Doe v. Colgate Univ. ( 2019 )

17-3594-cv
Doe v. Colgate Univ.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 15th day of January, two thousand nineteen.
PRESENT: JOHN M. WALKER, JR.,
PIERRE N. LEVAL,
CHRISTOPHER F. DRONEY,
Circuit Judges.
______________________________________________
JOHN DOE,
Plaintiff-Appellant,
v. No. 17-3594-cv
COLGATE UNIVERSITY,
Defendant-Appellee,
COLGATE UNIVERSITY BOARD OF TRUSTEES, JEFFREY
HERBST, individually and as agent for Colgate University,
SUZY M. NELSON, individually and as agent for Colgate
University, KIMBERLY TAYLOR, individually and as agent
for Colgate University, MARILYN RUGG, individually and
as agent for Colgate University, VALERIE BROGAN,
individually and as agent for Colgate University, TAMALA
FLACK, individually and as agent for Colgate University,
Defendants.
______________________________________________
1
FOR PLAINTIFF-APPELLANT: PHILIP A. BYLER, (Andrew T. Miltenberg,
Kara Gorycki, Tara Davis, on the brief),
Nesenoff & Miltenberg, LLP, New York,
NY
FOR DEFENDANT-APPELLEE: LAURA H. HARSHBARGER, Bond,
Schoeneck & King, PLLC, Syracuse, NY.
Appeal from an October 31, 2017, judgment entered by the United States District
Court for the Northern District of New York (Kahn, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant John Doe 1 appeals from the October 31, 2017, judgment of the
United States District Court for the Northern District of New York (Kahn, J.) dismissing
this action on summary judgment. John Doe brought claims against Colgate University
(“Colgate,” or “the University”) and a number of its officers and administrators alleging
violations of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.
(“Title IX”), as well as, among other claims, breach of contract and breach of the duty of
good faith and fair dealing. 2 He contends that Colgate discriminated against him because
of his gender and violated policies set forth in its own student handbook when it expelled
him for sexual misconduct in his senior year. John Doe also challenges the district court’s
ruling that his proffered expert witness’s testimony was inadmissible under Rule 702 of
the Federal Rules of Evidence for consideration during the summary judgment
proceedings.
I. Background
A. Factual Background
Colgate University is a private university in Hamilton, New York. John Doe was
an undergraduate student there from Fall 2011 until he was expelled for sexual misconduct
in April 2015. Colgate adjudicates sexual misconduct allegations according to its Equity
Grievance Policy (“EGP”), through the Equity Grievance Panel (the “Panel”). The Panel
1
The district court granted John Doe’s motion to proceed under a pseudonym.
2
John Doe withdrew his appeal as to the individual defendants. He also does not appeal the dismissal of
his claims brought under the New York General Business Law, New York State Human Rights Law, or for
“estoppel and reliance,” negligence, or declaratory judgment; thus, he has abandoned these claims.
2
investigates misconduct allegations and holds a hearing if the alleged conduct may warrant
suspension or expulsion.
On October 28 and 29, 2014, Jane Does 1, 2, and 3 3 filed anonymous reports with
the University, each alleging that John Doe had returned to their dormitory rooms after
social events and had touched them sexually without their consent. Jane Does 1 and 3
additionally claimed John Doe had digitally penetrated them without their consent. Jane
Doe 1 alleged conduct occurring on October 28–29, 2011 (the “October 2011 incident”);
Jane Doe 2 alleged conduct occurring on February 11–12, 2012 (the “February 2012
incident”); and Jane Doe 3 alleged conduct occurring on April 28–29, 2012 (the “April
2012 incident”).
In November 2014, Jane Doe 2 met with Marilyn Rugg, the University’s Title IX
coordinator, to file a formal complaint. Rugg assigned Valerie Brogan, the Campus
Safety Investigator, and Tamala Flack, the Director of Equal Employment Opportunity and
Affirmative Action, to investigate the complaint.
Brogan interviewed Jane Doe 2 on November 7, 2014, and confirmed she was one
of the anonymous complainants. Brogan and Flack spoke with six witnesses about the
complaint, including Jane Does 1 and 3. Jane Does 1 and 3 eventually informed Brogan
and Flack that they had authored the other two complaints. Brogan and Flack reported
the complainants’ identities to Rugg, and eventually interviewed Jane Does 1 and 3.
Dean Kimberly Taylor met with John Doe on December 4, 2014, and informed him
that he was the subject of an EGP investigation based on allegations made against him.
Brogan and Flack interviewed John Doe on December 12, 2014. John Doe gave
his account of the three incidents when Brogan and Flack asked him about his sexual
history with the three complainants. He later memorialized his accounts in written
statements. In general, John Doe maintained that he and Jane Does 1, 2, and 3 had been
drinking alcohol before their encounters those evenings and he had only engaged in
voluntary sexual activity with them. John Doe contends now that the complaints against
him were prompted in part by a “Sexual Climate Forum” called “Breaking the Silence”
held on campus on October 27, 2014, which sought to raise awareness about campus sexual
assault.
3
Like the district court, we will refer to the three complainants under their pseudonyms of Jane Doe 1, 2,
and 3.
3
In addition to Jane Does 1, 2, and 3, and John Doe, Brogan and Flack spoke with
sixteen witnesses, including all witnesses John Doe identified as potentially having
relevant information about the three alleged incidents.
On March 24, 2015, Colgate informed John Doe that it was charging him with
Sexual Misconduct I for the October 2011 and April 2012 incidents, Sexual Misconduct II
for all three incidents, and Sexual Exploitation for the February 2012 and April 2012
incidents. 4 Under University policy, a student found responsible for these offenses could
be suspended or expelled. Rugg and Taylor determined that a hearing should be held to
adjudicate the charges. Taylor was to serve as the nonvoting chair of the hearing. Rugg
appointed three Panel members to the case: Professors Jeff Bary and Mary Moran, and the
Biology Department’s head technician Nicole Doroshenko.
EGP procedure allows a panel to consider evidence of a “pattern of conduct” if it is
relevant to the charges. Taylor determined that the three incidents underlying the charges
against John Doe suggested a pattern of conduct, and asked John Doe if he would consent
to have all three complaints heard as a single case. John Doe did not consent and thus,
Taylor determined that the three complaints would be heard separately, but consecutively,
on the same day by the same panel. Taylor also denied John Doe’s request for three
separate panels. His hearings were set for April 7, 2015.
Taylor allowed John Doe and his attorney to review the investigation file in her
office between March 27 and April 7, 2015, which they did on April 3 and again on April
7. Taylor denied John Doe’s request to postpone the hearing, reasoning that two weeks’
notice was twice what EGP procedure required and that John Doe had delayed in reviewing
the file once it was available.
On April 7, 2015, the hearing panel heard the three cases in succession. In each
case, Taylor read the charges against John Doe and asked if he took responsibility for the
alleged conduct, but he denied the allegations. Brogan testified about her investigation,
including her interviews of John Doe, the complainants, and other witnesses, and gave her
opinions about witness credibility and demeanor. Then the hearing panel, John Doe, and
the complainants were given an opportunity to ask Brogan questions. Next, the panel
members asked questions of the complainants and of John Doe. John Doe and the
complainant were each given an opportunity to submit questions for Taylor to ask the other,
and each part of the hearing concluded after the complainant and John Doe gave closing
statements. John Doe chose not to call any witnesses.
4
The conduct of which John Doe was accused meets the 2011–12 Student Handbook’s definitions of
Sexual Misconduct I and II and Sexual Exploitation, and he does not appear to argue otherwise.
4
After the hearing, the hearing panel unanimously found John Doe responsible for
all charges. The hearing panel decided that he should be expelled for the Sexual
Misconduct I charges by Jane Does 1 and 3 and suspended for the Sexual Misconduct II
charges by Jane Doe 2. On April 8, 2015, John Doe was expelled.
John Doe appealed the decisions to University Dean Suzy Nelson, who denied the
appeal. EGP procedure provides that the only grounds for appeal are: (1) “a procedural
error or omission . . . during the EGP hearing which, based upon the entire record, is
reasonably likely to have changed the outcome of the hearing (e.g., substantiated bias,
material deviation from established procedures, etc.);” (2) new information not available
to the party at the time of the hearing; or (3) a sanction disproportionate to the nature or
severity of the violation. App’x at 332–33.
B. Procedural History
John Doe filed suit in the United States District Court for the Northern District of
New York on August 31, 2015. On June 21, 2017, Colgate moved for summary
judgment.
On September 11, 2017, Colgate moved pursuant to Federal Rule of Evidence 702
to exclude portions of an expert report from Professor Aya Gruber from consideration on
summary judgment. Professor Gruber is a law professor who has written several articles
on sexual assault.
Gruber’s report discusses two “modes of thinking” that she claims are prevalent in
university Title IX policy and impacted Colgate’s adjudication of the claims against John
Doe: the “trauma trope” and the “serial rapist trope.” The trauma trope, according to
Gruber, is “the presumption that anyone who makes a complaint of sexual assault, or even
minor sexual contact, suffers from debilitating, or at least serious, trauma.” C. App’x at
451. Gruber contends that this prevented the University from questioning why all three
complainants came forward at almost exactly the same time. The serial rapist trope,
according to Gruber, is the mistaken idea that most college sexual assaults are perpetrated
by a few serial rapists. She contends that the three complainants may not have come
forward had they not talked to each other and concluded that John Doe “was a ‘serial’
rapist, and therefore what happened to them was rape.” C. App’x at 454. Gruber further
concludes that the serial rapist trope may have influenced the University’s determination
that John Doe was responsible for sexual misconduct because there were multiple
accusations against him.
Gruber also contends that the hearing panel may not have properly understood that,
to hold an accused responsible for sexual misconduct, “[t]he evidence must show that the
5
accused knew, or had substantial reason to believe, that the complainant did not consent,”
and instead may have focused on whether the complainants internally did not want the
sexual activity to occur. C. App’x at 455. Gruber’s report then describes several alleged
procedural deficiencies in Colgate’s disciplinary proceedings against John Doe, including
conflicts of interest; the inadequacy of the notice given to John Doe; Dean Taylor’s
decisions to consolidate the three complaints and not to grant John Doe an extension of
time to prepare; Dean Nelson’s appellate decision; and Brogan’s investigation.
On October 31, 2017, the district court granted Colgate’s motions for summary
judgment and to exclude the expert report, dismissed the case, and entered judgment.
This appeal followed.
II. Admissibility of Gruber’s Report
“The admission of expert testimony is committed to the broad discretion of the
District Court and will not be disturbed on review unless found to be manifestly erroneous.”
United States v. Wexler, 522 F.3d 194, 204 (2d Cir. 2008) (internal quotation marks
omitted). To be admissible, expert testimony must be, among other things, “help[ful] [to]
the trier of fact to understand the evidence or to determine a fact in issue” and “based on
sufficient facts or data.” Fed. R. Evid. 702(a), (b). An expert must also be qualified “by
knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. If the “factual
basis, data, principles, [or] methods [of expert testimony], or their application are called
sufficiently into question, the trial judge must determine whether the testimony has a
reliable basis in the knowledge of the relevant discipline.” Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 149 (1999) (internal quotation marks, citations, and alteration
omitted). Trial judges have “considerable leeway in deciding in a particular case how to
go about determining whether particular expert testimony is reliable.” Id. at 152.
The district court did not abuse its discretion when it ruled that Gruber’s conclusions
lacked a sufficient factual basis. Gruber’s general conclusions about university
administrators are supported primarily by her own law review articles, which offer little
empirical support. Moreover, Gruber cites little to no evidence that the trauma and serial
rapist tropes influenced the University’s investigation or disciplinary hearing; that the serial
rapist trope affected Jane Does 1, 2, and 3’s decisions to file complaints; or that the hearing
panel confused nonconsensual sex with “internally unwanted sex.”
The district court also did not abuse its discretion by excluding Gruber’s conclusions
about procedural deficiencies in the University’s handling of John Doe’s case. The court
reasonably concluded that Gruber’s lack of experience investigating sexual assault and lack
of familiarity with Title IX training and investigations rendered her unqualified to opine
on the propriety of Brogan’s investigation. Moreover, the district court properly excluded
6
Gruber’s other procedural conclusions because they were unhelpful to the trier of fact.
See Nimely v. City of New York, 414 F.3d 381, 397 (2d Cir. 2005) (“expert testimony that
usurps either the role of the trial judge in instructing the jury as to the applicable law or the
role of the jury in applying that law to the facts before it” is not helpful (internal quotation
marks, citation, and alteration omitted)). Gruber’s opinion that the University breached
its contract with John Doe by failing to follow its own procedures is unhelpful because it
usurps the jury’s role in applying the law to the facts. Likewise, Gruber’s opinion that
procedural deficiencies demonstrate that John Doe was treated unfairly based on gender is
unhelpful because it would not help a jury “understand the evidence or to determine a fact
in issue.” Fed. R. Evid. 702(a).
Accordingly, we affirm the district court’s decision to exclude Gruber’s expert
report from consideration at the summary judgment stage.
III. District Court’s Ruling on Summary Judgment
We review the district court’s grant of summary judgment de novo. Wright v. N.Y.
State Dep’t of Corr., 831 F.3d 64, 71 (2d Cir. 2016). We “resolve all ambiguities and
draw all permissible factual inferences in favor of the non-moving party, and will affirm
summary judgment only if the moving party shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Id. at 71–72
(internal quotation marks, citations, and alteration omitted). However, “[t]he mere
existence of a scintilla of evidence in support of the [non-movant’s] position will be
insufficient” to defeat summary judgment. Lyons v. Lancer Ins. Co., 681 F.3d 50, 56 (2d
Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
A. Title IX Claim
Under Title IX, with exceptions not relevant here, “[n]o person in the United States
shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any education program or activity receiving Federal
financial assistance.” 20 U.S.C. § 1681(a). Thus, “Title IX bars the imposition of
university discipline where gender is a motivating factor in the decision to discipline.”
Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994). Title IX claims concerning
disciplinary proceedings generally follow either an “erroneous outcome” theory or a
“selective enforcement” theory. Id.
John Doe’s claim proceeds under an “erroneous outcome” theory of gender bias.
To succeed on this theory, he must demonstrate (1) “articulable doubt [as to] the accuracy
of the outcome of the disciplinary proceeding,” and (2) that “gender bias was a motivating
factor behind the erroneous finding.” Id.
7
Assuming that his insistence that the sexual encounters were consensual was
sufficient to raise a disputed issue of material fact on the question of misconduct, to resist
summary judgment John Doe must demonstrate a genuine dispute of material fact as to
whether Colgate’s actions were motivated by gender bias. We agree with the district
court that he has not done so.
On appeal, John Doe argues that there was evidence demonstrating gender bias in
the following respects: (1) at the time of his expulsion, Colgate was under pressure to
punish male students accused of sexual misconduct; (2) EGP training was biased against
men; (3) Investigator Brogan was biased against him; (4) Dean Taylor consolidated the
three complainants into one hearing without evidence of a pattern of behavior; (5) the
University made accommodations at the hearing for the complainants that it did not make
for him; (6) the hearing itself was unfair toward him; (7) the hearing panel’s weighing of
the evidence evinced gender-based evaluation and misapplied the burden of proof; and (8)
Dean Nelson incorrectly ruled on his appeal. We discuss each contention in turn.
1. Pressure on Colgate to Punish Men
John Doe’s evidence does not give rise to a genuine dispute of material fact that
Colgate was under pressure to punish male students for sexual misconduct. He points to
the Sexual Climate Forum that took place shortly before Jane Does 1, 2, and 3 accused him
of misconduct, a 2011 letter from the United States Department of Education’s Office for
Civil Rights, and a “Winter Message” from the University’s president concerning sexual
harassment. We agree with the district court that John Doe does not explain how any of
these events resulted in gender bias on the part of the University. Indeed, the President’s
message noted that both men and women are victims of attempted or actual sexual assault
and that all parties to a misconduct complaint deserve to be treated with respect.
2. Whether EGP Training was Biased against Men
John Doe contends that Rugg, the Title IX Coordinator, introduced gender bias into
the EGP process. Rugg trained EGP staff, and in 2014, she attended a training session
for investigating campus sexual misconduct. Rugg’s notes from the session indicate that
investigators should refer to the complainant as a “complainant” when talking to a
respondent, but as the “victim” or “survivor” when talking to a complainant. Moreover,
in her own training presentations, Rugg would sometimes refer to complainants using
female pronouns and respondents with male pronouns because in her experience, most
complainants were female and most respondents were male.
This is insufficient evidence to demonstrate that John Doe was expelled based on
gender bias. There is no indication that Rugg’s use of such pronouns reflects anything
8
more than the statistical reality that most respondents are men and most complainants are
women, nor that calling complainants of any gender “victims” or “survivors” when
speaking to them reflects gender bias, rather than a desire to be sensitive. In addition, the
allegation that EGP staff members were trained to be biased against men is not supported
by the record of dispositions decided by EGP panels during the relevant time period:
between 2012 and 2015, three male respondents were found not responsible for any charges
against them and two other male respondents were found not responsible for the most
serious charges against them, compared with only three male respondents who were found
responsible for the most serious charges against them during the same time period (in
addition to John Doe) and one male respondent who admitted responsibility.
3. Brogan’s Bias
John Doe contends that Brogan biased the investigation against him. He focuses
in part on Brogan’s background as a female former police detective who investigated
sexual offenses. John Doe contends that this experience predisposed Brogan to consider
“males as perpetrators,” although the cited evidence does not support this. 5 Appellant’s
Br. at 35. He relies on Brogan’s testimony that, in her experience, most victims tell the
truth, and that when a long time passes between an incident and a complaint, the memory
issues that arise tend to be about specific details rather than whether an incident happened
or not. John Doe highlights that Brogan commonly asks respondents questions to the
effect of, “can you think of any reason these women would say this happened if it didn’t,”
which she asked John Doe as well. 6 C. App’x at 418.
This is insufficient evidence that Brogan was biased against John Doe. Brogan’s
statements about complainants reflect personal experience, rather than an assumption that
they tell the truth. Her question to respondents about why a complainant might have said
5
John Doe’s brief cites Brogan’s deposition for two points in support of this contention: first, that Brogan
“conducts investigations at Colgate in the same manner as when she was a police officer,” and second that
she “thinks of sexual misconduct offenses in the language she was ‘trained in’ meaning her ‘law
enforcement career.’” Appellant’s Br. at 35 (citing C. App’x at 419–20, then at 401–02). The first
statement is not supported by the cited testimony. The second statement comes from a brief discussion in
which Brogan indicated she would call sexual offenses by the names she would use as a detective, i.e.,
“rape,” rather than by the name the University used for charges, i.e., “Sexual Misconduct I.” This does
not indicate gender bias or a predisposition against male respondents.
6
John Doe further contends that Brogan “investigated [his] case assuming that he was responsible in every
instance for obtaining consent,” because she did not ask Jane Doe 2 if she had obtained John Doe’s consent.
Appellant’s Br. at 38. But Jane Doe 2 claimed not to have initiated any sexual or even physical activity
with John Doe, so Brogan would not have asked her about obtaining John Doe’s consent. John Doe also
repeatedly suggests that Brogan persuaded Jane Doe 1 to add to her complaint that digital penetration
actually occurred. There is no evidence that Brogan did so.
9
something “happened if it didn’t” invites the respondent to inform the investigator of any
reason the complainant might have to make a false accusation, such as animosity toward
the respondent. Brogan’s statements about the possibility that complainants may, after
the passage of time, have faded memories concerning the details of an event, while still
retaining a clear memory of whether it happened does not, on its face, evince bias.
4. Consolidation Decision
John Doe contends that Taylor’s decision to have the same hearing panel decide all
three complaints against him evinces bias because she erroneously determined that the
three incidents formed a pattern of behavior. We agree with the district court that this
does not raise a genuine issue that Taylor was motivated by gender bias, especially because
Taylor provided legitimate, gender-neutral explanations to support her decision.
5. Treatment of Complainants Versus John Doe at the Hearing
John Doe next contends that Colgate’s treatment of the complainants at the hearing
was more favorable than its treatment of him. He notes that the complainants were given
a waiting room for themselves and their friends before the hearing started, while he was
given only two weeks’ notice before the hearing and denied a postponement. John Doe
further contends he was entitled to three weeks’ notice of the charges before his hearing
could take place because there were three complainants.
The district court properly concluded that this evidence also does not support an
inference of bias. As the district court noted, John Doe does not claim that he requested
and was denied his own waiting room before the hearing. As for John Doe receiving two
weeks’ notice before his hearing, EGP procedure requires notification of charges “[a]t least
one week prior to the hearing,” but says nothing about additional time being required if
there are multiple hearings or complainants. App’x 328. Moreover, Taylor’s denial of
John Doe’s postponement was based on John Doe’s delay in reviewing the file, which John
Doe did not dispute. Finally, John Doe and his counsel were provided sufficient time for
their hearing preparation and make no specific assertions as to how the alleged time
limitations impaired their ability to prepare for the hearings.
6. Whether the Hearing Panel was Unfair
John Doe further contends that the hearing and hearing panel were unfair to him in
several ways. None creates a genuine issue of material fact as to gender bias.
10
First, John Doe points out that Taylor asked him at each hearing whether he took
responsibility for the charges against him, though that was not mandated by EGP
procedure. But John Doe does not explain how this evinces gender bias.
Next, John Doe contends two of the three panel members, Moran and Bary, had a
conflict of interest based on their prior knowledge of Jane Doe 2. But John Doe admits
that, although Moran had been on a lunchtime panel discussion with Jane Doe 2, she did
not recognize her name when reviewing her file, and that Bary did not know Jane Doe 2 or
her major and did not discuss the case with his wife, a University professor who may have
known her because she taught courses in the same department in which Jane Doe 2 was
majoring. Thus, no conflict of interest is apparent.
Finally, John Doe contends Brogan testified in a way that was biased against him
and that Moran’s questions were harsh in tone. John Doe’s only evidence is his subjective
perception and speculation as to their motives. Having reviewed the recording of all three
hearings, we see no basis to conclude that Brogan or Moran’s conduct at the hearing
evinced bias against John Doe.
7. The Hearing Panel’s Weighing of the Evidence
John Doe contends the hearing panel’s decisions demonstrate gender bias both
because the panel misapprehended the burden of proof and because they believed Jane
Does 1, 2, and 3 despite their alleged credibility problems and the inconsistencies in their
stories.
As for burden of proof, John Doe points out that the hearing panel said that it had
found the complainants more credible than it had found him, rather than finding that the
charges were proven by a preponderance of the evidence. This does not demonstrate bias:
by believing each complainant rather than John Doe, the panel effectively decided that
sexual misconduct was more likely to have occurred than not, because each complainant
indicated misconduct had occurred that John Doe denied.
As for the hearing panel’s decision to believe the complainants rather than John
Doe, while it is plausible to infer that disciplinary evaluators were biased against the
respondent if “the evidence substantially favor[ed]” the respondent’s version of events but
the evaluators “chose to accept [the complainant’s] unsupported accusatory version”
instead, Columbia Univ., 831 F.3d at 57, the evidence in this proceeding did not
substantially favor John Doe.
11
8. Denial of John Doe’s Appeal
Finally, John Doe contends that Dean Nelson’s denial of his appeal evinced gender
bias because she ignored his arguments that the University’s investigation and hearing were
procedurally flawed. He argues that Nelson ignored his arguments about “receipt of
hearsay, bias of the panel, inability to cross-examine, inadequate notice, use of a common
panel, the lapse of time in the complaints being brought, gender discrimination, Brogan’s
gender bias and failure to meet the proof burden.” Appellant’s Br. at 47. John Doe also
claims Nelson was biased because she “regularly attended sexual assault awareness events
around campus, Women’s Studies Brown Bag Lunches, and was known as someone who
‘worked tirelessly on the issue of . . . survivor support’ and was ‘good friends’ with Taylor.”
Appellant’s Br. at 20–21 (quoting C. App’x at 494, 496, 505).
We have rejected above many of the arguments that John Doe faults Nelson for
rejecting. As for the inclusion of hearsay and the delay in the complaints being brought,
neither violated EGP procedure, and John Doe does not argue to the contrary. Moreover,
John Doe did cross-examine Brogan, and could have challenged the complainants’
testimony (admittedly in limited fashion) by submitting questions to Taylor. In any event,
this aspect of the EGP procedure did not discriminate against him. Just as John Doe was
barred from directly cross-examining the complainants, they were barred from cross-
examining him. Therefore, John Doe does not demonstrate that Nelson erroneously
denied his appeal. Nor does Nelson’s support for sexual assault victims and awareness
demonstrate gender bias against men.
Accordingly, summary judgment on John Doe’s Title IX claim in favor of Colgate
was warranted. 7
B. Breach of Contract and Breach of the Duty of Good Faith and Fair Dealing
Under New York law, “when a student is admitted to a school, an implied contract
arises between the student and the school.” Dasrath v. Ross Univ. Sch. of Med., 494 F.
App’x 177, 178 (2d Cir. 2012) (summary order) (internal quotation marks omitted). The
contract’s terms “are supplied by the bulletins, circulars and regulations made available to
the student.” Id. (internal quotation marks omitted). “Implicit in this contract is that the
university must act in good faith in dealing with the student.” Id. (internal quotation
marks omitted).
7
As John Doe has not put forth sufficient evidence to show a disputed issue of material fact as to
whether Colgate had a “complainant-favoring bias,” the Court will not address his contention that
University procedures are effectively biased against men because they are biased against respondents,
who, he contends, are almost always men. Appellant’s Br. at 26.
12
It appears from his briefs that John Doe only challenges dismissal of his claim for
breach of the duty of good faith and fair dealing and does so in a somewhat cursory manner.
Thus, he has waived his challenge to the dismissal of his contract claim by failing to brief
it sufficiently. Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not
sufficiently argued in the briefs are considered waived and normally will not be addressed
on appeal.”).
The district court dismissed John Doe’s claim for the breach of the duty of good
faith and fair dealing because it was duplicative of his breach of contract claim, which the
district court also dismissed. Although he asserts that several alleged breaches of the EGP
procedure “add up” to a breach of the duty of good faith and fair dealing, John Doe makes
no argument as to why the district court was incorrect to conclude that this claim was
duplicative of his dismissed contract claim. Thus, he has waived this argument. See
Norton, 145 F.3d at 117.
* * *
We have considered Plaintiff-Appellant’s remaining arguments and conclude that
they lack merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
13