UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
John Doe
v. Case No. 22-cv-00188-PB Opinion No. 2023 DNH 024 Franklin Pierce University
MEMORANDUM AND ORDER
A Title IX Committee at Franklin Pierce University (FPU or
University) determined after an investigation and hearing that a male
student, plaintiff John Doe, had engaged in dating violence against a female
student, Sally Smith. The committee imposed a three-semester suspension
and placed a permanent notation on Doe’s academic record identifying him as
a perpetrator of dating violence. After losing his internal appeal, Doe brought
this lawsuit. He alleges that the University violated Title IX of the Education
Amendments of 1972, 20 U.S.C. § 1681(a), by discriminating against him on
the basis of his sex. He also asserts state law claims for breach of contract,
breach of the implied covenant of good faith and fair dealing, and negligence.
The University has filed a motion to dismiss all of Doe’s claims except his
breach of contract claim. For the following reasons, I grant the motion in part
and deny it in part. I. BACKGROUND
Doe is an undergraduate student at FPU, a private university located
in Rindge, New Hampshire. In October 2021, Smith, Doe’s “on-again, off-
again” girlfriend of several years filed a complaint with the University
against Doe. Compl. ¶¶ 27, 31. FPU’s notice of Smith’s complaint, which Doe
received on October 29, 2021, alleged that Doe had engaged in “[p]hysical
dragging, suffocation, and sexual assault on October 27th, 2021, as well as
other forms of physical and emotional abuse throughout [their] relationship.”
Id. ¶ 34.
FPU retained Susan Schorr to serve as an outside investigator. Id.
¶ 37. Schorr began her investigation by interviewing Smith, who described
the alleged sexual assault on October 27th and provided additional
information concerning twenty other “episodes of alleged sexual violence,
physical violence, or other abusive behavior” by Doe. Id. ¶ 40. During her
subsequent interview of Doe, Schorr questioned him about these additional
episodes without giving him prior notice that they would be discussed. Id. ¶
41. Although Schorr later conducted a second interview with Smith and told
Doe that she intended to reinterview him, Schorr submitted her investigation
report without speaking to Doe a second time. Id. ¶¶ 42, 46, 48.
Schorr completed her investigation and sent a draft report to FPU on
January 21, 2022. Id. ¶ 44. FPU sent Doe the draft report by email on
2 February 14, 2022, and asked him to respond within ten days. Id. ¶¶ 50, 53.
Contrary to both the University’s Title IX policy and federal regulations,
however, FPU failed to send a copy of the draft report to his advisor, attorney
Ted Lothstein. Id. ¶¶ 50, 51, 52. Doe did not open the email containing the
draft report until March 6, 2022, after the response deadline had passed. Id.
¶ 54. At that point, a hearing on the complaint had been scheduled for March
10, 2022. Id. ¶ 84. Because FPU did not provide Doe with a specific list of
charges until March 15, FPU had to reschedule Doe’s hearing twice, first
until March 24 and ultimately until April 5. Id. ¶¶ 85-88, 95.
A few days after the hearing, the FPU Decision Board issued a decision,
finding that Doe had committed two Title IX dating violence violations and
four code of conduct violations. Id. ¶ 107. It dismissed the eight remaining
charges without finding that any of the sexual assault allegations had been
proved. Id. The Board suspended Doe for three semesters, required him to
pay restitution, and placed a permanent notation in his academic record that
he had been found to have committed dating violence. Id. ¶¶ 108, 118. Doe
filed a timely appeal with FPU, but it was initially denied as untimely. Id. ¶¶
114-115. The University later accepted the appeal and denied it on the
merits. Id. ¶¶ 116. This lawsuit followed.
3 II. STANDARD OF REVIEW
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim,
a plaintiff must make factual allegations sufficient to “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This
standard “demands more than an unadorned, the defendant-unlawfully-
harmed-me accusation.” Id. A claim is facially plausible if it pleads “factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
In testing a complaint’s sufficiency, I employ a two-step approach. See
Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). First, I
screen the complaint for statements that “merely offer legal conclusions
couched as fact or threadbare recitals of the elements of a cause of action.” Id.
(cleaned up). A claim consisting of little more than “allegations that merely
parrot the elements of the cause of action” may be dismissed. Id. Second, I
credit as true all non-conclusory factual allegations and the reasonable
inferences drawn from those allegations, and then determine if the claim is
plausible. Id. The plausibility requirement “simply calls for enough fact to
raise a reasonable expectation that discovery will reveal evidence” of illegal
conduct. Twombly, 550 U.S. at 556. The “make-or-break standard” is that
those allegations and inferences, “taken as true, must state a plausible, not a
4 merely conceivable, case for relief.” Sepúlveda-Villarini v. Deep’s of Educ. of
P.R., 628 F.3d 25, 29 (1st Cir. 2010).
III. ANALYSIS
The University has moved to dismiss Doe’s Title IX, breach of the
covenant of good faith and fair dealing, and negligence claims. It argues that
Doe’s Title IX claim fails because the complaint does not allege sufficient
facts to support a plausible claim that FPU was biased against Doe because
of his sex. FPU contends that Doe’s good faith and fair dealing claim must be
dismissed because it is duplicative of his breach of contract claim. Lastly, the
University argues that Doe’s negligence claim fails as a matter of law because
it does not owe him a duty of care. I discuss each claim in turn.
A. Title IX
Title IX of the Education Amendments of 1972 bars federally supported
colleges and universities from discriminating against students “on the basis
of sex.” See 20 U.S.C. § 1681(a); Haidak v. Univ. of Mass.-Amherst, 933 F.3d
56, 73-74 (1st Cir. 2019). 1 “A claim of sex bias in the enforcement or design of
a college’s sexual misconduct policy may state a claim under Title IX.” Doe v.
1 As the First Circuit has recognized, “despite Title IX’s language prohibiting discrimination ‘on the basis of sex,’ 20 U.S.C. § 1681(a), courts sometimes refer to ‘gender bias’ when describing the prohibited motivation.” Doe v. Stonehill Coll., 55 F.4th 302, 332 n.45 (1st Cir. 2022). The parties likewise use the two terms interchangeably.
5 Stonehill Coll., 55 F.4th 302, 331 (1st Cir. 2022). The First Circuit has issued
several decisions in recent years that address Title IX claims by students like
Doe who have been disciplined for violating a college or university sexual
misconduct policy. See, e.g., id.; Doe v. Brown Univ., 43 F.4th 195, 207 (1st
Cir. 2022); Haidak, 933 F.3d at 73-74; Doe v. Trs. of Boston Coll., 892 F.3d 67,
90 (1st Cir. 2018). The Circuit has not settled on a single comprehensive test
to evaluate such claims, but it has recognized several ways in which a
plaintiff can show that a university discriminated against him based on his
sex. See Stonehill, 55 F.4th at 332. The two potentially viable theories of
liability that Doe pursues are “erroneous outcome” and “selective
enforcement.” Id. To prevail under either theory, Doe must prove that sex
bias was a motivating factor behind the University’s actions. See id. at 332-
33; Haidak, 933 F.3d at 74. 2
2 A growing number of circuits have rejected this analytical framework, concluding that the two theories of liability “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); see Doe v. Univ. of Denver, 1 F.4th 822, 830 (10th Cir. 2021); Sheppard v. Visitors of Va. State Univ., 993 F. 3d 230, 236 (4th Cir. 2021); Rossley v. Drake Univ., 979 F.3d 1184, 1192 (8th Cir. 2020); Schwake v. Ariz. Bd. of Regents, 967 F.3d 940, 947 (9th Cir. 2020); Doe v. Univ. of Scis., 961 F.3d 203, 209 (3d 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. I would reach the same result under either approach. 6 1. Erroneous Outcome
To state a Title IX claim based on an erroneous outcome theory of
liability, a plaintiff must allege (1) “facts casting some articulable doubt on
the accuracy of the outcome of the disciplinary proceeding” and (2) facts
supporting a plausible claim that “gender was a motivating factor” in the
decision. Stonehill, 55 F.4th at 332 (cleaned up).
The University does not challenge the first element of Doe’s erroneous
outcome claim. Instead, it argues that the claim is deficient because he has
failed to allege sufficient facts to support a plausible inference that FPU’s
actions were motivated by anti-male bias. Doe responds that the procedural
irregularities in his disciplinary proceeding, Schorr’s decision to offer a
second interview to Smith but not to Doe, and Schorr’s credibility finding
against Doe, together create an inference of sex bias. I agree with the
University that these allegations, whether considered singly or in
combination, are insufficient to state a plausible claim that sex bias infected
the outcome of the proceeding.
FPU’s alleged procedural errors do not lend themselves to an inference
of sex bias. Generally, “allegations of a procedurally or otherwise flawed
proceeding that has led to an adverse and erroneous outcome combined with
a conclusory allegation of gender discrimination is not sufficient to survive a
motion to dismiss.” Doe v. Harvard Univ., 462 F. Supp. 3d 51, 62 (D. Mass.
7 2020) (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994)); see also
Doe v. Samford Univ., 29 F.4th 675, 689 (11th Cir. 2022). Rather, a plaintiff
must “plead sufficient facts to support a plausible inference that the
irregularities are attributable to sex bias,” as opposed to “other plausible
reasons” such as “‘ineptitude, inexperience, and sex-neutral pro-complainant
bias.’” Stonehill, 55 F.4th at 334 (quoting Samford, 29 F.4th at 692). Only in
the exceptional case where the disciplinary process is “inexplicably and
egregiously one-sided” can the procedural errors alone support an inference of
sex bias. Id. at 334-35; see, e.g., Doe v. Baum, 903 F.3d 575, 586 (6th Cir.
2018) (allegations that the university appeals board “credited exclusively
female testimony” and “rejected all of the male testimony” on the ground that
many of the male witnesses were the respondent’s fraternity brothers, while
ignoring the fact that several of the complainant’s witnesses were her
sorority sisters, sufficient to give rise to an inference of sex bias); Doe v.
Purdue Univ., 928 F.3d 652, 657-58, 669 (7th Cir. 2019) (same where the
complaint alleged, among other irregularities, that the respondent was
denied permission to present witnesses and the Title IX decision-maker
credited the complainant’s version of the event even though the complainant
did not speak with the decision-maker or “even submit a statement in her
own words”); Doe v. Columbia Univ., 831 F.3d 46, 57 (2d Cir. 2016) (same
where the complaint alleged that the claim of sexual misconduct lacked any
8 support in the evidence and that the university “declined even to explore the
testimony of [the respondent’s] witnesses”).
The complaint here fails to allege that the circumstances under which
the alleged procedural irregularities arose demonstrate anti-male bias. FPU’s
alleged missteps include failing to provide Doe with a sufficiently detailed
notice of Smith’s complaint prior to the start of the investigation; failing to
provide Doe with a timely notice of the charges against him; failing to send
the draft investigation report to Doe’s advisor; initially denying Doe’s request
to have a confidential support person attend the hearing; initially denying
Doe’s appeal as untimely; and improperly excluding impeachment evidence
as to Smith and other witnesses.
As Doe acknowledges, the University corrected most of these errors
once he brought them to its attention. It gave him notice of the charges prior
to the hearing after he requested it, and it granted his subsequent request to
continue the hearing to allow him more time to prepare his defense.
Similarly, despite its initial denials, the University allowed Doe to have a
confidential support person at the hearing, and it eventually accepted his
appeal as timely. These circumstances suggest that any procedural missteps
by FPU were mere mistakes that the University rectified, as opposed to
intentional efforts to discriminate against Doe based on his sex.
9 Doe’s remaining claims of procedural irregularities likewise do not
support a plausible inference that sex-based animus infected the outcome of
the proceeding. For example, the complaint does not allege that the hearing
officer improperly allowed impeachment evidence against Doe but not Smith.
Instead, at most, Doe complains that the hearing officer improperly
disallowed evidence that Doe wanted to use to impeach Smith’s credibility.
Compl. ¶ 8. Without more, I cannot conclude that the exclusion of this type of
evidence is suggestive of sex bias. Cf. Doe v. Columbia Coll. Chi., 933 F.3d
849, 856 (7th Cir. 2019) (explaining that alleged restrictions on a
respondent’s “access to documents relevant to the investigation” did not
“demonstrate[ ] an anti-male bias” in part because “this allegation [was]
divorced from gender – Doe d[id] not allege that females accused of sexual
assault were allowed to review materials or that only female victims were
allowed to review them”).
Doe’s attempt to salvage his claim by focusing on Schorr’s alleged anti-
male bias also falls short. The complaint alleges that Schorr interviewed Doe
only once, and about topics that he was unprepared to discuss, whereas she
interviewed Smith twice. Schorr then found Doe less credible than Smith
because his discussion of the events was more vague. Critically, Doe does not
allege that he informed Schorr that he was unprepared to discuss the topics
she asked him to cover. On the contrary, the complaint acknowledges the
10 possibility that Schorr held “the mistaken view that he had prior notice and
plenty of time to formulate his responses to the allegations.” Compl. ¶ 58.
Similarly, Doe does not allege that he asked Schorr for a follow-up interview.
Instead, he only claims that she stated at the time of his interview that she
anticipated a follow-up interview but ultimately did not schedule one. Lastly,
the complaint acknowledges that Schorr had a legitimate reason to
reinterview Smith, namely, to confront Smith with evidence suggesting that
she was not entirely forthcoming in her first interview. On these allegations,
Schorr’s interviews and her credibility finding do not support a reasonable
inference that she was biased against Doe based on his sex.
Although Doe’s complaint is replete with bare allegations of bias, it
fails to allege sufficient facts to support a plausible claim that anti-male bias
was a motivating factor behind FPU’s decision. Unlike in cases involving
egregious procedural flaws, Doe “was given a meaningful opportunity to
present his version of what happened” and the proceeding was not otherwise
so “one-sided” to support a plausible inference that FPU was motivated to
discipline Doe because of his sex. See Stonehill, 55 F.4th at 335. Indeed, the
Board ruled in Doe’s favor on most of the charges, including the most serious
claims of sexual assault. On these allegations, it is implausible to infer that
the University was motivated to find against Doe because of his sex. Thus,
11 Doe’s erroneous outcome theory of liability does not yield a viable Title IX
claim.
2. Selective Enforcement
A Title IX claim based on selective enforcement requires a showing that
“gender bias was a motivating factor” behind either the severity of the
sanctions or the decision to initiate charges. Haidak, 933 F.3d at 74 (quoting
Yusuf, 35 F.3d at 715); see Stonehill, 55 F.4th at 332. Typically, “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. Trs. of
Dartmouth Coll., 2022 DNH 085, 2022 WL 2704275, at *8 (D.N.H. July 12,
2022) (cleaned up); see Haidak, 933 F.3d at 74. “Unlike an erroneous outcome
claim, a plaintiff can prevail on a selective enforcement claim without
disturbing the factual findings made in a disciplinary proceeding.” Doe v.
Amherst Coll., 238 F. Supp. 3d 195, 222 (D. Mass. 2017).
The University argues that Doe’s selective enforcement theory fails
because he did not allege any facts suggesting that male and female students
accused of sexual misconduct are treated differently, or that Doe’s sex
otherwise motivated the charging decision or his punishment. I agree.
With respect to differential treatment, the only potential comparator
Doe has put forth is Smith. He points out that the University filed charges
against him when Smith accused him of misconduct but failed to bring
12 charges against Smith when her own misconduct came to light during the
investigation. Faced with a similar allegation in Haidak, the First Circuit
held that it was insufficient to support an inference of sex bias. See 933 F.3d
at 74. The court explained that the Title IX respondent was not similarly
situated to the Title IX complainant because the complainant “affirmatively
contacted the university to report her charges and to seek relief,” whereas the
respondent’s “accusations came second in time and arose only defensively” as
he chose not to initiate a charge. Id. The court added that the allegation
showed, at most, that the university pursued the complainant’s case instead
of the respondent’s “because [she] made the allegation first – not because
[his] sex influenced the university.” Id. So too here.
In addition, material differences between the parties’ alleged
misconduct prevent Smith from being used as a comparator. Smith’s most
serious charge was sexual assault, whereas Doe did not make a similar
allegation. Instead, he alleged that Smith had stolen his phone, pushed him
into a lake, bit him, and harassed him during the pendency of a mutual no-
contact order. These charges are “temporally and elementally distinct from”
Smith’s allegations and thus preclude treating the two students as “similarly
situated” for purposes of a selective enforcement claim. See Sheppard v.
Visitors of Va. State Univ., 993 F.3d 230, 237 (4th Cir. 2021); see also
Whitaker v. Bd. of Regents of Univ. Sys. of Ga., No. 20-13618, 2021 WL
13 4168151, at *3 (11th Cir. Sept. 14, 2021) (concluding that the Title IX
complainant and the respondent were not similarly situated where the
complainant’s allegations involved conduct “clearly of greater severity,
degree, and kind than the conduct underlying” the respondent’s allegations).
Given that Doe does not identify a similarly situated female student, his
selective enforcement theory based on differential treatment fails.
To the extent Doe relies on the alleged procedural flaws in his
disciplinary proceeding to support a claim that either the initiation of the
proceeding or the severity of his punishment was motivated by his sex, he has
not alleged adequate facts to support that claim. Looking at the allegations in
totality, including those advanced in support of the erroneous outcome claim,
the complaint does not plausibly allege that the sexes of the parties involved
played a role in FPU’s enforcement of its Title IX policies. As I explained
before, it is unreasonable to draw an inference of anti-male bias from the
alleged procedural defects, which were either adequately remedied or do not
show that the University’s treatment of either Doe or Smith is attributable to
sex rather than some other reason, such as Smith’s status as the
complainant.
In short, Doe has not alleged that he was unfairly investigated or
disciplined where similarly-situated females were not, or that his sex
14 otherwise motivated FPU’s enforcement actions. Accordingly, I conclude that
his selective enforcement theory fails.
B. Good Faith and Fair Dealing
There is an implied covenant in every New Hampshire contract “that
the parties will act in good faith and fairly with one another.” Livingston v.
18 Mile Point Drive, Ltd., 158 N.H. 619, 624 (2009). In this type of case, the
duty of good faith and fair dealing applies if the agreement vests a
contracting party with a degree of discretion in performing its duties under
the agreement, and that party exercised its discretion unreasonably in a way
that harmed the other party. See Short v. Laplante, Trs., 174 N.H. 384, 391-
92 (2021); Great Lakes Aircraft Co. v. City of Claremont, 135 N.H. 270, 293
(1992).
The complaint alleges that FPU breached the covenant of good faith
and fair dealing inherent in its contract with Doe because it conducted the
Title IX investigation and adjudication in an unfair and biased manner. FPU
argues that this claim must be dismissed because it is duplicative of Doe’s
breach of contract claim. I disagree. Doe has alleged that the implied duty of
good faith cabins the University’s discretion conferred by the contract to
sanction Doe for violations of its policies. The claim does not duplicate Doe’s
breach of contract claim, which centers on the University’s alleged failure to
adhere to its own policies during the disciplinary proceeding.
15 C. Negligence
To state a claim for negligence under New Hampshire law, a plaintiff
must allege that the defendant owed the plaintiff a duty of reasonable care,
that the defendant breached that duty, and that the defendant’s breach
caused injury to the plaintiff. Carignan v. N.H. Int’l Speedway, Inc., 151 N.H.
409, 412 (2004). “Under New Hampshire law, a negligence claim cannot be
based on a negligent failure to perform contractual promises.” Doe v. Trs. of
Dartmouth Coll., 2021 DNH 107, 2021 WL 2857518, at *10 (D.N.H. July 8,
2021); see Lawton v. Great Sw. Fire Ins. Co., 118 N.H. 607, 609, 615 (1978).
Doe alleges that FPU is liable in negligence because it breached a duty
imposed by its own policies to handle disciplinary proceedings in a fair and
unbiased manner. Doe has alleged in his breach of contract claim that the
policies at issue are part of the parties’ contract. Accordingly, because Doe
brings his negligence claim based on breaches of the promises that FPU made
to him in their contract, his claim necessarily fails.
IV. CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss (Doc. No.
7) is granted as to Doe’s Title IX and negligence claims and denied as to his
breach of the implied covenant of good faith and fair dealing claim.
16 SO ORDERED.
/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge
March 17, 2023
cc: Counsel of record