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