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Does v. Regents of University of Minnesota

United States District Court, D. Minnesota

June 24, 2019

John Does 1-2 and 4-11, Plaintiffs,
v.
Regents of the University of Minnesota, Eric Kaler, and Tina Marisam, Defendants.

          David J.S. Madgett, Esq., Madgett Law, LLC, counsel for Plaintiffs.

          Brian J. Slovut, Esq., and Carrie Ryan Gallia, Esq., University of Minnesota, Office of the General Counsel; and Charles F. Knapp, Esq., Charles F. Webber, Esq., and Sean R. Somermeyer, Esq., Faegre Baker Daniels LLP, counsel for Defendants.

          MEMORANDUM OPINION AND ORDER

          DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         This matter is before the Court on a Motion to Dismiss Plaintiffs' Amended Complaint brought by Defendants Regents of the University of Minnesota, Eric Kaler, and Tina Marisam (together, “Defendants”). (Doc. No. 24.) For the reasons set forth below, the Court grants the motion.

         BACKGROUND

         In September 2016, University of Minnesota student Jane Doe reported to the Minneapolis Police Department (“MPD”) and the University's Office of Equal Opportunity and Affirmative Action (“EOAA”) that in the early morning of September 2, as many as a dozen male student-athletes on the University football team had engaged in repeated, non-consensual sexual acts with her or had watched and cheered as others engaged in those acts. (Doc. No. 22 (“Am. Compl.”) ¶¶ 24, 25, 30.) Defendant Tina Marisam, the EOAA Assistant Director, met with Jane Doe and opened an investigation to determine whether any students had violated the University's Student Conduct Code (the “Code”). (Id. ¶ 30.)

         As part of the investigation, Marisam interviewed Jane Doe and the students Jane Doe identified as having engaged in nonconsensual sexual conduct. (Id. ¶¶ 30, 36.) Marisam interviewed Jane Doe at least six times. (Id. ¶ 39.) Plaintiffs allege that Marisam interviewed each accused male student for 15 to 30 minutes. (Id.) Marisam's investigation included interviews with other students. (Id. ¶¶ 37, 39) Marisam also reviewed text messages, video, and the MPD's report of the incident. (Id. ¶ 39.)

         In early December 2016, Marisam prepared a report and sent it to the University's Office of Student Conduct and Academic Inquiry (“OSCAI”). (Id. ¶ 40.) The report found it was more likely than not that certain students had violated the Code. (Id.) The OCSCAI offered each student a sanction to resolve the matter informally. (Id.) Identifying the John Does (“JDs”) numerically as numbered in the Amended Complaint, the following sanctions were offered:[1]

Student

EOAA Findings

Proposed Sanction

JD1

Harm to person, sexual assault, and sexual harassment

Expulsion

JD2

Harm to person, sexual assault, and sexual harassment

Expulsion

JD3

Harm to person, sexual assault, sexual harassment, and persistent violations

Expulsion

JD4

Harm to person, sexual assault, sexual harassment, and persistent violations

Expulsion

JD5

Harm to person, sexual assault, and persistent violations

Expulsion

JD6

No finding

None

JD7

Harm to person and sexual harassment

One-year suspension

JD8

Falsification, harm to person, and sexual harassment

One-year suspension

JD9

Falsification

Probation

JD10

Falsification, harm to person, and sexual harassment

One-year suspension

JD11

Harm to person and sexual harassment

One-year suspension

(Id.)[2] Plaintiffs allege that the findings and conclusions reveal bias against Plaintiffs because of their race and gender. (Id.)

         After the report was issued, the University Athletics Director Mark Coyle suspended JDs 1-5 and 7-11 from the University football team. (Id. ¶ 48.) The football team had an upcoming bowl game and, following the suspensions, the team decided to boycott that game in protest of the lack of due process given to the men charged in the EOAA report. (Id. ¶ 50.) Also following the suspensions, University President Eric Kaler made several statements to the media. (Id. ¶¶ 49, 53.) Plaintiffs claim that Kaler's statements falsely portrayed the Plaintiffs as guilty of sexual assault. (Id. ¶ 49.) The Amended Complaint contains the following allegations with respect to Kaler's statements:

• In a December 14, 2016 letter to University donors, Kaler falsely stated that it was the University football coach who decided to suspend the accused Plaintiffs. Kaler then states that “privacy rights” prevented him from providing details, but nevertheless assured the boosters that suspensions were “based on facts and on our University's values.”
• On December 15, 2016, in response to the University football team's announcement that it was boycotting team activities to protest the University's unfair treatment of Plaintiffs, the University released a statement reiterate[ing] that the suspension was made “with the full support of President Eric Kaler” and “was based on facts and is reflective of the University's values.”
• In a December 16, 2016 statement and open letter to student-athletes, Kaler stressed that he had “worked particularly hard to increase the understanding of the members of the University community about the importance of young women feeling safe during campus life[, ]” that these values were “more important than any single athletic team[, ]” and that ‘[w]hen the expectations for conduct are not met, there are consequences.” Although Kaler stated that the suspension of the accused Plaintiffs was “different from any conduct code, ” he then immediately justified the suspension by stating that “the University of Minnesota will not change our values or our code of conduct for the sake of a bowl game.” Again, citing privacy laws, Kaler stated that he could not provide the details supporting the University's actions, but nevertheless stated: [C]ertain behavior is simply unacceptable and antithetical to our institutional values. We support the Gopher Athletics' decision because this is much bigger than football. It is about the values every University of Minnesota student is called on to uphold. We make these expectations clear, and when they are not met, there are consequences.

(Id.)

         At least one media organization obtained a copy of the redacted EOAA report and published its contents. (Id. ¶ 53; Doc. No. 27 (“Gallia Decl.”) ¶ 3, Ex. 1 (“EOAA Report”).) The boycott ended. (Am. Compl. ¶ 53.) Plaintiffs allege that, after the boycott ended, Kaler made additional statements to the press that falsely portrayed Plaintiffs as guilty of sexual misconduct and stated that “there is no due process when it comes to athletic suspensions” and “[y]ou don't have a constitutional right to play a football game.” (Id. ¶ 53)

         JDs 1-5 and 7-11 did not accept the proposed sanctions for an informal resolution. Instead, they requested a formal hearing before the University's Student Sexual Misconduct Subcommittee (“SSMS”). (Id. ¶ 56.) On January 26 and 27, 2017, the SSMS conducted a hearing. Plaintiffs allege that the University took actions that deprived them of a fair and impartial hearing, such as: denying their request for separate hearings; denying each Plaintiff equal time to present his defense; giving undue weight to the EOAA report; denying Plaintiffs' request for a racially diverse hearing panel; denying Plaintiffs copies of communications between Kaler and Coyle and EOAA investigators; denying requests to have Kaler and Coyle testify as witnesses; denying requests that all testimony be under oath; denying the request to sequester Jane Doe and Marisam; allowing ex parte contact between Jane Doe and Marisam with the hearing panel; and declining to allow negative inferences from Jane Doe's failure to comply with the EOAA investigator's request to provide the results of her sexual assault exam. (Id. ¶ 56.)

         After the SSMS hearing, the Hearing Panel issued the following decisions:

Student

SSMS Findings

Sanction

JD1

Harm to person, sexual assault, and sexual harassment

One-year suspension (reduced from expulsion)

JD2

Harm to person, sexual assault, and sexual harassment

Expulsion

JD3

Harm to person, sexual assault, sexual harassment, and persistent violations

Expulsion

JD4

Harm to person, sexual assault, sexual harassment, and persistent violations

Expulsion

JD5

Harm to person, sexual assault, and persistent violations

Expulsion

JD7

Not responsible

None (reduced from one-year suspension)

JD8

Not responsible

None (reduced from one-year suspension)

JD9

Not responsible

None (reduced from probation)

JD10

Falsification, harm to person, and sexual harassment

One-year suspension

JD11

Not responsible

None (reduced from one-year suspension)

(Id. ¶ 68.)

         Those found responsible by the SSMS had the right to appeal to the University Provost. JDs 1, 3, and 10 appealed. (Id.) The Provost affirmed the Hearing Panel's decision on JD 1 and 3, affirmed the Hearing Panel's finding that JD10 was responsible for falsification, but reversed the finding that JD10 was responsible for harm to person and sexual harassment. (Id.) The Provost reduced JD10's sanction to probation. (Id.) None of the Plaintiffs filed a writ of certiorari with the Minnesota Court of Appeals.

         On June 8, 2018, Plaintiffs filed this action. (Doc. No. 1.) After Defendants filed a motion to dismiss (Doc. No. 9), Plaintiffs amended their Complaint, asserting the following claims: (1) sex discrimination in violation of Title IX (against the University); (2) racial discrimination in violation of Title VI (against the University); (3) violation of Plaintiffs' Equal Protection Rights (against Kaler and Marisam in their official and individual capacities); (4) violation of Plaintiff's Due Process rights (against Kaler and Marisam in their official and individual capacities); (5) defamation (against Kaler in his individual capacity); (6) intentional infliction of emotional distress (against Kaler and Marisam in their individual capacities); (7) breach of contract (against the University and asserted by JDs 2, 4-5, and 10); (8) tortious interference with contract (against Kaler and Marisam in their individual capacities); and (9) negligence (against the University). (Am. Compl.) Defendants move to dismiss all claims.

         DISCUSSION

         I. Legal Standard

         In deciding a motion to dismiss under Rule 12(b)(6), a court assumes all facts in the complaint to be true and construes all reasonable inferences from those facts in the light most favorable to the complainant. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). In doing so, however, a court need not accept as true wholly conclusory allegations, Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal conclusions drawn by the pleader from the facts alleged, Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). A court deciding a motion to dismiss may consider the complaint, matters of public record, orders, materials embraced by the complaint, and exhibits attached to the complaint. See Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).

         To survive a motion to dismiss, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a complaint need not contain “detailed factual allegations, ” it must contain facts with enough specificity “to raise a right to relief above the speculative level.” Id. at 555. As the Supreme Court reiterated, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” will not pass muster under Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). In sum, this standard “calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim].” Twombly, 550 U.S. at 556.

         II. Title IX - Gender Discrimination and Retaliation

         In Count One, Plaintiffs assert gender discrimination and retaliation claims under Title IX against the University. Specifically, Plaintiffs allege that based on their gender, the University denied them benefits of University programs, denied them a fair disciplinary process, wrongly found that certain Plaintiffs violated University Policy or the Student Conduct Code, and made “public ...


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