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Doe v. University of Denver.

No. 19-1359. D.Colo. Judge Tymkovich. Title IX Sex Discrimination—Sexual Misconduct Investigation—Summary Judgment—Reasonable Inference.

June 14, 2021

Plaintiff was romantically involved with a fellow first-year student, “Jane Roe,” while he was an undergraduate at the University of Denver (University). The two had sexual intercourse the morning after a night of heavy drinking. Plaintiff alleged they had consensual sex, but Jane contended it was nonconsensual. A few days later, Jane had a sexual assault nurse examiner’s (SANE) report done. Several weeks later, Jane reported the incident to the University’s Title IX coordinator, and an investigation ensued.

One month later, the University’s Title IX director sent plaintiff a letter informing him of the complaint and requesting that he participate in an interview, which he did. Investigators also interviewed Jane and 11 people with whom she discussed the incident. Plaintiff gave the names of five people with whom he had discussed the incident, but University investigators did not interview them. University investigators then issued a preliminary report summarizing the interviews and their findings. This was the first time plaintiff was made aware of the specific allegations against him. After he expressed concern that none of his witnesses were interviewed, investigators interviewed his psychologist. When the psychologist saw a summary of her statement, she sent a follow-up letter to the University expressing her concern that the summary was inaccurate, and she questioned the investigation’s integrity. Jane submitted a portion of the SANE report to investigators but refused to submit the entire report. The psychologist’s statement to investigators was appended to the final investigative report (final report), but the final report did not mention her letter questioning the investigation’s integrity. The final report found that plaintiff more likely than not engaged in nonconsensual sexual contact with Jane. The University disciplinary review committee then expelled plaintiff from the University. Plaintiff attempted to appeal this decision, but the University found that his case did not meet appeal criteria.

Plaintiff brought several claims against the University and several administrators, including violation of his Title IX rights and violation of procedural due process under the Fourteenth Amendment. The parties cross-motioned for summary judgment, and the district court granted summary judgment to the University on all claims.

Plaintiff argued on appeal that the district court erred in granting summary judgment to the University on the Title IX claim because the record contained sufficient evidence to create a genuine dispute of material fact as to that claim and the court erred in failing to analyze the claim under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Title IX bars university discipline where sex is a motivating factor in the discipline decision. Where a Title IX plaintiff relies on indirect proof of discrimination, the McDonnell Douglas three-part burden-shifting framework applies. Under the McDonnell Douglas framework, plaintiff has the burden of showing that his sex was a motivating factor in the investigation and disciplinary decision. If that is shown, the burden shifts to the University to articulate a legitimate, nondiscriminatory reason for its decision. If the University does so, the burden shifts back to plaintiff to show a genuine issue of material fact as to whether the proffered reason is pretextual. Evidence of an erroneous outcome or selective enforcement are means by which a plaintiff might show that sex was a motivating factor in a university’s disciplinary decision.

Applying the McDonnell Douglas framework, the Tenth Circuit concluded that plaintiff raised a reasonable inference that the University’s one-sided investigation established a prima facie case of sex discrimination. In response, the University posited a legitimate, nondiscriminatory reason for its conduct: that University employees were biased against sexual misconduct respondents, regardless of sex. But plaintiff produced enough evidence to raise an inference that the University’s proffered explanation was pretextual because the investigators refused to interview his witnesses, the investigation credited Jane’s allegations despite numerous inconsistencies and a large number of conflicting accounts, and the final report did not mention any of the inconsistencies. Further, the report did not discuss any of Jane’s potential motives for making a false report and put considerable weight on the extracted SANE report pages without requiring the entire report. Accordingly, the investigation raised a plausible inference that the University discriminated against plaintiff on the basis of his sex.

Additionally, plaintiff identified a number of statistical anomalies that raised an inference of anti-male bias. For instance, the University failed to formally investigate any of the 21 sexual misconduct complaints brought by men from 2016 to 2018, while it investigated complaints brought by women during the same period. This evidence casts some doubt on the University’s position that its practices were uniformly pro-complainant and anti-respondent. Accordingly, plaintiff presented enough evidence to satisfy his burden of showing that the University’s explanations of its conduct were pretextual, and viewing the evidence in the light most favorable to plaintiff, a reasonable jury could find that his sex was a motivating factor in the University’s decision to expel him. The district court’s entry of summary judgment was thus improper.

The grant of summary judgment was vacated and the case was remanded for further proceedings.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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