DENISE J. CASPER, District Judge.
Plaintiffs John Doe ("Doe"), Mary Doe ("Mary") and James Doe ("James") (collectively, "Doe")
Under Fed. R. Civ. P. 15(a), leave to amend will be freely given when justice so requires. Once the Court enters a scheduling order, however, "case law clearly establishes that Rule 16(b)'s `good cause' standard, rather than Rule 15(a)'s `freely give[n]' standard governs motions to amend filed after scheduling order deadlines" have expired.
The Court grants summary judgment when no genuine dispute of material fact exists and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Facts are material if they carry the potential to affect the outcome of the suit under applicable law.
Unless otherwise noted, the following undisputed material facts are drawn from the parties' statements of material facts and their responses.
In Fall 2012, Doe
Police arrested Doe because "AB," a BC sophomore who was on the dance floor, stated that she felt a hand go up her clothing and two fingers were inserted into her anus. D. 65 ¶ 10; D. 74 ¶ 10. When AB turned around, she stated she saw a lone white male wearing a purple shirt. D. 65 ¶ 10; D. 74 ¶ 10; D. 71 ¶ 17. AB's friend, Betsy, who was her dancing partner at the time, but who did not see the assault, stated that AB told her that a tall male with brown hair and a purple shirt stuck his fingers between her legs. D. 65 ¶ 11; D. 74 ¶ 11.
Doe testified that another male individual, "JK," was crossing the dance floor at the same time as he did. D. 65 ¶ 6; D. 74 ¶ 6. Doe further testified that when AB screamed at Doe, JK said, "Sorry, dude, that was my bad." D. 65 ¶ 6; D. 74 ¶ 6. After Doe was taken away by security guards, Doe told his friend that "JK must have done something." D. 65 ¶ 7; D. 74 ¶ 7. After Doe was removed from the ship, JK texted Doe's friend to see if Doe was alright. D. 65 ¶ 12; D. 74 ¶ 12. The following day, JK texted another one of Doe's friends, asking why and how Doe got in trouble. D. 65 ¶ 13; D. 74 ¶ 13. JK also texted Doe the following day, asking what had happened the night before and stating he had no recollection of the boat cruise. D. 65 ¶ 14; D. 74 ¶ 14.
In the immediate aftermath of the criminal charges, Doe hired legal counsel who in turn hired Kevin Mullen, a former Boston Police Department Sergeant Detective, as a private investigator. D. 65 ¶¶ 15-16; D. 74 ¶¶ 15-16. Given Doe's observations of JK on the dance floor and JK's apparent interest in Doe's arrest, Doe phoned JK on October 22, 2012 and Mullen listened to their conversation. D. 65 ¶ 17; D. 74 ¶ 17. In the conversation, JK reiterated that he had no recollection of the cruise and did not confirm his "Sorry, dude, that was my bad" statement to Doe, but merely responded that such a statement was "weird."
The day after the incident, on October 22, 2012, the Suffolk District Attorney's Office charged Doe in state district court with indecent assault and battery on a person age 14 or older and he was arraigned that same day. D. 65 ¶¶ 15, 19; D. 74 ¶¶ 15, 19; D. 71 ¶ 22. In discovery for the criminal case, forensic testing of Doe's hands were negative for blood traces. D. 65 ¶ 20; D. 74 ¶ 20. The results of this forensic testing, however, was not available until February 2013, some four months after the incident. D. 65 ¶ 20; D. 74 ¶ 20. The testing was negative for the presence of blood,
For the 2012-2013 academic calendar, BC had three written procedures related to sexual assault accusations: (1) Section 4 of the 2012-2013 Student Guide ("Student Guide"); (2) Section 5 of the Student Guide; and (3) the Conduct Board Procedure. D. 65 ¶ 29; D. 74 ¶ 29; D. 71 ¶ 24. These procedures were administered by the Vice President for Student Affairs through the Dean of Students and the Dean's staff. D. 65 ¶ 33-34, D. 74 ¶ 33-34. Read together, these procedures provided the investigatory and adjudicatory procedures for students charged with sexual assault.
These documents provide that students have "the right to a fair procedure which is appropriate to the circumstances" as well as "[t]he right to have access to a process through which to resolve deprivations of rights." D. 65-17 at 3; D. 65 ¶ 31, D. 74 ¶ 31. The procedures also explain that "deviations from prescribed procedures will not necessarily invalidate a decision or proceeding unless significant prejudice to a student or the University may result." D. 65-18 at 1; D. 71 ¶ 25.
The policies and procedures explain the disciplinary hearing process for sexual assault accusations. First, the rules provide that an investigation includes "a review of statements obtained from either party, interviews with the complainant and the accused (if identified), interviews with appropriate witnesses, and a review of other relevant information." D. 65-17 at 16; D. 65 ¶ 34(b); D. 74 ¶ 34(b). After the investigation is complete, BC "will take appropriate action." D. 65-17 at 16; D. 65 ¶ 34(b); D. 74 ¶ 34(b).
The rules also explain the pre-hearing process. These rules provide "[i]f the complainant proceeds with both a disciplinary complaint and a criminal complaint, the University conduct process will normally proceed while the criminal action is in process," but "the Office of the Dean of Students may elect to stay the disciplinary process if a student is summarily suspended and the criminal matter remains open." D. 65-17 at 17; D. 65 ¶ 34(b); D. 74 ¶ 34(b). Next, the Student Guide states that allegations of sexual assault may lead to immediate suspension and must be "followed within a reasonable period of time . . . by a conduct hearing to resolve the incident." D. 71 ¶ 26; D. 75 ¶ 26. When a student has been accused of sexual assault, he/she "will be called by the Dean of Students or designee to discuss the complaint." D. 65-18 at 3; D. 65 ¶ 34(a); D. 74 ¶ 34(a); D. 71 ¶ 28. In addition, "[w]hen a matter is referred to a board, the accused student will be sent a copy of the conduct procedures," D. 65-18 at 4; D. 65 ¶ 34(e); D. 74 ¶ 34(e), and "the accused student will be sent written notification . . . indicating . . . alleged violations," D. 65-19 at 2; D. 65 ¶ 34(e); D. 74 ¶ 34(e), as the student has a "right to be informed of any charges of misconduct." D. 65-17 at 3; D. 65 ¶ 34(e); D. 74 ¶ 34(e).
The procedures also provide rules related to the disciplinary hearing. For example, members of the hearing board "must disclose any real or perceived conflicts of interest between themselves and any party . . . ." D. 65-18 at 5; D. 65 ¶ 34(f); D. 74 ¶ 34(f). In addition, both "[t]he complainant and the accused student may be accompanied by an advisor of their choosing," but that advisor "is not entitled to address the Board or act in any advocacy capacity at the hearing." D. 65-18 at 6; D. 65 ¶ 34(f); D. 74 ¶ 34(f). Moreover, the hearing cannot be recorded unless advance written permission is requested from the Dean of Students. D. 65 ¶ 34(f); D. 74 ¶ 34(f). Both students "are entitled to bring witnesses to the hearing or to present other related evidence," but the witnesses present must "speak to the facts of the incident they have witnessed." D. 65-18 at 7; D. 65 ¶ 34(f); D. 74 ¶ 34(f). Finally, BC applies a preponderance of the evidence standard to assess whether a violation has occurred. D. 65 ¶ 34(f); D. 74 ¶ 34(f).
The policies also outline how the hearing should proceed. It details that "[t]he chairperson will introduce the complaint by reading the formal charges as determined by the Office of the Dean of Students." D. 65-18 at 7; D. 65 ¶ 34(g); D. 74 ¶ 34(g). The complainant "will then have an opportunity to read his/her incident report to the board and to elaborate on it," after which "the accused will then have an opportunity to make a full and accountable response to the complainant." D. 65-18 at 7; D. 65 ¶ 34(g); D. 74 ¶ 34(g). Then, "[t]he board members may question both the complainant and the accused on all matters relevant" and each party is "given an opportunity to ask questions . . . through the chairperson." D. 65-18 at 7; D. 65 ¶ 34(g); D. 74 ¶ 34(g). Finally, both parties are "given the opportunity to make a final statement to the hearing board." D. 65-18 at 7; D. 65 ¶ 34(g); D. 74 ¶ 34(g). Following the hearing the board meets "in private to determine whether the accused is responsible or not for the charge(s)" and renders one of the following decisions with respect to the accused: (1) responsible; (2) not responsible; (3) no finding; or (4) "responsible for a lesser inclusive charge." D. 65-18 at 5, 7; D. 65 ¶ 34(h); D. 74 ¶ 34(h). "If the decision is `responsible,' the board may recommend sanctions up to and including suspension or dismissal from the University." D. 65-18 at 5; D. 65 ¶ 34(h); D. 74 ¶ 34(h).
After a decision, the accused student has "the right to be informed of the outcome of any proceeding." D. 65-17 at 3; D. 65 ¶ 34(h); D. 74 ¶ 34(h). If the accused student wants to appeal the decision, he or she may do so. D. 65 ¶ 34(i); D. 74 ¶ 34(i). A student can appeal if he or she "can demonstrate that he or she has been denied a fair hearing of the case due to procedural unfairness or can introduce evidence not previously available that would be likely to change the result of the prior hearing." D. 65-18 at 8; D. 65-19 at 3; D. 65 ¶ 34(i); D. 74 ¶ 34(i). The appeal is due "within five business days after notification of the sanctions." D. 65-18 at 8; D. 65 ¶ 34(i); D. 74 ¶ 34(i). "The Dean and the Vice President (or their delegated representatives) will review the case and determine if the new evidence or lack of a fair hearing requires consideration" and if so, "they will refer the appeal to the Appeals Board to be reheard in its entirety or refer it back to the original hearing board for further adjudication." D. 65-18 at 8; D. 65 ¶ 34(i); D. 74 ¶ 34(i).
After the alleged October 20, 2012 incident, a BC police officer completed a Sexual Assault Notification Form describing AB's allegations against Doe. D. 65 ¶ 37; D. 74 ¶ 37. After receiving the notification, BC put Doe on summary suspension. D. 65 ¶ 37; D. 74 ¶ 37.
Senior Associate Dean of Students Hughes was put in charge of Doe's university proceeding, D. 65 ¶ 39; D. 74 ¶ 39, the first sexual assault case for which she was in charge.
Prior to the hearing Hughes met with Doe, his father James and his mother Mary on three occasions. On October 24, 2012, Hughes met with Doe and James, at which point Hughes told Doe that he would be able to tell his account to the hearing board. D. 65 ¶ 42; D. 74 ¶ 42. At this initial meeting, the parties dispute whether Hughes cut Doe off from explaining his version of events, but agree that during this meeting Doe told Hughes he did not commit assault and the charge against him was a case of mistaken identity. D. 65 ¶ 42; D. 74 ¶ 42; D. 71 ¶ 31. There was some discussion in this meeting, initiated by James, an attorney, about whether BC would delay its hearing until the criminal authorities completed their investigation. D. 65 ¶ 43; D. 74 ¶ 43. Later, Hughes met with Doe and Mary on October 26, 2012 and October 30, 2012. D. 65 ¶ 44; D. 71 ¶ 29; D. 74 ¶ 44. At the October 26, 2012 meeting, Hughes allowed Doe to read AB's statement and also gave Doe the notice of the charges against him, which charged him with sexual assault, and the Conduct Board Procedure documents. D. 65 ¶ 44; D. 74 ¶ 44. On October 30, 2012, Doe met with Hughes and reviewed the BC police report as well as his conduct records. D. 65 ¶ 46; D. 74 ¶ 46. In these latter two meetings, the parties dispute whether Hughes cut Doe off from explaining his version of the events to her. D. 65 ¶ 47; D. 74 ¶ 47.
The first day of the hearing took place on November 8, 2012 with a hearing board of Chairperson Rivera, two other administrators, law professor Norah Wylie ("Wylie") and an undergraduate student. D. 65 ¶¶ 51-52; D. 74 ¶¶ 51-52. AB, her parents, her lawyer-advisor, Doe, his parents, his lawyer-advisor, and Herlihy attended the hearing. D. 65 ¶ 54; D. 74 ¶ 54. The hearing proceeded without recording. D. 65 ¶ 55; D. 74 ¶ 55. On the first day of the hearing, the hearing board heard (1) testimony from the complainant, AB; (2) testimony from Doe; and (3) testimony from three of Doe's friends who had been on the Spirit of Boston on October 20th. D. 65 ¶ 55; D. 74 ¶ 55. AB testified about the alleged assault, Doe denied having committed the assault and produced the Spirit of Boston's surveillance recording of the dance floor on the night in question to the hearing board. D. 65 ¶ 55; D. 74 ¶ 55. The hearing board also heard testimony from Doe about what JK had said to him on the dance floor and JK's texts in the aftermath of Doe's arrest and their telephone conversation.
The next day, November 9, 2012, Hughes met with JK and JK's father, explaining that JK was required to attend the second day of the disciplinary hearing but was not being charged with any violations. D. 65 ¶ 58; D. 74 ¶ 58. Hughes also informed Betsy that she would also need to appear at the disciplinary hearing. D. 65 ¶ 57; D. 74 ¶ 57.
The hearing resumed a week later, on November 16, 2012. D. 65 ¶ 60; D. 74 ¶ 60. Betsy testified that she did not see the assault take place and that Doe stood out on the packed dance floor. D. 65 ¶ 61; D. 74 ¶ 61. At the hearing, JK denied assaulting AB, being intoxicated and telling Doe "Sorry, dude, my bad." D. 65 ¶ 62; D. 74 ¶ 62. Kevin Mullen, Doe's private investigator, was not allowed to testify on either hearing date. D. 65 ¶ 65; D. 74 ¶ 65. As to Mullen's proposed testimony, Doe informed the board that Mullen would testify about the October 22
After the second day of testimony ended, the board began to deliberate, but did not reach a decision that day. D. 65 ¶ 67; D. 74 ¶ 67. Rivera, the chairperson, told Hughes that the board was struggling with the need to see the other evidence. D. 65 ¶¶ 51, 67; D. 74 ¶¶ 51, 67. Rivera also told Hughes that the board was struggling with its decision and was contemplating a "no finding" result. D. 65 ¶ 68; D. 74 ¶ 68. Hughes relayed to Rivera that Dean of Students Chebator discouraged "no finding" results. D. 65 ¶ 68; D. 74 ¶ 68.
The board resumed its deliberations the following Monday, November 19, 2012.
D. 65-49 at 4. As a result, BC suspended Doe until January 6, 2014, barred him from BC housing continuing until graduation and loss of senior week privileges at any point. D. 65 ¶ 72; D. 74 ¶ 72.
Doe appealed on two grounds: denial of due process and the board's refusal to await submission of his forensic evidence. D. 65 ¶ 74; D. 74 ¶ 74. The appeal request was directed to Chebator and Interim Vice President for Student Affairs Keating. D. 65 ¶ 75; D. 74 ¶ 75. Chebator drafted a response and reviewed the response with Keating. D. 65 ¶ 78; D. 74 ¶ 78. Chebator also sent the draft to Rivera and BC General Counsel Herlihy for comments, which both supplied. D. 65 ¶ 79; D. 74 ¶ 79. By letter, dated December 7, 2012, Chebator and Keating denied Doe's request for an appeal. D. 65 ¶ 80; D. 74 ¶ 80.
Doe returned to BC's campus in January 2014 and graduated in May 2014. D. 65 ¶ 81; D. 74 ¶ 81. At graduation, James approached the BC President, Father William Leahy ("Leahy"), about the 2012 disciplinary proceeding. D. 65 ¶ 82; D. 74 ¶ 82. In September 2014, James and Mary, both BC alumni, wrote letters to Leahy and James stated that the family did not want to file a lawsuit against BC and the individuals involved in the proceeding. D. 65 ¶¶ 2, 83-84; D. 74 ¶¶ 2, 83-84. Leahy told James that Vice President for Student Affairs Jones should review the case. D. 65 ¶ 86; D. 74 ¶ 86. Thereafter, Jones responded to James that she would conduct a review of the 2012 proceeding. D. 65 ¶ 88; D. 74 ¶ 88. Jones viewed her role as assessing whether the procedures were followed and whether there was new evidence. D. 65 ¶¶ 89-90; D. 74 ¶¶ 89-90. After the review, Jones sent James and Mary two letters. The first letter stated that the practices of the hearing board were "consistent with the best practices of higher education," D. 65 ¶ 100, D. 74 ¶ 100, while the second letter explained that the proffered forensic evidence did not justify reconsideration of Doe's discipline. D. 65 ¶ 102; D. 71 ¶ 259; D. 74 ¶ 102.
Doe instituted this action on March 11, 2015. D. 1. On March 11, 2016, Doe moved to amend the complaint by adding a new defendant, Herlihy. D. 51. Doe subsequently moved for partial summary judgment on Counts I and IV of the complaint. D. 64. BC and the Individual Defendants have also moved for summary judgment. D. 67; D. 69. The Court heard the parties on the pending summary judgment motions and took these matters under advisement. D. 84.
Doe moved to amend the complaint to add Herlihy as an individual defendant to the tortbased counts in this case, Counts VIII through XIII. D. 51.
Once a scheduling order is in place and the litigation has progressed beyond the deadline set for amending the pleadings, motions to amend a complaint are assessed under a heightened "good cause" standard.
On June 22, 2015, the Court set a schedule for this litigation. D. 15. That schedule required that any amended pleadings were due by September 22, 2015, that fact discovery closed on February 12, 2016 and that summary judgment motions were due by March 15, 2016. D. 15. The only changes to that schedule were extensions related to discovery and summary judgment. D. 21; D. 37; D. 48. There was no change in the deadline for amending the pleadings and Doe filed his motion to amend the complaint after this deadline. D. 15; D. 51.
Doe fails to show good cause for their delay in moving to amend the complaint to include Herlihy as an individual defendant. First, Doe does not provide an adequate explanation for the failure to add Herlihy earlier in this litigation. Doe first argues that they were "not in possession of any information that would have properly supported a claim against Joseph Herlihy" in March 2015 and only became aware of his involvement in January 2016 when Doe received attorneyclient privileged documents and Doe took Herlihy's deposition. D. 53 at 4. Doe further contends that this information showed that Herlihy was "the principal figure" in the proceedings at the core of this case. D. 53 at 4-5, 8. The record reveals, however, that Doe filed their original complaint on March 11, 2015 and included allegations against Herlihy at that time. D. 1. For example, in their initial pleading, Doe alleged that (1) Herlihy directed Hughes to interrogate Doe outside of the presence of his lawyer, D. 1 ¶ 122; (2) Herlihy reviewed the appeals letter written by Chebator, D. 1 ¶ 85; (3) Herlihy had spoken with Doe's attorney, D. 1 ¶¶ 66-67; (4) Herlihy assisted JK in obtaining legal representation for the second day of the 2012 disciplinary proceeding, D. 1 ¶ 125; and (5) Herlihy had actual notice of University misconduct related to Doe's disciplinary proceeding, D. 1 ¶ 185. Despite asserting these allegations, Doe did not name Herlihy as a defendant initially.
Even if the particular details of Herlihy's role were unknown until discovery, Doe became aware of his involvement in large part through the depositions of Chebator, Jones, Rivera, Hughes and Keating. For example, to support their allegations that Herlihy was involved in the pre-hearing and hearing procedures, scheduling issues, obtaining evidence, involving himself in the 2012 disciplinary appeal and participating in the 2014 review, Doe cites these administrators' depositions. D. 53 at 15. Doe also cites Keating's deposition as key evidence to explain the allegations against Herlihy as to the 2014 post-suspension review. D. 53 at 21-22. Despite these depositions taking place in November of 2015, D. 53-3; D. 53-4; D. 53-16; D. 53-20, Doe did not move to amend to include Herlihy as a defendant until March 11, 2016. D. 51. This was well after these depositions and at a time where the parties were on the heels of summary judgment briefing and the close of discovery.
While not the primary focus, the "good cause" analysis also examines possible prejudice to defendants.
Count I alleges that BC breached the terms of its contractual relationship with Doe. D. 1 ¶¶ 94-147. The parties do not dispute that the contractual relationship between BC and Doe arises from the Student Guide and the Conduct Board Procedure, D. 65-17; D. 65-18, D. 65-19; D. 68 at 6-21; D. 65 ¶ 29; D. 74 ¶ 29, even as they disagree about what the express and implicit terms of that contract require. Doe alleges specific breaches of that contract, namely that BC failed to: (1) perform a threshold evaluation of the sexual assault charge; (2) conduct an adequate investigation; (3) set an appropriate hearing date; (4) provide fair and meaningful notice of the charges against Doe; (5) permit Doe the right to effective counsel at the hearing; (6) allow Doe to have his investigator as a witness; (7) provide an unbiased disciplinary process to Doe; (8) provide a trained and competent hearing board; (9) presume Doe to be innocent and improperly shifting the burden of proof to Doe; (10) provide sufficient evidence to support the hearing board's finding; (11) honor an obligation to make a record of the hearing; and (12) provide a meaningful appellate process (Count I). D. 1 ¶¶ 94-147. Doe also alleges that BC failed to provide a procedurally and substantively fair process that, cumulatively, amounted to a breach of its express contract with Doe and breach of the implied covenant of good faith and fair dealing (Counts I and IV). D. 1 ¶¶ 94-147, 157-60. Upon a developed factual record after discovery, both Doe and BC seek resolution of these contract-based claims, Counts I and IV, on summary judgment. D. 64; D. 67.
To establish breach of contract, a plaintiff must demonstrate a valid and binding contract existed, the defendant breached that contract and the plaintiff suffered damages as a result.
Under Massachusetts law, all contracts also include an implied covenant of good faith and fair dealing.
As part of the analysis of the express and implied terms of the contract between a university and its students, the fact finder must also determine whether the university provided a process conducted with "basic fairness" to the student when analyzing a student's claim for breach of contract.
Doe contends that the Student Guide requires the Dean to perform a threshold evaluation of the charges against him and BC breached this obligation when Hughes met with Doe on three occasions prior to the hearing, but refused to allow Doe to provide his account of the incident. D. 66 at 7-8; D. 65 ¶¶ 42, 44, 46. Doe argues that this breach led to further prejudice to Doe including Hughes' lack of knowledge of JK as a possible perpetrator and an inability to stay the proceeding due to Doe's pending criminal case. D. 66 at 8.
Section 5 provides that, "[a] student who has had a complaint lodged against him or her will be called by the Dean of Students or designee to discuss the complaint. At the meeting, the case may be kept open for later resolution, dropped, resolved, or referred to an appropriate hearing board as determined by the Dean or designee." D. 65-18 at 3.
First, there is no express breach based upon the lack of a "threshold evaluation" by Hughes. None of the contractual language cited contemplates such an evaluation, so Doe had no reasonable expectation that these meetings would involve any threshold evaluation of the merits of his case.
Doe points to deposition testimony by Chebator, in which he stated that, "[a]t some point [Doe] should be given, would have been given an opportunity to tell his side of the story." D. 65-33 at 4. This evidence does not support Doe's contention for several reasons. First, the Court does not assess extrinsic evidence when the terms of a contract are complete without it.
Moreover, the undisputed facts show that the obligations provided under the contract as to an initial notice of the charges to Doe were met. It is undisputed that Hughes had three different meetings with Doe on October 24, 26 and 30, 2012. D. 65 ¶¶ 42, 44; D. 74 ¶¶ 42, 44. It is also undisputed that Doe was provided with a copy of the statement from AB and that Hughes provided Doe with the notice of the charge against him and the Conduct Board Procedure at the meetings on October 26 and October 30. D. 65 ¶ 44; D. 74 ¶ 44. Thus, the requirement under Section 5 was fulfilled. Doe's suggestion that the lack of a threshold evaluation prejudiced Doe where Hughes did not learn of his allegations about a culpable third party, JK, and declined to continue the hearing (which the Court discusses below) is not borne out by the record. That Doe claimed that he did not commit the offense charged was raised with Hughes from her first meeting with Doe and, at the adjudicative stage, Doe presented, and the board considered, whether, as Doe alleged, JK was the perpetrator.
Similarly, there is no genuine issue of material fact as to a breach of the implied covenant of good faith and fair dealing. For all of the reasons discussed above, the contract itself did not require a threshold evaluation and so the implied covenant cannot create one.
Under the terms of the Student Guide, BC "will promptly conduct an investigation of the alleged incident, which will include a review of statements obtained from either party, interviews with the complainant and the accused (if identified), interviews with appropriate witnesses, and a review of other relevant information." D. 65-17 at 16. The parties do not dispute that the hearing board was also the investigating body regarding the charge against Doe. D. 65 ¶ 41; D. 74 ¶ 41.
Doe first contends that BC failed to meet the investigation requirement because the contract requires that the BC Police are involved in the investigation of the alleged sexual assault. D. 66 at 9. To interpret a contract, the Court must give a reasonable meaning to all of the provisions in the contract and "the scope of a party's obligation cannot `be delineated by isolating words and interpreting them as though they stood alone."
Next, Doe maintains that BC violated the terms of the Student Guide by having the hearing board also serve as the investigative body in Doe's case for two reasons. D. 66 at 9. First, Doe argues that the policies "drew a clear line between the investigation and the adjudication" of sexual assault claims. D. 66 at 9-10. The language highlighted by Doe states "[c]omplaints of sexual harassment, misconduct, and assault against a student member of the University community will be investigated and adjudicated" in accordance with Section 5 of the policy. On its face, this language does not imply that the investigative capacities and the adjudicative functions will be partitioned from one another. Assuming the language is vague, the Court can look to contextual clues to discern the meaning of the contractual provision.
Finally, Doe argues that the Board did not conduct a "worthy" investigation. D. 66 at 10. The Court, however, will not second guess the thoroughness or accuracy of a university investigation, so long as the university complied with the terms of its policies.
Although the Court rejects Doe's contention that the hearing board was improperly trained to conduct investigations because they did not have investigative training equivalent to that of BC police officers, D. 66 at 9, because there was no such requirement under the Student Guide or the Conduct Board Procedure, D. 66 at 9; D. 81 at 5-6, the Court addresses the overall adequacy of the training of the hearing board below.
Doe asserts that BC failed to set an appropriate hearing date when it set the hearing within the two weeks of the incident because the Student Guide provides no deadline for a hearing and BC guaranteed an accused student sufficient time to prepare a response to the charges. D. 66 at 10-11. Here, Doe argues that Hughes' refusal to grant a stay until the criminal proceeding was resolved was unreasonable and amounted to Doe having inadequate time to prepare. D. 66 at 11.
In relevant part, the Student Guide provides:
There is no genuine issue of material fact as to whether these three requirements were met. First, BC made efforts to resolve the complaint within 60 days and hold the conduct hearing within a reasonable period of time. D. 65-28 at 2 (showing Hughes writing that she "reviewed our policies and Title 9 (which gives us a little longer time to resolve this) and I think we will do well by the student and be in compliance if we can organize an Administrative Hearing Board sometime in the next two weeks"); D. 65-30 at 2 (providing an email by Hughes that indicates that the Does "agreed that a quicker hearing would be better since he is on suspension"). Second, although BC did not elect to stay the proceedings, it was under no contractual requirement to do so. The contract language merely states that the Office of the Dean of Students may elect to stay the disciplinary process.
Doe, however, also asserts that by setting the hearing date it did, BC also breached a fourth term of the Student Guide because the timing did not provide him with "adequate time to prepare a response to the charges." D. 65-17 at 3. It is undisputed that Doe reviewed AB's accusations, received a copy of the notice of the charges against him and received the Conduct Board Procedure prior to the hearing. D. 65 ¶ 44; D. 74 ¶ 44. In addition, Doe was able to prepare and deliver testimony of his account of the events to the Board, D. 65 ¶ 6; D. 74 ¶ 6, provide the Board with a portion of the unenhanced video surveillance footage, D. 65 ¶ 55; D. 74 ¶ 55, and have three friends testify on his behalf. D. 65 ¶ 55; D. 74 ¶ 55. Forensic evidence specialists had swabbed Doe's hands and fingernails, D. 65 ¶ 9; D. 74 ¶ 9; D. 65-2 at 3, in the course of the criminal investigation and the results were still pending at the time of his disciplinary hearing and which did not become available until February 2013. D. 65 ¶ 20; D. 74 ¶ 20; D. 65-13. Even when these results became available in February 2013, however, they revealed the absence of blood on Doe's hands, but contained no testing results about the presence or absence of DNA, and instead merely noted that the respective swabs were "preserved for the possible recovery of DNA." D. 65-13 at 3. That is, even as Doe argued then and now that the forensic testing of his hands would help prove he was not responsible for the charge against him, D. 65 ¶ 55; D. 74 ¶ 55, the limits of this forensic evidence would not have compelled a different decision by the hearing board.
Doe makes a similar argument in regard to an "enhanced" version of the video recording from the Spirit of Boston from the evening in question. The hearing board had the benefit of reviewing the unenhanced video before rendering its ruling, but Doe contends that he was prejudiced by BC's failure to postpone the hearing until the enhanced version was available since video would have exonerated him. It appears, however, that the enhanced version of the video did not become available until February 2013, D. 78-2 at 58, and there is no suggestion in the record that the hearing board was given any indication of when it would become available for its consideration. More significantly, although Doe contends that it was the enhanced video was part of the Does' presentation to the Suffolk District Attorney's Office that persuaded the prosecutor to dismiss the criminal charges against Doe, D. 65-11 ¶¶ 6-7, even if that conclusion was admissible here, it does not warrant a different outcome in the administrative proceeding where preponderance of the evidence, and not beyond a reasonable doubt, is the applicable burden of proof or where, in the course of the 2014 review of the manner, BC found the enhanced video to be, at best, inconclusive. D. 65-61.
Although there was some indication that the Board was concerned about the dearth of forensic evidence that it had to consider at the time, D. 65-43 at 2; D. 65 ¶ 67; D. 74 ¶ 67; D. 65-43 at 2, and its willingness to have considered if it was available at the time, D. 78-2 at 199, Rivera testified that the board was unsure if that evidence would have been relevant to their decision. D. 78-2 at 199;
The Student Guide provides that "[i]n the case of disciplinary procedures" each student has "the right to be informed of any charges of misconduct," D. 65-17 at 3, while the Conduct Board Procedure provides that "[t]he accused student will be sent written notification . . . indicating referral to appropriate board, time and location of hearing, the names of all parties charged[,] alleged violations and the name(s) of complainant(s)." D. 65-19 at 2.
In this case, Doe first argues that the hearing notice provided to Doe was insufficient because the notice of charge did not define the sexual assault charge. D. 65-48. It is undisputed that the notice of charge itself did not define the term "sexual assault." D. 65 ¶ 45; D. 74 ¶ 45; D. 65-31; D. 65-48. This notice, however, cannot be divorced from its context, specifically the context provided by the Student Guide. It explains that BC "prohibits all forms of sexual harassment, sexual assault, and sexual misconduct" and that "[p]rohibited conduct ranges from acts of nonconsensual sexual intercourse and nonconsensual sexual contact, to sexual misconduct including, but not limited to, harassment of a sexual nature, sexual exploitation, stalking, voyeurism, exposure, video or audio taping sexual activity, and sexual activity resulting from emotional coercion." D. 65-17 at 13. That is, the term sexual assault is used in the context of a range of prohibited non-consensual, sexual contact. Significantly, Doe was not only given notice of the charge of sexual assault against him, but was also given notice of AB's statements regarding her specific allegations about the single incident, an alleged sexual assault on the dance floor on October 20, 2012. D. 65 ¶ 44; D. 74 ¶ 44. This is not a circumstance in which it could be said that the accused student was not on notice of the specific alleged facts giving rise to the charge against him or to the nature of that charge, even as Doe disputed AB's allegations and denied the charge.
Next, Doe contends that the notice provided to Doe, D. 65-48, was insufficient because it did not list any lesser-included charges, what those charges could be or a definition for "indecent assault and battery." It is undisputed that the notice did not include any mention of a lesser-included charge or list "indecent assault and battery" as an alleged violation. D. 65-31; D. 65-48; D. 65 ¶ 70; D. 74 ¶ 70. The policies, however, state that an accused student can be found "responsible for a lesser inclusive charge." D. 65-18 at 5. Given the notice about the possibility of a finding as to a lesser inclusive charge and the broad definition of prohibited conduct under the policies that includes but is not limited to "nonconsensual sexual contact," D. 65-18 at 5; D. 65-17 at 13, there was no failure by BC to put Doe on notice of the potential charges to which he could be found responsible.
Even assuming arguendo that the failure to provide express notice of this lesser inclusive charge amounts to a breach of contract, Doe has not shown that such breach caused him harm. Unlike
By the terms of the Student Guide, BC committed no breach in circumscribing Doe's attorney-advisor's role at the disciplinary hearing. The Student Guide provides that "[a]n attorney may be present and serve as an advisor to either party only in instances where the accused student has been arrested or has had a criminal complaint filed against him or her and the matter has not yet been concluded in court." D. 65-18 at 6. Further, the Student Guide limits the role of the advisor at the hearing: "[h]e or she is not entitled to address the Board or act in any advocacy capacity at the hearing. The student and his or her advisor can confer at any point during the hearing but the advisor may not formulate specific questions, responses, or statements for the student." D. 65-18 at 6.
BC met all of these requirements. As both parties acknowledge, Doe was able to confer with his attorney throughout the hearing, D. 71 ¶¶ 90-95; D. 75 ¶¶ 87-95;
To the extent that Doe argues that the limited role prescribed by BC for Doe's attorney-advisor violated the covenant of good faith and fair dealing, D. 75 ¶¶ 87-95, Doe's argument fails for similar reasons as the breach of contract argument. The language of the contract related to hearing advisors does not create a "reasonable understanding" that the overall spirit of the bargain includes having legal advocates participate in the school disciplinary hearings.
Nor does Doe's contention that his attorney-advisor's inability to question witnesses, address the hearing board, or otherwise speak throughout the hearing violated BC's contractual "due process" guarantees, D. 65-17 at 3; D. 65-18 at 2-3. First, due process requirements for private universities are not held to the same standard as criminal defendants and are not constitutionally mandated.
It is undisputed that the parties agree that one reason that Mullen, Doe's private investigator, was prohibited from being a witness at the hearing was because Mullen did not witness the alleged assault. D. 65 ¶ 65; D. 71 ¶ 137; D. 74 ¶ 65. The parties disagree, however, about whether the Student Guide requires that any witness called at the hearing must be a witness who observed the "incident"—here, the alleged assault—as opposed to a witness who may have information otherwise relevant to the proceeding. Doe had intended to call Mullen to testify about having listened to the phone conversation between Doe and J.K. that Doe alleges suggests J.K.'s culpability and his October 29, 2012 interview with J.K. D. 66 at 12; D. 65 ¶ 65; D. 74 ¶ 65.
This Court must decide whether the Student Guide circumscribes the use of witnesses to only those witnesses who were witnesses to the alleged event. To the extent that there is any ambiguity in contract language, such ambiguity is to be construed against the University as the drafter,
BC's application of this contract provision to Doe's case, moreover, did not undermine the basic fairness of the proceedings. Doe's contention that there was a third-party culprit, namely JK, was squarely presented to the hearing board. The board continued its hearing to hear from JK directly and heard testimony from Doe as to JK's text and their telephone call, all aimed at undermining JK's denials of having committed the assault and to suggest that JK, not Doe, was perpetrator.
The Student Guide requires that board members "may not hear a case if they are not able to be impartial in the hearing of the case." D. 65-18 at 5. Mills' dual roles as a member on the hearing board and a staff member in the Dean's office alone does not demonstrate evidence of bias contrary to Doe's argument, D. 75 ¶¶ 212-13, and Doe points to no other evidence to further his argument.
Doe fails to show a genuine issue of material fact exists as to whether Rivera was impartial. Doe asserts that Rivera acted as a prosecutor and was hostile toward Doe and that this was evident through her asking cross-examination-like questions to Doe during the hearing while providing "softball" questions to other witnesses. D. 75 ¶ 219. These subjective impressions, without more, are insufficient to show that Rivera was biased or show a genuine issue of material fact regarding same. See
As to Wylie, Doe and BC both move for summary judgment as to whether her membership on the Board violated BC's contractual obligations, i.e., whether she failed to "disclose any real or perceived conflict of interest between [herself] and any party and may not hear a case if they are not able to be impartial in the hearing of the case."
Doe and BC both move for summary judgment as to whether BC breached its duty to provide a trained and competent hearing board.
The Student Guide provides that, "[a]ll members are trained by the Office of the Dean of Students. Chairpersons for the Administrative Hearing Board are designated by the Dean of Students and receive additional training." D. 65-18 at 5. The reasonable expectation a student would accord to this contractual provision is that members of any university hearing board would not only receive training but that training would be adequate to resolve the disputes that came before those members. Doe's complaint articulates that this alleged breach for an inadequately trained hearing panel is based upon a guarantee in the policies for "fundamental fairness" and "due process." D.1 ¶ 127; D. 66 at 15.
As a general principle, "the courts must recognize and respect the strong interest of a private university in managing its own affairs,"
Certainly, that the hearing board members received training (and that BC provided same), however, does not answer the question about the adequacy of this training. To support his claim for summary judgment, Doe first relies upon the expert report of Brett A. Sokolow. D. 75 at 11; D. 75-10 at 31-32. Within that report, Sokolow asserts that a professional trainer or expert on campus sexual misconduct should have trained hearing board members for at least two days on a host of different subjects and that there is no evidence to show this occurred at BC. D. 75-10 at 31-32. Sokolow, however, cites no authority and does not otherwise explain why these particular subjects or this particular length of time needs to be included for the training to meet the contractual obligation for a trained hearing board and his earlier citations to guidance from the DOE provides no support for the specific demands that Sokolow would have placed on BC.
In addition to Sokolow's report, Doe relies upon an April 23, 2012 report, containing the findings and recommendations of a committee convened from April 2011 to February 2012 to study the prevention of and response to sexual violence at Boston College, which spans over 60 pages and discusses a number of sexual assault-related topics such as enhanced student prevention and education, recommendations to change overall faculty and staff education separate and apart from the disciplinary procedure and the potential of hiring a Sexual Violence Prevention and Response Coordinator. D. 66 at 15; D. 74-1 at 6, 19-20, 23-27. Doe highlights one paragraph in that report which stated, "[a]djudicating sexual violence cases is often difficult for hearing board members. The Office for the Dean of Student Development currently offers a 3-hour training for board members. Based on best practices, the training of a hearing board such as ours is insufficient." D. 65 at ¶ 35; D. 74 ¶ 35; D. 74-1. This recommendation is derived from a separate study which recommends that hearing boards are trained in understanding rules of evidence related to relevance, credibility and rape shield rules, understanding the analytical approach to deciding whether a policy was violated, understanding rape trauma and incorporating sensitivity training. D. 74-1 at 62. Such finding, however, is not determinative as it applies to Doe's case, particularly in light of the undisputed record about the training provided and the training the board received, D. 65 ¶ 35; D. 74 ¶ 35; D. 74-2 at 3 (Chebator testifying that in response to the April 2012 report, the school "ramp[ed] up the training for individuals who would be hearing sexual assault cases" by developing "a secondary training for those individuals who would be sitting on administrative hearing boards involving sexual assault matters"); D. 71 ¶¶ 75, 78-79; D. 75 ¶¶ 71-86; D. 78-2 at 178-180, 209, 222-223, 242, 256-57 (board members testifying that they attended annual training specific to sexual assault and sexual violence cases prior to Doe's hearing), and the absence of evidence that the hearing board acted in bad faith, failed to follow BC's policies or procedures or, as concluded below, to provide basic fairness to Doe.
Doe contends that while neither a presumption of innocence nor an assignment of the burden of proof is expressly required by the BC policies, contractual guarantees of "due process" and "fundamental fairness" as well as the implied covenant of good faith and fair dealing dictate a contractual obligation that Doe was presumed innocent and the University had the burden of proof to show otherwise. D. 1 ¶ 130.
Although Doe argues that the Dean's Office and General Counsel's Office "considered John to be guilty . . . from the first news of his arrest" and that the board was looking for evidence from Doe that would "exonerate" him even though Doe had no obligation to provide such evidence, D. 77 at 12, 16, he points to no specific, admissible facts to show genuine issue as to BC's alleged failure to comply with these standards. Although Doe dismisses the testimony of all of the board members that they did not place the burden of proof on Doe and that they presumed Doe to be innocent throughout the hearing as post-hoc rationalization, D. 71 ¶¶ 178-79; D. 75 ¶¶ 178-79, such evidence, in the absence of any contrary evidence, alone cannot defeat Defendant's summary judgment motion.
Moreover, BC's declaration in these proceedings that "[i]t is undisputed that Doe presented no evidence that exonerated him," D. 71 ¶ 112; D. 75 ¶ 112, does not create a genuine issue of material fact on this claim. Such an assertion, made in the course of litigation, reflects the state of the evidence before the board, not a statement of the burden that BC imposed. This is particularly true where the Board's decision reflected their weighing and considering the witness testimony including that of Doe's testimony, that of his witnesses and his proffered evidence and its consideration of whether JK was, as Doe contended, the real perpetrator. D. 65-44 at 3.
The Student Guide provides that "[t]he standard used to determine responsibility is the preponderance of the evidence, that is, whether it is `more likely than not' that the accused has violated the policy" in question. D. 65-17 at 3; D. 65-18 at 2.
Here, BC moves for summary judgment on the ground that ample evidence existed to support the outcome of the proceeding. D. 68 at 18. The Court need only find that there was enough "evidence, which, if believed, could have supported the board's decision."
It is fair to say that this was a circumstantial case against Doe. All indications are that the board thought it was a close circumstantial case, particularly as to the initial charge of sexual assault. The fact that the case was a circumstantial one, or even a close circumstantial case, however, does warrant the conclusion that there was insufficient evidence to reach the conclusion that the board reached. Here, after hearing testimony from both AB and Doe and other witnesses, the board, that had the benefit of hearing and considering the testimony about the events in question, credited AB's version that she had been subject to an unwanted touching on the dance floor and that Doe, in close proximity to her, had committed this act. That no one, including AB, saw Doe do so on a packed dance floor, does not mean that there was no rational basis for the board's conclusion or that its decision was arbitrary and capricious. This is particularly true where the board considered not just Doe's denial of the conduct, but his position that JK was in fact responsible for the charge and having heard testimony from Doe and JK himself about this matter. This Court cannot say, as a matter of law, that this showing did not satisfy the preponderance of evidence standard.
Neither party disputes that BC is not obligated to create a recording—either stenographic or audio—of the hearing. D. 65 ¶¶ 34(f), 55; D. 74 ¶¶ 34(f), 55. Section 5 provides that "[n]either party at the hearing will be allowed to use any type of electronic device, including but not limited to laptop computers, tape or digital records, cell phones or PDAs, without the advance written permission of the Dean." D. 65-18 at 6. Thus, there is no genuine issue of material fact as to a breach of contract claim due to the University's failure to record Doe's disciplinary hearing because no such a recording was requested in advance. Moreover, the lack of any recording did not violate the covenant of good faith and fair dealing. The terms of Section 5 do not provide Doe with a "reasonable understanding of performance obligations as reflected in the overall spirit of the bargain,"
Under the terms of the Student Guide, each hearing board is required to "meet in private to determine whether the accused is responsible or not for the charge(s), based upon a preponderance of the evidence. If the finding is responsible, the board will decide upon appropriate sanctions to recommend to the Dean." D. 65-18 at 7. Accordingly, a student's reasonable expectation is that the hearing board itself will deliberate, apply the correct standard of proof and come to a decision.
That the hearing board, that was convened by the Dean for the investigation and adjudication of the charge against Doe, would have some contact with the Dean and General Counsel does lead to the conclusion Doe urges that its decision was improperly influenced. It is undisputed that Rivera had a telephone conversation with Hughes between the two board deliberation sessions indicating that the board was struggling with its decision and was conserving a "no finding" result. D. 65 ¶ 68; D. 74 ¶ 68. Hughes relayed to Rivera that Chebator discouraged "no finding" results. D. 65 ¶ 68; D. 74 ¶ 68. It is, however, also undisputed that the board members testified that they did not recall hearing that Chebator had discouraged "no finding" results. D. 71 ¶ 167; D. 75 ¶¶ 161-77 (not disputing this fact). Moreover, Rivera's deposition testimony states that the board was considering a "no finding" because the board felt they "had enough information to make a decision just maybe not on what the specific charge was, so [they] did not want to go with no finding," not as a result of Hughes and Chebator. D. 78-2 at 199. On this record, the Court cannot conclude that there was improper influence on the hearing board's decision given the uncontradicted testimony by the members of the board. Moreover, the board did, in essence, come to a no finding ruling about the initial charge of sexual assault, finding instead that Doe was responsible for a lesser included charge of indecent assault and battery.
Similarly, the undisputed record about the board's contact with Herlihy, BC's General Counsel, does not warrant a different outcome. It remains undisputed that board did not contact Herlihy until after the Board had rendered a decision on the hearing. D. 65 ¶ 71; D. 74 ¶ 71. That Herlihy provided language for certain of the board's findings, D. 65 ¶ 71; D. 74 ¶ 71; D. 78-2 at 275-76, does not indicate that he was part of the board's private deliberations.
Doe contends that (1) the grounds for appeal were "impermissibly limited and flawed" and (2) that Keating's involvement in the internal appellate process was fraught and the entire appellate process was not impartial. D. 66 at 18-19.
The Student Guide provides if "an accused student can demonstrate that he or she has been denied a fair hearing of the case due to procedural unfairness or can introduce evidence not previously available that would be likely to change the result of the prior hearing, an appeal can be made to the Dean of Students and the Vice President for Student Affairs" and "must be filed in writing by the party . . . within five business days after notification of the sanctions. The Dean and the Vice President (or their delegated representatives) will review the case and determine if the new evidence or lack of a fair hearing requires consideration." D. 65-18 at 8. It continues, "[a] denial of a proper hearing would be a violation of the fairness rights listed in the Statement of Rights and Responsibilities. New evidence is evidence which was unknown to the party at the time of the original hearing and which could have a significant impact . . . ." D. 65-18 at 8.
There is no breach of express contract as to this claim. The contract specifically lists two grounds for appeal: "procedural unfairness" or "evidence not previously available that would be likely to change the result of the prior hearing." D. 65-18 at 8. Moreover, the Student Guide states that the "appeal must be filed . . . within five business days." D. 65-18 at 8. Given the language, there is no reasonable expectation that any other ground would be available for appeal.
Certainly, the scope and nature of the appellate process bears upon the basic fairness of the process for Doe. Doe analogizes to
The Court disagrees with Doe's contention that his appeal was not handled fairly and in accordance with BC's procedures. D. 66 at 18-19. Doe makes several allegations about Keating's lack of training in Title IX and BC's policies and procedures and his limited substantive role in the review. Keating's testimony that he had "general familiarity with Title IX as it applied to the university" and that he knew "generally what [BC's] procedures and policies were, "D. 78-2 at 170, was uncontradicted and neither the terms of the Student Guide nor the Conduct Board Procedure stipulate any specific training. Moreover, that Chebator, rather than Keating, took the lead in the appellate review, does not contravene BC's policies. Chebator's consultation with Rivera, as chair of the hearing board, or with Herlihy on the letter relating to the disposition of the review, D. 65 ¶ 79; D. 74 ¶ 79, also do not amount to a breach of contract. The terms of the policies provide no limitations or explanation for how the appeal request should be reviewed. D. 65-18 at 8; 65-19 at 3. The only language relevant states that "[t]he Dean and the Vice President . . . will review the case," D. 65-18 at 8, and nothing in that language suggests that the reviewers should refrain from contact with those involved in the original hearing.
Having considered and addressed each of the specific, alleged breaches of contract that Doe alleges against BC, the Court has also considered whether each of these breaches, or some or all of these alleged breaches cumulatively, denied Doe basic fairness in the 2012 disciplinary proceedings. At base, this analysis requires scrutinizing whether the college provided a student with a "minimum level of fair play" in terms of both procedural fairness and substantive fairness.
Although Doe's complaint were well presented to this Court (and to BC in 2014), the Court does not conclude that BC denied Doe basic fairness in its disciplinary process. Its process was in accord with its policies, Doe was given prompt notice of the charge and the factual allegations against him and Hughes met promptly on several occasions with Doe and his parents on several occasions in the pre-hearing phase to provide notice of same. BC was aware of Doe's denial of the charge from its first meeting with Doe and promptly convened a hearing board for the investigation and adjudication of the charge. During the hearing, Doe had the benefit of an attorney-advisor and was able to present his own testimony, the testimony of other witnesses to the incident, the video and was able to present not just his denial of the charge, but got the hearing board to consider a third-party culprit. He subsequently received review of the board's adverse decision as provided under BC's policies and procedure and, at the request of Mary and James, received a further 2014 review, which considered the additional evidence that were not available at the time of the 2012 hearing, but which, upon review, would not have changed the result of the hearing board's ruling. For all of these reasons and the reasons discussed above, the Court concludes that BC did not breach its express or implied contractual obligations to Doe or fail to provide him with basic fairness in the process.
BC moved for summary judgment on Doe's claim to promissory estoppel. D. 68 at 21.
Under Massachusetts law, if a written contract exists, a claim of promissory estoppel is not permitted.
"Under Massachusetts law, the formation of a contract requires a definite offer, acceptance, and consideration."
BC moves for summary judgment on Count III based upon the argument that there was "no meeting of the minds" regarding the terms of the 2014 review of Doe's disciplinary proceedings and thus no contract was formed in the correspondence between Leahy and Mary and James. D. 68 at 21-22. The factual record fails to show any facts that support a meeting of the minds or the exchange of definite terms to create a contract. It is true that Leahy testified that he knew that the family was prepared to file a lawsuit against the university and that he responded with a suggestion of independent review by the Vice President of Student Affairs, Barbara Jones. D. 65-16 at 7. Still, the terms and conditions of that independent review were left unresolved. First, Leahy told Doe's parents that while Jones was "the right person at BC to review the case and make a recommendation," he did not know "how long it would take [her] to complete re-examining the facts and make a determination." D. 72-2 at 15.
In addition, after Doe's parents promised to contact Jones, D. 72-2 at 15, James testified that when he first met with Jones in September 2014, he only understood that she would do some sort of "top to bottom assessment of what happened and . . . make a recommendation to the executive vice president about what she learned" but also that this meeting was primarily to discuss "how we were going to go forward and what it was that she was going to do." D. 75-17 at 10-11. Not only did James indicate that he did not know what the review would entail or how it would be conducted, other evidence further confirms that definite obligations were not established. For example, Jones testified that in her initial meeting with James, she was "trying to understand from Mr. [Doe] . . . what were his particular concerns and what were the issues that I would need to exam in particular . . . ." D. 78-2 at 154-55. Moreover, Leahy's e-mail to James stated that it was his "suggestion" that James contact Jones and that "[a]ny review of the decision . . . would have to begin with the Vice President of Student Affairs." D. 72-2 at 15-16. Thus, the record demonstrates that there was no mutual assent to definite obligatory terms and thus an enforceable contract was not formed.
Doe and BC both moved for summary judgment on Count IV. BC's principal argument rests on the notion that basic fairness is not an independent obligation and thus cannot be asserted as an independent claim apart from the breach of contract claim in Count I. D. 68 at 22; D. 73 at 18-19.
Doe relies upon
Accordingly, the Court grants BC summary judgment on Count IV, but rests upon its analysis of Doe's claim about basic fairness as to Count I, the breach of contract claim.
In Count V, Doe seeks declaratory judgment related to alleged violations of Title IX regulations and guidance. D. 1 ¶¶ 162-67. Doe alleges that BC's Sexual Assault Policies and Procedures violated Title IX regulation 34 C.F.R. 106.8(b), which requires that universities adopt grievance procedures which are "prompt and equitable." D. 1 ¶¶ 47, 162-66. In addition, Doe seeks declaratory judgment based upon the school's alleged failures to comply with the 2001 O.C.R. "Revised Sexual Harassment Guidance" which mandate that the university provide a series of protective measures for the disciplinary process. D. 1 ¶¶ 51-53, 162-63; OCR "Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties." BC moves for summary judgment. D. 68 at 24-25.
Doe cannot seek declaratory relief because he no longer attends BC and this litigation centers on the 2012-2013 university policies. D. 65 ¶¶ 29, 81; D. 74 ¶¶ 29, 81; D. 71 ¶ 24. Declaratory judgment is relief sought in connection with future legal rights to assist parties in "conform[ing] their conduct to avoid future litigation."
Accordingly, the Court grants summary judgment to BC on this Count.
Title IX assures 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). To pursue a claim under Title IX based upon an erroneous outcome theory, a plaintiff must attack the outcome of the school's disciplinary proceedings by arguing that the plaintiff was wrongfully found responsible of an offense based upon gender bias by providing facts that cast doubt on the accuracy of the outcome of the disciplinary hearing and establish circumstances that show that gender bias motivated the outcome.
BC first asserts that its policies are gender neutral and thus do not violate Title IX. D. 68 at 23. Doe counters that the university policies evidence gender bias in how the university approaches sexual assault disciplinary proceedings. D. 77 at 9. Doe argues that the policies label accusers as "victims" and "survivors" and accused students as "perpetrator[s]." D. 77 at 9. Doe's argument is without merit. On its face, the language in the 2012-2013 disciplinary policies is gender neutral and makes no mention to men or women. D. 65-17. Second, Doe points to the Sexual Assault Notification Form for support for this claim but this document, D. 65-22, undermines their stance. The Sexual Assault Notification Form asks whether the victim is male or female, leaving checkmark options for both. D. 65-22 at 3-4. Similarly, the form also asks whether the perpetrator is male or female, leaving checkmark options for both. D. 65-22 at 3-4. This exhibits a lack of gender bias.
Doe additionally flags Section 4 of the Student Guide for further support by arguing that the Guide labels accusers as "victims" and "survivors." D. 77 at 9; D. 65-17 at 13. Even assuming these labels were not gender neutral, Section 4 of the Student Guide also provides other labels beyond victim and survivor. For example, the policy lists the accuser as "the complainant" in multiple locations and lists the possible assailant as the "alleged perpetrator" and "the accused." D. 65-17 at 13, 16-17. In addition, even if this language was evident of some bias in the disciplinary proceedings—which it is not on its face—a Title IX erroneous outcome claim requires that the improper bias is based upon gender. Showing that a school favors alleged victims of sexual assault claims is not the equivalent of demonstrating bias against male students, even if accused students are generally male.
This is true even putting aside the evidence shows that, between the period of August 1, 2005 and July 1, 2015, 10 out of 32 male students who were accused of some form of sexual misconduct were found not responsible after participating in the university's disciplinary proceedings, D. 71 ¶ 210; D. 75 ¶¶ 210-11; D. 78-2 at 63-64;
Doe also asserts that outside pressures with respect to sexual assault on campus instill bias in disciplinary proceedings. D. 77 at 10-12. Doe's point that sexual assault on campuses is a subject of increasing public attention and controversy, with external pressures from a variety of sources, is well-taken. Doe, however, must do more than respond to Defendants' motion for summary judgment with bare assertions.
Finally, Doe provides no evidentiary support for the claim that the "pattern of decisionmaking" in Doe's case is a result of gender bias. D. 77 at 17-19. Doe points to a series of alleged procedural irregularities, D. 77 at 18-19, to support this contention. However, in so arguing, Doe does not provide "statements by members of the disciplinary tribunal" or "statements by pertinent university officials" that demonstrate the improper influence of gender on the proceedings.
To establish a Title IX "deliberate indifference" claim, a plaintiff must demonstrate that an official with authority to address the alleged discrimination and take corrective measures had actual knowledge of the misconduct and failed to adequately respond to that misconduct.
Establishing that the university's action was clearly unreasonable is a high bar.
BC moves for summary judgment on this count. BC correctly asserts that "deliberate indifference claims are typically brought in cases where a school has ignored a victim's complaint of sexual harassment or assault."
Still, there is no genuine issue of material fact as to Count XI and summary judgment must be granted to BC. Doe provides no evidence that the alleged, underlying misconduct taken by various officials in the 2012 disciplinary proceeding or the 2014 review amounted to sexual harassment, i.e. gender discrimination.
For all of these reasons, the Court grants summary judgment to BC on Count VII.
All Defendants move for summary judgment on negligence Counts VIII and IX. Under Massachusetts law,
Here, Doe alleges that BC, Chebator, Hughes, Rivera and Keating owed a duty to Doe and others to conduct the student disciplinary process with due care. D. 1 ¶ 193. Defendants move for summary judgment on the ground that Doe's allegation is duplicative of their contract claim and no independent, tort-based duty of care exists. D. 70 at 6-9.
First, tort obligations "are imposed by law, independent of the promises" of contractual duties.
In this case, the negligence alleged by Doe is based upon how the student disciplinary process was conducted. D. 1 ¶ 193. The Student Guide and the Conduct Board Procedure, however, dictate what the disciplinary process should have entailed and the parties do not dispute that the student manuals in this case created contractual obligations on the part of BC.
The existence of a duty of care is a question of law for the Court.
First, the Court is unaware of Massachusetts law that imposes a duty of reasonable care upon BC in the circumstances here beyond the obligations, including that to provide basic fairness, that arise from the parties' contractual relationships as discussed in regard to Counts I and IV. Instead, Massachusetts recognizes a duty of care owed to students by schools in a set of circumstances, none of which are relevant here.
Moreover, ample case law declines to expand the duty of care owed to students by universities. For example,
Doe's other arguments, relying upon distinguishable case law, are likewise unavailing. Doe contends that this Court should recognize a duty of care for BC and administrators to conduct the student disciplinary process with due care. Doe relies upon
Whether a plaintiff can pursue a negligence claim against individual employees is a related inquiry. The first step in this inquiry is determining if a duty of care exists because "[a]bsent a legal duty, there can be no personal liability."
For these reasons, the Court grants summary judgment to BC and the Individual Defendants on Count VIII.
In Count IX, Doe alleges that BC voluntarily assumed the duty of conducting the 2014 review, owed a duty of care to Doe in how that process was conducted and breached that duty. D. 1 ¶¶ 197-98. Doe also alleges that Jones and Keating owed this same duty of care and breached that duty. D. 1 ¶¶ 197-98. All defendants move for summary judgment on this ground.
The main contention between the parties is whether a duty of care was created when BC, through Leahy, agreed to conduct a post-suspension review of the 2012 disciplinary proceeding and appeal. No duty of care arose. Massachusetts law derives a duty of care from voluntarily assumed activities based upon the Restatement (Second) of Torts § 323 (1965).
Here, Boston College, Jones and Keating did not undertake to render services necessary for Doe's protection, or assume a duty associated with protecting against physical harm or that could foreseeably increase risk of physical harm.
Because Defendants BC, Jones and Keating owed no duty the Court grants summary judgment on Count IX.
To state a claim for negligently inflicted emotional distress, a plaintiff must prove 1) negligence; 2) emotional distress; 3) causation; 4) physical harm manifested by objective measures; and 5) that a reasonable person would have suffered emotional distress under the facts alleged.
As established above, the Defendants did not owe a duty of care to Doe, Mary or James separate and apart from its contractual obligations discussed above. Thus, Doe cannot maintain their negligent infliction of emotional distress claims. For this reason, the Court grants summary judgment to Defendants on Counts X and XI.
To make out a claim for intentional infliction of emotional distress, a plaintiff must show (1) that the defendant intended, knew, or should have known that its conduct would cause emotional distress; (2) that there was extreme and outrageous conduct; (3) that this conduct caused emotional distress and (4) that this emotional distress was severe.
Here, Doe provides no evidence that shows extreme or outrageous targeted behavior by Defendants. Much of what Doe relies upon to support these counts are allegations of procedural errors, which do not meet the high bar for intentional infliction of emotional distress.
For these reasons, the Court grants summary judgment to Defendants on Count XIII.
Unjust enrichment is "the retention of money or property of another against the fundamental principles of justice or equity and good conscience."
Accordingly, the Court grants BC summary judgment as to Count XIV.
For the foregoing reasons, Doe's motion to amend, D. 51, is
