Doe v. University of Denver ( 2021 )


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  •                                                                     FILED
    United States Court of Appeals
    Tenth Circuit
    PUBLISH                  June 15, 2021
    Christopher M. Wolpert
    UNITED STATES COURT OF APPEALS               Clerk of Court
    TENTH CIRCUIT
    JOHN DOE,
    Plaintiff - Appellant,
    v.                                            No. 19-1359
    UNIVERSITY OF DENVER;
    UNIVERSITY OF DENVER BOARD
    OF TRUSTEES; REBECCA CHOPP,
    individually and as agent for
    University of Denver; KRISTIN
    OLSON, individually and as agent for
    University of Denver; JEAN
    MCALLISTER, individually and as
    agent for University of Denver; SIRI
    SLATER, individually and as agent for
    University of Denver; ERIC BUTLER,
    individually and as agent for
    University of Denver,
    Defendants - Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLORADO
    (D.C. NO. 1:17-CV-01962-PAB-KMT)
    Adrienne Levy, Nesenoff & Miltenberg, LLP (Andrew T. Miltenberg and Stuart
    Bernstein, Nesenoff & Miltenberg, LLP, New York, New York, and Michael J.
    Mirabella, Campbell, Bohn, Killin, Brittan & Ray LLC, Denver, Colorado, with
    her on the briefs) New York, New York, for Appellant.
    Jim Goh (E. Rayner Mangum with him on the brief), Constancy, Brooks, Smith &
    Prophete, LLP, Denver, Colorado, for Appellees.
    Before TYMKOVICH, Chief Judge, BALDOCK, and PHILLIPS, Circuit
    Judges.
    TYMKOVICH, Chief Judge.
    This case arises out of a sexual-misconduct investigation conducted by the
    University of Denver and the subsequent expulsion of John Doe after a classmate
    accused him of sexual assault. John sued the University and various school
    administrators (collectively, the University) alleging, among other things, that the
    University violated the sex discrimination prohibition of Title IX, 
    20 U.S.C. § 1681
    , because anti-male bias pervaded the sexual-misconduct investigation,
    resulting in a disciplinary decision against the weight of the evidence. The
    district court concluded John had failed to present sufficient evidence that the
    University’s actions were motivated by bias against him because of his sex, and it
    therefore granted summary judgment to the University on John’s Title IX claim.
    John challenges that conclusion and alleges the district court applied the
    wrong legal standard in resolving his summary judgment motion. Exercising
    jurisdiction under 
    28 U.S.C. § 1291
    , we REVERSE. Applying the familiar
    McDonnell Douglas evidentiary standard to John’s claim, we conclude he has
    provided sufficient evidence for a jury to decide whether the investigation into the
    -2-
    allegations and subsequent disciplinary action discriminated against him because
    of his sex.
    I. Background
    A. Factual Background
    We review a district court’s grant of summary judgment de novo and
    consider the facts and all reasonable inferences in favor of John, the party
    opposing summary judgment. Singh v. Cordle, 
    936 F.3d 1022
    , 1037 (10th Cir.
    2019).
    John Doe enrolled as an undergraduate at the University of Denver in 2015.
    In his first year at the University, John became romantically involved with a
    fellow first-year student, Jane Roe. During January and February of 2016, Jane
    and John occasionally spent the night together. On several occasions, they
    discussed having sexual intercourse but never did so. The two also discussed the
    possibility of an exclusive relationship, but John was not interested in dating
    Jane, and he began to try to distance himself from her. Jane expressed confusion
    about their relationship but continued to see John from time to time.
    One Friday night, Jane and her friends drank alcohol in the dorms and later
    went to a bar. Jane could not recall how she left the bar that night because she
    was intoxicated, but she eventually found her way to John, who was also
    intoxicated. Jane led John to her dorm room, where they began kissing and
    -3-
    touching. A fellow student, I.K., later told investigators that Jane ran to I.K.’s
    room at one point because John became sick and passed out on the floor. I.K.
    offered to help move John, but Jane declined and stayed with John in her room
    overnight. John could not entirely recall what happened after this but
    remembered that he and Jane took their clothes off and tried unsuccessfully to
    have sexual intercourse.
    Jane and John dispute what happened the following morning. John’s
    account is that he and Jane had consensual sex: Jane woke him up, said “good
    morning,” waited while he put on a condom, and then had sexual intercourse with
    him. App. 464. John said Jane did not ask why he was putting a condom on or
    try to resist having sex, and he said that Jane was positioned on top of him. But
    at some point, Jane got up abruptly and left the room. John said she returned ten
    minutes later and tried to talk to him about their relationship. John did not want
    to talk about their relationship and went back to his room, where he described
    these events to his roommate, T.D. John later told investigators: “I did not want
    to talk about it. I was still confused about why she got up and left. I had already
    made the decision to go back to my room. Previously I had been trying to
    distance myself from her. I felt like this had been a set back.” 
    Id. at 464
    .
    Jane’s account is that the pair had sexual intercourse without her consent.
    She said that she was still “pretty drunk” on Saturday morning when she woke up
    -4-
    to John fondling her. 
    Id.
     at 456–57. According to Jane, she watched John put a
    condom on and begin having sexual intercourse with her, although she did not ask
    why he was putting a condom on or try to resist. At one point she asked him to
    stop because it hurt, but he assured her “it’s going to, because it’s your first
    time.” 
    Id. at 456
    . Jane said that she was on top of John at this point, and she did
    not otherwise verbally or physically resist John’s advances. She said that John
    grabbed her leg when she moved it, and at various points throughout the
    encounter, she felt she could not leave the room. A short time later, she got up,
    said, “I need to leave,” and went to the bathroom. 
    Id.
     When she returned, John
    was still in her room. Jane said the two argued about what had happened, and
    John eventually left.
    Jane, apparently upset that John left abruptly, texted him: “Thanks for
    finishing our conversation.” 
    Id. at 456, 493
    . Jane continued to text John, urging
    him to “finish the conversation,” but John said “not right now” and upon further
    urging explained, “I just need some time.” 
    Id. at 493
    . Later that morning, Jane
    told her friend that she and John had sex.
    That night, Jane went to a house party with friends, where she saw John
    talking to another young woman. Jane allegedly overheard John tell the young
    woman what had happened that morning, explaining that “she just left right in the
    -5-
    middle of it.” 
    Id. at 458
    . One of Jane’s friends told investigators that Jane was
    very upset about this.
    Another student, G.H.—whom the University would later credit as Jane’s
    key witness—escorted Jane home after the Saturday night party because she was
    very intoxicated. According to G.H., Jane told him that the night before she had
    refused to have sex with a guy she was seeing, but “woke up the next morning and
    found him engaging in sexual intercourse with her.” 
    Id. at 634
    .
    The following night, Jane called John and told him she could not remember
    anything that happened in her dorm room on Friday night and wanted to know if
    they had sexual intercourse. He said they did not. Jane also told John to stop
    telling people about Saturday morning, but she assured him “you didn’t hurt me,”
    “you didn’t take anything from me,” and “[I] willingly gave it to you” (referring
    to her virginity). 1 
    Id. 458, 504
    . John told Jane that he regretted having sex with
    her and thought the two should “give up on” their relationship because it “seemed
    unhealthy” and “was not working out.” 
    Id. at 465, 481
    .
    Over the next few days, Jane relayed to over a dozen friends and
    acquaintances conflicting accounts of the encounter. It appears she initially
    believed John sexually assaulted her on Friday night, not Saturday morning, given
    1
    Both John and Jane agree that Jane made these statements. See App. 458,
    480, 665.
    -6-
    that she could not remember their sexual encounter that night and she had bruises
    that she could not explain. On Tuesday morning, Jane texted John to ask why she
    had these bruises. John said he didn’t know where the bruises came from. He
    also told her “I know what you are insinuating about Friday. Don’t. You invited
    me to your room, and started taking my clothes off.” 
    Id. at 498
    . Jane responded
    that she “wasn’t insinuating anything” and later said, “I was asking you to tell me
    what happened because there were marks[, yet] you assume[d] the worst.” 
    Id. at 500, 508
    . Jane asked John to meet in person, but he responded that he didn’t
    think they should “talk at all” and said “I don’t want anything from you. That, I
    think, is the misunderstanding.” 
    Id. at 506
    .
    Later that day, one of Jane’s friends told her that she needed to go get a
    “rape kit” done, given the unexplained bruises and markings from Friday night.
    
    Id. 460, 467
    . Jane had a Sexual Assault Nurse Examiner’s (SANE) report done,
    but because Jane would later refuse to turn the medical assessment portion of the
    report over to University investigators, any conclusions from this portion are not
    in the record.
    On Thursday, March 10, John and Jane again spoke about the incident. Jane
    told him that she had been speaking with others about their sexual encounter and
    “someone else told me that it was sexual assault.” 
    Id. at 462
    . According to John,
    he asked Jane twice if she thought he sexually assaulted her. Jane said that she
    -7-
    was not making a decision about whether or not she was sexually assaulted but
    “letting other people tell” her. 
    Id. at 511
    . John responded, “oh my god [Jane],
    there’s a difference between regret and assault.” 
    Id. at 461
    . Jane told John she
    felt like she was “holding a gun, with one bullet and perfect aim.” 
    Id. at 511
    .
    But she explained that she was putting the gun down, and all “I want is privacy.”
    
    Id. at 461
    .
    Several weeks later, Jane found out that before spring break, John told
    three other students what happened. Jane later explained: “That’s when I decided
    to report.” 
    Id. at 462
    . Jane filed a report with the University on March 24, 2016,
    about three weeks after the sexual encounter. One month later, Jean McAlister,
    the Director of Title IX for the University, sent John a letter informing him of the
    complaint and requesting that he participate in an interview, which he did.
    Investigators also interviewed Jane and eleven people with whom she had
    discussed the incident. John gave the names of five people with whom he had
    discussed the incident, but University investigators refused to interview them.
    University investigators then issued a Preliminary Report summarizing
    these interviews and briefly describing their findings. This was the first time
    John was made aware of the specific allegations against him. After reviewing the
    report, John responded to the investigators by email, expressing concern that the
    University did not interview any of his proposed witnesses. In response, the
    -8-
    University decided to interview one of John’s proposed witnesses, his
    psychologist, Dr. Mary Bricker, with whom he had discussed the allegations
    against him. After her interview, Dr. Bricker saw a summary of her statement,
    which caused her to send a follow-up letter to the University that expressed
    concern about the investigation’s integrity. She alleged the University’s summary
    of her statement was inaccurate and that throughout the interview, the investigator
    appeared to have “made up her mind already about what she th[ought] took
    place.” 
    Id. at 367
    . Dr. Bricker’s statement to investigators was appended to the
    Final Report, but the report did not mention her letter questioning the integrity of
    the investigation.
    John’s email also expressed concerns about Jane withholding medical
    evidence, noting that most of the SANE report was missing from the Preliminary
    Report. A complete SANE report includes narrative summaries by the SANE
    nurse and the attending physician, as well as the patient’s written statement
    regarding the source of the injuries. While Jane turned over one portion of the
    report that showed various bruises and abrasions, she omitted the SANE nurse’s
    and attending physician’s written descriptions of these injuries, including the age
    of the injuries and their likely causes. 2 Many of the bruises and abrasions are
    2
    More specifically, Jane turned over a “Female Body Map,” which shows
    a generic drawing of a female’s body, which a doctor or nurse marked up to show
    (continued...)
    -9-
    consistent with injuries one would sustain in a fall, such as scrapes on her knees,
    elbows, and the tops of her feet. John pointed out that the only portion of the
    report that was included was “written in medical shorthand, which was difficult to
    understand.” 2 
    Id. at 563
    . Jane also omitted her own written statement regarding
    the source of the injuries. One investigator testified at his deposition that he
    asked Jane to provide the full SANE report, but she refused.
    The investigators issued their Final Report in August 2016, finding that
    John more likely than not engaged in non-consensual sexual contact with Jane.
    Upon review of that finding, a University disciplinary review
    committee—consisting of two school administrators and one faculty
    representative—expelled John from the University. 3 John sought to appeal this
    decision, but the University found that his case did not meet “appeal criteria.” 
    Id. 291
    .
    B. Procedural History
    2
    (...continued)
    Jane’s bruises and scrapes. App. 512–17.
    2
    Though the investigators had no medical expertise, they nevertheless
    concluded these bruises and abrasions corroborated Jane’s story.
    3
    The committee’s role was limited to imposing a sanction based on the
    investigators’ finding that, by a preponderance of the evidence, John had sexually
    assaulted Jane. The committee had no power to challenge or reverse that
    conclusion.
    -10-
    John sued the University of Denver and various school administrators
    alleging: (1) a violation of his rights under Title IX, 
    20 U.S.C. § 1681
    , (2) a
    violation of his procedural due process rights under the Fourteenth Amendment,
    (3) breach of contract, (4) breach of the covenant of good faith and fair dealing,
    (5) promissory estoppel, and (6) negligence. The parties cross-motioned for
    summary judgment, and the district court granted summary judgment to the
    University on all claims. Regarding the Title IX claim, the district court
    concluded John had failed to establish the required causal connection between the
    investigation and anti-male bias. The district court likewise denied John’s due
    process challenge for failure to state a claim and declined to exercise pendent
    jurisdiction over the state law claims.
    John appeals on two grounds. First, he argues the record contains
    sufficient evidence to create a genuine dispute of material fact as to his Title IX
    claim. Second, he alleges the district court erred in failing to analyze his Title IX
    claim under the McDonnell Douglas burden-shifting framework. McDonnell
    Douglas Corp. v. Green, 
    411 U.S. 792
     (1973).
    II. Analysis
    John claims the University discriminated against him on the basis of sex
    during its sexual-misconduct investigation and its resulting decision to expel him
    -11-
    from the University. We conclude a genuine dispute of material fact precludes
    summary judgment on this issue.
    A. Title IX Framework
    Title IX provides that “[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). Where sex-based
    discrimination is intentional, Title IX is enforceable through a cause of action for
    which money damages are available. See Jackson v. Birmingham Bd. of Educ.,
    
    544 U.S. 167
    , 173 (2005). The parties agree the University receives federal funds
    and that John was excluded from participating in the University’s educational
    programs by virtue of his expulsion. The only issue is whether John has raised a
    genuine dispute about whether the University’s investigation and decision to
    expel him was motivated by anti-male bias. John alleges the district court erred
    in granting summary judgment to the University on his Title IX claim.
    We review a district court’s summary judgment order de novo, “applying
    the same standard that the district court is to apply.” Singh, 936 F.3d at 1037.
    Where a Title IX plaintiff relies on indirect proof of discrimination, we apply the
    three-part burden-shifting framework announced in McDonnell Douglas. See
    McDonnell, 
    411 U.S. at 792
    ; see also Hiatt v. Colorado Seminary, 
    858 F.3d 1307
    ,
    -12-
    1315 n.8 (10th Cir. 2017) (“The McDonnell Douglas framework applies” to “Title
    IX sex discrimination claims.”). 4 “The shifting burdens of proof set forth in
    McDonnell Douglas are designed to assure that the plaintiff has his day in court
    despite the unavailability of direct evidence.” Trans World Airlines, Inc. v.
    Thurston, 
    469 U.S. 111
    , 121 (1985).
    Under this framework, John has the burden of showing that his sex was a
    motivating factor in the school’s investigation and disciplinary decision. See
    Hiatt, 858 F.3d at 1316. If John clears that hurdle, then the burden shifts to the
    University to articulate a legitimate, nondiscriminatory reason for its decision.
    Kendrick v. Penske Transp. Servs., Inc., 
    220 F.3d 1220
    , 1226 (10th Cir. 2000). If
    the University does so, then the burden shifts back to John to show “a genuine
    issue of material fact as to whether the proffered reason is pretextual.” 
    Id.
     To
    prove pretext, John must produce evidence of “weaknesses, implausibilities,
    4
    The University correctly notes that we did not expressly invoke the
    McDonnell Douglas burden-shifting framework in a recent similar case against
    the University, Doe v. University of Denver, 
    952 F.3d 1182
     (10th Cir. 2020)
    (“Doe I”). But the appellant in Doe I did not argue—as John has here—that the
    district court erred in failing to apply that framework. This court has
    unequivocally held “[t]he McDonnell Douglas framework applies both to the Title
    IX and Title VII sex discrimination claims.” Hiatt, 858 F.3d at 1315 n.8; see also
    Gossett v. Oklahoma ex rel. Bd. of Regents for Langston Univ., 
    245 F.3d 1172
    ,
    1176 (10th Cir. 2001) (“Courts have generally assessed Title IX discrimination
    claims under the same legal analysis as Title VII claims.”). In Doe I, we
    effectively found that the appellant had failed McDonnell Douglas at step three by
    failing to show that the school’s “anti-respondent, not anti-male” explanation was
    pretextual.
    -13-
    inconsistencies, incoherencies, or contradictions in the [University’s] proffered
    legitimate reasons for its action that a reasonable factfinder could rationally find
    them unworthy of credence and hence infer that the [University] did not act for
    the asserted nondiscriminatory reasons.” Morgan v. Hilti, Inc., 
    108 F.3d 1319
    ,
    1323 (10th Cir. 1997).
    Title IX “bars the imposition of university discipline where [sex] is a
    motivating factor in the decision to discipline.” Yusuf v. Vassar College, 
    35 F.3d 709
    , 715 (2d Cir. 1994). John and the University frame their arguments under the
    analytical framework set forth in a number of higher education Title IX
    misconduct cases. See, e.g., 
    id.
     This framework recognizes two theories of Title
    IX liability: “erroneous outcome” and “selective enforcement.” Id.; see also
    Haidak v. Univ. of Massachusetts-Amherst, 
    933 F.3d 56
    , 74 (1st Cir. 2019)
    (recognizing “erroneous outcome” and “selective enforcement” theories of
    liability); Klocke v. Univ. of Texas at Arlington, 
    938 F.3d 204
    , 210 (5th Cir. 2019)
    (same); Doe v. Miami Univ., 
    882 F.3d 579
    , 589 (6th Cir. 2018) (same); Doe v.
    Valencia College, 
    903 F.3d 1220
    , 1236 (11th Cir. 2018) (“erroneous outcome”
    only).
    Under the “erroneous outcome” test, a plaintiff must set forth “(1) facts
    sufficient to cast some articulable doubt on the accuracy of the outcome of the
    disciplinary proceeding” and (2) “a particularized causal connection between the
    -14-
    flawed outcome and gender bias.” Yusuf, 
    35 F.3d at 715
    . To satisfy the
    “selective enforcement” test, a plaintiff “must show that a similarly-situated
    member of the opposite sex was treated more favorably than the plaintiff due to
    his or her gender.” Doe v. Univ. of Dayton, 766 F. App’x. 275, 284 (6th Cir.
    2019). 5
    Other courts have declined to superimpose these analytical tests onto Title
    IX, concluding that “[a]ll of these categories simply describe ways in which a
    plaintiff might show that sex was a motivating factor in a university’s decision to
    discipline a student.” Doe v. Purdue Univ., 
    928 F.3d 652
    , 667 (7th Cir. 2019);
    accord Doe v. Univ. of Scis., 
    961 F.3d 203
    , 209 (3d Cir. 2020); see also Sheppard
    v. Visitors of Virginia State Univ., 
    993 F. 3d 230
    , 236 (4th Cir. 2021); Rossley v.
    Drake Univ., 
    979 F.3d 1184
    , 1192 (8th Cir. 2020); Schwake v. Arizona Bd. of
    Regents, 
    967 F.3d 940
    , 947 (9th Cir. 2020). Instead, they “ask the question more
    directly: do the facts alleged, if true, raise a plausible inference that the university
    discriminated against [the student] ‘on the basis of sex’?” Purdue, 928 F.3d at
    667–68.
    We think the latter approach better accords with the text and analytical
    framework of Title IX. But we recognize that evidence of an erroneous outcome
    5
    Some circuits recognize two additional theories of Title IX liability:
    “deliberate indifference” and “archaic assumptions.” See, e.g., Doe v. Miami
    Univ., 
    882 F.3d 579
    , 589 (6th Cir. 2018).
    -15-
    or selective enforcement are means by which a plaintiff might show that sex was a
    motivating factor in a university’s disciplinary decision. Because Purdue
    articulated the motion to dismiss standard, we reframe the operative question for
    summary judgment and ask: Could a reasonable jury—presented with the facts
    alleged—find that sex was a motivating factor in the University’s disciplinary
    decision?
    B. Application
    John claims the University’s sexual-assault investigation against him was
    tainted by anti-male bias to such a degree that it is reasonable to infer sex was a
    motivating factor in the University’s expulsion decision. The district court, in
    contrast, concluded the University’s policies and actions were, at most, pro-
    sexual-assault complainant, rather than pro-female, and anti-sexual-assault
    respondent, rather than anti-male. Shortly after the district court’s summary
    judgment order in this case, we decided a factually similar case, Doe I, on the
    same grounds—namely, that the plaintiff’s evidence merely demonstrated anti-
    respondent bias, not anti-male bias. See generally Doe I, 
    952 F.3d 1182
     (10th
    Cir. 2020). “[E]vidence of a school’s anti-respondent bias,” we explained, “does
    not create a reasonable inference of anti-male bias,” because both males and
    females can be respondents. 
    Id. at 1196
    .
    -16-
    Doe I, to be sure, covers much the same ground as this case. For example,
    as in Doe I, John here details how University employees faced considerable
    external pressure to pursue female claims of sexual assault. Most notably, he
    highlights that the University was the subject of two investigations by the
    Department of Education’s Office of Civil Rights relating to its handling of
    sexual-assault claims. This caused the University to engage a consulting firm to
    audit the University’s compliance with Title IX and implement new procedures.
    These new procedures were described in University training materials as a move
    away from “focusing on protecting the rights of the accused.” App. 309.
    Moreover, like the plaintiff in Doe I, John highlights the statistical disparity in
    the gender makeup of sexual-assault complainants and respondents at the
    University. 6
    In Doe I, we held that this type of generalized evidence, standing alone,
    cannot satisfy a Title IX plaintiff’s summary judgment burden “unless combined
    with a particularized something more . . . that would indicate that DU’s decision
    in his particular case was based on his gender.” 952 F.3d at 1192–93; see also,
    e.g., Doe v. Baum, 
    903 F.3d 575
    , 586 (6th Cir. 2018) (“[E]xternal pressure alone
    is not enough to state a claim that the university acted with bias in this particular
    6
    This is just an example of the overlapping evidence in these cases; there
    are others we need not address in detail.
    -17-
    case. Rather, it provides a backdrop that, when combined with other
    circumstantial evidence of bias in John’s specific proceeding, gives rise to a
    plausible claim.”). John argues the procedural deficiencies in his sexual-assault
    investigation, combined with additional statistical evidence of sex bias,
    distinguish this case from Doe I. We agree.
    1. Application of McDonnell Douglas
    Applying the McDonnell Douglas framework, we conclude John has raised
    a reasonable inference that the University’s one-sided investigation establishes a
    prima facie case of sex discrimination. In other words, John has sufficiently
    shown evidence of differential conduct that plausibly was on the basis of his sex.
    See, e.g., Menaker v. Hofstra Univ., 
    935 F.3d 20
    , 33 (2d Cir. 2019) (“It is
    precisely because procedural irregularity alone already suggests bias that even
    minimal evidence of sex-based pressure on the university is sufficient to establish
    bias on account of sex.”); Doe v. Oberlin Coll., 
    963 F.3d 580
    , 586–88 (6th Cir.
    2020) (“[Plaintiff had] amply stated a claim for sex discrimination” where there
    were “clear procedural irregularities,” “the Department of Education’s Office of
    Civil Rights was engaged in a systemic investigation of the College’s policies,”
    and the “facts of the case cast . . . doubt on the accuracy of the disciplinary
    proceeding’s outcome.”); Doe v. Univ. of Arkansas, 
    974 F.3d 858
    , 865 (8th Cir.
    2020) (concluding a “dubious [disciplinary] decision . . . taken against the
    -18-
    backdrop of substantial pressure on the University to demonstrate that it was
    responsive to female complainants” supports “an inference that a university is
    biased based on sex.”).
    In response to John’s showing of a prima facie case, the University posits a
    legitimate, non-discriminatory reason for its conduct: the University employees
    were biased against sexual-misconduct respondents, regardless of their sex. If
    true, this type of explanation—though at odds with general notions of due
    process—would not expose the University to Title IX liability, because
    respondent and complainant are (at least in the abstract) sex-neutral
    classifications.
    Given this showing, under McDonnell Douglas, we assess whether John has
    produced enough evidence to raise an inference that the University’s proffered
    explanation is pretextual—that is, covering up sex-based discrimination. We
    conclude that John has satisfied his burden.
    a. The University’s Investigation
    First, John claims that pretext can be shown because the University’s
    investigation was replete with procedural deficiencies, all of which favored Jane
    and disfavored him, despite substantial reasons to discount her allegations. In the
    Title VII context, we have held that “disturbing procedural irregularities
    surrounding an adverse employment action may demonstrate that an employer’s
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    proffered nondiscriminatory business reason is pretextual.” Timmerman v. U.S.
    Bank, N.A., 
    483 F.3d 1106
    , 1122 (10th Cir. 2007). That logic naturally extends to
    this context, as “[s]uch irregularities can be sufficient to call into question the
    [University]’s honesty and good faith in making the [disciplinary] decision and,
    consequently, establish pretext.” Bird v. W. Valley City, 
    832 F.3d 1188
    , 1203
    (10th Cir. 2016) (discussing procedural irregularities in the context of adverse
    employment actions). 7
    Here, John points out that investigators interviewed eleven witnesses
    proposed by Jane but initially refused to interview all five witnesses proffered by
    John. At the urging of John, investigators ultimately agreed to interview John’s
    psychologist, Dr. Bricker, and amended their report to include her statement. Yet,
    in that amended report, investigators explained that they could not consider most
    of Dr. Bricker’s statements because they were “character testimony” and “expert
    opinion.” App. 491. 8 The male students John asked to be interviewed—his
    7
    In Doe I, we held the procedural irregularities in that case were not
    enough to show pretext and thereby satisfy McDonnell Douglas without
    “something more” to show that a school’s decision results from sex bias. 952
    F.3d at 1195. But “disturbing procedural irregularities” can certainly lower the
    threshold for how much additional evidence of sex bias is needed to make a case
    worthy of a jury’s time and consideration. Cf. Oberlin Coll., 963 F.3d at 588
    (“[W]hen the degree of doubt [in disciplinary proceeding’s outcome] passes from
    ‘articulable’ to grave, the merits of the decision itself, as a matter of common
    sense, can support an inference of sex bias.”).
    8
    Dr. Bricker’s letter expressing concerns about the integrity of the
    (continued...)
    -20-
    roommate and close friends—heard about the sexual encounter from John very
    shortly after it happened and had witnessed interactions between John and Jane in
    the hours surrounding the alleged assault. The investigators explained in their
    Final Report that they decided not to interview these witnesses “[d]ue to the
    duplicative nature of the information that [these] individuals were expected to
    provide” and because of “the obligation of the investigators to keep this matter as
    private as possible.” Id. at 451. Yet the same could be said for Jane’s eleven
    witnesses that investigators opted to interview.
    Next, John contends the University credited Jane’s allegations despite
    numerous inconsistencies in her story as told to friends or classmates. We agree
    the Final Report that the disciplinary committee reviewed before expelling John,
    when viewed in the light most favorable to John, can be construed as ignoring,
    downplaying, and misrepresenting inconsistencies in Jane’s account of the alleged
    assault. In addition to Jane’s conflicting accounts of the alleged assault, the
    8
    (...continued)
    investigation was sent after the release of the Final Report and is thus not relevant
    to its conclusions. But her concerns about the investigatory process—including
    the fact that Dr. Bricker felt her interviewer “had made up her mind already”
    because the interviewer did not ask any questions, id, the interview summary’s
    initial mischaracterization of Dr. Bricker’s statements, and the length of time the
    investigation took—indicate that at least one witness felt the investigation was
    biased and unprofessional. This, too, suggests “disturbing procedural
    irregularities” that point toward a showing of pretext. Timmerman, 
    483 F.3d at 1122
    .
    -21-
    record reveals several examples of Jane making inconsistent statements about
    other matters to John, her classmates, and the investigators.
    For example, the investigator’s summary of the investigation indicated that
    six witnesses confirmed Jane told them the same version of events, but the record
    reveals that only three of Jane’s eleven witnesses told that version of Jane’s
    story. 9 See App. 745 (The University “admit[s]. . . three witnesses . . . were
    mistakenly cited as corroborating this fact.”). Yet, the determination that six
    witnesses corroborated Jane’s story was included in the Final Report submitted to
    the disciplinary committee.
    Additionally, investigators found G.H.’s report extremely “compelling”
    because he was a “total stranger” with no incentive to lie, in whom Jane confided
    while “heavily intoxicated.” 
    Id.
     at 489–90. The report then states that Jane’s
    “description of the event to [G.H.] aligns with her statement to investigators
    nearly two months later.” Id. at 489. But G.H.’s statement differed from the
    statement Jane gave to the investigators. G.H. said Jane told him “[s]he woke up
    9
    And these three statements contained additional inconsistencies. For
    example, Jane told a friend that on Friday night, the night before the alleged
    assault, she was “pretty drunk” and John was “somewhat sober” and “trying to get
    into [her dorm] room with her.” App. 467. As many witnesses confirmed, Jane
    sought out John in his friends’ room on Friday night and brought him back to her
    room—even after he initially refused to leave with her—and John was intoxicated
    to the point of sickness. [See e.g. App. 853, 474]
    -22-
    . . . and found [John] engaging in sexual intercourse with her.” Id. 472. But
    Jane told investigators that she woke up and had a conversation with John before
    he began kissing her and disrobing.
    In fact, as John points out, Jane told an array of inconsistent stories about
    the alleged incident. She told some people the assault happened on Friday night
    and others that it happened on Saturday morning. She told some people that she
    woke up to John fondling her, others that she woke up to him engaging in
    intercourse, and others still that the two agreed to have sex, but when she told him
    of some pain, he convinced her to continue. And none of the witness accounts
    completely align with the story she told investigators. The Final Report does not
    mention any of these inconsistencies.
    Neither does the report discuss any of Jane’s potential motives for making a
    false report. Jane admitted to investigators that she only reported the incident
    because she heard John had told some of their classmates about their sexual
    intercourse and she wanted “privacy and for him to stop talking about it.” Id. at
    628. Notably, on Saturday, the day of the alleged incident, Jane told multiple
    people that she and John had sexual intercourse without ever mentioning that it
    was non-consensual. It was not until later—after Jane saw John talking to another
    young woman at a party—that she began telling people the encounter was not
    consensual. One witness statement indicated Jane changed her tune because she
    -23-
    “was angry” after “it got around that [John] had been with” another woman “the
    same day he was with” Jane. Id. at 482. An investigator testified that she took
    account of the fact that Jane wanted to date John, but John did not want to date
    Jane—but this, too, was omitted from the Final Report.
    Next, John claims the investigators refused to gather potentially
    exculpatory evidence from Jane’s medical exam. As noted above, a complete
    SANE report includes “summaries by the SANE nurse, the attending physician,
    and the patient’s written statement regarding the source of the injuries.” Id. at
    490. Jane refused to turn all of this information over and instead gave only a few
    pages from the report to investigators. These pages indicated that Jane had
    scratches and bruises, but there was no description of the likely date or cause of
    these injuries written by a medical professional. The investigators explained that
    they had no legal process to compel disclosure of the omitted pages and that the
    parts of the report they reviewed were consistent with physical resistance by Jane
    on Saturday morning. 10
    The Final Report put a lot of weight on these extracted SANE report pages.
    The report noted that while John’s “version of the event has been unwavering,”
    his version does not outweigh “the medical injuries to [Jane] detailed in the
    10
    John points out Jane repeatedly stated that the bruises were from Friday
    night and that she could not recall how she got them.
    -24-
    SANE report.” Id. at 86. But, as John contends, the record shows that most of
    the injuries noted in the SANE report are inconsistent with Jane’s account of the
    alleged assault. The Final Report acknowledges Jane had chosen what pages of
    the SANE report to provide and had omitted potentially important exculpatory
    information—yet the report still concludes that “any speculation regarding what
    might be found in those documents does not outweigh the concrete information in
    the sections that have been provided to the Investigators.” Id. 11
    In sum, we agree the University’s investigation and treatment of John raises
    a plausible inference that it discriminated against John on the basis of his sex. 12
    11
    John also notes that Jane threatened him with a “gun with one bullet and
    perfect aim” and claims this statement constituted “relationship violence” under
    University policies. App. 482. In his view, the investigators’ failure to
    investigate this potential act of relationship violence demonstrates a pattern of
    sex-biased decision-making. But John’s own statement to investigators reflects
    his understanding that Jane was trying to communicate “she had the power” to file
    a report against him. Id. at 496.
    12
    These procedural deficiencies in the University’s investigation of Jane’s
    complaint amplify those we considered in Doe I. There, we noted a slew of
    procedural irregularities that looked “like a railroading,” including that the
    University “refused to follow leads that were potentially exculpatory[,] . . .
    fail[ed] to consider obvious motives Jane might have to lie[,] . . . disbelieved
    Plaintiff from the outset[,] . . . selectively determined which post-encounter
    evidence they would consider relevant[, and] disregard[ed] numerous
    inconsistencies in the versions of the story told by Jane and her friend.” Doe I,
    952 F.3d at 1202 n.18. The Doe I panel noted the “accumulation of irregularities
    all disfavoring the respondent” were “even more troubling when, as in the case of
    DU’s investigatory model, the investigators committing such errors are also the
    finders of fact on the ultimate issue of whether the alleged sexual misconduct
    occurred.” Id. But we concluded that the University’s lopsided investigation did
    (continued...)
    -25-
    b. Other Complainants
    John also points to evidence that the University treated males less favorably
    than females in investigating and disciplining allegations of sexual misconduct.
    As a general rule, we and other courts have declined to infer anti-male bias
    from disparities in the gender makeup of sexual-misconduct complainants and
    sexual-misconduct respondents. See, e.g., Purdue, 928 F.3d at 669. This is so
    because such disparities can “readily be explained by an array of alternative
    nondiscriminatory possibilities,” e.g., that male students commit more sexual
    assaults, that women are likelier to be the victims of those assaults, “or that
    female victims are likelier than male victims to report sexual assault.” See Doe I,
    952 F.3d at 1192–93. But John does not simply raise the disparity in the gender
    makeup of complainants and respondents. He also points to a number of other
    statistical anomalies that raise at least a fair inference of anti-male bias.
    First, John highlights that the University failed to formally investigate any
    of the twenty-one sexual-misconduct complaints brought by men from 2016 to
    2018. In contrast, during the same period, there were about 105 complaints
    12
    (...continued)
    not raise an inference of anti-male bias in that case without something more to
    cast doubt on the University’s proffered “anti-respondent, not anti-male” position.
    Id. at 1192–95. But unlike in Doe I, here we have a more egregious investigation
    and additional statistical evidence of the University’s differential treatment of
    males and females.
    -26-
    brought by women, fourteen of which were formally investigated by the
    University. Unlike the statistical discrepancies we addressed in Doe I—there,
    that between 2011 and 2016 thirty-five out of thirty-six sexual-assault
    respondents were male—these sex disparities are not “almost completely beyond
    the control of the school,” 952 F.3d at 1194. Rather, the University has control
    over which complaints it decides to formally investigate.
    Moreover, from 2016 to 2018, the University received five complaints
    brought against a female. Four of those complainants were male and one was
    female. The University did not formally investigate the four male-initiated
    complaints but did investigate the female-initiated complaint. University
    statistics also show that a female student found guilty of non-consensual
    “touching” was given a deferred suspension, 13 whereas a male student found
    guilty of non-consensual “touching/kissing” was fully suspended. The University
    is correct that these two violations were described somewhat differently in the
    enforcement statistics chart. 14 Still, we find it significant that the only male
    13
    “Deferred suspension” is something of a misnomer. It is essentially a
    warning to a student that should he or she violate again, expulsion is likely.
    Students who receive deferred suspensions are allowed to remain on campus and
    attend school.
    14
    From reading the chart, it is clear that these brief summaries do not
    adhere to uniform categories, nor are they entered with much precision. Thus, it
    is entirely possible that the “touching” report could have involved kissing.
    -27-
    student to receive a “deferred suspension” during this period was found
    responsible for physical (rather than sexual) misconduct.
    Unlike the statistics presented in Doe I, this evidence casts some doubt on
    the University’s position that its practices were uniformly pro-complainant and
    anti-respondent. The University explains that it did not move forward with
    formal investigations in the cases filed by male students for any one of the
    following reasons: “(1) the complainant decided not to pursue an investigation;
    (2) the case was referred to a different Department; (3) there was insufficient
    information; (4) the case was screened out; [or] (5) there was an alternative
    resolution.” Aple. Br. at 25. But all of these explanations should apply equally to
    female-initiated complaints. The University itself notes, “[e]ach of these [five]
    rationales for not proceeding with an investigation was also applicable in cases
    where a female student was the complainant.” Aple. Br. at 25. Because
    “screening out,” referral, or finding there is “insufficient information” to proceed
    with a case are highly discretionary decisions, the statistical sex disparity in the
    University’s resolution of these complaints suggests anti-male bias could be
    influencing outcomes. Thus, this statistical evidence is the “something more” that
    Doe I suggests.
    We realize we are dealing with very small sample sizes, but this merely
    reflects the reality that sexual-misconduct claims in higher education
    -28-
    overwhelmingly involve a female complainant and a male respondent. Title IX
    plaintiffs challenging the outcome of a sexual-misconduct proceeding will rarely
    have direct evidence or even strong circumstantial evidence sufficient to
    overcome a school’s “anti-respondent, not anti-male” argument. But here John
    has marshaled enough evidence to satisfy his burden of showing that under
    McDonnell Douglas that the University’s explanations of its conduct were
    pretextual.
    In sum, viewing the evidence in the light most favorable to John, we are
    satisfied that a reasonable jury could find that John’s sex was a motivating factor
    in the University’s decision to expel him. 15 While a one-sided investigation,
    standing alone, might only raise a reasonable inference of anti-complainant bias,
    Doe I, 952 F.3d at 1203, where there is a one-sided investigation plus some
    evidence that sex may have played a role in a school’s disciplinary decision, it
    should be up to a jury to determine whether the school’s bias was based on a
    protected trait or merely a non-protected trait that breaks down across gender
    15
    The University claims John waived or forfeited roughly a dozen
    arguments made in his opening brief. Most of these do not affect our merits
    determination. One exception, however, is the University’s claim that John
    forfeited arguments related to the University’s sexual-misconduct enforcement
    statistics. While John points to different aspects of the University’s enforcement
    statistics chart on appeal, he does not raise “bald-faced new issues.” See In re
    Rumsey Land Co., LLC, 944 F.3d at 1271. Rather, as below, he uses the chart to
    argue the University has a history of discriminating against men in its sexual-
    assault investigations. John has not substantively changed his legal theory nor the
    evidence on which he relies.
    -29-
    lines. John thus satisfies the requirements of the McDonnell Douglas test to
    overcome summary judgment.
    III. Conclusion
    For the foregoing reasons, we VACATE the district court’s grant of
    summary judgment to the University and REMAND for further proceedings.
    Appellant’s “Unopposed Motion for Leave to File Sealed Appendix” is
    GRANTED.
    -30-