave to file an amended complaint to replead his federal claims, in a manner

consistent with this Opinion, within forty-five (45)

days of the date of the Order accompanying this

Opinion. If Plaintiff adequately pleads one or more

of his federal claims in an amended complaint, the

Court may exercise any supplemental jurisdiction

53a

at that time. In lieu of filing an amended complaint, Plaintiff may pursue his state law claims in

state court, and the limitations period for each of

those claims is tolled, to the extent the limitations

period has not already expired, for a period of

thirty (30) days, pursuant to 28 U.S.C. § 1367(d).

DATED: March 30, 2020

/s/ Freda L. Wolfson

Hon. Freda L. Wolfson

U.S. Chief District Judge

54a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civil Case No. 19-1248

SERGIO VERDÚ

Plaintiff,

T HE T RUSTEES OF P RINCETON U NIVERSITY , T HE

B OARD OF T RUSTEES OF P RINCETON U NIVERSITY ,

CHRISTOPHER L. EISGRUBER, DEBORAH A. PRENTICE,

REGAN CROTTY, TONI MARLENE TURANO, LISA MICHELLE

SCHREYER, MICHELE MINTER, CLAIRE GMACHL, CHERI

BURGESS, LYNN WILLIAM ENQUIST, SUSAN TUFTS

FISKE, CAROLINA MANGONE, HARVEY S. ROSEN, and

IRENE V. SMALL,

Defendants.

COMPLAINT AND JURY DEMAND

Plaintiff Sergio Verdú (“Plaintiff” or “Dr.

Verdú”), by and through his attorneys Nesenoff &

Miltenberg, LLP, as and for his complaint against

Defendants The Trustees of Princeton University

(“Princeton” or the “University”), the Board of

Trustees of Princeton University, Christopher L.

Eisgruber, Deborah A. Prentice, Regan Crotty,

Toni Marlene Turano, Lisa Michelle Schreyer,

Michele Minter, Claire Gmachl, Cheri Burgess,

Lynn William Enquist, Susan Tufts Fiske, Carolina

55a

Mangone, Harvey S. Rosen and Irene Small (collectively the “Defendants”) alleges as follows:

THE NATURE OF THE ACTION

1. This action arises out of Princeton’s flawed

and gender-biased Title IX proceedings, unremedied harassment and retaliation against Dr. Verdú

and the subsequent unwarranted and flawed termination proceedings against him.

2. Dr. Verdú, formerly Princeton’s Eugene

Higgins Professor of Electrical Engineering, who

taught at the University for nearly 35 years, held

his tenured position without incident until Spring

2017. Dr. Verdú has long been held in the highest

esteem by students and colleagues alike, he has

achieved the highest levels of success in his field

and received numerous awards and accolades over

the course of his career.

3. Rather than make any effort to protect its

highly esteemed faculty member, Princeton instead

pursued the decimation of Dr. Verdú’s reputation

and career, and violated his right to privacy over

an extramarital affair that took place years earlier

so that it could exact a harsher punishment against

Dr. Verdú in the wake of the #MeToo movement.

4. In Spring 2017, Paul Cuff (“Cuff”), an Assistant Professor who held a grudge against Dr.

Verdú, and blamed him for Cuff’s failure to obtain

tenure, reported allegations to then Dean of the

Graduate School, Sanjeev Kulkarni (“Kulkarni”),

that, years prior, Dr. Verdú had been involved in a

56a

consensual romantic relationship with a former

female graduate student supervised by Cuff. A

month earlier, the University heard the same

allegation from a faculty member at Stanford

University.

5. Concerned about Cuff’s motives, and the lack

of any complaint from the former graduate student,

“E.S.”—who received her Ph.D. from Princeton

over two years earlier and never made a report or

complaint about Dr. Verdú—Kulkarni told Cuff

that no investigation was warranted. At the time,

Cuff said he was going to “watch out” for Dr.

Verdú’s only female advisee, twenty-five-year-old

graduate student Yeohee Im (“Ms. Im”).

6. A short time later, Cuff notified the University that Dr. Verdú had allegedly acted inappropriately with Ms. Im, and, upon information and

belief, encouraged Ms. Im to file a false charge of

sexual harassment against Dr. Verdú with the University’s Title IX Office, stemming from two occasions on which Ms. Im and Dr. Verdú watched

movies together at his home. Ms. Im also alleged—

as had Cuff—that Dr. Verdú was rumored to have

engaged in a consensual relationship with E.S.

7. Having developed a close relationship with

Cuff, Ms. Im willfully mischaracterized ordinary

social interactions with Dr. Verdú, which she

enthusiastically participated in, as sexual harassment. She claimed sexual harassment even though

she admitted that Dr. Verdú acted professionally

57a

during the course of her graduate studies—both

before and after the incidents she complained of.

8. When complaining to the University, Ms. Im

supplied only part of the story, and presented

deliberately altered “evidence” in support of her

claim of sexual harassment, including select portions of a secretly taped conversation with Dr.

Verdú and excerpted emails. The full set of

emails—produced by Dr. Verdú to the Title IX

administrator—demonstrated that Ms. Im initiated a social relationship with Dr. Verdú and made

attempts to foster a closer relationship with him.

The Title IX panel, tasked with investigating Ms.

Im’s allegations and determining responsibility,

relied on the altered evidence, as opposed to

the exculpatory evidence provided by Dr. Verdú,

to erroneously find him responsible for sexual

harassment.

9. Though the panel members admitted that Ms.

Im downplayed her efforts to foster a close relationship with Dr. Verdú, they failed to consider this in

weighing the evidence. The panel also ignored that

Cuff—not Ms. Im—was the original source of Ms.

Im’s Title IX complaint and turned a blind eye to

the simultaneous timing of the allegations about

E.S., brought forward by Cuff and Ms. Im. The

panel further ignored that, only months earlier,

Ms. Im made a Title IX report against a male

teaching assistant. All of these facts raised serious

questions about Ms. Im’s credibility and her

motives.

58a

10. When she reported the “sexual harassment”

to the University, Ms. Im embellished her story in

a manner that directly contradicted the evidence,

including her own email communications with Dr.

Verdú. Ms. Im’s story also continuously changed.

The Title IX panel members ignored these contradictions. Their assessment of the case, and corresponding finding of responsibility against Dr.

Verdú, revealed their sex bias because they treated

Ms. Im—an adult— like a child in need of parental

supervision. They also assumed that—because Dr.

Verdú was male and Ms. Im female—Dr. Verdú

intended a simple gesture like quickly cleaning a

red wine stain off Ms. Im’s sweatshirt to be a sexual advance. They ignored Dr. Verdú’s consistent

account of the events in question.

11. The University ultimately found Dr. Verdú

responsible for sexual harassment. As a result of

this finding, he was placed on probation for one

year, could not take a planned sabbatical, and was

required to attend a mandatory 8-hour counseling

program with an outside psychologist, whose services had been secured by Princeton exclusively to

deal with student cases in the past.

12. Dissatisfied with this sanction, Ms. Im

embarked on a vicious, retaliatory campaign to

destroy Dr. Verdú’s career and reputation by disclosing confidential Title IX records and altered

recordings to the press, making unsubstantiated

comments in an article published by the Huffington

Post, encouraging social media posts against Dr.

Verdú within the construct of the #MeToo move-

59a

ment, filing complaints with professional associations to which Dr. Verdú belonged, and publicly

accusing him of sex crimes. Ms. Im succeeded in

her destructive efforts.

13. The November 9, 2017 Huffington Post article, published against the backdrop of the #MeToo

movement, prompted a firestorm of negative publicity at Princeton, leading to the plastering of flyers across campus with Dr. Verdú’s photo, calls to

the Princeton administration for his termination,

exaggerated accusations and unsubstantiated

rumors which Ms. Im and Cuff fueled by publishing

editorials about Dr. Verdú in The Daily Princetonian newspaper.

14. The University took no steps to quell the

harassment of Dr. Verdú or prohibit Ms. Im from

revealing confidential information obtained through

the Title IX process. On the contrary, the University encouraged retaliation against Dr. Verdú by

taking a position that supported Ms. Im. Princeton

had already been subjected to a number of Office

for Civil Rights investigations1 and was embroiled

in a sexual harassment scandal concerning professors in the University’s German Department and,

in the weeks following the rebirth of the #MeToo

movement, was, upon information and belief, more

interested in preserving its reputation than preventing further harm to Dr. Verdú.

Indeed, its handling of sexual misconduct allegations

received a score of 5/20 (letter grade D) from the Foundation

for Individual Rights in Education.

60a

15. All the while, Dr. Verdú was under a gag

order, as the University warned him against disclosing any emails from and to Ms. Im or any other

confidential information from the Title IX proceedings. Although Ms. Im was also subject to such confidentiality orders, the University chose not to

enforce them against her. As a result, Dr. Verdú

was unable to publicly defend himself against Ms.

Im’s accusations and the unsubstantiated rumors

that were the subject of campus discourse, including nearly a dozen articles in The Daily Princetonian attacking his character. Essentially, the

University barred Dr. Verdú from coming to his

own defense while simultaneously allowing Ms. Im

to unabashedly and publicly attack Dr. Verdú.

16. Not only did the University encourage retaliation against Dr. Verdú, its administration opened

a second investigation into the allegations originally

lodged by Ms. Im and Cuff concerning a consensual

relationship between Dr. Verdú and E.S.

17. Ms. Im contacted E.S. on a number of occasions, threatened her and solicited her to file a university complaint against Dr. Verdú, because she

was dissatisfied with the fact that he was not fired

as a result of her, and Cuff’s, sexual harassment

allegation. Ms. Im’s threats were unsuccessful. E.

S. even met with Princeton’s Title IX administrators to inform them that Dr. Verdú had not

engaged in any sexual misconduct with respect to

her. Regardless, Princeton administrators attempted to coerce E.S. into admitting that Dr. Verdú had

61a

an improper relationship with her that violated

University policies. This was simply not the case.

18. Despite the lack of any evidence that sexual

misconduct occurred with respect to E.S. the University pressed on, seeking to bolster its reputation

for failing to protect female students from sexual

harassment by faculty members. Princeton also

sought to correct its perceived laxity in sanctioning

Dr. Verdú in Ms. Im’s Title IX proceeding by resurrecting the allegations against him concerning

E.S.—and opening an unwarranted investigation—

at Ms. Im’s insistence.

19. Dr. Verdú was punished for his efforts to protect E.S.’s and his right to privacy and for railing

against the University’s unwarranted and relentless invasion of his privacy in the face of Ms. Im’s

and Cuff’s drummed up allegations. E.S. and Dr.

Verdú engaged in an extramarital affair, years earlier, which did not violate University policy.

Princeton used the affair as a mechanism for terminating Dr. Verdú, in an effort to appease Ms. Im—

and her angry supporters who took the Huffington

Post article at face value—who would not rest until

Dr. Verdú was fired.

20. Princeton administrators went so far as to

keep Ms. Im informed about the status of the E.S.

investigation even though she was not a proper

complainant or participant in the alleged events. In

contrast, the administrators acted hostile, menacing and coercive towards E.S., treating her more

like a criminal than an alumna. There was no policy

62a

in place that even permitted post hoc investigations concerning students who had graduated, let

alone complaints lodged by third parties.

21. Princeton breached University protocol when

conducting the investigation, hiring a high-profile

law firm to provide an investigator rather than the

Dean of the Faculty. Though the initial investigation turned up insufficient evidence, the Provost

urged Dr. Verdú to confess in order to receive a

lesser punishment. Her recommendations for discipline were rife with judgment about the propriety

of Dr. Verdú, an older man, being involved in a consensual relationship with a younger woman.

22. Dissatisfied with Dr. Verdú’s refusal to

admit to any wrongdoing, the President of the University ordered a search of Dr. Verdú’s university

emails for communications with E.S., including a

timeframe well beyond the date upon which E.S.’s

Ph.D. was conferred. Ultimately, the investigators

relied on flimsy evidence, including communications which post-dated E.S.’s departure from

Princeton, to conclude that Dr. Verdú violated

Princeton’s policy on Consensual Relations with

Students. Because Dr. Verdú defended himself, and

E.S., against Princeton’s unwarranted invasion of

privacy, the University President also found him

responsible for violating University policies involving dishonesty.

23. In assessing and adjudicating the false allegations against Dr. Verdú, the University deprived

him of a fair and impartial process. Princeton had

63a

no regard for the heightened protections that were

warranted in the case of deciding allegations

against a tenured professor and the significant

interest he had in his professorship.

24. Throughout both investigations, Princeton

officials withheld information from Dr. Verdú,

including the identities of key witnesses and the

individuals who made certain allegations, as well

as the fact that Ms. Im and Cuff were behind the

E.S. allegations. Dr. Verdú had no right to crossexamine his accusers or question witnesses. He had

no right to be represented by counsel during any

appearances, nor did he receive a proper hearing.

25. Both the outcome of the Title IX investigation and the decision to terminate Dr. Verdú resulted from an abuse of power and were the product of

sex discrimination.

26. During the relevant timeframe, Princeton

was under constant, extreme pressure to repair its

tarnished reputation, which resulted from: i)

numerous OCR investigations; ii) public outcry

over the alleged sexual harassment of a number of

female students in the German Department; iii)

Ms. Im’s and Cuff’s public vilification of the

Provost for failing to terminate Dr. Verdú; and iv)

the momentum of the #MeToo movement.

27. As a result of Defendants’ misconduct in violating Princeton’s policies, failing to provide Dr.

Verdú with a fundamentally fair process in either

investigation, assisting Ms. Im’s retaliatory campaign against Dr. Verdú and engaging in sex dis-

64a

crimination, Dr. Verdú has, among other things,

suffered irreparable harm to his career and reputation, been cut off from conducting research in his

field, and is unemployable. Dr. Verdú has also suffered physical illness and emotional distress as a

result of the discriminatory and hostile environment created by Ms. Im’s retaliatory campaign.

* * *

[12]FACTS RELEVANT TO ALL CLAIMS

I. Dr. Verdú’s Background

49. Dr. Verdú grew up in Barcelona, Spain. In

1980 he came to the United States to pursue his

Ph.D. and, in 1984, he became the youngest faculty

member at Princeton at that time. Dr. Verdú was

employed by Princeton, including as a tenured professor since 1989, for the next 34 years.

50. Until June 2017, or over a span of 33 years,

Dr. Verdú had an unblemished disciplinary record.

51. Over the years, Dr. Verdú received recognition for his teaching and research, including as the

youngest recipient ever of the Claude Shannon

Award, the top distinction in Dr. Verdú’s field of

study, information theory. In recognition of his

research achievements, Dr. Verdú was also elected

to the National Academy of Sciences and the

National Academy of Engineering.

52. Prior to his termination, and in the wake of a

negative publicity campaign sparked by one of his

former graduate students, as fully described below,

65a

Dr. Verdú received continuing support from former

and current students and colleagues, men and

women alike, who provided testimonials to Princeton in support of his character. Their support continues to the present day.

53. Despite these words of support, Princeton

caved in to pressure surrounding the #MeToo

movement and criticism that it failed to protect its

female students from sexual harassment, stripping

Dr. Verdú of his tenured position after conducting

an unauthorized, unwarranted and biased investigation, the primary purpose of which was to find a

reason to terminate him.

* * *

[29]123. On the same day, Crotty interviewed

E.S. by phone about the allegations that she had

engaged in a consensual, romantic relationship

with Dr. Verdú. Notably, E.S. was not an advisee of

Dr. Verdú’s during the time in which she attended

Princeton. E.S. denied that anything inappropriate

or violative of any policies had occurred. E.S. also

denied having a romantic relationship with Dr.

Verdú. Crotty asked E.S. if there might be any pictures of her and Dr. Verdú taken in a Hong Kong

bar in 2015, which she denied. Crotty had heard

about these pictures from Ms. Im, who in the

course of her subsequent harassment of E.S. told

her that Ms. Im’s friends were willing to provide

statements to the University that E.S. had been

seen with Dr. Verdú in a Hong Kong bar.

66a

124. After her interview, E.S. called Dr. Verdú

and asked him not to disclose that he and E.S. had

been involved in an extramarital affair. She went

on to say that if this information was made public

her husband “might kill him.” Unconcerned about

policy violations—as the relationship had not violated any policy—but about the harm that could

result from any disclosure of the relationship,

Plaintiff also denied the relationship when interviewed on April 18, 2017.

125. On April 17, 2017, Ms. Im was interviewed

by the Title IX panel convened to investigate her

allegations, comprised of Crotty, Schreyer and

Turano (the “Panel”).

126. Before Dr. Verdú was given any notice of

the charges against him, he was called to meet with

the Panel and did so on April 18, 2017. A “summary” of the interview was not finalized until several

days letter. Though Schreyer read a summary of

her notes to Dr. Verdú at the end of his interview,

the final memo contained inaccuracies that were

inconsistent with what Dr. Verdú told the Panel.

127. During the April 18th interview, Dr. Verdú

voluntarily provided the Panel with complete

copies of all of his email correspondence with Ms.

Im. In contrast, Ms. Im—who was interviewed the

day before—provided only excerpted copies of her

email communications with Dr. Verdú, leaving out,

for instance, the love song that she sent to him as

well as other emails that showed her enthusiasm

for the movies that they watched together and sug-

67a

gesting that they watch other films. Ms. Im also

failed—and was not asked—to provide any email

communications with Cuff which might have

shown a coordination of efforts to damage Dr.

Verdú’s career and reputation.

* * *

[58]V. Princeton’s

Unwarranted

Second

Investigation Against Dr. Verdú

226. Ms. Im’s efforts at retribution against Dr.

Verdú, and to exact a harsher punishment against

him, were successful as, over Summer 2017, Ms. Im

drummed up enough “evidence” to prompt the University to pursue an investigation into whether Dr.

Verdú and E.S. had a “romantic relationship” more

than two years prior to Ms. Im reporting the allegation.

227. In fact, Ms. Im solicited various individuals

to provide statements to University officials that,

in Summer 2015, Dr. Verdú and E.S. were seen

kissing at a bar in Hong Kong, during an IEEE

Conference. An anonymous individual also supplied photographs of a man and woman purportedly kissing, allegedly E.S. and Dr. Verdú.

228. In actuality, the photographs provided to

the University did not show the woman’s face and

it was not clear from the photographs that the individuals were kissing. The University did not question who took the photographs or why they were

taken. The photographer was never interviewed.

The University also failed to question why the pho-

68a

tos were of such grave concern after sitting in

someone’s file for over two years.

A. The Rules and Procedures of the

Faculty

229. The 2015 version of the Rules and Procedures of the Faculty stated as follows with respect

to consensual relationships between faculty and

graduate students:

Whenever a faculty member has a professional

responsibility for a student or could reasonably

expect to have professional responsibility for

the student during the student’s time at

Princeton, a consensual sexual or romantic

relationship between the faculty member and

the student raises a serious question of violation of this provision. A faculty member has a

professional responsibility for a student when

he or she has direct or indirect administrative,

teaching or supervisory responsibility for that

student.

When a sexual or romantic relationship

involves individuals in a teacher-student relationship (e.g. being directly or indirectly

taught, supervised or evaluated) . . . it is a

clear and most serious violation of both University and professional standards, as well as a

potential violation of state and federal anti-discrimination statutes. Any sexual or romantic

relationship between teacher and student is

bound to impinge upon the teacher student

69a

relationship, not only with regard to the student involved but also in relationship to his or

her peers, who may perceive favoritism or

unequal treatment by the faculty member.

* * *

[60]B. Dr. Verdú and E.S.

235. Dr. Verdú and E.S. commenced a relationship in Spring 2014. At the time, Dr. Verdú had no

teacher-student relationship with E.S., he was neither her advisor nor her teacher. She had taken

courses from him three years before the relationship began. At no point during the course of

their relationship was E.S. under Dr. Verdú’s

supervision.

236. In Fall 2015, Dr. Verdú served as a reader

of E.S.’s dissertation but this role was not dispositive as to whether she would get her Ph. D. E.S.’s

two advisors wrote glowing reports and the main

results from her thesis were published in the top

journal in the field.

237. The rules of the Princeton University Graduate School state: “When the dissertation has been

formally presented the department takes action on

the positive recommendation of at least two principal readers to request that the dissertation

advance to the final public oral (FPO) examination.” Leaving aside the fact that at Princeton it is

exceedingly rare for a dissertation to be found

unacceptable by a reader, E.S. certainly did not

need Plaintiff’s report to get her Ph.D.

70a

C. The Unwarranted University Investigation Concerning Dr. Verdú and E.S.

238. On September 19, 2017, Crotty emailed

Ms. Im and requested a meeting with her. She

informed Ms. Im that the University had received

enough information to start a new investigation

into Ms. Im’s allegation that Plaintiff and E.S.

potentially engaged in a consensual, romantic

relationship.

239. On September 25, 2017, Prentice—who had

determined Dr. Verdú’s sanction in the Title IX

proceedings and was now the Provost—emailed a

letter to Dr. Verdú informing him that “the Office

of the Dean of the Faculty has received a report

that you may have engaged in conduct with a now

former graduate student that violated University

policy.” The letter further informed Dr. Verdú that

a review of the report would be conducted pursuant

to the Rules and Procedures of the Faculty. Senior

Associate Dean of the Faculty Turano—who had

served on Ms. Im’s Title IX Panel—would lead the

review and work with Cheri Burgess, the Director

of Institutional Equity and EEO, who is also an

employment attorney. The letter noted that the

Dean of the Faculty, Kulkarni had recused himself

“due to his personal and professional relationship

with” Dr. Verdú.28

In his February 2018 editorial in The Daily Princetonian, Cuff stated “as soon as Princeton’s general counsel got

word that Dean Kulkarni had received reports of violations

prior to Yeohee’s incident, he recused himself from the

71a

* * *

[75]292. Upon information and belief, Eisgruber, Prentice and/or the investigators reviewed the

contents of Dr. Verdú’s mailbox when the snapshot

was taken in or around September 2017. Aware

that such a search was outside the scope of the allegations at issue, concerning a conference in June

2015, they waited until Prentice issued her recommendation to create a pretext of dishonesty which

would justify searching through Dr. Verdú’s

emails. Further aware that Dr. Verdú’s and E.S.’s

relationship did not violate University policy, Eisgruber, Prentice and/or the investigators had to

find another reason to justify terminating Dr.

Verdú—Ms. Im’s dissatisfaction with the outcome

of the Title IX proceedings was not a sufficient reason to do so.

293. On April 11, 2018, President Eisgruber

ordered investigators Burgess and Okubadejo to

undertake a search of Dr. Verdú’s Princeton email

account.

294. According to Eisgruber, the purpose of the

email search was to “shed light” on Dr. Verdú’s

alleged relationship with E.S.

295. Dr. Verdú was not given notice of the email

search until April 27, 2018.

296. On May 2, 2018, Dr. Verdú objected to the

search on the grounds that it violated University

rules. Dr. Verdú further objected to the staffing of

the investigation, its lack of impartiality and the

credibility of the anonymous witnesses.

72a

297. The investigators reviewed emails dating

back to October 2011 and through May 2017.

Notably, E.S. graduated from Princeton in November 2015. The email communications showed that

Dr. Verdú and E.S. had been involved in a consensual relationship, which the investigators concluded began “sometime in April 2014.”

298. On May 8, 2018, the investigators issued a

report of their findings:

The investigators erroneously found that

the relationship between E.S. and Dr.

Verdú violated the 2015 policy on Consensual Relationships. They based their finding on: i) Dr. Verdú serving as a reader of

E.S. dissertation; and ii) that he sent

“written recommendations” regarding E.S.

to his professional contacts in September

2, 2015 and after E.S. graduated on January 17, 2016.

The investigators erroneously concluded

that, as a reader of E.S.’s dissertation, Dr.

Verdú had supervisory responsibility for

E.S. Straining to find a policy violation,

the investigators likened this role to an

unofficial “advisor” to E.S. This is untrue.

At the time, E.S.’s co-advisors were Cuff

and Professor H. Vincent Poor. Two

reports finding the dissertation acceptable

are required to get a PhD at Princeton. As

in the immense majority of cases, both Cuff

and Poor found E.S.’s dissertation accept-

73a

able. The approval of E.S.’s dissertation

was unanimous and its major results were

published in a leading journal.

In yet another strained attempt to find a

policy violation, the investigators found

that E.S. and Dr. Verdú had a “teacher/

student” relationship because he discussed

professional opportunities with her and

sent an email on her behalf to a former student of Dr. Verdú’s with whom E.S. had a

job interview in the private sector.

The definition of teacher-student relationship in the policy on Consensual Relations

with Students, did not include giving a student general career advice or reaching out

to contacts who may be interviewing said

student. In fact, E.S. took only two courses

with Dr. Verdú—three years prior to the

commencement of any relationship.

The investigators further mischaracterized

Dr. Verdú’s two emails to his contacts (one

of which post-dated E.S.’s graduation as

noted supra) as “written recommendations.” The emails were hardly as formal as

described.

The investigators also found that Dr.

Verdú violated the policy on Honesty and

Cooperation in University matters. In

making this determination, the investigators relied in large part on email communications between E.S. and Dr. Verdú during

74a

the time period after E.S.’s degree was conferred. Events that occurred after E.S. left

Princeton were irrelevant to the charge

that E.S. and Dr. Verdú engaged in a consensual relationship while she was a graduate student. Such “evidence” should have

been excluded from consideration.

Equally troubling was the investigators’

assumptions that Dr. Verdú was at all

times dishonest when he spoke with

Princeton administrators three years after

a number of the events in question. For

example, it was no secret, nor did Dr.

Verdú deny, that he served as a reader of

E.S.’s dissertation. Yet the investigators

concluded that he made a material misrepresentation about when he agreed to

become a reader.

Given that Dr. Verdú had been in a relationship with E.S. for almost a year at the

time in which the investigators found,

based on email correspondence, that he

agreed to serve as a reader, Dr. Verdú had

no motive to be dishonest. Whether he

agreed in February 2015 or September

2015, his role was the same. It is possible

that Dr. Verdú did not recall the email

exchange that took place years earlier. Yet

the investigators simply assumed that any

fact not remembered and volunteered by

Dr. Verdú, about events that took place

years before he was questioned, signaled

75a

dishonesty. Moreover, when Dr. Verdú

merely agreed to serve as a reader was

irrelevant to whether doing so in September 2015 violated the policy on Consensual

Relationships with Students. As set forth

supra at Paragraphs 107-108, 235-237,

252, 261, 264, 266, 268 and 278, it did not.

This is yet another example of the investigators grasping at straws to find a policy

violation.

299. In their May 2018 report, the investigators

referenced Ms. Im’s Title IX proceedings. Like

Prentice, they purposely left out the source of the

E.S. allegations—Cuff and Ms. Im. The investigators also failed to consider that when Dr. Verdú

and E.S. each denied their relationship they were

less concerned with Princeton’s policies (which

they had not violated) than the complete and utter

havoc that would be wrought on their personal

lives—an outcome which, upon information and

belief, Cuff and Ms. Im desired.

300. The investigators also failed to consider

whether it was proper to investigate allegations

concerning events that occurred years earlier. They

pointed to no policy provision which allowed post

hoc investigations, particularly when neither party

to the alleged relationship had come forward and

raised concerns. Neither Prentice nor Eisgruber

questioned the propriety of the investigation

either.

76a

301. The above-referenced copying of Dr. Verdú’s

mailbox, “legal hold,” searches and review of Dr.

Verdú’s emails without notice and consent not only

violated, upon information and belief, the technology policy in place at the time, but was contrary to

the procedures recommended by the American

Association of University Professors (“AAUP”).

302. The AAUP has stated that electronic communications can “be used to investigate individuals

in ways that were impossible just a decade ago.”

The AAUP recognizes that “faculty members have

a reasonable expectation of privacy in their electronic communications and traffic data” and that a

university should not “examine or disclose the contents of electronic communications and traffic data

without the consent of the individual participating

in the communication except in rare and clearly

defined cases.” (emphasis added). Moreover, “all

parties to the communications should be notified

in ample time for them to pursue protective measures.”30

303. Eisgruber followed no such protocols when

directing the copying, search and of Dr. Verdú’s

mailbox for personal communications with E.S.

Academic Freedom and Electronic Communications,

available at https://www.aaup.org/report/academic-freedomand-electronic-communications-2014. See also https://www.

aaup.org/issues/academic-freedom/professors-and-institutions.

77a

F. The Eisgruber Recommendation

304. On May 21, 2018, President Eisgruber

issued a recommendation memo to the Board of

Trustees that Dr. Verdú be dismissed from Princeton. In this memo, Eisgruber made a number of

misrepresentations and statements that were not

supported by the evidence and/or did not support

finding a policy violation, including:

[E.S.] was under Verdú’s supervision. This

is false. The 2015 Rules and Procedures of

the Faculty define “Academic supervision”

as including teaching, advising, supervising research, supervising teaching or

grading, and serving as Departmental Representative or Director Graduate Studies

of the student’s academic program.” At no

time during their relationship did Plaintiff

play any of those roles with respect to E.S.

His role was to serve as one of the three

readers of her dissertation.31 Elsewhere

Eisgruber stated: “Dr. Verdú. . . told me,

as he had the Provost, that [E.S.] was not

under his supervision at the time of the

ISIT conference.” This was, and remains,

the truth. Per her March 2018 recommen-

Notably, Princeton recently revised its Rules and Procedures of the Faculty to include “serving as a dissertation

reader” and “providing letters of reference” in its definition

of academic supervision. See Point V.C.2. available at

https://dof.princeton.edu/rules-and-procedures-facultyprinceton-university-and-other-provisions-concernfaculty/chapter-v-2

78a

dation, Prentice found that, even if Dr.

Verdú and E.S. had been in a romantic

relationship at the time of the conference

this would not have violated the policy on

Consensual Relationships with Students.

Tellingly, Eisgruber’s assertion that E.S.

was under Dr. Verdú’s supervision echoed

the claims made by both Ms. Im and Cuff

in their Daily Princetonian articles.

Dr. Verdú and [E.S.] were engaged in a sexual or romantic relationship while they

were also in a teacher-student relationship,

as defined by the University’s policy on

Consensual Relations with Students. This

statement, repeated throughout Eisgruber’s memo, is false. E.S. took two courses

from Dr. Verdú, in Spring 2011 and Fall

2011, and their relationship started in

2014.

Dr. Verdú’s dishonesty harmed [E.S.]. If

Dr. Verdú had forthrightly acknowledged

his relationship with [E.S.], we might have

been able to resolve the case without her.

This is false. E.S. was interviewed by

Crotty on April 13, 2017, and denied the

extramarital relationship, before Plaintiff

was even asked anything about E.S. At

that time, E.S. had asked Plaintiff not to

acknowledge a relationship between them.

Effectively, Eisgruber claimed that if Dr.

Verdú had told Crotty that E.S. was lying

when she denied the relationship, he

79a

would have avoided harming E.S. The spin

Eisgruber put on the harm inflicted on E.S.

is all the more egregious since, prior to

issuing his recommendation, he received a

letter from her in which she was unequivocal about who was to blame for the harm

done to her, the invasion of her privacy and

the degrading treatment she received—

Eisgruber, Crotty, Cuff, Burgess and

Okubadejo. Eisgruber elected not to disclose this letter to the Board of Trustees

even though Prentice had included it in the

document file she provided to him. Eisgruber

knew that Princeton had harmed E.S. by

pursuing stale allegations made by a disgruntled former colleague of Dr. Verdú,

about events that took place years prior,

and which Kulkarni found no grounds for

pursuing in Spring 2017. In her March 2,

2018 recommendation to Eisgruber, Prentice acknowledged “the significant collateral damage to Dr. [E.S.] (who remains the

subject of unresolved allegations and the

target of unwanted public attention).” Furthermore, it is incredible that Eisgruber

would not realize that, with his unprecedented actions and the inevitable public

airing of the circumstances of Plaintiff’s

dismissal, he was undermining the legitimacy of E.S.’s doctoral degree in addition

to breaching her right to privacy.

80a

Eisgruber referred to Dr. Verdú’s “2015

romantic liaison with a graduate student

whose dissertation [he was] evaluating.”

Eisgruber ignored that Dr. Verdú and E.S.

commenced their relationship in Spring

2014 when, by Princeton’s own evidence,

he had no professional relationship with

E.S. The policy on Consensual Relationships with Students contemplated the commencement of a relationship at a time

when two persons had a teacher/student

relationship. Eisgruber’s use of the word

“liaison” further demonstrates that his

decision was tainted by personal bias

about the fact that E.S. and Dr. Verdú had

engaged in an extramarital affair. Eisgruber took into account that E.S. was a student in Dr. Verdú’s “department” when

finding that he violated the policy on Consensual Relationships with Students—this

was not the proper standard or a relevant

consideration.

Eisgruber erroneously concluded that Dr.

Verdú deliberately misrepresented the

timeframe in which he was designated as a

reader of E.S.’s thesis, which, in Eisgruber’s opinion, impacted Prentice’s finding

that “even if he had a romantic relationship with [E.S.] during the conference, it

would not have constituted a clear violation of the policy on Consensual Relations

with Students.” Yet Prentice’s conclusion

81a

on this issue turned on when Dr. Verdú

served as an “official reader.” Prentice

directed Burgess to conduct further investigation, which led Prentice to acknowledge that Dr. Verdú was not an official

reader until Fall 2015. Dr. Verdú never

denied this role. The May 2018 investigation report also pinpointed September

2015 as the time in which Dr. Verdú

reviewed E.S.’s dissertation and “signed

off” on it. However, based on a single email

exchange, the report concluded that Dr.

Verdú agreed to serve as a reader in February 2015. Eisgruber transformed Dr.

Verdú’s failure to recall when he agreed to

read E.S.’s thesis into one of the “substantial and material misrepresentations”

upon which Eisgruber based his recommendation of dismissal.

By his own admission, Eisgruber demonstrated that he does not believe that the

members of the University community can

expect any right to privacy in their personal

communications. Eisgruber falsely asserted

that he ordered a “narrowly-tailored

search” of Dr. Verdú’s emails, hiding the

fact that a large portion of the purported

“evidence” against Dr. Verdú post-dated

the conferral of E.S.’s degree. In fact, “the

appropriately narrow time period” turned

out to be the whole body of their emails,

from the time she took courses from him in

82a

2011 until 2017, well after E.S. left the

university. Upon information and belief,

the search violated the technology policy in

place at the time. In contrast, Eisgruber

ordered no “legal hold” in order to search

Ms. Im’s or Cuff’s email accounts, including their deleted emails, even though there

was evidence that Ms. Im had not been

forthcoming with the initial emails she

provided to the Title IX Panel and that

Cuff was behind the initial Title IX complaints—with respect to Ms. Im and E.S.

Eisgruber’s memo stated “If students or

faculty members acknowledge misconduct

and take responsibility for it, we can work

with them to avoid recurrences of the problem and to restore the community’s trust in

them.” Eisgruber went on to say: “In her

recommendation, Provost Prentice observed

that Dr. Verdú could mitigate the harm

from these violations by “respond[ing] more

fully and openly.” In the event that Dr.

Verdú availed himself of this opportunity,

she recommended that he be suspended for

a period of two years.” Eisgruber did not

identify the members of the community

who lost trust in E.S. and Dr. Verdú

because they engaged in a consensual relationship that did not violate any existing

policy. Eisgruber also failed to identify

who had been harmed by the relationship.

Indeed, Prentice’s investigation revealed

83a

no evidence of favoritism towards E.S. and

no evidence of a policy violation. Yet Prentice and Eisgruber each sought to penalize

Dr. Verdú for defending himself against an

unauthorized post hoc invasion of privacy

initiated by Ms. Im and Cuff, attempting to

coerce a confession from him despite a lack

of evidence of wrongdoing. Eisgruber did

not explain to the Board of Trustees that

the extraordinarily severe penalty of a

two-year suspension in exchange for Dr.

Verdú’s acknowledgment of a consensual

relationship with E.S. was proposed by

Prentice without any attempt to find a single University rule which would support it,

let alone that she proposed the disciplinary

measure after concluding that there was

insufficient evidence of a policy violation.

Eisgruber mischaracterized Dr. Verdú’s

email to a friend as a formal letter of reference for E.S., noting “Their relationship

was ongoing . . . on September 2, 2015,

when he recommended her for employment.” On the contrary, Plaintiff informally emailed one of his former Ph.D.

students on the day E.S. was interviewing

at his company to put in a good word for

her. This information had not been solicited by E.S.’s potential employer. Such informal communications with former graduate

students or other contacts in their industry

are routinely sent by faculty on behalf of

84a

graduate students with whom they are

acquainted. Eisgruber’s reliance on this

email as evidence of Plaintiff’s dishonesty

as to whether he wrote letters of reference

for E.S. is yet another example of the flimsy evidence relied upon by Eisgruber in

recommending Dr. Verdú’s dismissal—particularly since Eisgruber could not pinpoint this routine email as the cause of any

harm to the University or to other graduate students. As Burgess pointed out in her

report to Prentice, Dr. Verdú’s grades were

consistently fair.

Eisgruber justified his unprecedented

breach of Dr. Verdú’s privacy by referring

to the “gravity of his apparent misconduct.” However, he did not explain or argue

why serving as a reader on E.S.’s thesis

was such a grave offense. Eisgruber did

not—because he could not—suggest that

E.S. would not have gotten her degree had

Dr. Verdú not served as a reader of her dissertation. Upon information and belief,

Eisgruber trumped up the purported gravity of what occurred in order to draw attention away from the fact that the

investigation into the E.S. allegations was

launched in order to appease Ms. Im and to

find a reason to exact harsher punishment

on Dr. Verdú amidst the campus backlash

created by Ms. Im and Cuff.

85a

Regarding the Hong Kong photographs,

Eisgruber acknowledged that Dr. Verdú

told him that “it looked like him, that he

did not deny it was him . . . that he did not

allege [the photographs] were photoshopped, [and] that he did not dispute the

eyewitness identification of him.” In fact,

Dr. Verdú had even told the investigators

that he owned clothing like that shown in

the photographs. Yet, Eisgruber concluded

that Dr. Verdú was untruthful because he

did not recall the bar in the photographs.

Eisgruber did not cite a single University

investigation of a consensual relationship

between a faculty member and a graduate

student who had graduated and left

Princeton years prior, let alone one triggered by accusations brought by third parties whose motivations were highly

suspect. Eisgruber did not cite to any

precedent of any tenured faculty being

expelled from the Faculty (even in cases of

faculty who had been accused of criminal

sexual activity). Eisgruber was only able to

cite the case of a faculty member who

resigned and joined another University in

2013 after, according to Eisgruber, “lying

to University officials about past interactions with students.”32

Notably, in February 2016, Princeton was featured by

The New York Times for failing to notify future employers

86a

Eisgruber incorrectly concluded—despite

Dr. Verdú’s unblemished record over a

34-year period—that his desire to protect

E.S. by not disclosing their relationship

equaled dishonesty in all aspects of Dr.

Verdú’s career. Adding insult to injury,

Eisgruber wrote “We must be able to trust

that faculty members are expressing honest

and impartial judgments when they assess

students, participate in personnel processes, review scholarship, or account for contributions

work