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Doe v. Marian University

United States District Court, E.D. Wisconsin

December 31, 2019

JOHN DOE, Plaintiff,
v.
MARIAN UNIVERSITY, Defendant.

          ORDER

          J.P. STADTMUELLER U.S. DISTRICT JUDGE

         Plaintiff John Doe (“Doe”) is a former student of Defendant Marian University. Doe alleges that Marian University committed gender[1]discrimination, negligence, and various contract violations during an investigation into Doe's alleged sexual misconduct. The Court's subject matter jurisdiction is predicated on the Title IX gender discrimination claim, as the parties are both citizens of Wisconsin and there are no other federal questions. Marian University filed a partial motion to dismiss, followed by a motion for summary judgment and a motion to strike Doe's responses to Marian University's proposed statement of facts. (Docket #21, #29, and #49). For the reasons explained below, the motion to strike will be granted in part and denied in part. The Court will grant the motion for summary judgment in part and dismiss the Title IX gender discrimination claim, which provides the basis for this Court's subject matter jurisdiction. The motions to dismiss will be denied as moot. Doe will be free to bring his remaining claims in state court.

         1. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 56 provides that the Court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The Court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016).

         2. MOTION TO STRIKE

         The basis for the motion to strike is Doe's response to Marian University's proposed statement of facts. See (Docket #49). Civil Local Rule 56(b)(2)(B) requires parties opposing summary judgment to submit a “concise” response to the moving party's statement of facts. Doe's response is not concise. (Docket #45). Additionally, it attempts to refute admissions that Doe made in his deposition with an after-the-fact affidavit. Marian University contends that Doe seeks to manufacture an issue of fact by submitting a “sham” affidavit that contradicts his deposition testimony. Moreover, in disputing Marian University's proposed statement of facts, Doe cites to evidence that includes hearing transcripts from the underlying investigation, emails between the parties, and Marian University's handbooks and training materials. See (Docket #43-1-43-44). Marian University submits that this is inadmissible hearsay evidence. Marian University asks the Court to either strike many of Doe's responses to the proposed statement of facts, or permit Marian University to reply to certain responses to the proposed facts. See (Docket #57 at 6) (requesting permission to reply to Doe's responses to the proposed statement of facts in order to direct the Court's attention to certain evidence in the record). In light of the Court's review of the record, no reply is necessary. For the reasons explained below, the motion to strike will be denied in part and granted in part.

         The Court will consider Doe's affidavit in evidence; however, where Doe's responses to the proposed statement of facts directly contradict his sworn deposition, the deposition will control. Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995) (holding that “where deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken.”); see also Johnson v. Shah, 15-CV-344-SMY-RJD, 2018 WL 724427, at *1-2 (S.D. Ill. Feb. 6, 2018) (disregarding portions of affidavit that contradicts deposition testimony).

         The exhibits that Doe has offered in support of his opposition are admissible. The evidence in question consists of transcripts of the hearings that occurred at Marian University, during which Marian University employees interviewed various witnesses, including Doe and Doe's accuser, Jane Roe (“Roe”). There are also copies of policies, email exchanges between the parties, and internal documents and investigative reports.

         The rule against hearsay prohibits statements that “the declarant does not make while testifying at the current trial or hearing. . .offer[ed] in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c) (emphasis added). What this means for Marian University is that Doe cannot submit hearing transcripts into evidence to prove what he said at the hearing-i.e., that he did not sexually assault Roe. He can, however, submit the hearing transcripts (and emails, policies, and investigative reports about the alleged misconduct) into evidence to prove something other than the truth of the matter asserted in those documents-e.g., that there was gender bias in the investigation. United States v. Bursey, 85 F.3d 293, 296 (7th Cir. 1996) (holding that “statements that are offered not to prove ‘the truth of the matter asserted,' but for some other legitimate purpose, do not qualify as hearsay.”); Stewart v. Henderson, 207 F.3d 374, 377 (7th Cir. 2000) (unsworn, out-of-court statements may be offered to show motivation or state of mind).

         In this case, which is not a sexual misconduct case but a gender discrimination case, the statements regarding Doe's purported sexual misconduct made during the allegedly discriminative investigative process can be used to show who the university interviewed, what information the university received, how the university treated each interviewee, how much weight the university gave certain pieces of evidence, and what motivated the university's ultimate findings. Stewart, 207 F.3d at 377; Bakalis v. Golembeski, 35 F.3d 318, 326 n.8 (7th Cir. 1994) (statements “offered to show the motivation of the speaker with regard to the actions taken” would not be considered hearsay); Luckie v. Ameritech Corp., 389 F.3d 708, 716 (7th Cir. 2004) (Title VII retaliation case in which Seventh Circuit found that statements “offered to show [employer's] state of mind at the time she was evaluating [employee's] performance” were “properly considered by the district court.”).

         Moreover, an opposing party's statement is not hearsay, and may be admitted into evidence to prove the truth of the matter asserted. Fed.R.Evid. 801(d)(2)(D) (statements “made by a party's agent or employee on a matter within the scope of that relationship and while it existed” are not hearsay); Simple v. Walgreen Co., 511 F.3d 668, 672 (7th Cir. 2007) (holding that an employee's “statement about a matter within the scope of [his] employment” constituted an opposing party admission by the defendant company under Federal Rule of Evidence 801(d)(2)(D)). Therefore, the statements that Marian University employees made while acting in those capacities and conducting the investigation as agents of Marian University are not hearsay if offered into evidence by Doe.

         One piece of hearsay evidence proffered by Doe, a chart documenting all reports, investigations, and findings of sexual misconduct on Marian University's campus, is admissible under the hearsay exception for records of regularly recorded activities. See Fed. R. Evid. 803(6); (Docket #43-31). Generally speaking, this rule holds that hearsay records of events are admissible if the following criteria are met: the record is made at or near the time of the event by a person with knowledge; the record is kept in the normal course of the organization's dealings; keeping the record was a regular practice; the record can be properly authenticated; and there is no other indicia of untrustworthiness. Id. Marian University has withdrawn their objection to this piece of evidence in a recent filing; therefore, the Court will deem it admissible. See (Docket #55 at 6).

         On a broader level, the Court is satisfied that the substance contained in the evidence in question-including Doe's affidavit, emails between Doe and Marian University employees about the investigation, and Marian University's policy statements and handbook sections-could be presented in an admissible form at trial. For example, Doe could be cross-examined, and the university witnesses could lay a foundation for, and authenticate, the documentary evidence. Wheatley v. Factory Card & Party Outlet, 826 F.3d 412, 420-21 (7th Cir. 2016). With those issues resolved, the Court now turns to the facts of the case.[2]

         3. RELEVANT FACTS

         3.1 Cultural Backdrop

         The setting for this case is Marian University, a small, private institution located in Fond du Lac, Wisconsin. In 2017 and 2018, Marian University, like many universities, was focused on curbing campus sexual assault. To this end, Marian University conducted programming to raise awareness of the importance of consent and to de-stigmatize being a victim of sexual assault, as many victims feel that they are at fault for their assaults.

         The on-campus sexual assault awareness programming included a screening of The Hunting Ground, a documentary that follows sexual assault survivors as they pursue remedies for their assaults. The film includes interviews with male victims of rape and sexual misconduct, and presents these accounts in a serious, respectful way. The Hunting Ground, which has been submitted into evidence by Doe, has been the subject of criticism because of issues with veracity and its unapologetically pro-victim bias. See e.g., Jeanie Suk Gerson, Shutting Down Conversations about Rape at Harvard Law, The New Yorker (Dec. 11, 2015) available at https://www.newyorker.com/news/news-desk/argument-sexual-assault-race-harvard-law-school. However, there is no evidence in the record of criticisms of the documentary based on gender bias, and the Court is not independently aware of such criticisms.

         The university also hosted an exhibit called “What Were You Wearing?” which showcased the outfits that female sexual assault survivors were wearing on the nights that they were assaulted. Kathleen Candee, (“Candee”), the Title IX coordinator at Marian University, commented favorably about the exhibit, saying “We need to talk about this community issue. . .and take a stand as a community. No. more silence. No. more silence by bystanders. No. more violence.”

         The sexual assault awareness and prevention programming unfolding on Marian University's campus is a microcosm of a national conversation. Various movements such as #MeToo and Times Up have encouraged people-often, but not always women-who previously felt embarrassed or ashamed for their sexual harassment and abuse to come forward with their stories. Around this time, Dr. Paul Krikau (“Krikau”), the Dean of Students, voiced his support for victims of sexual assault, including Dr. Christine Blasey Ford, who alleged that Justice Brett Kavanaugh sexually assaulted her when they were young, and testified against his nomination to the Supreme Court.

         Increasingly, institutes of higher education must grapple with how to appropriately and respectfully address victim complaints of sexual misconduct. These complaints may arise from situations between students where both parties were voluntarily inebriated, there are no other witnesses (“he said/she said”), and one or both parties may have little to no memory of the events. In light of the poor evidentiary value of these cases, they are rarely the subject of criminal proceedings. However, universities often conduct their own quasi-legal investigations into the issues. If findings of sexual misconduct are made, outcomes range from educational interventions to expulsion. Some universities focus on reformative justice, while others mete punishment to the accused. It can be gleaned from the evidence that Marian University generally falls into the latter category. Marian University requires investigators to find that an accused committed the assault by a “preponderance of the evidence” before punishment can be imposed.

         In 2011, the Department of Education implored universities to investigate and address allegations of sexual misconduct in a “Dear Colleagues” letter. This letter set forth requirements for handling complaints of sexual harassment and sexual violence. However, in 2018, in response to mounting concerns that those accused of sexual assault were not afforded procedural protections in these institutional investigations, the Department of Education suggested strengthening protections for the accused by, for example, requiring live cross-examinations of witnesses. One male educator at Marian University, Sean Fitzpatrick, voiced his opposition to the suggestion that parties be allowed to cross-examine each other, stating that “[t]here are several other ways to ensure due process without risking further trauma for victims.”

         Unrelatedly, in late 2018, Marian University found itself in the process of changing its policy regarding sexual assault investigations. This change came about because the Department of Education's Office of Civil Rights (“OCR”) had looked into an incident at Marian University after a student filed a Title IX complaint that her allegations of sexual misconduct were not appropriately addressed. The investigation prompted some reforms to the original policy, and Marian University allowed OCR to monitor the implementation of the reforms (embodied in a “Resolution Agreement”). Although Marian University was held to compliance with 20 U.S.C. §§ 1681-1688 (“Title IX”) on the basis of its receipt of some form of federal funds, it is not clear whether a failure to comply with the Resolution Agreement would result in a loss of federal funding. See (Docket #43-19).

         3.2 Background Facts

         In the autumn of 2017, Doe and Roe were sophomores at Marian University. They had become acquainted during their freshman year and spent the summer together undergoing Reserve Officers' Training Corps (“ROTC”)'s basic training. They were part of the same training program and social group, and, by the end of basic training, considered each other close friends.

         One night in early September, Doe and his roommate, Student A (“SA”), attended an off-campus party together. They met up with Roe at the party. Everyone was drinking. Doe and SA each drank several beers over the course of the evening. Roe drank primarily from her water bottle, which contained a mixed drink that she had prepared for herself. Doe and SA did not know how much Roe drank, or whether she had been drinking earlier in the evening.

         Eventually, Roe, Doe, and SA decided to leave the party together. They walked back to campus, which is approximately a two-mile walk. The parties agree that while they were all drunk, nobody ...


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