1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Jun 27, 2022 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 PATRICK FLEETWOOD and MICHAEL No. 2:20-CV-00355-SAB 10 FLEETWOOD, 11 Plaintiffs, ORDER RE: DAN PATTERSON 12 v. DECLARATION; GRANTING 13 WASHINGTON STATE UNIVERSITY, DEFENDANT’S MOTION FOR 14 Defendant. SUMMARY JUDGMENT; 15 DISMISSING CASE 16 Before the Court is Defendant’s Motion for Summary Judgment, ECF No. 17 32, and the parties’ supplemental briefing regarding Dan Patterson’s Declaration, 18 ECF Nos. 57, 59. The motion and briefing were considered without oral argument. 19 Plaintiffs are represented by Matthew Crotty. Defendant is represented by Debra 20 Lefing and Brian Baker. 21 Having considered the briefing and the applicable caselaw, the Court (1) 22 determines that Dan Patterson is a qualified witness sufficient to satisfy Fed. R. 23 Evid. 803(6); (2) grants Defendant’s Motion for Summary Judgment; and (3) 24 dismisses the case for lack of subject-matter jurisdiction. 25 // 26 // 27 // 28 1 Factual Background 2 The following facts are pulled from the parties’ Statements of Fact, ECF 3 Nos. 33, 38, 43, and are construed in the light most favorable to Plaintiffs, the non- 4 moving party. 5 I. Mr. Fleetwood’s Contract with ROTC 6 On January 1, 2016, Plaintiff Patrick Fleetwood (“Mr. Fleetwood”) entered 7 into a contract with the Department of the Army (“the Army”) and the Reserve 8 Officers’ Training Corps (“ROTC”) to participate in the ROTC program at 9 Defendant Washington State University (“WSU”). As part of the contract, the 10 Army agreed to pay Mr. Fleetwood three and a half years of financial assistance 11 for his education, including tuition, school fees, monthly subsistence, and a flat fee 12 for textbooks. In exchange, Mr. Fleetwood agreed to serve up to four years on 13 active duty as a commissioned officer in the Army, if offered the position. In the 14 contract, Mr. Fleetwood also agreed that if he became “disenrolled from the ROTC 15 program for breach of contractual terms or any other disenrollment criteria 16 established now or in the future by Army regulations,” he would “reimburse the 17 United States government through repayment of an amount of money, plus interest, 18 equal to the entire amount of financial assistance . . . paid by the United States 19 from the commencement of the contract to the date of his disenrollment.” The 20 Army states that it paid a total of $32,617.13 in financial assistance to Mr. 21 Fleetwood from the commencement of the contract to the date of his disenrollment. 22 II. Initial Sexual Harassment Allegations against Mr. Fleetwood 23 During late November or early December 2018, Mr. Fleetwood, then a 24 fourth-year ROTC cadet, began a sexual relationship with B.K., a first-year ROTC 25 cadet. The relationship ended sometime in December 2018. 26 On January 18, 2019, two cadets submitted Sworn Statements to ROTC in 27 support of a sexual harassment complaint against Mr. Fleetwood. The first Sworn 28 1 Statement was from B.K., who stated that she had “character concerns about Cadet 2 Patrick Fleetwood, specifically regarding his sexist behavior towards women” and 3 alleged that Mr. Fleetwood had improperly retaliated against her after she refused 4 to resume a sexual relationship with him after their break-up. The second Sworn 5 Statement was from Cadet J.S., who also alleged that Mr. Fleetwood had engaged 6 in harassing behavior towards B.K. and stated that he had similar concerns about 7 Mr. Fleetwood’s sexist behavior. 8 These Sworn Statements were submitted to Lieutenant Colonel (“LTC”) 9 Brendan Hobbs, who initiated a counseling session with Mr. Fleetwood on January 10 22, 2019. During the counseling session, LTC Hobbs notified Mr. Fleetwood that 11 he had contacted the campus Title IX coordinator to initiate an investigation into 12 Mr. Fleetwood’s conduct between December 2018 and January 18, 2019. Thus, 13 WSU’s Office of Equal Opportunity (“OEO”) reached out to B.K. about filing a 14 formal Title IX Complaint. 15 III. OEO’s Investigation of the Sexual Harassment Allegations against Mr. 16 Fleetwood 17 The OEO is WSU’s “neutral investigative office for potential violations of 18 Executive Policy 15,” which prohibits discrimination, sexual harassment, and 19 sexual misconduct. At the time of Mr. Fleetwood’s investigation, Executive Policy 20 15 defined sexual harassment as “a form of discrimination based on sex and/or 21 gender.” Specifically, Executive Policy 15 stated that “sexual harassment creates a 22 hostile environment when behavior is sufficiently severe, persistent, or pervasive 23 enough to interfere with an individual’s work or educational performance, or 24 creates an intimidating, hostile, or offensive work or educational environment.” 25 Executive Policy 15 provided examples of conduct that could be found to 26 create a hostile environment, one of which was “sexual conduct that is 27 unwelcome,” such as (1) comments of a sexual nature; (2) sexually explicit 28 1 statements, questions, jokes, or anecdotes; (3) unwanted, offensive, and/or 2 uninvited comments about another’s physical appearance; (4) display of pictures 3 with sexual content; (5) persistent, unwanted attempts to change a professional 4 relationship to an amorous relationship; (6) subtle propositions for sexual activity 5 or directed propositions of a sexual nature; and/or (7) uninvited letters, e-mails, 6 telephone calls, or other correspondence referring to or depicting sexual activities. 7 According to Daniel Records—who served as a senior coordinator in the 8 OEO in 2019—when someone files a complaint of sexual harassment, the OEO 9 will first perform an intake interview with the complaining party to determine 10 whether an investigation into the complaint is warranted. If the OEO determines 11 that an investigation is warranted, the OEO will then issue a formal letter of notice 12 to the accused student, outlining the allegations against them. Mr. Records 13 estimates that the OEO receives approximately 600-700 complaints each year, 14 around 60-70% of which involve sexual harassment or sexual misconduct. Mr. 15 Records also states that, of these 600-700 complaints, approximately 25-30% of 16 the complainants do not want to respond or engage in the OEO process. Finally, 17 Mr. Records states that the OEO probably averages around 60-70 investigations 18 per year. 19 Here, OEO Investigators Nikki Finnestead and Rachel Brooks conducted the 20 intake interview with B.K. on January 24, 2019. Because Ms. Brooks was new in 21 the office at the time, Ms. Finnestead took the lead on the intake interview— 22 however, Ms. Finnestead transferred B.K.’s case over to Ms. Brooks on January 23 28, 2019 because she was leaving the office. Plaintiffs note that Ms. Finnestead has 24 a B.A. in multi-cultural and gender studies; has a background in working with 25 victims of domestic violence and sexual assault; and has worked on the WSU’s 26 Presidential Commission on the Status of Women, as well as received awards such 27 as the Washington State Women of the Year Award. 28 1 In her deposition, Ms. Brooks stated that both she and Ms. Finnestead made 2 the decision to initiate an investigation into B.K.’s complaint. Ms. Brooks stated 3 that the decision to investigate was based on (1) their determination that, if Mr. 4 Fleetwood was found to have committed the alleged conduct, such conduct would 5 rise to the level of a violation of Executive Policy 15; and (2) B.K.’s willingness 6 and desire to proceed with an investigation. After several exchanges with B.K. 7 regarding what details to include in the formal letter of notice to Mr. Fleetwood, 8 Ms. Brooks hand-delivered the letter to Mr. Fleetwood on January 31, 2019, 9 notifying him of the sexual harassment investigation. 10 From February 6, 2019 to April 19, 2019, Ms. Brooks conducted over a 11 dozen witness interviews, including with B.K. and Mr. Fleetwood. As part of her 12 investigation, Ms. Brooks interviewed numerous witnesses provided by B.K.— 13 however, when Ms. Brooks asked Mr. Fleetwood if he would like to recommend 14 witnesses to interview, he declined, stating it would be “hard to find an unbiased 15 person in the program.” 16 On June 13, 2019, Ms. Brooks issued her OEO Investigation Report, which 17 recommended that WSU find Mr. Fleetwood responsible for violating Executive 18 Policy 15. 19 Plaintiffs allege multiple improprieties regarding Ms. Brooks’ investigation. 20 Specifically, Plaintiffs argue that Ms. Brooks (1) interviewed witnesses about 21 instances of Mr. Fleetwood’s conduct outside the scope of B.K.’s initial complaint, 22 specifically regarding a September 2017 Snapchat video Mr. Fleetwood sent to 23 others which depicted himself having sex; (2) did not inform Mr. Fleetwood of this 24 change in the focus of the investigation; (3) did not tell Mr. Fleetwood that he 25 could refuse to answer any questions and that these refusals would not be held 26 against him; (4) made inconsistent credibility determinations regarding key 27 witnesses (i.e., found that some of a witness’s allegations were unsubstantiated, but 28 1 found the witness credible overall); (5) did not recall discussing whether any of 2 Mr. Fleetwood’s statements were protected by the First Amendment; (6) told Mr. 3 Fleetwood not to delete any electronic communication or contact any other 4 witnesses, but did not instruct B.K. to do the same; (7) asked Mr. Fleetwood about 5 his prior sexual history, despite testifying that OEO does not take a student’s 6 consensual sexual history into consideration when determining responsibility; and 7 (8) when sending the Investigation Report, told B.K. that “should this matter 8 proceed to a formal administrative hearing, your participation is important to that 9 process” and that her “[l]ack of participation may have an impact on the outcome.” 10 Plaintiffs also argue that, of the nine cases Ms. Brooks investigated at OEO 11 where a woman accused a man of engaging in sexual harassment, Ms. Brooks 12 found in favor of the woman accuser every time except for one. Similarly, 13 Plaintiffs note that, of the ten cases Ms. Finnestead investigated at OEO where a 14 woman accused a man of engaging in sexual harassment, Ms. Finnestead found in 15 favor of the woman every time except for one. Plaintiffs contrast this against Mr. 16 Records’ testimony that, on average, OEO finds no violation of a university policy 17 50-60% of the time in sexual harassment cases. 18 IV. The Center for Community Standards’ Finding that Mr. Fleetwood Violated 19 Executive Policy 15 20 Pursuant to Executive Policy 15, after OEO issues its Investigative Report, it 21 forwards its report, witness interviews, and documentary evidence to WSU’s 22 Center for Community Standards. The Center for Community Standards is 23 responsible for reviewing the evidence and making the official determination 24 regarding (1) whether a student has violated a university policy; and (2) if so, what 25 sanctions should be imposed. 26 The Center for Community Standards can proceed through one of two 27 adjudication processes. First, the Center for Community Standards can proceed 28 1 through a Conduct Officer hearing, which is generally a one-hour conversation 2 between the student and a Conduct Officer from WSU. The student is permitted to 3 invite an advisor to their Conduct Officer hearing and consult with them during 4 breaks—however, the advisor is not permitted to speak for the student at the 5 hearing. Attending the hearing is optional for the student. If the student attends, 6 they and the Conduct Officer review the evidence in the record and discuss the 7 reported incident and possible outcomes. If the student does not attend, the 8 Conduct Officer simply makes the decision based on the submitted materials. After 9 the hearing, the Conduct Officer can: (1) find the student not responsible; (2) 10 dismiss the reported incident (i.e., does not find the student responsible or not 11 responsible, but instead allows review of the incident to continue and be re-opened 12 at a later date); (3) determine that more investigation is necessary before a decision 13 can be made; (4) refer the matter to the Conduct Board; or (5) find the student 14 responsible and impose educational or disciplinary sanctions. A Conduct Officer 15 cannot impose sanctions such as suspension, expulsion, and/or revocation of 16 degrees or university recognition. 17 Alternatively, the Center for Community Standards can proceed through a 18 Conduct Board hearing, which is a more formal adjudication process. The Conduct 19 Board hearing includes at least five Conduct Board members and generally lasts 20 several hours. The accused student can choose to have a legal representative speak 21 on their behalf at the hearing and can also invite an advisor to consult with during 22 breaks. An accused student at a Conduct Board hearing also has the right to cross 23 examine witnesses. At the end of the hearing, the Conduct Board can: (1) find the 24 student not responsible; (2) dismiss the reported incident; or (3) find the student 25 responsible and impose educational and disciplinary sanctions. In order to find 26 responsibility and impose sanctions, a majority of the Conduct Board must agree, 27 28 1 unless the sanction involves expulsion or revocation of degrees or university 2 recognition, in which case it requires a supermajority. 3 Here, upon receiving and reviewing the OEO Investigation Report, the 4 Center for Community Standards notified Mr. Fleetwood that he may have violated 5 Executive Policy 15 and that it would schedule a Conduct Officer hearing (not a 6 formal Conduct Board hearing) to address the allegations against him. Mr. 7 Fleetwood’s Conduct Officer hearing was originally scheduled for October 21, 8 2019, but was postponed to October 29, 2019 at his request. Mr. Fleetwood 9 attended his Conduct Officer hearings on October 29, 2019, and December 5, 10 2019. Karen Metzner, the Director of the Center for Community Standards, served 11 as Mr. Fleetwood’s Conduct Officer. 12 On December 16, 2019, Ms. Metzner issued a letter notifying Mr. Fleetwood 13 that, after considering all the evidence in Mr. Fleetwood’s conduct file and the 14 information he provided, she was finding him responsible for violating Executive 15 Policy 15. Specifically, Ms. Metzner found that Mr. Fleetwood had engaged in 16 sexual harassment by (1) sending unwanted pictures of himself in a towel to other 17 ROTC cadets; (2) sending unwanted sexual videos to ROTC cadets via Snapchat; 18 and (3) making sexual comments about B.K. to other cadets. 19 As a result of the finding, Mr. Fleetwood was tasked with the following 20 sanctions: (1) creating an action plan; (2) writing a reflection paper on the #metoo 21 movement and community repair; (3) being put on disciplinary probation; (4) 22 enrolling in a state-approved alcohol and drug information school; (4) obeying a no 23 contact directive; and (5) having an enrollment hold on his degree until he 24 completed these other sanctions. At the end of the letter, the Center for Community 25 Centers notified Mr. Fleetwood that he had twenty-one calendar days to appeal the 26 decision to the University Appeals Board. 27 28 1 Plaintiffs also allege multiple improprieties regarding Ms. Metzner’s 2 decision. Specifically, Plaintiffs argue that Ms. Metzner (1) could not identify a 3 time where she disagreed with OEO’s recommended findings on either 4 responsibility or sanctions; (2) did not give Mr. Fleetwood the opportunity to 5 utilize the Conduct Board process, even though he told her that ROTC might 6 remove him from the program based on the decision of the conduct process; (3) 7 discussed Mr. Fleetwood’s case with Ms. Brooks, even though this was outside the 8 norm for a Conduct Officer to discuss ongoing investigations with OEO 9 investigators; (4) had two off-the-record conversations—first with Ms. Brooks on 10 June 13, 2019 (the day Ms. Brooks sent the OEO Investigation Report to the 11 Center for Community Standards), and second with B.K. sometime in late 12 September or early October 2019; and (5) did not investigate or seriously consider 13 the evidence Mr. Fleetwood provided to support his own defense and did not 14 address his concerns regarding the flaws in Ms. Brooks’ investigation. Plaintiffs 15 also argue that, of the four cases Ms. Metzner has adjudicated where a woman 16 accused a man of engaging in sexual harassment, Ms. Metzner found in favor of 17 the woman each time. 18 V. The University Appeals Board’s Agreement that Mr. Fleetwood Violated 19 Executive Policy 15 20 On January 5, 2020, Mr. Fleetwood appealed the Center for Community 21 Standards’ December 16, 2019 finding to WSU’s University Appeals Board. In his 22 appeal letter, Mr. Fleetwood noted the many procedural flaws he perceived in his 23 case, such as (1) Ms. Brooks’ reliance on witnesses with easily verifiable 24 credibility/bias issues; (2) Ms. Metzner’s failure to address the flawed nature of 25 Ms. Brooks’ investigation; (3) WSU’s failure to provide Mr. Fleetwood with full 26 access to investigation records; (4) the lack of evidence substantiating B.K.’s 27 28 1 allegations; and (5) the addition of evidence, such as the 2017 Snapchat video, that 2 was outside the scope of B.K.’s complaint. 3 On February 12, 2020, the University Appeals Board convened to consider 4 Mr. Fleetwood’s appeal. A University Appeals Board is made up of three 5 members, one of which is designated as Chair and is tasked with ensuring the 6 accused student receives a fair and impartial process. Here, Mr. Fleetwood was 7 originally notified that TJ Page, Olivia Shoesmith, and Riley Guttromson would 8 serve on his Appeals Board with TJ Page serving as Chair. 9 When considering an appeal, the University Appeals Board reviews all of 10 the evidence in the Center for Community Standards case file, as well as any 11 appeals materials submitted by the parties. However, the Appeals Board does not 12 hear testimony and does not allow the parties to attend the meeting. 13 On February 21, 2020, the University Appeals Board sent Mr. Fleetwood a 14 letter, notifying him that it was affirming the Center for Community Standards’ 15 decision. The University Appeals Board noted that it had considered (1) whether 16 the Conduct Officer’s hearing was conducted fairly and in conformity with 17 prescribed procedures; (2) whether the decision was based on substantial 18 information which was sufficient to support a violation of the university policy; (3) 19 whether the sanctions were appropriate, given the violation; and (4) whether there 20 existed any new information sufficient to alter the decision that was not known to 21 the Conduct Officer at the time of the original hearing. 22 However, Plaintiffs once again point out what they perceive to be 23 improprieties in the appeals process. These include (1) the University Appeals 24 Board not providing any specific details or reasoning in their decision letter; (2) the 25 Appeals Board changing the Chair from TJ Page to Olivia Shoesmith without 26 explanation; (3) the Appeals Board not following WSU’s Procedural Guidelines 27 for Executive Policy 15 violations, specifically by not including the listed 28 1 rationales/documents with their decision letter; and (4) Ms. Metzner not 2 forwarding Mr. Fleetwood’s character witness letters to the Appeals Board. 3 VI. ROTC’s Disenrollment Hearings for Mr. Fleetwood 4 On July 26, 2019, the Army notified Mr. Fleetwood that it was initiating his 5 disenrollment from ROTC. The Army told Mr. Fleetwood that he was entitled to a 6 hearing before an Army Disenrollment Board prior to the Army making a 7 disenrollment decision—Mr. Fleetwood thus requested a disenrollment hearing. 8 Mr. Fleetwood’s disenrollment hearing was originally scheduled for October 9 11, 2019. The Army told Mr. Fleetwood that the purpose of the hearing was to 10 determine whether the evidence reasonably established, by a preponderance of the 11 evidence, the following issues: (1) whether a valid ROTC contract existed between 12 Mr. Fleetwood and the Army; (2) whether Mr. Fleetwood had breached any of the 13 terms of the contract and, if so, how; (3) whether Mr. Fleetwood received 14 advanced educational assistance from the U.S Government in the amount of 15 $32,617.63 while enrolled in ROTC, which would constitute a valid debt to the 16 United States; (4) whether there were grounds for his disenrollment in accordance 17 with Army Regulation 145-1, paragraph 3-43a(14), i.e., undesirable character as 18 demonstrated by a violation of WSU Executive Policy 15; (5) whether the U.S. 19 Government should recoup the amount of indebtedness or instead order repayment 20 via enlisted active duty; and (6) if enlisted active duty was appropriate, whether 21 Mr. Fleetwood should repay in whole or incur partial forgiveness for the resulting 22 debt. The Army also told Mr. Fleetwood that he could submit written statements 23 and witnesses for the hearing to aid the Disenrollment Board in making its 24 decision. 25 Mr. Fleetwood requested that his disenrollment hearing be postponed so he 26 could have more time to review documents and prepare his case. Thus, the Army 27 moved Mr. Fleetwood’s disenrollment hearing to December 9, 2019. 28 1 At the December 9, 2019 disenrollment hearing, the Army Disenrollment 2 Board—which consisted of three appointed commissioned officers—heard 3 testimony from ROTC cadets (including Mr. Fleetwood); reviewed exhibits and 4 sworn statements from witnesses involved in the case; and reviewed other 5 materials from Mr. Fleetwood’s file (character letters submitted on his behalf, 6 awards he had received, and peer evaluation reports from the ROTC). At the 7 hearing, Mr. Fleetwood admitted that he had sent the Snapchat video of himself 8 having sex, as well as a picture of himself shirtless and in a towel to male and 9 female cadets. 10 On December 17, 2019, the Army Disenrollment Board recommended that 11 Mr. Fleetwood be disenrolled from ROTC for breach of contract. Specifically, the 12 Board stated that this decision was based on Mr. Fleetwood’s undesirable conduct, 13 specifically his sending of explicit photos/videos and showing other cadets naked 14 and inappropriate photos of women. 15 On August 13, 2020, the Headquarters of the Army notified Mr. Fleetwood 16 that it was disenrolling and discharging him from ROTC pursuant to Army 17 Regulation 145-1. The Headquarters of the Army also notified Mr. Fleetwood that 18 he would be responsible for repaying the $32,617.63 he had received in 19 educational assistance and denied his request to contribute towards repayment 20 through enlisted active duty. 21 Procedural History 22 Plaintiffs Patrick Fleetwood and Michael Fleetwood (Mr. Fleetwood’s 23 father) filed a complaint in the Whitman County Superior Court in March 2020. 24 ECF No. 5 at 6. Plaintiffs alleged that WSU’s Appeals Board decision—affirming 25 the Center for Community Standards’ December 16, 2019 determination that Mr. 26 Fleetwood’s actions violated WSU Executive Policy 15—was a misapplication of 27 the law and was not supported by substantial evidence, thereby violating the 28 1 Washington Administrative Procedure Act (“state APA”). Id. at 10-21. Plaintiffs 2 also alleged that WSU’s denial of their public records requests and failure to 3 provide Mr. Fleetwood access to his investigative file violated the Washington 4 Public Record Act. Id. at 21-23. WSU filed both its Answer and a Motion to 5 Dismiss Count One of Plaintiff’s Complaint on April 2, 2020. Id. at 33, 42. 6 The state court denied WSU’s Motion to Dismiss on May 7, 2020. Id. at 94- 7 95. The state court then issued an Administrative Scheduling Order on May 12, 8 2020. Id. at 96-97. On June 30, 2020, Ms. Metzner filed the certified agency record 9 with the state court. Id. at 111. On July 31, 2020, Plaintiffs filed their Opening 10 Brief. Id. at 448. But on August 19, 2020, Plaintiffs filed a Motion to Amend their 11 complaint to add additional claims, including First Amendment, Fourteenth 12 Amendment, Title IX, Washington Law Against Discrimination (“WLAD”) gender 13 discrimination, and tortious interference with contract claims. Id. at 483-488. The 14 state court granted the Motion to Amend on September 2, 2020. Id. at 577. WSU 15 filed its Response Brief on September 21, 2020, and its Answer to Plaintiffs’ 16 Amended Complaint on October 5, 2020. Id. at 612-34, 637. Finally, on October 2, 17 2020, WSU filed a Notice of Removal of the case to this Court. Id. at 667; see also 18 ECF No. 1. 19 On October 26, 2020, Plaintiffs filed a Motion to Remand, primarily on the 20 grounds of Younger abstention. ECF No. 7. On January 21, 2021, the Court denied 21 the motion to remand the case, stating that Younger abstention was not appropriate 22 because there was no longer an ongoing state proceeding post-removal. ECF No. 23 11. Thus, on March 5, 2021, Plaintiffs filed a motion requesting that the Court rule 24 on their pending state APA claim. ECF No. 23. However, on May 19, 2021, after 25 reviewing the submitted materials, the Court declined to exercise supplemental 26 jurisdiction and instead remanded the state APA claim back to state court. ECF No. 27 29. 28 1 On September 29, 2021, Judge Gary Libey of the Whitman County Superior 2 Court held a hearing on Plaintiffs’ state APA claim. After hearing argument from 3 both parties, Judge Libey found that WSU had violated the Washington 4 Administrative Procedure Act when it found that Mr. Fleetwood had violated 5 Executive Policy 15. First, Judge Libey stated that the University Appeals Board’s 6 failure to consider the three character witness letters Mr. Fleetwood submitted to 7 Ms. Metzner was sufficient in and of itself to make WSU’s decision arbitrary and 8 capricious. Second, Judge Libey stated that, while he was “not making separate 9 findings of facts, conclusions of law . . . [or] particularly weighing the evidence,” 10 he believed that “Mr. Fleetwood present[ed] a very compelling argument . . . that 11 he did not commit sexual harassment and that he did not commit retaliation, and 12 that even the totality of the circumstances doesn’t come up to the definition of 13 sexual harassment under the new EP 15 definition as it is based in the code.” 14 Finally, Judge Libey concluded by stating that “although it’s a close call,” he found 15 that the evidence in the record did not support WSU’s decision that Mr. Fleetwood 16 had violated Executive Policy 15. 17 On January 25, 2022, WSU filed the present Motion for Summary Judgment 18 in this Court, seeking to dismiss Plaintiffs’ First Amendment, Fourteenth 19 Amendment, Title IX, WLAD gender discrimination, and tortious interference 20 with contract claims. ECF No. 32. Plaintiffs filed their response on February 11, 21 2022, indicating that they were withdrawing their First Amendment and Fourteenth 22 Amendment claims. ECF No. 37. 23 However, on February 11, 2022, Plaintiffs also filed a Motion to Exclude 24 Dan Patterson, who submitted a declaration in support of WSU’s Motion for 25 Summary Judgment. ECF No. 41; see also ECF No. 36. Specifically, Plaintiffs 26 argued that Mr. Patterson’s declaration violated Fed. R. Civ. P. 26 because WSU 27 had not disclosed Mr. Patterson as a witness in its initial disclosures. WSU in 28 1 response argued that Mr. Patterson was merely a records custodian and thus his 2 nondisclosure was harmless, especially given that Mr. Fleetwood had been given 3 all of the records included in Mr. Patterson’s declaration. 4 On March 3, 2022, the Court issued an Order Denying Plaintiffs’ Motion to 5 Exclude Dan Patterson. ECF No. 49. However, after holding a hearing with both 6 parties, the Court permitted Plaintiffs’ counsel to depose Mr. Patterson prior the 7 Court ruling on WSU’s Motion for Summary Judgment. The Court also allowed 8 Plaintiffs to submit any supplemental briefing associated with Mr. Patterson’s 9 declaration and deposition. ECF Nos. 50, 53. 10 The parties submitted their supplemental briefing regarding Mr. Patterson on 11 April 25, 2022 and May 3, 2022. ECF Nos. 57, 59. Jury trial in this case is 12 currently scheduled for March 20, 2023. ECF No. 56. 13 Dan Patterson’s Declaration 14 As a threshold matter, the Court must determine whether Dan Patterson’s 15 Declaration, ECF No. 36, can be considered when ruling on WSU’s Motion for 16 Summary Judgment. 17 In Mr. Patterson’s declaration, he states that he has been the Director of 18 Operations for the 8th ROTC Brigade (US Army Cadet Command) at Joint Base 19 Lewis-McChord, Washington, for 10 years. ECF No. 36. Additionally, Mr. 20 Patterson states that, in this position, he is “responsible for public records released 21 from 8th Brigade, Cadet Command through the disclosure process, including in 22 response to discovery in civil and criminal cases and in response to a subpoena 23 duces tecum. While Cadet Records are maintained at the school location, when 24 requests for official records are received, the school programs provide [him] the 25 requested documents which [he] vet[s] with the Cadet Command Office of the 26 Staff Judge Advocate (Fort Knox, KY), and upon their approval[,] release to the 27 requestor.” 28 1 Attached to Mr. Patterson’s declaration are twelve records: (1) Mr. 2 Fleetwood’s ROTC Scholarship Cadet Contract dated January 21, 2016; (2) Mr. 3 Fleetwood’s U.S. Army Advanced Education Financial Assistance Record dated 4 July 25, 2019; (3) a memorandum to Mr. Fleetwood from WSU ROTC regarding 5 his Notification of Disenrollment dated July 26, 2019; (4) the Report of Mr. 6 Fleetwood’s Disenrollment Proceedings by Board of Officers dated December 9, 7 2019; (5) the Formal Board Findings and Recommendations regarding Mr. 8 Fleetwood’s disenrollment dated December 17, 2019; (6) a memorandum to Mr. 9 Fleetwood from the Army regarding his disenrollment from ROTC dated August 10 19, 2020; (7) the Addendum to Part 1 of Mr. Fleetwood’s Scholarship Contractual 11 Agreement dated August 19, 2020: (8) a memorandum to Mr. Fleetwood notifying 12 him of the appointment of the Board of Officers for his disenrollment hearing 13 dated September 17, 2019; (9) a letter from Mr. Fleetwood to LTC Stafford dated 14 October 2, 2019; (10) emails between Mr. Fleetwood and LTC Stafford, the most 15 recent of which is dated October 10, 2019; (11) the Addendum to Part II of Mr. 16 Fleetwood’s Cadet Contract dated August 15, 2019; and (12) a memorandum for 17 Institutional Representative Donald Holbrook regarding Determination of 18 University Representative – Determination of Suitability for Retention in the Army 19 dated September 18, 2019. 20 Plaintiffs argue that Mr. Patterson is not a custodian of records or an 21 otherwise qualified witness sufficient to satisfy Fed. R. Evid. 803(6) and therefore 22 the records attached to his declaration are inadmissible pursuant to the business 23 record exception to the hearsay rule. WSU in response argues that (1) Mr. 24 Patterson is a qualified witness sufficient to satisfy FRE 803(6); and (2) the records 25 attached to Mr. Patterson’s declaration are admissible because they were produced 26 in response to a subpoena. 27 // 28 1 Legal Standard 2 When ruling on a motion for summary judgment, a district court can only 3 consider admissible evidence. Fed. R. Civ. P. 56(c)(2); Orr v. Bank of Am., 285 4 F.3d 764, 773 (9th Cir. 2002). Unauthenticated documents and hearsay evidence 5 that do not qualify for an exception are inadmissible and, consequently, may not be 6 considered on summary judgment. Orr, 285 F.3d at 773-74, 778. 7 FRE 803(6) is the business record exception to hearsay. It states that “a 8 record of an act, event, condition, opinion, or diagnosis” is admissible if: 9 (A) The record was made at or near the time by—or from 10 information transmitted by—someone with knowledge; 11 (B) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, 12 whether or not for profit; 13 (C) Making the record was a regular practice of that activity; (D) All these conditions are shown by the testimony of the 14 custodian or another qualified witness, or by a certification that 15 complies with Rule 902(11) or (12) or with a statute permitting certification; and 16 (E) The opponent does not show that the source of information or 17 the method or circumstances of preparation indicate a lack of trustworthiness. 18
19 20 Here, Plaintiffs do not appear to be disputing that the records attached to Mr. 21 Patterson’s declaration satisfy requirements (A) – (C) of 803(6). Instead, Plaintiffs 22 are disputing requirement (D), arguing that Mr. Patterson is not a qualified witness 23 regarding the submitted records. 24 The Ninth Circuit has stated the role of the FRE 803(6)(D) custodian or 25 qualified witness is to “testify to the methods of keeping the information.” N.L.R.B. 26 v. First Termite Control Co., 646 F.2d 424, 427 (9th Cir. 1981). More specifically, 27 the custodian or qualified witness must have sufficient knowledge of “the manner 28 1 in which the records are made and kept” such that they can “be subjected to 2 meaningful cross-examination.” Id. Otherwise, “[w]ithout cross-examination on 3 the keeping of the records, the trier of fact would have no rational basis on which 4 to evaluate the accuracy of the record, and therefore the trustworthiness of the 5 evidence.” Id. 6 However, the Ninth Circuit has also stated that the phrase “other qualified 7 witness” has been “broadly interpreted to require only that the witness understand 8 the record-keeping system,” not necessarily that they be an employee of the 9 business or someone with knowledge of how the records were made or maintained. 10 United States v. Ray, 930 F.2d 1368, 1370 (9th Cir. 1990); ABS Ent., Inc. v. CBS 11 Corp., 908 F.3d 405, 426 (9th Cir. 2018). Additionally, “[i]t is unimportant under 12 Fed. R. Evid. 803(6) that the custodian did not herself record the information or 13 know who recorded the information.” United States v. Basey, 613 F.2d 198, 202 14 n.1 (9th Cir. 1979). 15 Finally, the Ninth Circuit has insinuated that, if there are other indicia that 16 the accuracy of the records is not contested (i.e., the party challenging the 17 admissibility of the records has relied on them outside of litigation), this may 18 support the admissibility of the records, even if the qualified witness does not have 19 perfect knowledge of every aspect of the record-keeping system. See ABS Ent., 20 Inc., 908 F.3d at 426 (“Here, CBS itself relied on the reports to establish its royalty 21 payments to Sound Exchange in the ordinary course of business . . . . CBS has 22 presented no evidence or argument showing that the Triton Reports were unreliable 23 or inaccurate.”). 24 Discussion 25 Mr. Patterson is a qualified witness under FRE 803(6)(D) for the records 26 submitted to his declaration. 27 // 28 1 First, Mr. Patterson’s deposition testimony shows that he has an 2 understanding of the record keeping system used by WSU ROTC and the Army to 3 create and maintain the submitted records. Mr. Patterson testified that the 4 submitted records came from “the ACA system. It’s just a reposit . . . . It’s some 5 type of an Automated Cadet Action system where universities can input, scan them 6 at their level.” Patterson Dep., ECF No. 60 at 41:1-7. Additionally, when Mr. 7 Patterson was asked “is it typical for university ROTC to submit documents 8 through that system regarding their cadets?”, Mr. Patterson replied “daily.” Id. at 9 41:14-16. 10 Mr. Patterson’s deposition testimony also demonstrates his knowledge 11 regarding the manner in which the records are made and kept. For example, he 12 testified that a cadet’s file in the ACA system would consist of “training records, 13 his academic records, the evaluation, counseling records . . . . Basically, it’s a 14 training file, academic file how you’re tracking. Later on it would have their 15 summer camp records and how well they performed at the ROTC summer camp, 16 which is now held at Fort Knox, Kentucky, used to be from Fort Lewis. And then 17 information about their choice, if they were going active duty is they would file 18 what branch it served. Their personnel file.” Id. at 12:3-14. 19 He also testified that this personnel file containing a cadet’s records is 20 created for “[e]very cadet once a contractor” and that—for cadets who were 21 receiving scholarships from ROTC, such as Mr. Fleetwood—“there is a record 22 created on every cadet when they contract because they have to take a physical, 23 their medical records are in there, their contract is in there, their pay records is in 24 there. Again, we are paying them to go to school and so then everything else, once 25 you’re done—once you’re contracted a copy of your transcripts go in, counseling, 26 those are a personnel file is created.” Id. at 43:17, 43:22-25, 44:1-3. 27 28 1 Finally, Mr. Patterson testified that any records “being used for a cadet 2 action,” “request for scholarship, request for a leave of absence, a Disenrollment 3 Board” would be put into a cadet’s personnel file in the ACA system. Id. at 43:2-7. 4 He estimated that he probably receives “five of these a week – maybe three or four 5 a week” of requests for records from the ACA system for disenrollment actions. Id. 6 at 12:17-25. 7 These portions of his deposition testimony demonstrate that Mr. Patterson 8 has sufficient knowledge of the manner in which the submitted records were made 9 and kept. Thus, the Court finds that Mr. Patterson is a qualified witness under FRE 10 803(6)(D) and therefore will consider Mr. Patterson’s declaration in ruling on 11 WSU’s Motion for Summary Judgment.1 12 WSU’s Motion for Summary Judgment 13 WSU requests that the Court grant summary judgment in its favor on all of 14 Plaintiffs’ claims except for the Washington Public Record Act claim. Specifically, 15 WSU seeks summary judgment dismissal on Plaintiffs’ Title IX, WLAD gender 16 discrimination, and tortious interference with contract claims. WSU argues that 17 there is no genuine dispute of material fact on these claims because there is a “total 18 lack of evidence that anyone at the University had any gender discriminatory 19 20
21 1 The Court concedes that there are portions of Mr. Patterson’s deposition 22 testimony which show his less-than-perfect understanding of all aspects of the 23 record-keeping system. However, based on the Ninth Circuit’s broad interpretation 24 of who constitutes a qualified witness under FRE 803(6)(D), Mr. Patterson has 25 demonstrated sufficient knowledge to cross the threshold. Moreover, Plaintiffs are 26 not substantially challenging the accuracy of records submitted as part of Mr. 27 Patterson’s declaration. 28 1 animus against him and that the University did not interfere with Fleetwood’s 2 ROTC contract with the Army.” ECF No. 32 at 2-3. 3 Plaintiffs in response argue that there are disputes of material fact, 4 specifically regarding (1) whether WSU’s decision to find Mr. Fleetwood 5 responsible for violating Executive Policy 15 was an erroneous outcome; (2) 6 whether this erroneous outcome was due to gender bias in WSU’s student conduct 7 process; (3) whether WSU engaged in disparate treatment based on gender bias; 8 and (4) whether WSU’s decision to initiate the student conduct process was based 9 on gender bias. ECF No. 37. 10 Legal Standard 11 Summary judgment is appropriate “if the movant shows that there is no 12 genuine dispute as to any material fact and the movant is entitled to judgment as a 13 matter of law.” Fed. R. Civ. P. 56(a). There is no genuine issue for trial unless 14 there is sufficient evidence favoring the non-moving party for a jury to return a 15 verdict in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 16 (1986). The moving party has the initial burden of showing the absence of a 17 genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 18 If the moving party meets its initial burden, the non-moving party must go beyond 19 the pleadings and “set forth specific facts showing that there is a genuine issue for 20 trial.” Anderson, 477 U.S. at 248. 21 In addition to showing there are no questions of material fact, the moving 22 party must also show it is entitled to judgment as a matter of law. Smith v. Univ. of 23 Wash. Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000). The moving party is entitled 24 to judgment as a matter of law when the non-moving party fails to make a 25 sufficient showing on an essential element of a claim on which the non-moving 26 party has the burden of proof. Celotex, 477 U.S. at 323. The non-moving party 27 28 1 cannot rely on conclusory allegations alone to create an issue of material fact. 2 Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). 3 When considering a motion for summary judgment, a court may neither 4 weigh the evidence nor assess credibility; instead, “the evidence of the non-movant 5 is to be believed, and all justifiable inferences are to be drawn in his favor.” 6 Anderson, 477 U.S. at 255. 7 Discussion 8 1. Title IX claim 9 WSU requests that the Court grant summary judgment in its favor and 10 dismiss Plaintiffs’ Title IX claim. Specifically, WSU argues that Plaintiffs have not 11 created a genuine dispute of material fact regarding whether WSU discriminated 12 against Mr. Fleetwood on the basis of his gender. 13 Plaintiffs in response that there is a genuine dispute of material fact 14 regarding whether WSU discriminated against Mr. Fleetwood on the basis of his 15 gender, specifically as evidenced by (1) the Whitman County Superior Court’s 16 order finding WSU’s decision arbitrary and capricious; (2) the statistical evidence 17 regarding the outcome of sexual harassment investigations conducted by Ms. 18 Brooks and Ms. Finnestead; (3) the disparate treatment of B.K. and Mr. Fleetwood 19 during the student conduct process; (4) Ms. Brooks ignoring B.K.’s “gender- 20 biased” statements and unfounded allegations; and (5) other procedural 21 irregularities and indications of gender bias on the part of Ms. Brooks and Ms. 22 Finnestead. 23 To state a Title IX claim, a plaintiff must show that (1) the defendant 24 educational institution receives federal funding; (2) they were excluded from 25 participation in, denied the benefits of, or subjected to discrimination under any 26 education program or activity; and (3) the exclusion/denial/discrimination occurred 27 on the basis of gender. Schwake v. Arizona Bd. of Regents, 967 F.3d 940, 946 (9th 28 1 Cir. 2020). Title IX bars the imposition of university discipline where gender is a 2 motivating factor in the decision to discipline. Id. (internal quotation and citation 3 omitted). 4 Previously, the Ninth Circuit had acknowledged the existence of distinct 5 doctrinal claims under Title IX, such as “erroneous outcome” or “selective 6 enforcement” claims. However, in 2020, the Ninth Circuit clarified that all Title IX 7 claims would be analyzed under the same standard: “whether the alleged facts, if 8 true, raise a plausible inference that the university discriminated against the 9 plaintiff on the basis of sex.” Id. at 947 (internal quotation and citation omitted). 10 The Ninth Circuit also recently clarified that it “construe[s] Title IX’s 11 protections consistently with those of Title VII.” Doe v. Snyder, 28 F.4th 103, 114 12 (9th Cir. 2022). Thus, the Court applies the same McDonnell Douglas standard to 13 Plaintiffs’ Title IX claim as it would to a motion for summary judgment for a Title 14 VII claim. 15 Under the McDonnell Douglas standard, the plaintiff bears the initial burden 16 of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. 17 Green, 411 U.S. 792 (1973). Once the plaintiff has done so, the burden shifts to the 18 defendant to articulate a legitimate, nondiscriminatory reason for its actions. Id. If 19 the employer articulates a legitimate reason, the plaintiff must raise a triable issue 20 that the employer’s proffered reason is pretext for unlawful discrimination. Id.; see 21 also Austin v. Univ. of Oregon, 925 F.3d 1133, 1136 (9th Cir. 2019) (“The 22 [McDonnell Douglas] framework is a tool to assist plaintiffs at the summary 23 judgment stage so that they may reach trial.”) (internal quotation and citation 24 omitted). 25 The Court grants WSU’s motion as to Plaintiffs’ Title IX claim. Plaintiffs 26 have not created a dispute of material fact regarding (1) whether any of the alleged 27 procedural flaws in WSU’s student conduct process were related to gender bias; 28 1 and/or (2) whether any of the actions taken by the individuals involved in Mr. 2 Fleetwood’s student conduct process were motivated by gender bias. 3 Plaintiffs present several categories of evidence which they argue illustrate 4 WSU’s gender bias against Mr. Fleetwood. First, Plaintiffs argue that there is 5 “statistical evidence of gender bias,” specifically that Ms. Brooks, Ms. Finnestead, 6 and Ms. Metzner almost always find in favor of women in sexual harassment 7 cases. ECF No. 37 at 6. However, this fact, standing alone, is insufficient to 8 demonstrate gender bias. Additionally, Plaintiffs have provided no corresponding 9 statistics about whether Ms. Brooks, Ms. Finnestead, and Ms. Metzner have 10 refused to find in favor of a male accuser in sexual harassment cases. See, e.g., 11 Austin, 925 F.3d at 1138 (“The student athletes . . . allege that, because the 12 University disciplines male students for sexual conduct but never female students, 13 it is biased against men. But this allegedly disparate impact, even assuming it is 14 true, claims too much. Significantly, the complaint does not claim that any female 15 University students have been accused of comparable misconduct, and thus fails to 16 allege that similarly situated students—those accused of sexual misconduct—are 17 disciplined unequally.”). 18 Second, Plaintiffs argue that the disparate treatment of B.K. compared to Mr. 19 Fleetwood during the student conduct process is evidence of gender bias. ECF No. 20 37 at 6-11. Specifically, Plaintiffs state that Ms. Brooks (1) told Mr. Fleetwood not 21 to delete electronic communication or to contact/influence witnesses; and (2) 22 faulted Mr. Fleetwood for interfering with the student conduct process by reaching 23 out to witnesses—but conversely, Ms. Brooks did not advise B.K. of the same 24 things and did not admonish B.K. when she deleted electronic communication or 25 contacted witnesses. Additionally, Plaintiffs argue that Ms. Brooks (1) highlighted 26 Mr. Fleetwood’s inconsistent answers over the course of the investigation, but 27 ignored B.K.’s inconsistent/inaccurate allegations; (2) ignored B.K.’s motivations 28 1 for making the complaint, as well as her gender-biased statements against men 2 (i.e., that Mr. Fleetwood was a “male whore who slept with 30 women in a 3 semester”; that all men are “assholes,” “fuck boys,” “dickheads,” “thirsty,” or 4 “flexing their testosterone”; and that she was “losing faith in men real quick”); (3) 5 gave limited weight to statements in support of Mr. Fleetwood’s character; and (4) 6 allowed B.K. to modify her statements in the original complaint given to Mr. 7 Fleetwood to be less specific and to contain less direct quotes. 8 Under the McDonnell Douglas analysis—and construing the facts in the 9 light most favorable to Plaintiffs—this evidence of disparate treatment is sufficient 10 to create a prima facie case of gender discrimination. However, the Court still 11 grants WSU’s motion because (1) WSU has offered a legitimate, 12 nondiscriminatory reason for finding Mr. Fleetwood responsible for violating 13 Executive Policy 15; (2) Plaintiffs have not presented any evidence that WSU’s 14 disciplinary actions were pretext for gender discrimination; and (3) Plaintiffs have 15 not presented any evidence that any disparate treatment of B.K. compared to Mr. 16 Fleetwood was motivated by gender bias and/or resulted in an erroneous outcome. 17 First, WSU offered a sufficiently legitimate and nondiscriminatory reason 18 for its finding that Mr. Fleetwood violated Executive Policy 15—namely, that it 19 had evidence that Mr. Fleetwood had sent sexual videos and photos to non- 20 consenting recipients. Such conduct fits squarely into the examples of unwelcome 21 sexual conduct sufficient to create a hostile environment in Executive Policy 15 22 (e.g., display of pictures with sexual content; uninvited correspondence depicting 23 sexual activities). 24 Additionally, Plaintiffs have not presented any evidence that any of the 25 flaws in Ms. Brooks’ investigative practices were motivated by gender bias or that 26 WSU’s decision to find Mr. Fleetwood responsible for violating Executive Policy 27 15—which only happened after two more levels of review by the Center for 28 1 Community Standards and the University Appeals Board—was pretext for gender 2 discrimination. See Austin, 925 F.3d at 1138 (“[T]he student athletes do not 3 articulate any basis to discern that the administration or outcomes of the 4 disciplinary proceedings were flawed due to the student athletes’ sex. Even if the 5 outcome of the administrative conference procedure was erroneous, the complaint 6 is missing any factual allegations that show that sex discrimination was the source 7 of any error.”) (internal citation omitted). 8 Finally, the U.S. Supreme Court has stated that, in the context of Title IX, 9 “courts should refrain from second-guessing the disciplinary decisions made by 10 school administrators.” Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of 11 Educ., 526 U.S. 629, 648 (1999). Thus, the Court concludes that Plaintiffs’ 12 provided examples of disparate treatment between B.K. and Mr. Fleetwood are 13 insufficient to create a dispute of material fact regarding gender discrimination. 14 Third, Plaintiffs argue that the investigators on Mr. Fleetwood’s student 15 conduct case were gender biased. For example, Plaintiffs argue that Ms. Finnestead 16 “has a history of working with female domestic violence victims, served on WSU’s 17 Vagina Monologues production team, served on WSU’s commission on the status 18 of women, hosted ‘FEMPowerment’ lunches at WSU” and “bears guilt for 19 previously blaming a high school friend for being sexually assaulted.” ECF No. 37 20 at 7. However, these do not constitute examples of gender bias. By making such an 21 argument, Plaintiffs are essentially taking the position that a person who engages in 22 advocacy on issues such as domestic violence, feminism/female empowerment, 23 and sexual assault is inherently biased against men, which the Court staunchly 24 rejects. Additionally, Plaintiffs’ evidence of gender bias on the part of the 25 investigators does not rise anywhere near the level of gender discrimination found 26 in other cases. See Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 27 1038 (9th Cir. 2005) (finding that a decisionmaker’s sexist comments such as 28 1 “women have no business in construction,” “women should only be in subservient 2 positions,” and “I’m going to hire a guy” were related to the hiring decision 3 process and that “[w]here a decisionmaker makes a discriminatory remark against 4 a member of the plaintiff’s class, a reasonable factfinder may conclude that 5 discriminatory animus played a role in the challenged decision.”). 6 Thus, because Plaintiffs have not raised a “plausible inference that the 7 university discriminated against him on the basis of gender,” the Court grants 8 WSU’s motion as to Plaintiffs’ Title IX claim. Schwake, 967 F.3d at 947. 9 2. WLAD gender discrimination claim 10 Washington courts have largely adopted the McDonnell Douglas standard 11 when evaluating motions for summary judgment on state law discrimination claims 12 where the plaintiff lacks direct evidence of discriminatory animus. Hill v. BCTI 13 Income Fund-I, 144 Wash. 2d 172, 180 (2001) abrogated on other grounds by 14 Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas Cnty., 189 Wash. 2d 516 (2017). 15 However, Washington courts are still “free to adopt” theories and rationales other 16 than the McDonnell Douglas standard when they “best further the purposes and 17 mandates of our state statute.” Id. (internal quotation and citation omitted). 18 Here, because the Court has already found that Plaintiffs have not created a 19 dispute of material fact regarding gender discrimination for Plaintiffs’ Title IX 20 claim, the Court similarly grants WSU’s motion as to Plaintiffs’ WLAD gender 21 discrimination claim. Even if the Court deviates from the McDonnell Douglas 22 analysis, the Court does not find that adopting any alternate theory or rationale 23 would further the anti-discriminatory purpose of the WLAD in this case. 24 3. Tortious interference with contract claim 25 Lastly, WSU requests that the Court grant summary judgment in its favor on 26 Plaintiffs’ tortious interference with contract claim. WSU argues that there is no 27 genuine dispute of material fact regarding whether WSU tortiously interfered with 28 1 Mr. Fleetwood’s ROTC contract because the Army’s decision to disenroll Mr. 2 Fleetwood was based on its own independent fact-finding hearing, which took 3 place prior to the Center for Community Standards’ finding that Mr. Fleetwood 4 had violated Executive Policy 15. 5 Plaintiffs in response argue that there is a dispute of material fact regarding 6 tortious interference because Ms. Brooks, Ms. Finnestead, and Ms. Metzner knew 7 of Mr. Fleetwood’s ROTC contract and were aware that the WSU’s student 8 conduct process could have negative consequences for Mr. Fleetwood’s 9 involvement with ROTC. Plaintiffs also argue that, though the Army did hold a 10 disenrollment hearing for Mr. Fleetwood, the disenrollment process would not 11 have happened if not for WSU’s investigation, which unearthed the evidence 12 supporting the disenrollment decision (i.e., the 2017 Snapchat video). Finally, 13 Plaintiffs argue that the fact that the Whitman County Superior Court found that 14 WSU’s disciplinary actions against Mr. Fleetwood were arbitrary and capricious is 15 sufficient to support that WSU had an improper purpose and/or used improper 16 means in interfering with Mr. Fleetwood’s ROTC contract. 17 In order to prove a claim of tortious interference with a contract, a plaintiff 18 must show five elements: that (1) a valid contract existed; (2) the defendant had 19 knowledge of that contract; (3) the defendant intentionally interfered, thereby 20 inducing/causing a breach or termination of that contract; (4) the defendant 21 interfered for an improper purpose or used improper means; and (5) the 22 defendant’s interference resulted in damage. Leingang v. Pierce Cnty. Med. 23 Bureau, Inc., 131 Wash. 2d 133, 157 (1997). Intentional interference requires an 24 improper objective or the use of wrongful means that in fact cause injury to the 25 person’s contractual relationship. Id. Interference by improper means includes 26 interference that is wrongful by reason of a statute or other regulation, or a 27 recognized rule of common law, or an established standard of trade or profession. 28 1 Pleas v. City of Seattle, 112 Wash. 2d 794, 804 (1989). A party exercising its legal 2 interests in good faith does not constitute improper interference. Id. 3 It appears that the parties are only disputing elements (3) and (4) of 4 Plaintiffs’ tortious interference claim. Thus, the Court will focus its analysis 5 accordingly. 6 The Court grants WSU’s motion as to Plaintiffs’ tortious interference with 7 contract claim. First, Plaintiffs have not created a dispute of material fact regarding 8 whether WSU intentionally interfered and thereby induced/caused the termination 9 of Mr. Fleetwood’s ROTC contract. It is undisputed that WSU only initiated the 10 student conduct process after ROTC reached out and requested that the campus 11 Title IX coordinator investigate Mr. Fleetwood’s conduct, which does not comport 12 with a common-sense understanding of the word “interfere.” 13 Additionally, Plaintiffs argue that WSU “induced” ROTC’s decision to 14 disenroll Mr. Fleetwood through the Center for Community Standards’ decision to 15 find Mr. Fleetwood responsible for violating Executive Policy 15. However, the 16 Center for Community Standards issued its finding that Mr. Fleetwood was 17 responsible for violating Executive Policy 15 on December 16, 2019. Meanwhile, 18 the Army held its disenrollment hearing for Mr. Fleetwood on December 9, 2019. 19 Thus, the Disenrollment Board could not have been “induced” to make its 20 recommendation based on Ms. Metzner’s finding because she had not yet issued it 21 at the time of Mr. Fleetwood’s disenrollment hearing. 22 Plaintiffs have also failed to create a dispute of material fact regarding 23 whether WSU interfered with Mr. Fleetwood’s ROTC contract for an improper 24 purpose and/or used improper means. For one, OEO only initiated an investigation 25 after independently reviewing B.K.’s allegations for sufficient plausibility. 26 Moreover, though Plaintiffs argue that B.K. and/or J.S. had an improper objective 27 in making a sexual harassment complaint against Mr. Fleetwood, Plaintiffs have 28 1 presented no evidence showing that WSU shared in that objective. In fact, Ms. 2 Brooks testified that she investigated the theory (provided to her by Mr. 3 Fleetwood) that B.K. only made the sexual harassment allegations as part of some 4 “collaborative collusion” against him, but testified that she did not find much 5 evidence to support this theory. ECF No. 40, Exhibit C, Brooks Dep. 118:8-24. 6 Finally, Mr. Fleetwood concedes that, at his Army disenrollment hearing, he 7 testified and admitted to sending the 2017 Snapchat video as well as other explicit 8 photos. Accordingly, in the Army’s Formal Board Findings and Recommendations 9 issued on December 17, 2019, after Mr. Fleetwood’s disenrollment hearing, the 10 Disenrollment Board stated that its reason for recommending Mr. Fleetwood’s 11 disenrollment was because of Mr. Fleetwood “sending out . . . explicit videos and 12 showing other Cadets naked and inappropriate photos of women,” which “is not 13 something a Cadet of Character would do and is not in compliance with the Army 14 Values.” ECF No. 36, Exhibit 5. This is sufficient to show that the Army’s 15 disenrollment decision was independent of WSU’s student conduct process. 16 Therefore, because the evidence in the record shows that WSU did not 17 intentionally interfere with Mr. Fleetwood’s ROTC contract and that ROTC 18 engaged in its own independent disenrollment hearing before deciding to remove 19 Mr. Fleetwood from the ROTC program the Court grants WSU’s motion as to 20 Plaintiffs’ tortious interference claim. 21 Lack of Federal Subject-Matter Jurisdiction 22 Now that the Court has granted summary judgment in favor of Defendant on 23 Plaintiffs’ Title IX, WLAD, and tortious interference with contract claims, the only 24 remaining claim in the case is Plaintiffs’ Washington Public Record Act claim. 25 However, Defendant removed this case to federal court based on (1) federal 26 question jurisdiction pursuant to 28 U.S.C. § 1331; and (2) civil rights jurisdiction 27 pursuant to 28 U.S.C. § 1343. ECF No. 1 at 2 (“This is a civil action of which this 28 court has original jurisdiction under 28 U.S.C. § 1331 and § 1343.”). Now that the Court has resolved Plaintiffs’ Title [X claim, the Court no longer has federal 3|| subject-matter jurisdiction under either basis. Thus, the Court dismisses the action for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(h)(3); see also California 5|| Diversified Promotions, Inc. v. Musick, 505 F.2d 278, 280 (9th Cir. 1974). Accordingly, IT IS HEREBY ORDERED: 1. Defendant’s Motion for Summary Judgment, ECF No. 32, is GRANTED. 9 2. The Clerk’s Office is directed to enter judgment in favor of Defendant. 11 3. The above-captioned case is DISMISSED without prejudice. 12 IT IS SO ORDERED. The District Court Clerk is directed to enter this 13|| Order, provide copies to counsel, and close the file. 14 DATED this 27th day of June 2022. 15 16 17 ‘ Sfraleyld Eee Yoar 19 Stanley A. Bastian 20 Chief United States District Judge 21 22 23 24 25 26 27 28 ORDER RE: DAN PATTERSON DECLARATION; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT: DISMISSING